Consumer Information Regulations; Fees for Use of Traction Skid Pads |
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Topics: National Highway Traffic Safety Administration
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Claude Harris
January 13, 2011
[Federal Register: January 13, 2011 (Volume 76, Number 9)]
[Proposed Rules]
[Page 2309-2313]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13ja11-19]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 575
[Docket No. NHTSA 2011-0005]
RIN 2127-AK06
Consumer Information Regulations; Fees for Use of Traction Skid
Pads
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Notice of Proposed Rulemaking (NPRM).
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SUMMARY: This NPRM proposes to amend NHTSA's consumer information
regulations on uniform tire quality grading standards by updating the
fees currently charged for use of the traction skid pads at NHTSA's San
Angelo Test Facility, formerly called the Uniform Tire Quality Grading
Test Facility, in San Angelo, Texas and by eliminating fees for course
monitoring tires, which are no longer supplied by NHTSA. This NPRM
updates the fees in accordance with Office of Management and Budget
Circular A-25, which governs fees assessed for Government services and
use of Government goods or resources.
DATES: Comments to this proposal must be received on or before March
14, 2011.
ADDRESSES: You may submit comments, identified by the docket number in
the heading of this document, by any of the following methods:
Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the instructions for submitting comments on
the electronic docket site by clicking on ``Help'' or ``FAQ.''
Mail: Docket Management Facility, M-30, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building Ground
Floor, Rm. W12-140, Washington, DC 20590.
[[Page 2310]]
Hand Delivery or Courier: 1200 New Jersey Avenue, SE.,
West Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m.
Eastern Time, Monday through Friday, except Federal holidays.
Fax: (202) 493-2251.
Regardless of how you submit your comments, you should mention the
docket number of this document.
You may call the Docket Management Facility at 202-366-9826.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Public
Participation heading of the Supplementary Information section of this
document. Note that all comments received will be posted without change
to http://www.regulations.gov, including any personal information
provided.
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78) or you may visit http://www.dot.gov/
privacy.html.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov, or the street
address listed above. Follow the online instructions for accessing the
dockets.
FOR FURTHER INFORMATION CONTACT: For program issues: Mr. George
Gillespie, Office of Vehicle Safety Compliance, National Highway
Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington,
DC 20590. Telephone: (202) 366-5299.
For legal issues: Ms. Carrie Gage, Office of the Chief Counsel,
National Highway Traffic Safety Administration, 1200 New Jersey Avenue,
SE., Washington, DC 20590. Telephone: (202) 366-6051.
SUPPLEMENTARY INFORMATION:
I. Background
Section 203 of the National Traffic and Motor Vehicle Safety Act of
1966 directs the Secretary of Transportation to prescribe standards
establishing ``a uniform quality grading system for motor vehicle
tires.'' 49 U.S.C. 30123. Those standards are found at 49 CFR 575.104.
To aid consumers in making an informed choice in the purchase of
passenger car tires, the standards require motor vehicle and tire
manufacturers and tire brand owners to label such tires with
information indicating their relative performance in the areas of
treadwear, traction and temperature resistance. See 49 CFR 575.104(a).
The Uniform Tire Quality Grading Standards (UTQGS), 49 CFR 575.104,
state that tire traction is ``evaluated on skid pads that are
established, and whose severity is monitored, by the NHTSA both for its
compliance testing and for that of regulated persons.'' 49 CFR
575.104(f)(1). As further described in the standards, the test pads are
paved with asphalt and concrete surfaces that have specified locked
wheel traction coefficients when evaluated in a manner prescribed in
the standards. The traction skid pads are located at NHTSA's San Angelo
Test Facility. 49 CFR 575.104, App. B. In addition to this government
test facility, traction skid pads have been constructed at several
commercial facilities.
The current fees charged for use of the traction skid pads at the
San Angelo Test Facility, as well as fees charged for course monitoring
tires, were established by final rule published in the Federal Register
on August 2, 1995. See 60 FR 39269 (Aug. 2, 1995).\1\ Pursuant to
Appendix D to 49 CFR 575.104, the fees charged to manufacturers for use
of the Government traction skid pads continue in effect until adjusted
by the Administrator of NHTSA.
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\1\ The August 2, 1995 final rule responded to a Department of
Transportation Office of Inspector General (OIG) audit of NHTSA's
facility in San Angelo in which the OIG concluded that NHTSA was not
charging a user fee for the use of the traction skid pads at the
facility and was not recovering the full cost of the course
monitoring tires that it sold at San Angelo, contrary to OMB
Circular A-25. See 60 FR 39269.
