[Federal Register: December 18, 2001 (Volume 66, Number 243)]
[Proposed Rules]
[Page 65165-65173]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de01-32]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 573
[Docket No. NHTSA-2001-10856]
RIN 2127-AI29
Motor Vehicle Safety; Disposition of Recalled Tires
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This proposes a rule implementing section 7 of the
Transportation Recall Enhancement, Accountability, and Documentation
(TREAD) Act. Section 7 provides that a manufacturer's remedy program
for the replacement of defective or noncompliant tires shall include a
plan addressing how to prevent, to the extent reasonably within the
manufacturer's control, the replaced tires from being resold for
installation on a motor vehicle, and also how to limit, to the extent
reasonably within the manufacturer's control, the disposal of replaced
tires in landfills. Section 7 also requires the manufacturer to include
information about the implementation of the plan in quarterly reports
to the Secretary about the progress of any notification and remedy
campaigns.
DATES: Comments: You should submit your comments early enough to ensure
that Docket Management receives them not later than February 19, 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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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:
I. Background
On November 1, 2000, the TREAD Act, Pub. L. 106-414, was enacted.
The statute was, in part, a response to congressional concerns related
to the tire recall being conducted by Bridgestone/Firestone, Inc.
(``Firestone'') during the summer and fall of 2000 with respect to
safety-related defects in about 6.5 million Firestone ATX and ATX II
size P235/75R15 tires (manufactured at all U.S. Firestone plants) and
Firestone Wilderness AT tires of that size manufactured at Firestone's
Decatur, Illinois plant.
Under 49 U.S.C. 30118(b), NHTSA may make a final decision that a
motor vehicle or replacement equipment (including a tire) contains a
defect related to motor vehicle safety or does
[[Page 65166]]
not comply with an applicable Federal motor vehicle safety standard. In
addition, under 49 U.S.C. 30118(c), a manufacturer of a motor vehicle
or replacement equipment (including a tire) is required to notify NHTSA
if the manufacturer decides that the vehicle or equipment contains a
defect that is related to motor vehicle safety or does not comply with
an applicable Federal motor vehicle safety standard. In either
instance, in the case of tires, the manufacturer of the defective or
noncompliant tires (including original equipment tires that are
installed on or sold with new motor vehicles, as well as replacement
tires) is required under 49 U.S.C. 30119 to notify tire owners of the
defect or noncompliance and is required under 49 U.S.C. 30120(b) to
repair or replace the defective or noncompliant tires within 60 days of
the notification to owners about the recall or about the availability
of replacement tires. (This 60-day period may be extended if
replacement tires are not available promptly.)
Also, pre-TREAD Act law, 49 U.S.C. 30120(d), required the
manufacturer to file with the Secretary a copy of the manufacturer's
program for remedying a defect or noncompliance. But section 30120(d)
did not require the manufacturer's program to include a plan for the
disposition or disposal of recalled tires that were returned by the
tire owners or purchasers.
Section 7 of the 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.
The TREAD Act authorizes the Secretary of Transportation (``the
Secretary'') to issue various rules relating to a manufacturer's
notification and remedy program, to carry out Chapter 301 of Title 49
of the United States Code, which is commonly referred to as the Safety
Act. This rulemaking authority has been delegated to NHTSA's
Administrator in 49 CFR 1.50.
In order to implement section 7's new requirements concerning
manufacturers' plans to preclude resale and for disposition of replaced
tires, we are proposing to amend 49 CFR 573.5 and 573.6. Below are a
summary and explanation of the provisions of today's proposed rule.
II. Discussion
A. Introduction and Background
1. Reason for TREAD Requirements
a. Need To Prevent Resale of Recalled Tires
The provision in section 7 of the TREAD Act that requires
manufacturers to provide plans to prevent the resale of recalled tires
for use on motor vehicles supplements the pre-TREAD Act ban on the sale
of new defective or noncompliant motor vehicles or motor vehicle
equipment, unless and until (if possible) they have been remedied. 49
U.S.C. 30120(i). It also supplements section 8 of the TREAD Act, which
prohibits the sale or lease of any (new or used) defective or
noncompliant motor vehicle equipment (including a tire) for
installation on a motor vehicle, unless and until (if possible) the
defect or noncompliance has been remedied. 49 U.S.C. 30120(j). Finally,
it is also related to section 3(c) of the TREAD Act, which requires any
person who (1) knowingly and willfully sells or leases for use on a
motor vehicle a defective tire or a tire not in compliance with
applicable safety standards and (2) has actual knowledge that the
manufacturer of such tire has notified its dealers of such defect or
noncompliance, to report that sale or lease to NHTSA. 49 U.S.C.
