[Federal Register Volume 77, Number 21 (Wednesday, February 1, 2012)]
[Rules and Regulations]
[Pages 4914-4917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2141]


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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: Final rule.

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SUMMARY: This document amends 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 rule 
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: Today's final rule is effective April 2, 2012.
    Petitions for reconsideration must be received by March 19, 2012.

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. Several commercial facilities 
also have traction skid pads.
    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. Notice of Proposed Rulemaking (NPRM)

    The NPRM proposed to update, in accordance with Office of 
Management and Budget (OMB) Circular A-25, the

[[Page 4915]]

fee charged to manufacturers for use of the agency's traction skid pads 
at the San Angelo Test Facility.\2\ It also proposed to remove 
provisions concerning the fees charged for course monitoring tires, as 
NHTSA no longer supplies these tires for purchase by manufacturers. 
Based on NHTSA's assessment using a ``market price'' analysis, the 
agency proposed to update the fees for use of the facility from $34.00 
an hour, established in 1995, to $125.00 an hour, which reflected the 
agency's assessment of the current market price for use of traction 
skid pads. NHTSA received no public comments on the proposal.
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    \2\ 76 FR 2309 (Jan. 13, 2011).
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    As NHTSA noted in the NPRM, 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.\3\ 
Accordingly, NHTSA assesses a user charge for the use of the traction 
skid pads.
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    \3\ 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 
verification testing of manufacturers' tires. As NHTSA 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). Because NHTSA's own 
verification tests are conducted at the San Angelo Test Facility, tire 
manufacturers often choose to do so as well.
    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.
    As NHTSA explained in the NPRM, to determine the appropriate market 
price for use of the San Angelo Test Facility, the agency 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. As described in the NPRM, 
NHTSA believes it is appropriate to take the availability of discounts 
into account in arriving at a determination of market rate. In the 
NPRM, NHTSA took a conservative approach, proposing to set the rate for 
use of the traction skid pads at the lower end of this range--$125 per 
hour. NHTSA specifically sought 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. As 
noted above, NHTSA received no comments on the proposal.

III. Final Rule

    NHTSA continues to believe that a fee of $125.00 per hour for use 
of the traction skid pads at the San Angelo Test Facility accurately 
reflects the current market price of such services. Accordingly, in the 
absence of comments, this document adopts the agency's proposal by 
updating the fees to $125.00 an hour. As proposed in the NPRM, this 
document also removes provisions concerning fees charged for course 
monitoring tires.

V. Rulemaking Analyses and Notices

A. Executive Order 12866, Executive Order 13563 and DOT Regulatory 
Policies and Procedures

    NHTSA has considered the impact of this regulatory action under 
E.O. 12866 and E.O. 13563 and the Department of Transportation's (DOT) 
regulatory policies and procedures. This rulemaking action was not 
reviewed by the Office of Management and Budget under E.O. 12866. The 
rulemaking has also been determined not to be significant under DOT's 
regulatory policies and procedures (44 FR 11034, February 26, 1979).
    Based on the type of fees and the anticipated use of the test 
track, NHTSA believes that the costs of the final rule will be minimal 
and do not warrant preparation of a regulatory evaluation. The rule 
will 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. NHTSA does not 
anticipate any substantial effect on State and local governments or on 
a major transportation safety program.

B. National Environmental Policy Act

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

C. Regulatory Flexibility Act

    NHTSA has considered the impact of this 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

[[Page 4916]]

that this action 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 amendments will affect businesses that conduct contract 
traction testing at NHTSA's test facility, some of which are small 
businesses within the meaning of the Regulatory Flexibility Act; 
however, the agency does not believe that this rulemaking will result 
in a significant economic impact on these entities. Under the final 
rule, the fees paid for use of the government facility will be 
essentially equivalent to those paid to a commercial testing facility--
the market rate. The agency believes that small governmental 
jurisdictions will be only minimally affected by this rulemaking 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 will likely be distributed across a manufacturer's sales volume.

D. Executive Order 13132 (Federalism)

    NHTSA has examined today's final rule pursuant to Executive Order 
13132 (64 FR 43255, August 10, 1999) and concluded that no additional 
consultation with States, local governments or their representatives is 
mandated beyond the rulemaking process. The agency has concluded that 
the final rule does not have federalism implications because the rule 
does 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.''
    Further, no consultation is needed to discuss the preemptive effect 
of today's final rule. NHTSA's safety standards can have preemptive 
effect in two ways. \4\ This final rule amends 49 CFR Part 575 and is 
not a safety standard. This rulemaking only updates the fees currently 
charged for use of the traction skid pads at NHTSA's San Angelo Test 
Facility and does not require anyone to use the facility.
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    \4\ With respect to the safety standards, the National Traffic 
and Motor Vehicle Safety Act contains an express preemptive 
provision: ``When a motor vehicle safety standard is in effect under 
this chapter, a State or a political subdivision of a State may 
prescribe or continue in effect a standard applicable to the same 
aspect of performance of a motor vehicle or motor vehicle equipment 
only if the standard is identical to the standard prescribed under 
this chapter.'' 49 U.S.C. 30103(b)(1). Second, the Supreme Court has 
recognized the possibility of implied preemption: State requirements 
imposed on motor vehicle manufacturers, including sanctions imposed 
by State tort law, can stand as an obstacle to the accomplishment 
and execution of a NHTSA safety standard. When such a conflict 
exists, the Supremacy Clause of the Constitution makes the State 
requirements unenforceable. See Geier v. American Honda Motor Co., 
529 U.S. 861 (2000).
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E. Executive Order 12988 (Civil Justice Reform)

    With respect to the review of the promulgation of a new regulation, 
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR 
4729, February 7, 1996), requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect; (2) clearly specifies the effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct, while promoting simplification and burden reduction; 
(4) clearly specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. This document is consistent with that requirement.
    Pursuant to this Order, NHTSA notes as follows. The preemptive 
effect of this final rule is discussed above. NHTSA notes further that 
there is no requirement that individuals submit a petition for 
reconsideration or pursue other administrative proceeding before they 
may file suit in court.

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 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 this final rule will 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. This rule will not have any requirements that are 
considered to be information collection requirements as defined by the 
OMB in 5 CFR Part 1320. 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?
     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 write to us 
with your suggestions.

J. Privacy Act

    Anyone is able to search the electronic form of all submissions 
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.

[[Page 4917]]

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, 49 CFR part 575 is amended as 
follows:

PART 575--CONSUMER INFORMATION

0
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.


0
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 25, 2012.
David L. Strickland,
Administrator.
[FR Doc. 2012-2141 Filed 1-31-12; 8:45 am]
BILLING CODE 4910-59-P