ID: DIERSEN.ETL

Mr. Dave Diersen
915 Cove Court
Wheaton, IL 60187

Dear Mr. Diersen:

Your letter to the Secretary of Transportation proposing a change in the Federal odometer disclosure law has been referred to me for response. The National Highway Traffic Safety Administration ("NHTSA") is the agency in the Department of Transportation that is responsible for the Federal regulations that implement the Truth in Mileage Act of 1986 as amended (P.L. 99-579).

NHTSA recently received and responded to a letter from Congressman Henry Hyde that inquired about issues raised in a letter you wrote to the Congressman on this same subject. That letter states this agency's position on the issues you raise in the attachment to your letter to Secretary Peña. As that letter states, NHTSA does not believe that the change to the Federal regulation that you advocate would be advisable. State law may be able to provide a remedy for the problem you describe more effectively and more efficiently.

I hope that you find this information helpful. If you have any further questions, please contact Eileen Leahy, an attorney on my staff.

Sincerely,

Samuel Dubbin

Chief Counsel

Enclosure

ref:580

d:8/8/96

ID: nht93-5.17

TYPE: Interpretation-NHTSA

DATE: July 9, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Christopher Banner

TITLE: None

ATTACHMT: Attached to letter dated 3-21-93 from Christopher Banner to John Wolmack (Womack) (OCC 8477)

TEXT:

This responds to your request for an interpretation of how NHTSA's regulations would apply to some manufacturing operations you are contemplating. I apologize for the delay in this response. In a telephone conversation with Dorothy Nakama of my staff, you explained that you would like to start producing vehicles based on Ford pickup truck chassis. Some of these Ford chassis would come from wrecked vehicles that you would strip down to the frame, and others would be new chassis that you would purchase directly from Ford. You would then install new bodies on top of some of these chassis and offer them for sale as completed vehicles. You also would like to offer some of these bodies and chassis for sale as "kit cars." In the "kit car" version, you would sell the body and chassis to the purchaser of the kit, and the purchaser of the kit would have to furnish some other parts in order to complete the vehicle.

This agency's Federal motor vehicle safety standards apply to new motor vehicles and new items of motor vehicle equipment. Federal law does not require motor vehicles and items of motor vehicle equipment to continue to comply with the safety standards after the first purchase of the vehicle or equipment item in good faith for purposes other than resale. However, Federal law does prohibit any manufacturer, distributor, dealer, or repair business from knowingly "rendering inoperative" compliance with a safety standard for a vehicle or item of equipment. See 15 U.S.C. 1397 (a)(1)(A), (a)(2)(A), and (b)(1).

1. NEW BODY ON NEW CHASSIS. All vehicles you produce by installing a new body on a new chassis would be considered new vehicles. You would have to certify that each of those vehicles conformed to all applicable safety standards. You would be considered a "final stage manufacturer" of the vehicles, as that term is used in 49 CFR Parts 567 and 568.

2. NEW BODY ON USED CHASSIS. We cannot say from the information you have provided whether the vehicles you produce by installing a new body on a stripped, wrecked Ford pickup would be treated as a new vehicle, and have to be certified as complying with the applicable safety standards. The answer depends on how extensively you modify the Ford pickup chassis.

To allow vehicle modifiers to determine when the modifications to a used chassis are so extensive that the resulting vehicle will be considered new for the purposes of the Federal safety standards, NHTSA has established specific criteria at 49 CFR 571.7(e), COMBINING NEW AND USED COMPONENTS. That section reads as follows:

When a new cab is used in the assembly of a truck, the truck will be considered newly manufactured . . . unless the engine, transmission, and drive axle(s) (as a minimum) of the assembled vehicle are not new, and at least two of these components were taken from the same vehicle.

This provision means that if you leave the frame, engine, transmission, and drive axle in place from the wrecked vehicle, and place a new body on top of it, we would consider that vehicle to be a used vehicle, which would not have to be certified by you as complying with applicable safety standards. On the other hand, if you were to remove all the drive components from the frame of the Ford pickup chassis, and add new drive components or rebuilt drive components from different vehicles, the vehicle would be a new vehicle and would have to be certified by you as complying with all applicable safety standards.

