Mr. Roger W. Cole
Vice President, Sales
Twin Tire U.S.A., Inc.
335 Phoenixville Pike
Malvern, PA 19355

Dear Mr. Cole:

This responds to your letter of October 18, 1994, received by facsimile transmission, addressed to Walter Myers of my staff. You asked whether passenger car tires that have the DOT symbol and the Uniform Tire Quality Grading Standards (UTQGS) ratings molded on the sidewalls may legally be sold in the United States. The short answer is yes, provided that the tires in fact comply with all applicable Federal motor vehicle safety standards (FMVSS).

By way of background information, 49 U.S.C. '30101, et seq. (hereinafter referred to as Safety Act), directs the National Highway Traffic Safety Administration (NHTSA) to issue FMVSSs applicable to new motor vehicles and new items of motor vehicle equipment prior to the first retail sale of such vehicles or equipment. Tires are considered motor vehicle equipment. The Safety Act provides at 49 U.S.C. '30112(a) that no person may manufacture, sell, offer for sale, or import into the United States any new motor vehicle or item of motor vehicle equipment unless that vehicle or equipment complies with applicable FMVSSs and is covered by a certification to that effect issued in accordance with 49 U.S.C. '30115. The latter section provides in pertinent part that "Certification of equipment may be shown by a label or tag on the equipment . . . ." Thus, any new tire sold by Twin Tire must comply with all applicable FMVSS's, and be certified as doing so.

FMVSS No. 109, New pneumatic tires, a copy of which is enclosed for your information, specifies the minimum standards applicable to new passenger car tires. This standard specifies labeling and performance requirements applicable to passenger car tires, which include tubeless tire resistance to bead unseating, tire strength, tire endurance, and high speed performance. If the tires in question fail to comply with

Standard No. 109, the manufacturer (or importer of noncomplying tires) must notify the purchasers of the product and remedy the noncompliance without charge to the purchaser(s). Failure to comply with any FMVSS can also result in civil penalties of up to $1,000 per violation, up to a maximum of $800,000 for a series of related violations.

With regard to the situation you present, 49 U.S.C. 30112(b) provides two exceptions to the prohibition of 30112(a) against selling noncomplying equipment, such as tires. The first exception is that the prohibition does not apply to a person who had no reason to know, despite exercising reasonable care, that an item of equipment does not comply with applicable FMVSS's. The second exception is for a person who holds a certificate issued by the equipment manufacturer stating that the equipment complies with applicable FMVSS's, provided that the person does not know about the noncompliance. However, if Twin Tire were to sell the tires in question and those tires failed to comply with applicable FMVSS's, it is unlikely that Twin Tire could successfully argue that it qualifies for these exceptions, as a defense to an enforcement action for selling the noncomplying equipment.

You state in your letter that the tire manufacturer "breached their contract to manufacture these tires under the premise of US regulations." If the breach concerned the ability of the tires to conform to the requirements of the applicable FMVSS's, Twin Tire would be on notice that there is a reasonable possibility that the tires in question, while labeled with a DOT mark certifying compliance, do not in fact comply. In a situation where a seller has reason to believe the equipment it is selling might not comply with applicable FMVSS's, the seller must ascertain if the certification is bona fide before selling the item.

The following discussion relates to the "DOT" and other markings that you describe on the tires. Paragraph S4.3.1 of FMVSS No. 109 provides that:

Each tire shall be labeled with the symbol DOT in the manner specified in Part 574 of this chapter, which shall constitute a certification that the tire conforms to applicable Federal motor vehicle safety standards (emphasis added).

Similarly, the UTQGS, also applicable only to passenger car tires, found at 49 CFR 575.104 (copy enclosed), provides at 49 CFR 575.104(d)(1)(i)(A):

Except for a tire of a new tire line . . . , each tire shall be graded with the words, letters, symbols, and figures specified in paragraph (d)(2) of this section, permanently molded into or onto the tire sidewall . . . .

Finally, 49 CFR 574.5 requires each tire sold in the United States have a tire identification number (TIN) molded into or onto the tire sidewall by the manufacturer to facilitate recall in the event of a noncompliance or defect.

To summarize, the answer to your question is the tires in question can be sold only if they comply with all applicable FMVSSs (including Standard No. 109's labeling and performance requirements) and are so labeled in the prescribed locations with the DOT symbol, the UTQGS grades, and the TIN.

I hope this information is helpful to you. Should you have any additional questions or need further information, please feel free to contact Mr. Myers at this address or at (202) 366-2992.


Philip R. Recht Chief Counsel

ref:109#575.105 d: 12/7/94