Michael A. Norwick, Esq.
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, NJ 07068
Dear Mr. Norwick:
This responds to your letter requesting that the National Highway Traffic Safety Administration (NHTSA) provide an interpretation of its Federal Motor Vehicle Safety Standards (FMVSS or standard) and regulations, as they apply to a retreader of tires. Specifically, you request an interpretation whether NHTSAs FMVSSs or other regulations require a retreader to rebrand truck tires that originally were manufactured with sidewall markings that did not comply with
S 6.5(d) of FMVSS No. 119, New pneumatic tires for motor vehicles with a GVWR of more than 4,536 kg (10,000 pounds) with correct markings before selling them as retread truck tires.
NHTSA administers the National Traffic and Motor Vehicle Safety Act of 1966 as amended (Vehicle Safety Act). The Vehicle Safety Act authorizes NHTSA to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment.
49 U.S.C. 30111. NHTSA is also authorized to enforce the recall notification and remedy requirements of Vehicle Safety Act. See 49 U.S.C. 30117-30122.
The FMVSSs cover new tires commonly used on, among others, medium heavy and heavy trucks. See FMVSS No. 119, 49 CFR 571.119. One requirement of FMVSS No. 119 is to mark the sidewall of the tire with the maximum load rating and corresponding inflation pressure. Tires rated for single and dual load must be marked with information for maximum load single and maximum load dual tires. Tires rated only for single load are marked with one set of load and pressure information. Id. at S. 6.5(d) The FMVSSs also cover some, but not all retreaded tires. Retreaded passenger car tires are subject to FMVSS No. 117, Retreaded Pneumatic Tires. There is no FMVSS applicable to retreaded tires for vehicles other than passenger cars. However, another regulation, 49 CFR Part 574, Tire Identification and Recordkeeping, (hereinafter Part 574) is applicable to new and retreaded tires for virtually all vehicles, including vehicles other than passenger vehicles. Id. at 574.4. Part 574 was issued to facilitate notification of safety recalls to purchasers of defective or nonconforming tires.
49 CFR 574.2; see 49 U.S.C. 30118 and 30119.
Part 574 requires each tire sold in the United States, including retreaded tires, to be labeled with a Tire Identification Number (TIN) in order to facilitate a recall in the event of a defect or noncompliance. Under section 574.5 paragraphs (a) through (d), each TIN consists of: (a) the manufacturers or retreaders identification mark, (b) the tire size symbol, (c) manufacturers optional code, and (d) the date code; i.e., the week and year of manufacture.
I now turn to the factual predicate presented in your inquiry. In the course of production, new truck tires were marked with only the maximum load rating and corresponding inflation values for dual tire use. The required markings for the maximum load and inflation pressure for single tire use were omitted. You note that this marking does not meet the requirements of FMVSS No. 119 S 6.5(d). You add that the tires were labeled dual use only. In the course of a recall by the importer of the tires, the remedy described by the importer was to rebrand the noncompliant tires with the single-use load rating and inflation values. Some of the recalled tires have been and are being retreaded. You ask whether a retreader has a duty under NHTSAs regulations to rebrand such noncompliant truck tires, containing incorrect sidewall markings, which are retreaded and sold as retread tires.
Our answer is no. A retreaded tire must comply with all regulations applicable to retreaded tires, including any FMVSSs and Part 574 Tire Identification requirements. And, a recalled tire must be brought into a compliant state. Thus, when a tire does not comply with the marking requirements in FMVSS No. 119 S 6.5(d), one option is to rebrand it in order to bring it in compliance with FMVSS No. 119 S 6.5(d). A second option is for the manufacturer of the noncompliant tire to replace it with an identical or reasonably identical tire. Third, Federal law does not preclude a person in possession of a tire that does not comply with S 6.5(d) from using the recalled tire to produce a retreaded tire. A retreaded tire is a tire manufactured by a process in which tread is attached to a casing. See 49 CFR 571.117 S 4.1. From a regulatory perspective, a retreaded tire is subject to different FMVSS(s) than a new tire. In particular, a retreaded truck tire is not subject to FMVSS No. 119. Accordingly, a retreader of tires for vehicles other than passenger cars is not required to mark the tires it retreads as specified by FMVSS No. 119. And, for vehicles other than passenger cars, no other regulation requires retreaded tires to show the information required by FMVSS No. 119 S 6.5(d). Thus, in the course of retreading truck tires that did not comply with the marking requirements of FMVSS No. 119, a retreader does not have a duty under the standards to remedy tire sidewall markings so they comply because FMVSS No. 119 is inapplicable. In any event, under 49 CFR 574.5, a manufacturer, which includes a retreader, must mark the sidewall with a TIN.
It should be recognized that potential safety problems could result from tires that have incorrect sidewall markings. Accordingly, while NHTSAs regulations do not require retreaders to manufacture retreaded truck tires that correct nonconforming sidewall markings in the originally manufactured tires, there could be merit to doing so.
This matter has been delegated to the undersigned. If you have any questions, please contact Andrew DiMarsico of my staff on (202) 366-5263.
Stephen P. Wood Assistant Chief Counsel for Vehicle
Safety Standards Harmonization
cc: Lawrence Levigne, Esq.