03-1321. Federal Motor Vehicle Safety Standards; Tire Pressure Monitoring Systems; Correction

AGENCY:

National Highway Traffic Safety Administration, DOT.

ACTION:

Correcting amendments.

SUMMARY:

On June 5, 2002, the National Highway Traffic Safety Administration (NHTSA) published a final rule amending the standard on controls and displays, adding a new standard on tire pressure monitoring systems, and amending and re-titling a part on tire pressure monitoring system phase-in reporting requirements. The final rule included a phase-in schedule for compliance with the tire pressure monitoring system (TPMS) standard for manufacturers of passenger cars, trucks, multipurpose passenger vehicles, and buses with a gross vehicle weight rating of 10,000 pounds or less, except those vehicles with dual wheels on an axle. This document corrects NHTSA's inadvertent omission of a provision excluding final-stage manufacturers and alterers from compliance with the TPMS requirements of these standards until the end of the phase-in period (i.e., November 1, 2006).

DATES:

These amendments to the final rule are effective February 27, 2003.

FOR FURTHER INFORMATION CONTACT:

The following persons at the NHTSA, 400 Seventh Street, SW., Washington, DC 20590.

For non-legal issues, you may call Mr. George Soodoo or Mr. Joseph Scott, Office of Crash Avoidance Standards (Telephone: [phone]) (Fax: [phone]).

For legal issues, you may call Mr. Eric Stas, Office of Chief Counsel (Telephone: [phone]) (Fax: [phone]).

SUPPLEMENTARY INFORMATION:

I. Background

Federal Motor Vehicle Safety Standard (FMVSS) No. 138, “Tire Pressure Monitoring Systems,” was developed in fulfillment of the congressional mandate contained in the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act of 2000. The new standard requires installation of tire pressure monitoring systems that warn the driver when a tire is significantly under-inflated. On June 5, 2002, NHTSA published the first part of a two-part final rule amending Standard No. 101, “Controls and displays,” adding a new Standard No. 138, “Tire Pressure Monitoring Systems,” and amending and re-titling Part 590, “Tire Pressure Monitoring System Phase-In Reporting Requirements” (67 FR 38704). That document established two compliance options for the short-term (i.e., for the period between November 1, 2003, and October 31, 2006). The second part of the final rule will be issued by March 1, 2005, and will establish performance requirements for the long-term (i.e., for the period beginning on November 1, 2006).

Both the notice of proposed rulemaking (NPRM) (66 FR 38982, July 26, 2001) and the first part of the final rule discussed a phase-in of compliance with the new TPMS requirements, although the NPRM did not propose any specific phase-in plan for discussion. The final rule requires a manufacturer to certify at least ten percent of its vehicles manufactured between November 1, 2003 and October 31, 2004 (inclusive) as compliant with the new TPMS requirements. The percentage of compliant vehicles is determined based on: (a) The manufacturer's average annual production of vehicles manufactured on or after November 1, 2000, and before November 1, 2003; or (b) the manufacturer's production on or after November 1, 2003, and before November 1, 2004. Based upon a similar calculation, for vehicles manufactured on or after November 1, 2004, and before November 1, 2005, the number of vehicles complying with the standard must not be less than thirty-five percent of production, and for vehicles manufactured on or after November 1, 2005, and before November 1, 2006, the figure must rise to not less than sixty-five percent of production. The phase-in period ends on November 1, 2006, at which time all vehicles covered by the standard must comply with the new requirements.

The final rule contains an exclusion of small volume manufacturers from the requirements of the standard during the phase-in period. We provided this exclusion pursuant to a public comment request by Vehicle Services Consulting, Inc. (VSC), a representative of small volume vehicle manufacturers.

No commenter requested that final-stage manufacturers of vehicles built in two or more stages be excluded from the phase-in. However, NHTSA has historically excluded final-stage manufacturers from the phase-in requirements of its various safety standards. Despite this practice, the agency inadvertently omitted such an exclusion from the TPMS final rule.

Since the publication of the June 2002 final rule, NHTSA has received thirteen petitions for reconsideration from: (1) Ferrari S.P.A.; (2) Delphi Auto Inc.; (3) Japan Automobile Tyre Manufacturers Association, Inc. (JATMA); (4) Johnson Controls, Inc.; (5) Volkswagen of America, Inc.; (6) Bureau de Normalisation de l'Automobile (BNA) ISO/TC22/WG12; (7) Porsche Cars North America, Inc.; (8)Alliance of Automobile Manufacturers (Alliance); (9) Rubber Manufacturers Association (RMA); (10) Aviation Upgrade Technologies; (11) Vehicle Services Consulting, Inc. (VSC); and (12) DENSO International America, Inc. (DENSO); and (13) Maserati S.P.A. NHTSA will respond to those petitions through a subsequent notice to be published in the Federal Register. However, it should be noted that none of the petitions stated any opposition to an exclusion from the phase-in for final-stage manufacturers.

