Interpretation ID: 77-4.13

TYPE: INTERPRETATION-NHTSA

DATE: 10/03/77

FROM: AUTHOR UNAVAILABLE; Joseph J. Levin Jr.; NHTSA

TO: Messrs. Eckert; Seamans; Cherin & Mellott

TITLE: FMVSR INTERPRETATION

TEXT: This is in reply to your letter of September 13, 1977, to Robert Aubuchon of this agency on behalf of your client Charles J. Sechan. Mr. Sechan has imported a 1976 Ferrari that does not comply with all applicable Federal motor vehicle safety standards and you have inquired whether, as a statutory manufacturer, he may apply for a temporary exemption from Motor Vehicle Safety Standard No. 215, Exterior Protection on the basis that compliance would cause him substantial economic hardship.

In our view he may not do so. Section 102(5) of the National Traffic and Motor Vehicle Safety Act includes in its definition of "manufacturer" any person "importing motor vehicles . . . for resale." Your client does not appear to be a manufacturer since he has imported only a single motor vehicle personally for his own use. There is nothing in your letter that indicates he is importing motor vehicles for resale.

Section 123 of the Act was not intended to apply to the occasional importer of a motor vehicle but to business entities engaged in the manufacture of motor vehicles. Thus the exemptions provided are "temporary," meaning that after the date of expiration motor vehicles produced by the manufacturer must comply with the Federal motor vehicle safety standards from which they were previously exempted. Exemptions do not provide retroactive coverage and apply only to vehicles manufactured after the effective date of the exemption's grant (See 49 CFR 555.7(f)).

I hope this answers your questions.

SINCERELY,

ECKERT, SEAMANS, CHERIN & MELLOTT

September 13, 1977

United States Department of Transportation National Highway Safety Administration

Attention Robert Abuschon:

Re: N41-22CUS

In a telephone conversation with you on September 2, 1977, you agreed to provide me with an updated listing of the various exemptions from the FMVSS which have been granted to various manufacturers and importers of motor vehicles. To date, I have not received this information.

As you may recall, I represent Sechan Coal Company, Inc. which, on July 21, 1977, imported a 1976 Ferrari, BB, Serial No. 18587. Mr. Charles J. Sechan, the President of Sechan Coal Company, is presently endeavoring to bring his automobile into compliance with the applicable FMVSS. In order to do so, Mr. Sechan wanted to know whether there were any exemptions granted from the FMVSS with respect to his vehicle.

Section 123(d)(1) of the National Traffic and Motor Vehicle Safety Act of 1966 provides:

"No manufacturer whose total motor vehicle production in its most recent year of production exceeds 10,000, as determined by the Secretary, shall be eligible to apply for an exemption under paragraph (1)(A) of subsection (a) of this section".

Paragraph (1)(A) of subsection (a) of Section 123 of the Act provides that an exemption may be granted upon an application by a "manufacturer" on the ground:

"(1)(A) that compliance would cause such manufacturer substantial economic hardship and that the manufacturer has, in good faith, attempted to comply with each standard from which it requests to be exempted".

Section 102(5) of the Act defines a "manufacturer" as follows:

"'Manufacturer' means any person engaged in the manufacturing or assembling of motor vehicles or motor vehicle equipment, including any person importing motor vehicles or motor vehicle equipment for resale". (Emphasis added)

As you know, the Ferrari Boxer is an extremely limited production vehicle which is assembled by hand at the Ferrari plant in Italy. Moreover, it appears from the sections of the Act quoted above that "any person importing motor vehicles . . . for resale" (Section 102(5)) would be considered a "manufacturer". Accordingly, if that "manufacturer" were to import an insubstantial number of vehicles, he would be eligible to apply for an exemption from the FMVSS pursuant to Section 123(a)(1)(A) of the Act, i.e., on the ground of substantial economic hardship.

According to an itemized list of Federal Motor Vehicle Standards provided as an enclosure to Form FL-80, which was sent to my client on August 12, 1977, the 1976 Ferrari Boxer may not comply with FMVSS, Section 215, relating to exterior protection. Preliminary inquiries made by my client reveal that FMVSS Section 215, requiring the replacement of original "bumpers" with those which will comply with that standard, is incredibly expensive.

Accordingly, I was wondering if you would be so kind as to provide me with an interpretation of Section 123 of the Act relating to exemptions. Specifically, I would like to know whether my client is eligible to apply for an exemption from Section 215 of the Federal Motor Vehicle Safety Standards pertaining to bumpers on the 1976 Ferrari Boxer he has imported into this country on the ground of substantial economic hardship.

Please regard this request as merely an inquiry. My client fully intends to use his best efforts to bring his vehicle into compliance with all applied standards from which his vehicle is not exempted. However, before expending the sums of money necessary to do so, he requested that this inquiry be made.

Your cooperation in this matter will be appreciated.

Mark A. Willard