Interpretation ID: nht91-3.16

DATE: April 10, 1991

FROM: Julia D. Darlow -- Dickinson, Wright, Moon, Van Dusen & Freeman

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 5-1-91 from Paul Jackson Rice to Julia D. Darlow (A37; VSA Sec. 108(b); Sec. 1397(a)(1)(A))

TEXT:

This letter requests your advice concerning a course of action that a client of this firm proposes with respect to Section 1397 of the National Traffic and Motor Vehicle Safety Act of 1966, as amended (the "Act"), 15 U.S.C. Section 1397.

Recently, we discussed our client's proposed course of action on a hypothetical basis with Mr. Taylor Vincent of NHTSA and were encouraged by Mr. Vincent's preliminary analysis of the propriety of this course of conduct. Mr. Vincent advised that formal confirmation of NHTSA's position could be sought from the Chief Counsel. Accordingly, we ask that you provide us with a ruling on the propriety of the following course of conduct under Section 1397.

Our client (the "Importer") imports certain automotive after-market equipment ("Products") that does not meet certain applicable United States federal motor vehicle safety standards. The Importer currently exports these products directly to Canada. The products are warehoused in the United States prior to delivery to Canada but are not resold in the United States.

A potential customer of the Importer located in the United States wishes to purchase Products from the Importer and itself export those Products to Canada. The customer is willing to enter into a written contract with Importer pursuant to which it promises not to sell the Products in the United States but only to export them to Canada. The Products and the outside of the containers in which they are shipped to the customer will be labeled as intended solely for export, as required by 15 U.S.C. Section 1397(b)(5). Pursuant to the written agreement, the customer will provide confirmation of export of the Products to Importer.

To the best knowledge of Importer, the proposed course of action involves no ruse or subterfuge to avoid any requirement imposed by the Act. To the contrary, our client intends that the Products be imported and sold solely for export and has no reason to doubt its customer's intentions.

As you know, Section 1397(a)(1)(A) prohibits any person from manufacturing for sale, selling, offering for sale, introducing or delivering for introduction in interstate commerce or importing into the United States any item of motor vehicle equipment that is not in conformity with applicable federal motor vehicle safety standards, except as provided in subsection (b). Section 1397(b)(5) provides that the prohibition shall not apply to an item of motor vehicle equipment that is intended solely for export and so labeled or tagged on the item itself and on the outside of the container in which it is exported.

Based on the facts as outlined above, we believe that the Importer's proposed sale of the Products to its customer would not be a violation of Section 1397(a)(1)(A) of the Act, because it would conform to the exception set forth in Section 1397(b)(5).

We respectfully request that you issue your written opinion that the Importer's proposed importation and sale of motor vehicles to its customer as outlined in this letter will not violate Section 1397(a)(1)(A).

If you require further information in connection with this request, please let us know as soon as possible. Because our client hopes to implement its proposed arrangements as soon as possible, your early response would be particularly appreciated.