\112\ Docket No. NHTSA-2008-0121-0043.1 at 4.
---------------------------------------------------------------------------

    Agency response: NHTSA proposed a definition of replacement
passenger car tire to be ``any passenger car tire other than a
passenger car tire sold as original equipment on a new vehicle.'' As
indicated above, NHTSA interprets EISA's repeated use of the word
``replacement tires''--including in the statute's applicability
provision--to indicate that EISA does not give NHTSA authority to
mandate a rating system for any tires other than replacement tires;
that is, tires sold for use on a new vehicle (OE tires). Therefore, as
NHTSA interprets the statute, the agency does not have the authority
under EISA section 111 to require vehicle manufacturers to display tire
performance information for OE tires. Likewise, EISA expressly forbids
NHTSA from requiring any permanent labeling of this information on
tires, so the Public Citizen et al. comment is not adopted.\113\
---------------------------------------------------------------------------

    \113\ 49 U.S.C. 32304A(d).
---------------------------------------------------------------------------

    However, if tire manufacturers submit rating information on OE
tires to NHTSA, the agency will post that information on its tire Web
site for consumers to look up by vehicle make and model, or by size
designation. NHTSA notes that if OE tires are not rated, consumers will
not be able to compare replacement tires with the tires that were
originally on their vehicle. Therefore, the agency encourages tire
manufacturers to voluntarily report OE tire rating information to NHTSA
so that consumers are able to compare the performance of their OE tires
with what they can expect from potential replacement tires.

    Original equipment tires sold as replacement tires: Tire Rack
commented that it is an independent tire dealer selling OE and
replacement tires and that it believes that the fuel efficiency rating
of all OE tires under the scope of the program should be made public to
provide consumers with a basis of comparison from which they can begin
their search and selection.\114\
---------------------------------------------------------------------------

    \114\ Docket No. NHTSA-2008-0121-0026.1 at 2-3.
---------------------------------------------------------------------------

    Agency response: NHTSA notes that for purposes of the tire fuel
efficiency consumer information program, ``OE'' passenger car tires
sold to consumers at a tire retailer are considered replacement tires
under the definition above because they are not being sold as original
equipment on a new vehicle. These tires were sold from tire
manufacturers to Tire Rack for resale. Hence, the manufacturers must
provide all of this consumer information for those tires and consumers
will be able to look up ratings for those tires on the agency's tire
Web site. Although NHTSA is not requiring consumers be provided with
the tire ratings mandated today when they purchase a new passenger car,
retailers like Tire Rack could choose to tell consumers what fuel
efficiency rating they are currently operating under by finding a
replacement passenger car tire that is identical to the specifications
of the original tires on their vehicle. Additionally, consumers could
look up ratings for these tires on the tire Web site.
3. Tires Excluded
    NHTSA's UTQGS regulation excludes ``deep tread, winter-type snow
tires, space-saver or temporary use spare tires, tires with a nominal
rim diameter of 12 inches or less, [and] limited production tires.''
\115\ 49 CFR 575.104(c)(1). Since EISA specifies that the tire fuel
efficiency requirements are to ``apply only to replacement tires
covered under [NHTSA's UTQGS regulation],'' these exclusions were
included in the NPRM and are included in the new regulations for the
tire fuel efficiency consumer information program established in
today's final rule.\116\
---------------------------------------------------------------------------

    \115\ For UTQGS, a limited production tire is defined as ``a
tire meeting all of the following criteria, as applicable:
    (i) The annual domestic production or importation into the
United States by the tire's manufacturer of tires of the same design
and size as the tire does not exceed 15,000 tires;
    (ii) In the case of a tire marketed under a brand name, the
annual domestic purchase or importation into the United States by a
brand name owner of tires of the same design and size as the tire
does not exceed 15,000 tires;
    (iii) The tire's size was not listed as a vehicle manufacturer's
recommended tire size designation for a new motor vehicle produced
in or imported into the United States in quantities greater than
10,000 during the calendar year preceding the year of the tire's
manufacture; and
    (iv) The total annual domestic production or importation into
the United States by the tire's manufacturer, and in the case of a
tire marketed under a brand name, the total annual domestic purchase
or purchase for importation into the United States by the tire's
brand name owner, of tires meeting the criteria of paragraphs
(c)(2)(i), (ii), and (iii) of this section, does not exceed 35,000
tires.'' 49 CFR 575.104(c)(2).
    \116\ 49 U.S.C. 32304A(a)(3).
---------------------------------------------------------------------------

    Public Citizen et al. commented that it supported requiring deep
tread, winter-type snow tires, and space-saver or temporary use spare
tires to be rated under the tire fuel efficiency consumer information
program.\117\ Public Citizen et al. explained that deep tread tires are
sometimes not intended for sustained highway use, and may create
handling problems when used in normal driving, and that NHTSA has not
addressed whether improper operation on these specialized tire types is
more dangerous. Public Citizen et al. stated that consumers may be
interested in performance characteristics of these specialized tire
types.
---------------------------------------------------------------------------

    \117\ Docket No. NHTSA-2008-0121-0043.1 at 11.
---------------------------------------------------------------------------

    Agency response: As indicated above, because the applicability
provision of EISA section 111 specifically limits this program to
replacement tires covered under NHTSA's UTQGS regulation, and the UTQGS
regulations specifically exclude requiring deep tread, winter-type snow
tires, and space-saver or temporary use spare tires,\118\ as NHTSA
interprets EISA and its UTQGS regulation, NHTSA does not have the
authority under EISA to require vehicle manufacturers to display tire
performance information for these specialty tires. To the extent the
agency has the information, NHTSA will include information on deep
tread, winter-type snow tires, and space-saver or temporary use spare
tires on the tire Web site.
---------------------------------------------------------------------------

    \118\ 49 CFR 575.104(c)(1).
---------------------------------------------------------------------------

    Regarding the use of tires not intended for sustained highway use
in normal driving, NHTSA has historically recognized that improper
operation of any tire can be dangerous. For instance, the recent
``What's your PSI'' campaign and the brochure Tire Safety: Everything's
Riding on It, available on http://www.safercar.gov stress the
importance of proper tire selection and maintenance.
4. Voluntary Rating of Tires Not Subject to the Program
    As noted above in section III.A.1 and III.A.2, EISA excludes LT
tires and OE tires from the tire fuel efficiency consumer information
program.\119\ Some commenters noted concerns with the exclusion of OE
tires and LT tires from the EISA mandated tire fuel efficiency consumer
information program.\120\ For instance, Tire Rack commented that
``[w]hile not required by the rulemaking, it is hoped there would be a
future opportunity for tire manufacturers producing LT-sized tires to
voluntarily provide rolling resistance information.'' \121\
---------------------------------------------------------------------------

    \119\ 49 U.S.C. 32304A(a)(3).
    \120\ Tire Rack Comments, Docket No. NHTSA-2008-0121-0026.1 at
2-3; ICCT Comments, Docket No. NHTSA-2008-0121-0042.1 at 2; Public
Citizen et al. Comments, Docket No. NHTSA-2008-0121-0043.1 at 4.
    \121\ Docket No. NHTSA-2008-0121-0026.1 at 2-3.
---------------------------------------------------------------------------

    Agency response: NHTSA's research included testing of LT tires even
though we are not authorized to regulate them through this tire fuel
efficiency consumer information program because NHTSA's Phase 1
research was initiated in July 2006, subsequent to the release of the
2006 NAS Report and prior to the passage of EISA.\122\ LT tires
represented approximately 16.7 percent of the U.S. replacement tire
market in 2007.\123\ NHTSA notes that it expects test data to be
available for many LT tires, as these tires are covered by the Europe
and California programs. Nothing in this regulation would prohibit
manufacturers from voluntarily rating or reporting data for LT or other
excluded tires, as required for covered tires. The same would be true
for other tires excluded from the tire fuel efficiency consumer
information program including original equipment tires, or any other
excluded tires. That is, while these tires are not required to be rated
under today's final rule, NHTSA has no objection to voluntary rating by
manufacturers or importers, and would include any tires voluntarily
reported in its database.
---------------------------------------------------------------------------

    \122\ Specifically, of the 25 different models of tires tested
in NHTSA's Phase 1 research, 16 tire models were passenger, 9 were
light truck tire models; one of the passenger car tires was the ASTM
F 2493-06 P225/60R16 97S Standard Reference Test Tire (SRTT).
    \123\ Rubber Manufacturers Association, Preliminary 2008
Factbook, see https://www.rma.org/publications/market_information/
index.cfm?CFID=23483353&CFTOKEN=70640000 (last accessed Sept. 26,
2009).
---------------------------------------------------------------------------

5. Each Different Stock Keeping Unit Must Be Rated
    As the agency proposed in the NPRM, this final rule is requiring
each different stock keeping unit (SKU), or each size within each model
within each brand, to be rated separately for fuel efficiency (using a
rolling resistance value), safety (using a wet traction test value),
and durability (using a treadwear test value).

