Interpretation ID: nht76-5.27

DATE: 11/24/76

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: Messrs. Patton; Boggs & Blow

TITLE: FMVSR INTERPRETATION

TEXT: This is in reply to your letter of October 19, 1976, to the Administrator with respect to the Ryan tote-trailer manufactured by your client, Outboard Marine Corporation. You have asked whether the tote-trailer is a "motor vehicle" as defined by 15 U.S.C. 1391(3); if the answer is affirmative you have asked whether the tote trailer is a "pole trailer" as defined in 49 CFR 571.3(b); if the answer is negative, you have asked that any failure to comply with the Federal motor vehicle safety standards and other regulations be deemed inconsequential as it relates to motor vehicle safety.

In our opinion the tote-trailer is a "motor vehicle" within the meaning of @ 1391(3). Although the equipment that it carries is intended for off-road use, the tote trailer with load is hauled from place to place by motor vehicles, as depicted in the sales literature, that operate on the public roads. It has been our continuing opinion that vehicles which use the highway on a necessary and recurring basis to move between work sites are motor vehicles. As your letter indicates, the trailer is purchased by rental agencies and "is likely to be towed on the public roads and highways." We therefore have concluded that the tote trailer is "manufactured primarily for use on the public streets, roads, and highways" and falls within the coverage of the National Traffic and Motor Vehicle Safety Act of 1966.

It is also our conclusion that the tote trailer is not a "pole trailer" as defined by 49 CFR 571.3(b). The tote trailer is attached to the towing vehicle by a conventional tongue and not "by means of a reach or pole, or by being boomed or otherwise secured to the towing vehicle." In addition, the load does not appear capable of sustaining itself as a beam between the supporting connections.

Therefore, it appears from your letter that all tote trailers manufactured since January 1, 1969, have not been equipped with lighting devices required by 49 CFR 571.108, Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices and Associated Equipment, that those manufactured since January 1, 1972, have not been provided with GAWR and GVWR figures on the certification labels required by 49 CFR Part 567, Certification, and that those manufactured since September 1, 1976, may have not been equipped with tires required by 49 CFR 571.120, Tire Selection and Rims for Vehicles Other Than Passenger Cars.

If your client wishes to submit a petition for inconsequentiality we request that it follow the format in proposed 49 CFR Part 556, copy enclosed. You may refer any questions on this matter to Mr. Vinson of my staff.

SINCERELY,

PATTON, BOGGS & BLOW October 19, 1976

John W. Snow Administrator National Highway Traffic Safety Administration U.S. Department of Transportation

Re: Request for Interpretation and, if Necessary, for Exemption from Requirements as to a Failure to Comply with a Motor Vehicle Safety Standard

Outboard Marine Corporation ("OMC") 100 Sea-Horse Drive, Waukegan, Illinois 60085, by its counsel, hereby requests: (i) a determination whether the vehicle described herein, manufactured under the trade name "Ryan" is a motor vehicle as that term is defined in @ 102(3) of the National Traffic and Motor Vehicle Safety Act of 1966, as amended (the "Act"); (ii) if so, a ruling as to the proper classification of the vehicle for purposes of the regulations and standards of the National Highway Traffic Safety Administration ("NHTSA"); and (iii) if such standards are applicable, a determination that any failure to comply therewith is "inconsequential" within the meaning of @ 157 of the Act and an exemption from any requirement with respect to such failure to comply. In support of this request, the following information is provided.

A. Description

This request relates to a vehicle known as a "tote trailer," which is manufactured as a complement to the turf care equipment line manufactured by OMC under the trade-name "Ryan." Turf care equipment includes a variety of machines specially designed for use in the growth and maintenance of turf grasses. While some items of Ryan equipment are designed for residential use, such as lawnowners and edgers, the principal employment of Ryan equipment is in the maintenance and care of the turf grasses on golf courses, athletic fields, parks, sod farms, and similar locations. The equipment includes power rakes, thatchers, spreaders, golf green aerators, tractor drawn aerators, sod cutters, and levelers. The attached brochure (Annex A) describes the Ryan equipment line and provides illustrations of typical usage.

The principal plant facility for the manufacture of the Ryan equipment line is in Minnesota. For some years this plant has manufactured a small, inexpensive "tote trailer" designed exclusively for the carriage of certain Ryan machines. The tote trailer is sold in three versions, each designed solely for a specific machine. For example, the junior sod cutter tote trailer is designed to carry only that machine (the junior sod cutter) and could not be conveniently used for any other kind of equipment (see Annex A, page 13).

The trailer is very simple: it consists of a triangular frame, two upright bars, an axle and two wheels. The trailer does not have a deck and is configured solely to accommodate the specific item of Ryan equipment for which it is designed. The trailer has always been considered an accessory to the equipment it is designed to carry. In fact, the only purpose of the trailer is to permit convenient transportation of bulky and heavy equipment. In these circumstances, the trailer can be logically considered as an accessory of the equipment it is designed to carry rather than a discrete item.

The basic function of the tote trailer is to transport the specific item of Ryan equipment for which it is designed from one location to another. The transportation may be on private lanes within a golf course or park not involving public roads and highways. However, the tote trailer is also purchased by rental agencies that lease the Ryan equipment including the tote trailer to the public. In this circumstance, the tote trailer and the Ryan equipment for which it is designed is likely to be towed on the public roads and highways.

The tote trailer has been sold without lights, license plate holder, fenders, or any of the other usual indicia of an on-road vehicle. The hitch arrangement is equally adaptable to towing behind a tractor as behind an automobile, although the arrangement is fully compatible with automotive hitches. In the past, an optional fender and light unit has been offered but there has been little interest in this option and few kits have been sold. OMC has now, however, taken the decision that the tote trailer will in the future be manufactured as a motor vehicle in the trailer class and units manufactured after December 1, 1976, will be in compliance with all regulations and standards applicable to trailers.

