Mr. Ian Robinson

Twisted Automotive Limited

Thirsk Industrial Park

York Road

Thirsk, North Yorkshire YO7 3TA

 

Dear Mr. Robinson:

 

This responds to your February 12, 2016 letter describing your interest in importing Land Rover Defender vehicles that are more than 25 years old into the United States (U.S.) and then “restoring and modifying” these vehicles in U.S. facilities before selling them.  Your letter describes “basic” and “beyond basic” levels of modification and asks if the modifications are so substantial as to be considered a manufacture of “new” motor vehicles.  You also ask about the Low Volume Motor Vehicle Manufacturers Act of 2015. 

 

As explained in detail below, overall we find that both levels of modification would rise to the level of manufacturing, which makes whoever is making the modifications (we assume it would be Twisted Automotive Limited) a “manufacturer” as defined in 49 U.S.C. Chapter 301.[1]

 

General Authority

 

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act (“Safety Act,” 49 U.S.C. Chapter 301) to issue Federal motor vehicle safety standards (FMVSSs) that set performance requirements for new motor vehicles and new items of motor vehicle equipment.  NHTSA does not provide approvals of motor vehicles or motor vehicle equipment and does not make determinations as to whether a product conforms to the FMVSSs outside of an agency compliance proceeding.  Instead, the Safety Act requires manufacturers to self-certify that their products conform to all applicable FMVSSs that are in effect on the date of manufacture. Manufacturers are also responsible for ensuring that their products are free of safety-related defects.

 

 

Imported Vehicles At Least 25 Years Old

Section 30112(b)(9) of the Safety Act, which you cite in your letter, allows importation of “a motor vehicle that is at least 25 years old” without the need to conform the vehicle to the applicable FMVSSs, i.e., those in effect at the time of its manufacture.  The 25-year period runs from the date of the vehicle’s manufacture.

 

You state in your letter that the Land Rovers you intend to import are 25 years old or older.  According to your letter, the vehicles would be brought into the U.S. unmodified, and the modifications will be made in this country. 

                           

Discussion

 

The agency evaluated Twisted’s proposed activities under two lines of thinking found in past interpretation letters.  The first line arises in letters relating to whether NHTSA would consider certain modifications made overseas to a vehicle (more than 25 years old) simply to be “restorations” and not a vehicle “manufacture,” so that the vehicle may be imported under

§ 30112(b)(9) without conforming to the FMVSSs.  The second line relates to whether modifying a used vehicle by combining new and used parts constitutes a “manufacture” of a vehicle.  Both complement each other in our analysis and lead to the same conclusion, which is that the work done to Twisted’s vehicles is commensurate with the manufacture of a vehicle.  Each line of thinking is analyzed below in greater detail.

 

Restoration

 

Your letter discusses two levels of modification of the Land Rover Defenders you plan on exporting to the United States.  The level with the least modifications is what you describe as “basic restoration” and includes the following:

 

1.     Remedial works undertaken to the chassis to put it in a good and long lasting state of repair.

2.     Remedial works to the drive-train (axle, differential, wheels) or replacement with new where repair is not an option.

3.     Original engine is removed and fully overhauled before being relocated back in original vehicle.

4.     Original engine is removed and replaced with a modern engine of similar capacity (engine would meet the latest emission standards).

5.     Suspension is repaired or where necessary replaced (but not upgraded) to put it in a good and long lasting state of repair commensurate with a quality restoration project.

6.     Body panels – new panels would need to be fitted where existing panels could not be repaired.

7.     Body panels (new or original) would be re-aligned and all panels secured by stainless steel fittings rather than with non-stainless fittings as on the original vehicle.

8.     Full external and interior repainting – where you also ask about what colors you can repaint the Land Rover.

9.     Restoration of lights, seats, seat upholstery, and all interior trim with the possibility of replacement of seat frames and cloth trim if beyond repair.

10.  Possibility of converting right-hand drive vehicles to left-hand drive.

 

Chapter 301 does not define “restoration,” but NHTSA has interpretation letters on the subject.  The agency interprets the term “restoration,” as applied to motor vehicles, as returning something to its “former, original, normal, or unimpaired condition.”[2]

 

Your question has been answered in past interpretations, and the same answer applies.[3]  While Twisted refers to its modifications as “restorations,” the totality of the modifications that Twisted seeks to do, even at the “basic” level, is beyond what NHTSA considers as “restoration” and are in fact equivalent to manufacturing (assembling) a motor vehicle. 

 

The “basic restoration” described in your letter includes modification beyond returning the motor vehicles to their “former, original, normal, or unimpaired condition.”  The extent of disassembly of the original vehicle, the substitution of equipment not used in the original vehicle, the substantial refurbishment of the chassis, and the reassembly with items of new equipment such as the engine, drive train and axles result in a new motor vehicle, i.e., one that could not be regarded as 25 years old or older.  Converting right-hand drive vehicles to left-hand drive is also considered beyond “restoration.”

 

Accordingly, we conclude that the activities you list under both the basic and beyond basic levels exceed what we consider to be a “restoration.”  Instead, Twisted’s activities appear to constitute a manufacture of vehicles. 

