Interpretation ID: 22060.ztv
Mr. Joel Martin
Malaguti USA
7368 NW 12th St.
Miami, FL 33126
Dear Mr. Martin:
This is in reply to your undated fax to George Entwistle of this agency, received in August 2000, asking three questions about motorcycle importers.
These questions are:
- "1. Does NHTSA prefer one importer per brand or does it allow several importers to bring in the brand from the same foreign manufacturer."
The foreign manufacturer determines the number of importers of its product. The manufacturer does not consult with NHTSA on this matter, and NHTSA has no preference.
- "2. Second if testing for the importation of a motorcycle was paid for and done by one importer would another importer be allowed to use the same test results in order to verify compliance? In the case of the second importer would they have to provide their own test results if the first set of tests was privately owned and commissioned by the first importer?"
We are unsure of the basis for your question. A motorcycle, like other motor vehicles, must be manufactured to comply and be certified by its manufacturer, through a plate affixed to the vehicle, as complying with all applicable Federal motor vehicle safety standards (FMVSS) in order to be imported into the United States. If the motorcycle is certified by its manufacturer, no further testing by any importer is required. If the motorcycle is not certified, it can only be imported for resale by a registered importer pursuant to 49 CFR Parts 591-594, after we have determined that the motorcycle is capable of being modified to comply with the applicable FMVSS.
We can interpret your question two ways. If the first importer conducts tests on behalf of the foreign manufacturer who then certifies its product on the basis of these tests before the vehicle is imported into the United States, a second importer does not have to test the product.
Our alternative response to your question assumes that the foreign manufacturer of the motorcycle has not certified it as meeting the FMVSS, that both importers have registered as importers under 49 CFR Part 592, and that we have decided, on the basis of a petition submitted by the first importer, as provided in 49 CFR Part 593, that the motorcycle is capable of being modified to meet all applicable FMVSS. As importers of motor vehicles for resale, each registered importer of the motorcycles becomes a "manufacturer" under our laws, responsible for compliance, certification, and notification and remedy when safety recalls are required. In filing its capability petition, a registered importer must establish the technical feasibility of modifying a vehicle to conform, but need not disclose the exact methods it will use to conform the vehicle. The information accompanying the petition is available in a public docket, and only rarely does a petitioner ask that portions of it be withheld from disclosure as confidential business information. To the extent that the first importer has disclosed conformance methods in the publicly available materials, a second importer may use this information in its own conformance operations without further testing.
In addition to affixing its certification label to a vehicle, a registered importer must also "certify" compliance to NHTSA, submitting information which may disclose the tests it conducted in conforming the vehicle. These submittals are not in a public docket and may be treated as confidential business information which is not available to other registered importers of the same vehicle. If the first importer chooses not to share test data and compliance methods with the second importer on a contractual or other basis, the second importer must independently develop its own conformance methods to assure the validity of its certification of the vehicle and to NHTSA.
- "3. I have noticed that there are three importers for the scooter brand Derbi in the United States, but that all three carry different lines of product from the same manufacturer. * * * Is this because of an NHTSA guideline for multiple importers for the same product?"
No. NHTSA has no "guidelines for multiple importers for the same product." In this instance, the manufacturer appears to have different agreements with each of the three importers of its products.
If you have further questions, you may call Taylor Vinson of this Office (202-366-5263).
Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:592
d.11/9/00