30166(n). NHTSA has already issued regulations implementing section
30166(n); see 49 CFR 573.10.
Most tires that are recalled are unrepairable, and therefore most
are replaced rather than repaired. Section 7 of TREAD recognizes the
reality that tire recalls may result in the creation of stockpiles of
dangerous, unremedied tires and requires manufacturers to develop plans
to deal with them.
a. Problems Posed by Scrap Tires
Today's proposed rule would require manufacturers to develop plans
addressing how they will prevent, to the extent reasonably within the
manufacturers' control, recalled tires from being resold for use on
motor vehicles, and that limit the disposal of recalled tires in
landfills and provide instead, to the extent reasonably within the
manufacturers' control, for disposition by other means, such as
shredding, crumbling, recycling, and recovery. The proposed rule also
would require manufacturers to include information about implementation
of their plans in the quarterly reports that the manufacturers must
file with us under our reporting regulations,49 CFR 573.6.
Defective tires pose a substantial risk to motor vehicle safety.
The Firestone tires that have been recalled have been associated with
numerous deaths. The recall included both new tires in stock and used
tires. Many of the remaining tires had considerable remaining tread and
could have been reused if they had not been physically altered to
preclude their use on a motor vehicle.
The management and disposition of tires is an ongoing environmental
concern that can be aggravated by a safety recall. More than 270
million tires are scrapped annually in the United States. Although the
6.5 million tires involved in last year's Firestone recall would in the
aggregate amount to a substantial volume of tires, the recall has been
characterized as representing ``just a drop in the bucket'' compared to
the numbers of tires disposed of annually. See ``Recalled Tires Just a
Drop in the Industry Bucket,'' Recycling Today, News (October 2000),
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://recyclbroker.com/info-tires.htm. A copy of this article has been
placed in the docket for this rulemaking.
In addition to being unsightly and large, stockpiled ``scrap''
tires may present serious health and environmental risks. Tire piles
can collect gas, and they provide breeding grounds for rodents and
mosquitoes. Whole tires tend to rise in a landfill and come to the
surface, which may compromise a landfill cover, and allow water to
enter a landfill which would generate leachate. Tire piles also are
susceptible to fire from arson, lightning, and even spontaneous
combustion. Tire pile fires pollute the air and are difficult to
extinguish. Water used to extinguish them becomes polluted with toxic
substances and may pollute watercourses.
2. State Regulation of Management and Disposal of Scrap Tires
Because of the environmental risks posed by scrap tires, many
states ban the disposal of whole scrap tires in landfills, and 49 of
the 50 states have some form of regulations that cover scrap tire
management, including in some instances charges for tire disposal and
financial incentives for using scrap tires in other products. These
state laws and regulations are summarized briefly in a booklet
published by the U.S. Environmental Protection Agency (``EPA''), State
Scrap Tire Programs: A Quick Reference Guide: 1999 Update (EPA-530-99-
002) (August 1999). This
[[Page 65167]]
booklet presents a matrix that summarizes each state's scrap tire
programs and regulations, provides information about how to contact
state scrap tire program managers, and describes grants and other
programs that are intended to improve scrap tire disposal and recycling
and reduction. A copy of this booklet has been placed in the docket for
this rulemaking action; it is also available at EPA's website: (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.epa.gov) . This is included in the docket as illustrative
background material and not as an official statement or interpretation
of applicable legal requirements.
3. Possible Uses for Scrap Tires
Today's steel-belted radial tires are not biodegradable and are
difficult to dispose of or recycle, because they are made of a mixture
of fabric, steel, carbon black, and several types of natural and
synthetic rubbers. According to the U.S. Department of Energy
(``DOE''), estimates of the number of ``scrap'' tires in stockpiles
around the United States range from 500 million to three billion. See
DOE, Consumer Energy Information: EEC Reference Briefs, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.eren.doe.gov/consumerinfo/refbriefs/ee9/html, which has been placed
in the docket for this rulemaking action). Additional environmental
information relevant to the subject of this rulemaking is available on
the Scrap Tire Management Council Website and on the Website of Scrap
Tire News (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.scraptirenews.com/archive.html), published by the
Recycling Research Institute of Suffield. CT.
The need to develop uses for ``scrap'' tires has been recognized
for many years, by government agencies and by the tire industry, which
has established a Scrap Tire Management Council, a nonprofit
organization that is devoted to expanding the market for scrap tires.
(The council's Website address is http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.rma.org/scraptires/scraptires.html). Section 7 of the TREAD Act recognizes this same need.
