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Sumitomo Rubber Industries, Ltd., and Sumitomo Rubber North America, Inc., Denial of Petition for Decision of Inconsequential Noncompliance Publication: Federal Register Agency: National Highway Traffic Safety Administration Byline: Anne L. Collins Date: 18 April 2022 Subjects: American Government  , Safety, Trucking
Topics: Falken, Sumitomo |
[Federal Register Volume 87, Number 74 (Monday, April 18, 2022)]
[Notices]
[Pages 23020-23023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08227]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2020-0117; Notice 2]
Sumitomo Rubber Industries, Ltd., and Sumitomo Rubber North
America, Inc., 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: Sumitomo Rubber Industries, Ltd. and Sumitomo Rubber North
America, Inc. (collectively, ``Sumitomo'') have determined that certain
Sumitomo and Falken truck tires do not fully comply with Federal Motor
Vehicle Safety Standard (FMVSS) No. 119, New Pneumatic Tires for Motor
Vehicles with a GVWR of More Than 4,536 Kilograms (10,000 Pounds) and
Motorcycles. Sumitomo filed a noncompliance report dated November 12,
2020. Sumitomo subsequently petitioned NHTSA on December 4, 2020, and
later amended its petition on April 8, 2021, and July 9, 2021, for a
decision that the subject noncompliance is inconsequential as it
relates to motor vehicle safety. This notice announces the denial of
Sumitomo's petition.
FOR FURTHER INFORMATION CONTACT: Jayton Lindley, General Engineer,
NHTSA, Office of Vehicle Safety Compliance, (325) 655-0547.
SUPPLEMENTARY INFORMATION:
I. Overview
Sumitomo has determined that certain Sumitomo and Falken truck
tires do not fully comply with the requirements of paragraph S6.1.2(a)
of FMVSS No. 119, New Pneumatic Tires for Motor Vehicles with a GVWR of
More Than 4,536 Kilograms (10,000 Pounds) and Motorcycles (49 CFR
571.119). Sumitomo filed a noncompliance report dated November 12,
2020, pursuant to 49 CFR part 573, Defect and Noncompliance
Responsibility and Reports. Sumitomo subsequently petitioned NHTSA on
December 4, 2020, and later amended its petition on April 8, 2021, and
July 9, 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 Sumitomo's petition was published with a 30-
day public comment period, on October 12, 2021, in the Federal Register
(86 FR 56750). 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-2020-0117.''
II. Tires Involved
Approximately 8,275 of the following Sumitomo and Falken truck and
bus radial tires, manufactured between January 26, 2020, and June 2,
2020, are potentially involved:
[[Page 23021]]
Sumitomo ST900 11R24.5 16PR
Sumitomo ST528 11R24.5 16PR
Sumitomo ST528 11R22.5 16PR
Sumitomo ST710SE 11R22.5 144/142L
Sumitomo ST710SE 285/75R24.5 144/141L
Sumitomo ST710SE 11R24.5 146/143L
Sumitomo ST788+SE 285/75R24.5 144/141L
Sumitomo ST709SE 285/75R24.5 144/141L
Sumitomo ST709SE 11R24.5 149/146L
Sumitomo ST778+SE 11R24.5 149/146L
Sumitomo ST788SE 285/75R24.5 147/144L
Sumitomo ST948SE 11R24.5 149/146L
Sumitomo ST908N 11R22.5 146/144L
Sumitomo ST788SE 11R22.5 146/143L
Sumitomo ST788SE 11R24.5 149/146L
Sumitomo ST719SE 11R22.5 146/142L
Sumitomo ST719SE 11R24.5 149/146L
Sumitomo ST719SE 285/75R24.5 147/144L
Sumitomo ST948SE 285/75R24.5 144/141L
Sumitomo ST938 11R24.5 149/146L
Falken RI130EC 11R22.5 146/143L
Falken RI130EC 11R24.5 149/146L
Falken GI388 11R24.5 149/146K
Falken RI150EC 11R22.5 146/143L
Falken RI130EC 285/75R24.5 147/144L
Falken RI151S 315/80R22.5 156/150L
III. Noncompliance
Sumitomo explains that the noncompliance is that the subject tires
may show visual evidence of bead separation near the edge of the rim
flange when tested in accordance with paragraph S7.2 of FMVSS No. 119,
and therefore, do not fully meet the requirements specified in
paragraph S6.1.2(a) of FMVSS No. 119. Specifically, the bead separation
is due to the heat-induced expansion caused by the misplacement of the
joint tape and a change in the tape's composition.
IV. Rule Requirements
Paragraph S6.1.2(a) of FMVSS No. 119 includes the requirements
relevant to this petition. When tested in accordance with the
procedures of S7.2, a tire shall exhibit no visual evidence of tread,
sidewall, ply, cord, innerliner, or bead separation, chunking, broken
cords, cracking, or open splices.
V. Summary of Sumitomo's Petition
The following views and arguments presented in this section, ``V.
