[Federal Register Volume 72, Number 6 (Wednesday, January 10, 2007)]
[Notices]
[Pages 1262-1264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-114]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2006-25555; Notice 2]


Foreign Tire Sales, Inc., Denial of Petition for Decision of 
Inconsequential Noncompliance

    Foreign Tire Sales, Inc. (FTS) has determined that certain tires 
that it

[[Page 1263]]

imported in 2005 and 2006 do not comply with S6.5(d) of Federal Motor 
Vehicle Safety Standard (FMVSS) No. 119, ``New Pneumatic Tires For 
Vehicles Other Than Passenger Cars.'' FTS has filed an appropriate 
report pursuant to 49 CFR part 573, ``Defect and Noncompliance 
Responsibility and Reports.'' Pursuant to 49 U.S.C. 30118(d) and 
30120(h), FTS also has petitioned for a determination that this 
noncompliance is inconsequential to motor vehicle safety. Notice of 
receipt of the petition was published, with a 30-day comment period, on 
August 8, 2006 in the Federal Register (71 FR 45105). NHTSA received 
two comments on the petition, one from the Rubber Manufacturers 
Association (RMA) and another from Flexi-Van Leasing, Inc. (Flexi-Van). 
To view the petition and all supporting documents and comments 
submitted, go to: http://dms.dot.gov/search/searchFormSimple.cfm and 
enter Docket No. NHTSA-2006-25555.
    Affected are a total of approximately 18,900 Danzig and Direction 
size 10.00-20 bias-ply container chassis tires manufactured by Wendeng 
Sanfeng Tyre Co., Ltd. of Wendeng City, China (Wendeng), and imported 
by FTS between August 2005 and April 2006. Paragraph S6.5(d) of FMVSS 
No. 119 requires that each tire shall be marked on each sidewall with 
``[t]he maximum load rating and corresponding inflation pressure of the 
tire * * *.'' The subject tires are not marked with the maximum load 
rating and corresponding inflation values for single tire use. FTS has 
corrected the problem that caused these errors so that they will not be 
repeated in future production.
    As discussed in its petition, FTS believes that the noncompliance 
is inconsequential to motor vehicle safety and that no corrective 
action is warranted. FTS stated that there is no safety issue relating 
to single-use applications because the tires are clearly labeled ``DUAL 
USE ONLY'' and ``TRAILER SERVICE ONLY,'' and because FTS's ``customers 
understand that said tires are to be used on container chassis only.'' 
FTS supplemented its petition with additional information, which has 
been placed in the docket, including a September 7, 2006 letter from 
the tire manufacturer which states:

    Please be advised that we know of no safety issues involving our 
container chassis tires which are labeled for dual use only. There 
is no change in the construction of the tire whether the tire is 
labeled for dual use only or for single and dual use.

    One public comment the agency received was from Flexi-Van, which is 
a lessor of intermodal container chassis. In carrying out its leasing 
business, Flexi-Van purchases tires of the type that are the subject of 
this petition, including tires imported by FTS. Flexi-Van stated that 
it has purchased over two thousand of the subject tires, which have 
already been installed on Flexi-Van chassis The company commented that 
an in-field chassis inspection of each container chassis it leases 
would be required to identify the noncompliant tires, which the company 
says is a difficult and burdensome proposition. Flexi-Van acknowledged 
that it would not have to bear the cost of this inspection since this 
is the responsibility of the vendor, but nonetheless argued that denial 
of this petition and the subsequent recall ``would result in a 
tremendous administrative and logistical burden to our customers, and 
inconvenience to Flexi-Van as well.'' The commenter further stated 
that, based on its experience in the industry, it is extremely unlikely 
that the subject intermodal tires would be installed in a single-use 
position, such as on the drive or steer axle of a truck tractor. Flexi-
Van explained that, for these reasons, it supports granting FTS's 
petition for decision of inconsequential noncompliance.
    The second public comment was from the Rubber Manufacturers 
Association, and it urged NHTSA to deny the subject petition, stating:

    While Petitioner may not intend its non-compliant tires to be 
used `anywhere other than a container chassis,' there is no 
guarantee that the tires may not eventually be placed in a single 
load application. Indeed, the rationale for requiring the sidewall 
to be marked with maximum load ratings and inflation values for 
single and dual applications under FMVSS 119 is precisely that the 
same tire could be used in either application * * * [T]he issue that 
should be dispositive of this position is whether the tires 
otherwise meet the performance standards of FMVSS 119. There is, 
however, no evidence in the docket that the subject tires meet the 
long-term endurance and strength standards of FMVSS 119 (S6). 
[emphasis in original]

