U.S. House of Representatives
1801 N. California Boulevard
Walnut Creek, CA 94956
Dear Mr. Baker:
I am replying to your letter of October 22, 1996, addressed to Marilynne Jacobs, Director, Office of Vehicle Safety Compliance, on behalf of your constituent, Duane Doyle of San Leandro. You have asked for our views on his letter to you of October 17, 1996, a copy of which you enclosed.
Mr. Doyle bought a 1996 Rover Mini Cooper in Switzerland, and when he attempted to import it, he was informed by the U.S. Customs Service at the Port of Oakland that the vehicle would have to be brought into compliance with the Federal Motor Vehicle Safety Standards which this agency (NHTSA) administers, as well as Federal emissions requirements that are administered by the Environmental Protection Agency. Mr. Doyle offered to retrofit the car with a roll bar and racing safety harness and was told by this agency that this was insufficient to fulfil the requirements of this agency. He then offered to store the car on his property and not drive it on the public roads, and was informed that this, also, was not acceptable. He now seeks to import it under 49 U.S.C. 30112(b), which he interprets as follows: "the prohibitions on importing noncomplying motor vehicles and equipment do not apply to a person that had no reason to know, despite exercising reasonable care that a motor vehicle did not comply with applicable motor vehicle safety standards." The tone of his letter indicates that he feels he is being singled out unfairly by NHTSA.
Although the legal background may have been discussed in other correspondence between Mr. Doyle and this agency, this is the first time that the Office of Chief Counsel has been afforded an opportunity to discuss this matter. There are several provisions of law applicable to Mr. Doyle's situation. First, there has been a prohibition in effect for almost 29 years, since January 1, 1968 (15 U.S.C. 1397(a)(1)(A), recodified as 49 U.S.C. 30112(a)), against importing motor vehicles into the United States unless they conform, or are brought into conformance, with all applicable Federal motor vehicle safety standards. Furthermore, under the Imported Vehicle Safety Compliance Act of 1988 (codified as 49 U.S.C. 30141 et seq.), since January 31, 1990, for almost 7 years it has not been possible to import a noncomplying motor vehicle unless this agency has determined that the vehicle is capable of being converted to comply with all applicable Federal motor vehicle safety standards. The agency has not made such a determination with respect to the 1996 Rover Mini Cooper.
Under 49 U.S.C. 30142, Mr. Doyle may import the Mini Cooper after demonstrating that he has a contract with a "registered importer" to bring the Mini Cooper into full compliance with the Federal safety standards, and that the agency has made a determination under section 30141(a)(1) (B) that "the safety features of the vehicle comply with or are capable of being altered to comply with those standards based on destructive test information or other evidence [NHTSA] decides is adequate." NHTSA makes the determination after the public has commented upon an application filed by the "registered importer", which is an entity that NHTSA has recognized as capable of performing standards compliance work. If Mr. Doyle is interested in pursuing this avenue of approach, the Office of Vehicle Safety Compliance will provide him, upon his request, with a list of "registered importers" in his area. This is the procedure that must be followed by persons seeking permanent importation of vehicles for their own use. The fact that the Mini meets the safety standards of other countries is an argument that may be made in the application.
The modifications which Mr. Doyle offered to make, while addressing some aspects of occupant protection, were insufficient to demonstrate that the Mini would comply afterwards with all the safety standards that apply to it. We note also Mr. Doyle's offer to restrict the Mini's use to private property. The problem with this offer is that it is not binding on a subsequent purchaser of the car, and we have no authority to require a person other than the importer to bring a car into compliance. Thus, an importer must bring into compliance a motor vehicle that was originally manufactured for on-road use even if (s)he intends to use it on private property.
As noted above, Mr. Doyle seeks an exemption based upon his interpretation of Section. 30112(b). Section 30112(a) contains the basic prohibition against, among other things, importing a motor vehicle unless it complies with the Federal motor vehicle safety standards and bears the manufacturer's certification of compliance. Section 30112(b) sets forth nine circumstances in which section 30112(a) does not apply, that is to say, under which a violation will be considered not to have occurred (and for which a civil penalty may not be imposed). One of these exceptions is if a person can establish "that the person had no reason to know, despite exercising reasonable care, that a motor vehicle . . . does not comply with applicable [U.S. Federal] motor vehicle safety standards. . . ."
Mr. Doyle has not violated Section 30112(a). He has not completed importation of the Mini into the United States; indeed, he was prevented from doing so by the U.S. Customs Service because it did not comply with the standards. Since he has not imported a noncomplying vehicle, he has not violated Section 30112(a) and therefore Section 30112(b)(2) does not apply. He cannot now import the Mini using Section 30112(b)(2) as a defense because he now knows that the Mini fails to comply. The exception that applies to Mr. Doyle is that set out by Section 30112(b)(5) -- "a motor vehicle imported for personal use by an individual who receives an exemption under section 30142 of this title", that is, importation of the Mini through the auspices of a "registered importer" who will conform the vehicle.
Taylor Vinson of this Office will be pleased to answer such further questions as may occur (202-366-5263).
Acting Chief Counsel