Interpretation ID: nht93-2.41

DATE: March 31, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Philip Trupiano --Auto Enterprises, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 3-18-93 from Philip Trupiano to Taylor Vinson (OCC 8417)

TEXT: This responds to your FAX of March 18, 1993, to Taylor Vinson of this Office. You seek an interpretation of provisions of 49 CFR Parts 591 and 592. You have supplemented your letter by FAXing us on March 23, 1993, a letter from Ford Motor Company dated September 17, 1992, and a copy of a work order from the Louisville Truck Centre in Canada dated September 30, 1992.

Auto Enterprises is a Registered Importer (RI) under Part 592. It has contracted to represent a person who wishes to import a 1984 Ford 9000 heavy duty truck of Canadian manufacture. The truck would be imported across the border shared by North Dakota and Manitoba. The truck appears to have been manufactured as a chassis cab in the United States, and subsequently completed as a truck in Canada. Ford's letter states that the completed vehicle will comply with 18 Federal Motor Vehicle Safety Standards, that it "was designed to meet FMVSS 108 as fully as possible for the vehicle configuration as delivered at the assembly plant", and that to comply "with FMVSS 121 it may be necessary to do the following: Add a quick release valve. Eliminate the control line to the limiting valve. Use 6 or 8 hose from foot control to quick release valve." The work order from Louisville Truck Centre states that "(t)he necessary changes have been made to comply with safety standard FMVSS 121" in accordance with Ford's letter." We assume, of course, that Ford's letter identifies the truck in question as your letter did not convey the VIN of the vehicle. You wish to proceed as follows and ask for our concurrence under Parts 591 and 592. Because of the distance involved in driving the truck to Michigan and back (approximately 4,000 miles), you wish to facilitate entry by mailing Auto Enterprise's RI certification label to its customs broker at the contemplated port of entry to be affixed there. Appropriate photographs of the certification would be taken and submitted to NHTSA as part of the RI conformance package required for bond release. During the period before release of the bond, the truck would be in the custody of the importer. However, because the truck cannot be registered in North Dakota without a copy of the bond release letter, the importer would be effectively prohibited from licensing it for use.

The truck involved was not originally manufactured to conform to all applicable Federal motor vehicle safety standards. It may not have been completed to meet the lighting standard. In addition, modifications were recently made with the intent of conforming it to the U.S. standard on air brakes for trucks. While Ford's letter is informative, it falls short of a manufacturer's certification of compliance. Although the vehicle could in fact now conform to all applicable Federal Motor Vehicle Safety Standards, that fact must be verified by Auto Enterprises as the applicable RI, and its certification of that fact provided to NHTSA. This agency's initial interpretation of The Imported Vehicle Safety Compliance Act of 1988 was that it forbade conformance work to be performed outside the United States, but that conformance work could be

performed in the United States either by the RI or its agent. However, Part 592 as adopted reflects a modified view. It allows conformance work outside the U.S. subject to verification by the RI. As NHTSA stated in the preamble to the final rule (54 FR at 40084) a principal obligation of the RI is "(1) to bring those vehicles into compliance, or to demonstrate that they have been brought into compliance before importation." Further, as NHTSA noted at 40086, after consideration of comments it did not adopt "those aspects of the proposal that countenanced delegation of conformance responsibilities to an agent." In light of the above, we do not believe that Auto Enterprises can, in good faith, affix its certification of compliance to the Canadian truck without verifying its compliance, and we do not believe that it can delegate that task to the Customs Broker who would thereby become its agent for this purpose.

With respect to whether the importer may have custody of its vehicle, The Safety Compliance Act appears to require that it is the RI who has custody, for it clearly states that RIs shall not release custody of any motor vehicle for which they have responsibility (15 U.S.C. 1397(c)(3)(E)(i)) until after they certify approval and have been notified by NHTSA that the conformance bond is released.

Given the possibility that the truck in question may be in de facto compliance with the safety standards, and in recognition of the practical problems involved, we suggest that Auto Enterprises send an employee to inspect the vehicle on the day that it is entered under bond. If your employee concludes that the truck apparently now conforms to Standards Nos. 108 and 121, as well as remaining in compliance with the 18 other applicable standards, (s)he may then affix the certification of compliance. When this is done, your employee may complete and FAX the compliance documentation to NHTSA. We will endeavor to accord this submission priority treatment so that, if it is in order, we can release the bond without delay, probably within one workday. In the interim, the truck would be in the custody of your employee. We believe that this course of action would meet both the law and your practical concerns.