Interpretation ID: nht81-2.47

DATE: 07/14/81

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Firestone Tire Company

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your recent letter to Mr. Kratzke of my staff, describing a situation in which a railroad car full of new tires caught on fire. As a result of the damage caused to the tires by the fire, Firestone's quality control staff determined that the tires could no longer be certified as safe for highway use. The railroad company has refused to pay your claim for damage to the tires unless Firestone releases the damaged tires to the railroad company. You stated that the railroad company will either sell the tires through its salvage outlets or use the tires on company vehicles. You ask whether you can rightfully withhold these tires from the railroad company.

If Firestone releases the tires and the railroad company sells the tires or uses them on the public roads, both Firestone and the railroad company would violate an express provision of the National Traffic and Motor Vehicle Safety Act of 1966, as amended (15 U.S.C. 1381 et seq.) ("the Safety Act"). Therefore, you can rightfully withhold the tires from the railroad company.

Your letter did not indicate whether the damaged tires were tires for passenger cars or tires for motor vehicles other than passenger cars. In either case, the tire manufacturer is required to certify that each tire fully complies with certain marking requirements and with specified performance requirements (resistance to bead unseating, strength, endurance, and high speed performance) of Safety Standard No. 109 in the case of passenger car tires (49 CFR @ 571.109) or of Safety Standard No. 119 for tires other than passenger car tires (49 CFR @ 571.119). This certification is made by the manufacturer by molding the letters "DOT" into the sidewall of the tire.

As a result of the damage to this particular shipment of tires, your company has determined that this certification is no longer valid. This determination obligates Firestone to remove the "DOT" symbol from the sidewall of the tires.

Without the "DOT" symbol, these tires would clearly not comply with the requirements of either Standard No. 109 or Standard No. 119. Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)). provides:

No person shall manufacture for sale, sell, or offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any . . . item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard . . . .

Firestone would violate this prohibition if it were to deliver tires to the railroad company which were not certified as complying with the appropriate safety standard. The railroad company would violate this prohibition if it sold or offered to sell uncertified tires, or if uncertified tires were used by the company on the public roads (introduction in interstate commerce). Section 109 of the Safety Act (15 U.S.C. 1398) specifies penalties of up to $ 1000 for each violation of section 108, and each tire delivered by Firestone or sold or used by the railroad company would constitute a separate violation of section 108. Section 109 specifies that the maximum civil penalty which can be imposed for a series of related violations, which this would be, is $ 800,000 for each violator.

You indicated that Firestone would not release the damaged tires for use in any case, because of the potential safety hazard. I hope that this response reinforces that position. Should you need any further information on this matter, please do not hesitate to contact me. Please show this letter to the interested railroad company so that it will realize the serious nature of its contemplated actions.

SINCERELY,

Firestone TIRE COMPANY

June 24, 1981

The National Highway Safety Administration Office of Chief Counsel

Attention: Steven Kratzke

Dear Mr. Kratzke:

Pursuant to our phone conversation this morning, we would appreciate hearing from you and the National Highway Safety Administration as to the disposition to be made on tires which have been exposed to fire while in transit. We experience approximately five of these situations per year and recently we've experienced an incident where the carrier is demanding that we release to them the salvage.

In this particular incident, the carload of 1,596 tires was shipped from our Decatur, Illinois Plant back in June of 1979. Enroute the carrier noticed a missing hasp and ordered the car confined to its repair track until a new hasp could be affixed to the car. In the process of welding the hasp on to the car a small fire started which the carrier's employees quickly extinguished. After a break for lunch and the subsequent return from lunch the car was again found ablaze. The car was again extinguished by both the railroad's employees and the local fire department.

Our Quality Control people inspected the tires and found them to be in a condition not suitable for highway use. The railroad retained outside experts in this area and our company likewise retained experts to evaluate the condition of these tires to confirm basically what our Quality Control people originally decided. Both these outside firms cannot guarantee the safety of these tires. The railroad has refused to pay our claim unless we release these tires to them to be salvaged through their salvage outlets to the public or for use on their own company vehicles. We find this railroad's request in total disregard of public safety.

We would appreciate your confirming in writing basically how the National Highway Safety Administration feels about this and whether or not a manufacturer of tires, such as Firestone is correct in wanting to scrap these tires in such a manner that they are never used on the highway. We are confirming at this time that we have no intentions of releasing these tires to this particular railroad but would appreciate your decision as to whether or not we can rightfully withhold these tires from the railroad for their salvaging, which in the end will hopefully produce a settlement from the railroad for the value of these tires which they destroyed.

Thank you.

C. L. BIDDLE SUPERVISOR OF CLAIMS GENERAL TRANSPORTATION DEPARTMENT