[Federal Register Volume 88, Number 28 (Friday, February 10, 2023)]
[Notices]
[Pages 8988-8989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02813]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2021-0042; Notice 2]


Continental Tire the Americas, LLC, Denial of Petition for 
Decision of Inconsequential Noncompliance

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

ACTION: Denial of petition.

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SUMMARY: Continental Tire the Americas, LLC (CTA), has determined that 
certain Altimax RT 43 replacement passenger car tires do not fully 
comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 139, New 
Pneumatic Radial Tires for Light Vehicles. CTA filed a noncompliance 
report dated April 20, 2021, and subsequently petitioned National 
Highway Traffic Safety Administration (NHTSA or the ``Agency'') on May 
13, 2021, for a decision that the subject noncompliance is 
inconsequential as it relates to motor vehicle safety. This notice 
announces the denial of CTA's petition.

FOR FURTHER INFORMATION CONTACT: Jayton Lindley, Office of Vehicle 
Safety Compliance, NHTSA, (325) 655-0547.

SUPPLEMENTARY INFORMATION:

I. Overview

    CTA has determined that certain Altimax RT43 replacement passenger 
car tires do not fully comply with the requirements of paragraph 
S5.5.1(b) of FMVSS No. 139, New Pneumatic Radial Tires for Light 
Vehicles (49 CFR 571.139). CTA filed a noncompliance report dated April 
20, 2021, pursuant to 49 CFR part 573, Defect and Noncompliance 
Responsibility and Reports. CTA subsequently petitioned NHTSA on May 
13, 2021, 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 CTA's petition was published with a 30-day 
public comment period, on June 9, 2022, in the Federal Register (87 FR 
35283). 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-2021-0042.''

II. Tires Involved

    Approximately three (3) Altimax RT43 replacement passenger car 
tires, size 175/65R14 82T, manufactured between March 8, 2020, and 
March 14, 2020, are potentially involved.

III. Noncompliance

    CTA explains that the noncompliance is due to a mold error in which 
the subject tires contain a tire identification number (TIN) that omits 
the 3-digit plant code and the 6-symbol manufacturer's identification 
mark as required by paragraph S5.5.1(b) of FMVSS No. 139 and 49 CFR 
574.5(b). Specifically, CTA should have labeled the subject tires ``DOT 
036 0F934V 1020'' on the outboard sidewall and ``DOT 036 0F934V'' on 
the inboard sidewall, but CTA instead labeled ``DOT 1020'' \1\ on the 
outboard sidewall and ``DOT'' on the inboard sidewall.
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    \1\ Blank spaces in this quoted label are representative of how 
the labeling error appears on CTA's subject tires.
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IV. Rule Requirements

    Paragraph S5.5.1(b) of FMVSS No. 139 includes the following 
requirements, which are relevant to this petition:
     For tires manufactured on or after September 1, 2009, each 
tire must be labeled with the TIN required by 49 CFR part 574 on the 
intended outboard sidewall of the tire.
     If a tire does not have an intended outboard sidewall, the 
tire must be labeled with the TIN required by 49 CFR part 574 on one 
sidewall and with either the TIN or a partial TIN, containing all 
characters in the TIN except for the date code and, at the discretion 
of the manufacturer, any optional code, on the other sidewall.\2\
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    \2\ This specific requirement does not apply to retreaded tires, 
but notably, the subject tires are not retreaded tires.
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V. Summary of CTA's Petition

    The following views and arguments presented in this section, ``V. 
Summary of CTA's Petition,'' are the views and arguments provided by 
CTA in support of its petition. They do not reflect the views of the 
Agency. CTA describes the subject noncompliance and contends that the 
noncompliance is inconsequential as it relates to motor vehicle safety.
    CTA says that in most instances, it ``tests its tires to standards 
which exceed the FMVSS minimums.'' CTA asserts that ``the subject tires 
contain all the necessary sidewall markings to show compliance with 
FMVSS testing'' and that other than the incorrect TIN marking, the 
tires ``meet or exceed'' FMVSS No. 139's performance and labeling 
requirements.
    According to CTA, the serial sidewall of the subject tires displays 
the correct DOT production week and year, and when combined with other 
markings available on the subject tires, the tires can be uniquely 
identified.
    CTA cites the following previous inconsequentiality petitions to 
support its argument:
    a. Michelin North America, Inc., 85 FR 37495 (June 22, 2020).

