ID: nht88-4.26

TYPE: INTERPRETATION-NHTSA

DATE: 12/01/88

FROM: RICHARD L. STORY

TO: NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER 04/03/89, FROM ERIKA Z. JONES -- NHTSA TO RICHARD L. STORY, REDBOOK A33, STANDARD 218

TEXT: Gentleman

I would like to obtain some information form the NHTSA.

I purchased a 1988 Ford Thunderbird, in the rear seats the car has brackets for shoulder harness.

I contacted the dealer which I purchased the car from and asked to have the shoulder harness installed I was advised that their was a cost of $ 350.000 to do this.

I once saw a TV program on seat belth and traffic safety which stated this was to be installed in a auto by the car company at no charge to the auto owner.

I would like to know if their is a law that does state the car company must do this, if so could you please advise me on this and who I would contact in Ford Motor Company to have the shoulder harness installed. Thank you.

sincerely

ID: nht88-4.27

TYPE: INTERPRETATION-NHTSA

DATE: 12/07/88

FROM: ROBERT J. LATUS -- POSTMASTER US POST OFFICE PAW PAW, MICHIGAN

TO: NHTSA

TITLE: PRIMARY BRAKE LIGHT

ATTACHMT: ATTACHED TO LETTER DATED 03/02/89 FROM ERIKA Z. JONES -- NHTSA TO ROBERT J. LATUS, REDBOOK A33, STANDARD 108

TEXT: One of my Rural Carriers recently purchased a new 1989 Oldsmobile Ciera. She purchases a new car about every 4 years and prefers a new car over taking chances with a used one.

When she arrived at work with the new car, naturally she was proud and invited her co-workers and supervisor outside to look at it. The supervisor took the opportunity to check the lights turn signal etc. In checking it was discovered that when the 4-w ay hazard lights are activated, the only brake light is the much smaller light in the center of the trunk lid. The customary solid signal of the corner lights continue to flash instead of giving the STOP that they had in former models. When questioned, the dealer called Detroit, himself wondering why the change? and was told that this was the new federal regulation. He was also informed that any alteration of what came off of the assembly line was in violation of this new regulation.

I have visited many car lots and found that the "Big 3" auto makers have the same problem on their larger models. The small cars and foreign cars do not.

My question is, who changed the regulation and why? My safety and yours are at stake. Many delivery vehicles use these lights in fog, snow or rain, and their STOP is now hidden under mud, snow or a broken wire.

I have found it to be the opinion of the dealers that I have talked to that the reasoning must have been economics. Perhaps a savings of 60~ per car is more important than the safety of the delivery person or the person that is likely to run into them.

Outside warning devise on the top of these cars have proven to be less effective because of the elements. Lights that are permanently installed - and not on a extension cord as the center light brake light is in some models are much more dependable.

The center light, be it on the inside where melting snow will obscure it completely when the heating coil is activated or the outside light on the extreme rear of the trunk lid under a trim vane where it will accumulate a "back wash" of mud or snow are n ot adequate.

I have been in contact with Mr. Burl Ghastin, Michigan State Police Trafic Safety Division; Les Sokolowski, The National Safety Council, Chicago; and Postal Inspector Jerry Rosenthal in Detroit and they all feel that an explanation from your agency shoul d be sought.

In the interest of Safety, I am

ID: nht88-4.28

TYPE: INTERPRETATION-NHTSA

DATE: 12/08/88 EST

FROM: ERIKA Z. JONES -- CHIEF COUNSEL, NHTSA

TO: WAYNE IVIE -- MANAGER, VEHICLE SUPPORT SERVICE SECTION, OREGON DEPARTMENT OF TRANSPORTATION

ATTACHMT: LETTER DATED JULY 12, 1988 FROM WAYNE IVIE, MGR., VEHICLE SUPPORT SERVICE SECTION, OREGON DEPT. OF TRANSPORTATION TO NHTSA; OCC2420

TEXT: This responds to your letter seeking information about the labeling requirements in Standard No. 218, Motorcycle Helmets (49 CFR @ 571.218). You noted that Oregon recently enacted a mandatory helmet use law which adopted Standard No. 218 as the minimum standard for helmets. You correctly noted that section S5.6.1 of Standard No. 218 requires subject motorcycle helmets to be permanently and legibly labeled with specified information, including the symbol "DOT" as a certification that the helmet complie s with Standard No. 218. However, you stated that you have received reports that the labeling required by Standard No. 218 is not present on many helmets, either because it has fallen off or been removed by someone. You said that there is often no othe r identification of the manufacturer or brand name on the helmet. Accordingly, it is not possible for the owner of a helmet without the Standard 218 label present to contact a dealer or manufacturer for information about the helmet. You then asked seve ral questions about the labeling requirements set forth in Standard No. 218.