As explained in the NPRM, tire manufacturers may have different brands,
and within each brand different tire models (or tire lines),\124\ and
tire models are often available in different sizes. For example,
Michelin is the manufacturer for the Michelin, BFGoodrich and Uniroyal
brands. A popular Michelin brand model is the Pilot, but other models
include the Energy or the HydroEdge. Each of these brands is available
in different tire sizes, for example a 185/65R14 or a 215/70R15. See
Figure 2.\125\ The model of tire (Pilot) then may be available in
several performance levels. Figure 2 illustrates there are three
different speed ratings for the Pilot model. Performance ratings may
also include All-Season, Competition, Touring, Grand Touring, etc. Each
of these tires may also have different treadwear, traction, temperature
and warranty ratings. These models are then available in different tire
sizes, for example an Exalto A/S is available in sizes 185/60R14 to
235/40R17. Similarly, a Pilot Sport A/S Plus is available in sizes 205/
55R16 to 245/45R20, and the Pilot Sport PS2 is available in sizes 225/
55R16 to 295/25R22.
---------------------------------------------------------------------------

    \124\ For purposes of the tire fuel efficiency consumer
information program, the phrase ``tire line'' and ``tire model'' can
be used interchangeably. The agency will generally use the word
``model'' to refer to a particular line of tires.
    \125\ Although this figure was in the NPRM, this discussion is
repeated here because the agency believes a proper understanding of
the replacement tire market is key to the understanding of certain
requirements of the tire fuel efficiency consumer information
program.
[GRAPHIC] [TIFF OMITTED] TR30MR10.020

    The NPRM also explained that in passenger car tire sizes (e.g.,
185/65R14), the first three numbers indicate the nominal width of the
tire, i.e., the width in millimeters from sidewall edge to sidewall
edge (185). In general, the larger the nominal width, the wider the
tire. The second two numbers in the size designation indicate the ratio
of tire height to tire width, or the aspect ratio (65). For aspect
ratio, numbers of 70 or lower indicate a short sidewall for improved
steering response and better overall handling on dry pavement. The
``R'' indicates that this particular tire is a radial tire, as opposed
to bias ply construction, which is indicated by a ``D'' in the size
specification, or bias-belted construction, which is indicated by a
``B'' in the size specification. Radial ply construction of tires has
been the industry standard for the past 20 years. The last two numbers
in the size designation indicate the rim diameter code (14), or the
wheel or rim diameter in inches. A change in any of these three numbers
indicates a different size specification for a replacement tire.
    Rolling resistance varies among tires of the same size. In NHTSA's
testing, tires of a size 225/60R16, but manufactured by different
companies, and having various performance ratings (e.g., speed rating,
all-season specification) had rolling resistance values ranging from
9.8 to 15.2 pounds.\126\ Rolling resistance can also vary widely across
different sized tires in a brand. In data reported by the California
Energy Commission (CEC), passenger car tires of the same brand and
model with different sizes ranged in rolling resistance from 7.5 to
22.8 pounds.\127\ For these reasons, NHTSA is requiring each SKU, or
each size within each model of each brand, to be rated separately for
fuel efficiency (using a rolling resistance test value), safety (using
a wet traction test value), and durability (using a UTQGS treadwear
test value). Consumers researching tires should be able to compare tire
models and sizes with some reliability.
---------------------------------------------------------------------------

    \126\ See NHTSA Rolling Resistance Rating System Test
Development Project: Phase 1--Evaluation of Laboratory Test
Protocols (October 2008). Docket No. NHTSA-2008-0121-0019.
    \127\ To examine California's rolling resistance test data,
please contact Ray Tuvell of the California Energy Commission. See
http://www.energy.ca.gov/transportation/tire_efficiency/index.html
(last accessed Feb. 13, 2009).
---------------------------------------------------------------------------

    Research done for the CEC to evaluate test facility capacity to
conduct rolling resistance testing indicated that there are well over
20,000 different brand/

model/size combinations (or SKUs) \128\ of replacement passenger car
tires sold in the United States.\129\ The CEC research also indicated
that it could take up to 2.7 years to test one tire of each SKU
once.\130\ Additionally, a tire manufacturer has the ability to
estimate with relative accuracy the rolling resistance test value of a
tire with a given size specification if it knows the rolling resistance
test value of a tire in the same model line (i.e., the ability to
estimate values by interpolating or extrapolating test values for
certain SKUs from knowing the actual test values of other SKUs). Tire
manufacturers have this same ability to estimate UTQGS traction test
values and UTQGS treadwear test values by having actual traction and
treadwear test values of other, similar tires of different SKUs. For
these reasons, NHTSA concludes, as the agency did in the NPRM, that it
is not reasonable or necessary to require a physically-tested value of
rolling resistance, traction, or treadwear test value for every
combination of tire model, construction, and size (SKU). NHTSA is not
requiring tire manufacturers to report a test procedure value for
rolling resistance, traction, and treadwear for each different SKU, as
proposed in the NPRM. NHTSA explained that a tire manufacturer would be
free to reasonably estimate the test values it would report, and the
agency sought comment on this approach.
---------------------------------------------------------------------------

    \128\ A SKU, or stock keeping unit, is a specific market brand
and tire design and size combination. A different SKU can also be
indicated by a different specified load rating or speed rating for a
particular tire. Specifically, NHTSA will define stock keeping unit
as ``the alpha-numeric designation assigned by a manufacturer to
uniquely identify a tire product. This term is sometimes referred to
as a product code, a product ID, or a part number.'' See the
Regulatory Text section at the end of this notice.
    \129\ The CEC research estimated 20,708 different replacement
passenger car tire SKUs and 3,296 replacement LT tire SKUs. This
research was done by Smithers Scientific Services, Inc. (Smithers)
and was presented at a CEC staff workshop on February 5, 2009. This
presentation is available through the CEC's Web site and was also
posted to the NPRM docket. See http://www.energy.ca.gov/
transportation/tire_efficiency/documents/index.html (last accessed
Sept. 28, 2009); Docket No. NHTSA-2008-0121-0007.
    \130\ The Smithers' research conducted for CEC was estimating
various scenarios for testing three of each different replacement
passenger and LT tire SKU (because California's tire fuel efficiency
program covers passenger car and LT replacement tires). The eight
different scenarios varied workdays per year, percent capacity
available, and hours per day of test operation. Based on estimates
of test capacities, the CEC research estimated average test years
required to test three tires of each SKU to be between 0.7 and 8.2
years. Thus, for the purposes of testing one of each different
replacement passenger car tire SKU, we estimate this would take a
maximum of 8\2/3\ years, or 2.7 years.
---------------------------------------------------------------------------

    Interpolation versus required testing: RMA commented that it
supports the ability for tire manufacturers to provide predicted
(interpolated) tire ratings.\131\ RMA stated that tire manufacturers
routinely develop and utilize accurate computer models to predict tire
performance of tires not physically tested, using proprietary
information about tire chemistry, design, construction, and test data
available for similar tires. RMA commented that permitting
interpolation-based ratings would allow a tire manufacturer to
efficiently rate affected tires while minimizing costs. RMA recommended
that NHTSA modify the regulatory text to make clear that interpolation
is acceptable as a basis for tire ratings.
---------------------------------------------------------------------------

    \131\ RMA Comments, Docket No. NHTSA-2008-0121-0036.1 at 12.
---------------------------------------------------------------------------

    NRDC, Ford, and Alan Meier each expressed concern with NHTSA's
proposal to allow manufacturers to report a tire's ratings without
running a test. NRDC commented that requiring tire manufacturers to
submit actual test values would ensure that reported data is accurate
and not requiring actual testing threatens to undermine the rating
system credibility and the program's effectiveness.\132\ Further, NRDC
stated that not specifying a limit on the number of SKUs that can be
reported with estimated, non-tested values would overburden NHTSA's
compliance testing obligation, which they call NHTSA's only accurate
validation mechanism. Ford stated that it did not support interpolating
test values from one tire to another because of potential significant
differences in tire construction from one tire to another, even within
a tire line.\133\ Alan Meier of the University of California, Davis
argued that requiring a direct measurement of each tire is a vital
element of the program because a measurement for each tire model is
essential for the credibility of any information system.\134\ Mr. Meier
also stated that only if NHTSA could substantiate and verify the idea
that test values can be accurately interpolated should a simulation
model be allowed. Similarly, Consumers Union commented that NHTSA
should require a standard statistical process and corresponding sample
size for verifying that the assigned test value is determined with
sufficient significance that no production tire will exceed the maximum
test value assigned.\135\
---------------------------------------------------------------------------

    \132\ NRDC Comments, Docket No. NHTSA-2008-0121-0040.1 at 2, 4.
    \133\ Ford Comments, Docket No. NHTSA-2008-0121-0038.1 at 3.
    \134\ Alan Meier Comments, Docket No. NHTSA-2008-0121-0037.1 at
1-2.
    \135\ Consumers Union Comments, Docket No. NHTSA-2008-0121-0034
at 2.
---------------------------------------------------------------------------

    Agency response: As an initial point, as discussed in section
VII.B.2 below, NHTSA is not requiring tire manufacturers to report test
values to the agency, but merely the actual ratings it is assigning to
each tire SKU. The agency will continue to not require any amount of
actual testing in the regulations for this rating program. First, EISA
does not require particular tests. Second, as noted above, a tire
manufacturer has the ability to estimate with relative accuracy the
test values of a tire with a given size specification if it knows the
test value of a tire in the same model line. NHTSA agrees with RMA's
understanding of the industry that tire manufacturers routinely develop
and utilize accurate computer models to predict tire performance of
tires not physically tested, using information available for similar
tires. Additionally, the CEC research discussed above indicates that
requiring testing of all tire SKUs would cause a significant delay in
the implementation of this program and would increase the cost burden
of this regulatory program on tire manufacturers unnecessarily.
    Finally, not specifically requiring testing is consistent with the
enforcement mechanism known as ``self certification,'' which was
established by statute for Federal motor vehicle safety standards,\136\
and is the process NHTSA follows to ensure compliance with its other
programs and regulations as well. Under self certification, the burden
for ensuring that all new vehicles and equipment (e.g., tires) comply
with Federal regulations is borne by the manufacturer. NHTSA does not
perform any pre-sale testing, approval, or certification of vehicles or
equipment, whether of foreign or domestic manufacture, before
introduction into the U.S. retail market. To ensure compliance with
agency regulations, NHTSA randomly tests certified vehicles or
equipment (in accordance with the test procedures laid out in the
regulations) to determine whether the vehicles or equipment fails to
comply with applicable standards. For such enforcement checks, NHTSA
purchases vehicles and equipment and tests according to the procedures
specified in the standards. If the vehicle or equipment passes the
test, no further action is taken. If the vehicle or equipment fails,
NHTSA has the authority to request additional information from the
manufacturer on the basis for certification and to assess

civil penalties for any confirmed violation.\137\
---------------------------------------------------------------------------

    \136\ 49 U.S.C. 30115.
    \137\ See, e.g., 49 U.S.C. 30165, 30166 (safety standards); 49
U.S.C. 32308, 32309 (consumer information); 49 U.S.C. 32507 (bumper
standards); 49 U.S.C. 32706, 32709 (odometer fraud).
---------------------------------------------------------------------------

