Jeffrey S. Bakst, Esq.
Attorney at Law
2406 Auburn Avenue
Cincinnati, OH 45219-2702

Dear Mr. Bakst:

This responds to your request for the views of the National Highway Traffic Safety Administration (NHTSA) on two questions related to litigation in which you are currently involved, that refer to Federal Motor Vehicle Safety Standard No. 124, Accelerator control systems. The two questions and our responses are set out below.

You advise us that you are "dealing with a 1988 Dodge Ram 50 truck manufactured by Mitsubishi in Japan, sold in July, 1988." You informed Dorothy Nakama of my staff that in December 1990, your client was injured while driving the Dodge Ram truck. You further informed Ms. Nakama that our October 26, 1995 interpretation letter to Hugh Bode, Esq. addressed Mr. Bode's questions stemming from the same accident and lawsuit as yours.

Question 1. If the manufacturer discovers a safety-related problem after the vehicle has been sold to the first purchaser in good faith, does the manufacturer have a legal duty to notify NHTSA and/or the purchaser of this problem? If yes, what must a manufacturer do for the purchaser?

The answer to the first part of this question is yes. Pursuant to 49 U.S.C.' 30118(c):

A manufacturer of a motor vehicle . . . shall notify [NHTSA] by certified mail, and the owners, purchasers, and dealers of the vehicle . . . if the manufacturer --

(1) learns the vehicle contains a defect and decides in good faith that the defect is related to motor vehicle safety . . .

Under 49 U.S.C. '30120, where such notification is required, the manufacturer "shall remedy the defect . . . without charge when the vehicle is presented for remedy." The vehicle manufacturer

may choose to remedy the defect by repairing the vehicle, replacing it with an identical or reasonably equivalent vehicle, or refunding the purchase price, less a reasonable allowance for depreciation. The requirement that the remedy be provided without charge does not apply if the vehicle was bought by the first purchaser more than eight years prior to the manufacturer's defect determination.

Question 2. Assume there is a safety-related defect in a brand new carburetor that results in engine overspeed. If the "two sources of energy" are not sufficient to return the throttle to idle position when the driver removes the actuating force from the accelerator control in use, does the carburetor fail to comply with FMVSS 124?

The relevant portion of FMVSS No. 124 (S5.1) provides as follows:

There shall be at least two sources of energy capable of returning the throttle to the idle position within the time limit specified by S5.3 from any accelerator position or speed whenever the driver removes the opposing actuating force. In the event of failure of one source of energy by a single severance or disconnection, the throttle shall return to the idle position within the time limits specified by S5.3, from any accelerator position or speed whenever the driver removes the opposing actuating force.

Under the standard, with either energy source severed or disconnected, the standard requires that the remaining energy source return the throttle to the idle position within the specified time from any accelerator position or speed whenever the driver removes the opposing actuating force.

NHTSA's Office of Vehicle Safety Compliance, (at (202) 366-2832), is the office within NHTSA which has the authority to investigate whether there is a noncompliance with the Federal Motor Vehicle Safety Standards. We are not in a position to render an opinion as to whether the facts you describe indicate the existence of a safety-related defect.

For your information, I am enclosing a copy of our October 26, 1995 letter to Hugh J. Bode, Esq. If you have any further questions, please contact Dorothy Nakama of my staff at this address or at (202) 366-2992.

Sincerely,

Samuel J. Dubbin Chief Counsel

Enclosure ref:VSA#124 d:12/28/95