Interpretation ID: EAtonfinal

Mr. Daniel I. Hanrahan
Quarles & Brady LLP
411 East Wisconsin Avenue
Milwaukee, WI 53202

Dear Mr. Hanrahan:

This responds to your e-mail and phone conversations with Mr. Chris Calamita of my staff in which you ask about the certification responsibilities associated with a vehicle fitted with new technology for test purposes. As we understand it, your client has been developing a hydraulic launch assist system (HLA) and has been working with vehicle manufacturers and the Environmental Protection Agency to evaluate its benefits. Your client has retrofitted three Ford F350 trucks with the HLA. Your client owns one of the trucks. Ford owns the other two. You intend to display these vehicles at an exhibit in Alaska hosted by the Department of Defense. The trucks will operate only on test track/open lot settings. They will not be driven on the public roads. You also ask about a Peterbilt Refuse Hauler that your client has fitted with the HLA system. Peterbilt owns the vehicle, but will drive it on the public roads from Michigan to Texas.

As you know, the National Traffic and Motor Vehicle Safety Act specifies that manufacturers certify their vehicles as compliant with all applicable federal motor vehicle safety standards. 49 U.S.C. § 30012 provides that:

A person may not manufacturer for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or motor vehicle equipment manufactured on or after the date an applicable motor vehicle safety standard prescribed under this chapter takes effect unless the vehicle or equipment complies with the standard and is covered by a certification issued under section 30115 of this title.

A motor vehicle may be subject to this certification requirement prior to a first retail sale since a vehicle is considered to be introduced into interstate commerce if it is introduced into a means of interstate traffic – i.e., used on public roads.

The National Highway Traffic Safety Administration (NHTSA) regulations also specify, for vehicles that are built in multiple stages or which have been altered, the certification responsibilities of the various manufacturers that have built the vehicle. Alterers perform modifications on completed vehicles prior to an initial retail sale and carry certain certification responsibilities. Modifiers make changes to vehicles after their first retail sale. Section 30122 prohibits modifications that would impede the safe operation of a previously certified vehicle:

A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard prescribed under this chapter unless the manufacturer, distributor, dealer, or repair business reasonably believes the vehicle or equipment will not be used (except for testing or a similar purpose during maintenance and repair) when the device or element is inoperative.

We understand that your client has been working with the Environmental Protection Agency to demonstrate advanced new technology. Your client will equip Ford F350 trucks with the HLA system and demonstrate the vehicles on test tracks. Ford has retained ownership of these vehicles and has consigned them to the EPA for purposes of this test program. The vehicles will not be driven on the public roads. These apparently are ordinary production vehicles manufactured to comply and certified as compliant with all applicable federal motor vehicle safety standards (FMVSS).

Initially, it is not clear whether adding the HLA system to these trucks would affect their compliance with the FMVSS. Regardless, however, based on the facts as presented to us, there are no current plans to enter the vehicles into interstate commerce, and thus they are not required to comply with all applicable FMVSS. If the vehicles are subsequently sold to persons who would operate them on the public roads, they will need to comply with all applicable safety standards at the time of their first retail sale and be so certified. Because Ford has retained ownership over these vehicles and would, presumably, be the seller, your client would not be responsible for the certification.

We understand that the Peterbilt Refuse Hauler is to be driven on the public roads from Michigan to Texas, and therefore that it will enter interstate commerce. Accordingly, the vehicle must comply with all applicable FMVSS when fitted with the HLA system. Based on the facts as presented to us, it appears that your client would be considered an “alterer” under NHTSA’s regulations and should certify that the vehicle meets all applicable FMVSS as altered.

We commend your client for its efforts in working with the EPA to develop and demonstrate advanced vehicle technologies. If you have any further questions, please contact Chris Calamita of my staff at 202 366-2992.

Sincerely,

Jacqueline Glassman

Chief Counsel

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d.11/12/04