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.


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(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