3. KIT CARS. Under the National Traffic and Motor Vehicle Safety Act, a "motor vehicle" is defined, in part, as one that is "driven by mechanical power." See 15 U.S.C. 1391(3). We have interpreted this provision to mean that a unit would be considered only an assemblage of motor vehicle equipment, and not a motor vehicle, until such time as a power source is added. None of the Federal motor vehicle safety standards apply to assemblages of motor vehicle equipment, or to used equipment items in the assemblage (items used on a vehicle previously in service on the public roads). However, certain of the safety standards would apply to new equipment items included in the assemblage. It would be a violation of Federal law if your kit car includes any new brake hoses, brake fluid, lighting equipment, tires, glazing, or seat belt assemblies that do not comply with the applicable safety standards.

If you ship your kit cars with all parts needed to produce a completed motor vehicle, including the power source, this agency will treat the kit car as a motor vehicle, not an assemblage of motor vehicle equipment, regardless of the state of completion of the kit. You would be required to certify that the kit car conformed to all applicable safety standards if it were treated as a new vehicle under the rules set forth in 1. and 2. above, but not if it were treated as a used vehicle under those rules.

I have enclosed for your information a general information sheet for manufacturers of new vehicles. This sheet highlights the relevant Federal statutes and regulations and explains how to obtain copies of them. I have also enclosed a brochure titled "Federal Motor Vehicle Safety Standards" that briefly describes each of the safety standards.

I hope this information is useful. If you have any further questions or need further information, please contact Dorothy Nakama of my staff at (202) 366-2992.

ID: 8477a

Mr. Christopher Banner
618 Osage Street
Manhattan, KS 66402

Dear Mr. Banner:

This responds to your request for an interpretation of how NHTSA's regulations would apply to some manufacturing operations you are contemplating. I apologize for the delay in this response. In a telephone conversation with Dorothy Nakama of my staff, you explained that you would like to start producing vehicles based on Ford pickup truck chassis. Some of these Ford chassis would come from wrecked vehicles that you would strip down to the frame, and others would be new chassis that you would purchase directly from Ford. You would then install new bodies on top of some of these chassis and offer them for sale as completed vehicles. You also would like to offer some of these bodies and chassis for sale as "kit cars." In the "kit car" version, you would sell the body and chassis to the purchaser of the kit, and the purchaser of the kit would have to furnish some other parts in order to complete the vehicle.

This agency's Federal motor vehicle safety standards apply to new motor vehicles and new items of motor vehicle equipment. Federal law does not require motor vehicles and items of motor vehicle equipment to continue to comply with the safety standards after the first purchase of the vehicle or equipment item in good faith for purposes other than resale. However, Federal law does prohibit any manufacturer, distributor, dealer, or repair business from knowingly "rendering inoperative" compliance with a safety standard for a vehicle or item of equipment. See 15 U.S.C. 1397(a)(1)(A), (a)(2)(A), and (b)(1).

1. New Body on New Chassis. All vehicles you produce by installing a new body on a new chassis would be considered new vehicles. You would have to certify that each of those vehicles conformed to all applicable safety standards. You would be considered a "final stage manufacturer" of the vehicles, as that term is used in 49 CFR Parts 567 and 568.

2. New Body on Used Chassis. We cannot say from the information you have provided whether the vehicles you produce by installing a new body on a stripped, wrecked Ford pickup would be treated as a new vehicle, and have to be certified as complying with the applicable safety standards. The answer depends on how extensively you modify the Ford pickup chassis.

To allow vehicle modifiers to determine when the modifications to a used chassis are so extensive that the resulting vehicle will be considered new for the purposes of the Federal safety standards, NHTSA has established specific criteria at 49 CFR 571.7(e), Combining new and used components. That section reads as follows:

When a new cab is used in the assembly of a truck, the truck will be considered newly manufactured . . . unless the engine, transmission, and drive axle(s) (as a minimum) of the assembled vehicle are not new, and at least two of these components were taken from the same vehicle.

This provision means that if you leave the frame, engine, transmission, and drive axle in place from the wrecked vehicle, and place a new body on top of it, we would consider that vehicle to be a used vehicle, which would not have to be certified by you as complying with applicable safety standards. On the other hand, if you were to remove all the drive components from the frame of the Ford pickup chassis, and add new drive components or rebuilt drive components from different vehicles, the vehicle would be a new vehicle and would have to be certified by you as complying with all applicable safety standards.

