[Federal Register Volume 76, Number 9 (Thursday, January 13, 2011)]
[Proposed Rules]
[Pages 2309-2313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-643]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 575

[Docket No. NHTSA 2011-0005]
RIN 2127-AK06


Consumer Information Regulations; Fees for Use of Traction Skid 
Pads

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Notice of Proposed Rulemaking (NPRM).

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SUMMARY: This NPRM proposes to amend NHTSA's consumer information 
regulations on uniform tire quality grading standards by updating the 
fees currently charged for use of the traction skid pads at NHTSA's San 
Angelo Test Facility, formerly called the Uniform Tire Quality Grading 
Test Facility, in San Angelo, Texas and by eliminating fees for course 
monitoring tires, which are no longer supplied by NHTSA. This NPRM 
updates the fees in accordance with Office of Management and Budget 
Circular A-25, which governs fees assessed for Government services and 
use of Government goods or resources.

DATES: Comments to this proposal must be received on or before March 
14, 2011.

ADDRESSES: You may submit comments, identified by the docket number in 
the heading of this document, by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments on 
the electronic docket site by clicking on ``Help'' or ``FAQ.''
     Mail: Docket Management Facility, M-30, U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., West Building Ground 
Floor, Rm. W12-140, Washington, DC 20590.

[[Page 2310]]

     Hand Delivery or Courier: 1200 New Jersey Avenue, SE., 
West Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. 
Eastern Time, Monday through Friday, except Federal holidays.
     Fax: (202) 493-2251.

Regardless of how you submit your comments, you should mention the 
docket number of this document.
    You may call the Docket Management Facility at 202-366-9826.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Public 
Participation heading of the Supplementary Information section of this 
document. Note that all comments received will be posted without change 
to http://www.regulations.gov, including any personal information 
provided.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477-78) or you may visit http://www.dot.gov/privacy.html.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov, or the street 
address listed above. Follow the online instructions for accessing the 
dockets.

FOR FURTHER INFORMATION CONTACT: For program issues: Mr. George 
Gillespie, Office of Vehicle Safety Compliance, National Highway 
Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, 
DC 20590. Telephone: (202) 366-5299.
    For legal issues: Ms. Carrie Gage, Office of the Chief Counsel, 
National Highway Traffic Safety Administration, 1200 New Jersey Avenue, 
SE., Washington, DC 20590. Telephone: (202) 366-6051.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 203 of the National Traffic and Motor Vehicle Safety Act of 
1966 directs the Secretary of Transportation to prescribe standards 
establishing ``a uniform quality grading system for motor vehicle 
tires.'' 49 U.S.C. 30123. Those standards are found at 49 CFR 575.104. 
To aid consumers in making an informed choice in the purchase of 
passenger car tires, the standards require motor vehicle and tire 
manufacturers and tire brand owners to label such tires with 
information indicating their relative performance in the areas of 
treadwear, traction and temperature resistance. See 49 CFR 575.104(a).
    The Uniform Tire Quality Grading Standards (UTQGS), 49 CFR 575.104, 
state that tire traction is ``evaluated on skid pads that are 
established, and whose severity is monitored, by the NHTSA both for its 
compliance testing and for that of regulated persons.'' 49 CFR 
575.104(f)(1). As further described in the standards, the test pads are 
paved with asphalt and concrete surfaces that have specified locked 
wheel traction coefficients when evaluated in a manner prescribed in 
the standards. The traction skid pads are located at NHTSA's San Angelo 
Test Facility. 49 CFR 575.104, App. B. In addition to this government 
test facility, traction skid pads have been constructed at several 
commercial facilities.
    The current fees charged for use of the traction skid pads at the 
San Angelo Test Facility, as well as fees charged for course monitoring 
tires, were established by final rule published in the Federal Register 
on August 2, 1995. See 60 FR 39269 (Aug. 2, 1995).\1\ Pursuant to 
Appendix D to 49 CFR 575.104, the fees charged to manufacturers for use 
of the Government traction skid pads continue in effect until adjusted 
by the Administrator of NHTSA.
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    \1\ The August 2, 1995 final rule responded to a Department of 
Transportation Office of Inspector General (OIG) audit of NHTSA's 
facility in San Angelo in which the OIG concluded that NHTSA was not 
charging a user fee for the use of the traction skid pads at the 
facility and was not recovering the full cost of the course 
monitoring tires that it sold at San Angelo, contrary to OMB 
Circular A-25. See 60 FR 39269.
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II. Proposal