Before answering your specific questions, I would like to provide some general background information on Standard No. 218. Prior to October 3, 1988, Standard No. 218 applied only to helmets that could be placed on the size C headform. The helmet manufac turers estimated that approximately 90 percent of all motorcycle helmets were subject to Standard No. 218, because they could be placed on the size C headform. However, helmets manufactured before October 3, 1988 that could not be placed on the size C h eadform (these were typically smaller sizes of helmets) were not subject to Standard No. 218. Hence, manufacturers of helmets that could not be placed on the size C headform were not required by Standard No. 218 or any of our other regulations to label any information on these helmets. In fact, manufacturers could not label the DOT certification symbol on those helmets that were not subject to Standard No. 218. See the enclosed December 4, 1987 letter to Mr. Hoppe for more information on this subject.

We published a final rule on April 6, 1988 that extended the requirements of Standard No. 218 to all motorcycle helmet sizes (53 FR 11280). This rule became effective on October 3, 1988. Accordingly, all motorcycle No. 218 and must be labeled in accord ance with the requirements of S5.6 of that standard.

With this background, your question can be answered as follows. For the approximately 10 percent of helmets manufactured before October 3, 1988 that could not be placed on the size C headform, Standard No. 218 did not apply to them, so there was no requ irement for any information to be labeled on these helmets. Any such helmets would not display a "DOT sticker" because they were not required or permitted to display such a sticker when they were new, not because the sticker "fell off" or was removed.

However, Standard No. 218 applied to approximately 90 percent of all helmets manufactured before October 3, 1988 and applies to every motorcycle helmet manufactured on or after that date. For those helmets, S5.6.1 of Standard No. 218 requires that: "Eac h helmet shall be permanently and legibly labeled . . ." with the manufacturers name or identification, the precise model designation, the size, the month and year of manufacture, the DOT certification mark, and warning instructions. (emphasis added) In an October 16, 1973 letter to the Cycraft Co., NHTSA stated that the requirement that helmets be permanently labeled prohibits the use of labels that can be removed easily by hand without tools or chemicals.

You stated that you have heard of two reasons why helmets that originally had a DOT certification label would no longer have such a label. One of the reasons was that the affixed label was a "sticker" and it "fell off." Standard No. 218 permits manufact urers to label the required information on the helmet by means of a "sticker," provided that the label is permanent and legible and contains all the information required by S5.6. A "sticker" that falls off the helmet would not appear to be permanent wit hin the meaning of Standard No. 218, so this would be an apparent noncompliance with the standard. If you have any evidence that "stickers" are falling off helmets, please forward that information to our Office of Vehicle Safety Compliance at this addre ss, and we will take appropriate actions.

The second reason that you have heard for helmets no longer having the labeling required by Standard No. 218 is that someone removed the label to paint the helmet and failed to put the label back on the helmet. Section 108(a)(2)(A) of the National Traff ic and Motor Vehicle Safety Act (15 U.S.C 1397(a)(2)(A)) prohibits any manufacturer, distributor, dealer, or repair business from "knowingly render[ing] inoperative any device or element of design installed on or in a motor vehicle or item of motor vehic le equipment in compliance with an applicable Federal motor vehicle safety standard." In this case, the label on motorcycle helmets is a device or element of design installed on the helmet in compliance with Standard No. 218. If a manufacturer, distribu tor, dealer, or repair

business removed that label and failed to put it back on the helmet, then those entities would be rendering the label inoperative, in violation of Federal law. Again, if you have any evidence that violations of Federal law have occurred in your State, pl ease forward that evidence to our Office of Vehicle Safety Compliance and we will take appropriate actions.