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II. Proposal
This NPRM proposes to update, in accordance with Office of
Management and Budget (OMB) Circular A-25, the fee charged to
manufacturers for use of the agency's traction skid pads at the San
Angelo Test Facility. It also proposes to remove provisions concerning
the fees charged for course monitoring tires, as NHTSA no longer
supplies these tires for purchase by manufacturers. Based on a current
assessment using a ``market price'' analysis as outlined below, NHTSA
proposes to update the fees for use of the facility from $34.00 an
hour, established in 1995, to $125 an hour. As discussed below, NHTSA
believes that this proposed fee reflects the current market price for
use of traction skid pads.
OMB Circular A-25 establishes Federal policy regarding fees
assessed for Government services and for sale or use of Government
goods or resources. The Circular expresses the general policy that
``[a] user charge * * * will be assessed against each identifiable
recipient for special benefits derived from Federal activities beyond
those received by the general public.'' According to the Circular, a
``special benefit'' accrues and a user charge is assessed when a
Government service ``is performed at the request of or for the
convenience of the recipient, and is beyond the services regularly
received by other members of the same industry or group or by the
general public.'' Manufacturer use of NHTSA's testing facility is a
special benefit because use of the facility is beyond the services
regularly received by the industry or the general public.\2\
Accordingly, NHTSA assesses a user charge for the use of the traction
track.
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\2\ While there is a public benefit in making available a
standardized tire grading facility for manufacturer use, the public
benefits are incidental to the special benefits derived by the
manufacturers. According to Circular A-25, when the public obtains a
benefit as a necessary consequence of an agency's provision of
special benefits to an identifiable recipient, an agency should seek
to recover the applicable fee from the identifiable recipient.
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For the purposes of assessing user charges, the Circular requires
that, when the Government is acting in its capacity as sovereign, user
charges be sufficient to recover the full cost to the Government of
providing the good or service. When the Government is not acting as
sovereign, however, user charges are to be based on market prices. The
Government acts in its capacity as sovereign when it uses powers over
which it has a monopoly. See e.g., U.S. v. Reyes, 87 F.3d 676, 681 (5th
Cir. 1996). The Government may act in a sovereign capacity, for
example, when it is the only source of a good or service, such as where
the Government issues a license. See National Park Service--Special
Park Use Fees, B-307319, *6 (Aug. 23, 2007).
The agency is not acting in its capacity as sovereign in making the
San Angelo Test Facility available for traction testing by
manufacturers. That facility serves primarily for NHTSA's own
compliance testing of manufacturers' tires. As we recently stated with
regard to the UTQGS regulations, manufacturers are not restricted to
the use of the traction skid pads at the government facility in San
Angelo. Rather, manufacturers may test their tires wherever they
choose. See 75 FR 15894, 15913 (March 30, 2010).\3\
[[Page 2311]]
Because NHTSA's own compliance tests are conducted at the San Angelo
Test Facility, tire manufacturers often choose to do so as well.
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\3\ It is the responsibility of each tire manufacturer to
certify that its tires comply with applicable Federal safety
standards.
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III. Proposed Fee Update Based on Market Price
Pursuant to Circular A-25, ```Market price' means the price for a
good, resource, or service that is based on competition in open
markets, and creates neither a shortage nor a surplus of the good,
resource, or service.'' Where there is substantial competitive demand
for a good, resource, or service, the market price is determined by
commercial practice, for example, by competitive bidding, or by
reference to the prevailing price of the same or similar good,
resources, or services, adjusted to reflect demand, level of service
and quality of the good or service.
To determine the appropriate market price for use of the San Angelo
Test Facility, NHTSA surveyed several commercial facilities with
traction skid pads available for public use. Prices for the hourly use
of traction skid pads ranged from approximately $115 per hour to
approximately $200 per hour. From its own experience, NHTSA believes
that discounted rates may be available based on volume use or advance
planning. Accordingly, NHTSA believes it is appropriate to take the
availability of discounts into account in arriving at a determination
of market rate. Taking a conservative approach, we propose to set the
rate for use of the traction skid pads at the lower end of this range--
$125 per hour. NHTSA welcomes comments regarding whether our proposed
rate for hourly use of the traction skid pads at the San Angelo Test
Facility accurately reflects the market price for such services.
IV. Public Participation
Interested persons are invited to comment on this notice of
proposed rulemaking. The procedure for submitting comments is noted
below.
How do I prepare and submit written comments?
Your comments must be written and in English. To ensure that your
comments are correctly filed in the Docket, please include the docket
number at the beginning of this NPRM in your comments. Your primary
comments cannot exceed 15 pages. See 49 CFR 553.21. We established this
limit to encourage you to write your primary comments in a concise
fashion. However, you may attach additional documents to your primary
comments. There is no limit to the length of the attachments.
Please submit your comments by any of the following methods:
Federal eRulemaking Portal: go to http://
www.regulations.gov. Follow the instructions for submitting comments to
the electronic docket site by clicking on ``Help'' or ``FAQ.''
