[Federal Register Volume 83, Number 58 (Monday, March 26, 2018)]
[Notices]
[Pages 13002-13004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05983]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2017-0071; Notice 2]


Sumitomo Rubber Industries, Ltd., Grant of Petition for Decision 
of Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Grant of petition.

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SUMMARY: Sumitomo Rubber Industries, Ltd. (SRI), on behalf of itself 
and its subsidiary Sumitomo Rubber North America, Inc. (SRNA), have 
determined that certain Falken truck tires do not fully comply with 
Federal Motor Vehicle Safety Standard (FMVSS) No. 119, New Pneumatic 
Tires for Motor Vehicles with a GVWR of more than 4,536 kilograms 
(10,000 pounds) and Motorcycles. SRI filed a noncompliance report dated 
June 20, 2017. SRI also petitioned NHTSA on July 10, 2017, for a 
decision that the subject noncompliance is inconsequential as it 
relates to motor vehicle safety.

FOR FURTHER INFORMATION CONTACT: Abraham Diaz, Office of Vehicle Safety 
Compliance, the National Highway Traffic Safety Administration (NHTSA), 
telephone (202) 366-5310, facsimile (202) 366-5930.

SUPPLEMENTARY INFORMATION:
    I. Overview: SRI, on behalf of itself and its subsidiary SRNA, have 
determined that certain Falken truck tires do not fully comply with 
paragraph S6.5(f) of FMVSS No. 119, New Pneumatic Tires for Motor 
Vehicles with a GVWR of more than 4,536 kilograms (10,000 pounds) and 
Motorcycles (49 CFR 571.119). SRI filed a noncompliance report dated 
June 20, 2017, pursuant to 49 CFR part 573, Defect and Noncompliance 
Responsibility and Reports. SRI also petitioned NHTSA on July 10, 2017, 
pursuant to 49 U.S.C. 30118(d) and 30120(h) and 49 CFR part 556, for an 
exemption from the notification and remedy requirements of 49 U.S.C. 
Chapter 301 on the basis that this noncompliance is inconsequential as 
it relates to motor vehicle safety.
    Notice of receipt of the petition was published, with a 30-day 
public comment period, on September 22, 2017, in the Federal Register 
(82 FR 44488). No comments were received. To view the petition and all 
supporting documents log onto the Federal Docket Management System 
(FDMS) website at: http://www.regulations.gov/. Then follow the online 
search instructions to locate docket number ``NHTSA-2017-0071.''
    II. Tires Involved: Approximately 5,408 Falken truck tires (Model 
RI151), size 225/70R19.5, manufactured between October 17, 2016, and 
April 28, 2017, are potentially involved.
    III. Noncompliance: SRI explains that the noncompliance is that the 
number of plies indicated on the sidewall of the subject tires do not 
match the actual number of plies in the tire construction, and 
therefore, do not meet all applicable requirements specified in 
paragraph S6.5(f) of FMVSS No. 119. Specifically, the tires are marked 
with ``TREAD 5 PLIES STEEL'' whereas the correct marking should be 
``TREAD 4 PLIES STEEL.''
    IV. Rule Requirements: Paragraph S6.5 of FMVSS No. 119, titled 
``Tire Markings'' includes the requirements relevant to this petition:
     Each tire shall be marked on each sidewall with the 
information specified in paragraphs (a) through (j) of paragraph S6.5.
     The actual number of plies and the composition of the ply 
cord material in the sidewall and, if different, in the tread area.
    V. Summary of SRI's Petition: As background, On June 12, 2017, SRI 
discovered that a population of 5,408 Falken brand truck tires, Model 
RI151, size 225/70Rl9.5 128/126L, manufactured from October 17, 2016 
through April 28, 2017 at the company's plant in Miyazaki, Japan, were 
marked with the incorrect number of plies. On July 13, 2017, SRNA was 
informed of the marking error, shipments of the subject tires were 
halted, and the company determined that the subject tires failed to 
comply with the tire labeling requirements of Federal motor vehicle 
safety standard (FMVSS) No. 119, S6.5. Specifically, the subject tires 
were incorrectly marked ``TREAD 5 PLIES STEEL,'' although they should 
have been marked ``TREAD 4 PLIES

