Interpretation ID: nht91-6.29
DATE: October 17, 1991
FROM: Matthew J. Plache -- Gardner, Carton & Douglas
TO: Paul Jackson Rice -- Chief Counsel, NHTSA
COPYEE: John Rigby Esq.
TITLE: None
ATTACHMT: Attached to letter dated 12-3-91 from Paul Jackson Rice to Matthew J. Plache (A38; VSA 102(3); VSA 108(a)(1)(A))
TEXT:
I am writing to request an interpretation of whether Daihatsu America, Inc. would be in violation of federal law, including specifically section 1397(a) (1) of the National Traffic and Motor Vehicle Safety Act ("NTMVSA"), 15 U.S.C. S1397 (a) (1), if it were to sell Daihatsu HIJET vehicles in accordance with specifications such as those contained in the Request for Bid issued by the City of Los Angeles Department of General Services on September 9, 1991 (Bid Number F5995), a copy of which is attached hereto.
BACKGROUND
Daihatsu America, Inc. ("Daihatsu") is the exclusive distributor of of Daihatsu HIJET vehicles ("HIJET") in the United States. HIJETs are manufactured in Japan by Daihatsu Motor" Co. Ltd.
HIJETs are general purpose off-road utility vehicles. They are not intended for use on the public roads, streets or highways. As such, HIJETs do not comply with certain of the federal motor vehicle safety standards applicable to "motor vehicles" under the NTMVSA.
HIJETs are powered by a 550cc gasoline-powered engine and are unable, as manufactured for the United States market and as sold in the United States, to exceed a speed of 25 mph. Since HIJETs are not intended for on-road use, they are not affixed with a certification of conformity, as described in S1403 of the NTMVSA, 15 U.S.C. S1403. HIJETs were first marketed and sold in the United States in 1977. Since that time, they have always been advertised, promoted and sold as off-road vehicles. They are affixed with a warning label indicating that they are for off-road use only. HIJETs are sold by dealers that do not also sell vehicles that are classified as "motor vehicles" under the NTMVSA.
THE LOS ANGELES BID REQUEST
The attached bid request solicits bids for vehicles being purchased for use by the Recreation and Parks Equipment Division of the City of Los Angeles. The bid request describes the vehicles being solicited as the "Daihatsu full cab 'HIJET' without glass," the "Mitsubishi flow thru SH27F 1/," or equivalent vehicle. The specifications included with the bid request are almost an exact description of the Daihatsu HIJET. See last two pages of the attachment hereto.
Two aspects of the specifications are troublesome to Daihatsu. First, they require that the "vehicle must be capable of being registered for street use in California." In essence, this language, which appears in the third sentence of the first paragraph of the specifications, indicates that the vehicles being solicited are for use on the public roads, streets and highways. In other words, the solicitation is for vehicles that would be classified as "motor vehicles" under the NTMVSA.
The second troublesome aspect of the specifications is the requirement, set forth in the last paragraph thereof, that the contractor must apply to register the vehicles and obtain for them "Exempt Special Equipment 'SE' license plates." This is a special type of California license plate used on government-owned vehicles. Most importantly, "SE" license plates are established for use with "on-road" vehicles; they are not generally available for exclusively off-road vehicles. Once again, this requirement
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1/ The Mitsubishi vehicle is similar in design to the Daihatsu HIJET. In October, 1988, NHTSA's Chief Counsel issued an interpretive ruling in connection with the Mitsubishi vehicle, concluding that "the Mitsubishi SH27 lightweight truck does not appear to be a motor vehicle under the Safety Act." Letter from Erika Z. Jones, Chief Counsel, NHTSA to Mr. Hiroshi Kato, MMC Services, Inc., page 3 (October 31, 1988).
indicates that the solicitation is for vehicles that would be classified as "motor vehicles" under the NTMVSA.
Daihatsu is not certain that it could comply with these two aspects of the solicitation without running afoul of federal law, including certain strictures set forth in the NTMVSA. As stated above, HIJETs do not conform to all of the federal safety standards applicable to motor vehicles, nor are they affixed with a certificate of conformity as described in 15 U.S.C. S1403. Thus, Daihatsu is concerned that if it were to deliver HIJET vehicles, or even to offer to deliver such vehicles, in accordance with these specifications, it might violate certain of the prohibitions set forth in section 1397 (a) (1) of the NTMVSA, 15 U.S.C. S1397 (a)(1).
REQUEST FOR INTERPRETIVE LETTER
As noted above, I am seeking an interpretive ruling indicating whether Daihatsu would violate federal law if it were to deliver, or offer to deliver, HIJET vehicles in accordance with specifications such as those contained in the Los Angeles bid request. Daihatsu is especially concerned about this matter because it has recently received a number of similar solicitations for "HIJET-like" vehicles which, although not as problematic as the Los Angeles bid request, could be interpreted as solicitations for "on-road" vehicles.
Please note that because of its concerns about potential violations of federal law, Daihatsu has refrained from submitting a bid in accordance
with the Los Angeles specifications. Other suppliers of similar vehicles, however, apparently do not share Daihatsu's concerns.2/ Thus, until the issues raised in this letter are resolved, Daihatsu will be at a competitive disadvantage in similar bidding situations.
For these reasons, I request that you expedite your response to this letter. Please note that I recently spoke about this
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2/ Indeed, the Los Angeles contract was recently awarded to a supplier of the Mitsubishi vehicle. As noted in footnote 1, above, this vehicle is the subject of a NHTSA exemption letter. As with the HIJET, the Mitsubishi vehicle also fails to comply with certain of the Federal safety standards applicable to "on-road" vehicles.
matter with John Rigby of your office; he suggested I submit a request in writing for an interpretive ruling.
Please let me know if you require any further information.