Mail: Docket Management Facility, M-30, U.S. Department of
Transportation, West Building, Ground Floor, Rm. W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue, SE., between 9 am and 5 pm Eastern
Time, Monday through Friday, except Federal holidays.
Fax: (202) 493-2251.
If you are submitting comments electronically as a PDF
(Adobe) file, we ask that the documents submitted be scanned using
Optical Character Recognition (OCR) process, thus allowing the agency
to search and copy certain portions of your submissions.\4\
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\4\ Optical character recognition (OCR) is the process of
converting an image of text, such as a scanned paper document or
electronic fax file, into computer-editable text.
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Please note that pursuant to the Data Quality Act, in
order for substantive data to be relied upon and used by the agency, it
must meet the information quality standards set forth in the OMB and
DOT Data Quality Act guidelines. Accordingly, we encourage you to
consult the guidelines in preparing your comments. OMB's guidelines may
be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html.
How can I be sure that my comments were received?
If you submit your comments by mail and wish Docket Management to
notify you upon its receipt of your comments, enclose a self-addressed,
stamped postcard in the envelope containing your comments. Upon
receiving your comments, Docket Management will return the postcard by
mail.
How do I submit confidential business information?
If you wish to submit any information under a claim of
confidentiality, you should submit three copies of your complete
submission, including the information you claim to be confidential
business information, to the Chief Counsel, NHTSA, at the address given
above under FOR FURTHER INFORMATION CONTACT. When you send a comment
containing information claimed to be confidential business information,
you should include a cover letter setting forth the information
specified in our confidential business information regulation. See 49
CFR 512.
In addition, you should submit a copy, from which you have deleted
the claimed confidential business information, to the Docket by one of
the methods set forth above.
Will the agency consider late comments?
We will consider all comments received before the close of business
on the comment closing date indicated above under DATES. To the extent
possible, we will also consider comments received after that date.
Therefore, if interested persons believe that any new information the
agency places in the docket affects their comments, they may submit
comments after the closing date concerning how the agency should
consider that information for the final rule.
How can I read the comments submitted by other people?
You may read the materials placed in the docket for this document
(e.g., the comments submitted in response to this document by other
interested persons) at any time by going to http://www.regulations.gov.
Follow the online instructions for accessing the dockets. You may also
read the materials at the Docket Management Facility by going to the
street address given above under ADDRESSES. The Docket Management
Facility is open between 9 am and 5 pm Eastern Time, Monday through
Friday, except Federal holidays.
V. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
Executive Order 12866, ``Regulatory Planning and Review,'' 58 FR
51735 (Oct. 4, 1993), provides for making determinations whether a
regulatory action is ``significant'' and therefore subject to Office of
Management and Budget (OMB) review and to the requirements of the
Executive Order. The Order defines a ``significant regulatory action''
as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees,
[[Page 2312]]
or loan programs or the rights and obligations of recipients thereof;
or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities or the principles set forth in the
Executive Order.
NHTSA has considered the impact of this rulemaking action under
Executive Order 12866 and the Department of Transportation's regulatory
policies and procedures. This rulemaking is not significant as it does
not implicate any of the above-enumerated concerns. Accordingly, the
Office of Management and Budget has not reviewed this rulemaking
document under Executive Order 12886. Further, NHTSA has determined
that the rulemaking is not significant under the Department of
Transportation's regulatory policies and procedures.
Based on the type of fees and the anticipated use of the test
track, NHTSA believes that the costs of the final rule would be minimal
and would not warrant preparation of a regulatory evaluation. The
proposed rule would increase fees charged to private manufacturers for
use of a government facility to prevailing market rates. Manufacturers
have a choice as to whether to use this government facility or a
private commercial facility. As a result, this action does not involve
any substantial public interest or controversy. Furthermore, NHTSA
anticipates that any impact on the sale price of tires would be
minimal, because an increase in testing fees would likely be
distributed across a manufacturer's sales volume. There would be no
substantial effect upon State and local governments. There would be no
substantial impact upon a major transportation safety program.
B. National Environmental Policy Act
NHTSA has evaluated this proposed action for purposes of the
National Environmental Policy Act and has determined that it would not
have a significant effect on the quality of the human environment.
C. Regulatory Flexibility Act
NHTSA has considered the impact of this proposed rulemaking under
the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the
Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996).
NHTSA believes that the proposed rule would not have a significant
economic impact on a substantial number of small entities.
