[Federal Register: July 26, 2002 (Volume 67, Number 144)]
[Proposed Rules]               
[Page 48852-48855]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jy02-31]                         


[[Page 48852]]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 573

[Docket No. NHTSA-2001-10856; Notice 2]
RIN 2127-AI29

 
Motor Vehicle Safety; Disposition of Recalled Tires

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

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: This notice seeks comments on a May 9, 2002 comment from the 
Rubber Manufacturers Association (RMA), in response to our December 18, 
2001 Notice of Proposed Rulemaking (NPRM) on Disposition of Recalled 
Tires (66 FR 65165).
    In the NPRM, we proposed to require that tire dealers render 
returned recalled tires unsuitable for use on the day removed from the 
vehicle or from stock, and then dispose of them in accordance with 
manufacturers' plans and applicable laws, in ways that minimize the 
deposit of the tires in landfills. RMA urged NHTSA to allow tire 
manufacturers the option of requiring that dealers return all recalled 
tires directly to the manufacturer, instead of requiring tire dealers 
and distributors to dispose of the tires themselves. RMA also urged us 
to consider a number of other suggested revisions to the NPRM. RMA 
attached suggested regulatory language to its comment.
    We seek comments on the merits of RMA's general approach, on 
whether RMA's proposal is consistent with statutory requirements, and 
on RMA's proposed regulatory text.

DATES: Comments: You should submit your comments early enough to ensure 
that Docket Management receives them not later than August 26, 2002.

ADDRESSES: You should mention the docket number of this document in 
your comments, and submit your comments in writing to Docket 
Management, Room PL-401, 400 Seventh Street, SW, Washington, DC 20590. 
You may also submit your comments electronically by logging onto the 
Dockets Management System website at http://dms.dot.gov. Click on 
``Help & Information'' or ``Help/info'' to obtain instructions for 
filing the document electronically.
    Regardless of how you submit your comments, you should mention the 
docket number of this document in your comments.
    You may call Docket Management at 202-366-9324. You may visit 
Docket Management from 10 a.m. to 5 p.m., Monday through Friday.

FOR FURTHER INFORMATION CONTACT: For non-legal issues, contact Jonathan 
White, Office of Defects Investigation, tel. (202) 366-5226. For legal 
issues, contact Enid Rubenstein, Office of Chief Counsel, tel. (202) 
366-5263.