Please note that Federal law does not prohibit the helmet's owner or any other person that is not a manufacturer, distributor, dealer, or repair business from removing the label from motorcycle helmets. Thus, the owner of a motorcycle helmet is permitte d to remove the label from his or her helmet for any reason without violating any provision of Federal law. The individual States are free to establish requirements for motorcycle helmets used in their State, and could prohibit an owner from removing th e label.

You suggested that the problem of missing labels could be solved if this agency were to require that the DOT symbol be embossed on or in the helmet. NHTSA considered and rejected this suggestion 15 years ago when it established Standard No. 218. In the August 20, 1973 preamble to the final rule that established FMVSS 218, we said:

With respect to providing important safety information in the form of labeling, one comment recommended that, due to possible label deterioration, both the manufacturer's identification and the helmet model designation should be permanently marked by etching, branding, stamping, embossing, or molding on the exterior of the helmet shell or on a permanently attached component so as to be visible when the helmet is in use. The NHTSA has determined that the practical effect of this recommendation is acc omplished by requiring each helmet to be permanently and legibly labeled. The method to be used to permanently and legibly affix a label for each helmet is therefore left to the discretion of the manufacturer. (38 FR 22391)

You finally asked if other jurisdictions have informed NHTSA of similar problems and sought suggestions on methods to resolve the situation where an apparently undamaged helmet would be in compliance with the standard except that it is not properly label ed. As noted above, approximately 10 percent of the motorcycle helmets manufactured before October 3, 1988 were not subject to Standard No. 218 and were not required to be labeled. To my knowledge, no other jurisdictions have informed this agency of pr oblems akin to those raised in your letter aside from more general questions about labeling.

I hope this information is helpful. If you have any further questions or need some more information on this subject, please do not hesitate to contact Mr. Marvin Shaw of my staff at this address, or by telephone at (202) 366-2992.

Enclosure

ID: nht88-4.29

TYPE: INTERPRETATION-NHTSA

DATE: 12/08/88

FROM: ERIKA Z. JONES -- NHTSA

TO: A.J. ACKLEY -- MARTEK CORP.

TITLE: NONE

ATTACHMT: LETTER DATED 05/26/88 FROM A. J. ACKLEY TO JOAN TILLGHMAN, OCC - 2096; LETTER DATED 06/10/88 FROM A J ACKLEY TO ERIKA Z JONES; OCC 2151

TEXT: Dear Mr. Ackley:

This is in response to your letter of May 26, 1988, in which you asked whether this agency anticipated any legal problems with the design of your proposed safety triangle. You noted in your letter and in an accompanying diagram that the design of your p roduct might differ from the typical design of a warning triangle because you intended to include a company's logo (the letter "T" in a star) within the safety triangle. I apologize for the delay in our response.

Your proposed product would be subject to Safety Standard No. 125, Warning Devices (49 CFR @571.125, Copy enclosed). This standard establishes requirements for devices that are designed to be carried in motor vehicles, and used to warn approaching traff ic of the presence of a stopped vehicle. Paragraph S5.2.6 states that

The device shall consist entirely of the triangular portion and attachments necessary for its support and enclosure, without additional visible shapes or attachments. (emphasis added)

The standard's express prohibition against "additional visible shapes or attachments" indicates that your proposal to include a logo in the center of the warning device would violate the safety standard. As a result, you could not legally market this pr oduct. The Safety Act provides for a civil penalty of $1,000 for each violation of a safety standard and a maximum penalty of $800,000 for a series of violations. In addition, the Safety Act requires manufacturers to remedy their products if they fail to comply with all applicable safety standards.

I hope this information is helpful.

ENCLOSURE

ID: nht88-4.3

TYPE: INTERPRETATION-NHTSA

DATE: NOVEMBER 7, 1988

FROM: CLARENCE M. DITLOW III -- CENTER FOR AUTO SAFETY EXECUTIVE DIRECTOR

TO: ERIKA Z. JONES -- CHIEF COUNSEL-NHTSA

TITLE: NONE

ATTACHMT: DECEMBER 12, 1988 LETTER FROM JONES TO DITLOW

TEXT: Your November 1 letter refusing to question General Motors' failure to provide retrofit rear shoulder belts for 9 million cars reflects such callous disregard for human life and ignorance of the facts as to defy belief that you are doing little more than covering up for a GM policy that will kill rear seat passengers.

