Interpretation ID: 1983-2.9

TYPE: INTERPRETATION-NHTSA

DATE: 05/20/83

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: The Goodyear Tire & Rubber Company -- Tom Caine, Law Dept.

TITLE: FMVSS INTERPRETATION

ATTACHMT: 2/24/83 letter from Frank Berndt to Garvin-Fram Inc.

TEXT:

Tom Caine, Esq. Law Department The Goodyear Tire & Rubber Company Akron, Ohio 44316-0001

Dear Mr. Caine:

This responds to your request for a clarification concerning a letter of interpretation issued by the agency with respect to the responsibilities of various parties after tires have been damaged by a fire and the manufacturer has determined that the DOT certification on the sidewall is no longer valid. Specifically, I stated in a February 24, 1983, letter to Mr. Jack Garvin that, in the event of fire damage to tires, the manufacturer whose certification appears on the sidewall must determine whether that certification is still valid after the fire damage. Further, I stated that if the certification is no longer valid, the manufacturer must remove its DOT symbol from the sidewall of the tires, and those tires cannot be sold.

You stated that you understand this duty exists when the damaged tires are still within the control of the manufacturer. However, you have a problem with the interpretation when control of the damaged tires has passed from the manufacturer to a third party, such as an independent dealer or a salvage company. You noted that Goodyear has had a continuing problem with common carriers, insurance companies, and salvage companies which try to sell tires after Goodyear has determined that the certification on those tires is no longer valid.

I certainly did not mean to imply in my previous interpretation that a tire manufacturer is required to physically seize fire-damaged tires in situations where physical control over those tires has passed to some third party. In those situations, the tire manufacturer can simply notify the controlling party that the tires can no longer be certified as complying with the applicable safety standard (Standard No. 109 for passenger car tires and Standard No. 119 for all other tires for use on motor vehicles), and the tires cannot legally be sold. It would be helpful for enforcement purposes if the tire manufacturer were to forward a copy of any such notification to a controlling party to this agency's Office of Vehicle Safety Compliance.

As you correctly noted in your letter, section 108 of the National Traffic and Motor Vehicle Safety Act of 1966, as amended (15 U.S.C. 1397), prohibits any party from offering for sale or introducing into commerce any tire which the party knows does not conform to the requirements of the applicable safety standards. A party which has been directly informed by a tire manufacturer that a group of tires no longer complies with the applicable safety standard could not sell those tires or otherwise introduce them into commerce without violating section 108. Section 109 of the Safety Act subjects a party to a civil penalty of up to $1000 for a violation of section 108, and each tire sold in these circumstances would be a separate violation of section 108. Additionally, section S6 of Standard No. 109 prohibits the sale or introduction into commerce for any purpose of tires designed for use on passenger cars if those tires do not comply with all the requirements of Standard No. 109. This would make it illegal for a third party to sell fire-damaged passenger car tires as farm-use tires or non-highway tires.

Please note that this letter does not address any responsibilities which the tire manufacturer or salvager/seller may have to a consumer who in good faith buys a fire-damaged tire. If you have any further questions in this area, please contact Steve Kratzke of my staff at (202) 426-2992.

Sincerely,

Frank Berndt Chief Counsel

March 22, 1983

Mr Frank Berndt -- NHTSA

Your recent opinion letter (copy attached) addressed to Mr Jack Garvin, Schaumburg, Illinois, concerning highway tires damaged by fire has come to my attention.

You indicate that if the tire manufacturer determines that its original certification is no longer valid because of fire damage, then it is the manufacturer's responsibility to remove the DOT symbol from the sidewall of the damaged tires.

We have no problem with the position you spell out so long as the damaged tires are within the control (title and possession) of the manufacturer. However, we do have a problem with respect to tires which have been sold (title passed) to independent dealers or resold by dealers to salvage companies or in the possession of a common carrier or its salvage company.

We have had a continuing problem with common carriers, insurance companies and salvage companies who insist that there is a salvage value even though we have determined that the tires are no longer certifiable and should be scrapped.

It appears to me that the basic law 15 USCA S1397(a)(1) prohibits any person from selling a non-certifiable highway tire for resale unless the person did not have reason to know the tire was not certifiable. Accordingly, it would seem that when the manufacturer notifies a salvage company or common carrier that a tire is no longer certifiable, the responsibility for compliance with the law has shifted to the salvage company or common carrier involved. In addition, I have to assume that 49 CFR 571.109 S6. (nonconforming tires) applies in this situation and would prohibit a salvage company or common carrier from reclassifying a highway auto tire as a "farm use only" tire or "non-highway" tire.

Will you please advise me as to your position concerning the tire manufacturer's responsibility under the circumstances set forth above.

Sincerely

Attorney

T D Caine ph Attachment (2/24/83 letter from Frank Berndt to Garvin-Fram Inc. omitted here.)