Interpretation ID: nht88-4.37

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: LANCE E. TUNICK, -- VICE PRESIDENT AND GENERAL COUNSEL MASERATI AUTOMOBILES, INC.

TITLE: NONE

ATTACHMT: LETTER DATED 09/04/85 FROM JEFFREY R. MILLER TO STEPHEN T. WAIMEY AND DEAN HANSELL, STANDARD 208; LETTER DATED 11/10/75 FROM FRANK A. BERNDT TO JOHN B. WHITE, N40-30, SECTION 108(B)(5); LETTER DATED 10/20/88 FROM LANCE E. TUNICK TO ERIKA Z. JON ES, REQUEST FOR INTERPRETATION OF FMVSS 208, OCC 2696

TEXT: Dear Mr. Tunick:

This responds to your October 20, 1988 letter, in which you asked for an interpretation of Standard No. 208, Occupant Crash Protection (49 CFR @ 571.208). More specifically, you noted that section S4.1.3 requires a specified percentage of a manufacturer 's annual production to be equipped with automatic occupant protection. You stated that some vehicles imported into the United States may subsequently be exported to Canada. Since section 108(b)(5) of the National Traffic and Motor Vehicle Safety Act ( 15 U.S.C. 1397(b)(5); the Safety Act) specifies that none of the safety standards apply to vehicles intended solely for export, your company assumes that it should not include vehicles subsequently exported to Canada in its annual production totals when determining compliance with S4.1.3 of Standard No. 208. This assumption is incorrect, as explained below.

In a September 4, 1985 letter to Messrs. Stephen Waimey and Dean Hansell (copy enclosed), we answered the question of how manufacturers that produce cars outside the United States should calculate their annual production to determine compliance with the phase-in requirements of Standard No. 208. That letter explains that foreign-based manufacturers should count the number of vehicles that were produced and certified for sale in the United States, in accordance with 49 CFR Part 567, Certification, durin g the relevant time period to determine their annual production for the purposes of Standard No. 208.

Your letter referred to section 108(b)(5) of the Safety Act, and suggested that this statutory provision means that any vehicles that are imported into the United States and subsequently exported to a different country should not be counted as part of th e manufacturer's annual production. I am happy to explain our view of what is permitted under that statutory provision.

Section 108(b)(5) provides that the requirements in the safety standards "shall not apply in the case of a motor vehicle or item of motor vehicle

equipment intended solely for export, and so labeled or tagged on the vehicle or item itself and on the outside of the container, if any, which is exported." This statutory language establishes three separate conditions that would have to be satisfied to exclude a vehicle from the requirements of the safety standards, including the calculation of a manufacturer's annual production for purposes of Standard No. 208. These three conditions are:

1. The vehicle must be intended solely for export;

2. The vehicle must have a label or tag on it at the time it is imported which shows that the vehicle is intended solely for export; and

3. The vehicle must actually be exported.

We agree with your contention that a vehicle satisfying all three of these conditions would not be subject to the requirements of any of the safety standards, and could properly be excluded from the calculation of a manufacturer's annual production for t he purposes of Standard No. 208. For a similar interpretation regarding imported tires that are intended solely for export and so labeled, see the enclosed November 10, 1975 letter to Mr. John B. White. Of course, it would not be sufficient if only one of these conditions, such as the third one regarding actual exportation, were satisfied.

We are uncertain regarding the facts surrounding the vehicles that have already been imported into the United States and then exported to Canada and thus are unable to give an opinion concerning their satisfaction of the section 108(b)(5) conditions. It should be relatively simple for you to determine whether these vehicles satisfied the first two conditions. Did those vehicles truly just pass through the US on their way to Canada? To what country's standards were those vehicles certified and when? When the vehicles were imported into the United States, your company was required to complete a Form HS-7. That form allows the importer to declare that a vehicle is intended solely for export and that the vehicle bears a label or tag to that effect. W hat type of declaration was made with respect to the vehicles in question?

As to vehicles which Maserati Automobiles, Inc., wishes in the future to import into this country and pass directly through to Canada for sale there, satisfaction of each of the three section 108(b)(5) conditions will assure that the vehicles are not included in the Standard No. 208 calculations.

If you have any further questions or need additional information on this subject, please feel free to contact Steve Kratzke of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

ENCLOSURES