SUPPLEMENTARY INFORMATION: Section 7 of the Transportation Recall, 
Enhancement, Accountability, and Documentation (TREAD) Act expanded 49 
U.S.C. 30120(d) to require a manufacturer's remedy program for tires to 
include a plan for preventing, to the extent reasonably within the 
manufacturer's control, the resale of replaced tires for use on motor 
vehicles, as well as a plan for the disposition of replaced tires, 
particularly through methods such as shredding, crumbling, recycling, 
recovery, or other ``beneficial non-vehicular uses'' rather than in 
landfills. Further, Section 7 requires the manufacturer to include 
information about the implementation of its plan in quarterly reports 
that it is required to make to the Secretary about the progress of its 
notification and remedy campaigns involving tires.
    In order to implement Section 7's new requirements, we proposed on 
December 18, 2001 to amend 49 CFR 573.5 and 573.6 to impose 
requirements on tire manufacturers and on tire dealers. We proposed in 
the NPRM to require manufacturers that conduct tire recalls to file 
programs and reports about their plans for incapacitating and disposing 
of recalled tires that addressed three major concerns: (1) Ways of 
assuring that entities replacing the tires are aware of the legal 
prohibitions on the sale of defective or noncompliant tires; (2) 
mechanisms to impair recalled tires so that they cannot be used on a 
vehicle; and (3) the disposition of recalled tires, consistent with 
applicable laws and in ways that minimize their deposit in landfills, 
and to implement those plans. We also proposed to require ``exceptions 
reporting,'' by manufacturer-controlled tire outlets to manufacturers 
monthly, and by manufacturers to NHTSA in quarterly reports, that 
identify aggregate numbers of recalled tires that have not been 
rendered unsuitable for reuse or that have been disposed of in 
violation of applicable state and local requirements; and that describe 
failures by tire outlets to act in accordance with manufacturers' 
directions for disposing of recalled tires, including an identification 
of the outlets in question. We sought comments on the reporting 
burdens.
    Rather than requiring dealers to render tires unsuitable for use 
and then transfer those tires to authorized disposal facilities, RMA 
suggested that the rule should permit manufacturers to require dealers 
to return all recalled tires directly to the manufacturer, at a central 
facility. See RMA's comment, on file in DOT's Docket Management System 
(DMS) at Docket 10856, Document Number NHTSA-2001-10856-9. 
Manufacturers would then inspect and sort the tires, destroy those that 
contain the defect or noncompliance, and, where appropriate, brand 
those tires that do not contain the defect or noncompliance (to permit 
their resale). According to RMA, this would simplify the process of 
recalling and disposing of defective or noncompliant tires, as well as 
the associated reporting requirements, and, in addition, avoid the 
unnecessary disposition of tires that are not defective or 
noncompliant.
    RMA argued that the alternative of returning tires to a central 
location would permit manufacturers both to better control the recall 
process, as described above, and to test returned recalled tires in 
order to better understand the failure mechanism. RMA also urged us to 
eliminate the proposed requirement for dealers to alter recalled tires 
by the close of business on the day on which the recalled tire has been 
removed from the vehicle.
    In its suggested regulatory text, RMA also proposed to require 
manufacturers to provide written guidance, either annually or for any 
recall involving 10,000 or more tires not returned to the tire 
manufacturer or manufacturer-controlled facility, to manufacturer-owned 
and manufacturer-controlled tire outlets as well as other tire outlets, 
about how to alter recalled tires permanently so that they cannot be 
used on vehicles. See RMA Comment, p. 3, ``Suggested Regulatory 
Language'' at Secs. 573.5(c)(9)(A), (B)(1), (B)(2), and (C).
    RMA further suggested revising our proposed ``exceptions 
reporting'' requirement, by changing the timing of required reports 
from manufacturer-owned or manufacturer-controlled outlets from monthly 
to within 30 days of removal of a recalled tire from a vehicle, and by 
requiring those outlets also to report to the manufacturer, within the 
same time frame, any deviation from the manufacturer-supplied recall 
plan and any violation of applicable laws and regulations on disposal 
of scrap tires. See RMA Comment at p. 2; RMA Suggested

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Regulatory Language at p. 3, proposed Secs. 573.5(c)(9)(B)(3), (C)(3).
    We seek comments on whether the RMA proposal would effectuate 
section 7 of the TREAD Act, and whether it would better address the 
first two major concerns, identified above, than the proposal in the 
NPRM. We would expect that in most tire recalls, repairs and resale 
following inspection will not be possible. This was true in the recent 
Bridgestone/Firestone ATX, ATXII and Wilderness AT recalls, and also in 
the 1978-79 Firestone 500 recall. Further, we seek comments on 
mechanisms for assuring the security of recalled tires prior to 
shipment to the manufacturer, so that those tires do not enter the 
marketplace inadvertently.
    We request comments on whether RMA's proposal fulfills Congress' 
intentions in the TREAD Act with respect to minimizing the likelihood 
that recalled tires are disposed of in landfills and, specifically, 
with respect to encouraging independent tire dealers (as well as 
manufacturer-owned or manufacturer-controlled outlets) to meet their 
obligations under state and local law to dispose appropriately of 
recalled tires.
    In addition, we seek comments on the issue of whether RMA's 
proposed alternative is consistent with 49 U.S.C. 30120(i) and (j), 
which by their terms preclude the resale of recalled tires that have 
not been remedied. Section 30120(i) provides that:

    [i]f notification (of a defect or noncompliance) is required . . . 
and the manufacturer has provided to a dealer notification about a new 
* * * item of replacement equipment in the dealer's possession at the 
time of notification that contains a defect * * * or does not comply * 
* *, the dealer may sell or lease the * * * item of replacement only 
if--(A) the defect or noncompliance is remedied as required by this 
section before delivery under the sale or lease[.]

Section 30120(j) provides that:

[n]o person may sell or lease any motor vehicle equipment (including a 
tire), for installation on a motor vehicle, that is the subject of a 
decision under section 30118(b) or a notice require under section 
30118(c) in a condition that it may reasonably be used for its original 
purpose unless--(1) the defect or noncompliance is remedied as required 
by this section before delivery under the sale or lease[.]

