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SEMA threatens to sue NHTSA over failure to implement replica car rules

Published in blog.hemmings.com

Superformance’s Shelby Daytona coupe replica. Photo courtesy Superformance.

Despite a number of pleas from the Specialty Equipment Market Association to move along regulations that would allow replica carbuilders to offer turnkey cars, the National Highway Traffic Safety Administration has yet to indicate it’s even started drafting such guidelines, prompting SEMA officials to warn that they are prepared to sue the NHTSA to move the process along.

“That’s not our desire — entering into litigation is not useful,” said Stuart Gosswein, SEMA’s senior director of Federal Government Affairs. “But we are prepared to file a complaint.”

Gosswein said SEMA already has that complaint drafted and plans to file it in federal district court sometime in early December, barring a positive response from the NHTSA.

Technically, both the NHTSA and the Environmental Protection Agency — along with the California Air Resource Board — had 12 months after the December 2015 passage of the Low Volume Motor Vehicle Manufacturers Act to come up with safety and emissions guidelines for any existing or new replica carbuilders who wanted to become registered vehicle manufacturers able to sell cars complete with drivetrains under the new law.

Until the passage of the law as a part of a $305-billion highway funding bill, replica car manufacturers like Superformance and Factory Five had been bound by Sixties-era laws written with new carmakers in mind, and thus were forced to sell their cars as kits sans drivetrains. Customers were then expected to install their own drivetrains prior to titling and registering the cars.

The 2015 law — which stipulated that replica carbuilders had to use current model-year engines and all related emissions equipment in replicating no more than 325 cars built at least 25 years prior — also birthed several plans for resurrected nameplates, De Lorean, Checker, and Cord among them.

“This law is basically an extension of the kit car industry, which has been producing rolling chassis subject to NHTSA regulations for years,” Gosswein said. “The legislation was very prescriptive, so from our perspective it’s pretty much a rubber stamp for them.”

Indeed, as kit carbuilder Superformance’s CEO Lance Stander noted in a press release in July, “The work to be done by NHTSA is very simple — create a form allowing companies to register online and file annual reports. Such electronic paperwork is already in place for large-scale car manufacturers.” Stander described the NHTSA delays as “unacceptable.”

While CARB has already approved regulations pertaining to the law and officials at the EPA have produced a draft guidance document that SEMA officials have reviewed, NHTSA has yet to take any meaningful steps despite three years’ worth of meetings with and suggestions from SEMA officials, Gosswein said. It was last expected to issue those guidelines in the spring.

“We don’t understand the reason” why NHTSA has taken so long to issue guidelines, Gosswein said. While NHTSA officials have in the past cited bureaucratic delays and the more pressing needs for drafting autonomous vehicle regulations and enforcing existing airbag regulation, Gosswein said those arguments don’t hold much water.

“They can get this out the door,” he said. “They’re signing plenty of other regulations and rules.”

SEMA President Chris Kersting earlier last month sent a letter to Department of Transportation Secretary Elaine Chao asking her to direct the NHTSA to issue its guidelines, noting that “Classic car enthusiasts like myself don’t understand why NHTSA has failed to take action.”

According to a SEMA press release issued this week, NHTSA “has inflicted harm on the industry through its inaction.” Of the dozen or so replica carbuilders that have lined up to take advantage of the law, none have dropped their commitment to their plans, Gosswein said, but neither have they been able to hire employees to start building and selling cars. In some cases, the replica carbuilders have already invested significant amounts of money into design and tooling.

A representative for NHTSA was not able to respond to SEMA’s statements before press time.

According to Gosswein, the EPA is expected to publish its guidelines shortly. He said that SEMA officials are still hoping that both the EPA and NHTSA can issue their respective guidelines by January 1 to allow replica carbuilders to still produce cars in the 2019 model year.