Another EPA booklet, Summary of Markets for Scrap Tires (EPA/530-
SW-90-0748 (October 1991)) (``EPA Market Summary''), describes
potential market uses for scrap tires. These uses include the
manufacture of crumb rubber, which may be incorporated into asphalt
pavement, into rubber products such as floor mats, vehicle mud guards
and carpet padding, and into plastic products such as floor mats and
adhesives, or processed further into reclaimed rubber, which is made by
mixing crumb rubber with water, oil and chemicals and heating the
mixture under pressure. Crumb rubber also can be used in railroad
crossings. Shredded tires can be used as bulking agents in the
composting of wastewater treatment sludge. Chipped tires can be used
for playground gravel substitutes and lightweight road fill material.
Whole or partial scrap tires also can be used for artificial reefs,
breakwaters, erosion control, playground equipment, commercial fishing
equipment, and highway crash barriers. See ``EPA Market Summary,'' pp.
8-9. This booklet has been placed in the docket for this rulemaking
action. See also A. Moorse, ``Recycled rubber goods maker moves into
production stage,'' Capital District Business Review, Sept. 2, 2000. A
hard copy of this article has been placed in the docket for this
rulemaking action; it also is available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://albany.bcentral.com/albany/stories/20000/09/04/story3.html.
Scrap tires can also be used as fuel. They represent a potentially
significant energy source, because they have a heat value slightly
higher than that of coal (EPA Market Summary, p. 5) and they are
comparable to or better than coal in terms of emissions of some
pollutants. See L.Chubb, ``Firestone recall: Where have all the tires
gone?'' Environmental News Network (``ENN'') , 9/20/2000 (citing
statement of John Serumgard of the Scrap Tire Management Council).
Power plants, tire manufacturing plants, cement kilns, and pulp and
paper mills have used tires as fuel. Usually they burn tires that have
been shredded into chunks (also known as tire-derived-fuel, or
``tdf''), because they do not have the capability to burn whole tires.
Some plants can produce their own tdf in furnaces; others can use tdf
prepared by others. According to one source, last year, a total of 110
electricity generating facilities in the U.S. held permits to burn
tires. See Chubb, ``Firestone recall * * *'', supra. A hard copy of
this article has been placed in the docket for this rulemaking action;
it also is available from ENN's website (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.enn.com/news/enn-stories/2000/09/09202000/tires--31672.asp?P=2).
B. Who Would be Required to Comply with the Requirements to file
Programs and Reports about Disposition and Disposal of Recalled Tires?
We are proposing that the rule's requirements apply to all
manufacturers that conduct tire recalls, including vehicle
manufacturers that conduct recalls to correct defects in their vehicles
in which the remedy is the replacement of tires.
TREAD section 7's amendment to subsection 30120(d) provides that,
for a remedy involving the replacement of tires, the manufacturer shall
include a plan addressing how to prevent replaced tires from being
resold for use on motor vehicles or disposed of in landfills. In this
amendment, Congress added these requirements to the pre-existing
30120(d) requirement that a manufacturer file with the Secretary a copy
of the manufacturer's program for remedying a defect or noncompliance.
In this context, the use of the term ``manufacturer'' in section 7
indicates that the term applies to all manufacturers that conduct
recalls of tires under the Safety Act to correct safety-related defects
or noncompliances with applicable standards.
Tires are motor vehicle equipment. With respect to the recall
provisions of the Safety Act, 49 U.S.C. 30118-30121, by regulation
tires are considered as replacement equipment, even if they were
installed on a motor vehicle at the time of first sale. 49 CFR
579.4(b)(2). Therefore, tire manufacturers have the duty to conduct
notification and remedy campaigns to address defective or noncompliant
tires, including tires installed on new vehicles. See 49 CFR 579.5(b).
Tire brand name owners, such as retail chain stores that sell tires
under their own ``private labels'' or ``house labels'' are also
considered manufacturers (49 U.S.C. 30102(b)(1)(E)) and have the same
defect and noncompliance reporting requirements as manufacturers under
49 CFR 573.3(d). All of these would be required to file reports
required under the proposed rule, if their tires were found to be
defective or noncompliant.
In rare circumstances, vehicle manufacturers also may conduct
recall campaigns regarding tires installed on their new vehicles. For
example, Ford Motor Company (Ford) recently announced a recall to
replace tires on MY 2002 Ford Explorer vehicles whose sidewalls had
been cut during the vehicle assembly process. Because the tire
disposition problem also affects tires that are removed during these
recalls, the proposed rule also applies to vehicle manufacturers that
initiate tire recalls.
