[Federal Register Volume 68, Number 18 (Tuesday, January 28, 2003)]
[Rules and Regulations]
[Pages 4107-4111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1321]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Parts 571 and 590

[Docket No. NHTSA 2000-8572]
RIN 2127-AI33


Federal Motor Vehicle Safety Standards; Tire Pressure Monitoring 
Systems; Correction

AGENCY: National Highway Traffic Safety Administration, DOT.

ACTION: Correcting amendments.

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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: 202-366-2720) 
(Fax: 202-366-4329).
    For legal issues, you may call Mr. Eric Stas, Office of Chief 
Counsel (Telephone: 202-366-2992) (Fax: 202-366-3820).

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

[[Page 4108]]

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

[[Page 4109]]

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,

[[Page 4110]]

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:


Sec.  571.138  Standard No. 138; Tire pressure monitoring systems.

* * * * *
    S7.7. Final-stage manufacturers and alterers.

[[Page 4111]]

    Vehicles that are manufactured in two or more stages or that are 
altered (within the meaning of 49 CFR Sec.  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:


Sec.  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.
[FR Doc. 03-1321 Filed 1-27-03; 8:45 am]
BILLING CODE 4910-59-P