First, you totally ignore the fact that GM is actively discouraging consumers from installing shoulder belts in 9 million cars by telling them the shoulder belt offers no added safety protection over the lap belt alone. What possible scientific basis is there for such a statement, particularly when GM's chief seatbelt effectiveness expert, Leonard Evans, concludes that shoulder/lap belts are more than twice as effective as lap belts alone in preventing fatalities. If rear lap belts are as effective as shoulder/lap belts, then why is NHTSA proposing to require shoulder belts in rear seats?

Second, you condone GM's actions to discourage installation of rear shoulder belts by trivalizing 9 million cars as "a few of its past models." I assure you that the millions of people who ride with their lives at greater risk in the rear seats of these cars deserve far more respect than you show them.

Third, NHTSA's voluntary program to make retrofit shoulder belts available is in shambles. Not a day goes by without CAS receiving complaints from consumers about dealers refusing to install shoulder belts in rear seats. GM encourages this withholding of lifesaving shoulder belts by alleging there is research that adding shoulder belts doesn't save lives. Telling people that shoulder belts do not save lives clearly frustrates NHTSA's policy of encouraging retrofits.

Fourth, the only substantive statement in your response was that NHTSA does not have the statutory authority to mandate the availability of retrofit shoulder belts. This is nothing more than a strawman argument as my September 9 letter never said NHTSA has the statutory authority to mandate retrofit kits. But in view of the greater effectiveness of shoulder belts and the increased use of rear lap belts which cause death in some accidents, the question arises as to why NHTSA doesn't ask Congress for su ch authority?

Your substantive response to the questions raised in these letters is welcomed.

ID: nht88-4.30

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88 EST

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: ERMAN JACKSON -- SALES MANAGER-TRAILMASTER TANKS, INC.

TITLE: NONE

ATTACHMT: APRIL 18, 1988 FROM JACKSON TO JONES

TEXT: This is in response to your letter which requested our interpretation of the applicability of certification requirements to your company. You indicate that you attached a new body to a truck chassis that has been in service for a number of years. Your customer believes that Trailmaster Tanks, Inc., (Trailmaster) should have issued a new final-stage manufacturer certificate at the time of the mounting of the new body. Trailmaster, on the other hand, is of the opinion that the final-stage manufacturer certificate is only issued when the chassis is new. You asked me whether your company was required by Federal law or regulations to certify that the new body on the used truck chassis complies with all applicable safety standards. The answer to your qu estion depends on whether the used chassis consisted of any new components and, if not, whether the used components of the chassis came from different vehicles, as explained below.

As a general matter, our safety standards and certification requirements apply to vehicles only before the first sale of the vehicle in good faith for purposes other than resale. Generally speaking, vehicles that are produced from a chassis that has alr eady been sold to the public are notconsidered new vehicles, and are not subject to our safety standards or certification requirements. However, there is a special provision in our regulations for vehicles that are produced by combining new and used comp onents. This provision is in 49 CFR @ 571.7 (e), which provides:

(e)Combining new and used components. When a new cab is used in the assembly of a truck, the truck will be considered newly manufactured for purposes of paragraph (a) of this section, the application of the requirements of this chapter, and the Act, unless the engine, transmission, and drive axle(s) (as a minimum) of the assembled vehicle are not new, and at least two of these components are from the same vehicle.

This regulation means that a party attaching a new body to an old chassis is not required to attach a new certification label or make any certification under Federal law if that party simply uses the engine, transmission, and drive axle that are installe d on the old chassis at the time the party receives the old chassis. Based on your statement that the truck "was not modified in any way" at the time the new body was installed on the old chassis, this would appear to be the case in your situation. If this is true, you were not required to make any certification in connection with this vehicle.

On the other hand, if you substituted a new engine, transmission, or drive axle in the old chassis when you attached the new body, the vehicle was considered newly manufactured under @571.7(e) and your company was required to certify the vehicle in accor dance with Part 567. Similarly, if you substituted used components on the old chassis at the time you attached the new body, the vehicle was considered newly manufactured unless at least two of the three specified components (engine, transmission, and d rive axle) were from the same vehicle.

