Interpretation ID: nht94-2.48

TYPE: Interpretation-NHTSA

DATE: April 19, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Judith Jurin Semo, Esq. -- Squire, Sanders & Dempsey (Washington, D.C.)

TITLE: None

ATTACHMT: Attached to letter dated 11/5/93 from Judith Jurin Semo to John Womack (OCC 9287)

TEXT:

This responds to your request for NHTSA's determination that certain former East German military trucks, ZIL model 131, are not motor vehicles, and exempt from the Federal Motor Vehicle Safety Standards (FMVSS). We are unable to make such a determinatio n. As explained below, a ZIL model 131 truck imported into the United States is considered a "motor vehicle" for purposes of the National Traffic and Motor Vehicle Safety Act (Safety Act) (15 U.S.C. 1391 et seq.), and is subject to the FMVSS.

Your letter explained that a client plans to import over 500 ZIL model 131 trucks into the U.S. Apparently, your client plans to modify the trucks in the U.S. to use for nonmilitary purposes. Your client intends to send most of the modified trucks to b uyers in other countries, but plans to sell some of the trucks in the U.S. Your letter states: "... (S)ome ZIL vehicles may be modified to meet DOT/NHTSA and EPA standards in order to satisfy those buyers who require vehicles conforming to those standar ds."

Under the Safety Act, any "motor vehicle," whether new or used, that is imported into the United States for sale in this country must be brought into conformity with all FMVSS that applied at the time of its manufacture. The question that must be answer ed is whether the ZIL 131 trucks, at the time of importation, would be considered "motor vehicles."

"Motor vehicle" is defined at section 102(3) of the Safety Act (15 U.S.C. 1391(3)) as:

(A)ny vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails.

NHTSA has interpreted this language as follows. Vehicles that are equipped with tracks or are otherwise incapable of highway travel are not motor vehicles. Further, vehicles designed and sold only for off-road use (such as airport runway vehicles and u nderground mining devices) are not considered motor vehicles, even though they may be operationally capable of highway travel. Vehicles that have an abnormal body configuration that readily distinguishes them from other highway vehicles and a maximum sp eed of 20 miles per hour (mph) are not considered motor vehicles, because their use of the public roads is intermittent and incidental to their primary intended off-road use.

On the other hand, vehicles that use the public highways on a necessary and recurring basis are motor vehicles. For instance, a utility vehicle like the Jeep is plainly a motor vehicle, even though it is equipped with special features to permit off-road operation. If a vehicle's greatest use will be

off-road, but it will spend a substantial amount of time on-road, NHTSA has interpreted the vehicle to be a "motor vehicle." Further, the agency has determined that a vehicle such as a dune buggy is a motor vehicle if it is readily usable on the public roads and is in fact used on the public roads by a substantial number of owners, regardless of the manufacturer's stated intent regarding the terrain on which the vehicle is to be operated.

Applying the above criteria, and based on the information in your letter, the ZIL model 131 trucks are motor vehicles. You state that potential U.S. buyers would require vehicles that meet the FMVSS. This suggests that U.S. vehicle owners intend to use the ZIL model 131 trucks as they would other motor vehicles, on the public roads. Judging from your photographs, the trucks do not have abnormal body configurations that distinguish them from other vehicles on the road. You stated that the trucks have a top speed of almost 50 miles per hour, a speed suitable for public roads. These facts suggest that the ZIL model 131 truck is designed and intended to be routinely used on the public roads, and should be classified as a motor vehicle.

Assuming your client is still interested in importing the ZIL 131 trucks for resale in the U.S., the Imported Vehicle Safety Compliance Act requires that the agency determine that the vehicles are capable of conversion to meet the FMVSS, and that the tru cks be imported by a "registered importer." The agency makes determinations upon the basis of a petition by the manufacturer or registered importer (or upon its own volition). A "registered importer" is one whom NHTSA has recognized as capable of conve rting vehicles to meet the FMVSS. If you would like further details on eligibility determinations and import procedures, please let us know and we shall be pleased to provide them.

The Safety Act also addresses trucks your client wishes to import into the U.S. for modification for export. Under section 108(b)(3) of the Safety Act, the FMVSSs do not apply to vehicles intended solely for export. Thus, trucks brought into the U.S. f or modification for export are not subject to the FMVSSs. Under 49 CFR S591.5, the importer would file a declaration under S591.5(c), that the vehicle does not comply with all applicable Federal motor vehicle safety, bumper, and theft prevention standar ds, but is intended solely for export.

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