Interpretation ID: 1984-1.15

TYPE: INTERPRETATION-NHTSA

DATE: 02/29/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Goldstein; Serlin; Grass & Eserow; P.C.

TITLE: FMVSR INTERPRETATION

TEXT:

Stuart Goldstein, Esq. Goldstein, Serlin, Grass & Eserow, P.C. 3000 Town Center- Suite 505 Southfield, MI 48075

This is in response to your letter of January 27, 1984, alleging discrimination by the U. S. Customs Service in enforcing regulations governing importation of vehicles that do not meet all applicable Federal motor vehicle safety standards. You have asked that this agency direct Customs "to allow importers to make the speedometer substitution or modification prior to release of the vehicle..."

The National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1381 et seq.) requires that all vehicles imported into the United States be brought into compliance with all applicable Federal motor vehicle safety standards in effect at the time of manufacture. The Act does not differentiate between individual and commercial importers. Pursuant to the Act this agency, the Customs Service, and the Department of the Treasury issued an implementing regulation, 19 C.F.R. 12.80. Under this joint regulation, vehicles that do not conform are to be entered under bond for production of a statement within 120 days (an additional 60 available upon request) that all necessary compliance work has been done. Thus, no directive of the nature you ask is needed because under the regulation importers must make all required modification before vehicles are released.

However, in developing the regulation, the issuing agencies took into account the heavy traffic that exists at the Canadian and Mexican borders and the impracticability of requiring a written declaration (Form HS-7) from each person driving a car over the border into the United States. Each district director at Canadian and Mexican border districts was provided discretionary authority (19 C.F.R. 12.80 (f)) to waive the written declaration "for a United States, Canadian or Mexican registered vehicle arriving via land borders" for vehicles manufactured before January 1, 1968, for vehicles conforming to standards except for readily attachable equipment items to be installed before sale, and for vehicles imported by foreign tourists not intending to stay for over a year. No authority, however, was provided to waive the written declaration for vehicles permanently entering the United States that were not in compliance.

We are not aware that Customs officials have been abusing their discretionaly authority at the Canadian border by waiving the declaration requirement and by allowing permanent importation into the United States of vehicles of recent manufacture with speedometers graduated in kilometers rather than miles per hour. However, your client's car must be brought into compliance with this requirement. It should not, however, take six (6) months to resolve safety issues if the speedometer is the only item in question.

If we can help you further, please let us know.

Sincerely,

Fank Berndt Chief Counsel

January 27, 1984

National Highway Transportation Safety Administrator 400 Seventh Street, S.W. Washington, D.C. 20590

ATTENTION: Chief Counsel RE: 15 U.S. Code 1403 (Pub.L. 89563, Title I, S 114, Sept. 9, 1966, 80 Stat. 726.) (copy attached)

Dear Administrator:

Our office represents a foreign car importer. Because of an erroneous interpretation by my client of the above law, certain vehicles imported were seized by U.S. Customs at Detroit, Michigan. The seized vehicles complied with all E.P.A. Standards. The seized vehicles complied with all D.O.T. Standards with the sole exception that the speedometer registered speed in kilometers per hour, rather than miles per hour as required by D.O.T. Our client, because it desires to comply with the law, is unable to substitute a miles-per-hour speedometer for the kilometers-per-hour speedometer prior to importing the vehicles to the United States. Our client's only option, pursuant to the Customs' requirements as enunciated is to complete a form (HF7) stating that the vehicle does not conform to E.P.A. and D.O.T. Standards.

Since the date of enactment of the law in 1966, steps have been taken by all foreign automobile manufacturers to comply with U.S. E.P.A. and D.O.T. Standards for cars capable of being imported into the United States. The policy in effect at Customs if an individual purchased a vehicle with a speedometer registering speed in kilometers-per-hour, allows an individual to bring the vehicle into the United States without stating that the vehicle is non-conforming and without requiring substantial costs and time for conformity. This is discriminatory! At other Customs check points, the relaxed standard allowing importation of vehicles with kilometers-per-hour speedometers has been allowed for business importers as well. This too is discriminatory.

In order to obtain the certificate cf conformity to comply with Customs, there is approximately a six month administrative delay. This delay is unreasonable and costly not only to my client, but to our Government as well.

A Directive from your office to E.P.A., D.O.T. and Customs regardinq the speedometer problem to allow importers to make the speedometer substitution or modification prior to release of the vehicle from Customs, would save substantial Federal time and money. This directive would not affect the manufacturer's certificate as to E.P.A. Standards as the odometer does not relate to the E.P.A. Standards. Since D.O.T. is concerned with safety, the directive as proposed by our office could satisfy all concerned saving both time and money.

If this recommendation is inappropriate, an alternate suggestion by you would be appreciated.

Should you have any questions, please contact me.

Very truly yours,

GOLDSTEIN, SERLIN, GRASS & ESEROW, P.C.

STUART GOLDSTEIN ST:pls cc: The Vice President cf the United States George Bush