E7-114. Foreign Tire Sales, Inc., Denial of Petition for Decision of Inconsequential Noncompliance

Foreign Tire Sales, Inc. (FTS) has determined that certain tires that it imported in 2005 and 2006 do not comply with S6.5(d) of Federal Motor Vehicle Safety Standard (FMVSS) No. 119, “New Pneumatic Tires For Vehicles Other Than Passenger Cars.” FTS has filed an appropriate report pursuant to 49 CFR part 573, “Defect and Noncompliance Responsibility and Reports.” Pursuant to 49 U.S.C. 30118(d) and 30120(h), FTS also has petitioned for a determination that this noncompliance is inconsequential to motor vehicle safety. Notice of receipt of the petition was published, with a 30-day comment period, on August 8, 2006 in the Federal Register (71 FR 45105). NHTSA received two comments on the petition, one from the Rubber Manufacturers Association (RMA) and another from Flexi-Van Leasing, Inc. (Flexi-Van). To view the petition and all supporting documents and comments submitted, go to: http://dms.dot.gov/​search/​searchFormSimple.cfm and enter Docket No. NHTSA-2006-25555.

Affected are a total of approximately 18,900 Danzig and Direction size 10.00-20 bias-ply container chassis tires manufactured by Wendeng Sanfeng Tyre Co., Ltd. of Wendeng City, China (Wendeng), and imported by FTS between August 2005 and April 2006. Paragraph S6.5(d) of FMVSS No. 119 requires that each tire shall be marked on each sidewall with “[t]he maximum load rating and corresponding inflation pressure of the tire * * *.” The subject tires are not marked with the maximum load rating and corresponding inflation values for single tire use. FTS has corrected the problem that caused these errors so that they will not be repeated in future production.

As discussed in its petition, FTS believes that the noncompliance is inconsequential to motor vehicle safety and that no corrective action is warranted. FTS stated that there is no safety issue relating to single-use applications because the tires are clearly labeled “DUAL USE ONLY” and “TRAILER SERVICE ONLY,” and because FTS's “customers understand that said tires are to be used on container chassis only.” FTS supplemented its petition with additional information, which has been placed in the docket, including a September 7, 2006 letter from the tire manufacturer which states:

Please be advised that we know of no safety issues involving our container chassis tires which are labeled for dual use only. There is no change in the construction of the tire whether the tire is labeled for dual use only or for single and dual use.

One public comment the agency received was from Flexi-Van, which is a lessor of intermodal container chassis. In carrying out its leasing business, Flexi-Van purchases tires of the type that are the subject of this petition, including tires imported by FTS. Flexi-Van stated that it has purchased over two thousand of the subject tires, which have already been installed on Flexi-Van chassis The company commented that an in-field chassis inspection of each container chassis it leases would be required to identify the noncompliant tires, which the company says is a difficult and burdensome proposition. Flexi-Van acknowledged that it would not have to bear the cost of this inspection since this is the responsibility of the vendor, but nonetheless argued that denial of this petition and the subsequent recall “would result in a tremendous administrative and logistical burden to our customers, and inconvenience to Flexi-Van as well.” The commenter further stated that, based on its experience in the industry, it is extremely unlikely that the subject intermodal tires would be installed in a single-use position, such as on the drive or steer axle of a truck tractor. Flexi-Van explained that, for these reasons, it supports granting FTS's petition for decision of inconsequential noncompliance.

The second public comment was from the Rubber Manufacturers Association, and it urged NHTSA to deny the subject petition, stating:

While Petitioner may not intend its non-compliant tires to be used `anywhere other than a container chassis,' there is no guarantee that the tires may not eventually be placed in a single load application. Indeed, the rationale for requiring the sidewall to be marked with maximum load ratings and inflation values for single and dual applications under FMVSS 119 is precisely that the same tire could be used in either application * * * [T]he issue that should be dispositive of this position is whether the tires otherwise meet the performance standards of FMVSS 119. There is, however, no evidence in the docket that the subject tires meet the long-term endurance and strength standards of FMVSS 119 (S6). [emphasis in original]

Agency Decision

NHTSA has carefully reviewed the petition and public comments, and the agency has determined that the noncompliance at issue is not inconsequential to motor vehicle safety, for the reasons that follow. Even though FTS may intend that its 18,900 tires with noncompliant markings be used on trailers and for dual use only, and provides instructions to that effect, stating that the “tires set forth * * * are for DUAL USE ONLY and TRAILER SERVICE ONLY,” NHTSA agrees with the comments of RMA that, despite manufacturer instructions to the contrary, there is no guarantee these tires may not eventually be placed on a single-load application, since the tires are capable of being mounted and used in that manner.

Use of one of the subject tires in a single-load application could lead to confusion, because the consumer would not be presented with the relevant information regarding the load-pressure relationship suitable for such application. In turn, this situation could lead to possible overloading of the tire, because the operator would be forced to attempt to independently calculate the maximum load rating for the tire in a single-load application. Specifically, without the required marking, the consumer would not know which of the seven permissible international tire industry publications or the manufacturer's own data submissions were used to calculate a single-load application and certify the tire under FMVSS No. 119, S5.1. Given that fleet operators have an economic incentive to fully load their vehicles with cargo, the agency believes that adverse safety consequences could be associated with failure to include the relevant tire markings required under Standard No. 119. That is why the standard specifically requires tire markings for both single-load and dual-load applications. The standard does not provide manufacturers the option of marking tires with a statement limiting them to only one application and providing only one maximum load rating. FTS's arguments regarding the ability of the tires to support vehicle load in a single-load application do not resolve this problem.

FTS supports its petition with information that was received by the agency under two cover letters, both available in the docket. The first letter, dated September 22, 2006, encloses information from the Chinese tire manufacturer, including an “Endurance Test Report” dated October 25, 2005, a “Plunger Energy Test Report” dated October 25, 2005, and two copies of a letter dated September 7, 2006 and stamped with the corporate seal (one in Chinese and other with an English translation). The second letter, dated September 29, 2006, encloses further information from the foreign tire manufacturer, including an “Endurance Test Report” dated August 10, 2006 and a “Plunger Energy Test Report” dated August 26, 2006. This information is apparently intended to demonstrate that the tires are generally safe, notwithstanding the labeling error. However, these reports do not demonstrate that the tires meet the performance standards of FMVSS No. 119. Moreover, the issue here is not whether the tires meet those performance requirements. Rather, the question is whether the incorrect marking of the tires may itself have safety consequences.

In addition, we note that Flexi-Van, in its comments, describes how it mounts tires onto its trailers and explains the difficulty in locating the tires in the field should a recall be required. It also asserts its belief that for the approximately 2,000 subject tires it purchased, “it is virtually impossible, in the ordinary course of business, that one of the subject intermodal tires would be installed on the drive or steer axle of a truck tractor.” However, Flexi-Van's comments pertain to only a small portion of the subject tires and, in any event, do not negate the fact that these tires can be mounted and used in an unintended application. Accordingly, it is possible that some of these tires could be used in a single-load application, so the absence of correct markings pertinent to that application may have negative safety consequences.

In consideration of the foregoing, NHTSA has decided that the petitioner has not met its burden of persuasion that the noncompliance described is inconsequential to motor vehicle safety. Accordingly, FTS's petition is hereby denied.

(Authority: 49 U.S.C. 30118, 30120; delegations of authority at CFR 1.50 and 501.8)

Issued on: January 4, 2007.

Daniel C. Smith,

Associate Administrator for Enforcement.