Interpretation ID: nht90-2.93

TYPE: INTERPRETATION-NHTSA

DATE: 06/22/90

FROM: PAUL JACKSON RICE -- NHTSA CHIEF COUNSEL

TO: RALPH H. SHEPPARD, -- ADDUCI, MASTRIANI, MEEKS & SCHILL

TITLE: NONE

ATTACHMT: LETTER DATED 06/11/90 FROM RALPH H. SHEPPARD; IMPORTATION OF A NON-CONFORMING VOLVO CAB CHASSIS INTENDED FOR RE-EXPORT TO SWEDEN; OCC 4872

TEXT: This is in reply to your facsimile letter of June 11, 1990, with regard to the imminent importation of a "Volvo truck cab chassis manufactured in Belgium pursuant to Swedish environmental and safety standards." Given the time restrictions of your client, we have given this matter priority attention.

The unit would be imported by your client, BAF Communications Corporation of Massachusetts, for completion as a mobile television transmission facility, and, upon completion, would be exported to Sweden. You believe that the unit may be eligible for tem porary importation into the United States under at least one of four compliance exceptions that you have listed, and you have asked for confirmation of your belief.

This is a case of first impression under the Imported Vehicle Safety Compliance Act of 1988 (P.L. 100-562) and its implementing regulation, 49 CFR Part 591, which became effective January 31, 1990. None of the four exceptions you cited are exactly on po int with the facts in this case, but we believe the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.) may be broad enough to accommodate your client.

Your first suggestion is that temporary importation be allowed pursuant to section 591.5(c); the vehicle does not comply with all applicable Federal motor vehicle safety standards but is "intended solely for export. . . and the vehicle bears a label or t ag to that effect." However, your client does not intend to import the chassis cab "solely" for export, but, in fact, to complete its manufacture before its export.

Under your second suggestion, temporary importation would be allowed pursuant to section 591.5(d), where the importer certifies that (s)he is a nonresident of the United States, importing the vehicle for personal use for a period not to exceed one year, and will export the vehicle not later than one year after entry. You report that the president of the Swedish company, "the ultimate purchaser of the completed vehicle, and a non-resident of the United States, is prepared to certify that the vehicle wou ld be imported solely" for its completion, and that it would be exported thereafter. However, this is not appropriate as the importer of record, your client BAF, is in fact a resident of the United States.

You have also suggested that importation might be accomplished pursuant to section 591.5(a)(1), that the vehicle was not manufactured primarily for use on the public roads. In your view, this exception may apply as the vehicle will not be manufactured p rimarily for use on the public roads of the United States. We cannot concur with this interpretation. This exception is intended to apply to vehicles manufactured primarily for off-road use, such as golf carts, all-terrain vehicles, and farm tractors. The completed chassis cab would be intended for on-road use and could, at some future time, be reimported into the United States for use here.

Finally, you believe that the unit could be imported under section 591.5(e) as a vehicle requiring further manufacturing operations to perform its intended purpose. This is not fully appropriate because the importer must also declare that "upon completi on of such further manufacturing operations [the vehicle] will comply with all applicable Federal motor vehicle safety standards."

In a telephone conversation with Taylor Vinson of this Office on June 14, you informed us that the owner of the chassis cab is Comvik Skyports, a Swedish corporation. From the standpoint of Part 591, the most appropriate solution would be for the Swedis h company to appear as the importer of record (rather than BAF), and we understand that you believe that this course of action could be followed. Although one of the requirements of the regulation is that the importer provide a passport number and count ry of issue, this assumes that the importer is an individual, not a corporation. It will be sufficient for our purposes for the declaration to note that Sweden is the residence of Comvik. This suggested course of action would fulfill the non-resident im portation requirements of section 591.5(d).

However, because this is a case of first impression and because the U.S. Customs Service, not the Department of Transportation, is the Federal agency directly involved in admitting vehicles into the United States, it is possible that Customs might be rel uctant to admit a vehicle intended for completion for commercial purposes as one imported for "personal use." If Customs is unwilling to admit the chassis cab under section 591.5(d), but is willing to admit it as imported "solely for export", we would al low importation under that provision. Alternatively, if Customs regards importation under the further manufacturing operations exception of section 591.5(e) as appropriate, we would not object to this as long as it is clearly marked on the HS-7 importati on form that the vehicle will not conform with the Federal safety standards upon its completion, but will be exported at that time.

Regardless of the category under which the chassis cab is admitted, BAF must fulfill a statutory requirement outside the importation requirements upon completion of its manufacturing operations if it is to avoid a potential liability for a civil penalty. The National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.) prohibits any person from manufacturing a motor vehicle that does not comply with all applicable Federal safety standards upon completion of manufacture. However, it excuses th ose vehicles intended solely for export and so labeled (15 U.S.C. 1397(b)(3)). Therefore BAF should affix a label or tag to the chassis cab stating that the vehicle is intended for export.