    Neither EISA (nor other statutes NHTSA administers) nor NHTSA
standards and regulations require that a manufacturer base its
certifications (or ratings) on any particular tests, any number of
specified tests or, for that matter, any tests at all. A manufacturer
is required to exercise due care in certifying its tires. It is the
responsibility of the tire manufacturer to determine initially what
test results, computer simulations, engineering analyses, or other
information it needs to enable it to certify that its tires comply with
applicable Federal safety standards. The enforcement of the UTQGS
rating system follows the same concept, and the rating system
established under the tire fuel efficiency consumer information program
will do the same.
    For instance, the UTQGS do not require that manufacturers test
their tires at NHTSA's test track at San Angelo, Texas. Manufacturers
may test their tires where they choose, and may even choose not to test
their products at all. However, the specification in the UTQGS
regulations that testing is done at San Angelo means that NHTSA must
use that track in any compliance testing of tires. In order to protect
themselves against the possibility that the agency will find a
noncompliance based on testing at San Angelo and initiate an
enforcement action, it would be prudent for tire manufacturers to base
their assigned grades on their own testing at San Angelo or on some
substitute means whose results demonstrably correlate with the results
of testing at San Angelo.
    Mr. Meier commented that there is considerable evidence that
identical models and SKUs manufactured in different facilities (or at
different times) will have significantly different rolling resistances.
For this reason, Mr. Meier stated a clear and unambiguous audit trail
is needed to link a manufacturer's claimed values to tires that
actually exist. This is not necessary. Since NHTSA conducts annual
compliance testing and could buy and test a tire at any time to compare
to the ratings a manufacturer has reported to the agency, tire
manufacturers are responsible for monitoring the consistency and
accuracy of its ratings throughout the production run. It is in the
best interest of manufacturers, thus, to establish a comprehensive
quality control program to periodically test tires randomly selected to
ensure the accuracy of the rating through the entire production cycle.
    Therefore, consistent with self certification and in the spirit of
other NHTSA standards, tire manufacturers may use their judgment to
determine how many and which tires they must test to be able to
accurately report rolling resistance ratings. Because this is the
agency's general practice, NHTSA does not think it is necessary to make
this clear in the regulatory text, as suggested by RMA. A tire
manufacturer will be responsible for the accuracy of the ratings they
report to NHTSA and otherwise communicate to consumers. That is, for
compliance purposes, NHTSA will test any rated tire according to the
test procedures specified in the regulation (regardless of whether or
not the tire manufacturer has tested this tire), and if the rolling
resistance, traction, or treadwear test value falls outside of NHTSA's
specified tolerance range, the agency will consider that rating a
noncompliance.
    Manufacturers currently rate treadwear by tire line: RMA commented
that since many manufacturers currently rate tires for UTQGS treadwear
by tire line, it is difficult to assess how tires would be rated for
UTQGS treadwear under the proposed SKU-based rating system.\138\
---------------------------------------------------------------------------

    \138\ RMA Comments, Docket No. NHTSA-2008-0121-0036.1 at 11.
---------------------------------------------------------------------------

    Agency response: Tire manufacturers will be able to use their
judgment to determine how many and which tires they must test to enable
them to accurately assign ratings. The manufacturer ultimately bears
the responsibility for establishing ratings considering the variability
of its tire line and the variability of the testing process for that
category.

    Notice: Lastly, RMA commented that it was unable to understand
the tire selection for rating protocol due to an inconsistency
between the preamble and the proposed regulatory text. RMA claimed
it was unclear as to whether NHTSA is proposing that each SKU be
rated, or whether each tire of a different size is to be rated. RMA
stated that this inconsistency obstructed its ability to comment on
which tires are to be rated for rolling resistance, and that this--
along with other alleged concerns--caused RMA to be uncertain about
what was being proposed or NHTSA's intent. Therefore RMA stated that
it was unable to meaningfully comment on the NPRM and requested that
NHTSA issue a supplemental NPRM.

    Agency response: As noted by RMA in its comments, the
Administrative Procedure Act (APA) rulemaking provisions require that
general notice of a proposed rule must be published in the Federal
Register and must include ``either the terms or substance of the
proposed rule or a description of the subjects and issues involved.''
\139\ NHTSA satisfied this APA requirement in the NPRM.
---------------------------------------------------------------------------

    \139\ 5 U.S.C. 553(b)(3).
---------------------------------------------------------------------------

    The U.S. Court of Appeals for the District of Columbia Circuit has
explained that the APA's notice requirements ``are designed (1) to
ensure that agency regulations are tested via exposure to diverse
public comment, (2) to ensure fairness to affected parties, and (3) to
give affected parties an opportunity to develop evidence in the record
to support their objections to the rule and thereby enhance the quality
of judicial review.'' \140\ Thus, adequate notice and opportunity for
comment exists ``if it affords interested parties a reasonable
opportunity to participate in the rulemaking process, and if the
parties have not been deprived of the opportunity to present relevant
information by lack of notice that the issue was there.'' \141\ An
agency NPRM ``must provide sufficient detail and rationale for the rule
to permit interested parties to comment meaningfully.'' \142\
---------------------------------------------------------------------------

    \140\ Environmental Integrity Project v. EPA, 425 F.3d 992, 996
(DC Cir. 2005) (quoting Int'l Union, United Mine Workers of Am. v.
Mine Safety & Health Admin., 407 F.3d 1250, 1259 (DC Cir. 2005)).
    \141\ American Radio Relay League v. Federal Communications
Commission, 524 F.3d 227, 236 (DC Cir. 2008) (citing WJG Tel. Co.,
Inc. v. Federal Communications Commission, 675 F.2d 386, 389 (DC
Cir. 1982)).
    \142\ Fertilizer Institute v. EPA, 935 F.2d 1303, 1311 (DC Cir.
1991) (quoting Florida Power & Light Co. v. United States, 846 F.2d
765, 771 (DC Cir. 1988)).
---------------------------------------------------------------------------

    RMA commented that the inconsistencies between the preamble and the
proposed regulatory text deny RMA and other interested parties a
meaningful opportunity to comment because it was difficult to
understand exactly what was being proposed. NHTSA's notice of proposed
rulemaking consisted of a lengthy preamble discussion and proposed
regulatory text. Courts have found sufficient APA notice where the NPRM
was not entirely clear on what was being proposed, but where the NPRM
at least discussed an issue such that interested parties had reason to
comment on it.\143\ This is the case here. RMA was on notice of the
subject and issues involved. It knew the possible outcomes under
discussions in the preamble to the NPRM and under the proposed
regulation. It also knew

that a logical outgrowth of either was possible.
---------------------------------------------------------------------------

    \143\ See Nat'l Small Shipments Traffic Conference, Inc. v.
Civil Aeronautics Board, 618 F.2d 819, 833 (DC Cir. 1980) (finding
sufficient notice where a NPRM was not ``a paragon of clarity'' but
the preamble implied the prohibition that was ultimately adopted in
the final rule).
---------------------------------------------------------------------------

    RMA commented that contradictions between the preamble and
regulatory text means that the final rule runs a risk of not being a
``logical outgrowth'' of the proposed rule. ``A rule is deemed a
logical outgrowth if interested parties `should have anticipated' that
the change was possible, and thus reasonably should have filed their
comments on the subject during the notice-and-comment period.'' \144\
NHTSA disagrees with RMA that NHTSA's requirement that each SKU must be
rated separately is not a ``logical outgrowth'' of the NPRM merely
because the proposed regulatory text stated something different, i.e.,
that ``every size designation must be rated separately.'' \145\ The
preamble discussed at length why NHTSA was considering it important to
require each tire SKU to be rated separately.\146\ Further, as
indicated above, many commenters had something to say about this aspect
of the NPRM, which serves as evidence that the rest of the interested
public was sufficiently aware of the possibility that the agency may
adopt such a requirement. In fact, RMA commented on this aspect of the
proposal, even though it asserted it was confused about what NHTSA was
actually proposing.\147\
---------------------------------------------------------------------------

    \144\ Miami-Dade County v. EPA, 529 F.3d 1049, 1059 (11th Cir.
2008) (quoting Northeast Md. Waste Disposal Auth. v. EPA, 358 F.3d
936, 952 (DC Cir. 2004)) (quotation and citation omitted); see also
First Am. Discount Corp. v. Commodity Futures Trading Comm'n, 222
F.3d 1008, 1015 (DC Cir. 2000) (explaining that notice must be
``sufficient to advise interested parties that comments directed to
the controverted aspect of the Final Rule should have been made.'')
(quotation and citation omitted).
    \145\ Tire Fuel Efficiency NPRM, supra note 9, at 29585.
    \146\ Id. at 29553-29554.
    \147\ RMA Comments, Docket No. NHTSA-2008-0121-0036.1 at 11
(commenting that since many manufacturers currently rate tires for
UTQGS treadwear by tire line, it is difficult to assess how tires
would be rated for UTQGS treadwear under the proposed SKU-based
rating system).
---------------------------------------------------------------------------

    Elsewhere, RMA commented that it was unable to meaningfully comment
on all aspects of the proposed rule because the proposed regulations
were inconsistent with the rulemaking's preamble and are, thus, not a
logical outgrowth of the preamble. With this argument RMA misapplies
the ``logical outgrowth'' principle. As noted above, courts have
established the principle that to satisfy the notice requirement under
the APA, a final rule must be a ``logical outgrowth'' of the agency
proposal. The proposal is not limited to a particular part of the NPRM.
As a general matter, where RMA professes confusion as to whether, for
example, option A or option B was proposed in the NPRM, NHTSA has fully
satisfied the APA notice requirements because even if the NPRM was
ambiguous, both options were presented for comment, thus sufficiently
apprising the public of the possibility that the agency was considering
each option.\148\
---------------------------------------------------------------------------

    \148\ In addition to the SKU/size designation confusion, RMA
alleged other inconsistencies between the NPRM preamble and the
proposed regulatory text including the following: inconsistent
figures regarding fuel savings; NPRM is unclear about what
compliance approach is proposed in the NPRM versus where comments
are sought on potential alternative approaches; confusion as to
whether NHTSA intends to allow tire manufacturers to estimate values
or whether NHTSA intends to require the testing of all tires; using
the term fuel efficiency rating and RRF rating interchangeably; and
inconsistent and inadequate use of terms (i.e., citing typos). RMA
Comments Appendix 3, Docket No. NHTSA-2008-0121-0036.4 at 46-50.
This response is intended to respond to all of those allegations of
being unable to meaningfully comment on the proposal.
---------------------------------------------------------------------------

B. Entities Subject to Requirements of the Program

1. Tire Manufacturers
    Ford commented that tire importers and private label manufacturers
were not considered tire manufacturers under the proposed requirements
in the NPRM but that they should be held to the same requirements.\149\
---------------------------------------------------------------------------