 

Combining New and Used Parts

 

Twisted’s planned activities in the U.S. invoke NHTSA’s past interpretations relating to the combination of used and new parts.  In particular, Twisted states it may do remedial work on the chassis to put it in a “good and long lasting state of repair” and do the same to the drive-train or replace the components “with new where repair is not an option.”

 

The substitution of a new body on a used chassis does not result in a “new” motor vehicle assuming the vehicle continues to be titled and registered with its original model year (see Williams letter, supra). 

 

However, a vehicle incorporating a new chassis is considered a new vehicle.  Further, the agency has also stated that the substitution of new chassis parts for the original ones may reach a point where, in combination with newer parts on the body, the overall vehicle itself could be regarded as newly manufactured. 

 

We believe that what you describe as “remedial work” to the chassis and related parts could in fact be sufficiently extensive that the components would no longer be considered “used” but would instead be considered newly manufactured.  This means the vehicle you produce would be a new vehicle. 

 

Relatedly, please note that NHTSA has issued FMVSSs for certain items of motor vehicle equipment (“covered equipment”).  Thus, under the Safety Act, all items of covered equipment that Twisted uses must comply with the applicable FMVSSs.  In addition, Twisted must ensure that its modified vehicles contain no safety-related defects.

 

In summary, the extent of Twisted’s plans to modify or replace the chassis and drive train and combine new and used items of motor vehicle equipment lead us to conclude that Twisted’s activities constitute “manufacturing.”  Thus, the resulting vehicles would be “new” and Twisted would be a manufacturer within the meaning of 49 U.S.C. Chapter 301.  Under the Safety Act, the new vehicles must be certified as meeting all applicable FMVSSs in effect on the date of their manufacture.  

 

FAST Act

 

Section 24405 of Fixing America's Surface Transportation (FAST) Act [4] has a provision about low-volume manufacturers being able to manufacture a certain number of replica vehicles that do not fully comply with the applicable FMVSSs.  It states that the Secretary of Transportation and the Administrator of the Environmental Protection Agency “shall issue such regulations as may be necessary to implement the amendments made” in this section.[5]

 

Your letter asks whether the low-volume manufacturer exemption applies to Twisted’s business of modifying Land Rover Defender vehicles.  We cannot answer this question now, prior to issuing the regulation.  The agency will initiate rulemaking soon to implement § 24405.

 

Agents

Please note that all manufacturers headquartered outside of the U.S. must designate an agent for service of all process, notices, orders, and decisions.[6]  This designation should be mailed to the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, S.E., Washington, D.C. 20590, and must include the following information:

    1. A certification that the designation of agent is valid in form and binding on the manufacturer under the laws, corporate-by-laws, or other requirements governing the making of the designation at the time and place where it is made;
    2. The full legal name, principal place of business and mailing address of the manufacturer;
    3. Marks, trade names, logos, or other designations of origin of any of the manufacturer's products which do not bear its name;
    4. The full legal name, principal place of business, mailing address and telephone number of the agent,
    5. A statement that the designation shall remain in effect until withdrawn or replaced by the manufacturer; and
    6. A declaration of acceptance duly signed by the agent appointed, which may be an individual, a firm or a United States corporation.

The designation must be signed by a person with authority to appoint the agent.  The signer's name and title should be clearly indicated beneath his or her signature.  Please visit for more information on importation and certification: http://www.nhtsa.gov/cars/rules/import/FAQ%20Site/.

I hope this information is helpful.  If you have further questions, please contact Ms. Sara Bennett of my staff at (202) 366-2992.

 

Sincerely,

 

Paul A. Hemmersbaugh

Chief Counsel

 

Dated: 7/8/16

Ref: 49 U.S.C. § 30102

 

 

 



[1] “Manufacturer” means a person “(A) manufacturing or assembling motor vehicles or motor vehicle equipment; or (B) importing motor vehicles or motor vehicle equipment for resale.” National Traffic and Motor Vehicle Safety Act, 49 U.S.C. Chapter 301, see 49 U.S.C § 30102(a)(5).

[2] Letter to John Harland of HarLand Rover Restorations (Sept. 9, 1999), available at http://isearch.nhtsa.gov/files/20592.ztv.html; letter to Roger Williams (Feb. 22, 2001), available at http://isearch.nhtsa.gov/files/23894.ztv.html ; letter to Paul Jackson Rice of Arent Fox Kintner Plotkin & Kahn, PLLC (Aug. 23, 2001), available at http://isearch.nhtsa.gov/files/23085.ztv.html.

[3] Past interpretations written to HarLand Rover Restorations discuss in detail what is and is not considered restoration. The facts in Twisted’s interpretation request are strikingly similar, with the only difference in that Twisted plans to do the modifications in the U.S., while HarLand performed the modifications in the United Kingdom prior to attempting to import the modified vehicles into the U.S. That difference is not consequential to our response here, since the issue is whether the modifications made here or abroad constitute a “manufacture.”

[4] Pub. L. No. 114-94, § 24405 (2015), available at https://www.congress.gov/114/bills/hr22/BILLS-114hr22enr.pdf.

[5] Pub. L. No. 114-94, § 24405(c) (2015), available at https://www.congress.gov/114/bills/hr22/BILLS-114hr22enr.pdf.

[6] 49 CFR Part 551, Subpart D.