Interpretation ID: 77-3.27

TYPE: INTERPRETATION-NHTSA

DATE: 07/13/77

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

TO: Busby and Rehm

TITLE: FMVSR INTERPRETATION

TEXT: This responds to your letter of June 21, 1977, requesting our office to advise the U. S. Customs Service that a new "camper" vehicle manufactured by Subaru would be classified as a multipurpose passenger vehicle by the National Highway Traffic Safety Administration (NHTSA), in contradiction of a previous letter from the NHTSA to Customs.

As noted by Mr. Armstrong of this agency in his letter of January 17, 1977, to the Customs Service, the NHTSA does not assign or approve in advance a classification for a particular vehicle design. Any ultimate agency determination as to vehicle classification would generally arise only in the context of compliance or enforcement proceedings. The NHTSA does issue advance opinions concerning vehicle classification when requested to do so by vehicle manufacturers. These opinions are necessarily qualified, however, by statements that the opinion is based solely on the description of the vehicle as supplied by the person making the request. Our opinion as to classification is, of course, dependent on the manner in which the vehicle is described.

As defined in 49 CFR 571.3, a "truck" is a motor vehicle designed primarily for the transportation of property or special purpose equipment. A "multipurpose passenger vehicle" is defined in Section 571.3 as a vehicle designed to carry 10 persons or less which is contructed either on a truck chassis or with special features for occasional off-road operation. The Subaru "camper" is constructed on a truck chassis and has special features for off-road use (4-wheel drive), which would qualify it as a multipurpose passenger vehicle. Therefore, the determinative question is whether the Subaru vehicle is designed primarily for carrying property, in which case it would be classified a truck.

In spite of the Subaru vehicle's resemblance to a pick-up truck or Ranchero, there is a basic distinction in design. In the case of a pick-up or Ranchero truck there is a separate vehicle area that is clearly designed for cargo-carrying alone. In the case of the Subaru vehicle, however, the manufacturer has placed seats for two people in the area that would ordinarily be used for carrying property. Since the manufacturer has chosen to use that area for the purpose of carrying passengers, it cannot be said that the vehicle is designed primarily for carrying property.

Based on this rationale, the NHTSA concludes that the Subaru "camper" qualifies as a "multipurpose passenger vehicle," and that the preliminary opinion of the Office of Standards Enforcement was inaccurate. I would point out, however, that the Federal motor vehicle safety standards applicable to multipurpose passenger vehicles are equally as stringent as the standards applicable to trucks, if not more so.

SINCERELY,

BUSBY AND REHM

June 21, 1977

Joseph J. Levin, Jr. Chief Counsel National Highway Traffic and Safety Administration U.S. Department of Transportation

On behalf of our client, Subaru of America, Inc. (Subaru). we hereby request that you send a letter to the U.S. Customs Service (Customs) correcting advice that the National Highway Traffic and Safety Administration (NHTSA) gave Customs in light of incomplete and indeed misleading information furnished to NHTSA.

In the next few months, Subaru intends to import a new vehicle -- to be known as a camper -- that is a modification of its station wagon and has an open area in the rear with two permanent seats facing backwards. It is intended primarily to move people, rather than cargo, and will be used both on and off highway by hunters, fishermen, campers, and the like. In its letters to Customs dated March 19 and June 1, 1976, Subaru provided a full description of the design and operation of the vehicle, and copies of these letters are enclosed for your information. Also enclosed is a photograph of the rear area showing the permanent seats.

On October 1, 1976, Customs issued a formal ruling concluding that the Subaru camper is not a truck. A copy of this ruling is also enclosed. Recently, the District Director of Customs in Houston, Texas, has requested reconsideration of this ruling taking the position that the vehicle is a truck. In support of his position, he submitted his letter of December 15, 1976, to Mr. Robert Aubuchon of NHTSA and a letter of January 17, 1977, from Mr. Francis Armstrong of NHTSA, the letter stating that "we concur with your opinion that the vehicle is classifiable as a truck." Copies of these two letters are also enclosed.

We believe, first, that NHTSA was misled by the District Director's letter of December 15, 1976, and, second, that a review of all the encloures will make it clear that the Subaru camper is, under NHTSA's own definitions, not a truck, but rather a multipurpose passenger vehicle.

As to our first point, we would emphasize two portions of the District Director's letter, in particular. In the first place, he refers to "lightweight trucks, such as the type shown in the enclosed photograph [that is, the Subaru camper]." But the District Director fails to state that this vehicle had already been formally determined by Customs not to be a truck. In the second place, the letter states that Customs "has been informed by the manufacturer that the '. . . design or appearance of the . . . vehicle is that of the El Canino and Ranchero, domestically produced vehicles, but smaller.'" The El Camino and Ranchero are admittedly considered pickup trucks. But Subaru never made the statement attributed to it, as a review of its letters of March 19 and June 1, 1976, will reveal. More importantly, the statement was made in Customs' ruling, and it was in spite of its appearance that the vehicle was determined not to be a truck.

As to our second point, the following two definitions included in section 571.3(b) of NHTSA's regulations are pertinent:

"'Multipurpose passenger vehicle' means a motor vehicle with motive power, except a trailer, designed to carry 10 persons or less which is constructed either on a truck chassis or with special features for occasional off-road operation."

"'Truck' means a motor vehicle with motive power, except a trailer, designed primarily for the transportation of property or special purpose equipment."

The Subaru camper is not a truck, since it is designed primarily for the transportation of people, not property or special purpose equipment. This was the critical conclusion of the last paragraph of Customs' ruling. That conclusion is wholly consistent with the design, intended use, and designation of the Subaru camper. It is designed as a modified station wagon with the rear seat facing backward rather than forward, and in the open rather than enclosed. It is intended to be used to carry persons and only a limited amount of equipment -- not exceeding 250 pounds with all four seats occupied. It will be designated and advertised as a passenger vehicle, with a special warning against using it as a pickup truck.

The Subaru camper clearly satisfies the definition of a multipurpose passenger vehicle. It is a vehicle designed to carry four persons, and it is constructed with special features for occasional off-road operation. These features include four-wheel drive and the open rear area.

The views of NHTSA will have a decided bearing on the decision of Customs whether to confirm its ruling of October 1, 1976. We believe that you will agree that NHTSA was not given a full and fair statement of the facts before Mr. Armstrong signed the letter dated January 17, 1977. We therefore respectfully request that you send a letter to Mr. Salvatore E. Caramagno, the signer of Customs' ruling, advising him that, based upon a review of the entire record, the Subaru camper is a multipurpose passenger vehicle. Such a letter would ensure both a sound and a fair disposition of the District Director's request for reconsideration.

John B. Rehm

cc: TAYLOR VINSON