Further, on October 2, 2002, the National Truck Equipment Association (NTEA) submitted a request for legal interpretation asking for guidance on whether final-stage manufacturers are required to provide tire pressure monitoring systems during the phase-in period under the new and amended regulations, even when the incomplete vehicle is not so equipped by the incomplete (chassis) manufacturer. If that were indeed the case, NTEA asked that its request be treated as a petition for rulemaking to exclude final-stage manufacturers and alterers from the TPMS phase-in.

II. Summary of the Corrections

Instead of granting NTEA's petition for rulemaking, NHTSA has decided to publish a correcting amendment because it inadvertently omitted from the final rule an exclusion for final-stage manufacturers and alterers from compliance with the TPMS standard until the final year of the phase-in. As discussed below, the phase-in of the TPMS requirements has the potential to create significant problems for many final-stage manufacturers and alterers. Again, while NHTSA did not discuss in the NPRM the specific requirements that would be associated with a phase-in, the agency has addressed that issue in several recent rulemakings that provided a similar exclusion for final-stage manufacturers.

The current situation impacting final-stage manufacturers is similar to the one that the agency encountered during the phase-in that extended the quasi-static side door strength requirements of FMVSS No. 214, “Side Impact Protection,” to trucks, buses, and multipurpose passenger vehicles with a gross vehicle weight rating of 10,000 pounds or less (LTVs) (57 FR 30917, July 13, 1992). Like other manufacturers, final-stage manufacturers must certify that their vehicles meet all applicable safety standards. However, final-stage manufacturers complete or modify vehicles supplied by incomplete vehicle manufacturers and often rely on the representations in those manufacturers' incomplete vehicle document (IVD) as a basis for certification. Final-stage manufacturers and alterers have no control over the year of the phase-in in which a particular vehicle model will be certified as complying with the new requirements. Typically, a major manufacturer will elect to meet the phase-in requirements by scheduling its changes so that some of its models are changed in each year of the phase-in, instead of changing all models in a single year. While this practice allows the manufacturers to meet the phase-in requirements with minimal disruption to their manufacturing processes, it may significantly complicate final-stage manufacturers' efforts to secure appropriate compliant vehicles to either complete or modify as part of their standard operations. Put simply, final-stage manufacturers may have difficulty meeting the phase-in schedule because they have no control over when particular incomplete vehicles will be brought into compliance with the performance requirements being phased-in.

The difficulties faced by final-stage manufacturers and alterers in meeting the TPMS phase-in requirements are no less compelling than the difficulties they faced in the context of other phase-ins. Accordingly, NHTSA is correcting the June 2002 final rule to exclude final-stage manufacturers from compliance with the FMVSS No. 138 until the end of the phase-in (i.e., November 1, 2006). This is the same approach for phase-ins that the agency has followed in a number of other recent rulemakings, including: Standard No. 208's automatic crash protection requirements for LTVs (56 FR 12472, 12479-80, March 26, 1991) and its more recently published advanced air bag requirements (65 FR 30680, 30721, May 12, 2000); Standard No. 214's extension of quasi-static door strength requirements to trucks, buses, and multipurpose passenger vehicles (57 FR 30917, 30921, July 13, 1992); Standard No. 201's requirements for protection for when an occupant's head strikes upper interior components (60 FR 43031, 43049, August 18, 1995); and Standard No. 225's requirements for new child restraint anchorage systems (64 FR 10786, 10811, March 5, 1999).

Given that the agency raised the issue of the phase-in in both the NPRM and the final rule and the general understanding that commenters had concerning how the agency implemented phase-ins in other rulemakings, NHTSA believes that establishment of an exclusion for final-stage manufacturers until the final year of the phase-in along the lines of the above-cited agency precedent is a corrective action within the scope of the final rule. This correcting amendment relieves final-stage manufacturers and alterers from the requirement to assure that a specified percentage of their vehicles comply with the TPMS requirements of Standard No. 101 and Standard No. 138 during the phase-in period. However, once the phase-in is completed, all subject vehicles, including those produced by final-stage manufacturers and alterers, must be equipped with tire pressure monitoring systems.

This correction also amends 49 CFR 590.3 “Applicability” (Tire Pressure Monitoring System Phase-In Reporting Requirements) to exclude final-stage manufacturers and small volume manufacturers from phase-in reporting requirements because they are not subject to the phase-in.

These amendments to the final rule are effective 30 days after the date of publication in the Federal Register. These amendments correct the omission of a provision from the final rule that was published on June 5, 2002. Remedying this oversight on the part of the agency will not impose any additional substantive requirements or burdens on manufacturers. Therefore, NHTSA finds for good cause that any notice of proposed rulemaking and opportunity for comment on these amendments are not necessary.

III. Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and, therefore, subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affects in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

We considered the impact of the June 5, 2002 final rule under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. That rule was determined to be a significant regulatory action under section 3(f) of the Executive Order because compliance with the rule was expected to have on annual effect on the economy of over $100 million. Consequently, the rule was reviewed by the Office of Management and Budget under Executive Order 12866. The rule was also determined to be significant within the meaning of the Department of Transportation's Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).