    This NPRM proposes to update, in accordance with Office of 
Management and Budget (OMB) Circular A-25, the fee charged to 
manufacturers for use of the agency's traction skid pads at the San 
Angelo Test Facility. It also proposes to remove provisions concerning 
the fees charged for course monitoring tires, as NHTSA no longer 
supplies these tires for purchase by manufacturers. Based on a current 
assessment using a ``market price'' analysis as outlined below, NHTSA 
proposes to update the fees for use of the facility from $34.00 an 
hour, established in 1995, to $125 an hour. As discussed below, NHTSA 
believes that this proposed fee reflects the current market price for 
use of traction skid pads.
    OMB Circular A-25 establishes Federal policy regarding fees 
assessed for Government services and for sale or use of Government 
goods or resources. The Circular expresses the general policy that 
``[a] user charge * * * will be assessed against each identifiable 
recipient for special benefits derived from Federal activities beyond 
those received by the general public.'' According to the Circular, a 
``special benefit'' accrues and a user charge is assessed when a 
Government service ``is performed at the request of or for the 
convenience of the recipient, and is beyond the services regularly 
received by other members of the same industry or group or by the 
general public.'' Manufacturer use of NHTSA's testing facility is a 
special benefit because use of the facility is beyond the services 
regularly received by the industry or the general public.\2\ 
Accordingly, NHTSA assesses a user charge for the use of the traction 
track.
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    \2\ While there is a public benefit in making available a 
standardized tire grading facility for manufacturer use, the public 
benefits are incidental to the special benefits derived by the 
manufacturers. According to Circular A-25, when the public obtains a 
benefit as a necessary consequence of an agency's provision of 
special benefits to an identifiable recipient, an agency should seek 
to recover the applicable fee from the identifiable recipient.
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    For the purposes of assessing user charges, the Circular requires 
that, when the Government is acting in its capacity as sovereign, user 
charges be sufficient to recover the full cost to the Government of 
providing the good or service. When the Government is not acting as 
sovereign, however, user charges are to be based on market prices. The 
Government acts in its capacity as sovereign when it uses powers over 
which it has a monopoly. See e.g., U.S. v. Reyes, 87 F.3d 676, 681 (5th 
Cir. 1996). The Government may act in a sovereign capacity, for 
example, when it is the only source of a good or service, such as where 
the Government issues a license. See National Park Service--Special 
Park Use Fees, B-307319, *6 (Aug. 23, 2007).
    The agency is not acting in its capacity as sovereign in making the 
San Angelo Test Facility available for traction testing by 
manufacturers. That facility serves primarily for NHTSA's own 
compliance testing of manufacturers' tires. As we recently stated with 
regard to the UTQGS regulations, manufacturers are not restricted to 
the use of the traction skid pads at the government facility in San 
Angelo. Rather, manufacturers may test their tires wherever they 
choose. See 75 FR 15894, 15913 (March 30, 2010).\3\

[[Page 2311]]

Because NHTSA's own compliance tests are conducted at the San Angelo 
Test Facility, tire manufacturers often choose to do so as well.
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    \3\ It is the responsibility of each tire manufacturer to 
certify that its tires comply with applicable Federal safety 
standards.
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III. Proposed Fee Update Based on Market Price

    Pursuant to Circular A-25, ```Market price' means the price for a 
good, resource, or service that is based on competition in open 
markets, and creates neither a shortage nor a surplus of the good, 
resource, or service.'' Where there is substantial competitive demand 
for a good, resource, or service, the market price is determined by 
commercial practice, for example, by competitive bidding, or by 
reference to the prevailing price of the same or similar good, 
resources, or services, adjusted to reflect demand, level of service 
and quality of the good or service.
    To determine the appropriate market price for use of the San Angelo 
Test Facility, NHTSA surveyed several commercial facilities with 
traction skid pads available for public use. Prices for the hourly use 
of traction skid pads ranged from approximately $115 per hour to 
approximately $200 per hour. From its own experience, NHTSA believes 
that discounted rates may be available based on volume use or advance 
planning. Accordingly, NHTSA believes it is appropriate to take the 
availability of discounts into account in arriving at a determination 
of market rate. Taking a conservative approach, we propose to set the 
rate for use of the traction skid pads at the lower end of this range--
$125 per hour. NHTSA welcomes comments regarding whether our proposed 
rate for hourly use of the traction skid pads at the San Angelo Test 
Facility accurately reflects the market price for such services.

IV. Public Participation

    Interested persons are invited to comment on this notice of 
proposed rulemaking. The procedure for submitting comments is noted 
below.

How do I prepare and submit written comments?