    \149\ Ford Comments, Docket No. NHTSA-2008-0121-0038.1 at 2.
---------------------------------------------------------------------------

    Agency response: As noted in the NPRM, which entities are
considered tire manufacturers for purposes of the tire fuel efficiency
consumer information program is determined by statute. EISA codified
section 111 by adding section 32304A to Chapter 323 (Consumer
Information) of Part C (Information, Standards, and Requirements) of
Subtitle VI (Motor Vehicle and Driver Programs) of Title 49 of the
United States Code (U.S.C.). Section 32101 of Title 49 of the U.S.C.
contains the definitions that are to apply to the Part C noted above.
Section 32101(5) defines manufacturer as ``a person (A) manufacturing
or assembling passenger motor vehicles or passenger motor vehicle
equipment; or (B) importing motor vehicles or motor vehicle equipment
for resale.'' Thus, for all sections under Part C, including section
32304A, the importer of any tire is a tire manufacturer. An importer is
responsible for every tire it imports and is subject to civil penalties
in the event of any violations. The U.S. Customs and Border Protection
may deny entry at the port to items that do not conform to applicable
requirements.
    As to private label manufacturers, NHTSA assumes that Ford is
referring to when tire manufacturers produce tires under contract with
private companies such as Sears, Pep Boys, Discount Tire, etc. These
private entities then sell those tires under its house-brand trade
names, e.g., Sears brand tires, Pep Boys brand tires, etc. NHTSA
intended this regulation to treat a tire brand name owner as a
manufacturer in the case of tires marketed under a brand name different
from the manufacturer name. This is clear in the regulation which
requires tire manufacturers and tire brand name owners to rate all
replacement passenger car tires for fuel efficiency (i.e., rolling
resistance), safety (i.e., wet traction), and durability (i.e.,
treadwear), and submit those ratings to NHTSA. In the final regulatory
text, NHTSA has added a definition of brand name owner for clarity.
2. Tire Retailers
    When confronted with the need to replace the tires on their
vehicles, consumers may choose from national Internet and mail order
companies, tire dealers, manufacturer outlets, or retail department
stores. Typically, the tires bought in the replacement market are
balanced and mounted by the tire dealer or retailer.\150\ NHTSA
proposed a definition of tire retailer to be ``a person or business
with whom a replacement passenger car tire manufacturer or brand name
owner has a contractual, proprietary, or other legal relationship, or a
person or business who has such a relationship with a distributor of
the replacement passenger car tire manufacturer or brand name owner
concerning the tire in question.'' \151\ The agency used this language
because this is how Part 575 of Title 49 of the Code of Federal
Regulations (CFR) refers to the locations where tires are offered for
sale.\152\
---------------------------------------------------------------------------

    \150\ 2006 NAS Report, supra note 4, at 21.
    \151\ Tire Fuel Efficiency NPRM, supra note 9, at 29585.
    \152\ See 49 CFR 575.6(c).
---------------------------------------------------------------------------

    The National Automobile Dealers Association (NADA) commented that
this proposed definition is inconsistent with references to tire
retailer requirements in 49 CFR Part 574, Tire Identification and
Recordkeeping, and suggested that NHTSA reconcile the terms and
definitions used to address tire dealers in Part 574 and the new
regulatory text.
    Agency response: Although the agency believes that the proposed
definition of tire retailer would encompass franchised automobile and
truck dealers that sell tires, NHTSA agrees with NADA's suggestion.
Part 574 requires tire retailers to distribute and report information,
just as this regulation will. Accordingly, NHTSA

believes that the definition of ``tire retailer'' in the new
regulations promulgated today should be consistent with that of Part
574. Thus, consistent with Part 574, this final rule defines tire
retailer to mean a dealer or distributor of new tires and adds the
following definitions of dealer and distributor:
    Dealer means a person selling and distributing new motor vehicles
or motor vehicle equipment primarily to purchasers that in good faith
purchase the vehicles or equipment other than for resale.
    Distributor means a person primarily selling and distributing motor
vehicles or motor vehicle equipment for resale.
    As mentioned above, NATM commented they did not believe Congress
intended to include replacement tires sold for use on trailers to be
within the scope of the tire fuel efficiency consumer information
program.\153\ NATM explained that some of its trailer manufacturer,
trailer dealer, and trailer-parts distribution members sell ``P'' tires
to consumers for replacement use on light-duty trailers, particularly
small utility trailers. NATM believes that NHTSA's proposed definition
of passenger car tire could be read to include those replacement ``P''
tires sold by NATM members for use on light-duty trailers. NATM stated
that the proposed tire retailer definition may be read to encompass
trailer retailers who offer a tire for sale and have a legal
relationship with businesses defined in the rule as replacement car
tire manufacturers, but that EISA does not contemplate subjecting these
trailer retailers to the rule's requirements.
---------------------------------------------------------------------------

    \153\ Docket No. NHTSA-2008-0029.1.
---------------------------------------------------------------------------

    Agency response: As explained above, NHTSA concludes that all
passenger car tires, even those sold for use on other vehicles, must
have the information provided by the tire manufacturer. However, we
agree that dealers that sell passenger car tires only for use on
trailers should not be considered tire retailers for this program,
since EISA did not mandate a tire fuel efficiency consumer information
program to educate consumers about replacement tires for trailers.
Accordingly, NHTSA is modifying the definition of tire retailer as
suggested by NATM to be in terms of the purpose of the sale of the
tire. Today's final rule defines tire retailer to mean ``a dealer or
distributor of new replacement passenger car tires sold for use on
passenger cars, multipurpose passenger vehicles, and trucks, that have
a gross vehicle weight rating (GVWR) of 10,000 pounds or less.'' A
retailer that sells tires only for use on trailers would not be within
this definition.

C. EISA Does Not Give NHTSA Authority To Establish a Rolling Resistance
Performance Standard for Replacement Passenger Car Tires

    A few commenters urged NHTSA to consider establishing a maximum
rolling resistance standard that would prohibit sale of the worst
rolling resistance tires.\154\ The European Union has adopted a maximum
rolling resistance standard and California's fuel efficient tire
program requires that the CEC consider whether to adopt standards for
replacement tires to ensure that replacement tires are at least as
energy efficient as original equipment tires.\155\ As estimated by
ExxonMobil, the reduction in the average rolling resistance of
replacement tires that would result from such a maximum rolling
resistance standard would increase on-road fuel economy obtained in
motor vehicles and, thus, result in fuel savings (and GHG
reductions).\156\
---------------------------------------------------------------------------

    \154\ Public Citizen et al. Comments, Docket No. NHTSA-2008-
0121-0043.1 at 11; ExxonMobil Chemical Company Comments, Docket No.
NHTSA-2008-0121-0044.1 at 10; Michelin North America Comments,
Docket No. NHTSA-2008-0121-0043.1 at 6.
    \155\ Cal. Pub. Res. Code Sec.  25772.
    \156\ Docket No. NHTSA-2008-0121-0044.1 at 10.
---------------------------------------------------------------------------

    Agency response: Such a standard is not within the scope of the new
authority granted to NHTSA under EISA. EISA mandates NHTSA must
``promulgate rules establishing a national tire fuel efficiency
consumer information program for replacement tires * * * to educate
consumers about the effect of tires on automobile fuel efficiency,
safety, and durability.'' \157\ NHTSA cannot interpret the mandate to
establish a consumer information program as providing it with the
authority to regulate the fuel efficiency of replacement tires.
---------------------------------------------------------------------------

    \157\ 49 U.S.C. 32304A(a)(1). EISA states what that rulemaking
must include: (1) A tire fuel efficiency rating system for
replacement tires; (2) requirements for providing information to
consumers; (3) specifications for test methods for manufacturers to
use in assessing and rating tires; and (4) a tire maintenance
consumer education program. Id. at 32304A(a)(2).
---------------------------------------------------------------------------

IV. Rolling Resistance Test Procedure

A. Test Procedure

    As in the NPRM, today's final rule specifies that tire
manufacturers must rate the fuel efficiency of their tires. To test for
compliance with this requirement, NHTSA will use rolling resistance
force measurements that would be achieved using the recently finalized
test procedure ISO 28580:2009(E), Passenger car, truck and bus tyres--
Methods of measuring rolling resistance--Single point test and
correlation of measurement results.\158\ Today's final regulations
further specify that NHTSA will conduct the ISO 28580 test procedure
using certain methodology and equipment options available in the test
procedure as further discussed below.
---------------------------------------------------------------------------

    \158\ See http://www.iso.org/iso/iso_catalogue/catalogue_tc/
catalogue_detail.htm?csnumber=44770 (last accessed Sept. 24, 2009).
---------------------------------------------------------------------------

    As explained above, rolling resistance is simply the manifestation
of all of the energy losses associated with the rolling of a tire under
load.\159\ Accordingly, in a laboratory, rolling resistance is measured
by running a tire under load on a test wheel (referred to as
``roadwheel''). At constant speed, the energy consumed by the rolling
tire is directly proportional to the reaction forces in the form of
torque on the roadwheel, or force on the axle. These forces are then
used to calculate the forces at the tire-roadwheel interface. The less
force, the less energy converted to heat and, thus, the more fuel
efficient the tire.
---------------------------------------------------------------------------

    \159\ National Highway Traffic Safety Administration, The
Pneumatic Tire, DOT HS 810 561, at 483 (February 2006).
---------------------------------------------------------------------------

    As discussed in the NPRM, NHTSA examined five test methods to
measure rolling resistance of light vehicle tires (Phase 1
Research).\160\ The choice of which test procedure to specify for
measuring rolling resistance is important because measuring rolling
resistance requires precise instrumentation, calibration, speed control
and equipment alignment for repeatable results. As explained in detail
in the NPRM, agency research shows that all of the available test
procedures could meet these requirements. Among these, the ISO 28580
test procedure is one of the preferred test procedures because, unlike
some others, it evaluates a tire's rolling resistance at a single
combination of load, pressure, and speed (i.e., a single-point test
method). A single-point test method is sufficient for rating tires
against each other yet is less costly to conduct than a multi-point
test method. For additional detail on NHTSA's Phase 1 Research and
background on the test equipment and methodologies used to measure
rolling resistance, see the NPRM.\161\
---------------------------------------------------------------------------