[[Page 8989]]

    b. Cooper Tire & Rubber Company, 82 FR 52966 (November 15, 2017).
    c. Cooper Tire & Rubber Company, 82 FR 17510 (April 11, 2017).
    CTA states that it is not aware of any tire failures related to 
performance that resulted in an accident, injury, property damage, 
customer complaint, or any field reports associated with the 
mislabeling.
    CTA says that it has quarantined its current inventory of the 
noncompliant tires--leaving three tires remaining in the market.
    CTA concludes 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.

VI. NHTSA's Analysis

    In determining inconsequentiality of a noncompliance, NHTSA focuses 
on the safety risk to individuals who experience the type of event 
against which a recall would otherwise protect.\3\ In general, NHTSA 
does not consider the absence of complaints or injuries when 
determining if a noncompliance is inconsequential to safety. The 
absence of complaints does not mean vehicle occupants have not 
experienced a safety issue, nor does it mean that there will not be 
safety issues in the future.\4\
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    \3\ 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).
    \4\ See Morgan 3 Wheeler Limited; Denial of Petition for 
Decision of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 
12, 2016); see also 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 also do not justify granting an 
inconsequentiality petition.\5\ Similarly, mere assertions that only a 
small percentage of vehicles or items of equipment are likely to 
actually exhibit a noncompliance are unpersuasive. The percentage of 
potential occupants that could be adversely affected by a noncompliance 
is not relevant to whether the noncompliance poses an inconsequential 
risk to safety. Rather, NHTSA focuses on the consequence to an occupant 
who is exposed to the consequence of that noncompliance.\6\ The Safety 
Act is preventive, and manufacturers cannot and should not wait for 
deaths or injuries to occur in their vehicles before they carry out a 
recall.\7\ Indeed, the very purpose of a recall is to protect 
individuals from risk.\8\
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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).
    \7\ See, e.g., United States v. Gen. Motors Corp., 565 F.2d 754, 
759 (D.C. Cir. 1977).
    \8\ Id.
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    NHTSA has evaluated the merits of the petition submitted by CTA and 
is denying CTA's request for relief from notification and remedy.
    The purpose of the TIN is to provide a means by which tire 
manufacturers may notify purchasers of defective or nonconforming 
tires.
    CTA cited three prior petitions in support of their own petition. 
In the Michelin North America, Inc., 85 FR 37495 (June 22, 2020) 
petition the subject tires contained a TIN, however, the symbol ``DOT'' 
was incorrectly placed after the 1st grouping of TIN characters. For 
the Cooper Tire & Rubber Company, 82 FR 52966 (November 15, 2017) and 
Cooper Tire & Rubber Company, 82 FR 17510 (April 11, 2017) petitions 
the manufacturer incorrectly used the wrong characters for the plant 
code portion of the TIN on one sidewall. The Agency does not find the 
petitions CTA cited as relevant to this petition. In each of the 
petitions cited by CTA, the tires contain a full TIN on at least 1 
sidewall of the tire that can be utilized for the purposes of 
identification in the event of a recall. The tires that are the subject 
of this petition do not have a full or partial TIN on either sidewall.
    Furthermore, NHTSA disagrees with CTA's assertion that the date 
code is sufficient to register and uniquely identify a tire. Without a 
TIN, there is no means by which purchasers can register the subject 
tires. In the event of a recall, CTA may be unable to timely notify 
purchasers of a potential safety issue, and consumers and other drivers 
will be at risk. If an original purchaser of a subject tire previously 
sold or will sell their vehicle to a different consumer, it is unlikely 
that CTA will be able to timely notify the subsequent consumer of 
potential safety issues. Additionally, it may not even be possible for 
CTA to determine how to contact a subsequent consumer. For these 
reasons, the Agency is denying this petition for relief from 
notification and remedy.

VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA has decided that CTA has 
not met its burden of persuasion that the subject FMVSS No. 139 
noncompliance is inconsequential to motor vehicle safety. Accordingly, 
CTA's petition is hereby denied and CTA is consequently obligated to 
provide notification of and free remedy for that noncompliance under 49 
U.S.C. 30118 and 30120.

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

Anne L. Collins,
Associate Administrator for Enforcement.
[FR Doc. 2023-02813 Filed 2-9-23; 8:45 am]
BILLING CODE 4910-59-P