In responding to this question, please provide a discussion that 
includes the reasons for your conclusion, as well as statutory 
analysis.
    Finally, we seek comments on RMA's proposal to permit manufacturers 
the option of notifying dealers of their recall responsibilities either 
annually or for any recall that covers more than 10,000 tires, as 
opposed to requiring such notifications for all recalls.
    We are not reproposing regulatory language because at this time, we 
have not made a tentative decision to adopt RMA's suggestion. After 
considering comments on this Supplemental Notice of Proposed 
Rulemaking, we may adopt an approach that includes one or more features 
of RMA's proposal, or we may choose to follow an approach that is 
closer to the one we proposed in the NPRM.

I. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    When we issued the NPRM, we considered the impact of this proposed 
rulemaking action under E.O. 12866 and the Department of 
Transportation's regulatory policies and procedures. The NPRM was not 
reviewed under E.O. 12866, ``Regulatory Planning and Review.'' This 
rulemaking was not considered ``significant'' under the Department of 
Transportation's regulatory policies and procedures. We expected the 
impacts of our proposed rule to be so minimal as not to warrant 
preparation of a full regulatory evaluation, because the proposal 
essentially would require only the supplementing of reports that 
manufacturers already must file with limited information about the 
disposition of recalled tires.
    We estimated that the additional economic impact of the proposed 
rule upon manufacturers would be small. Manufacturers already assume 
the costs of the tire recalls that they conduct. They already are 
required by our regulations to notify dealers of recalls and to file 
plans and quarterly reports about their recalls with our Office of 
Defects Investigation (ODI). We stated that the additional notification 
and reporting elements that this rule would add would be very limited 
and wholly descriptive, and that they would not impose significant 
costs on manufacturers.
    RMA's proposed alternative might limit still further the costs of 
the proposed rule. If, upon inspection, numerous recalled tires were 
found not to be defective or non-compliant, the RMA proposal could 
reduce the costs of disposition of recalled tires. The costs to dealers 
of incapacitating and recycling the recalled tires would be eliminated 
under the RMA proposed alternative. There could be increased costs to 
ensure the security of recalled tires. The extent to which the costs to 
dealers of shipping recalled tires to the manufacturer at a central 
location, and ultimately the costs to manufacturers of reimbursing 
dealers for those shipping costs, would depend on the locations to 
which recalled tires were shipped.

B. Regulatory Flexibility Act

    We have also considered the impacts of RMA's proposed alternative 
under the Regulatory Flexibility Act. For the reasons discussed above 
under E.O. 12866 and the DOT Policies and Procedures, I certify that 
this proposal would not have a significant economic impact on a 
substantial number of small entities. The primary impact of RMA's 
proposal would be felt by the major tire manufacturers, which are not 
small entities. This impact would be relatively minor, since it 
primarily would involve manufacturers' adding a requirement to ship 
recalled tires to central location(s) to their remedy programs, 
notifying affected retail outlets of the remedy plans, and providing 
minimal reporting on the plans in the quarterly reports that 
manufacturers already must file with NHTSA. We estimated the cost of 
our original proposal at approximately $1.00 per tire for 
transportation and $2.00 per tire for recycling. If the effect of RMA's 
proposal is to eliminate the need to recycle significant numbers of 
tires, the total recycling costs should be reduced.
    We originally estimated the cost to manufacturers of notifying 
dealers of their plans at $1.00 per tire manufacturer per affected 
retail outlet, and stated that the cost could well be less because 
manufacturers might already be including descriptions similar to our 
proposed requirements in their notices to dealers. Under the first 
alternative in RMA's proposal, the cost could be even lower, because 
the content of the manufacturers' notices of recalls would be limited 
to one or two lines instructing dealers to ship the recalled tires to a 
designated central location. Under RMA's second proposed alternative, 
the cost to manufacturers could be somewhat higher, since they would 
include an annual mailing to all retail outlets of the manufacturers' 
requirements for the disposition of recalled tires.
    We stated in the NPRM that the proposed rule could also have an 
impact on the nation's 3,500 tire dealers, many of which are small 
entities. We estimated the reporting costs associated with monthly 
``exceptions reporting'' to manufacturers of any instances in which the 
dealer did not comply with the manufacturer's plan for disposing of

