Interpretation ID: aiam0347
Executive Secretary
Louisiana Independent Tire Dealers Association.
P.O. Box 2851
Birmingham
Alabama 35212;
Dear Mr.Jones: The 'Flash Notice' that you forwarded to us on April 23, 1971, and you telephone conversation of May 10 with Mike Peskoe of my staff have raised certain questions concerning your interpretation of Motor Vehicle Safety Standard No. 117, 'Retreaded Pneumatic Tires.'; On page 1 of the 'Flash Notice' you state, 'But, so far as testin goes, it's apparent the risk for retreaders not to do their own testing to prove compliance is substantially greater than anticipated.' You proceed to discuss whether manufacturers should test their own tires in order to prove 'due care.' As part of this discussion you refer to the statement in the preamble in the Notice of March 5, 1970, concerning what could suffice for a valid certification, and state that we have told you that this preamble is 'still basically valid.'; There is evidently some confusion as to the purpose and meaning of 'du care' under the National Traffic and Motor vehicle Safety Act, and also as to the difference between compliance and certification.; A manufacturer of a retreaded tire that did not comply with th standard but who used due care in manufacturing the tire to comply with the standard cannot be subject to a civil penalty. The answer to your hypothetical question on page 3, 'What if due care is used, but the tire doesn't comply' is that the manufacturer cannot be subject to a civil penalty in this situation. (He may, however, be required to send defect notification letters and be urged to recall.) We do not agree that one is 'guilty until proven innocent.' A finding of noncompliance must first be made by the agency. Once the agency, through testing or otherwise, discovers a noncompliance, it is then up to the manufacturer to show that he exercised due care. Although the issue of due care is one that is ultimately decided by a court, the agency, in determining whether to seek a civil penalty, will make a preliminary determination on this issue.; You asked in your conversation of May 10 that we amplify what is mean by 'due care.' 'Due care' is a legal concept embodying the care that would be exercised by a reasonable man under the circumstances, and the circumstances of each situation must be considered in determining whether due care has been exercised. The set of circumstances set forth in the preamble of March 5, 1970, might constitute 'due care' in a large number of situations. To be sure, a manufacturer who tests his own tires might be considered in some cases to have exercised more care to insure that his tires complied with the standard than one who relied on tests by a third person on other tires that were similarly manufactured. Each potential case would be considered, and decided, by the agency on the facts peculiar to it.; The 'Flash Notice' also motions 'certification' in such a way tha clarification of the term is indicated. First, all tires manufactured after the standard's effective date must be certified. Certification is accomplished, as you know, by placing the symbol 'DOT' on the tire in a prescribed location. In practice, all tires will have the symbol 'DOT' affixed to them after January 1, 1972, as manufacturers could not manufacture these tires without placing the mark on them. The answer to your question on page 3, 'What if one certified does not comply' is that even if the tire fails to comply, if the manufacturer has exercised due care, in the view of the court, in manufacturing the tires to comply to the standard, his certification will not be considered 'false or misleading,' and no civil penalty can be imposed. The same 'due care' that will suffice for compliance will suffice for purposes for certification. Manufacturers' efforts should be directed to manufacturing tires that conform to the standard.; Your 'Flash Notice' also incorrectly explains certain provisions of th standard. First, with reference to which tests a particular tire must pass, S5.1.1 requires each tire to be able to pass every test, but when a single tire, during the agency testing, is subject to one of the groups of tests specified in S5.1.1, that particular tire will not be tested further. As indicated to you on the phone, this is similar to the test procedure of Standard No. 109. It merely reflects that fact that certain test, such as strength, normally destroy the tire.; Your statement on page 4 concerning the labeling requirements, tha retreaders can 'buff off the labeling required in retreading without worry, since it is displayed in other areas,' is unclear to us. The standard requires each item of information required by Standard No. 109 to be retained in at least one location (Standard No. 109 requires each item to be on both sidewalls) on the complete retreaded tire. Retreaders must therefore take care that each tire retains the original marking to this extent.; Finally, with reference to the physical dimensions requirements o S5.1.2, the 10 percent tolerance refers only to the maximum dimension, with respect to the section width specified in the tables of Standard No. 109. Your reference on page 4 to '10% under' is incorrect, since no minimum measurement is stated in the standard. However, the section width is a variable in computing the size factor which must be at least the minimum specified for the tire in the tables in the Appendix.; If you have further questions, please let us know. Sincerely, Lawrence R. Schneider, Acting Chief Counsel