C. What Elements Would the Manufacturers' Plans Address?
1. Summary
We are proposing to require manufacturers to include information
about their plans for incapacitating and disposing of recalled tires in
their remedy programs, and to require that manufacturers implement
these plans. We are proposing that manufacturers' plans address, at a
minimum, three
[[Page 65168]]
major issues: (1) Ways of assuring that the entities replacing the
tires are aware of legal prohibitions on the sale of the defective or
noncompliant tires under the Safety Act, (2) methods 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. NHTSA believes that the extent of
the manufacturer's control over recalled tires likely would vary,
depending on the nature of the manufacturer's relationship with each of
the facilities that replace the recalled tires, which may range from
wholly-owned and franchised tire dealers to independent tire dealers,
motor vehicle dealers, and service stations. We are proposing that
where the manufacturer controls the tire outlet, the manufacturer
direct proper disposition of the tire. Where the manufacturer does not
have control, we are proposing that the manufacturer provide
informational materials to the outlets, including information about the
legal prohibitions on the resale of the tires.
We are proposing ``exceptions reporting'', by manufacturer-
controlled tire outlets to manufacturers monthly and by manufacturers
to NHTSA in quarterly reports filed pursuant to 49 CFR 573.6. These
reports would identify the aggregate number of recalled tires which the
manufacturer becomes aware have not been rendered unsuitable for resale
for installation on a motor vehicle in accordance with the
manufacturer's plan; the aggregate number of recalled tires which the
manufacturer becomes aware have been disposed of in violation of
applicable state and local laws and regulations; and a description of
any such failures of tire outlets to act in accordance with the
manufacturer's plan, including an identification of the outlets in
question.
2. Legislative Background
As described above, section 7 of the TREAD Act provides for two
independent plans for the disposition of recalled tires: (1) Plans for
the restriction of the resale of recalled tires and (2) plans for the
limitation of the disposal of recalled tires in landfills. Each may be
qualified by the degree of the manufacturer's control over the tire
replacement process. The first of these provisions was addressed
originally in proposed section 6 of the House Bill underlying the TREAD
Act, ``Sales of Replaced Equipment,'' which would have amended 49
U.S.C. 30120 by adding a requirement, at subsection (d), for the
manufacturer to have a plan addressing how to prevent replaced tires
from being sold for installation on motor vehicles, unless they had
been remedied, to the extent that the manufacturer could reasonably
control such resales. See H.R. Report No. 106-954, 106th Cong., 2d
Sess., pp. 4, 15. This provision did not address the issue of how to
dispose of the unremedied tires, nor did any other part of the original
bill.
The first version of the ``anti-landfill'' portion of section 7 of
the TREAD Act, which was intended to preclude disposition of recalled
tires in public landfills, was proposed as amendment 1(k) to H.R. 5164,
offered by Congressman Pallone on October 5, 2000. This proposed
amendment would have provided that ``[n]o person may dispose of any
[recalled tire] except in a fashion that protects the public health and
safety. Disposal of such tires in a public landfill shall not be
considered adequate protection of the public's health and safety.''
Prior to passage of the House bill (H.R. 5164), this amendment was
withdrawn. See H.R. Rep. No. 106-954, supra, at p. 9.
Eventually, section 6 of the H.R. 5164 was expanded to include a
restriction on the disposition of recalled tires in landfills. The
``reasonable extent of control'' language from section 6 was applied to
the ``anti-landfill'' provision as well as to the ``no resale without
repair'' provision; the references to ``protection of the public health
and safety'' and the direct prohibition of use of recalled tires in
landfills were dropped from the ``anti-landfill'' provision. Both
provisions, with identical reporting requirements, appear in section 7
of the TREAD Act. The legislative history does not provide further
explanation of Congress' action.
3. The August 2000 Firestone Recall
Firestone prepared a Recall Fact Sheet (``Fact Sheet''), dated
August 30, 2000, which was intended to provide Federal, State and local
authorities with information about the scrap tires collected during the
company's August 2000 recall. The Fact Sheet contained a general
description of the procedures in place at the 13,000 authorized service
centers that were replacing recalled tires to manage the proper
disposition of those tires. It outlined the following four elements:
(1) To ensure that recalled tires are not reused on vehicles, the tires
are to be rendered useless by drilling a hole in or cutting through the
sidewall upon removal from the vehicle; (2) the company arranged with
its current scrap tire vendors for additional pickups of scrap tires
from company-owned stores and arranged with its ``normal transportation
vendors'' to visit Firestone stores and authorized service centers and
remove scrap tires; (3) recalled scrap tires are being transported
directly to licensed and permitted recycling facilities or to Firestone
distribution facilities where they are checked to ensure that they have
been rendered useless and then transported to licensed and permitted
recycling facilities; and (4) ``[t]he majority of the recalled tires
are being shredded or beneficially reused as fuel for power plants or
cement kilns, or ground into crumb rubber for recycling into a variety
of useful products such as playground mats, asphalt, and soaker
irrigation hoses.'' It also stated that ``none of the recalled tires
are being redistributed or retreaded.'' This Fact Sheet is available in
the docket for this rulemaking.
