Interpretation ID: nht91-2.46

DATE: March 25, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Charles A. Schue, Jr.

TITLE: None

ATTACHMT: Attached to letter dated 2-27-91 from Charles A. Schue, Jr. to DOT/NHTSA Director, Office of Vehicle Safety Compliance (OCC 5782)

TEXT:

This responds to your letter of February 27, 1991, to the Director, Office of Vehicle Safety Compliance, with respect to your prospective importation of a 1979 Mercedes-Benz 300D. You have requested a "waiver of purchase date requirement" as outlined in the DOT "Guide for Complying with Regulations on Imported Motor Vehicles", and, if this cannot be granted, information of "other provisions under which I may request approval to import this vehicle into the U.S.A."

We are happy to provide you with an interpretation of the importation regulations (49 CFR Part 591). One of its provisions will apply to your situation. A vehicle is admitted after its importer has executed a Form HS-7 at the port of entry. As one of its provisions will apply to you, there is no need to obtain written approval in advance from us.

First, there is no restriction upon importation if the vehicle, in fact, complies with the Federal motor vehicle safety standards. You report that the Mercedes has had two previous American owners in Turkey. If the car was originally bought by an American, even though in Turkey, there is the possibility that the vehicle was originally manufactured to conform to the Federal motor vehicle safety standards. Conformance with the standards at time of manufacture may be verified by the manufacturer's label certifying compliance, usually placed in the driver's door post area. If your Mercedes has such a label, then it may be imported without the necessity of demonstrating conformance.

An importer who is a nonresident of the United States may import a nonconforming vehicle temporarily without the necessity of conforming it to the standards. The fact that you have been employed in Turkey since June 1986 raises the possibility that you may not intend a permanent importation of the Mercedes. If you intend to seek employment again outside the United States, and if the Mercedes will be in the United States for less than a year, you would appear eligible to import the car under the nonresident provisions.

However, if you intend permanent importation and if your Mercedes lacks the certification label, the car is subject to the importation provisions affecting nonconforming vehicles. You have asked about your eligibility to import a vehicle under the provisions set forth in the Guide. The "purchase date" provision to which you refer is 49 CFR 591.5(g)(3). This requirement was mandated by 15 U.S.C. 1397(g)(3). Subsection (g) contains conditions, all of which must be fulfilled in order to import nonconforming vehicles under the more liberal provisions that were in effect before January 31, 1990. One of these conditions, as set forth in section 1397(g)(3), is that the importer "had acquired (or had entered

into a binding contract to acquire) (the motor) vehicle before the date of enactment of this subsection (October 31, 1988)." In establishing this requirement, Congress provided no authority to exempt anyone from its terms. Thus, unless you had a binding contract as of October 31, 1988, to acquire the Mercedes that you purchased on May 15, 1989, you are not eligible to import the vehicle under section 591.5(g).

The requirements under which you may be eligible to permanently import your Mercedes are set forth in section 591.5(f). Unfortunately, these are not explained in the DOT Guide that you have. For your information, I enclose a current copy of 49 CFR Part 591. In brief, two events must occur before you may import your noncomplying vehicle into the United States pursuant to this section. First, this agency must have made a determination that the vehicle is capable of being converted to comply with the Federal motor vehicle safety standards. Second, after such a determination, the vehicle may be imported only by a "registered importer" (essentially an entity that the agency has recognized as capable of converting the vehicle to comply with the standards), or by the vehicle owner who has a contractual relationship with a registered importer to perform conversion work.

You will be pleased to know that the agency has already determined that noncomplying 1979 Mercedes-Benz 300D passenger cars are eligible for importation. I enclose a copy of our Final Determination on this and other cars that was published in the Federal Register on November 13, 1990. The agency's Office of Vehicle Safety Compliance can furnish you a list of registered importers, and I suggest that you contact them shortly before you intend to import the car, so that the list will be current.

Attachments

Copy of Federal Register, Vol. 55, No. 219, 11-30-90; Final Determinations That Certain Nonconforming Vehicles Are Eligible For Importation. (Text omitted)

Copy of 49 CFR Part 591, Importation of Vehicles & Equipment Subject To Federal Safety, Bumper & Theft Protection Standards (Text omitted)