3. Kit cars. Under the National Traffic and Motor Vehicle Safety Act, a "motor vehicle" is defined, in part, as one that is "driven by mechanical power." See 15 U.S.C. 1391(3). We have interpreted this provision to mean that a unit would be considered only an assemblage of motor vehicle equipment, and not a motor vehicle, until such time as a power source is added. None of the Federal motor vehicle safety standards apply to assemblages of motor vehicle equipment, or to used equipment items in the assemblage (items used on a vehicle previously in service on the public roads). However, certain of the safety standards would apply to new equipment items included in the assemblage. It would be a violation of Federal law if your kit car includes any new brake hoses, brake fluid, lighting equipment, tires, glazing, or seat belt assemblies that do not comply with the applicable safety standards.

If you ship your kit cars with all parts needed to produce a completed motor vehicle, including the power source, this agency will treat the kit car as a motor vehicle, not an assemblage of motor vehicle equipment, regardless of the state of completion of the kit. You would be required to certify that the kit car conformed to all applicable safety standards if it were treated as a new vehicle under the rules set forth in 1. and 2. above, but not if it were treated as a used vehicle under those rules.

I have enclosed for your information a general information sheet for manufacturers of new vehicles. This sheet highlights the relevant Federal statutes and regulations and explains how to obtain copies of them. I have also enclosed a brochure titled "Federal Motor Vehicle Safety Standards" that briefly describes each of the safety standards.

I hope this information is useful. If you have any further questions or need further information, please contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosure ref:568#571.7(e) d:7/9/93

ID: nht72-4.26

DATE: 03/16/72

FROM: AUTHOR UNAVAILABLE; Robert L. Carter; NHTSA

TO: Wingard Limited

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of February 10, 1972, regarding interpretation of certain parts of Federal Motor Vehicle Safety Standard No. 209, Seat Belt Assemblies.

In regard to your question on performance of retractors, the standard specifies that "an emergency-locking retractor or a non-locking retractor attached to upper torso restraint shall be subjected to 45,000 additional cycles of webbing withdrawal and retraction between 50 and 100 percent extension." This requirement applies to all emergency-locking retractors whether attached to the pelvic or upper torso restraint and only to those non-locking retractors that are attached to the upper torso restraint.

In regard to the 45,000 additional cycles, one cycle consists of extending the webbing from 50 to 100 percent extension and return to 50 percent.

Please do not hesitate to contact us if we can be of further assistance.

ID: 77-3.10

TYPE: INTERPRETATION-NHTSA

DATE: 06/27/77

FROM: AUTHOR UNAVAILABLE; J. J. Levin, Jr.; NHTSA

TO: Britax (Wingard) Limited

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your letter of May 5, 1977, requesting clarification of the relationship between paragraph S5.3 of Safety Standard No. 208, Occupant Crash Protection, and Safety Standard No. 216, Roof Crush Resistance. It is your understanding that Standard No. 216 becomes "obsolete and ineffective" after August 15, 1977.

Your interpretation is incorrect. Standard No. 216 is a separate, independent standard from Standard No. 208 and remains effective in its present form regardless of the amendment of Standard No. 208 according to any of the three alternative proposals issued by Secretary Adams (42 FR 15935, March 24, 1977). Standard No. 216 is applicable to all passenger cars except those that conform to the rollover test requirements of paragraph S5.3 of Standard No. 208 by totally passive means.

Under existing Standard No. 208, a manufacturer must meet the rollover requirements of paragraph S5.3 only if he chooses to use option S4.1.2.1 (total passive protection). If the manufacturer chooses this option he can meet the requirements of Standard No. 216 instead of the rollover requirements of S5.3 until August 15, 1977, but not after that date since the alternative then expires. A manufacturer choosing to use either option S4.1.2.2 or option S4.1.2.3 of Standard No. 208 does not have to meet the rollover requirements of paragraph S5.3, at all. As a manufacturer of seat belts, you are undoubtedly aware that a majority of vehicle manufacturers choose to comply with Standard No. 208 by means of option S4.1.2.3.

