[Federal Register Volume 86, Number 163 (Thursday, August 26, 2021)]
[Notices]
[Pages 47726-47729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18354]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2018-0077; Notice 2]


Cooper Tire & Rubber Company, Denial of Petition for Decision of 
Inconsequential Noncompliance

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

ACTION: Notice of petition denial.

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SUMMARY: Cooper Tire & Rubber Company (Cooper Tire) has determined that 
certain Cooper brand tires do not fully comply with Federal Motor 
Vehicle Safety Standard (FMVSS) No. 139, New Pneumatic Radial Tires for 
Light Vehicles. Cooper Tire filed a noncompliance report dated May 4, 
2018, and subsequently petitioned NHTSA on May 21, 2018, for a decision 
that the subject noncompliance is inconsequential as it relates to 
motor vehicle safety. This document announces the denial of Cooper 
Tire's petition.

FOR FURTHER INFORMATION CONTACT: Abraham Diaz, Office of Vehicle Safety 
Compliance, NHTSA, telephone (202) 366-5310, facsimile (202) 366-3081.

SUPPLEMENTARY INFORMATION:

I. Overview

    Cooper Tire has determined that certain Cooper brand tires do not 
fully comply with paragraph S5.5.1 of FMVSS No. 139, New Pneumatic 
Radial Tires for Light Vehicles (49 CFR part 571.139). Cooper Tire 
filed a noncompliance report dated May 4, 2018, pursuant to 49 CFR part 
573, Defect and Noncompliance Responsibility and Reports, and 
subsequently petitioned NHTSA on May 21, 2018, 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, pursuant to 49 U.S.C. 30118(d) and 49 CFR part 
556, Exemption for Inconsequential Defect or Noncompliance.
    Notice of receipt of Cooper Tire's petition was published with a 
30-day public comment period, on December 6, 2018, in the Federal 
Register (83 FR 62949). No comments were received. To view the petition 
and all supporting documents, log onto the Federal Docket Management 
System (FDMS) website at https://www.regulations.gov/. Then follow the 
online search instructions to locate docket number ``NHTSA-2018-0077.''

II. Tires Involved

    Approximately 327 Evolution H/T size 245/70R16 tubeless radial 
tires, manufactured between June 4, 2017, and June 10, 2017, are 
potentially involved.

III. Noncompliance

    Cooper Tire explains that the noncompliance is that the subject 
tires were molded with an incorrectly ordered serial week and year on 
the outboard sidewall. This date is required by paragraph S5.5.1(b) of 
FMVSS No. 139. Specifically, the subject tires were manufactured with 
serial week ``1723'' when they should have been manufactured with 
serial week ``2317.''

IV. Rule Requirements

    Paragraph S5.5.1(b) of FMVSS No. 139, includes the requirements 
relevant to this petition:
     For tires manufactured on or after September 1, 2009, each 
tire must be

[[Page 47727]]

labeled with the tire identification number required by 49 CFR part 574 
on the intended outboard sidewall of the tire.
     Except for retreaded tires, if a tire does not have an 
intended outboard sidewall, the tire must be labeled with the tire 
identification number required by 49 CFR part 574 on one sidewall and 
with either the tire identification number or a partial tire 
identification number, containing all characters in the tire 
identification number except for the date code and, at the discretion 
of the manufacturer, any optional code, on the other sidewall.