    Your comments must be written and in English. To ensure that your 
comments are correctly filed in the Docket, please include the docket 
number at the beginning of this NPRM in your comments. Your primary 
comments cannot exceed 15 pages. See 49 CFR 553.21. We established this 
limit to encourage you to write your primary comments in a concise 
fashion. However, you may attach additional documents to your primary 
comments. There is no limit to the length of the attachments.
    Please submit your comments by any of the following methods:
     Federal eRulemaking Portal: go to http://www.regulations.gov. Follow the instructions for submitting comments to 
the electronic docket site by clicking on ``Help'' or ``FAQ.''
     Mail: Docket Management Facility, M-30, U.S. Department of 
Transportation, West Building, Ground Floor, Rm. W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue, SE., between 9 am and 5 pm Eastern 
Time, Monday through Friday, except Federal holidays.
     Fax: (202) 493-2251.
     If you are submitting comments electronically as a PDF 
(Adobe) file, we ask that the documents submitted be scanned using 
Optical Character Recognition (OCR) process, thus allowing the agency 
to search and copy certain portions of your submissions.\4\
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    \4\ Optical character recognition (OCR) is the process of 
converting an image of text, such as a scanned paper document or 
electronic fax file, into computer-editable text.
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     Please note that pursuant to the Data Quality Act, in 
order for substantive data to be relied upon and used by the agency, it 
must meet the information quality standards set forth in the OMB and 
DOT Data Quality Act guidelines. Accordingly, we encourage you to 
consult the guidelines in preparing your comments. OMB's guidelines may 
be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html.

How can I be sure that my comments were received?

    If you submit your comments by mail and wish Docket Management to 
notify you upon its receipt of your comments, enclose a self-addressed, 
stamped postcard in the envelope containing your comments. Upon 
receiving your comments, Docket Management will return the postcard by 
mail.

How do I submit confidential business information?

    If you wish to submit any information under a claim of 
confidentiality, you should submit three copies of your complete 
submission, including the information you claim to be confidential 
business information, to the Chief Counsel, NHTSA, at the address given 
above under FOR FURTHER INFORMATION CONTACT. When you send a comment 
containing information claimed to be confidential business information, 
you should include a cover letter setting forth the information 
specified in our confidential business information regulation. See 49 
CFR 512.
    In addition, you should submit a copy, from which you have deleted 
the claimed confidential business information, to the Docket by one of 
the methods set forth above.

Will the agency consider late comments?

    We will consider all comments received before the close of business 
on the comment closing date indicated above under DATES. To the extent 
possible, we will also consider comments received after that date. 
Therefore, if interested persons believe that any new information the 
agency places in the docket affects their comments, they may submit 
comments after the closing date concerning how the agency should 
consider that information for the final rule.

How can I read the comments submitted by other people?

    You may read the materials placed in the docket for this document 
(e.g., the comments submitted in response to this document by other 
interested persons) at any time by going to http://www.regulations.gov. 
Follow the online instructions for accessing the dockets. You may also 
read the materials at the Docket Management Facility by going to the 
street address given above under ADDRESSES. The Docket Management 
Facility is open between 9 am and 5 pm Eastern Time, Monday through 
Friday, except Federal holidays.

V. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order 12866, ``Regulatory Planning and Review,'' 58 FR 
51735 (Oct. 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 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 affect 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,

[[Page 2312]]

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.
    NHTSA has considered the impact of this rulemaking action under 
Executive Order 12866 and the Department of Transportation's regulatory 
policies and procedures. This rulemaking is not significant as it does 
not implicate any of the above-enumerated concerns. Accordingly, the 
Office of Management and Budget has not reviewed this rulemaking 
document under Executive Order 12886. Further, NHTSA has determined 
that the rulemaking is not significant under the Department of 
Transportation's regulatory policies and procedures.
    Based on the type of fees and the anticipated use of the test 
track, NHTSA believes that the costs of the final rule would be minimal 
and would not warrant preparation of a regulatory evaluation. The 
proposed rule would increase fees charged to private manufacturers for 
use of a government facility to prevailing market rates. Manufacturers 
have a choice as to whether to use this government facility or a 
private commercial facility. As a result, this action does not involve 
any substantial public interest or controversy. Furthermore, NHTSA 
anticipates that any impact on the sale price of tires would be 
minimal, because an increase in testing fees would likely be 
distributed across a manufacturer's sales volume. There would be no 
substantial effect upon State and local governments. There would be no 
substantial impact upon a major transportation safety program.

B. National Environmental Policy Act

    NHTSA has evaluated this proposed action for purposes of the 
National Environmental Policy Act and has determined that it would not 
have a significant effect on the quality of the human environment.

