A.            The USA TREAD Act

Congress enacted the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act of 2000 ^[2] on November 1, 2000. Section 13 of that Act ^[3] required the Secretary of Transportation, within one year of the statute’s enactment, to complete a rulemaking "to require a warning system in new motor vehicles to indicate to the operator when a tire is significantly under inflated". Section 13 also required the regulation to take effect within two years of the completion of the rulemaking. Responsibility for this rulemaking was delegated to the US government's Department of Transport's National Highway Traffic Safety Administration (NHTSA).

 

          B.            Rulemaking History Prior to the April 2005 Final Rule

Since passage of the TREAD Act, FMVSS No. 138 has had a protracted regulatory history. In summary, the agency published a notice of proposed rulemaking (NPRM) ^[4] on July 26, 2001, which was followed by a final rule ^[5] published on June 5, 2002.

After issuance of the June 2002 final rule, Public Citizen, Inc., New York Public Interest Research Group, and the Center for Auto Safety filed a suit challenging certain aspects of the TPMS regulation. The Court of Appeals for the Second Circuit (Second Circuit) issued its opinion in Public Citizen, Inc. v. Mineta ^[6] on August 6, 2003. The Court found that the TREAD Act unambiguously mandates TPMSs capable of monitoring each tire up to a total of four tires, effectively precluding the one-tire, 30-percent under-inflation detection option in the June 5, 2002 final rule, or any similar option for a system that cannot detect under-inflation in any combination of tires up to four tires. Ultimately, the Court vacated the standard in its entirety and directed the agency to issue a new rule consistent with its August 6, 2003 opinion. NHTSA published a final rule in the Federal Register on November 20, 2003, vacating FMVSS No. 138. ^[7]

The agency commenced rulemaking efforts to re-establish FMVSS No. 138 in a manner consistent with the Court’s opinion and responsive to issues raised in earlier petitions for reconsideration, the majority of which remained relevant. To this end, the agency published a new NPRM ^[8] on September 16, 2004.

After carefully considering public comments on the NPRM, the agency published a final rule ^[9] in the Federal Register on April 8, 2005, which re-established  FMVSS No. 138, with a phase-in set to begin on October 5, 2005. (For a more complete discussion of this earlier period of the regulatory history of the TPMS rulemaking, readers should consult the June 5, 2002 final rule, the September 16, 2004 NPRM, and the April 8, 2005 final rule.)

 
C.            The April 8, 2005 Final Rule
 

As noted above, the April 8, 2005 final rule ^[1]  for TPMS re-established FMVSS No. 138 in a manner consistent with the Second Circuit’s opinion. Specifically, it requires passenger cars, multi-purpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 pounds) or less, except those with dual wheels on an axle, to be equipped with a TPMS to alert the driver when one or more of the vehicle’s tires, up to all four of its tires, is significantly under-inflated. ^[10] Subject to the phase-in schedule and the exceptions below, the final rule mandated compliance with the requirements of the standard, commencing with covered vehicles manufactured on or after October 5, 2005 (i.e., MY 2006). The standard is intended to be technology-neutral, so as to permit compliance with any available TPMS technology that meets the standard’s performance requirements.

The following points highlight the key provisions of the April 8, 2005 final rule.

• The TPMS is required to detect and to provide a warning to the driver within 20 minutes of when the pressure of one or more of the vehicle’s tires, up to a total of four tires, is 25 percent or more below the vehicle manufacturer’s recommended cold inflation pressure for the tires, or a minimum level of pressure specified in the standard, whichever pressure is higher. These minimum activation pressures are included in Table 1 of FMVSS No. 138.

• Vehicle manufacturers must certify vehicle compliance under the standard with the tires installed on the vehicle at the time of initial vehicle sale. ^[11]

• The TPMS must include a low tire pressure warning telltale ^[12] (yellow) that must remain illuminated as long as any of the vehicle’s tires remain significantly under-inflated and the vehicle’s ignition locking system is in the "On" ("Run") position. ^[13] The TPMS’s low tire pressure warning telltale must perform a bulb-check at vehicle start-up.