4. Plan Elements
We are proposing that manufacturers' plans include three elements.
First, the plans would have to address legal requirements
established by the Safety Act. In addition to the notifications of the
existence of a defect or noncompliance required under 49 U.S.C. 30118-
30119, at a minimum manufacturers would be required to notify all
entities that are authorized to replace the tires in question,
including their owned stores, franchised dealers, and distributors, as
well as independent dealers, about the prohibitions and notification
requirements in the Safety Act as they apply to recalled tires. This
includes the ban on the sale of new defective or noncompliant tires (49
U.S.C. 30120(i), see generally 66 FR 38247 et seq. (July 23, 2001));
the prohibition on the sale of new and used defective and noncompliant
tires (49 U.S.C. 30120(j), see generally 66 FR 38247 et seq. (July 23,
2001)); and the duty to notify NHTSA of any sale of a new or used
recalled tire for use on a motor vehicle (49 U.S.C. 30166(n)), see
generally 49 CFR 573.10, 66 FR 38159 et seq. (July 23, 2001)). The
manufacturer would have to provide informational materials on the
prohibitions and notification requirements to all authorized
replacement outlets. For the tire outlets that are company-owned or
otherwise subject to the control of the manufacturer, the manufacturer
would also be required to provide written direction to the person in
charge of each outlet to comply with the law and to notify all
employees involved in replacing, handling, or disposing of recalled
tires of the requirements.
Second, manufacturers would be required to set forth their programs
to assure, insofar as possible, that the recalled tires are not resold
for
[[Page 65169]]
installation on a motor vehicle. As above, company-owned and other
stores controlled by the company would be directed to permanently alter
the tires so that they could not be used on vehicles. This could
include, for example, drilling substantial (e.g. \1/2\ inch) holes in
the sidewalls, cutting the tire beads, or sawing the tires in half. To
ensure that this alteration is performed, we are also proposing that
stores be directed to do it before the end of the business day on which
the recalled tire has been removed from the vehicle. We seek comments
on whether this time period is sufficient or whether, and why, a
different time period should be specified. The manufacturer would have
to provide authorized tire outlets that it does not control with
guidance on how to permanently alter the tires so that they could not
be used on vehicles and request them to do that promptly.
Third, manufacturers would be required to describe their plans
aimed at limiting the disposal of recalled tires in landfills and,
instead, channeling them into a category of positive reuse (shredding,
crumbling, recycling, and recovery) or another alternative beneficial
non-vehicular use. The proposed rule would require that the
manufacturers' plans provide that company-controlled outlets dispose of
all recalled tires in accordance with applicable state and/or local
laws and regulations. We are further proposing that manufacturers
provide directions to their stores and guidance to independent dealers
about disposition of tires in a manner that, to the extent possible,
avoids landfilling.
We seek comments on whether to require manufacturers to provide
outlets that are authorized to replace tires with information that
summarizes the applicable laws and regulations regarding disposal of
tires in their jurisdictions and that identifies reputable tire
collection and transportation contractors as well as facilities in
their areas that would accept unrepairable recalled tires for a
beneficial use. We believe that this information would be useful to
outlets that replace recalled tires, but we do not know the extent to
which they already have it. We assume that some manufacturers already
provide such information, but we do not know how many do so or the
types of information that are provided. We are interested in comments
on whether providing this information has proved useful to
manufacturers and their dealers and on the extent of the burden that
such a requirement would create.
It is possible that manufacturers could include conditions
governing tire disposition in their contracts for supply of replacement
tires to independent outlets. If this were done, it would help to
assure appropriate disposition of recalled tires by outlets not
controlled by the manufacturer. Because we do not know whether
manufacturers' past and/or existing contracts contain restrictions or
other provisions with respect to the re-use and disposition of recalled
tires, the proposed rule does not address this topic. We seek comments
on this issue, as well as on whether conditions could be included in
the future and what they would be.
In addition, manufacturers would be required to implement their
plans for conducting programs to ensure that recalled tires are
rendered unsuitable for installation on a motor vehicle for resale and
for limiting the disposal of recalled tires in landfills.
We seek comments on the above proposal for plans and, depending on
the comments, may modify the plan requirements. If you suggest
additional items, please include in your comments information about the
associated costs.
5. Quarterly Reporting
Section 7 provides that we must require manufacturers to ``include
information about the implementation of such plan with each quarterly
report to the Secretary regarding the progress of any notification
[and] remedy campaigns.'' The contents of these quarterly reports are
currently described in 49 CFR 573.6.
