Interpretation ID: nht93-6.47

DATE: September 27, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Scott R. Dennison -- Vice President - Production, Excalibur Automobile Corporation

TITLE: None

ATTACHMT: Attached to letter date 4/27/93 from Scott R. Dennison to John Womack (illegible OCC number)

TEXT:

Thank you for your letter of April 27, 1993, clarifying your FAX of March 12 to which I responded on April 19.

We appreciate your goal of helping people comply with the Federal Motor Vehicle Safety Standards (FMVSS) and those of EPA. We can well understand why, as you put it, "at times I do not feel I have the right answers for some of these manufacturers." The regulation of kit cars and vehicles combining old and new parts is a complicated subject, and our opinions usually depend upon the specific facts of individual cases with the result that one may differ in degree from another. Because these are legal opinions, the Office of Chief Counsel is the proper Office within NHTSA to address questions of this nature, rather than the agency's Enforcement office.

We are sorry that some of your inquirers "are afraid to call (NHTSA) for fear of reprisal." By this, I think you mean that a call from a small manufacturer might cause NHTSA to initiate enforcement action concerning nonconformance with the FMVSS or agency regulations. The potential of an enforcement action should be sufficient to encourage those engaged in the manufacturing or assembling of motor vehicles to discern their responsibilities under the National Traffic and Motor Vehicle Safety Act and to comply with them. We are willing to assist manufacturers in interpreting the Act and regulations. If they do not wish to write or call us, they can review our interpretation letters which are available to the public in NHTSA's Technical Reference Division. Also, they can consult a private attorney.

You enclosed a copy of the "EPA Kit Car Policy" which we have reviewed, comparing it with NHTSA policy. In most respects, the two policies are congruent. Paragraph 1 of the EPA document fairly expresses NHTSA policy; fully assembled kit cars, and complete kit car packages are "motor vehicles" under the Act, required to be certified by the manufacturer or kit supplier. If they are not certified, they must be imported by a NHTSA-registered importer (the counterpart to EPA's Independent Commercial Importer), or one who has a contract with a registered importer to certify the kit car (an allowance that we understand does not exist under EPA regulations). I shall return to Paragraph 2 later. Paragraph 3 differs from NHTSA policy; although automotive bodies are not "motor vehicles" under either EPA or NHTSA's definitions, they are "motor vehicle equipment" for purposes of NHTSA's jurisdiction. Paragraph 4 essentially states NHTSA policy; kit car body/chassis combinations may be imported as automotive equipment and are subject to NHTSA's regulations. Similarly, any attempt to circumvent the

Act or import regulations may be viewed as a violation subject to enforcement. However, NHTSA will also regard as a "manufacturer" any person importing kits or kit cars for resale, as well as the actual fabricator or assembler of a kit.

Paragraph 2 reflects the fact that EPA regulates only engines and emission- related components. A vehicle "will be considered to be a rebuilt vehicle of a previously certified configuration and will be considered to be covered by that configuration's original EPA certification of conformity" if the engine and all emission-related components and settings conform to those of the previously certified configuration, and if the weight of the completed kit vehicle is not more than 500 pounds greater than that of the originally certified configuration. Under EPA policy, a "rebuilt vehicle" could be a motor vehicle all of whose parts were new and unused except for its engine and engine-related components. NHTSA has no definition of "rebuilt vehicle" which would permit a similar interpretation, and while a vehicle as I have described could be covered by the previously existing EPA certification, NHTSA very likely would regard it as a newly manufactured motor vehicle which must be certified as meeting all contemporary FMVSS. It is here that the two agencies most diverge because of the breadth of NHTSA's regulatory authority which encompasses all motor vehicle equipment, and motor vehicles assembled from that equipment.

You cite as an example of difficulty "the treatment of FMVSS with regards to a '23 T-Bucket Hot Rod." The first question to answer is whether the car has been manufactured primarily for use on the public roads. Factors to consider in this determination are whether the Hot Rod is intended solely for use on closed race tracks, whether it must be trailered from race to race, and whether a State would license it for on road use. If the car has not been manufactured primarily for on road use, then it is not a "motor vehicle" as defined by the Vehicle Safety Act, and not subject to the FMVSS. If the car is a "motor vehicle" and entirely assembled from parts from a disassembled motor vehicle or vehicles previously in use, then it is considered a "used" vehicle, and also not subject to the FMVSS (but subject to state and local standards). On the other hand, if the kit car is entirely comprised of previously unused parts, then it is a new motor vehicle that is required to comply with, and be certified as complying with, the FMVSS (and its manufacturer may be eligible to apply for a temporary exemption from one or more of those standards under 49 CFR Part 555). If the kit car is comprised of parts both previously used and unused, NHTSA's examination of the list of components in each category will enable it to advise whether the kit car must comply with the FMVSS that apply to new vehicles.

In addition, we also receive inquiries from those who wish to construct vehicles which use a "host" chassis from a previously certified vehicle. The Act permits a manufacturer to modify a previously certified vehicle in any manner as long as it does not knowingly render inoperative in whole or in part any device or element of design installed by the original manufacturer in accordance with a Federal motor vehicle safety standard. We interpret this as meaning that, if the manufacturer removes the original body, at the end of the conversion process the resulting motor vehicle must continue to comply with the FMVSS that were in effect when it was originally manufactured. However, a certain divergence from original vehicle

compliance is permitted. For example, if a 1982 enclosed passenger car is modified to become a convertible, at the end of the conversion process it is no longer required to meet enclosed car FMVSS but must comply with those that applied to 1982 convertibles. The Act does not require that such vehicles be certified but the manufacturer should be prepared to substantiate that it has not rendered inoperative any of the vehicle's original safety equipment, either directly or indirectly (such as a substantial increase in the weight of the vehicle that might affect its crash protection characteristics) in the event NHTSA should so ask.

Finally, we note your remark that NHRA and SEMA are debating whether a policy can "be developed which will allow these builders to produce an authentic replica and stay within the standards." As I discussed above, the FMVSS would not appear to apply to a replica vehicle such as a Miller racing car from the 1920's that could not be licensed for on road use. However, the FMVSS do apply to vehicles composed of newly manufactured parts that replicate the look of older vehicles. For this reason, 100% authenticity cannot be achieved for a replica required to meet the current FMVSS because of equipment such as the center highmounted stop lamp, side marker lamps and reflectors, and head and other occupant restraints required for safety today. As a general rule, we would not provide temporary exemptions from these standards. In our view, the only viable candidate for an authentic replica is one that is constructed on a "host" chassis of a vehicle manufactured before January 1, 1968, the date that the first FMVSS became effective, or entirely from used parts. I would also note that much authenticity could result from use of a "host" chassis manufactured during calendar year 1968. Although the appearance of the interior would be affected by compliance with certain FMVSS, the FMVSS requiring side marker lamps and reflectors and head restraints did not become effective until January 1, 1969.