If Secretary Adams' Alternative proposal I or Alternative proposal III becomes a final rule, Standard No. 208 will remain in the form just described above. The Secretary's Alternative II (mandatory passive restraints) proposes to make the lateral (S5.2) and rollover (S5.3) requirements of Standard No. 208 optional. A manufacturer would be permitted to use a totally passive system (meeting S5.1, S5.2 and S5.3) or to install lap belts and only meet the requirements of S5.1. If Alternative II were made final, most vehicle manufacturers would probably choose to install lap belts rather than to provide passive protection that would satisfy S5.3. As you noted, Alternative II also proposes to extend the option in paragraph S5.3 (complying with Standard No. 216 instead) from August 15, 1977, to August 31, 1980.

You are correct in your statement that the Secretary does not expect to reach a final decision on his alternative proposals until July.

SINCERELY,

MAY 5, 1977

Our ref: TVB/MPJ

Frank Berndt, Acting Chief Counsel, National Highway Traffic Safety Administration

49 CFR Part 571. Docket No. 74 14; Notice 08. March 24th 1977.

I would appreciate any clarification which you can give on the present status of FMVSS 216 and 208 in relation to the document reference on the heading.

On page 15937 of Notice 08 there are proposed three approaches to the amendment of Standard No. 208. Approach I and Approach III do not give us any problems in understanding, but there are certain parts of Approach II where we would be glad of clarification. In Section 2 of Approach II the date of August 15th 1977 would be changed to read August 31st 1980.

We are concerned particularly where this appears in S5.3. As we understand S5.3 in Federal Standard 208, as referenced, the rollover test is not compulsory if testing and conformity to FMVSS 216 has been carried out. Our understanding of S5.3 is that vehicles manufactured on or after August 15th 1977 would have to meet the requirements of S5.3 without the option of alternative certification under Standard No. 216. In other words that Standard 216 would at that date become obsolete and ineffective. Can you please confirm, or otherwise, the following statement:

1. As the Regulations stand at present vehicles manufactured on or after August 14th 1977 would be required to meet S5.3 of Standard 208.

2. As of August 15th 1977 the testing of vehicles to Standard No. 216 becomes irrelevant in all respects.

3. That this situation would stand if either Approach I or Approach III were taken as the amendement to Standard No. 208.

4. That no official decision on the amendement of 208 by means of any of the three approaches will be available before July 1st 1977.

We are not only interested in the applicability of Standard 208 with regard to occupant protection but also from the viewpoint of the use of either Standard 208 or Standard No. 216 in relation to body strength and in particular roof crush, if there is manufacturer or replacement equipment fitment of an opening roof unit.

It appears to us, as mentioned above, that testing for conformity to Standard No. 216 is likely to be irrelevant for any purpose after August 15th this year.

Any clarification you can give would be greatly appreciated.

T.V. Barlow Safety Engineer -- BRITAX (WINGARD) LTD.

ID: 8516

Mr. Dann T. Deaver
President
Origins International Corp.
28149 Kehrig Drive
Chesterfield, MI 48047

Dear Mr. Deaver:

This responds to your letter of March 30, 1993, to Taylor Vinson of this Office. You have asked for the Department's position on an electric vehicle to be developed by your company. You state that the vehicle "will be marketed as a closed community vehicle for retirement communities, closed club grounds, on site/off road/construction vehicles, theme parks, resorts, etc." It is also designed for use as a golf cart. The vehicle would have a top speed of 25 mph.

The jurisdiction of this agency over a vehicle depends upon whether it is a "motor vehicle" as defined by the National Traffic and Motor Vehicle Safety Act. Under the Act, a motor vehicle is one that is "manufactured primarily for use on the public streets, roads, and highways."

It appears from your letter that your planned vehicle could readily be used on the public highways. On the other hand, you plan to market the vehicle exclusively for off-road use. I have attached copies of two previous letters (December 3, 1991, addressed to Matthew J. Plache, Esq., and October 31, 1988, addressed to Mitsubishi) which address five factors that are relevant for determining whether such a vehicle is considered a motor vehicle. I have also enclosed a copy of an April 16, 1985 letter, addressed to Mr. Alexander E. Nagy, which discusses whether golf carts are considered motor vehicles.