In order to minimize administrative burdens on manufacturers, we do
not plan to require that manufacturers include in their quarterly
reports the number of recalled tires that have been rendered unsuitable
for resale on motor vehicles or the number of recalled tires that have
been disposed of by various means. Instead, we propose to require
``exceptions reporting'' under which manufacturers must advise us of
only those instances of which they become aware in which their plans
were not followed. The required quarterly reports from manufacturers to
us would include the aggregate number of recalled tires which the
manufacturer becomes aware have not been rendered unsuitable for resale
for installation on a motor vehicle in accordance with the
manufacturer's plan and the aggregate number of recalled tires which
the manufacturer becomes aware have been disposed of in violation of
applicable state and local laws and regulations. The manufacturer would
also be required to describe any such failures of tire outlets to act
in accordance with the directions in the manufacturer's plan, including
an identification of the outlet(s) in question. To permit manufacturers
to report this information in a timely fashion, the proposal would
require manufacturer-controlled outlets that dispose of tires to report
the same categories of information monthly to the manufacturer. We seek
comments on effective reporting mechanisms and on the burdens that such
reporting would impose on the outlets.
D. What Role Does NHTSA Intend to Play With Respect to the
Manufacturers' Plans for the Disposition of Tires?
Under today's proposal, NHTSA's role with respect to reviewing the
manufacturers' plans for the disposition of recalled tires would be
limited to examining the manufacturers' plans, programs, and reports to
see whether they contain the required items of information. We believe
that our list of required reporting elements is sufficiently
comprehensive and specific to ensure that the plans will effectuate
Congressional objectives. Also, the proposed rule would require that
the manufacturers' plans demonstrate that they have directed the
entities that are replacing recalled tires to dispose of them in
accordance with applicable laws. We note that in virtually every state,
the disposition of used tires already is subject to regulation under
State and/or local statutes and regulations. However, we do not have
the resources or the expertise to review the manufacturers'
characterizations of applicable requirements under those environmental
laws. Of course, the failure of a manufacturer to implement its plan in
accordance with its terms would constitute a violation of the Safety
Act.
III. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
We have considered the impact of this proposed rulemaking action
under E.O. 12866 and the Department of Transportation's regulatory
policies and procedures. This rulemaking was not reviewed under E.O.
12866, ``Regulatory Planning and Review.'' This rulemaking is not
considered ``significant'' under the Department of Transportation's
regulatory policies and procedures. The impacts of this rule are
expected to be so minimal as not to warrant preparation of a full
regulatory evaluation because this provision essentially would require
only the supplementing of reports that manufacturers already must file
with limited information about the disposition of recalled tires.
[[Page 65170]]
We estimate that the additional economic impact of this 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). The additional notification and reporting elements
that this rule would add would be very limited and wholly descriptive.
They would not impose significant costs on manufacturers.
In general, the radial tires that are in widespread use today are
far safer than older technology tires and are subject to few
significant recalls. Although the two recalls recently conducted by
Bridgestone/Firestone, Inc. of Firestone ATX and Wilderness AT tires
were very large, this is unusual. In the 1980s and 1990s, there were
relatively few recalls of large numbers of tires. In the past five
years, the average number of tire recalls per year was five, the
average population of recalled tires per year was 28,389, and the
average recall involved 5,678 tires, excluding the aforementioned
Bridgestone/Firestone recalls and a Cooper Tire recall (No. 99T-005),
which covered only two (2) tires. (This excludes recalls to correct
labeling errors.) Therefore, we do not anticipate that there will be
large numbers of tire recalls for which manufacturers would be required
to file programs and plans under our proposed rule.
Finally, this rule essentially would require manufacturers to take
steps to facilitate compliance by entities that replace recalled tires
with applicable state and local laws regarding tire disposition. Since
it is likely that these entities already comply with applicable
requirements for disposal of returned tires, this rule would not add
any substantive burdens or compliance costs. Even in the unlikely event
of complete disregard of applicable disposal requirements (in which
case 100% of the cost of compliance might be viewed as a cost of this
rule), the additional costs for recycling 100% of the tires recalled
annually would be $141,945 for the tire industry as a whole, or $28,390
per average tire recall (assuming 28,389 tires recalled annually, or
5,678 tires recalled per average tire recall, multiplied by $5.00
(including $2.00 to incapacitate each recalled tire, $1.00 to collect
each recalled tire, and $2.00 to recycle each recalled tire)). For
these reasons, we believe that the additional economic effect of this
rule would be minimal.
B. Regulatory Flexibility Act
We have also considered the impacts of this notice under the
Regulatory Flexibility Act. For the reasons discussed above under E.O.