• The TPMS must also include a TPMS malfunction indicator to alert the driver when the system is non-operational, and thus unable to provide the required low tire pressure warning. ^[14] The TPMS malfunction indicator must detect a malfunction within 20 minutes of occurrence of a system malfunction and provide a warning to the driver. This final rule provided two options by which vehicle manufacturers may indicate a TPMS malfunction:

   

  (1)        Installation of a separate, dedicated telltale (yellow) that illuminates upon detection of the malfunction and remains continuously illuminated as long as the ignition locking system is in the "On" ("Run") position and the situation causing the malfunction remains uncorrected, or:

  (2)        Designing the low tire pressure telltale so that it flashes for a period of at least 60 seconds and no longer than 90 seconds when a malfunction is detected, after which the telltale must remain continuously illuminated as long as the ignition locking system is in the "On" ("Run") position. This flashing and illumination sequence must be repeated upon each subsequent vehicle start-up until the situation causing the malfunction has been corrected.

  If the option for a separate telltale is selected, the TPMS malfunction telltale must perform a bulb-check at vehicle start-up.

• The TPMS is not required to monitor the spare tire (if provided), either when it is stowed or when it is installed on the vehicle.

• For vehicles certified under the standard, vehicle manufacturers must provide in the owner’s manual a specified statement explaining the purpose of the low tire pressure warning telltale, the potential consequences of significantly under-inflated tires, the meaning of the telltale when it is illuminated, and what actions drivers should take when the telltale is illuminated. Vehicle manufacturers also must provide a specified statement in the owner’s manual regarding: (1) potential problems related to compatibility between the vehicle’s TPMS and various replacement or alternate tires and wheels, and (2) the presence and operation of the TPMS malfunction indicator. For vehicles that do not come with an owner’s manual, the required information must be provided in writing to the first purchaser at the time of initial vehicle sale.

In terms of the timing for compliance, the final rule provided as follows. Subject to the vehicle manufacturer option for carry-backward credits discussed below, NHTSA decided to adopt the following phase-in schedule: 20 percent of a vehicle manufacturer’s light vehicles are required to comply with the standard during the period from October 5, 2005 to August 31, 2006; 70 percent during the period from September 1, 2006 to August 31, 2007, and all light vehicles thereafter. Vehicle manufacturers are not required to comply with the requirements related to the TPMS malfunction indicator (including associated owner’s manual requirements) until September 1, 2007; however, at that point, all covered vehicles must meet all relevant requirements of the standard (i.e., no additional phase-in for MIL requirements). The final rule included phase-in reporting requirements consistent with the phase-in schedule discussed above.

Small volume manufacturers (i.e., those manufacturers producing fewer than 5,000 vehicles for sale in the U.S. per year during the phase-in period) are not subject to the phase-in requirements, but their vehicles must meet the requirements of the standard beginning September 1, 2007.

Consistent with the policy set forth in NHTSA’s February 14, 2005 final rule ^[15] on certification requirements for vehicles built in two or more stages and altered vehicles, final-stage manufacturers and alterers must certify compliance for all covered vehicles manufactured on or after September 1, 2008 (no phase-in). However, final-stage manufacturers and alterers may voluntarily certify compliance with the standard prior to this date.

NHTSA decided to permit vehicle manufacturers to earn carry-forward credits for compliant vehicles, produced in excess of the phase-in requirements and manufactured between the effective date of this rule and the conclusion of the phase-in. These carry-forward credits could be used during the phase-in, but they could not be used to delay compliance certification for vehicles produced after the conclusion of the phase-in. Except for vehicles produced by final-stage manufacturers and alterers (who receive an additional year for compliance), all covered vehicles must comply with FMVSS No. 138 on September 1, 2007, without use of any carry-forward credits.

To further ease implementation, we decided to also provide carry-backward credits, whereby vehicle manufacturers may defer compliance with a part or all of the certification requirements for the first period of the phase-in, provided that they certify a correspondingly larger percentage of vehicles under the standard during the second period of the phase-in.

 

D.            Court Challenge to The April 8, 2005 Final Rule
 

After NHTSA issued its final tire pressure monitoring system (TPMS) regulations in April, a court challenge was commenced.

Four tire companies – acting separate from the Rubber Manufacturers Association (RMA) – joined the Tire Industry Association (TIA) and consumer group Public Citizen to file suit against NHTSA, seeking to overturn FMVSS 138 – its TPMS rulings – claiming the agency’s decision “adopting this rule was arbitrary and capricious.”

That places NHTSA in the position of having to defend its reasons for not requiring mandatory TPMS safety systems to work with any replacement tire and allowing a 20-minute warm-up period before a TPMS would have to function.

The action was filed on June 7 in U.S. District Court of Appeals for the District of Columbia.