[[Page 13003]]

STEEL.'' Accordingly, these tires do not conform to the marking 
requirements of FMVSS No. 119, S6.5. The subject tires comply with the 
performance requirements and other marking requirements of FMVSS No. 
119.
    SRI submitted a Part 573 noncompliance report on June 20, 2017. 
NHTSA Recall No. l7T-012. SRI corrected the production molds. SRI began 
manufacturing correct versions of these tires on June 17, 2017.
    SRI described the subject noncompliance and stated its belief that 
the noncompliance is inconsequential as it relates to motor vehicle 
safety.
    In support of its petition, SRI submitted the following reasoning:
    Under the Safety Act, each Federal motor vehicle safety standard 
promulgated by the National Highway Traffic Safety Administration 
(NHTSA) must be ``practicable, meet the need for motor vehicle safety, 
and be stated in objective terms.'' 49 U.S.C. 3011l(a). The Safety Act 
defines ``motor vehicle safety'' as:

``the performance of a motor vehicle or motor vehicle equipment in a 
way that protects the public against unreasonable risk of accidents 
occurring because of the design, construction or performance of a 
motor vehicle, and against unreasonable risk of death or injury in 
an accident, and includes nonoperational safety of a motor 
vehicle.''

49 U.S.C. 30102(a)(8) (emphasis added).
    The Safety Act exempts manufacturers from the Safety Act's notice 
and remedy requirements when the Secretary of Transportation determines 
that a defect or noncompliance is inconsequential as it relates to 
motor vehicle safety. See 49 U.S.C. 30118(d). Section 30118(d) 
demonstrates Congress's acknowledgment that there are cases where a 
manufacturer has failed to comply with a safety standard, yet the 
impact on motor vehicle safety is so slight that an exemption from the 
notice and remedy requirements of the Safety Act is justified. NHTSA 
has stated that the relevant consideration in evaluating an 
inconsequentiality petition is ``whether an occupant who is affected by 
the noncompliance is likely to be exposed to a significantly greater 
risk than an occupant in a compliant vehicle.'' 69 FR 19897, 19900 
(April 14, 2004) (emphasis added).
    In the context of tires specifically, the agency has similarly 
stated that it ``believes that one measure of inconsequentiality to 
motor vehicle safety is that there is no effect of the noncompliance on 
the operational safety of vehicles on which the tires are mounted. 
Another measure of inconsequentiality . . . is the safety of people 
working in the tire retread, repair and recycling industries.'' See 72 
FR 18210 (April 17, 2017) (granting petition for determination of 
inconsequential noncompliance with respect to SRI tires marked with the 
incorrect number of plies).
    We believe the labeling noncompliance at issue here is 
inconsequential to motor vehicle safety. The subject Falken tires were 
manufactured as designed and meet or exceed all applicable FMVSS No. 
119 performance standards. Furthermore, all of the sidewall markings 
related to tire service (load capacity, corresponding inflation 
pressure, etc.) are correct and the tires correctly show that they 
contain steel plies. SRI does not believe the mislabeling of these 
tires presents a safety concern for consumers or retreading and 
recycling personnel. As noted above, the affected tire mold has been 
corrected and tires produced on and after June 17, 2017, are marked 
with the correct number of plies.
    NHTSA has previously granted petitions involving similar 
noncompliances. In the most recent of these, the agency explained:

    ``Although tire construction affects the strength and durability 
of tires, neither the agency nor the tire industry provides 
information relating tire strength and durability to the number of 
plies and types of ply cord material in the tread sidewall. 
Therefore, tire dealers and customers should consider the tire 
construction information along with other information such as the 
load capacity, maximum inflation pressure, and tread wear, 
temperature, and traction ratings, to assess performance 
capabilities of various tires. In the agency's judgement, the 
incorrect labeling of the tire construction information will have an 
inconsequential effect on motor vehicle safety because most 
consumers do not base tire purchases or vehicle operation parameters 
on the number of plies in a tire.''

