Interpretation ID: nht88-1.29

TYPE: INTERPRETATION-NHTSA

DATE: 02/09/88

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Karen Hastie Williams -- Crowell & Moring

TITLE: FMVSS INTERPRETATION

TEXT:

Ms. Karen Hastie Williams Crowell & Moring 1001 Pennsylvania Avenue, N.W. Washington, DC 20004-2505

This is in reply to your letter of December 1, 1987, on behalf of your client, LTV Aerospace, and its predecessor, AM General. You have asked that we reconsider our letter of January 12, 1987, in which we informed AM General that we would consider certai n military vehicles "motor vehicles" for purposes of notification and remedy in the event they are discovered to have safety related defects. You have also asked for the opportunity to meet with us at our earliest convenience.

Because AM General had stated that the vehicles in question are designed to be used 60% of the time on primary and secondary roads, our letter concluded that tactical military vehicles such as the M998 Series 1 1/4 ton truck, the 2 1/2 ton M44 Series, an d the 5-ton M809 and M939 Series trucks are "motor vehicles". You believe that this interpretation was based upon "inadequate and misleading information", for the following reasons, paraphrased as follows:

1. The trucks are designed to military specifications and built for the military alone.

2. The government rejects a warranty concept and substitutes its own inspection and quality control standards.

3. Under the inspection clause, AM General must deliver trucks that meet contractual performance requirements and correct problem areas identified by the government.

4. AM General must comply with a performance safety standard (MIL-STD-1180B) comparable to the Federal motor vehicle safety standards.

5. No safety purpose is served by "superimposing" a notification and remedy requirement where there is only a single purchaser, where no warranty relationship exists, and where remedies for defective products are identified by the government and remedy i mplemented by the company under the terms of the contract.

6. The vehicles are defined in part as "seldom capable of maintaining normal highway speeds" and "usually operated in convoy on public highways".

In consideration of the foregoing you have asked for an interpretation that concludes that military tactical vehicles are specifically designed to meet military specifications and are not manufactured primarily for highway use, that they are not subject to the notice and remedy provisions of the National Traffic and Motor Vehicle Safety Act (the "Act"), and that they are exempt from compliance with the Federal motor vehicle safety standards.

We have reconsidered our interpretation in light of the arguments you have presented. For both legal and policy reasons we affirm that the trucks in question are "motor vehicles" as defined by 15 U.S.C. 139113), that vehicles produced to military specifi cations are exempt from the Federal motor vehicle safety standards (49 CFR 571.7(c)), but that they are subject to statutory notification and remedy provisions in the event that they incorporate a safety related defect.

Specifically, the sole legal criterion that the Act establishes to determine its jurisdiction is whether a vehicle is manufactured primarily for use on the public roads. From the information presented to us by AM General we concluded that the trucks in q uestion spend 60% of their operational life on primary and secondary roads, and that therefore they have been manufactured primarily for use on such public roads. You have not contested that assertion. It is immaterial to the Act's definition of "motor v ehicle" that a truck is produced under military specifications, without an express warranty, and for only a single purchaser.

Although Congress expressed no intent that military vehicles be excluded from the coverage of the Act, the agency determined for reasons of policy that vehicles manufactured pursuant to military specifications should be exempted from conformance with the Federal motor vehicle safety standards issued under the authority of the Act. Comments received at the end of 1966 in response to the proposals for the initial standards raised the possibility that compliance in some instances could affect the capabilit y of equipment to fulfill its military mission, and therefore when the standards were adopted military vehicles were exempted under 49 CFR 571.7(c), but the agency relinquished no other jurisdiction over them. Indeed, the Department of Defense in apparen t recognition that its vehicles are "motor vehicles" has attempted to ensure that they conform with the Federal safety standards to the extent practicable, as evidenced by MIL-STD-1180B which you enclosed.

Finally, we cannot agree with your contention that no additional benefit would flow to the government by requiring notification and remedy for safety related defects in these vehicles. We understand that AM General is required to deliver vehicles free of defects and which meet contractual specifications, but we are uncertain whether, under the inspection clause, the government has a right to demand remedy once it has accepted delivery of the vehicle in the event that safety related defects manifest them selves in service. Such a right exists independently under the notification and remedy provisions of the Act (i.e. the Department of Defense may petition this agency for a determination that a safety related defect exists). Further, the manufacturer itse lf has a good faith obligation imposed by the Act to determine the existence of a safety related defect when the facts so indicate, and to effectuate notification and remedy. Such an obligation appears absent from the contractual responsibilities of a ma nufacturer in the materials you have quoted to us and the arguments you have made.

Because your letter contains information sufficient for us to affirm our earlier letter, we have concluded that a meeting will not be required to clarify any of the points you have made.

