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Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Notices
lotter on DSK11XQN23PROD with NOTICES1

Because the label is located on the tire sidewall, it is not likely to be misidentified. A reader will be able to read the date code, by spinning the tire, and therefore inverting the date code will allow it to easily be read.
The petitioner argues that, as with the Cooper tires, the date code on the subject tires is located on the sidewall, is not likely to be misidentified, and a reader will be able to read and understand the date code. Hankook communicated in an email to the agency on November 19, 2020, that a partial TIN is labeled on at least one sidewall of the tire. The subject tires otherwise meet the marking and performance requirements of FMVSS No. 139.
4. Hankook is not aware of any complaints, claims, or incidents related to the subject noncompliance.
Hankook 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. NHTSAs Analysis: In evaluating this tire labeling noncompliance issue, NHTSA considered if the incorrectly marked date code could mislead a consumer about the actual age of the tire or make it difficult to correctly determine if the tire has been recalled.
The burden of establishing the inconsequentiality of a failure to comply with a performance requirement in a standardas opposed to a labeling requirement with no performance implicationsis more substantial and difficult to meet. Accordingly, the Agency has not found many such performance-related noncompliances inconsequential.1 Potential performance failures of safety-critical equipment, like seat belts or air bags, are rarely deemed inconsequential.
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.2 In general, NHTSA does not 1 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.
2 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
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consider the absence of complaints or injuries to show that the issue 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. 3
The 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. 4
Arguments that only a small number of vehicles or items of motor vehicle equipment are affected have also not justified granting an inconsequentiality petition.5 Similarly, NHTSA has rejected petitions based on the assertion that only a small percentage of vehicles or items of equipment are likely to actually exhibit a noncompliance. The percentage of potential occupants that could be adversely affected by a noncompliance does not determine the question of inconsequentiality. Rather, the issue to consider is the consequence to an occupant who is exposed to the consequence of that noncompliance.6
These considerations are also relevant when considering whether a defect is inconsequential to motor vehicle safety.
In the instant case, the date code required by FMVSS No. 139 is properly located in the right-most position and shows the correct week and year of manufacture but has been imprinted upside-down, and the upside-down font 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.
3 Morgan 3 Wheeler Limited; Denial of Petition for Decision of Inconsequential Noncompliance, 81 FR
21663, 21666 Apr. 12, 2016.
4 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.
5 See Mercedes-Benz, U.S.A., L.L.C.; Denial of Application for Decision of Inconsequential Noncompliance, 66 FR 38342 July 23, 2001
rejecting argument that noncompliance was inconsequential because of the small number of vehicles affected; Aston Martin Lagonda Ltd.;
Denial of Petition for Decision of Inconsequential Noncompliance, 81 FR 41370 June 24, 2016
noting that situations involving individuals trapped in motor vehicleswhile infrequentare consequential to safety; Morgan 3 Wheeler Ltd.;
Denial of Petition for Decision of Inconsequential Noncompliance, 81 FR 21663, 21664 Apr. 12, 2016 rejecting argument that petition should be granted because the vehicle was produced in very low numbers and likely to be operated on a limited basis.
6 See Gen. Motors Corp.; Ruling on Petition for Determination of Inconsequential Noncompliance, 69 FR 19897, 19900 Apr. 14, 2004; Cosco Inc.;
Denial of Application for Decision of Inconsequential Noncompliance, 64 FR 29408, 29409 June 1, 1999.

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cannot be confused with right-side up font. If a consumer reads the label as it is, the fact that the date code is inverted would become self-evident. In such a case, it would not be difficult to rotate the tire to a position where the code could be read and deciphered. The tires age would then be available as needed and the tire could also be identified if recalled.
VII. NHTSAs Decision: In consideration of the foregoing, NHTSA
finds that Hankook has met its burden of persuasion that the subject FMVSS
No. 139 noncompliance is inconsequential as it relates to motor vehicle safety. Accordingly, Hankooks petition is hereby granted, and Hankook is exempted from the obligation of providing notification of, and a remedy for, the noncompliance under 49 U.S.C.
30118 and 30120.
NHTSA notes that the statutory provisions 49 U.S.C. 30118d and 30120h 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. Therefore, this decision only applies to the subject tires that Hankook no longer controlled at the time it determined that the noncompliance existed. However, the granting of this petition does not relieve tire distributors and dealers 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 Hankook notified them that the subject noncompliance existed.
Authority: 49 U.S.C. 30118, 30120:
delegations of authority at 49 CFR 1.95 and 501.8
Otto G. Matheke, III, Director, Office of Vehicle Safety Compliance.
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