V. Summary of Petition

    Cooper Tire described the subject noncompliance and contended that 
the noncompliance is inconsequential as it relates to motor vehicle 
safety.
    In support of its petition, Cooper Tire submitted the following:
    1. While the 327 tires in the subject population contain an 
incorrectly ordered week and year for the fourth grouping of Tire 
Identification Number's (TIN), they are in all other respects properly 
labeled and meet all performance requirements under the FMVSSs. The 
serial week of manufacture has no bearing on the performance or 
operation of a tire and does not create a safety concern to either the 
operator of the vehicle on which the tires are mounted, or the safety 
of personnel in the tire repair, retread, and recycling industry.
    2. Tire registration and traceability will not be interrupted. 
Cooper Tire's internally controlled online registration system has been 
modified to be able to accept the incorrectly ordered 1723 date code. 
Any tires registered with that date code and TIN will be identified 
properly as having been manufactured in the 23rd week of 2017. This 
will ensure that Cooper Tire is able to identify these tires in the 
event they must be recalled. If a recall is necessary, Cooper Tire will 
explain the date issue in any recall notice.
    3. Cooper Tire can also confirm that it will not use the same full 
TIN in year 2023. Cooper Tire uses the third grouping of numbers within 
the TIN to identify the SKU or make of the tire, as is permitted at the 
option of the manufacturer under the regulations. See 49 CFR 
574.5(g)(3). In this case, lJ9 is the third grouping, which indicates 
that this tire is a Cooper Evolution H/T. While Cooper Tire has not yet 
set its year 2023 production schedule, if Cooper Evolution H/T tires 
are made in year 2023, Cooper Tire will assign another unique 
identifier so that the tires made in year 2017 will be distinguishable 
from the tires made in year 2023. This will eliminate the potential for 
SKUs produced in year 2017 to be confused with those produced in year 
2023 and will allow for Cooper Tire to readily identify the 327 tires 
that are the subject of this petition. However, this will not be 
obvious to any consumer. Therefore, there is a risk a consumer could 
buy an aged tire assuming it is a new tire.
    4. NHTSA has granted a number of previous inconsequentiality 
petitions relating to mislabeled TINs, provided that the mislabeling 
does not affect the manufacturer's ability to identify the tires. ``The 
purpose of the date code is to identify a tire so that, if necessary, 
the appropriate action can be taken in the interest of public safety 
such as a safety recall notice.'' See Bridgestone/Firestone, Inc.; 
Grant of Application, 64 FR 29080 (May 28, 1999); and Cooper Tire & 
Rubber Company, Grant of Application, 68 FR 16115 (April 2, 2003). 
Accordingly, NHTSA has explained in multiple instances that ``[t]he 
agency believes that the true measure of inconsequentiality to motor 
vehicle safety, in this case, is the effect of the noncompliance on the 
ability of the tire manufacturer to identify the tires in the event of 
a recall.'' Bridgestone/Firestone, Inc., Grant of Application, 66 FR 
45076 (August 27, 2001). As a result, NHTSA has granted petitions and 
found that TIN noncompliance is inconsequential to safety in cases 
where the TIN is out of sequence or mislabeled, including where the 
week and/or year of manufacture is mislabeled and even where the date 
code is missing altogether. See, e.g., Bridgestone Firestone North 
America Tire, LLC, Grant of Petition, 71 FR 4396 (January 26, 2006) 
(granting petition where date code was missing because manufacturer 
could still identify and recall the tires); Cooper Tire & Rubber 
Company, Grant of Application, 68 FR 16115 (April 2, 2003) (granting 
petition where tires were labeled with wrong plant code, because ``the 
tires have a unique DOT identification''); Bridgestone/Firestone, Inc., 
Grant of Application, 66 FR 45076 (Aug. 27, 2001) (granting petition 
where the date code was labeled incorrectly, because ``the information 
included on the tire identification label and the manufacturer's tire 
production records is sufficient to ensure that these tires can be 
identified in the event of a recall''); Bridgestone/Firestone, Inc.; 
Grant of Application, 64 FR 29080 (May 28, 1999) (granting petition 
where the wrong year was marked in the date code on the tires); Cooper 
Tire & Rubber Company; Grant of Application, 63 FR 29059 (May 27, 1998) 
(granting petition where the date code was missing where tires had a 
unique TIN for recall purposes); Bridgestone/Firestone, Inc.; Grant of 
Application, 60 FR 57617 (November 16, 1995) (granting petition where 
the date code was out of sequence); Uniroyal Goodrich Tire Company; 
Grant of Petition, 59 FR 64232 (December 13, 1994) (granting petition 
where week and year were mislabeled on tires). As with other cases in 
which NHTSA has granted petitions for a determination of 
inconsequential noncompliance, Cooper Tire will be able to identify the 
tires that are the subject of this petition in the event of a recall. 
As described above, these tires will have a unique DOT identifier that 
will allow for Cooper Tire to identify and recall them in the event 
that any issues arise in the future.
    5. Cooper Tire has taken steps over the last two years to add 
additional checks in its processes to prevent TIN errors. For example, 
Cooper Tire has implemented software that allows for a specific plant 
to choose only its plant code from a drop-down menu when engraving that 
portion of the TIN. Date codes are updated on a weekly basis and often 
produced in advance of the serial week. The serial week and year are 
manually entered into the system and then engraved on a plug for use. 
Cooper Tire is working to prevent future issues and evaluating the 
possibility of additional technology which will restrict the selection 
of date codes to a contained period of time. Cooper Tire is also 
reviewing its inspection processes to ensure that errors of this sort 
are identified earlier in the process.
    Cooper Tire concluded that the subject noncompliance is 
inconsequential as it relates to motor vehicle safety and that its 
petition to be exempted from providing notification and a remedy for 
the noncompliance, as required by 49 U.S.C. 30118-20, should be 
granted. Lastly, Cooper Tire informed the Agency that there are no 
warranty adjustments, personal injury claims, or property damage claims 
related to the subject noncompliance.