It should be noted that, even if the vehicle created when you attached a new body to a used truck chassis did not result in a newly manufactured vehicle pursuant to 49 CFR @ 571.7(e), your company was still subject to the provisions of section 108(a)(2)( A) of the Safety Act. This section prohibits any manufacturer, distributor, dealer or motor vehicle repair business from "knowingly rendering inoperative" any equipment or element of design installed on a vehicle in compliance with safety standards. In other words, no manufacturer, dealer, distributor, or repair business can modify used vehicles by removing or defeating any of the systems or devices that were installed on the vehicle to comply with an applicable safety standard. The modifier in the f irst instance must determine if the modifications constitute a prohibited "rendering inoperative" violation. However, the agency can reexamine the modifier's determination in the context of an enforcement proceeding.

I believe you can use the information presented in this letter to determine whether or not the vehicle your company made was considered a newly manufactured vehicle, subject to our safety standards and certification regulations. If you have any further questions or need additional information, please feel free to contact us.

ID: nht88-4.31

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88 EST

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: WILLIAM SHAPIRO -- VOLVO CARS OF NORTH AMERICA

TITLE: NONE

ATTACHMT: FEDERAL MOTOR VEHICLE SAFETY STANDARD NUMBER 106, BRAKE HOSES-REQUEST FOR INTERPRETATION; DATED 6-7-88, OCC-2154, FROM WILLIAM SHAPIRO

TEXT: This responds to your letter concerning the testing of hydraulic brake hose assemblies to the whip resistance requirement (S5.3.3) of Standard No. 106, Brake Hoses. I regret the delay in responding.

Your question relates to Table II of Standard No. 106, which specifies the amount of slack that should be introduced when mounting brake hose assemblies on the whip test apparatus. (The amount of the hose indicated as "slack" in Table II is the differen ce between the projected length of the hose assembly (when mounted in the whip test machine) and the free length of the hose while maintained in a straight position.) Slack must be present in the hose when mounted on the whip test machine to enable the p roper "whipping" movement of a brake hose assembly. Without slack, an assembly would probably be incapable of withstanding any rotation of the movable header of the whip test apparatus described in Standard No. 106 without rupturing.

Table II specifies the amount of slack for some sizes of assemblies, and not for others. You ask whether a hydraulic brake hose assembly of a size falling in the latter category -- viz., an assembly comprised of a brake hose that is 19 to 24 inches in f ree length, and which is more than one-eighth inch or three millimeters (mm.) in diameter -- "need not be tested to meet or exceed the whip resistance requirement" of the standard.

With regard to NHTSA's Standard No. 106 compliance testing, your understanding is correct that Table II does not specify the amount of slack for testing assemblies of the size you describe. Due to the absence of the slack specification, NHTSA does not r equire testing of such assemblies to the whip resistance requirements of the standard.

With regard to your certification that the brake hose assemblies you manufacture comply with all applicable requirements of Standard No. 106, you are correct that hydraulic brake hose assemblies of the size you describe are not subject to the whip resist ance requirements. However,

the agency urges manufacturers to ensure that these assemblies perform in a safe manner while subject to environmental conditions of vehicle operations which may result in flexing of the brake hose or brake hose assembly.

Please contact my office if you have further questions.

ID: nht88-4.32

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88 EST

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: VICKY JOHNSON -- OFFICE OF THE CHIEF COUNSEL, KANSAS DEPARTMENT OF TRANSPORTATION

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 5-11-88 TO: ERIKA Z. JONES, NHTSA, FROM VICKY S. JOHNSON, KANSAS DEPT. OF TRANSPORTATION

TEXT: This is a response to your letter asking for my comments on a school transportation issue that has arisen in Kansas. I apologize for the delay in this response. You explained that, in the past, many school districts in your State used vans with more th an ten seating positions to transport school children, even though these vehicles were not certified as meeting Federal school bus standards. According to your letter, you informed those school districts that there are "civil liability risks" associated with transporting students in vehicles that do not meet Federal school bus standards. Further, you said you informed those districts that a manufacturer or dealer who sells a school district a bus that is not a certified school bus may be in violation of Federal law. According to your letter, most of those school districts now recognize the "considerable risks" associated with this practice.