    \160\ See NHTSA Rolling Resistance Rating System Test
Development Project: Phase 1--Evaluation of Laboratory Test
Protocols (October 2008). Docket No. NHTSA-2008-0121-0019.
    \161\ Tire Fuel Efficiency NPRM, supra note 9, at 29555-29559.
---------------------------------------------------------------------------

    The ISO 28580 test procedure is also unique because it specifies a
procedure

to correlate results between different test equipment (i.e., different
rolling resistance test machines), which our research shows is a
significant source of variation. Because other established test methods
lack such a procedure, NHTSA would need to develop a new procedure to
address this variation before any of those test methods could be
required.\162\ As mentioned above, EISA mandates that this rulemaking
include ``specifications for test methods for manufacturers to use in
assessing and rating tires to avoid variation among test equipment and
manufacturers.'' \163\ Further, the ISO 28580 test procedure is the
specified test method in the proposed European Union Directive and the
California draft staff regulation, allowing manufacturers to do one
test to determine ratings for both proposed regulations.
---------------------------------------------------------------------------

    \162\ Since there was development and validation of the ISO
28580 lab alignment procedure, NHTSA believes that using ISO 28580
with its lab alignment procedure is preferable to developing a new
lab alignment process from scratch. See Transcript of Staff Workshop
Before the California Energy Resources Conservation and Development
Commission, at 104 (April 2009), available at  http://energy.ca.gov/
transportation/tire_efficiency/documents/2009-04-08_workshop/2009-
04-08_TRANSCRIPT.PDF (last accessed Nov. 11, 2009).
    \163\ 49 U.S.C. 32304A(a)(2)(C).
---------------------------------------------------------------------------

    NHTSA's proposed regulations included the specification of only two
of four energy loss measurement methods, as well as the use of a 1.7-
meter indoor roadwheel with a grit surface, as opposed to a bare steel
roadwheel. All four force measurement methods are permitted under ISO
28580, as is testing on roadwheels with diameters greater than 1.7
meters using either roadwheel surface.
    Many commenters misinterpreted the specification of two particular
methods by NHTSA, the roadwheel diameter, and the specification of the
grit surface as indication that we were proposing to prohibit the other
options allowed under ISO 28580. These commenters stated that they
support ``full adoption'' of the ISO 28580 test procedure.\164\ This
indicates a misunderstanding of the purpose of NHTSA's regulations and
of NHTSA's enforcement mechanism generally. The procedures specified in
NHTSA's standards and regulations specify the precise procedures NHTSA
will follow when conducting enforcement checks. As explained above in
section III.A.5, this enforcement approach does not require that a
manufacturer base its certifications (or ratings) on any particular
tests, any number of specified tests or, for that matter, any tests at
all. A manufacturer is only required to exercise due care in certifying
its tires. It is the responsibility of the tire manufacturer to
determine initially what test results, computer simulations,
engineering analyses, or other information it needs to enable it to
certify that its tires comply with applicable Federal standards.
---------------------------------------------------------------------------

    \164\ Tire Rack Comments, Docket No. NHTSA-2008-0121-0026.1 at
1; European Commission Comments, Docket No. NHTSA-2008-0121-0028.1
at 2; JATMA Comments, Docket No. NHTSA-2008-0121-0031.1 at 2-3;
Consumers Union Comments, Docket No. NHTSA-2008-0121-0034 at 2; RMA
Comments, Docket No. NHTSA-2008-0121-0036.1 at 8-9; Michelin
Comments, Docket No. NHTSA-2008-0121-0048.1 at 2-3.
---------------------------------------------------------------------------

    NHTSA has selected specific sections of ISO 28580 to allow
compliance testing in the United States on existing independent
laboratory equipment. Also, specifying the equipment and variant of
testing NHTSA will use for compliance testing provides users of other
equipment or variants of testing with a better known target for
comparison of their testing. Therefore adopting only part of the
specification does not hinder companies from using ``in-house''
equipment of another design that meets the ISO 28580 specification. ISO
28580 has more provisions available for testing based on worldwide
equipment availability and therefore has set specifications and
procedures to permit using all the different types of equipment and
test variants. NHTSA, therefore, agrees with commenters who call for
full adoption of ISO 28580 as a global test procedure. Equipment and
test variants once aligned using the provisions in ISO 28580 can be
compared. Therefore correlations can be established by the users of the
other types of equipment to the type of equipment and test variants
used by NHTSA.
    For example, NHTSA agrees with the comment that both the bare steel
roadwheel and 80 grit surface are scientifically equivalent.\165\ As
alignment and correlation procedures are available in ISO 28580 testing
on bare versus the grit, force measurements can be corrected to report
the same. NHTSA suggested grit as the surface for compliance testing so
that companies would know exactly what they need to compare their
result against. Companies testing on a bare roadwheel can develop
correlations to adjust the numbers they report. The agency is
specifying the use of an 80-grit surface on the roadwheel used in its
compliance testing, instead of a bare steel roadwheel. The grit surface
is the most common surface used in the laboratories available to NHTSA.
NHTSA in its research found that the use of the 80-grit surface
produced a slightly higher test measurement than using the bare steel
surface. However, there was some evidence of potential problems for
smooth steel-surfaced roadwheels in NHTSA Phase 1 testing.\166\ In that
testing, the rolling resistance of deep-lug tires exhibited a
relatively linear behavior on grit surfaces over a range of test loads
but dropped off consistently at high loads on smooth steel roadwheels.
Since the discrepancy in results between a smooth and steel roadwheel
could lead to rating compliance disputes, today's final rule specifies
the use of the grit surface since it was found to be more repeatable
and is the most common surface in the laboratories available to NHTSA.
---------------------------------------------------------------------------

    \165\ However, ISO 28580 indicates that the skim test reading
accuracy can be improved by use of a ``textured'' (i.e., grit)
roadwheel surface. See ISO 28580:2009(E), Passenger car, truck and
bus tyres--Methods of measuring rolling resistance--Single point
test and correlation of measurement results, section 5.1.2, Surface.
    \166\ We note that these wheels did not have the micro-texture
required by ISO 28580 for steel-surfaced roadwheels.
---------------------------------------------------------------------------

    Similarly, test equipment available in the United States at this
time for compliance testing is limited to 1.7-meter rolling resistance
test machines that use the force or torque measurement method. ISO
28580 has configured the alignment and correlation processes to take
into account differences in roadwheel size and measurement methods. As
alignment and correlation procedures are available, testing on a 2.0-
meter roadwheel, or with the power or deceleration measurement methods,
can be corrected to report the same values as measured using the force
or torque methods on a 1.7-meter roadwheel. NHTSA suggested force or
torque for compliance testing so that companies would know exactly what
they need to compare and correlate the result against. With the machine
tolerance, calibration, and alignment procedures specified in ISO
28580, NHTSA has confidence that correlations can be made with the
power and deceleration methods.
    Commenters generally supported adoption of the ISO 28580 test
procedure.\167\ However, MTS, a tire test equipment manufacturer,
questioned a single-point test (as opposed to a multi-point test) \168\
and the use of a curved

test surface. As for ISO 28580 being a single point test, MTS commented
that a single reading for one tire is a small sample size and there is
no corroborating data to provide assurance the test value is truly
representative of the tire.\169\ As RMA pointed out and as NHTSA
explained in the NPRM, research conducted by both NHTSA and the CEC
show that both single point and multi point tests can accurately
produce tire rolling resistance data and that tires tested using either
type of test procedure rank order the same for those conditions.
Equations were derived to accurately convert data from any one test to
the expected data from any other test at a single load and pressure.
NHTSA's research has shown that both types of tests essentially produce
the same rating if results are normalized as a percentage of RRF
measured at each lab for the 16-inch Standard Reference Test Tire
(SRTT), the ASTM F 2493.\170\ Single-point tests are less expensive and
shorter than multi-point test methods. Additionally, with single-point
tests, data from any method can be correlated to data from any other
method. Accordingly, NHTSA still believes that a single-point, rather
than a multi-point, test will better serve the purposes of this
program.\171\
---------------------------------------------------------------------------

    \167\ See id.
    \168\ The term ``multi-point'' refers to a method that uses more
than one set of conditions to test a tire, usually varying speed,
pressure, and/or load. Passenger car and light truck tires generally
have different test conditions and can have even a different number
of test points in the set of conditions. The goal of multi-point
testing is to allow the use of statistical techniques to reduce
rolling resistance force measurement variability and to allow
prediction of the effect of changes in inflation pressure, tire load
and speed on rolling resistance force. The term ``single-point''
refers to a method that uses a single set of test conditions. These
conditions are designed to be near the average conditions that a
tire would see in its intended service.
    \169\ MTS Comments, Docket No. NHTSA-2008-0121-0027.1 at 2.
    \170\ See NHTSA Rolling Resistance Rating System Test
Development Project: Phase 1--Evaluation of Laboratory Test
Protocols (October 2008). Docket No. NHTSA-2008-0121-0019.
    \171\ Tire Fuel Efficiency NPRM, supra note 9, at 29558.
---------------------------------------------------------------------------

    As for the use of a curved test surface, MTS questions the use of
1.7 and 2.0-meter test wheel machines for the ISO 28580, as opposed to
their flat surface test machine because of curvature effects that
result from using a curved surface to measure rolling resistance. MTS
states that rolling resistance measurements made on flat surface test
equipment would be more accurate measurements because flat surface test
equipment more closely resembles actual usage conditions.\172\ NHTSA
agrees that a more accurate measurement of rolling resistance force
could be made using flat surface test equipment. NHTSA could not
evaluate flat surface rolling resistance equipment during the research
and testing as none were available in independent laboratories. Thus,
NHTSA believes that the industry as a whole does not have the capacity
to rate tires on a flat laboratory machine at this point in time. ISO
28580 was developed by industry experts and does have provisions for
conversion from flat to the 2.0-meter curved reference surface.\173\
However MTS itself questions these conversion equations. Therefore
NHTSA suggested 1.7-meter as the surface for compliance testing so that
companies would know exactly what they need to compare their result
against.
---------------------------------------------------------------------------

    \172\ MTS Comments, Docket No. NHTSA-2008-0121-0027.1 at 6-9.
    \173\ The Clark equation to correct for the effect of diameter
is an accepted approximation. Deviations from total accuracy for
correction to a flat surface are introduced by differences in tire
construction such as aspect ratio and stiffness of the tire
construction, especially sidewalls.
---------------------------------------------------------------------------