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recalled tires at $1.00 per affected dealer per recall. Also, we 
estimated the potential one-time costs to each dealer for obtaining 
equipment to incapacitate tires so that the tires could not be resold 
to the public (although we believed that many dealers already owned 
such equipment) at between $70.00 (to purchase a power drill and a 
drill bit) and $95.00 (to purchase a cutoff saw and blade(s)) per 
affected dealer, or a maximum of between $245,000 and $332,500, 
assuming that each of the 3,500 dealers purchased a new drill and bit 
or cutoff saw and blade. We noted that, because not every dealer is 
involved in a tire recall every year, the aggregate one-time cost would 
be incurred over a multi-year time period. Under RMA's alternative 
proposal, all of these costs to dealers could be eliminated.

C. National Environmental Policy Act

    We have reviewed this proposal for the purposed of compliance with 
the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and 
determined that it would not have a significant impact on the quality 
of the human environment. The proposed rule would not require 
manufacturers to conduct any recalls beyond those that they already are 
required to conduct. The sale of recalled tires is prohibited by other 
provisions in the Safety Act. Disposal requirements are already 
governed by other State laws and regulations.

D. Paperwork Reduction Act

    As we indicated in the NPRM, our proposed rule would impose new 
collection of information burdens within the meaning of the Paperwork 
Reduction Act of 1995 (PRA) (44 U.S.C. Chapter 35). However, those 
burdens should be minimal. Manufacturers already are required by our 
regulations to file plans and quarterly reports about tire recalls with 
us. There would be an incremental burden of adding to the 
manufacturers' descriptions of their programs. Even this impact would 
be minor, since it only would involve adding a description of plans for 
incapacitating and disposing of recalled noncompliant or defective 
tires to their remedy programs and providing minimal reporting on the 
plans in the quarterly reports that manufacturers already must file 
with NHTSA. The limited additional ``exceptions reporting'' that our 
proposed rule would have required of manufacturers and of manufacturer-
controlled outlets that implement recalls, i.e. periodic Aexceptions 
reporting'' of aggregate numbers of recalled tires that have not been 
incapacitated for use or that have been disposed of unlawfully, 
describing any failure to comply with the manufacturer's plan to render 
tires unsuitable for installation on a motor vehicle for resale and any 
failure to comply with the disposal requirements of applicable state 
and local laws and regulations of which the manufacturer becomes aware, 
would be still more limited under RMA's proposal. We believe that both 
the proposed rule and RMA's proposal would not impose significant 
additional costs or burdens either on the manufacturers that conduct 
the tire recalls or on the manufacturer-controlled outlets that 
implement them.
    Because this proposed rule would impose information collection 
requirements, albeit minimal, as that term is defined by the Office of 
Management and Budget (OMB) in 5 CFR Part 1329, we stated in the NPRM 
that we plan to submit the proposed requirements to OMB for its 
approval, as required by the PRA. We sought comments on the information 
collection burdens associated with the NPRM. We now seek comments on 
the information collection burdens associated with the RMA proposal.

E. Executive Order 13132 (Federalism)

    Executive Order 13132 on AFederalism'' requires us to develop an 
accountable process to ensure Ameaningful and timely input'' by State 
and local officials in the development of Aregulatory policies that 
have federalism implications.'' The Executive Order defines this phrase 
to include regulations Athat 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.'' In the NPRM, we stated that our 
proposed rule, which would require that manufacturers include a plan 
for disposal of recalled tires in their remedy programs under either 
section 30118(b) or 30118(c) of the Safety Act, will not have 
substantial direct effect 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 E.O. 13132. Both the NPRM and RMA's proposal do not have 
those implications because both apply directly only to manufacturers 
who are required to file a remedy plan under sections 30118(b) or 
30118(c), rather than to the States or local governments, and because 
they directs manufacturers to file plans that conform with applicable 
state and/or local requirements.

F. Civil Justice Reform

    Neither the RMA proposal nor our proposed rule would have a 
retroactive or preemptive effect. Judicial review of the rule may be 
obtained pursuant to 5 U.S.C. 702. That section does not require that a 
petition for reconsideration be filed prior to seeking judicial review.

G. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires 
agencies to prepare a written assessment of the cost, benefits and 
other effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local or tribunal 
governments, in the aggregate, or by the private sector, of more than 
$100 million annually. Because neither our proposed rule nor the RMA 
proposal would have a $100 million annual effect, no Unfunded Mandates 
assessment is necessary and one will not be prepared.

H. Plain Language

    Executive Order 12866 and the President's memorandum of June 1, 
1998, require 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 is not 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 rule.

II. Submission of Comments

A. How Can I Influence NHTSA's Thinking on This Notice?

    Your comments will help us decide whether to adopt RMA's 
alternative proposal, in whole or in part. We invite you to provide 
different views on this proposal, new approaches we have not 
considered, new data, information about

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how this proposal may affect you, or other relevant information. Your 
comments will be most effective if you follow the suggestions below. 
Explain your views and reasoning as clearly as possible:
     Provide solid information to support your views.
     If you estimate potential numbers or reports or costs, 
explain how you arrived at the estimate.
     Tell us which parts of the rule you support, as well as 
those with which you disagree.
     Provide specific examples to illustrate your concerns.
     Offer specific alternatives.
     Refer your comments to specific sections of the rule, such 
as the units or page numbers of the preamble, or the regulatory 
sections.
     Be sure to include the name, date, and docket number with 
your comments.

B. How Do I Prepare and Submit 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 of this document in your comments.
    Your comments must not be more than 15 pages long. (49 CFR 553.21.) 
We established this limit to encourage you to write your primary 
comments in a concise fashion. However, you may attach necessary 
additional documents to your comments. There is no limit on the length 
of the attachments.
    Please submit two copies of your comments, including the 
attachments, to Docket Management at the address given above under 
ADDRESSES.
    Comments may also be submitted to the docket electronically by 
logging onto the Docket Management System website at http://
dms.dot.gov. Click on ``Help & Information'' or ``Help/Info'' to obtain 
instructions for filing the document electronically.

C. How Can I be Sure that My Comments Were Received?

    If you 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.

D. 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 (NCC-30), NHTSA, at the 
address given above under FOR FURTHER INFORMATION CONTACT. In addition, 
you should submit two copies, from which you have deleted the claimed 
confidential business information, to Docket Management at the address 
given above under ADDRESSES. 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. (49 CFR Part 512.)

E. Will the Agency Consider Late Comments?

    We will consider all comments that Docket Management receives 
before the close of business on the comment closing date indicated 
above under DATES. To the extent possible, we will also consider 
comments that Docket Management receives after that date. If Docket 
Management receives a comment too late for us to consider it in 
developing a final rule (assuming that one is issued), we will consider 
that comment as an informal suggestion for future rulemaking action.

F. How Can I Read the Comments Submitted by Other People and Other 
Materials Relevant to this Rulemaking?

    You may view the materials in the docket for this rulemaking on the 
Internet. These materials include background information on the use of 
tires in landfills and written comments submitted by other interested 
persons. You may read them at the address given above under ADDRESSES. 
The hours of the Docket are indicated above in the same location.
    You may also see the comments and materials on the Internet. To 
read them on the Internet, take the following steps:
    (1) Go to the Docket Management System (DMS) Web page of the 
Department of Transportation (http://dms.dot.gov/)
    (2) On that page, click on ``search.''
    (3) On the next page (http://dms.dot.gov/search/), type in the 
four-digit docket number shown at the beginning of this document. 
Example: If the docket number were ``NHTSA-2000-1234,'' you would type 
``1234.'' After typing the docket number, click on ``search.''
    (4) On the next page, which contains docket summary information for 
the materials in the docket you selected, click on the desired 
comments. You may download the comments.
    (5) To view the RMA comment, which responds to docket NHTSA-2001-
10856, type 10856, click on ``search,'' and click on Document Number 
NHTSA-2001-10856-9.
    Please note that even after the comment closing date, we will 
continue to file relevant information in the Docket as it becomes 
available. Further, some people may submit late comments. Accordingly, 
we recommend that you periodically check the Docket for new material.

    Issued on: July 22, 2002.
L. Robert Shelton,
Executive Director.
[FR Doc. 02-18996 Filed 7-25-02; 8:45 am]
BILLING CODE 4910-59-P