You are concerned that some of these districts are now purchasing the same vehicles that were previously certified as buses, but the vehicles now have only ten seating positions. Accordingly, the vehicles are now certified by the manufacturer as multipu rpose passenger vehicles (MPVs). You believe that this situation is not a violation of Federal law because dealers are no longer selling school districts "buses" that are not certified as school buses. However, you believe there is still a considerable risk of civil liability for the school districts in the event of a crash. You asked for our comments on this practice.

Generally speaking, there is no violation of Federal law when a dealer sells a properly certified MPV to a school district. On the other hand, NHTSA has maintained a long-standing position that if a dealer sells an MPV or bus capable of being converted and used as a school bus to a school or a school bus contract operator, that dealer is responsible for ensuring that the vehicle complies with all applicable school bus standards. (40 FR 60033, 60034, December 31, 1975.) For example, let us assume that a dealer sells a school district a vehicle that is certified as an MPV by its manufacturer. The vehicle has ten designated seating

positions when it is delivered to the dealer, but is large enough to accomodate an additional bench seat, which would result in the vehicle having at least 13 designated seating positions. In this instance, a dealer who sells such a vehicle to a school district would have violated the prohibition in section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C.

1397(a)(1)(A) against selling vehicles that do not comply with all applicable safety standards.

In essence, NHTSA has concluded that a dealer may not legally sell a school district a vehicle that is capable of being converted into a school bus, unless:

1. that vehicle is certified as complying with applicable school bus standards; or

2. the dealer has reason to believe that the buyer has no intent of converting and using the vehicle as a school bus.

If the dealer is uncertain of the buyer's intent, the agency has suggested that the dealer request a written statement of purpose from the buyer. (Id.) The agency has taken this position because the dealer frequently is the person in the distribution ch ain with the best knowledge of how a buyer intends to use a vehicle.

Applying this reasoning to the situations described in your letter, the dealers selling MPVs to school districts might have done so in violation of Federal law. If the MPVs in question were capable of being converted into school buses, and the dealer had reason to believe that the purchasing school district intended to convert the vehicles to school buses, the dealer could only sell the MPV to the school district if the vehicles were certified as conforming to all applicable school bus standards. Your letter did not provide enough information for us to offer an opinion on any such potential liability. If you know of instances where a dealer may have sold vehicles to a school district under circumstances such as I describe here, please report this inf ormation to the Office of Enforcement, NHTSA, Room 6113, NEF-30 at the address on this letterhead.

With respect to your question about the risk of civil liability in the event one of these vehicles is in a crash, that is a question of State, not Federal law. I am not qualified to offer an opinion on how the matter would be resolved under Kansas law. I suggest that you contact the Attorney General for the State of Kansas to get an opinion about how the laws of Kansas would apply in such a situation.

I hope you find this information helpful. If you have further questions, please contact Joan Tilghman of my staff at this address or by telephone at (202) 366-2992.

ID: nht88-4.33

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: JACK MCCROSKEY; GLENDA SWANSON LYLE -- REGIONAL TRANSPORTATION DISTRICT DENVER COLORADO

TITLE: NONE

ATTACHMT: LETTER DATED 09/13/88 TO LARRY COOK FROM JACK MCCROSKEY AND GLENDA SWANSON LYLE, OCC - 2539; LETTER DATED 08/26/88 TO MARVIN ORNES FROM RE MORGAN; LETTER DATED 09/09/87 TO R. ROGERS FROM RE MORGAN, RE GOODYEAR MILEAGE TIRES

TEXT: Dear Mr. McCroskey and Ms. Lyle:

This responds to your letter of September 13, 1988, asking for our advice on potential safety hazards and legal liabilities that might result from ignoring the speed restrictions on the tires used on your transit buses. You stated that your entity opera tes three types of bus service in the State of Colorado. The first type is a local bus, operated primarily in areas where the speed limit is 35 miles per hour (mph); the second type is an express bus, operated primarily in areas where the speed limit is 55 mph; and the third type is a regional bus, operated primarily on freeways with speed limits of 55 to 65 mph. You were interested primarily in the tires used on your express buses.

