Hankook Tire America Corporation, Grant of Petition for Decision of Inconsequential Noncompliance |
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Topics: Hankook
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Otto G. Matheke III
National Highway Traffic Safety Administration
2 September 2021
[Federal Register Volume 86, Number 168 (Thursday, September 2, 2021)]
[Notices]
[Pages 49411-49412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18953]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2019-0132; 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 Ventus V2 Concept 2 tires manufactured by Hankook's
indirect subsidiary, Hankook Tire Manufacturing Tennessee, LP, 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 November 19, 2019, and subsequently
petitioned NHTSA on December 5, 2019, for a decision that the subject
noncompliance is inconsequential as it relates to motor vehicle safety.
This notice announces and explains the grant of Hankook's petition.
FOR FURTHER INFORMATION CONTACT: Abraham Diaz, Office of Vehicle Safety
Compliance, the National Highway Traffic Safety Administration (NHTSA),
telephone (202) 366-5310, facsimile (202) 366-3081.
SUPPLEMENTARY INFORMATION:
I. Overview: Hankook has determined that certain Hankook Ventus V2
Concept 2 tires, do not fully comply with paragraph S5.5.1(b) of FMVSS
No. 139, New Pneumatic Radial Tires for Light Vehicles (49 CFR
571.139).
Hankook filed a noncompliance report dated November 19, 2019,
pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility
and Reports, and subsequently petitioned NHTSA on December 5, 2019, 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 April 17, 2020, in the Federal Register (85
FR 21504). 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/, and then follow the
online search instructions to locate docket number ``NHTSA-2019-0132.''
II. Tires Involved: Approximately 467 Hankook Ventus V2 Concept 2
tires, size 235/45R17V XL H457, manufactured between October 7, 2019,
and October 12, 2019, are potentially involved.
III. Noncompliance: Hankook explains that the noncompliance is due
to a mold error in which the subject tires, were marked with the date-
code in the Tire Identification Number (TIN) inverted and; therefore,
they do not meet the requirements of paragraph S5.5.1(b) of FMVSS No.
139. Specifically, the date code was printed upside down.
IV. Rule Requirements: Paragraph S5.5.1(b) of FMVSS No. 139
includes the requirements relevant to the petition. Each tire must be
labeled with the TIN required by 49 CFR part 574.5 on the intended
outboard sidewall of the tire. Except for retreaded tires, if a tire
does not have an intended outboard sidewall, the tire must be labeled
with the TIN required by 49 CFR part 574.5 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. Each tire must be marked on
each sidewall with the TIN required by 49 CFR part 574.5 as listed in
the documents and publications specified in paragraph (b) TIN content
requirement.
V. Summary of Hankook's 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 purpose of the labeling requirements in Part 574 is to
``facilitate notification to purchasers of defective or nonconforming
tires.'' See Part 574.2. The date code portion of the TIN is required
so that purchasers can identify the week and year of the tire's
manufacture in the event the tire is subject to a safety recall.
2. The date-code characters reflect the correct week and year of
the tires' manufacture, but the date code is technically out of
compliance because the characters are inverted. Despite the inversion,
the date code meets the character height requirements of Part 574 and
is readily identifiable, permitting tire owners to easily determine the
week and year of manufacture.
3. NHTSA has previously granted a petition for inconsequential
noncompliance for a similar issue. In granting a petition from Cooper
Tire & Rubber Company, 81 FR 43708 (July 5, 2016), the Agency
explained:
The Agency believes that in the case of a tire labeling
noncompliance, one measure of its inconsequentiality to motor vehicle
safety is whether the mislabeling would affect the manufacturer's or
consumer's ability to identify the mislabeled tires properly, should
the tires be recalled for performance-related noncompliance. In this
case, the nature of the labeling error does not prevent the correct
identification of the affected tires. 49 CFR 574.5 requires the date
code portion of the tire identification number to be placed in the last
or correct position. In Cooper's case, it is in the right-most
position, however, the manufacture date code is upside down.
[[Page 49412]]
Because the label is located on the tire sidewall, it is not likely to
be misidentified. A reader will be able to read the date code, by
spinning the tire, and therefore inverting the date code will allow it
to easily be read.
The petitioner argues that, as with the Cooper tires, the date code
on the subject tires is located on the sidewall, is not likely to be
misidentified, and a reader will be able to read and understand the
date code. Hankook communicated in an email to the agency on November
19, 2020, that a partial TIN is labeled on at least one sidewall of the
tire. The subject tires otherwise meet the marking and performance
requirements of FMVSS No. 139.
4. Hankook is not aware of any complaints, claims, or incidents
related to the subject noncompliance.
Hankook 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 evaluating this tire labeling
noncompliance issue, NHTSA considered if the incorrectly marked date
code could mislead a consumer about the actual age of the tire or make
it difficult to correctly determine if the tire has been recalled. The
burden of establishing the inconsequentiality of a failure to comply
with a performance requirement in a standard--as opposed to a labeling
requirement with no performance implications--is more substantial and
difficult to meet. Accordingly, the Agency has not found many such
performance-related noncompliances inconsequential.\1\ Potential
performance failures of safety-critical equipment, like seat belts or
air bags, are rarely deemed inconsequential.
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\1\ Cf. Gen. Motors Corporation; Ruling on Petition for
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899
(Apr. 14, 2004) (citing prior cases where noncompliance was expected
to be imperceptible, or nearly so, to vehicle occupants or
approaching drivers).
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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\ These
considerations are also relevant when considering whether a defect is
inconsequential to motor vehicle safety.
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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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In the instant case, the date code required by FMVSS No. 139 is
properly located in the right-most position and shows the correct week
and year of manufacture but has been imprinted upside-down, and the
upside-down font cannot be confused with right-side up font. If a
consumer reads the label as it is, the fact that the date code is
inverted would become self-evident. In such a case, it would not be
difficult to rotate the tire to a position where the code could be read
and deciphered. The tire's age would then be available as needed and
the tire could also be identified if recalled.
VII. 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 is inconsequential as it relates to motor
vehicle safety. Accordingly, Hankook's petition is hereby granted, and
Hankook is exempted from the obligation of providing notification of,
and a remedy for, the 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 tire 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. 2021-18953 Filed 9-1-21; 8:45 am]
BILLING CODE 4910-59-P