Interpretation ID: nht76-5.63
DATE: 07/20/76
FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA
TO: Road America Tire
TITLE: FMVSR INTERPRETATION
TEXT: This is in response to your May 19, 1976, letter concerning the responsibilities that you would have as an importer and distributor of Dunlop passenger car tires. I understand that the tires would, before importation, be certified by Dunlop as conforming to Federal Motor Vehicle Safety Standard No. 109, New Pneumatic Tires -- Passenger Cars, and labeled with a tire identification number as required by 49 CFR Part 574, Tire Identification and Recordkeeping. This particular line of tires would at first be imported by Road America Tire but not by Dunlop Rubber and Tire Co. of Buffalo, New York (Dunlop New York), the usual importer of Dunlop tires.
You have inquired about your responsibilities concerning "record keeping, recall, and testing", with respect to the tires that you would import. The term "manufacturer" is defined in Section 102(5) of the National Traffic and Motor Vehicle Safety Act of 1966, as amended (15 U.S.C. 1391 et seq.)(the Act), to be
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)
In the event that neither the importer nor the actual manufacturer met an obligation imposed on a "manufacturer" by the Act or regulations issued thereunder, the National Highway Traffic Safety Administration (NHTSA) would consider taking enforcement action against both parties. Any such obligation, however, may be satisfied by either party. Please note that @ 574.8 of Part 574 also establishes requirements applicable to Road America Tire as a distributor of the tires in question.
The above discussion applies to manufactuers' notification and remedy obligations set out in Section 151 through 160 of the Act and to the tire identification and recordkeeping requirements of Part 574, among others. The Act does not specifically require any person to conduct tests of his products. Standard No. 109 establishes the performance tests which the NHTSA will conduct to determine conformity. A determination of nonconformity triggers the notification and remedy obligations regardless of the amount of testing the manufacturer has performed.
In conclusion, tires imported by Road America Tire would not be the responsibility of Dunlop New York. Conversely, tires imported by Dunlop New York would not be the responsibility of Road America Tire. While a factual issue might arise concerning which party actually imported a particular tire, such an issue would be resolved on the basis of information available in that particular case. You should note that, were the NHTSA to choose to proceed against Dunlop with respect to a tire imported by Road America Tire, the agency might serve administrative processes, notices, or orders on Dunlop New York. However, Dunlop New York would be served only in its capacity as the foreign Dunlop's designated agent for service of process pursuant to Section 110(e) of the Act, and not in its capacity as an importer.
Copies of the Act and Part 574 are enclosed for your convenience. You may rely on this letter in resolving any conflict that you might have with Dunlop New York.
YOURS TRULY,
road america tire
May 19, 1976
Mr. Schwimmer Office of the Chief Consol National Highway Traffic and Safety Administration
Thank you for taking time away from your busy schedule this morning to speak with us regarding our questions about D.O.T. regulations governing passenger car tires. As per your recommendation, we are putting into writing our various questions on the particular matters as follows:
1) What is our responsibility as an importer/distributor of a new type of Dunlop passenger car tire that is now D.O.T. marked and will not be imported by Dunlop Rubber and Tire Co. of Buffalo, New York in the following areas:
a) record keeping
b) recall
c) testing
2) Will any conflict arise, as far as your department is concerned, in us handling this new special tire apart from the normal passenger car line as carried by Dunlop, New York. Dunlop New York, is claiming that all D.O.T. marked tires are their responsibility since they are the major importer of most all other passenger car tires.
3) What would be the ramifications of both Dunlop New York and ourselves importing this same special tire and what problems would arise in the area of record keeping and recall. Dunlop New York has informed us that they will not import this tire at the present time, but may do so in the far future.
Please feel free to call me at the above number should you require any further information concerning this matter. We would appreciate receiving your official opinion in writing, so that we may resolve any conflict with Dunlop New York and we would also appreciate your approval in using your written opinion in this manner, as well. Thanking you in advance for your time and consideration in this matter.
Ronald E. Moser