12866 and the DOT Policies and Procedures, I certify that this proposed
rule would not have a significant economic impact on a substantial
number of small entities. The primary impact of this proposed rule
would be felt by the major tire manufacturers, which are not small
entities. This impact would be minor, since it primarily would involve
adding a description of plans for incapacitating and disposing of
recalled noncompliant or defective tires to their remedy programs,
notifying affected retail outlets of the plans, and providing minimal
reporting on the plans in the quarterly reports that manufacturers
already must file with NHTSA. We estimate this cost at $1.00 per tire
manufacturer per affected retail outlet, but the cost could well be
less because manufacturers may already be including such descriptions
in their notices to dealers.
Disposal requirements would be governed by applicable State and
local laws and regulations. It is likely that manufacturers and
entities that replace tires already are complying with applicable
requirements for tire disposal. If not, manufacturers, who we
understand currently pay for tire recalls, would incur the costs
associated with tire disposal, e.g. the costs of transporting disabled
tires and the costs of recycling the tires. We estimate these costs at
approximately $1.00 per tire for transportation and $2.00 per tire for
recycling.
This proposed rule could also have an impact on the nation's 3,500
tire dealers, many of which are small entities. If they do not comply
with applicable requirements for tire disposal, manufacturer-controlled
tire dealers would incur the costs of monthly ``exceptions reporting''
to manufacturers of any instances in which the dealer did not comply
with the manufacturer's plan for disposing of recalled tires. We
estimate these reporting costs at $1.00 per affected dealer per recall.
Each dealer could also incur a one-time cost for obtaining equipment to
incapacitate tires so that the tires cannot be resold to the public.
The one time-cost would likely range 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 purchases a new drill
and bit or cutoff saw and blade. We believe that many dealers already
own such equipment and that therefore the maximum aggregate one-time
cost would be far lower. Also, we note 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.
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
This 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 our ODI. There would be an
incremental burden of adding to their 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
noncomplying 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 additional reporting
elements that this proposed rule would require of manufacturers and of
manufacturer-controlled outlets that implement recalls, i.e. periodic
``exceptions 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 very limited and primarily
descriptive. We believe that compliance with the proposed rule would
not impose significant additional costs or burdens either on the
manufacturers that conduct the tire
[[Page 65171]]
recalls or on the manufacturer-controlled outlets that implement them.
In furtherance of the recognition in section 7 that the manufacturer's
ability to influence the recalls will vary according to the degree to
which it controls the outlets that carry out the recalls, we do not
propose to require even this limited ``exceptions reporting'' by
manufacturers with respect to outlets that the manufacturer does not
control.
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 plan to submit the
proposed requirements to OMB for its approval, as required by the PRA.
We seek comments on the information collection burdens associated with
this proposed rule.
E. Executive Order 13132 (Federalism)
Executive Order 13132 on ``Federalism'' requires us 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.'' The E.O. defines this phrase 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.'' This 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. This rulemaking does not have
those implications because it applies 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
it directs manufacturers to file plans that conform with applicable
state and/or local requirements.
F. Civil Justice Reform
This proposed rule would not 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 this rule would not 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.
IV. Submission of Comments.
A. How Can I Influence NHTSA's Thinking on This Rule?
In developing this notice of proposed rulemaking, we tried to
address the anticipated concerns of all our stakeholders. Your comments
will help us decide what to include in the rule and to improve the
proposed rule. We invite you to provide different views on it, new
approaches we have not considered, new data, how this rule 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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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
[[Page 65172]]
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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov/).
(2) On that page, click on ``search.''
(3) On the next page (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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.
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.
List of Subjects in 49 CFR Part 573:
Defects, Motor vehicle safety, Noncompliance, Reporting and
recordkeeping requirements, Tires.
In consideration of the foregoing, NHTSA proposes to amend 49 CFR
part 573 as set forth below.
1. The authority citation for part 573 continues to read as
follows:
Authority: 49 U.S.C. 30102-103, 30112, 30117-121, 30166-167;
delegation of authority at 49 CFR 1.50.
2. In Sec. 573.5, redesignate paragraphs (c)(9) through (c)(11) as
paragraphs (c)(10) through (c)(12) and by add a new paragraph (c)(9) to
read as follows:
Sec. 573.5 Defect and noncompliance information report.
* * * * *
(c) * * *
(9) In the case of a remedy program involving the replacement of
tires, the manufacturer's program for remedying the defect or
noncompliance shall:
(i) Include a plan for assuring that the entities replacing the
tires are aware of the legal requirements related to recalls of tires
established by 49 U.S.C. Chapter 301, including regulations thereunder;
(ii) Address how the manufacturer will prevent, to the extent
reasonably within its control, the recalled tires from being resold for
installation on a motor vehicle; and
(iii) Address how the manufacturer will limit, to the extent
reasonably within its control, the disposal of the recalled tires in
landfills and, instead, channel them into a category of positive reuse
(shredding, crumbling, recycling, and recovery) or another alternative
beneficial non-vehicular use.
