Notice2023-02813
Continental Tire the Americas, LLC, Denial of Petition for Decision of Inconsequential Noncompliance
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 10, 2023
Issuing agencies
Transportation DepartmentNational Highway Traffic Safety Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 28 (Friday, February 10, 2023)</title>
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[Federal Register Volume 88, Number 28 (Friday, February 10, 2023)]
[Notices]
[Pages 8988-8989]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. 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:
<bullet> 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.
<bullet> 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
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</html>Indexed from Federal Register on February 10, 2023.
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