C. Regulatory Flexibility Act

    NHTSA has considered the impact of this proposed rulemaking under 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the 
Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996). 
NHTSA believes that the proposed rule would not have a significant 
economic impact on a substantial number of small entities.
    The following is NHTSA's statement providing the factual basis for 
the certification (5 U.S.C. 605(b)). Tire manufacturers are not small 
entities. The proposed amendments would affect businesses that conduct 
contract traction testing, some of which are small businesses within 
the meaning of the Regulatory Flexibility Act; however, the agency does 
not believe that this proposed rule would result in a significant 
economic impact on these entities. Under the proposed standards, the 
fees paid for use of the government facility would be essentially 
equivalent to those paid to a commercial testing facility--the market 
rate. The agency believes that small governmental jurisdictions would 
be only minimally affected by the proposed rule since they are 
generally not large scale purchasers of vehicles tires. Furthermore, 
even in the case of substantial purchases, as noted above, costs passed 
on to consumers are expected to be minimal since testing fees would 
likely be distributed across a manufacturer's sales volume.

D. Executive Order 13132 (Federalism)

    Executive Order 13132 on ``Federalism,'' 64 FR 43255 (Aug. 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.'' 
Executive Order 13132 defines the term ``policies that have federalism 
implications'' 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, NHTSA may not issue a regulation that has 
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, or NHTSA consults with 
State and local officials early in the process of developing the 
proposed regulation.
    The proposed rule would not 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 as specified in Executive Order 13132. 
Accordingly, Section 6 of the Executive Order does not apply to this 
rulemaking action.

E. Executive Order 12988 (Civil Justice Reform)

    Pursuant to Executive Order 12988 ``Civil Justice Reform,'' 61 FR 
4729 (Feb. 7, 1996), NHTSA has considered whether this rulemaking would 
have any retroactive effect. The proposed rule would not have any 
retroactive effect.

F. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), 
Public Law 104-4, requires 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 annually (adjusted for inflation with 
the base year of 2005). Adjusting this amount by the implicit gross 
domestic product price deflator for 2009 results in $135 million 
(109.770/81.536 = 1.35).
    This proposed rule will not result in the expenditure by State, 
local, or Tribal governments, in the aggregate, of more than $135 
million annually, and will not result in an expenditure of that 
magnitude by private entities. Because a final rule based on this 
proposal would not require expenditures exceeding $135 million 
annually, this action is not subject to the requirements of Sections 
202 and 205 of the UMRA.

G. Paperwork Reduction Act

    Under the procedures established by the Paperwork Reduction Act of 
1995 (PRA), 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. The proposed rule does not require the collection 
of information by a Federal agency. Accordingly, the PRA is not 
applicable to this action.

H. Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
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 that appears in the heading on the first page of this 
document to find this action in the Unified Agenda.

I. Plain Language

    Executive Order 12866 requires each agency to write all rules in 
plain language. Application of the principles of plain language 
includes consideration of the following questions:
     Have we organized the material to suit the public's needs?

[[Page 2313]]

     Are the requirements in the rule clearly stated?
     Does the rule contain technical language or jargon that 
isn't clear?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rule easier to understand?
     Would more (but shorter) sections be better?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rule easier to 
understand?
    If you have any responses to these questions, please include them 
in your comments on this proposal.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an organization, business, labor union, etc.). You may review DOT's 
complete Privacy Act statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://www.dot.gov/privacy.html.

List of Subjects in 49 CFR Part 575

    Consumer protection, Incorporation by reference, Motor vehicle 
safety, Reporting and recordkeeping requirements, Tires.

    In consideration of the foregoing, NHTSA proposes to amend 49 CFR 
Part 575 as follows:

PART 575--CONSUMER INFORMATION

    1. The authority citation for part 575 continues to read as 
follows:

    Authority: 49 U.S.C. 32302, 32304A, 30111, 30115, 30117, 30123, 
30166, and 30168, Pub. L. 104-414, 114 Stat. 1800, Pub. L. 109-59, 
119 Stat. 1144, Pub. L. 110-140, 121 Stat. 1492, 15 U.S.C. 1232(g); 
delegation of authority at 49 CFR 1.50.

    2. Revise Appendix D to Sec.  575.104 to read as follows:


Sec.  575.104  Uniform tire quality grading standards.

* * * * *

Appendix D--User Fees

    1. Use of Government Traction Skid Pads: A fee of $125 will be 
assessed for each hour, or fraction thereof, that the traction skid 
pads at Goodfellow Air Force Base, San Angelo, Texas are used. This 
fee is based upon the market price of the use of the traction skid 
pads.
    2. Fee payments shall be by check, draft, money order, or 
Electronic Funds Transfer System made payable to the Treasurer of 
the United States.
    3. The fee set forth in this Appendix continues in effect until 
adjusted by the Administrator of NHTSA. The Administrator reviews 
the fee set forth in this Appendix and, if appropriate, adjusts it 
by rule at least every 2 years.

    Issued on: January 10, 2011.
Claude Harris,
Acting Associate Administrator for Enforcement.
[FR Doc. 2011-643 Filed 1-12-11; 8:45 am]
BILLING CODE 4910-59-P