01-24089. Continental General Tire, Inc.; Grant of Application for Decision That Noncompliance Is Inconsequential to Motor Vehicle Safety

Continental General Tire, Inc., (Continental) has determined that approximately 22,500 P235/75R15 Grabber AT OWL passenger tires supplied to the replacement market do not meet the labeling requirements mandated by Federal Motor Vehicle Safety Standard (FMVSS) No. 109, “New Pneumatic Tires.”

Pursuant to 49 U.S.C. 30118(d) and 30120(h), Continental petitioned for a determination that this noncompliance is inconsequential to motor vehicle safety and filed an appropriate report pursuant to 49 CFR Part 573, “Defect and Noncompliance Reports.”

Notice of receipt of the application was published, with a 30-day comment period, on January 2, 2001 in the Federal Register (66 FR 131). NHTSA received one comment on this application, which was submitted by Advocates for Highway and Auto Safety (Advocates).

FMVSS No. 109, paragraph S4.3 (e), requires that each tire shall have permanently molded into or onto both sidewalls the actual number of plies in the sidewall, and the actual number of plies in the tread area, if different.

According to Continental, the noncompliance with S4.3 (e) relates to the mold numbers 33316 and 33317, which ran for the production period of March 28, 1999 through August 25, 2000 with an incorrect sidewall stamping. The stamping at the rim line read: Tread 5 plies—2 Steel + 2 Polyester + 1 Nylon. It should have read: Tread 4 Plies—2 Steel + 2 Polyester. Continental stated that the sidewalls of the tires have all the proper markings, except the subject plies, per 49 CFR Section 571.109, and that in all applications the tire service information is correct and no unsafe conditions would be created due to the noncompliance. Continental further stated that the tire label attached to the tread surface provides accurate information concerning tire size and design.

Advocates indicated in its comments (Docket No. NHTSA-8549-2) that events of the past year involving tires and sport utility vehicles point out a need to focus on the quality and quantity of consumer information provided on tires. Advocates stated that Continental did not provide information to substantiate its claim that no unsafe conditions would be created by this noncompliance. According to Advocates, Continental should be required to establish that it has not engaged in marketing tires with more plies in the tread and sidewall as being superior to tires with fewer plies in the tread and sidewall construction. Advocates also suggested that Continental's record of submission of petitions for inconsequential noncompliance with regard to tire labeling issues be reviewed since that company also petitioned the agency in a similar matter several months prior to this petition. Advocates indicated that, in this case, the agency or the petitioner must establish that the tire construction (number of plies in the sidewall and tread and the cord material) information is not of safety-related importance to consumers or that few consumers consider the tire construction information when making a tire purchase.

Actions by the agency since November 2000, in response to Congressional requirements, have addressed most of the concerns raised by Advocates in its docket submission. The Transportation Recall, Enhancement, Accountability, and Documentation (TREAD) Act of November 2000 required, among other things, that the agency initiate rulemaking to improve tire label information. In response to Section 11 of the TREAD Act, the agency published an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register on December 1, 2000 (65 FR 75222). The agency received more than 20 comments addressing the ANPRM, which sought comments on the tire labeling information required by 49 CFR Sections 571.109 and 571.119, Part 567, Part 574, and Part 575. Most of the comments were from motor vehicle and tire manufacturers, although several private citizens and consumer interest organizations responded to the ANPRM. With regard to the tire construction labeling requirements of FMVSS 109, S4.3 (d) and (e), most commenters indicated that the information was of little or no safety value to consumers. However, the tire construction information is valuable to the tire re-treading, repair, and recycling industries, according to several trade groups representing tire manufacturing. The International Tire and Rubber Association, Inc. (ITRA) indicated that the tire construction information is used by tire technicians to determine the steel content of a tire and to select proper retread, repair, and recycling procedures.

To address Advocates' request for tire marketing information, Continental indicated that the company has not promoted tires with the construction characteristics mistakenly molded into the subject tires. According to Continental, the company does not build tires of that construction type for public consumption (Tread: 5 plies—2 plies steel + 2 plies Polyester + 1 ply Nylon). With regard to Advocates' suggestion that Continental's petition record be reviewed, Continental indicated that it petitioned the agency twice in the recent past for a determination of inconsequential noncompliance involving tire construction labeling issues. These include the petition associated with this Notice, dated October 16, 2000, and a petition dated August 15, 2000, which was granted on August 9, 2001 (66 FR 41930).

In addition to the written comments solicited by the tire labeling ANPRM, the agency conducted a series of focus groups, as required by TREAD, to examine consumer perceptions and understanding of tire labeling. It was determined that few of the focus group participants had knowledge of the information molded into the tire sidewall with the exception of the tire brand name, tire size, and tire pressure.

Based on the information obtained from comments to the ANPRM and the consumer focus groups, we concur that it is likely that few consumers are influenced by the tire construction information (number of plies and cord material in the sidewall and tread plies) provided on the tire label when making a motor vehicle or tire purchase decision. However, the tire repair, retread, and recycling industries do use the tire construction information.

The agency believes that the true measure of inconsequentiality to motor vehicle safety in this case is the effect of the noncompliance on the operational safety of vehicles on which these tires are mounted. The safety of people working in the tire retread, repair, and recycling industries must also be considered. Although tire construction affects tire strength and durability, neither the agency nor the tire industry provides information relating the strength and durability of a tire to the number and types of plies in the tread and sidewall. Therefore, tire dealers and customers should consider the tire construction information along with other information such as the load capacity, tread wear, temperature, and traction when assessing performance capabilities of various tires.

In the agency's judgment, the incorrect labeling of the tire construction information will have an inconsequential effect on motor vehicle safety. The agency believes the safety of the users of these tires as replacements will not be adversely affected by the noncompliance because most consumers do not base tire purchases or vehicle operation parameters on tire construction information. The agency reached the conclusion that the noncompliance will not have a significant effect on the safety of the tire retread, repair, and recycling industries. The use of steel cord construction in the sidewall and tread is the primary safety concern of these industries, according to ITRA. In this case, the steel used in the construction of the tires is properly labeled.

In consideration of the foregoing, NHTSA has decided that the burden of persuasion has been met and that the noncompliance is inconsequential to motor vehicle safety. Accordingly, Continental's application is granted and the applicant is exempted from providing the notification of the noncompliance that would be required by 49 U.S.C. 30118, and from remedying the noncompliance, as would be required by 49 U.S.C. 30120.

(49 U.S.C. 301118, 301120; delegations of authority at 49 CFR 1.50 and 501.8)

Issued on: September 20, 2001.

Stephen R. Kratzke,

Associate Administrator for Safety Performance Standards.