You stated that you use two types of speed-restricted tires "almost interchangeably" on the express buses. One of your speed-restricted tire types is the XT, which is speed-restricted to a maximum speed of 55 mph. The other is the DXT, which is speed-r estricted to a maximum speed of 35 mph. Since the express buses are operated primarily at speeds of 55 mph, you contacted the tire manufacturer to get its advice on the acceptability of using tires that are speed-restricted to 35 mph on these buses. Yo u enclosed copies of correspondence you received from the manufacturer, stating that its DXT and XT tires are identical, except that the DXT tire has 7/32 of an inch more undertread. The manufacturer's advice was that the tire that is speed-restricted t o a maximum of 35 mph "may be used at higher speeds; but not for sustained operation." You asked whether it is advisable for your entity to continue using the tires that are speed-restricted to 35 mph on your express buses, which operate primarily at 55 mph. We strongly recommend that you not do so.

There are some notable advantages associated with speed-restricted tires, including enhanced load-carrying capabilities and greater resistance to tire damage from hitting objects in the road or curbs. However, the greater undertread on speed-restricted tires also means that the tires will generate higher temperatures at high speed than a comparable non-restricted tire. Higher temperatures inside the tire increase the chances of a tire failure at high speeds.

2

NHTSA carefully considered both the advantages of speed-restricted tires and the need to ensure that such tires are properly used when it was developing Standard No. 119, New Pneumatic Tires for Motor Vehicles Other Than Passenger Cars (49 CFR @571.119; copy enclosed). Every new bus tire must be certified by its manufacturer as complying with this standard. This agency decided that Standard No. 119 should permit the continued production of speed-restricted tires, but with appropriate safeguards to ens ure that these tires would not be used at higher speeds. Accordingly, Standard No. 119 specifies less stringent high speed and endurance test requirements for speed-restricted tires. Speed-restricted tires for use on vehicles other than motorcycles are exempted from the high speed performance requirements of S6.3 of Standard No. 119. This exemption reflects the fact that the tires are not designed for high speed use. For the same reason, the endurance test schedule for speed-restricted tires consists of a lower test speed and fewer total revolutions of the test wheel, as shown in Table III of Standard No. 119. Hence, the manufacturer of these speed-restricted tires has not certified that these tires comply with the performance requirements of Standa rd No. 119 under conditions exceeding the speed-restriction marked on the tires.

To ensure that the user of speed-restricted tires would not operate the tires at higher speeds than those at which the tires are designed to operate safely, section S6.5(e) of Standard No. 119 requires every speed-restricted tire to have the marking "Max speed mph" on the sidewall. This marking is intended to alert the tire user of the limitations of this tire, so that it will not be repeatedly used at higher speeds. Since your express buses operate primarily at speeds of 55 mph, we urge you not t o equip those buses with tires labeled "Max speed 35 mph." Similarly, since your express and regional buses typically operate at speeds exceeding 55 mph on their routes, we recommend only tires without speed restrictions for these buses.

With respect to your question about potential legal liabilities in the event one of these speed-restricted tires fails while in service on one of your express buses, that is a question of State law. Since I am not familiar with the Colorado law on this subject, I must decline to offer an opinion. However, the Attorney General for the State of Colorado or other local counsel would be able to accurately advise you on Colorado's law in this area.

Sincerely

ENCLOSURE

ID: nht88-4.34

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: DONALD N. STAHL -- DISTRICT ATTORNEY OFFICE OF DISTRICT ATTORNEY BUREAU OF INVESTIGATION

TITLE: MCCOY TIRE SERVICE CENTER D.A. NO. CF696

ATTACHMT: UNDATED LETTER FROM JOHN T FORTH AND DONALD N STAHL TO ERIKA Z JONES; RE MCCOY TIRE SERVICE CENTER D.A. NO. CF696; OCC 1749; LETTER DATED 03/01/88 FROM DAVE TAYLOR TO JOHN FORTH; LETTER DATED 07/13/87 FROM ERIKA Z JONES TO JACK DENIJS; LETTER D ATED 05/19/87 FROM JACK DENIJS TO CHIEF COUNSEL NHTSA; OCC-500; RE COVERED DOT NUMBERS ON REMANUFACTURED TRUCK CASINGS