VI. NHTSA's Analysis

    An important issue to consider in determining inconsequentiality is 
the safety risk to individuals who experience the type of event against 
which the recall would otherwise protect. In general, NHTSA does not 
consider the absence of complaints or injuries to show that the issue 
is inconsequential to safety. ``Most importantly, the absence of a 
complaint does not mean there have not been any

[[Page 47728]]

safety issues, nor does it mean that there will not be safety issues in 
the future.'' ``[T]he fact that in past reported cases good luck and 
swift reaction have prevented many serious injuries does not mean that 
good luck will continue to work.''
    Arguments that only a small number of vehicles or items of motor 
vehicle equipment are affected have also not justified granting an 
inconsequentiality petition. Similarly, NHTSA has rejected petitions 
based on the assertion that only a small percentage of vehicles or 
items of equipment are likely to actually exhibit a noncompliance. The 
percentage of potential occupants that could be adversely affected by a 
noncompliance does not determine the question of inconsequentiality. 
Rather, the issue to consider is the consequence to an occupant who is 
exposed to the consequence of that noncompliance.
    NHTSA has reviewed Cooper Tire's statements on which it bases its 
belief that the noncompliance is inconsequential to motor vehicle 
safety. In this case, the subject tires were molded with an incorrectly 
ordered date code on the outboard sidewall.
    NHTSA's decision considered the following arguments:
    1. Markings--On NHTSA's website, the guidance for replacing a tire 
states the following: ``As tires age, they are more prone to failure. 
Some vehicle and tire manufacturers recommend replacing tires that are 
six to 10 years old regardless of treadwear.'' \1\ In the case of the 
subject tires, the future erroneous date code ``1723'' may mislead a 
consumer about the age of the tire during its usage and lifetime.
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    \1\ https://www.nhtsa.gov/equipment/tires (``Should I replace my 
tires?'').
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    The subject tires labeled with the incorrect date code ``1723'' 
instead of the correct date code ``2317'' may confuse consumers because 
it means the tires were made in the 17th week of year 2023. After the 
17th week of year 2023, consumers may believe the date code is correct. 
An incorrect date code may affect a consumer's behavior, if the 
consumer believes that the tires are new instead of six years old.
    In addition, tire dealers may store tires for multiple years before 
selling them. A customer who purchases tires with this type of labeling 
error may incorrectly believe the tire is not as old as it is and may 
not replace the tire, based on the manufacturer's recommendation for 
replacing tires due to age. For example, Cooper Tire recommends that 
all tires be replaced if 10 or more years has passed since the date of 
manufacture.\2\
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    \2\ See http://us.coopertire.com/safety/replacement-guide/tire-service-life (last accessed May 26, 2021).
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    2. Performance--Cooper Tire stated that the subject tires, in all 
other respects, are properly labeled and meet all performance 
requirements. Cooper Tire also stated that the date code has no bearing 
on the performance or operation of the tires. Cooper Tire further 
argued that the subject noncompliance does not pose a safety concern to 
either the operator, the vehicle on which the tires are mounted, or the 
safety of personnel in the tire repair, retread, and recycling 
industry. NHTSA does not find the arguments persuasive. The fact that a 
new tire meets all other minimum performance requirements fails to 
limit the potential risk from using a tire beyond the manufacturer's 
recommended maximum service life; thus, this labeling issue has 
