Interpretation ID: 1983-2.44

TYPE: INTERPRETATION-NHTSA

DATE: 08/15/83

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Mr. Willard B. Synder -- Security National Bank (Kansas)

TITLE: FMVSS INTERPRETATION

ATTACHMT: 2/8/83 letter from Frank Berndt to William S. Stalder

TEXT:

Mr. Willard B. Snyder Honorary Counsul Federal Republic of Germany Security National Bank 7th Street and Minnesota Avenue Kansas City, KS 66101

Dear Mr. Snyder:

This is in reply to your letter of July 12, 1983, asking me to review and reconsider my letter of February 8, 1983, in which I concluded that a transporter van, to which features are added enabling it to be used occasionally on railroad tracks, in a "motor vehicle" and must meet applicable Federal motor vehicle safety standards.

I am pleased to do so. You raise the possibility "that any off track travel utilization by the Kansas City Southern Railroad will either be on their private roads or land and no on any public roads or highways." We should like confirmation by the Railroad of that fact, if true, or a statement as to the quantum of use on the public roads likely for this vehicle. We should like an indication of how the company intends to dispose of the vans when it has finished with them. It is our assumption that the conversion features can be removed and the vehicle operated solely on the public roads; please correct or confirm this assumption. When we have this information we shall reconsider the matter.

In closing, I must say that your letter reflects the confusion that appears to exist in the public mind regarding jurisdiction of Federal agencies over motor vehicles. In my earlier letter I quoted the definition of "motor vehicle" in 15 U.S.C. 1391(3), the National Traffic and Motor Vehicle Safety Act, while you have replied that "the deciding one" appears to be that of 42 U.S.C. 7251(3)(C). Both definitions are appropriate, the one in Title 15 for purpose of determining applicability of the Federal motor vehicle safety standards issued by the Department of Transportation, and the one in Title 42 for determining applicability of the vehicle emission standards issued by the Environmental Protection Agency. While I can offer no interpretation of whether the van conversion is subject to emission standards I note with interest that EPA's definition of "heavy duty vehicle" is similar in many respects to our definition of "motor vehicle."

Frank Berndt

July 12, 1983

Mr. Frank Berndt, Chief Counsel

Dear Mr. Berndt:

Mr. William Stalder of Carland (a subsidiary of the Kansas City Southern Railroad) forwarded me a copy of your letter to him dated February 8, 1983 wherein you denied an exemption for a Zwei Weg conversion of a Mercedes-Benz vehicle. I would appreciate it if you would review and reconsider this earlier decision. I have enclosed a part of Title 42, section 7521, Paragraph (3)(c) from U.S.C.A., for your easy reference. This is the section which appears to be the deciding one.

I realize that, administratively, you have the possibility to stop here and reaffirm your previous stance, however, I hope you will continue on and give this appeal a fair review since this purchase will be fairly substantial and could easily have a direct effect on the business and its employees here in the Kansas City area.

Title 42, Sect. 7521, Paragraph (3) (c) defines a heavy duty vehicle as "one manufactured primarily for use (emphasis is mine) on the public streets, roads and highways". While the Mercedes-Benz van was manufactured at one point in its development as a street and highway vehicle, its manufacture actually continued on with Zwei Wdg and the end item of production bears only a superficial resemblance to the interim product. Not only have track and alignment systems been permanently added, but new hydraulic and suspension systems as well. The interior controls have also been appropriately modified. The tires and drive system provide the traction on the rails, so there was no need to change this. However, as the end manufactured product, this vehicle is primarily and functionally a track vehicle, not a road vehicle, even though it has a road capability. Also, its cost precludes any economic use as a road vehicle.

I think that it is only fair to assume that the drafters of this statute were not thinking of Zwei Weg products when they wrote about off-highway use. This provision was intended primarily to cover cross-country and all-terrain type vehicles whose operations depend on and use heavily the public streets and roads to get to their cross country all-terrain locations. This type of cross-country, all-terrain vehicle is designed primarily for highway use and its other characteristic is an added feature. With Zwei Weg, the primary manufactured function is rail, not road.

Also, the land (roads) where this vehicle would be utilized, when not in actual rail use, should be considered. I suspect that any off track travel utilization by the Kansas City Southern Railroad will either be on their private roads or land and not on any public roads or highways. If this would be a critical consideration, you might want to consider a conditional waiver - conditional on the non use of public streets and highways by Kansas City Southern Railroad Company.

I am sure we have both personally suffered when we stopped behind a "Big Bus" or "Diesel Truck" at a stoplight and the contribution of the multiple passenger cars to the overall atmosphere is equally as important. However, this vehicle will not be on the public streets (where we could get caught behind it) and the numbers will not be so great as to materially or significantly contribute to the atmospheric pollution.

Based on these factors, I hope that you will be able to grant an exemption for this vehicle, under its particular circumstances.

Sincerely, Willard B. Snyder