    MTS also questioned the use and meaning of capped inflation
pressure. As explained in the NPRM, NHTSA Phase 1 Research examined
differences resulting from the method of inflation maintenance,
specifically whether inflation pressure was capped \174\ or
regulated.\175\ The Phase 1 Research showed that the pressure rise in
the tire during testing using a capped inflation procedure reduced the
rolling resistance compared to maintaining the pressure at a constant
pressure during the test. Therefore, the choice of a test that uses
capped inflation pressure for some or all of the test points should
provide a more accurate representation of in-service behavior. The use
and definition of ``capped air'' is defined in ISO 28580 as follows:
``The test consists of a measurement of rolling resistance in which the
tire is inflated and the inflation pressure allowed to build up (i.e.,
``capped air'').'' The purpose is to evaluate the tire and its reaction
to flexing and running in the same environment as other tires as if
they are on the highway.
---------------------------------------------------------------------------

    \174\ Capped inflation is achieved by inflating the tire to the
required pressure prior to testing, while the tire is at ambient
temperature of the test area, and then sealing the air in the tire
during testing with a valve, cap or some other seal.
    \175\ Regulated inflation pressure is achieved by inflating the
tire to the required pressure independent of its temperature, and
maintaining this inflation pressure during testing. This is usually
performed by using a regulated air (gas) supply external to the
spindle, or axle, and connected with a low friction rotary union.
---------------------------------------------------------------------------

    One change that NHTSA is adding to its test procedure specified in
the regulation, is that the agency must specify a break-in procedure
for bias ply tires, since these tires are included within the scope of
the tire fuel efficiency consumer information program.\176\ Older tire
rolling resistance standards contain an option for an addition break-in
for tires that ``undergo significant permanent change in their
dimensions or material properties with first dynamometer test
operation,'' (SAE J1269/SAE J2452) which the agency interprets to apply
to bias-ply or belted-bias tires. Modern radial tire designs, which
constitute over 99 percent of the current replacement passenger tire
market, have sufficient dimensionally stability to not require the
optional break-in.\177\ The greater dimensional stability of radial
tires is a result of their construction with inextensible belts.
Similarly, bias-belted tires are dimensionally stable due to their
construction with inextensible belts. The body ply materials have been
improved to enhance the overall dimensional stability of tires.
Therefore, the dimensional stability of bias-construction tires depends
upon the body-ply fabric used in their construction. Nonetheless, the
agency must establish provisions for bias-construction tires that may
use less dimensionally stable fabric technologies since bias ply tires
are covered under the scope of the tire fuel efficiency consumer
information program.
---------------------------------------------------------------------------

    \176\ In tire size terminology, bias ply construction is
indicated by a ``D'' in the size specification, as opposed to an
``R'' in a tire size specification, which indicates that a
particular tire is a radial tire. Radial ply construction of tires
has been the industry standard for the past 20 years.
    \177\ See National Highway Traffic Safety Administration, The
Pneumatic Tire, DOT HS 810 561, at 80 (February 2006).
---------------------------------------------------------------------------

    The break-in procedure we are specifying for bias ply tires is one
that is found in FMVSS No. 109, New Pneumatic and Certain Specialty
Tires, and FMVSS No. 139, New Pneumatic Tires for Light Vehicles.\178\
However, we are specifying that the roadwheel break-in need only be for
one hour, as opposed to two hours as in FMVSS Nos. 109 and 139, because
one hour is found to be generally sufficient to achieve initial break-
in and achieve thermal stabilization.\179\ We do not believe that ISO
28580 was developed with bias ply tires in mind. Radial ply
construction of tires has been the industry standard for the past 20
years. However, bias ply tires do still exist and are included within
the statutorily defined scope of the tire fuel efficiency consumer
information program. Therefore, the agency's test procedure must
specify how we would test bias ply tires.
---------------------------------------------------------------------------

    \178\ See 49 CFR 571.109, S5.5.1, S5.5.2, S5.5.3; 49 CFR
571.139, S<IP_ADDRESS>.
    \179\ See National Highway Traffic Safety Administration, The
Pneumatic Tire, DOT HS 810 561, at 500 (February 2006).
---------------------------------------------------------------------------

B. Lab Alignment Procedure

    As discussed in the NPRM, some of the technical challenges involved
in selection of a test procedure to measure rolling resistance include
specifying a test method that avoids variation among laboratories/
machines. NHTSA's Phase 1 Research evaluation indicated that all

five of the rolling resistance test methods had very low variability
and could be cross-correlated to provide the same information about
individual tire types.\180\ There was a significant and consistent
difference in the data generated by the two laboratories/machines used
in NHTSA's Phase 1 Research. Therefore, development of a method to
account for lab-to-lab variability is required.
---------------------------------------------------------------------------

    \180\ For this program, each manufacturer will ``self-certify''
the ratings for its tires. The test procedure specified in this
proposal is what NHTSA will use for compliance testing. Even if
rolling resistance test data were gathered using other test methods,
NHTSA's research shows that equations can translate the data to the
test procedure specified in this rule.
---------------------------------------------------------------------------

    One significant difference between ISO 28580 and the other test
methods is that ISO 28580 includes a procedure which uses two reference
tires to correlate any laboratory/machine to a reference rolling
resistance test machine (``Reference Machine''). NHTSA's research
showed a significant difference between the two laboratories' machines
used, and therefore addressing this variation is a significant
advantage for the ISO standard. Use of any other rolling resistance
test procedure would have required NHTSA to develop its own procedure
to address lab-to-lab variation, which would also necessitate the
specification of a reference rolling resistance test machine.
    Reference machine: As commenters points out, under ISO 28580, use
of the lab alignment procedure requires the specification of a
``Reference Machine'' against which other machines will align their
measurement results.
    Because the ISO has not yet specified a Reference Machine for the
ISO 28580 test procedure, NHTSA must specify this machine so that tire
manufacturers know which test machine they must correlate their test
results against. In the near future NHTSA will announce one or more
private laboratories to operate the Reference Machine.\181\ The
selected reference laboratory or laboratories will meet the conditions
for a reference machine specified in ISO 28580, and may be required to
meet other conditions specified by NHTSA.\182\ The agency is working
expeditiously to establish and implement procedures for the selection
of a reference laboratory or laboratories to operate the Reference
Machine(s).\183\
---------------------------------------------------------------------------

    \181\ It is not the intent of NHTSA to unilaterally establish
the reference machine for ISO or other global regions. Rather, the
agency must define a ``regional'' reference machine for the tire
fuel efficiency consumer information program that is independent of
entities we regulate and is accessible to the agency by standard
contractual mechanisms. This will allow reporting under the program
and agency compliance testing that meet the requirements of EISA. It
is our understanding that the output of a given ``candidate''
machine can be corrected using different correlation equations and
therefore different entities/rating systems could also designate
their own reference machines.
    \182\ See ISO 28580:2009(E), Passenger car, truck and bus
tyres--Methods of measuring rolling resistance--Single point test
and correlation of measurement results, section 10.2, Conditions for
reference machine.
    \183\ If NHTSA selects more than one private laboratory to
operate the ``Reference Machine,'' the agency would work with those
laboratories to implement a program that would establish initial
correlations between the machines, and that would continuously
monitor the variability in the correlation between the two machines.
---------------------------------------------------------------------------

    In order for other test machines to align with the reference
laboratory or laboratories, the reference laboratory will test two
alignment tires in accordance with ISO 28580 test procedures, and
convey the tires to the testing laboratory with the data produced
during the testing of those tires. The specification of specific
alignment tires is discussed immediately below.
    Alignment tires: Under the ISO 28580 lab alignment procedure,
laboratories seeking to correlate its machines' results with the
Reference Machine would use sets of two alignment tire models, for
which ISO 28580 also specifies requirements, as discussed below.\184\
These alignment tires (``Lab Alignment Tires,'' or LATs) are used to
align other ``candidate'' machines with the Reference Machine by
comparing the measured rolling resistance results for those tires
measured on the candidate machine to their stated values measured on
the Reference Machine. An alignment formula is then established and is
used to translate the results obtained on a candidate machine into
results aligned with the Reference Machine. Since the requirements for
LATs are specified in ISO 28580, but specific sizes or models of LATs
are not specifically identified, NHTSA must specify which LATs tire
manufacturers should use to align other rolling resistance machines to
the Reference Machine.
---------------------------------------------------------------------------

    \184\ See ISO 28580:2009(E), Passenger car, truck and bus
tyres--Methods of measuring rolling resistance--Single point test
and correlation of measurement results, section 10.4, Alignment tyre
requirements. In the ISO 28580 test procedure, rolling resistance
test machines other than the Reference Lab machine are referred to
as ``candidate machines.''
---------------------------------------------------------------------------

    The agency has been aware that ISO has been working to certify two
passenger car alignment tire models, and when completed, the identity
and a source for procurement by interested rolling resistance
laboratories would be promulgated in a technical report to ISO 28580.
In its NPRM comments, RMA noted that tires that qualify as LATs under
ISO 28580 would be available by the end of 2009. However, in January
2010, the ISO Technical Committee 31 Working Group 6 Convenor notified
NHTSA and other interested parties by memo of the identity and source
for the tires that it intends to certify as LATs under ISO 28580, but
that its official promulgation by technical report has been delayed
until June 2010.\185\
---------------------------------------------------------------------------

    \185\ This memo will be placed in the final rule docket.
---------------------------------------------------------------------------

    Since specifications and source of supply for these LATs has not
yet been officially promulgated by ISO, NHTSA will postpone the
specification of LATs to a later date. NHTSA will address available LAT
options in the forthcoming supplemental NPRM relating to the consumer
information requirements and consumer education portions of the
program.
    During the development of this final rule, NHTSA did consider the
option of specifying existing reference tires as LATs for purposes of
NHTSA's tire fuel efficiency consumer information program. However, the
agency determined that specifying existing reference tires as LATs was
not the optimal approach. NHTSA examined three established and widely
available ASTM reference tires, as shown in Table 2.\186\ These
reference tires are widely used for monitoring a wide variety of tire
performance measurements, but the agency has no knowledge of them
having been used as a standard or reference tire for tire rolling
resistance testing.
---------------------------------------------------------------------------

    \186\ Reference tires are specially designed and built to
American Society for Testing and Materials (ASTM) standards to have
particularly narrow limits of variability. For instance, the
designation ``F 2493'' refers to the standard specification of
materials and construction practices codified by ASTM as suitable
for control tires for scientific experimentation.
---------------------------------------------------------------------------

    As noted above, ISO 28580 specifies requirements for LATs in
section 10.4, Alignment tyre requirements. These specifications are as
follows:
    (1) RRC values of the two LATs must have a minimum range of 3
Newtons per Kilonewton (N/kN).
    (2) The LAT section width \187\ should be less than or equal to 245
millimeters (mm).
---------------------------------------------------------------------------

    \187\ A tire's section width (the measurement in millimeters
from the widest point of a tire's outer sidewall to the widest point
of its inner sidewall) is indicated by the first three numbers of a
tire's size designation.
---------------------------------------------------------------------------

    (3) The LAT outer diameter should be between 510 mm and 800 mm.
    (4) Load index values of the two LATs should adequately cover the
range for the tires to be tested, ensuring that the

RRF values of the LATs also cover the range for the tires to be tested.
---------------------------------------------------------------------------

    \188\ This tire is not rated by Load Index, however the maximum
sidewall load of 1620 pounds is similar to a 97 Load Index.