If you wish to submit information relevant to the factors discussed in the enclosed letters, we would be pleased to consider it and offer you an opinion regarding your vehicle. Sincerely,

John Womack Acting Chief Counsel

Enclosures ref:VSA d:4/23/93

ID: 21331ogm

Ms. Ann Spink
American Coachworks, Inc.
8458 Lockhart Road
Denham Springs, LA 70726





Re: Replacement Parts Crashworthiness





Dear Ms. Spink:

This responds to your letter to Mr. Clive Van Orden regarding the use of aftermarket parts in collision repairs. I apologize for the delay in responding.

As your company is a body repair business, you are concerned about the possible safety consequences of aftermarket crash parts. You have attached an article from a trade publication in which Mr. Clarence Ditlow is quoted as saying that while the National Highway Traffic Safety Administration (NHTSA) "polices the safety of all aftermarket parts by ordering recalls where necessary, no federal agency polices the quality of aftermarket parts." You further state that it is your belief that NHTSA does not have regulatory authority over any "stand-alone" part except for lights and does not regulate crash parts.

You then ask if NHTSA is in fact regulating aftermarket crash parts and if the statement attributed to Mr. Ditlow is correct. In order to further understand NHTSA's authority and activities in relation to aftermarket crash parts, you ask five questions:

1. Does NHTSA "police" the safety of all aftermarket parts?
2. Does NHTSA "police" the safety of aftermarket crash parts?
3. Does NHTSA order recalls of aftermarket crash parts?
4. Does NHTSA or any other governmental agency regulate the safety of OEM replacement crash parts (not safety related mechanical parts)?
5. Does NHTSA or any other governmental agency regulate the safety of aftermarket replacement crash parts (not safety related mechanical parts)?

NHTSA has the authority to issue safety standards for both motor vehicles and motor vehicle equipment. Most Federal motor vehicle safety standards (F.M.V.S.S.) issued by the agency apply only to new vehicles. However, certain standards apply to parts and equipment, whether they are installed in new vehicles or sold in the aftermarket. Examples of these standards are Standard No. 106, Brake hoses; Standard No. 108, Lamps; reflective devices, and associated equipment; Standard No. 109, New pneumatic tires; Standard No. 116, Motor vehicle brake fluids; Standard No. 205, Glazing materials; and Standard No. 209, Seat belt assemblies. None of the Federal motor vehicle safety standards that cover replacement equipment (e.g. brake hoses, lights) apply to sheet metal or other replacement body parts.

The defect provisions we administer apply to both motor vehicles and motor vehicle replacement equipment, including aftermarket equipment to which standards do not apply. Under Section 30118 of Chapter 301 of Title 49 of the United States Code, "Motor Vehicle Safety" (49 U.S.C. 30118), if a manufacturer or NHTSA determines that an item of motor vehicle equipment contains a safety-related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and for remedying the problem free of charge. Thus NHTSA has the authority to order recalls of aftermarket crash parts, whether they are made by the original equipment manufacturer (OEM) by an independent parts manufacturer. However, NHTSA has not done so to date, because we have not discovered any information that has indicated that any particular aftermarket crash product contains a safety-related defect.

You may be interested to know that our Office of Vehicle Safety Compliance (OVSC) addressed the issue of possible adverse safety aspects of the use of non-original equipment manufacturer (OEM) replacement sheet metal components in some detail in 1990-91. OVSC sent interrogatory letters on this subject to the three major domestic automobile manufacturers, seeking test data as well as the answers to questions. The agency's concern was that replacement sheet metal components, such as fenders, hoods, and doors, could possibly reduce the crash protection provided by a vehicle.

Although all three manufacturers indicated concern about this issue, none produced any test data in response to NHTSA's original inquiry. Ford Motor Company (Ford) reported that it had performed some studies on non-OEM replacement part fit and finish, structural quality, and corrosion. Ford stated that these tests indicated that the parts were not equivalent to original equipment, but also reported that it had not conducted any tests for compliance of replacement parts with the Federal motor vehicle safety standards (FMVSS). General Motors Corporation stated that it had not performed any safety testing on non-OEM crash parts. Chrysler Corporation (Chrysler) representatives met with OVSC on this issue and subsequently conducted limited testing to observe the effectiveness of an offshore manufactured hood with respect to a vehicle's compliance with FMVSS No. 219 -- Windshield Zone Intrusion. No windshield zone intrusion was noted during the test.