Because FMVSS 138 was set to take effect by September, it is expected the court will take action soon.

Tiremakers joining forces in filing the suit were Bridgestone/Firestone North American Tire, Goodyear Tire & Rubber Co., Cooper Tire & Rubber Co. and Pirelli Tire North America.

Calling NHTSA’s TPMS ruling “fatally flawed,” TIA Executive Vice President Roy Littlefield said: “Congress charged NHTSA with creating a rule that would keep the motoring public safe. This rule does not do that, which is why we have joined in this lawsuit.”

“We are afraid that this rule, if it is allowed to stand, will make consumers more apathetic to their tires, and our tire retailers, manufacturers and technicians more vulnerable to lawsuits in the future,” said TIA President Dick Gust.

A joint statement issued by the four tire companies said: “Safety is our highest priority. We have taken this significant step – along with Public Citizen and the Tire Industry Association – against NHTSA because we strongly believe the current TPMS rule is fundamentally flawed and, as such, does not fulfill the spirit of the TREAD Act.

“While we support TPMSs as a way to increase safety, the current NHTSA rule does not go far enough. There is technology available to provide faster, more accurate information to motorists, and it should be required by this rule rather than settling for systems which are less accurate,” the statement said.

In the weeks following NHTSA’s issuance of the TPMS regulations, petitions for reconsideration were filed by ETV Corporation Pty Limited, TIA, RMA and SEMA, among others. Also, claiming the RMA did not provide sufficient data to support its request, NHTSA rejected RMA’s petition to establish recommended cold inflation pressures using a tire pressure reserve so that tires could carry the maximum load of a vehicle past the TPMS trigger point.

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^[1] 70 FR 18136 (April 8, 2005) (Docket No. NHTSA-2005-20586-1).

^[2] Public Law 106-414, 114 Stat. 1800 (2000).

^[3] See 49 U.S.C. 30123 note (2003).

^[4] 66 FR 38982 (July 26, 2001) (Docket No. NHTSA-2000-8572-30).

^[5] 67 FR 38704 (June 5, 2002) (Docket No. NHTSA-2000-8572-219).

^[6] 340 F.3d 39 (2d Cir. 2003).

^[7] 68 FR 65404 (Nov. 20, 2003) (Docket No. NHTSA-2003-16524-1).

^[8] 69 FR 55896 (Sept. 16, 2004) (Docket No. NHTSA-2004-19054-1).

^[9] 70 FR 18136 (April 5, 2005) (Docket No. NHTSA-2005-20586-1).

^[10] There are two types of TPMSs currently available, direct TPMSs and indirect TPMSs. Direct TPMSs have a pressure sensor in each wheel that transmits pressure information to a receiver. In contrast, indirect TPMSs do not have tire pressure sensors, but instead rely on the wheel speed sensors, typically a component of an anti-lock braking system, to detect and compare differences in the rotational speed of a vehicle’s wheels, which correlate to differences in tire pressure.

NHTSA anticipates that new types of TPMS technology may be developed in the future that will be capable of meeting the standard’s requirements. For example, such systems might incorporate aspects of both direct and indirect TPMSs (i.e., hybrid systems). In concert with TPMS suppliers, tire manufacturers might be able to incorporate TPMS sensors directly into the tires themselves. In issuing a performance standard, NHTSA is cognizant of and seeks to encourage technological innovation.

^[11] NHTSA noted that some vehicle manufacturers authorize their dealers to replace the vehicle’s factory-installed tires with other tires, including ones with a different size and/or recommended cold tire inflation pressure. The TPMS must perform properly with any such tires, because the vehicle could be equipped with those tires at the time of initial sale. Of course, the manufacturer would not have that responsibility if the dealer installed other tires without manufacturer authorization.

^[12] As part of this final rule, we added two versions of the TPMS low tire pressure telltale and a TPMS malfunction telltale to Table 2 of FMVSS No. 101, Controls and Displays (since changed to Table 1).

^[13] NHTSA noted that if a vehicle manufacturer elects to install a low tire pressure telltale that indicates which tire is under-inflated, the telltale must correctly identify the under-inflated tire. (See S4.3.2, as contained in the April 8, 2005 final rule.)

^[14] NHTSA noted that the TPMS telltale(s) may be incorporated as part of a reconfigurable display, provided that all requirements of the standard are met.

^[15] 70 FR 7414 (Feb. 14, 2005) (Docket No. NHTSA-1999-5673-54).

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