Today's notice providing a correcting amendment is not a significant regulatory action within the meaning of Executive Order 12866, because the amendment does not impose any new requirements on manufacturers. It simply clarifies implementation of the phase-in by correcting the inadvertent omission of a provision to exclude final-stage manufacturers and alterers from compliance with the TPMS requirements of Federal Motor Vehicle Safety Standards No. 101 and No. 138 until the end of the phase-in period (i.e. November 1, 2006).

Executive Order 13132

Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999), requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation. NHTSA also may not issue a regulation with Federalism implications and that preempts a State law unless the agency consults with State and local officials early in the process of developing the proposed regulation.

The June 5, 2002 final rule was analyzed in accordance with the principles and criteria set forth in Executive Order 13132, and the agency determined that the rule would not have sufficient federalism implications to warrant consultations with State and local officials or the preparation of a federalism summary impact statement. Today's notice will not have any additional economic impact on any of the entities covered under Executive Order 13132.

Executive Order 13045

Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks” (62 FR 19855, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.

The June 5, 2002 final rule establishing requirements for incorporation of tire pressure monitoring systems in new vehicles was economically significant as defined in Executive Order 12866. However, it did not involve decisions based on health and safety risks that disproportionately affect children. Today's amendment does not make any changes to the final rule that would disproportionately affect children.

Executive Order 12988

Pursuant to Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996), the agency has considered whether this amendment will have any retroactive effect. This correcting amendment does not have any retroactive effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending, or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). However, no regulatory or flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

In the June 5, 2002 Federal Register final rule, NHTSA certified that that final rule will not have a significant economic impact on a substantial number of small entities. I have considered the effects of today's amendment under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and certify that this amendment would not have a significant economic impact on a substantial number of small entities. The amendments made in this document would not impose any additional costs on small entities. The Regulatory Flexibility Act does not, therefore, require a regulatory flexibility analysis.

National Environmental Policy Act

NHTSA has analyzed this amendment for the purposes of the National Environmental Policy Act, and the agency has determined that it will not have any significant impact on the quality of the human environment.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This correcting amendment does not establish any new information collection requirements.

National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) directs the agency to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or is otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs us to provide Congress (through OMB) with explanations when the agency decides not to use available and applicable voluntary consensus standards. The NTTAA does not apply to symbols.

Today's amendment to provide an exclusion for final-stage manufacturers from the TPMS rule's requirements until the final year of the phase-in does not involve any issues related to standards, and in fact, there are no voluntary consensus standards related to TPMS that are available at this time.

Unfunded Mandates Reform Act

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires the agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the agency to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted.

The June 5, 2002 final rule will result in an expenditure of more that $100 million by vehicle manufacturers and/or their suppliers, and, as discussed in the final rule, the agency chose two compliance options that will provide manufacturers with broad flexibility to minimize their costs of compliance with the TPMS Standard during the phase-in period. Today's correcting amendment does not impose any unfunded mandates under the Unfunded Mandates Reform Act of 1995, because it would not impose any costs or requirements. Thus, this amendment is not subject to the requirements of sections 202 and 205 of the UMRA.

Regulation Identification Number (RIN)

The Department of Transportation assigns a regulation identification number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

List of Subjects in 49 CFR Parts 571 and 590

• Imports
• Motor vehicle safety
• Reporting and recordkeeping requirements
• Tires

Accordingly, 49 CFR Parts 571 and 590 are corrected by making the following correcting amendments:

PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS

1. The authority citation for Part 571 of Title 49 continues to read as follows:

Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.50.

2. Section 571.138 is amended by adding S7.7 to read as follows:

§ 571.138

Standard No. 138; Tire pressure monitoring systems.

* * * * *

S7.7. Final-stage manufacturers and alterers.

Vehicles that are manufactured in two or more stages or that are altered (within the meaning of 49 CFR § 567.7) after having previously been certified in accordance with Part 567 of this chapter are not subject to the requirements of S7.1 through S7.5.

* * * * *

PART 590—TIRE PRESSURE MONITORING SYSTEM PHASE-IN REPORTING REQUIREMENTS

3. The authority citation for Part 590 of Title 49 continues to read as follows:

Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.50.

4. Section 590.3 is revised to read as follows:

§ 590.3

Applicability.

(a) Except as provided in paragraph (b) of this section, this part applies to manufacturers of passenger cars, multipurpose passenger vehicles, trucks, and buses with a gross vehicle weight rating of 4,536 kilograms (10,000 pounds) or less, except those vehicles with dual wheels on an axle.

(b) The reporting requirements of this part do not apply to small volume manufacturers, which are excluded from the compliance during the phase-in period under S7.6 of Standard No. 138 (49 CFR 571.138), or to final-stage manufacturers and alterers, which are excluded from compliance during the phase-in period under S7.7 of Standard No. 138 (49 CFR 571.138).

Issued: January 3, 2003.

Noble Bowie,

Director, Office of Planning and Consumer Standards.