[Federal Register Volume 87, Number 14 (Friday, January 21, 2022)]
[Notices]
[Pages 3378-3380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01133]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2020-0020; Notice 2]


Hankook Tire America Corporation, 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: Hankook Tire America Corporation (Hankook) has determined that 
certain Hankook Dynapro MT2 tires, do not fully comply with Federal 
Motor Vehicle Safety Standard (FMVSS) No. 139, New Pneumatic Radial 
Tires for Light Vehicles. Hankook filed a noncompliance report dated 
February 19, 2020, and subsequently petitioned NHTSA on March 11, 2020, 
for a decision that the subject noncompliance is inconsequential as it 
relates to motor vehicle safety. This notice announces the grant of 
Hankook's petition.

FOR FURTHER INFORMATION CONTACT: Jayton Lindley, Office of Vehicle 
Safety Compliance, the National Highway Traffic Safety Administration 
(NHTSA), (325) 655-0547, [email protected].

SUPPLEMENTARY INFORMATION:

I. Overview

    Hankook has determined that certain Hankook Dynapro MT2 tires, do 
not fully comply with paragraph S5.5(f) of FMVSS No. 139, New pneumatic 
radial tires for light vehicles (49 CFR 571.139).
    Hankook filed a noncompliance report dated February 19, 2020, 
pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility 
and Reports, and subsequently petitioned NHTSA on March 11, 2020, 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 
30120(h) and 49 CFR part 556, Exemption for Inconsequential Defect or 
Noncompliance.
    Notice of receipt of Hankook's petition was published with a 30-day 
public comment period, on August 28, 2020, in the Federal Register (85 
FR 53436). One comment was 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-2020-0020.''

II. Tires Involved

    Approximately 175 Hankook Dynapro MT2 tires, size LT215/85R16, 
manufactured between October 20, 2019, and November 30, 2019, are 
potentially involved.

III. Noncompliance

    Hankook explains that the noncompliance is that the subject tires 
were marked with the incorrect number of nylon plies in the tread; and, 
therefore, do not meet the requirements of paragraph S5.5(f) of FMVSS 
No. 139. Specifically, the tires were marked ``TREAD 2 STEEL + 2 
POLYESTER + 1 NYLON; SIDEWALL 2 POLYESTER'', when they should have been 
marked ``TREAD 2 STEEL + 2 POLYESTER + 2 NYLON; SIDEWALL 2 POLYESTER.''

IV. Rule Requirements

    Paragraph S5.5(f) of FMVSS No. 139, includes the requirements 
relevant to this petition. Each tire must be marked on one sidewall 
with the actual number of plies in the sidewall and the actual number 
of plies in the tread area, if different, as specified in paragraph 
S5.5(f).

V. Summary of Hankook's Petition

    The following views and arguments presented in this section, ``V. 
Summary of Hankook's Petition,'' are the views and arguments provided 
by Hankook and do not reflect the views of the Agency. In its petition, 
Hankook describes the subject noncompliance and contends that the 
noncompliance is inconsequential as it relates to motor vehicle safety.
    In support of its petition, Hankook offers the following reasoning:
    1. The incorrect ply labeling information does not affect the 
operational safety of vehicles on which the tires are mounted.
    2. The tires meet or exceed the performance requirements of FMVSS 
No. 139, and they otherwise comply with the labeling and performance 
requirements of FMVSS No. 139.
    3. Hankook is not aware of any warranty claims, field reports, 
customer complaints, or any incidents, accidents, or injuries related 
to the subject condition.
    4. Hankook cites the Transportation Recall, Enhancement, 
Accountability and Documentation (TREAD) Act (Pub. L. 106-414) and 
several of NHTSA's past grant notices of petitions for decisions of 
inconsequential noncompliance concerning the mislabeling of ply 
information and contend those are similar to the subject petition. 
Hankook states that NHTSA has routinely concluded the number of

[[Page 3379]]

plies is inconsequential to vehicle safety. Hankook believes the same 
reasoning applies to the subject tires and that mislabeling the number 
of nylon plies does not affect the operational safety of the vehicles. 
Further, Hankook states, the subject tires correctly label the number 
of steel plies, alleviating the safety concern for the tire retread, 
repair, and recycling industries.''
    Hankook argues 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.
    Hankook's complete petition and all supporting documents are 
available by logging onto the Federal Docket Management System (FDMS) 
website at: https://www.regulations.gov and by following the online 
search instructions to locate the docket number as listed in the title 
of this notice.

