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###### Department of Transportation

###### National Highway Traffic Safety Administration

          - [Docket No. NHTSA-2008-0118; Notice 2]

                    Continental Tire North America, Inc. (Continental), has determined that certain passenger car tires manufactured during December of 2007 and January of 2008 did not fully comply with paragraph S5.5(e) of Federal Motor Vehicle Safety Standard (FMVSS) No. 139                     *New Pneumatic Radial Tires for Light Vehicles*. Continental 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) and the rule implementing those provisions at 49 CFR part 556, Continental 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. Notice of receipt of the petition was published, with a 30-day public comment period, on June 26, 2008 in the                     **Federal Register**                     (73 FR 36371). No comments were received. To view the petition and all supporting documents log onto the Federal Docket Management System Web site at:                     *http://www.regulations.gov/​.*                     Then follow the online search instructions to locate docket number “NHTSA-2008-0118.”                

For further information on this decision, contact Mr. George Gillespie, Office of Vehicle Safety Compliance, the National Highway Traffic Safety Administration (NHTSA), telephone (202) 366-5299, facsimile (202) 366-7002.

Affected are approximately 1,925 size 255/60R17 106 H Continental CrossContact LX ETRTO passenger car tires manufactured in Continental's Mount Vernon, Illinois plant during December of 2007 and January of 2008.

Paragraph S5.5(e) 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 * * *.

(e) The generic name of each cord material used in the plies (both sidewall and tread area) of the tire; * * *.

                    Continental explains that the noncompliance is that the sidewall marking incorrectly identifies the                           ( print page 11175)                        generic material of the plies in the body of the tire as rayon when they are in fact polyester. Specifically, the tires in question were inadvertently manufactured with “TREAD 6 PLIES 2 RAYON + 2 STEEL + 2 NYLON SIDEWALL 2 PLIES 2 RAYON” marked on the sidewall. The labeling should have been “TREAD 6 PLIES 2 POLYESTER + 2 STEEL + 2 NYLON SIDEWALL 2 PLIES 2 POLYESTER.”                

Continental states that it discovered the mold labeling error that caused the non-compliance during a routine quality audit.

Continental makes the argument that this noncompliance is inconsequential to motor vehicle safety because the noncompliant sidewall marking does not affect the safety, performance and durability of the tire and that the tires were built as designed and all other sidewall identification markings and safety information are correct.

Continental further states that it performs ongoing compliance testing to assure tire performance, and that all of the subject tires will meet or exceed the performance requirements of FMVSS No. 139. Continental also states its belief that there will be no operational impact on the performance or safety of vehicles on which these tires are mounted.

Continental also points out that NHTSA has previously granted petitions for sidewall marking noncompliances that it believes are similar to the instant noncompliance.

Continental also stated that it has corrected the problem that caused these errors so that they will not be repeated in future production.

In summation, Continental states that it believes that because the noncompli-ances are inconsequential to motor vehicle safety that no corrective action is warranted.

## NHTSA Decision

The agency agrees with Continental that the noncompliance is inconsequential to motor vehicle safety. The agency believes that the true measure of inconsequentiality to motor vehicle safety in this case is that there is no 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 the strength and durability, neither the agency nor the tire industry provides information relating tire strength and durability to the number of plies and types of ply cord material 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, maximum inflation pressure, and tread wear, temperature, and traction ratings, to assess 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 because most consumers do not base tire purchases or vehicle operation parameters on the ply material in a tire.

The agency also believes the noncompliance will have no measurable 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. In this case, since the tire sidewalls are marked correctly for the number of steel plies, this potential safety concern does not exist.

In consideration of the foregoing, NHTSA has decided that Continental has met its burden of persuasion that the subject FMVSS No. 139 labeling noncompliance is inconsequential to motor vehicle safety. Accordingly, Continental's petition is granted and the petitioner is exempted from the obligation of providing notification of, and a remedy for, the subject noncompliance under 49 U.S.C. 30118 and 30120.

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

Issued on: March 10, 2009.

Daniel C. Smith,

Associate Administrator for Enforcement.

 [FR Doc. E9-5638 Filed 3-13-09; 8:45 am]

BILLING CODE 4910-59-P