Agency Decision

    NHTSA has carefully reviewed the petition and public comments, and 
the agency has determined that the noncompliance at issue is not 
inconsequential to motor vehicle safety, for the reasons that follow. 
Even though FTS may intend that its 18,900 tires with noncompliant 
markings be used on trailers and for dual use only, and provides 
instructions to that effect, stating that the ``tires set forth * * * 
are for DUAL USE ONLY and TRAILER SERVICE ONLY,'' NHTSA agrees with the 
comments of RMA that, despite manufacturer instructions to the 
contrary, there is no guarantee these tires may not eventually be 
placed on a single-load application, since the tires are capable of 
being mounted and used in that manner.
    Use of one of the subject tires in a single-load application could 
lead to confusion, because the consumer would not be presented with the 
relevant information regarding the load-pressure relationship suitable 
for such application. In turn, this situation could lead to possible 
overloading of the tire, because the operator would be forced to 
attempt to independently calculate the maximum load rating for the tire 
in a single-load application. Specifically, without the required 
marking, the consumer would not know which of the seven permissible 
international tire industry publications or the manufacturer's own data 
submissions were used to calculate a single-load application and 
certify the tire under FMVSS No. 119, S5.1. Given that fleet operators 
have an economic incentive to fully load their vehicles with cargo, the 
agency believes that adverse safety consequences could be associated 
with failure to include the relevant tire markings required under 
Standard No. 119. That is why the standard specifically requires tire 
markings for both single-load and dual-load applications. The standard 
does not provide manufacturers the option of marking tires with a 
statement limiting them to only one application and providing only one 
maximum load rating. FTS's arguments regarding the ability of the tires 
to support vehicle load in a single-load application do not resolve 
this problem.
    FTS supports its petition with information that was received by the 
agency under two cover letters, both available in the docket. The first 
letter, dated September 22, 2006, encloses information from the Chinese 
tire manufacturer, including an ``Endurance Test Report'' dated October 
25, 2005, a ``Plunger Energy Test Report'' dated October 25, 2005, and 
two copies of a letter dated September 7, 2006 and stamped with the 
corporate seal (one in Chinese and other with an English translation). 
The second letter, dated September 29, 2006, encloses further 
information from the foreign tire manufacturer, including an 
``Endurance Test Report'' dated August 10, 2006 and a ``Plunger Energy 
Test Report'' dated August 26, 2006. This information is apparently 
intended to demonstrate that the tires are generally safe, 
notwithstanding the labeling error.

[[Page 1264]]

However, these reports do not demonstrate that the tires meet the 
performance standards of FMVSS No. 119. Moreover, the issue here is not 
whether the tires meet those performance requirements. Rather, the 
question is whether the incorrect marking of the tires may itself have 
safety consequences.
    In addition, we note that Flexi-Van, in its comments, describes how 
it mounts tires onto its trailers and explains the difficulty in 
locating the tires in the field should a recall be required. It also 
asserts its belief that for the approximately 2,000 subject tires it 
purchased, ``it is virtually impossible, in the ordinary course of 
business, that one of the subject intermodal tires would be installed 
on the drive or steer axle of a truck tractor.'' However, Flexi-Van's 
comments pertain to only a small portion of the subject tires and, in 
any event, do not negate the fact that these tires can be mounted and 
used in an unintended application. Accordingly, it is possible that 
some of these tires could be used in a single-load application, so the 
absence of correct markings pertinent to that application may have 
negative safety consequences.
    In consideration of the foregoing, NHTSA has decided that the 
petitioner has not met its burden of persuasion that the noncompliance 
described is inconsequential to motor vehicle safety. Accordingly, 
FTS's petition is hereby denied.

(Authority: 49 U.S.C. 30118, 30120; delegations of authority at CFR 
1.50 and 501.8)

    Issued on: January 4, 2007.
Daniel C. Smith,
Associate Administrator for Enforcement.
[FR Doc. E7-114 Filed 1-9-07; 8:45 am]
BILLING CODE 4910-59-P