VI. Public Comment

    NHTSA received one comment from the general public regarding 
Hankook's petition from Mr. Bruce Grim.\1\ Mr. Grim stated that 
although mislabeling a tire sidewall may seem inconsequential, for some 
in the industry it is still an important aspect of safety for 
consumers. He suggested that the public is not sufficiently notified at 
the point of sale of the potential perils or hazards due to the subject 
noncompliance. Mr. Grim also states that in the event of a recall, it 
is important that retailers and consumers can identify the subject 
tires.
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    \1\ See https://www.regulations.gov/comment/NHTSA-2020-0020-0003.
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VII. NHTSA's Analysis

A. General Principles

    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.\2\ 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 safety issues, nor does 
it mean that there will not be safety issues in the future.'' \3\ 
``[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.'' \4\
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    \2\ See Gen. Motors, LLC; Grant of Petition for Decision of 
Inconsequential Noncompliance, 78 FR 35355 (June 12, 2013) (finding 
noncompliance had no effect on occupant safety because it had no 
effect on the proper operation of the occupant classification system 
and the correct deployment of an air bag); Osram Sylvania Prods. 
Inc.; Grant of Petition for Decision of Inconsequential 
Noncompliance, 78 FR 46000 (July 30, 2013) (finding occupant using 
noncompliant light source would not be exposed to significantly 
greater risk than occupant using similar compliant light source).
    \3\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of 
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
    \4\ United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C. 
Cir. 1977) (finding defect poses an unreasonable risk when it 
``results in hazards as potentially dangerous as sudden engine fire, 
and where there is no dispute that at least some such hazards, in 
this case fires, can definitely be expected to occur in the 
future'').
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    Arguments that only a small number of vehicles or items of motor 
vehicle equipment are affected have also not justified granting an 
inconsequentiality petition.\5\ 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.\6\
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    \5\ See Mercedes-Benz, U.S.A., L.L.C.; Denial of Application for 
Decision of Inconsequential Noncompliance, 66 FR 38342 (July 23, 
2001) (rejecting argument that noncompliance was inconsequential 
because of the small number of vehicles affected); Aston Martin 
Lagonda Ltd.; Denial of Petition for Decision of Inconsequential 
Noncompliance, 81 FR 41370 (June 24, 2016) (noting that situations 
involving individuals trapped in motor vehicles--while infrequent--
are consequential to safety); Morgan 3 Wheeler Ltd.; Denial of 
Petition for Decision of Inconsequential Noncompliance, 81 FR 21663, 
21664 (Apr. 12, 2016) (rejecting argument that petition should be 
granted because the vehicle was produced in very low numbers and 
likely to be operated on a limited basis).
    \6\ See Gen. Motors Corp.; Ruling on Petition for Determination 
of Inconsequential Noncompliance, 69 FR 19897, 19900 (Apr. 14, 
2004); Cosco Inc.; Denial of Application for Decision of 
Inconsequential Noncompliance, 64 FR 29408, 29409 (June 1, 1999).
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B. NHTSA's Response to Hankook's Petition

    NHTSA has evaluated the merits of the inconsequential noncompliance 
petition submitted by the petitioner and agrees that, based on the 
facts presented, this specific noncompliance of the subject tires is 
inconsequential to motor vehicle safety. The Agency considered the 
following prior to making this determination:
    1. Operational Safety & Performance: NHTSA agrees that in this 
case, the incorrect number of nylon plies labeled on the tire has no 
effect on the operational safety of vehicles when the affected tires 
meet the other performance and labeling requirements of the applicable 
FMVSS.
    2. Tire Identification and Traceability: The tires have the 
required information per 49 CFR 574.5 to ensure that the tires may be 
properly registered for the purposes of a safety recall. The entire 
TIN, including the plant code and manufacturing date is both legible 
and easily discernible.
    3. Downstream Operations: The Agency must also consider other 
stakeholders, in addition to the manufacturer and end-user. Downstream 
entities involved in tire repair, retreading, and recycling operations 
require certain information to determine if tires may be safely used in 
their operations. The existence of steel in a tire's sidewall and tread 
can be relevant to the manner in which it should be repaired or 
retreaded. The use of steel cord construction in the sidewall and tread 
is the primary safety concern of these industries. The Agency believes 
the noncompliance of the subject tires will have no measurable effect 
on the safety of the tire retread, repair, and recycling industries 
since the tire sidewalls are marked correctly for the number of steel 
plies.
    4. Consumer Feedback and Focus Groups: The Agency has concluded, 
based on previous feedback, that the tire construction information, 
specifically the number of plies and cord material in the sidewall and 
tread plies, influences very few consumers when they are deciding to 
buy a motor vehicle or replacement tires. This conclusion is based on 
information gathered from the Advance Notice of Proposed Rulemaking 
(ANPRM) that was published in the Federal Register on December 1, 2000, 
(65 FR 75222).
    5. Public Comments: In response to Mr. Grim's comments, the Agency 
agrees that the safety of the end-users is a priority and has taken 
that into consideration when analyzing this petition. Furthermore, the 
Agency agrees that the user's ability to identify a tire in the event 
of a recall is important and finds nothing in the facts of this 
petition that would impede tire identification of the subject tires in 
the event of a recall.
    In summary, the Agency believes that the specific incorrect 
labeling of the tire construction information present in this instance 
will have an inconsequential effect on motor vehicle safety or any 
related downstream tire repair, retread, or recycling operations.

[[Page 3380]]

VIII. NHTSA's Decision

    In consideration of the foregoing, NHTSA finds that Hankook has met 
its burden of persuasion that the subject FMVSS No. 139 noncompliance 
in the affected tires is inconsequential to motor vehicle safety. 
Accordingly, Hankook's petition is hereby granted and Hankook 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 Hankook 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 Hankook 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)

Otto G. Matheke, III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2022-01133 Filed 1-20-22; 8:45 am]
BILLING CODE 4910-59-P


