2010-9162. Tireco, Inc., Receipt of Petition for Decision of Inconsequential Noncompliance

Tireco, Inc., (Tireco), has determined that approximately 6,170 of its “GEO-Trac” brand P235/75R15 passenger car tires, manufactured between June 12, 2009 and August 20, 2009 by the fabricating manufacturer, the Shandong Linglong Tyre Co., Ltd., and imported into the United States by Tireco, do not comply with paragraph S5.5(c) of Federal Motor Vehicle Safety Standard (FMVSS) No. 139, New pneumatic radial tires for light vehicles. Tireco 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) (see implementing rule at 49 CFR part 556), Tireco has petitioned for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety.

This notice of receipt of Tireco's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.

Affected are approximately 6,170 tires imported into the United States by Tireco who identified the tires as “Geo-Trac” brand P235/75R15 passenger car replacement tires.

In consultation with the fabricating manufacturer, the Shandong Linglong Tyre Co., Ltd., Tireco has determined that all of the noncompliant tires were manufactured between June 12, 2009 (Serial Week 24) and August 20, 2009 (Serial Week 34). Tireco stated that it has already retrieved almost half of the 6,170 noncompliant tires from its distributors and dealers and estimates that there are only 3,370 noncompliant tires in the field that would be covered by the requested exemption.^[1]

Paragraph S5.5(c) (and paragraph S5.5.4 as incorporated by reference) of FMVSS No. 139 requires in pertinent part:

S5.5 Tire markings. Except as specified in paragraphs (a) through (i) of S5.5, each tire must be marked on each sidewall with the information specified in S5.5(a) through (d) and on one sidewall with the information specified in S5.5(e) through (i) according to the phase-in schedule specified in S7 of this standard. The markings must be placed between the maximum section width and the bead on at least one sidewall, unless the maximum section width of the tire is located in an area that is not more than one-fourth of the distance from the bead to the shoulder of the tire. If the maximum section width falls within that area, those markings must appear between the bead and a point one-half the distance from the bead to the shoulder of the tire, on at least one sidewall. The markings must be in letters and numerals not less than 0.078 inches high and raised above or sunk below the tire surface not less than 0.015 inches. * * *

(c) The maximum permissible inflation pressure, subject to the limitations of S5.5.4 through S5.5.6 of this standard; * * *

S5.5.4 For passenger car tires, if the maximum inflation pressure of a tire is 240, 280, 300, 340, or 350 kPa, then:

(a) Each marking of that inflation pressure pursuant to S5.5(c) must be followed in parenthesis by the equivalent psi, rounded to the next higher whole number; * * *

Tireco indicated that the noncompliance is that the markings on the non-compliant tires specifying the maximum inflation pressure in kPa and in psi are reversed from the order required by paragraph S5.5.5(c). The Company said that the maximum inflation pressure should have been marked as “300 kPa (44 psi)” but were “inadvertently” marked on both sidewalls with a maximum inflation pressure of “44 kPa (300 psi).” Tireco reported that this noncompliance was brought to their attention on August 19, 2009 by one of the company's distributor customers.

Tireco argues that no vehicle operator would ever inflate the tires to the incorrect pressures that appear on the sidewalls of the subject tires, and specifically stated that “it would be virtually impossible to do so.” Tireco supports this conclusion with the following statements:

• With respect to the erroneous psi marking, no commercially available air compressor used in tire retail stores, at gas stations, or for home use has the capacity to inflate tires to 300 psi, and consumers would immediately be aware from their past experience that a pressure of 300 psi could not be correct.
• With respect to the erroneous kPa marking, it [is] extremely unlikely that a consumer would attempt to inflate the tires to 44 kPa, since (1) drivers in the United States almost always utilize the psi parameter rather than kPa value when they inflate their tires; and (2) any driver who used the kPa parameter would know that the 44 kPa value was not correct, since all passenger car tires have a maximum inflation pressure of at least 240 kPa. Moreover, even if a consumer were to attempt to inflate the tires to 44 kPa (which is equivalent to approximately 7 psi), he or she would immediately be aware that the tires were drastically underinflated, and would not be in a drivable state.

Tireco concludes that the subject non-compliance “cannot result in the tires being overloaded, or any other adverse safety consequence to the tires or to the vehicles on which they are mounted.” Additionally, Tireco cites three cases which it believes support its conclusion that NHTSA has previously granted tires companies inconsequentiality exemptions relating to errors in the marking of maximum inflation pressure. (See Michelin North America, Inc., 70 FR 10161 (March 2, 2005); Kumho Tire Co., Inc., 71 FR 6129 (February 6, 2006); and Michelin North America, Inc., 74 FR 10805 (March 12, 2009)).

Furthermore, Tireco points out three other substantive factors that support its petition:

• The subject tires meet or exceed all of the substantive performance requirements of FMVSS No. 139.
• There have been no complaints regarding this issue from vehicle owners (the incorrect markings were brought to Tireco's attention by one of its distributors).
• The manufacturer of these tires, Shandong Linglong Tyre Co., Ltd., has corrected the molds at its factory, so that this noncompliance will not be repeated in current or future production.

Supported by all of the above stated reasons, Tireco believes that the described noncompliance of its tires to meet the requirements of FMVSS No. 139 is inconsequential to motor vehicle safety, and that its petition, to exempt it from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120, should be granted.

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.

Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited at the beginning of this notice and be submitted by any of the following methods:

a. By mail addressed to: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.

b. By hand delivery to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. The Docket Section is open on weekdays from 10 a.m. to 5 p.m. except Federal Holidays.

c. Electronically: by logging onto the Federal Docket Management System (FDMS) Web site at http://www.regulations.gov/​. Follow the online instructions for submitting comments. Comments may also be faxed to 1-202-493-2251.

Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that your comments were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to http://,www.regulations.gov,, including any personal information provided.

Documents submitted to a docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at http://www.regulations.gov by following the online instructions for accessing the dockets. DOT's complete Privacy Act Statement is available for review in the Federal Register published on April 11, 2000, (65 FR 19477-78).

The petition, supporting materials, and all comments received before the close of business on the closing date indicated below will be filed and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible. When the petition is granted or denied, notice of the decision will be published in the Federal Register pursuant to the authority indicated below.

Comment closing date: May 21, 2010.

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

Issued on: April 15, 2010.

Claude H. Harris,

Director, Office of Vehicle Safety Compliance.

Footnotes

1.  Tireco's petition, which was filed under 49 CFR Part 556, requests an agency decision to exempt Tireco as importer from the notification and recall responsibilities of 49 CFR Part 573 for 3,370 of the 6,170 affected tires. However, the agency cannot relieve Tireco's distributors 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 Tireco recognized that the subject noncompliance existed. Those tires must be brought into conformance, exported, or destroyed.