Summary of Sumitomo's Petition,'' are the views and arguments provided
by Sumitomo and do not reflect the views of the Agency. Sumitomo
describes the subject noncompliance and contends that the noncompliance
is inconsequential as it relates to motor vehicle safety.
In support of its petition, Sumitomo begins by citing several
decisions NHTSA has published regarding its considerations in
evaluating inconsequential noncompliance petitions. Sumitomo quotes
NHTSA as saying that ``the issue to consider is the consequence to an
occupant who is exposed to the consequence of that noncompliance'' \1\
and that NHTSA also considers the ``specific facts before it in a
particular petition'' \2\ and ``whether an occupant who is affected by
the noncompliance is likely to be exposed to a significantly greater
risk than an occupant in a compliant vehicle [emphasis added by
Sumitomo].'' \3\
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\1\ See General Motors, LLC, Denial of Petition for Decision of
Inconsequential Noncompliance, 85 FR 71713 (Nov. 10, 2020); see also
General Motors Corp.; Ruling on Petition for Determination of
Inconsequential Noncompliance, 69 FR 19897 (Apr. 14, 2004).
\2\ See BMW of North America, LLC; Jaguar Land Rover North
America, LLC; and Autoliv, Inc.; Decisions of Petitions for
Inconsequential Noncompliance, 84 FR 19994 (May 7, 2019) (citing
General Motors, LLC., Grant of Petition for Decision of
Inconsequential Noncompliance, 81 FR 92963 (Dec. 20, 2016)).
\3\ See Cosco Inc.; Denial of Application of Inconsequential
Noncompliance, 64 FR 29408 (Jun. 1, 1999).
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Sumitomo continues by explaining the definition of ``bead
separation'' \4\ and describing the history of FMVSS No. 119 S6.1.2 and
the visual inspection criteria. Sumitomo states that the criteria NHTSA
uses were based on Society of Automotive Engineers (SAE) recommended
practices \5\ and in an amendment \6\ to FMVSS No. 109, NHTSA clarified
that it considers visual evidence of tread, sidewall, ply, cord,
innerliner, or bead separation, chunking, broken cords, cracking or
open splices ``to be evidence of structural weakness which may cause
tire failure.'' \7\ According to Sumitomo, NHTSA ``did not present any
further explanation or evidence to support the notion that these
characteristics, standing alone, are evidence of structural weakness
that could lead to a tire failure'' and that the evidence does not
alone prove that the tire has ``a structural weakness that will cause
it to fail'' or be consequential to motor vehicle safety.
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\4\ See Initial Final Rule for FMVSS No. 109, 32 FR 15792 (Nov.
16, 1967).
\5\ See SAE Recommended Practice J918b, ``Passenger Car Tire
Performance Requirements and Test Procedures,'' December 1966. 32 FR
10812 (Jul. 22, 1967) (the 1967 Amended NPRM for FMVSS No. 109).
\6\ See 37 FR 19381 (Sep. 20, 1972) (1972 NPRM Amending FMVSS
No. 109).
\7\ Id.
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Sumitomo then asserts that the structural integrity of the subject
tires is unaffected by the deformation. Sumitomo specifies that the
misplaced joint tape and ``a change in the tape's composition'' altered
the adhesiveness of the rubber which results in the subject
noncompliance. Therefore, Sumitomo claims that since ``joint tape is
not a structural component of the tire'' the subject noncompliance does
not indicate ``structural weakness'' nor does it impact ``the integrity
of the adjacent components.
Sumitomo then outlines the manufacturing of the subject tires,
explaining that the joint tape is an adhesive that joins the inner
liner ends and then the other components are added and the tire
``undergoes vulcanization (applying heat and pressure for a set period)
to fully adhere the components and complete the tire forming process.''
Sumitomo explains that the ``lack of adhesion between the joint tape
and components'' can cause the ``percentage of butyl rubber content''
to be increased in the bead area which can result in the material
becoming more vulnerable to heat expansion. This condition, combined
with the lack of adhesion in the joint tape, could lead to the small
area becoming more ``susceptible to separations.'' According to
Sumitomo, although this condition exists ``[t]he steel filler cords
next to this area contain the deformation and prevents it from
propagating.'' Sumitomo provides photographs and illustrations in its
petition to show that ``the deformation occurs outside the structural
components of the tire.''
To further support its claims, Sumitomo submits data from several
endurance tests, the details of which can be found in Sumitomo's
petition and the supplements to its petition.\8\ Sumitomo states that
these tests resulted in the tires developing the subject noncompliance
``as expected'' and that when tested under the most ``extreme''
circumstances the subject tires ``developed a surface crack'' in the
same area. Sumitomo claims that ``even in these unrealistically severe
conditions, the tire did not develop air leaks or otherwise
structurally fail,'' leading Sumitomo to conclude that the ``testing
demonstrates that the deformations that may form due to the misplaced
joint tape are not indicative of a structural weakness and will not
cause air loss.''
[[Page 23022]]
Sumitomo adds that it is not aware of any tire failures, air loss,
crashes, or injuries related to this issue.