The following is NHTSA's statement providing the factual basis for
the certification (5 U.S.C. 605(b)). Tire manufacturers are not small
entities. The proposed amendments would affect businesses that conduct
contract traction testing, some of which are small businesses within
the meaning of the Regulatory Flexibility Act; however, the agency does
not believe that this proposed rule would result in a significant
economic impact on these entities. Under the proposed standards, the
fees paid for use of the government facility would be essentially
equivalent to those paid to a commercial testing facility--the market
rate. The agency believes that small governmental jurisdictions would
be only minimally affected by the proposed rule since they are
generally not large scale purchasers of vehicles tires. Furthermore,
even in the case of substantial purchases, as noted above, costs passed
on to consumers are expected to be minimal since testing fees would
likely be distributed across a manufacturer's sales volume.
D. Executive Order 13132 (Federalism)
Executive Order 13132 on ``Federalism,'' 64 FR 43255 (Aug. 10,
1999), requires NHTSA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
Executive Order 13132 defines the term ``policies that have federalism
implications'' to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, NHTSA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
Government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or NHTSA consults with
State and local officials early in the process of developing the
proposed regulation.
The proposed rule would not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government as specified in Executive Order 13132.
Accordingly, Section 6 of the Executive Order does not apply to this
rulemaking action.
E. Executive Order 12988 (Civil Justice Reform)
Pursuant to Executive Order 12988 ``Civil Justice Reform,'' 61 FR
4729 (Feb. 7, 1996), NHTSA has considered whether this rulemaking would
have any retroactive effect. The proposed rule would not have any
retroactive effect.
F. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA),
Public Law 104-4, requires agencies to prepare a written assessment of
the costs, benefits, and other effects of proposed or final rules that
include a Federal mandate likely to result in the expenditure by State,
local, or Tribal governments, in the aggregate, or by the private
sector, of more than $100 million annually (adjusted for inflation with
the base year of 2005). Adjusting this amount by the implicit gross
domestic product price deflator for 2009 results in $135 million
(109.770/81.536 = 1.35).
This proposed rule will not result in the expenditure by State,
local, or Tribal governments, in the aggregate, of more than $135
million annually, and will not result in an expenditure of that
magnitude by private entities. Because a final rule based on this
proposal would not require expenditures exceeding $135 million
annually, this action is not subject to the requirements of Sections
202 and 205 of the UMRA.
G. Paperwork Reduction Act
Under the procedures established by the Paperwork Reduction Act of
1995 (PRA), a person is not required to respond to a collection of
information by a Federal agency unless the collection displays a valid
OMB control number. The proposed rule does not require the collection
of information by a Federal agency. Accordingly, the PRA is not
applicable to this action.
H. Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN that appears in the heading on the first page of this
document to find this action in the Unified Agenda.
I. Plain Language
Executive Order 12866 requires each agency to write all rules in
plain language. Application of the principles of plain language
includes consideration of the following questions:
Have we organized the material to suit the public's needs?
[[Page 2313]]
Are the requirements in the rule clearly stated?
Does the rule contain technical language or jargon that
isn't clear?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rule easier to understand?
Would more (but shorter) sections be better?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rule easier to
understand?
If you have any responses to these questions, please include them
in your comments on this proposal.
J. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an organization, business, labor union, etc.). You may review DOT's
complete Privacy Act statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://www.dot.gov/privacy.html.
List of Subjects in 49 CFR Part 575
Consumer protection, Incorporation by reference, Motor vehicle
safety, Reporting and recordkeeping requirements, Tires.
In consideration of the foregoing, NHTSA proposes to amend 49 CFR
Part 575 as follows:
PART 575--CONSUMER INFORMATION
1. The authority citation for part 575 continues to read as
follows:
Authority: 49 U.S.C. 32302, 32304A, 30111, 30115, 30117, 30123,
30166, and 30168, Pub. L. 104-414, 114 Stat. 1800, Pub. L. 109-59,
119 Stat. 1144, Pub. L. 110-140, 121 Stat. 1492, 15 U.S.C. 1232(g);
delegation of authority at 49 CFR 1.50.
2. Revise Appendix D to Sec. 575.104 to read as follows:
Sec. 575.104 Uniform tire quality grading standards.
* * * * *
Appendix D--User Fees
1. Use of Government Traction Skid Pads: A fee of $125 will be
assessed for each hour, or fraction thereof, that the traction skid
pads at Goodfellow Air Force Base, San Angelo, Texas are used. This
fee is based upon the market price of the use of the traction skid
pads.
2. Fee payments shall be by check, draft, money order, or
Electronic Funds Transfer System made payable to the Treasurer of
the United States.
3. The fee set forth in this Appendix continues in effect until
adjusted by the Administrator of NHTSA. The Administrator reviews
the fee set forth in this Appendix and, if appropriate, adjusts it
by rule at least every 2 years.
Issued on: January 10, 2011.
Claude Harris,
Acting Associate Administrator for Enforcement.
[FR Doc. 2011-643 Filed 1-12-11; 8:45 am]
BILLING CODE 4910-59-P