See 82 FR 18210 (April 17, 2017).
    Regarding potential safety risks to the tire service industry, the 
agency concluded that a misstatement of the number of plies ``will have 
no measurable effect on the safety of the tire retread, repair, and 
recycling industries. The use of steel cord construction in the 
sidewall and tread is the primary safety concern of these industries. 
In this case, because the sidewall markings indicate that some steel 
plies exist in the tire sidewall, this potential safety concern does 
not exist.'' As noted above, the markings on the subject tires 
correctly indicate that they contain steel plies (although the number 
is misstated as 5 instead of 4).
    NHTSA also granted similar petitions involving tires manufactured 
by Cooper Tire and SRI (Dunlop). See 74 FR 10804 (March 12, 2009) 
(granting petition submitted by SRI where tires were labeled ``Tread 3 
Polyester + 2 Steel,'' whereas the correct marking should have been 
``Tread 2 Polyester + 2 Steel+ 2 Polyester''); and 82 FR 17075 (April 
7, 2017) (granting petition submitted by Cooper Tire & Rubber Company 
where tires were marked ``TREAD 1 PLY NYLON + 2 PLY STEEL + 2 PLY 
POLYESTER,'' whereas the correct marking should have been ``TREAD 1 PLY 
NYLON + 2 PLY STEEL + 1 PLY POLYESTER.''
    SRI is not aware of any warranty claims, field reports, customer 
complaints, legal claims, or any incidents or injuries related to the 
subject condition.
    SRI concluded by expressing the belief that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety, 
and that its petition to be exempted from providing notification of the 
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the 
noncompliance, as required by 49 U.S.C. 30120, should be granted.

NHTSA'S Decision

    NHTSA'S Analysis: The agency agrees with SRI that the noncompliance 
is inconsequential to motor vehicle safety. The agency believes that 
one measure of inconsequentiality to motor vehicle safety is that there 
is no effect of the noncompliance on the operational safety of vehicles 
on which these tires are mounted. Another measure of inconsequentiality 
which is relevant to this petition is the safety of people working in 
the tire retread, repair and recycling industries.
    Although tire construction affects the strength and durability of 
tires, neither the agency nor the tire industry provides information 
relating tire strength and durability to the number of plies and types 
of ply cord material in the tread sidewall. Therefore, tire dealers and 
customers should consider the tire construction information along with 
other information such as the load capacity, maximum inflation 
pressure, tread wear, temperature, and traction ratings, to assess 
performance capabilities of various tires. In the agency's judgement, 
the incorrect labeling of the tire construction information will have 
an inconsequential effect on motor vehicle safety because most 
consumers do not base tire purchases or vehicle operation parameters on 
the number of plies in a tire.
    The agency also believes the noncompliance will have no measureable 
effect on the safety of the tire retread, repair, and recycling 
industries. The use of steel cord

[[Page 13004]]

construction in the sidewall and tread is the primary safety concern of 
these industries. In this case, because of the sidewall marking 
indicate that some steel plies exist in the tire sidewall, this 
potential safety concern does not exist.
    NHTSA'S Decision: In consideration of the foregoing, NHTSA finds 
that SRI has met its burden of persuasion that the subject FMVSS No. 
119 noncompliance in the affected tires is inconsequential to motor 
vehicle safety. Accordingly, SRI's petition is hereby granted and SRI 
is consequently exempted from the obligation of providing notification 
of, and a free remedy for, that noncompliance under 49 U.S.C. 30118 and 
30120.
    NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 
30120(h)) that permit manufacturers to file petitions for a 
determination of inconsequentiality allow NHTSA to exempt manufacturers 
only from the duties found in sections 30118 and 30120, respectively, 
to notify owners, purchasers, and dealers of a defect or noncompliance 
and to remedy the defect or noncompliance. Therefore, this decision 
only applies to the subject tires that SRI no longer controlled at the 
time it determined that the noncompliance existed. However, the 
granting of this petition does not relieve equipment distributors and 
dealers of the prohibitions on the sale, offer for sale, or 
introduction or delivery for introduction into interstate commerce of 
the noncompliant tires under their control after SRI notified them that 
the subject noncompliance existed.

    Authority: 49 U.S.C. 30118, 30120: Delegations of authority at 
49 CFR 1.95 and 501.8

Claudia Covell,
Acting Director, Office of Vehicle Safety Compliance.
[FR Doc. 2018-05983 Filed 3-23-18; 8:45 am]
 BILLING CODE 4910-59-P


