[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\1\ See https://www.regulations.gov/comment/NHTSA-2020-0020-0003.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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'').
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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