(A) With respect to the requirement in paragraph (c)(9)(i) of this
section, at a minimum, the manufacturer shall notify its owned stores,
franchised dealers, and/or distributors, as well as all independent
outlets that are authorized to replace the tires that are the subject
of the recall, about the prohibitions and notification requirements in
Chapter 301. This includes notification of the ban on the sale of new
defective or noncompliant tires (49 U.S.C. 30120(i)); the prohibition
on the sale of new and used defective and noncompliant tires (49 U.S.C.
30120(j)); and the duty to notify NHTSA of any sale of a new or used
recalled tire for use on a motor vehicle (49 U.S.C. 30166(n)). For tire
outlets that are manufacturer-owned or otherwise subject to the control
of the manufacturer, the manufacturer shall also provide directions to
comply with these statutory provisions and the regulations thereunder.
(B) With respect to the requirement in paragraph (c)(9)(ii) of this
section, the manufacturer's program must, at a minimum, include the
following:
(1) Written directions to manufacturer-owned and other
manufacturer-controlled outlets to alter the recalled tires permanently
so that they cannot be used on vehicles, and instructions on how and
when to perform such alterations. These shall include instructions on
the means to render recalled tires unsuitable for resale for
installation on motor vehicles and instructions to perform the
incapacitation of each recalled tire by the close of business on the
day on which recalled tire has been removed from the vehicle;
(2) Written guidance to all other outlets that are authorized to
replace the recalled tires on how to alter the recalled tires promptly
and permanently so that they cannot be used on vehicles; and
(3) A requirement that manufacturer-owned and other manufacturer-
controlled outlets report to the manufacturer on a monthly basis the
number of recalled tires removed from vehicles by the outlet that have
not been rendered unsuitable for resale for installation on a motor
vehicle within the specified time frame and describe any such failure
to comply with the manufacturer's plan;
(C) With respect to the requirement in paragraph (c)(9)(iii) of
this section, the manufacturer's program must, at a minimum, include
the following:
(1) Written directions that require manufacturer-owned and other
manufacturer-controlled outlets to comply with applicable state and
local laws and regulations regarding disposal of tires, and that
provide further direction and guidance to manufacturer-owned and other
manufacturer-controlled outlets on how to limit the disposal of
recalled tires in landfills and, instead, channel them into a category
of positive reuse (shredding, crumbling, recycling, and recovery) or
another alternative beneficial non-vehicular use;
(2) Written guidance to all other outlets that are authorized to
replace the recalled tires regarding the duty to comply with applicable
state and local laws and regulations regarding disposal of tires; and
(3) A requirement that manufacturer-owned and other manufacturer-
controlled outlets report to the manufacturer on a monthly basis the
number of recalled tires disposed of in violation of applicable laws
and regulations. Each such report shall include a description of any
such failure of the tire outlet to act in accordance
[[Page 65173]]
with the directions in the manufacturer's plan.
(D) As used in this paragraph, written directions to a
manufacturer-owned or controlled outlet shall be sent to the person in
charge of each outlet with further instructions to notify all employees
of the outlet who are involved with removal, rendering unsuitable for
use, or disposition of recalled tires of the above requirements.
(E) Manufacturers must implement the plans for disposition of
recalled tires that they file with NHTSA pursuant to this paragraph.
The failure of a manufacturer to implement its plan in accordance with
its terms constitutes a violation of the Safety Act.
* * * * *
3. In Sec. 573.6, add paragraph (b)(7) to read as follows:
Sec. 573.6 Quarterly reports.
* * * * *
(b) * * *
(7) For all recalls that involve the replacement of tires, the
manufacturer shall provide
(i) The aggregate number of recalled tires which the manufacturer
becomes aware have not been rendered unsuitable for resale for
installation on a motor vehicle in accordance with the manufacturer's
plan provided to NHTSA pursuant to Sec. 573.5(c)(9) of this part;
(ii) The aggregate number of recalled tires which the manufacturer
becomes aware have been disposed of in violation of applicable state
and local laws and regulations; and
(iii) A description of any failure of a tire outlet to act in
accordance with the directions in the manufacturer's plan, including an
identification of the outlets in question.
Issued on: December 11, 2001.
Kenneth N. Weinstein,
Associate Administrator for Safety Assurance.
[FR Doc. 01-30998 Filed 12-17-01; 8:45 am]
BILLING CODE 4910-59-P