Ms. Leah Kelly
    California Department
      of Motor Vehicles
    2415 First Avenue M/S D196
    Sacramento, CA  95818

    Dear Ms. Kelly:

    This responds to your e-mail inquiry in which you ask if California may refuse to register surplus military vehicles that might not comply with the Federal motor vehicle safety standards (FMVSSs) and that do not have vehicle identification numbers. You state that the California Department of Motor Vehicles has:

    encountered a number of customers requesting to register US Military surplus Humvees, manufactured approximately 1983 to the present. These vehicles do not have 17 character vehicle identification numbers, US Emission labels, nor US Safety labels. In addition, they have no year model designation.

    You indicate that some Humvees have already been registered in California, and you are attempting to determine if California has legal authority to cancel existing registrations and to refuse any new registration requests for lack of compliance with the Federal safety standards.

    In our opinion, California’s refusal to register these vehicles is not prohibited by this agency.

    By way of background, the FMVSSs apply to the manufacture and sale of new motor vehicles and motor vehicle equipment (49 U.S.C. §30112). The express preemption of State standards by the FMVSSs is established by 49 U.S.C. §30103(b):

    When a motor vehicle safety standard is in effect under this chapter [49 U.S.C. Sections 30101 et seq.], a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter ....

    Pursuant to 49 U.S.C. §30103(b), California could not establish a standard that applied to the manufacture or sale of new vehicles in California on an aspect of performance regulated by an FMVSS unless the State standard is identical to the FMVSS.

    The National Highway Traffic Safety Administration (NHTSA) does not regulate the operation (i.e., use) of motor vehicles, which is generally under the jurisdiction of the states. A state is not required to impose operational requirements that are "identical" to the FMVSS. Nonetheless, there are limits on state operational requirements, in that general principles of preemption law apply. These principles preclude States from adopting operational requirements that are more stringent than the requirements applicable to new vehicles under the FMVSS, because more stringent State requirements would have the effect of precluding the use of a Federally compliant vehicle in that State.

    In the situation you present, there was no FMVSS that applied to the vehicles in question. Having recognized the unique transportation needs of the Armed Forces and the specialized functions of many military vehicles, the agency established a limited exemption for military vehicles. Under 49 CFR § 571.7(c), vehicles manufactured pursuant to military specifications and sold directly to the US military are exempted from the requirement to comply with the FMVSSs. This exclusion was based on a determination that compliance with safety standards could affect the capability of a vehicle to fulfill its military mission. In establishing this exemption, the agency also anticipated that surplus military vehicles would not be sold to civilians. While NHTSA has no authority over the disposal of surplus military vehicles, we have advised the Department of Defense against the sale of surplus military vehicles, including the Humvee, to civilians. [1]

    Since there was no FMVSS applicable to the vehicles in question, there is no conflict between the FMVSSs and a California requirement that the vehicles meet safety standards. As such, a state would not be preempted from requiring surplus military vehicles sold to civilians to meet FMVSS requirements as a condition of state registration.

    I hope this information is helpful. If you have any further questions, please contact Mr. Chris Calamita of my staff at (202) 366-2992.


    Jacqueline Glassman
    Chief Counsel


    [1]   See, letter to the Honorable Charles H. Taylor; June 29, 1993 (Enclosed).