                                          Table 2--ASTM Reference Tires
----------------------------------------------------------------------------------------------------------------
                 Tire                         ASTM E 501              ASTM E 1136              ASTM F 2493
----------------------------------------------------------------------------------------------------------------
                                                                     P195/75R14 for       P225/60R16 ``modern''
                                          G78 15 Bias/belted     monitoring performance    radial tire proposed
           Tire description             grooved tire used for     including treadwear,       for performance
                                         traction monitoring       and snow traction            monitoring
----------------------------------------------------------------------------------------------------------------
Section width........................  212 mm.................  196 mm.................  228 mm.
Outer diameter.......................  648 mm.................  648 mm.................  676 mm.
Load Index...........................  Unknown\188\...........  92.....................  97.
RRF, lbf.............................  19.....................  11.....................  12.
RRC, N/kN............................  14.8...................  9.8....................  9.3.
----------------------------------------------------------------------------------------------------------------

    All three ASTM reference tires satisfy the above ISO 28580 LAT
specifications for section width and outer diameter. As for the first
and fourth specifications above, the RRF values of the ASTM E 501 and
ASTM E 1136 tires cover the middle portion of the range of RRF values
of the tires to be rated under this program, and their load index
values are similar, both of which seem to run contrary to the intent of
the fourth ISO 28580 alignment tire criterion listed above.
    Additionally, the properties that are specified and reportedly
tightly controlled in the three ASTM reference tires are meant to
provide repeatable results in traction, treadwear, and like tests. This
does not necessarily assure that the tires will have good repeatability
for rolling resistance, which is not explicitly controlled for in their
specifications and is a product of many different facets of a tire's
design and construction. Therefore, the agency is investigating how
tightly specified and controlled the rolling resistance properties are
in the proposed ISO Alignment Rolling Resistance Reference Tire (ARRRT)
models (LATs), which the agency will confirm with independent testing.
For these reasons, in the agency's expert judgment, it is preferable to
postpone the specification of LATs under the tire fuel efficiency
consumer information program, in the hopes that ISO finalizes the
specification of rolling resistance alignment tires in the anticipated
timeframe, rather than specifying a pair of existing reference tires
that were not developed specifically to be rolling resistance LATs.
    As indicated above, reference tires specifically designed for use
as rolling resistance LATs are expected to be widely available in the
near future. The agency believes this will occur on a timeline that
will allow NHTSA to address available LAT options in the forthcoming
supplemental NPRM relating to the consumer information requirements and
consumer education portions of the program, and the agency will do so
at that time.

V. Rolling Resistance Rating Metric

    The output of the rolling resistance test machines is used to
calculate the rolling resistance force (RRF) in pounds of force (lbf)
or Newtons (N) at the interface of the tire and drum, or the force at
the axle in the direction of travel required to make a loaded tire
roll. Rolling resistance is often expressed and reported in terms of
Rolling Resistance Coefficient (RRC) (N/kN, kg/tonne, lbf/kip), which
is the rolling resistance force divided by the test load on the
tire.\189\ Since rolling resistance changes with the load on the tire,
this makes direct comparisons between the tires tested at different
loads difficult. The pending European rating system uses RRC as the
metric for a rolling resistance rating/score. In the NPRM, NHTSA
proposed to base the tire fuel efficiency rating on the RRF metric.
NHTSA had tentatively concluded that a rating based on RRF is more
descriptive and would provide more information to consumers, than a
rating based on RRC.
---------------------------------------------------------------------------

    \189\ Most test procedures specify test load as a percentage of
the maximum load rating of the tire being tested. For example, the
ISO 28580 test procedure specifies a load of 80% of the maximum
sidewall load.
---------------------------------------------------------------------------

    Tire Rack and ExxonMobil commented that RRF is the appropriate
metric since it directly relates to the tire's contribution to vehicle
fuel consumption.\190\ Tire Rack commented that RRF is the most
intuitive value available to educate consumers about the influence
tires have on vehicle fuel consumption because tire RRF is directly
related to the energy required to maintain a vehicle in motion and
offers a scale that can be applied to all tires within the rulemaking's
scope. Michelin, although it expressed support for RRC, stated that
NHTSA was correct that RRF is more directly related to fuel
consumption.\191\ Consumers Union expressed support for using RRF as
the fuel efficiency rating metric and commented that RRF is appropriate
for comparing tires of the same size, load index, and speed rating
designation.\192\ Consumers Union also pointed out that it is the
metric that is consistent with California's proposed regulations.
ExxonMobil explained that because RRC is RRF divided by the test load
(generally 80 percent of the maximum load rating for the tire), RRCs
can only be compared within a single load rating/tire size. ExxonMobil
further noted that since larger tires generate more rolling resistance
and have greater test loads, the resulting RRCs for those tires can
sometimes be lower than those of smaller tires (i.e., they would get a
higher fuel efficiency rating than the small tire in a rating system
based on RRC).\193\
---------------------------------------------------------------------------

    \190\ Tire Rack Comments, Docket No. NHTSA-2008-0121-0026.1 at
1; ExxonMobil Chemical Company Comments, Docket No. NHTSA-2008-0121-
0044.1 at 2, 9.
    \191\ Michelin Comments, Docket No. NHTSA-2008-0121-0048.1 at 4.
    \192\ Consumers Union Comments, Docket No. NHTSA-2008-0121-0034
at 2.
    \193\ ExxonMobil Chemical Company Comments, Docket No. NHTSA-
2008-0121-0044.1 at 2, 9.
---------------------------------------------------------------------------

    MTS, the European Commission, JATMA, RMA, NRDC, GM, and Michelin
supported basing the fuel efficiency rating on RRC. RMA, Michelin, and
GM commented that they support basing a rolling resistance rating on
RRC because using RRF will cause the ratings for tires available to a
consumer (i.e., those of the same size) to be clustered. They state
that because RRF is an absolute rating, ratings for small tires will be
clustered around high ratings, ratings for large tires will be

clustered around low ratings.\194\ These commenters stated that
consumers may be discouraged to find no highly-rated tires for large
vehicles. They contend that RRC would spread out all ratings for tires
available to a single consumer so that they would be able to get a top
rated tire.
---------------------------------------------------------------------------

    \194\ RMA Comments, Docket No. NHTSA-2008-0121-0036.1 at 3; GM
Comments, Docket No. NHTSA-2008-0121-0046.1 at 3-4; Michelin
Comments, Docket No. NHTSA-2008-0121-0048.1 at 3-4.
---------------------------------------------------------------------------

    MTS and Michelin commented that a fuel efficiency rating system
based on RRF yields an artificial advantage for the lower load index
tire.\195\ These commenters noted that RRF will tend to rank tires with
less load capacity higher than tires with high load capacity and that a
RRC-based rating would rank tires by the relative technology applied to
the tire to reduce rolling resistance. These commenters stated that
this is because RRF is dependent on the load capacity of the tire, and
RRC is independent from tire load carrying capacity or the size of the
tire.\196\
---------------------------------------------------------------------------

    \195\ MTS Comments, Docket No. NHTSA-2008-0121-0027.1 at 2-3;
Michelin Comments, Docket No. NHTSA-2008-0121-0048.1 at 5-6.
    \196\ See id.; GM Comments, Docket No. NHTSA-2008-0121-0046.1 at
3-4.
---------------------------------------------------------------------------

    Commenters in support of RRC additionally noted that RRC is the
metric that the European system bases its tire fuel efficiency rating
system on,\197\ and Michelin and GM stated that RRC is the industry
standard for measurement of rolling resistance. The European Commission
and JATMA supported RRC because they stated RRC is more appropriate to
compare tires of different size and load indexes.\198\ NRDC commented
that the fact that larger tires will have lower ratings may discourage
consumers from seeking fuel efficient tires for those vehicles.\199\
Some commenters also stated that a rating based on RRF will encourage
people to undersize, or purchase tires with too low of a load
index.\200\
---------------------------------------------------------------------------

    \197\ MTS Comments, Docket No. NHTSA-2008-0121-0027.1 at 2-3.
    \198\ European Commission Comments, Docket No. NHTSA-2008-0121-
0028.1 at 3; JATMA Comments, Docket No. NHTSA-2008-0121-0031.1 at 1.
    \199\ NRDC Comments, Docket No. NHTSA-2008-0121-0040.1 at 6-10.
    \200\ MTS Comments, Docket No. NHTSA-2008-0121-0027.1 at 2-3;
RMA Comments, Docket No. NHTSA-2008-0121-0036.1 at 4; RMA Comments,
Appendix 6, Docket No. NHTSA-2008-0121-0036.7 at 24-25; GM Comments,
Docket No. NHTSA-2008-0121-0046.1 at 3; Michelin Comments, Docket
No. NHTSA-2008-0121-0048.1 at 5.
---------------------------------------------------------------------------

    Agency response: Based on the large number of comments received on
this issue, and to retain flexibility to use what the agency learns
about consumer comprehension from the future consumer research, NHTSA
will defer a decision on which rolling resistance metric should be used
for the fuel efficiency rating and consider that matter further in the
future supplemental NPRM and final rule that will finalize the consumer
information and education portions of the program. However, to aid in
guiding further discussion, in the FRIA we have analyzed some of the
issues addressed by commenters relating to basing a fuel efficiency
rating on RRF versus RRC.\201\
---------------------------------------------------------------------------