B. The Tote Trailer is not a Motor Vehicle in the Usual Sense

Since the tote trailer is designed to carry only one item of equipment, it is essentially an accessory to that piece of equipment. As a general rule, the tote trailer would not be purchased or utilized other than in association with a specific item of Ryan equipment. All such equipment is designed and intended for use on lawns, golf courses, etc., and while generally self propelled on wheels, is obviously not in the category of motor vehicle as defined in the Act. Because of these characteristics of the basic equipment, it was not unreasonable for petitioner's manufacturing and sales personnel - who are not routinely engaged in motor vehicle manufacture - to consider the tote trailer as being other than a motor vehicle for purposes of the Act.

Petitioners do not have specific knowledge of the ultimate usage of the tote trailer in all cases. However, it is known that some of the units in use are utlized on golf courses or other similar locations and seldom, if ever, appear on public roads. Other tote trailers are owned by rental companies that rent the trailer in conjunction with the Ryan equipment for which it is designed. This group of trailers probably do appear on public roads since their ordinary function is to transport the equipment from the rental office to the residence of the user.

Under the NHTSA regulations and interpretations, the determination as to whether an item of equipment is a "motor vehicle" as that term is defined in the Act is based, in part, on the use of the vehicle. Because the tote trailer is an accessory to a specific piece of equipment, it would not be illogical to conclude that the trailer plus the equipment constitute the "vehicle" and that the primary use of the unit as a whole is in off road situations. Put another way, the unit as a whole is occasionally used on public roads, but primarily is not. In these circumstances, OMC requests that the Administrator determine that to date, the tote trailer was not "manufactured primarily for use on the public streets . . ." and, therefore, has not been a motor vehicle as that term is defined in @ 102(3) of the Act.

C. Classification In the event the Administrator concludes that the tote trailer is a motor vehicle, we urge that it be classified as a "pole trailer" as defined in @ 571.3(b). A pole trailer is:

"a motor vehicle without motive power designed to be drawn by another motor vehicle and attached to the towing vehicle by means of a reach or pole, or by being boomed or otherwise secured to the towing vehicle, for transporting long or irregularly shaped loads such as poles, pipes, or structural members capable generally of sustaining themselves as beams between the supporting connections."

As will be shown below, the tote trailer has each of the characteristics of a pole trailer as so defined.

First, the tote trailer is designed for transporting irregularly shaped loads. As the illustrations on pages 13 and 15 of Annex A clearly show, the Ryan equipment that is carried on the tote trailer is obviously bulky and irregularly shaped. Second, since the tote trailer is simply a frame without a deck, it is clear that the load (i.e., a piece of Ryan equipment) is capable of sustaining itself between the supporting connections. Third, the trailer is secured to the towing vehicle by a hitch attached to the frame members that in turn support the load. Thus, each of the criteria for a pole trailer classification are met by the tote trailer and it should be so classified.

While there has not, to our knowledge, been developed a body of precedent as to classifications under the Act and NHTSA Regulations, there has developed such case law in the area of Customs administration where classifications are routinely made as to imported merchandise. Under the Customs precedents, the principle has always been that where an article falls within both a general and specific class, it is always classified in the latter. That is, the more specific definition prevails. See, e.g., Broderick & Bascom Rope Co. v. United States, 59 C.C.P.A. 130, 460 F.2d 1070 (1972). This principle of construction seems equally appropriate for the NHTSA regulations where there is a general class, trailers, and a number of more specific classes, namely: the pole trailer, the boat trailer and the trailer converter dolly. Following the Customs law rationale, the Ryan tote trailer which fits both the general trailer and more specific pole trailer definitions, logically should be classified as the latter.

Accordingly, in the event the Administrator determines that the Ryan tote trailer is a motor vehicle, then we submit it should be classified as a pole trailer at least with respect to those units produced to date. While pole trailers are subject to certain requirements under the NHTSA regulations, they are excluded from compliance with Standard 108 (see @ 571.108, S2). Because of this exclusion from the principal standard applicable to trailers, the failure to comply with the certification and manufacturer identification requirements is obviously inconsequential. Accordingly, the Administrator, should, pursuant to @ 157 of the Act, exempt petitioner from any compliance with the requirements of notification and remedy in Part B of the Act.

D. Even if the Tote Trailer is Classified Other than a Pole Trailer, then Any Failure to Comply is Inconsequential

Without in any way compromising our position that the tote trailer, if a motor vehicle, is properly classified as a pole trailer, we would urge that even if classified as a regular trailer, any failure to comply with the motor vehicle safety standards is inconsequential. Accordingly, the Administrator would be justified in exempting the petitioner from any requirement as to notice or remedy under part B of the Act.

Petitioner has manufactured the tote trailer for some years as an accessory to a product line wholly unrelated to the motor vehicle industry. It has been manufactured for a specific class of customers that have not requested lighting (Standard 108) or a title certificate. To petitioner's knowledge, there has never been a product liability case or, for that matter, accident involving the tote trailer. And, as noted, above, the petitioner has now determined to establish a classification of the tote trailer as a trailer (general class) and to manufacture it in compliance with the applicable regulations.

E. Conclusion

OMC submits that it would not be unreasonable for the Administrator to issue a determination that the tote trailer was either not a motor vehicle or, if so, was a pole trailer for the reasons stated herein. In the event such a determination would require additional information or discussion, a conference is hereby requested. Kindly contact the undersigned if there are any questions in connection with the foregoing.

Charles O. Verrill, Jr.