TEXT: Dear Mr. Stahl:

This responds to your letter asking about requirements concerning the importation of tire casings. According to your letter, a routine inspection by the California Highway Patrol (CHP) of a local school district's buses disclosed recapped tires on a bus which did not have DOT markings on the tires. The CHP learned that the tire casings were originally designed for use by a rubber tire train in Japan and were new tires that had been imported for recapping purposes. The tire casings were imported as sli cks (no tread design), and the slick was removed. The tires were then recapped using the "bondag" process and sold to the school district. You asked whether it is permissible to import this type of tire casing and, if so, whether the particular type of tire casing meets Department of Transportation standards. Your questions are responded to below. Our opinions are based on the facts provided in your letter.

Before addressing your specific questions, I will provide background information about requirements for tires. All tires which are subject to a Federal motor vehicle safety standard must have the symbol "DOT" molded into the sidewall by the manufacturer or retreader, if those tires are to be imported into the United States. This symbol represents a certification by the manufacturer or retreader that the tire complies with all requirements of the applicable safety standards.

New tires for use on school buses are subject to Federal Motor Vehicle Safety Standard No. 119 (49 CFR 571.119). Section S6.5(a) of the standard requires that all new tires for use on motor vehicles other than passenger cars have the DOT symbol molded i nto the sidewall by the manufacturer. Tires without this symbol may not be legally imported. This is also true for used tires manufactured on or after the effective date of Standard No. 119, March 1, 1975, with one narrow exception.

Used tires for use on motor vehicles other than passenger car which have less than 2/32 inch of tread remaining and which are imported solely for the purpose of being retreaded in this country prior to resale may be imported without a DOT symbol on the s idewall. I have enclosed a copy of a June 18, 1981 letter to Mr. Roy Littlefield, which explains in detail the requirements of this narrow exception to the requirements that used tires have a DOT symbol on the sidewall to be legally imported.

No Federal safety standard is applicable to retreaded tires for use on motor vehicles other than passenger cars. They may be imported without certification of compliance by the retreader. However, these tires must have a tire identification number mark ed on the sidewall, per the requirements of 49 CFR Part 574.

Your first question is whether it is permissible to import the type of tire casing at issue. As indicated above, new tires for use on school buses may not be imported without the DOT symbol. However, it is our opinion that the casings at issue are mate rials needing further manufacturing operations to become completed items of motor vehicle equipment, rather than finished items of motor vehicle equipment (tires which could lawfully be used or sold as they are). This opinion is based on the fact that th e casings are being imported as slicks, which generally cannot be used on the public highways under state laws since they have no tread, and since the casings are being imported for purposes of recapping.

Your second question is whether the casings at issue meet Department of Transportation standards. A key issue in answering this question is whether the tires are considered to be retreaded tires or new tires subject to Standard No. 119. It is our opini on that any tires manufactured by applying new tread to new casings are considered new tires rather than retreaded tires, and are subject to the same requirements as any other new tires.

The National Highway Traffic Safety Administration defines "retreated" as "manufactured by a process in which a tread is attached to a casing." The term "casing" is defined as "a used tire to which additional tread may be attached for the purpose of retr eading." See 49 CFR Part 571.117 and 49 CFR Part 574.3(b).

In the situation you described in your letter, the casings were not used tires at the time the "recapping" took place. Instead, they were simply new tires (originally designed for use on a rubber tire train) which were imported for recapping purposes. These casings would not be considered used tires until they have actually been used (presumably on a train prior to importation, or on the highway, with the new tread attached, in the United States.)

Since the tires at issue were not used tires at the time they were recapped, they are not retreaded tires but are instead new tires, subject to Standard No. 119. The tires would appear not to comply with Standard No. 119, given the absence of the DOT sy mbol.

Your letter states that the original manufacturer of the tire has stated that the tires are not suitable by any means for highway use. If the tires are not suitable for highway use after they have been recapped, they may contain a safety-related defect. See 15 U.S.C. 1411 et seq. We note that the defect provisions of the National Traffic and Motor Vehicle Safety Act apply to items of motor vehicle equipment regardless of whether there is an applicable safety standard.

We hope this information is helpful, and we are referring your letter to our Office of Enforcement.

ENCLOSURE