Sincerely,

Erika Z. Jones Chief Counsel

December 1, 1987

Erika Z. Jones, Esq. Chief Counsel National Highway Traffic Safety Administration Room 5219 400 - 7th Street, S.W. Washington, D.C. 0590

Dear Ms. Jones:

On behalf of AM General and its successor, LTV Aerospace, this letter seeks further clarification of your January 12, 1987, communication to Donald Weiher, of AM General's Product Assurance Division. The January letter discussed the applicability of the notification and remedy provisions of the National Traffic and Motor Vehicle Safety Act of 1966, Pub. L. No. 89-563, S113, 80 Stat. 718 (amended 1974)(codified as amended at 15 U.S.C. SS1411-1420 (1976)) with respect to safety-related defects discovered in tactical, military vehicles.

AM General currently manufactures only military tactical vehicles for use by one customer, the Federal Government.1/ As we understand your decision, you base your conclusion as to the applicability of the Safety Act to military tactical vehicles on two g rounds.

1/ In June, 1987, AM General was terminated as a member of the Motor Vehicle Manufacturers Association ("MVMA") because ceased to meet the membership criteria. AM General failed to report the sale of any qualifying vehicles in its current fiscal year. T he MVMA Bylaws identify members as "corporations actually engaged in the manufacture and sale of motor vehicles in the United States" and define motor vehicles as "passenger cars, commercial cars, trucks, buses and similar self-propelled vehicles suitabl e for use on public highways, but not . . . combat or tactical vehicles sold for military purposes."

First, the generalization in Mr. Weiher's September 8, 1986 petition that states without documentation: ". . . all tactical vehicles are designed for cross-country (40%), secondary (30%) and primary (30%) roads . . ." Second, the Federal Highway Adminis trator's interpretation of the Safety Act definition of a motor vehicle in 34 Fed. Reg. 15416 (1969) that states: "that in the absence of clear evidence that as a practical matter a vehicle is not being, or will not be, used on the public streets, roads or highwa ys the operating capability of a vehicle is the most relevant factor in determining whether or not that vehicle is a motor vehicle under the Act."

We respectfully submit that the January interpretation of the regulation was based on inadequate and misleading information. We ask further that you reconsider that interpretation in light of the additional data and information presented herein:

1. The M998 Series, a 1 1/4-ton truck, and other tactical military trucks such as the 2 1/2-ton M44 Series and the 5-ton M809 and M939 Series are designed to military specifications and built for the military customer alone.

2. The Government rejects the warranty concept in its contractual arrangement and instead substitutes its own inspection and quality control standards (MIL-STD-1180). Attachment A.

3. Under the inspection clause, AM General must deliver trucks that meet the contractual performance requirements and correct problem areas identified by the Government.

4. Under the Government contract, AM General must comply with a performance safety standard (MIL-STD-1180) comparable to the Federal Motor Vehicle Safety Standards.

5. No federal regulatory or safety purpose is served by superimposing a notification and remedy requirement under Section 113 of the Safety Act (amended 1974) (current version at 15 U.S.C. 551411-1420), on these tactical military vehicles that must satis fy the federal specification.

. The Government is the only customer for these military tactical vehicles.

. No warranty relationship exists between the Government and seller.

. Remedy for performance failures or defective products are identified by the Government and implemented by the company under the terms of the contract.

. No additional benefit would flow to the Government.

. Expense of notification to the individual Government users would be significant and a waste of resources since any problems will be corrected under the contract.

While a theoretical generalization about operating capability may serve as an adequate generic description of tactical vehicles, the AM General military tactical vehicles are bought exclusively by the Government primarily for off-road, cross-country use. This fact is supported by the description of the vehicle contained in the contractual document, System Specification 3.1. (See Attachment B). The performance standards required by the contract also attest to the actual type of roads on which this milita ry tactical vehicle is used. Specifically, Section 3.1.2 of MIL-STD-1180B (the current version of MIL-STD-1180) states:

"High mobility tactical wheeled vehicles are expressly designed and built to Government specifications for the purpose of handling cargo while negotiating very rough terrain.... They are capable of operating in deep mud or snow, are often articulated, an d are seldom capable of maintaining normal highway speeds. They are usually operated in convoy on public highways. (emphasis added)

The reality of these circumstances overrides any theoretical operating capability characterization. Accordingly, the actual usage experience of these vehicles confirms that they are not designed, manufactured or intended for use primarily on public roads .

Based on the information and data presented herein, LTV Aerospace respectfully requests that you reconsider your January 12, 1987 guidance and reinstate the decisions of National Traffic and Motor Vehicle Safety Act non-applicability of February 19, 1986 and March 5, 1986 from the Office of Defects Investigation. Namely, with respect to the appropriate treatment of tactical military vehicles, we request that upon further consideration you issue a concurrence with the earlier decisions by the Office of D efects Investigation. We believe that the determination should conclude that:

o Military tactical vehicles are specifically designed to meet military specifications and are not manufactured primarily for highway use.

o These vehicles are not subject to the notice and recall provisions of the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. 551411-1420 and are exempt from compliance with the Federal Motor Vehicle Safety Standards, 49 C.F.R. 5571.7(c) (1986).

Should you need any additional information, please contact me at the above number.

We would appreciate the opportunity to meet with you at your earliest convenience and await your affirmative action in support of this request.

Sincerely,

Karen Hastie Williams Counsel for AM General/LTV Aerospace

cc: Mr. Taylor Vinson, Office of the Chief Counsel