During this inquiry, NHTSA also received a letter from the Insurance Institute for Highway Safety (IIHS), a private not-for-profit organization established by the insurance industry, which described testing that IIHS sponsored in 1987 on a Ford Escort with cosmetic body parts (such as the grill, left and right front fenders and front door sheet metal) removed and a "competitive hood" installed. IIHS reported that the vehicle complied with FMVSS Nos. 208, 212, 219, and 301 by a wide margin, and concluded that the data clearly showed that the use of cosmetic body parts, whether made by an OEM or a "competitive factory," did not affect the safety performance of the vehicle.

If you have any further questions or would like to discuss this matter further, please contact
Mr. Otto Matheke of this office at (202) 366-5263.

Sincerely,

Frank Seales, Jr.
Chief Counsel

ref:misc.
d.1/3/01

ID: nht71-1.50

DATE: 01/29/71

FROM: AUTHOR UNAVAILABLE; C. H. Hartman for D. W. Toms; NHTSA

TO: Morgan Motor Company, Ltd.

TITLE: FMVSS INTERPRETATION

TEXT: By letter of November 19, 1970, you petitioned for reconsideration of Federal Motor Vehicle Safety Standard No. 214 - Side Door Strength (35 F.R. 16801, October 30, 1970). After consideration of the issues raised by Morgan's petition, the National Highway Traffic Safety Administration has found no sufficient justification for amending the standard and the petition is therefore denied.

Your company's petition states that the standard presents difficulties for cutaway doors, and that the structure of Morgan automobiles supplies a measure of protection through Clared side fenders that extend beneath the doors. The Administration recognizes that there is considerable variety in door and side structure. However, the need to protect occupants of all vehicles from injury in side collisions dictates a uniform measure of such protection, and the Administration has determined that the requirements of Standard No. 214 are reasonable, practicable and appropriate for passenger cars.

The remaining points in your letter of November 19, 1970, are more nearly questions for interpretation than requests for reconsideration. Your second question pertains to the height (or length) of the loading device. The standard states only that the device must not contact any structure above the bottom edge of the door window opening. There is no other restriction on the maximum height of the test device, and it is not clear, without further explanation, why Morgan would be limited to a cylinder only 4 inches high.

Your remaining question deals with the positioning of side windows. Although the standard specifies that side windows shall be in the uppermost position, it does not require that side windows exist and should not be so interpreted.

ID: nht72-4.19

DATE: 11/10/72

FROM: AUTHOR UNAVAILABLE; Richard B. Dyson; NHTSA

TO: British Standards Institution

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of September 25, 1972, concerning the application of S4.3(c) of Standard No. 209 to an upper torso anchorage bolt used to attach a seat belt assembly that has a continuous length of webbing for upper torso and pelvic restraint.

Our letter of July 20, 1972, to Standard Triumph, to which you refer, did not rule directly on the question of whether a bolt on the upper torso side of a continuous loop assembly would be considered to "secure the pelvic restraint" within the meaning of S4.3(c). It is our opinion that some part of the pelvic force is transmitted to such a bolt and that it is therefore required to conform to S4.3(c). Because the bolt cannot be used for more than one assembly, the applicable force requirement is 5,000 pounds.

ID: nht88-3.73

TYPE: INTERPRETATION-NHTSA

DATE: 10/18/88

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: RAYMOND M. MOMBOISSE -- GENERAL COUNSEL IMMIGRATION AND NATURALIZATION SERVICE U.S. DEPARTMENT OF JUSTICE

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 08/07/89 FROM STEPHEN P. WOOD -- NHTSA TO CLIFFORD ANGLEWICZ -- VERNE CORP; REDBOOK A34 [4]; INTERP SECTION 101 [3]; PART 571 [A]; LETTER FROM CLIFFORD T. ANGLEWICZ -- VERNE CORP TO NHTSA DATED 09/07/88; OCC 2529; BROCH URE FROM ARROWPOINTE; DRAGOON PATROLLER ARMORED RESCUE AND SECURITY VEHICLE; 5/19/88 letter from Raymond M. Momboisse to Bwayne Vance

TEXT: Dear Mr. Momboisse:

Your letter of May 19, 1988, to the General Counsel of the Department of Transportation has been forwarded to this Office for reply. You request a waiver "exempting the Hummer vehicle from the Federal Motor Vehicle Safety Standards (FMVSS) when purchase d directly from the manufacturer, AM General Corporation."