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\8\ See https://www.regulations.gov/document/NHTSA-2020-0117-0001.
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Sumitomo 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
A. General Principles
The burden of establishing the inconsequentiality of a failure to
comply with a performance requirement in an FMVSS--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 noncompliances inconsequential.\9\
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\9\ 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.\10\ In general, NHTSA does
not consider the absence of complaints or injuries when determining if
a noncompliance 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.'' \11\ ``[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.'' \12\
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\10\ 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).
\11\ Morgan 3 Wheeler Limited; Denial of Petition for Decision
of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12,
2016).
\12\ 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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NHTSA has evaluated the merits of the inconsequential noncompliance
petition submitted by Sumitomo; however, the Agency does not agree that
the subject noncompliance is inconsequential to motor vehicle safety.
B. NHTSA's Response to Sumitomo's Petition
The visual inspection requirements of the tire safety standards
exist to identify defects or structural weaknesses that can result in
immediate or premature tire failure. NHTSA considered several factors
specific to this petition and disagrees that the visible separation
described is inconsequential to motor vehicle safety.
Structural Integrity of the Tire
Sumitomo states that the visible separation is caused by both ``a
misplacement of joint tape'' and ``a change in the tape's composition''
that ``altered the rubber's adhesiveness.'' The visible separation near
the bead area appears after endurance testing, or when the tire is put
into service. The visible separation appears as a small bulge near the
bead area on the tire, and the separation is apparent once the tire is
cut for inspection.
NHTSA reviewed the tests performed by the petitioner to assess the
effects of the noncompliance on the structural integrity of the tire,
and on which they based their belief that the noncompliance is
inconsequential to safety. These tests placed the tires under various
loading and inflation conditions for long durations, and the tires
maintained both inflation and structural integrity in each of the
scenarios tested. While meaningful, these results have limitations in
assessing the safety related consequences of the noncompliant tires.
The limitations identified by the Agency are:
(a) Sample Size and Selection: Of the 10 tires tested by
Sumitomo, only one tire was from the affected population. The
remaining nine tires were produced for the testing with replicated
noncompliances based on the manufacturer's determination of the root
cause of the noncompliance. Further, a total of 11 different tire
size, speed rating, and load capacity/ply rating combinations are
represented in the affected population. The tires that were tested
represented only 6 different combinations of tire size, speed
rating, and load capacity/ply rating. Overall, the tested population
did not sufficiently represent the affected population in either the
quantity of tires tested or the tire size, speed, and load ratings.
(b) Tire Aging: As tires age, they can become more brittle. As
the rubber becomes more brittle the subject defect may grow and
cause tire failure or air loss. None of the testing performed by
Sumitomo addressed this failure mode.
(c) Environmental Conditions & External Damage: During real
world use, the tires will experience harsh environmental conditions
beyond what was simulated during testing. Additionally, these tires
will be subjected to damage in routine service such as curb impacts
or scrubbing. Damage of this type may tear the bulge and create
additional structural problems that would not occur in a tire
without this defect.
(d) Sufficiency of Test Conditions: The Agency appreciates the
attempts made by Sumitomo to determine if the subject defect in the
tires and resulting noncompliance is inconsequential to motor
vehicle safety, however it is not possible for the petitioner or the
Agency to know with certainty if the testing performed is sufficient
without conducting a much more thorough research project. The Agency
believes that the results of these limited testing scenarios are not
sufficient to determine that the noncompliance does not increase
risk to either the vehicle operators or the public at large.
The FMVSS sets the minimum performance standards that are intended
to ensure a minimum level of safety and the Agency does not agree the
testing completed by Sumitomo is sufficient to ensure that the
noncompliance is inconsequential to safety.
Other Safety Concerns
NHTSA has also identified other potential safety concerns. If the
noncompliant tires containing this separation were to be put into
service, there is an increased risk for the separation to expand beyond
what has been demonstrated by the petitioner, potentially resulting in
tire failure. Tire failures not only impact the vehicle operator but
may also impact other vehicles who share the road. Additionally,
commercial tire debris is a common cause of both accidents and damage
that will affect other vehicles and highway safety overall.
Furthermore, downstream entities involved in tire repair and
retreading operations may be unable to safely use these tires.
Commercial vehicle tires are commonly re-treaded, and the long-term
effects of this noncompliance are unknown. This defect may potentially
result in a weakened tire carcass that will prematurely fail. Sumitomo
did not perform any testing that might address this concern, nor did
they make any statements about potential effects on the re-tread
process.
NHTSA's Decision: In consideration of the foregoing, NHTSA has
decided that Sumitomo has not met its burden of proof that the subject
FMVSS No. 119 noncompliance is inconsequential to motor vehicle safety.
Accordingly, Sumitomo's petition is hereby denied and Sumitomo is
consequently obligated to provide notification of and free remedy for
that noncompliance under 49 U.S.C. 30118 and 30120.
[[Page 23023]]
(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. 2022-08227 Filed 4-15-22; 8:45 am]
BILLING CODE 4910-59-P