potential performance implications.
    3. Other petitions--In its petition, Cooper Tire cited a number of 
inconsequentiality petitions relating to TINs that the Agency 
previously granted. The Agency believes the facts of the petitions 
cited are sufficiently different and do not support granting the 
subject petition. The decision notice published at 64 FR 29080 (May 28, 
1999) concerned a tire with an incorrectly labeled date code (one year 
past the actual date of production instead of six years as in the 
subject tires). The consequence of a consumer relying on the incorrect 
date was determined to be inconsequential under those circumstances.
    The decision notice published at 71 FR 4396 (Jan 26, 2006), 
concerned a missing date code. It is distinguished from the subject 
case because it does not point to a future production date, and 
therefore, does not mislead consumers by providing an incorrect date 
six years into the future. In the decision notice published at 60 FR 
57617 (Nov 16, 1995) the date code was correct but misplaced. In the 
Bridgestone/Firestone case, 66 FR 45076 (August 27, 2001), the date 
code related to only one year of future production in the mislabeling. 
In the prior Cooper Tire case, 68 FR 16115 (April 2, 2003), the 
noncompliance was irrelevant as it referred to the mislabeling of the 
plant code and not the date code, which is the concern in the subject 
tires. The other prior Cooper Tire case cited, 63 FR 29059 (May 27, 
1998), is also irrelevant, as it relates to mislabeling of the plant 
code and a missing date code. In that Cooper Tire case, the missing 
date code did not mislead consumers about the age of the tire.
    The Agency considers the Uniroyal Goodrich petition, 59 FR 1994 
(December 13, 1994), relevant to the petition being considered because 
the mislabeling of the date code is similar to the subject Cooper Tire 
noncompliance. However, the Uniroyal Goodrich petition was granted in 
1994. Since then, the Agency's understanding of the negative safety 
consequences of tire aging has evolved. NHTSA now recommends that tires 
be replaced, regardless of their service conditions or useful tread 
life, based on the manufacturer's recommended maximum service life. 
NHTSA finds that such a mislabeling is not inconsequential to safety 
when the mislabeling has the potential to allow a tire to remain in 
service significantly beyond the manufacturer's recommended maximum 
service life by six years.
    4. Other considerations--The Agency recognizes that Cooper Tire has 
taken measures to allow customers to register their tires with an 
incorrectly ordered date code. NHTSA agrees that this will help enable 
Cooper Tire to identify consumers who have purchased and registered the 
affected tires. However, this does not, in NHTSA's view, negate the 
safety risk caused by the incorrect date code as tires may not be 
registered or may change hands subsequent to registration.
    5. Claims--While Cooper Tire noted that there are no claims for 
property damage or crashes reported for the subject tires, this is not 
persuasive as the noncompliance likely only poses risk in the future.

VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA finds that Cooper Tire has 
not met its burden of persuasion of establishing that the subject FMVSS 
No. 139 noncompliance in the affected tires is inconsequential to motor 
vehicle safety. The mislabeled date code present in this case presents 
an obvious risk that the tires may be used or perhaps sold well after 
they have aged to the point where they cannot be safely used. 
Accordingly, Cooper Tire's petition is hereby denied. Cooper Tire is 
obligated to provide notification of, and a free remedy for, the 
noncompliance under 49 U.S.C. 30118 through 30120.


[[Page 47729]]


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

Joseph Kolly,
Acting Associate Administrator for Enforcement.
[FR Doc. 2021-18354 Filed 8-25-21; 8:45 am]
BILLING CODE 4910-59-P