This response is based upon the information contained in your letter, and upon information my staff has obtained in telephone conversations with Ed Butkera of AM General Corporation, manufacturer of the Hummer, relating to its compliance with the Federal motor vehicle safety standards, and Gary Runyon of the Border Patrol, relating to the mission of that agency and the role the Hummer plays in it. According to our information, the Hummer is a vehicle which was developed specifically for, manufactured f or, and sold exclusively to, the U.S. Army. The Border Patrol has bought Hummers from the Army because of certain features it finds advantageous in its operations, and its expanded missions involving interdiction of drugs. The principal reasons for you r request are (1) that the Border Patrol desires to buy Hummers equipped with an assembly line addition (a central tire inflation system) is not incorporated on the Hummers sold to the Army, and (2) that, by buying directly from AM General Corporation, t he Border Patrol will save $ 5,000 per vehicle, as the price of Army Hummers reflects the added expense of amortized development costs.

This agency has jurisdiction over "motor vehicles" as that term is defined by 15 U.S.C. 1391(3). If a vehicle is not a "motor vehicle," then the Federal motor vehicle safety standards do not apply to it. The exclusion of military vehicles from applicab ility of the safety standards in 49 C.F.R. 571(a), which you quoted, is operative only if those vehicles would otherwise be "motor vehicles" required to comply with the standards.

2

Under 15 U.S.C. 1391(3), a "motor vehicle" is "any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways. . . ." The agency has interpreted this definition to exclude such vehicles as minibi kes, golf carts, all-terrain vehicles, single seat racing cars used on closed courses, airport crash and rescue vehicles, and farm tractors. On the other hand, the agency has included in the definition farm trailers which haul produce over the public ro ads to processing centers, stock cars modified for racing unless such modifications are so extensive that the vehicle can no longer be licensed for use on the public roads, and vehicles capable of use both on rails and the public roads.

You have informed us that the Hummer will "generally only be used on public highways to travel between stations and assigned duty areas." However, you have also informed us that this will constitute approximately 30% of its operational time. Were we to c onsider this factor alone, we could not conclude that the Hummer was not a "motor vehicle." However, there are further factors that make the proper classification of the Hummer a close question. The Hummer was developed as a vehicle for military operati ons and not for civilian applications, its manufacturer does not advertise or sell it for civilian purposes, and its configuration is such that it probably could not be licensed for use on the public roads without modification of some of its original mil itary specifications.

Resolution of this question is not necessary since the mission and method of operation of the Border Patrol provide a separate basis for concluding that the Hummers to be purchased by the Border Patrol are not subject to the FMVSS. We understand that on e of the missions of the Border Patrol is to act as an agency of national security in protection of the country's borders to ensure that persons and goods enter and exit only through official Customs and Immigration stations, and that this role has becom e of paramount importance in the "war against drugs." In this enforcement effort, the Hummers of necessity carry firearms such as the M-14 and M-16 rifles which the Army Hummer carries, can be equipped with military communications equipment enabling them to serve as command posts, and carry certain military equipment used for electronic interception and sensing movement. It further appears that in this mission the Border Patrol is not only equipped like a component of the Armed Forces of the United Sta tes, but also is trained and functions in many respects that are similar to such a component. Accordingly, for the purposes of applying the exclusionary phrase of 49 CFR 571.7(a), it is appropriate to regard the Border Patrol as being akin to a componen t of the Armed Forces of the United States. In consideration of the foregoing, the National Highway Traffic Safety Administration has concluded that AM General Corporation will not be in violation of the

3

National Traffic and Motor Vehicle Safety Act if it manufacturers and sells Hummers to the Border Patrol for its use as described in your letter.

Sincerely,