    \201\ See FRIA, section IV. The companion Final Regulatory
Impact Analysis (FRIA) to this final rule provides an analysis on
the potential economic impacts of this consumer information program
and is available in the docket for this final rule.
---------------------------------------------------------------------------

VI. Rating System

A. What Information Will the Rating System Convey to Consumers?

1. Fuel Efficiency
    As explained above in section II.A, the national tire fuel
efficiency rating system will communicate tire fuel efficiency
information in the form of a rolling resistance rating, because rolling
resistance corresponds to the amount of fuel used in the form of
mechanical energy dissipated to move the tire. No commenter challenged
these statements in the NPRM and no commenter suggested an alternate
method by which to directly compare the fuel efficiency of replacement
tires. Therefore, NHTSA still plans on basing the fuel efficiency
rating of a given replacement passenger car tire on the rolling
resistance force test value measured using the ISO 28580 test
procedure. The form of the rating and how it will be communicated to
consumers will be determined in the near future in the rulemaking to
finalize the content of the required tire fuel efficiency consumer
information program label.
2. Safety
i. Potential Safety Consequences
    As noted in the NPRM, there is still a limited understanding of how
tire traction, wear resistance, and rolling resistance relate to the
practical outcomes of vehicle fuel consumption, crash incidence, and
tire service life. One of the past concerns about rolling resistance is
that traction and/or treadwear could be negatively impacted by changes
made to improve rolling resistance.
    As part of the research in support of this rulemaking, NHTSA
performed and analyzed additional testing with the tires that were used
to evaluate the rolling resistance test methods. This testing included
UTQGS traction and treadwear testing, additional wet and dry traction
testing on an outdoor track, indoor dry traction and treadwear testing,
and EPA dynamometer fuel economy testing.\202\ This research, with one
exception discussed below, did not show that this tradeoff is a given
and must occur. However, it may cost more to maintain traction or
treadwear with an improvement in rolling resistance. Commenters to the
NPRM confirmed that a tradeoff in traction or treadwear need not occur
to achieve higher fuel efficiency for a given tire.\203\
---------------------------------------------------------------------------

    \202\ See NHTSA Tire Rolling Resistance Rating System Test
Development Project: Phase 2--Effects of Tire Rolling Resistance
Levels on Traction, Treadwear, and Vehicle Fuel Economy (February
2009). Docket No. NHTSA-2008-0121-0035.
    \203\ Michelin Comments, Docket No. NHTSA-2008-0121-0048.1 at 8,
NRDC Comments, Docket No. NHTSA-2008-0121-0040.1 at 7; see also
California Energy Commission, California State Fuel-Efficient Tire
Report: Volume II, 1 (2003), Docket No. NHTSA-2008-0121-0010.
---------------------------------------------------------------------------

    By providing information on all three parameters, a consumer could
factor any possible tradeoffs between rolling resistance, traction, and
treadwear, and/or cost differences between tires. That is, with all
three ratings, a consumer could see whether they were opting for a
decrease in traction and treadwear to gain improved fuel efficiency.
Advocates agreed that because tire design and manufacture involve an
interdependent relationship between fuel efficiency and durability on
the one hand, and tire safety, adhesion to the roadway or traction, on
the other, it is vitally important that safety information also be
communicated to the public as part of any tire consumer information
program.\204\
---------------------------------------------------------------------------

    \204\ Advocates Comments, Docket No. NHTSA-2008-0121-0049.1 at
1-2.
---------------------------------------------------------------------------

    Technical literature extensively indicates that the tradeoff
between fuel economy and safety performance can be significantly
reduced with advanced compounding technologies, which are usually more
expensive and proprietary. However, many aspects of the tire's
construction and manufacture affect how much tradeoff remains, and the
results of implementing new technologies, such as silica treads, will
vary between manufacturers (which ranges from manufacturers who have
decades of experience with the technology to manufacturers who have
none). It is hoped that increased consumer awareness may help to spur
technological innovation to promote simultaneous improvements along
several dimensions.
    Therefore, NHTSA is concerned about the potential negative safety
consequences that may occur if

consumers, motivated by potential fuel savings, begin to purchase tires
with better rolling resistance ratings but are unwilling to spend
additional money to also maintain wet traction levels. Despite having
the wet traction rating on the same sticker, some manufacturers may
defer the use of the more expensive silica tread technologies and
instead optimize tires to lower rolling resistance and treadwear
(another important purchase motivator) at the expense of wet traction
in order to gain a price advantage.
    Also, as was detailed in the 2006 NAS Report, manufacturers can
generate an improvement in a conventional tire tread by reducing
initial tread depth.\205\ However, the committee determined that due to
the economics, ``reductions in tread depth and other measures to reduce
rolling resistance that have significant impacts on tire wear life
could be unwise and may be unacceptable.'' \206\ Regarding safety
implications, the committee ultimately concluded: ``Discerning the
safety implications of small changes in tire traction characteristics
associated with tread modifications to reduce rolling resistance may
not be practical or even possible. The committee could not find safety
studies or vehicle crash data that provide insight into the safety
impacts associated with large changes in traction capability, much less
the smaller changes that may occur from modifying the tread to reduce
rolling resistance.'' \207\ ``As tread depth is reduced due to tire
wear, reductions in driving and braking forces occur in wet, snow and
muddy conditions compared to dry road performance. The critical speed
for the onset of hydroplaning on rain covered highways is similarly
lowered with increasing tire wear due to the reduced drainage capacity
of the grooves, sipes (kerfs), and slots in the tread design.'' \208\
Results from a 2006 survey by the RMA of more than 14,000 scrap tires
showed that, excluding the first year of service, 59 percent of tires
were replaced due to wear out (had tread at or below wear
indicators).\209\ Therefore, the study suggests that a large percentage
of consumers use tread wear indicators to signal the need for tire
replacement. However, the agency is aware that some consumers may have
expectations of achieving a certain number of miles or years of use for
a given set of tires, and starting with less initial tread depth could
result in some increase in the operation of tires at or below
recommended removal depths. In those cases, consumers may fail to
perceive that the reductions in the treadwear grade from reducing
initial tread depth can result in less safety. Therefore, the new FMVSS
No. 139 continues to require treadwear indicators to be molded into the
tread of a light vehicle tire to allow a person visually inspecting the
tire to determine that it has worn to \1/16\ (\2/
32\).
---------------------------------------------------------------------------

    \205\ 2006 NAS Report, supra note 4, at 74.
    \206\ Id. at 93.
    \207\ Id. at 3.
    \208\ National Highway Traffic Safety Administration, The
Pneumatic Tire, DOT HS 810 561, at 657 (February 2006).
    \209\ See Rubber Manufacturers Association News Release, Tire
Industry Study: Chronological Age Alone Does Not Determine When
Tires Are Removed From Service (May 23, 2006), available at http://
www.betiresmart.org/newsroom/release.cfm?ID=185 (last accessed March
11, 2010).
---------------------------------------------------------------------------

    A survey of the current marketplace was undertaken to estimate what
information consumers currently have for choices in wet traction,
price, and, where available, rolling resistance performance of tires.
From the NHTSA ratings in safercar.gov and tires available at
TireRack.com, approximately 20 percent of tires currently have traction
ratings of AA, 70 percent have ratings of A, and 10 percent have
ratings of B. There were no C-rated tires for on-road passenger vehicle
use. From the NHTSA data and the data from the California Energy
Commission and the Consumer Reports magazine, it appears that tire
makers design most tires with AA wet traction rating for flag-brand and
high-performance tires with correspondingly high average selling
prices. Data for rolling resistance, wet traction, and list price
performance indicate that tires with both A-traction rating and low
rolling resistance performance are available at all list price levels.
    NHTSA's recent consumer research indicates that consumers care more
about the durability and safety characteristics than the fuel
efficiency of a replacement tire.\210\ Specifically, more than two-
thirds of survey respondents are willing to pay more for tires with
above average performance ratings for traction (70 percent of survey
respondents), treadwear (70 percent of survey respondents), and fuel
efficiency (67 percent of survey respondents). When asked ``when you
think about tire performance, what attributes or performance measures
are most important to you personally,'' 47 percent of survey
respondents stated some form of durability (e.g., tread life,
reliability) and 37 percent of survey respondents answered that
traction/handling were important to them (e.g., all season usage, wet
road handling). Fourteen percent of survey respondents specifically
responded with the words safety or security. All other responses got
much less significant results, including performance, which includes
the words mileage and general performance, accounting for 17 percent of
those surveyed. Additionally, when asked how important are each of the
following tire performance metrics to you personally, 93 percent of
respondents stated that tire traction was either extremely important or
very important to them, 91 percent of respondents stated that tire
treadwear was either extremely important or very important to them,
while 80 percent of respondents stated that fuel efficiency was either
extremely important or very important to them. These survey results
mitigate the concerns about potential negative safety consequences
resulting from consumers sacrificing traction to maximize the fuel
efficiency of replacement tires.
---------------------------------------------------------------------------

    \210\ NHTSA conducted additional consumer research after the
notice of proposed rulemaking (NPRM) was issued to improve
understanding of the typical tire purchaser and the tire purchasing
process for the average consumer. See NHTSA Rolling Resistance
Survey (Aug. 19, 2009). This and other reports relied on in the
final rule will be placed into the docket.
---------------------------------------------------------------------------

    Advocates expressed concern that due to the fact that only the most
expensive tires may be able to maintain a high traction rating while
improving fuel efficiency, consumers may be misled into choosing tires
with good fuel efficiency and durability but poor or inadequate safety.
Thus, Advocates commented that NHTSA must carefully conceive and format
a tire label to ensure that it does not promote cost savings at the
expense of safety.
    Agency response: NHTSA agrees with Advocates on the need to not
emphasize the fuel efficiency rating above the traction rating and will
consider this when finalizing the consumer information and consumer
education portions of the program. However, the concerns expressed by
Advocates and NHTSA in the NPRM about the possibility that consumers
might sacrifice safety for improved fuel efficiency are certainly
mitigated by the results of recent NHTSA consumer research.
ii. Test Procedure
    Although rolling resistance is a standard measurement for
characterizing and comparing tire energy performance, less
comprehensive data exist in the public domain for accurate
characterizations of tire traction. There are different methods of
evaluating traction. For example, the UTQGS rating or the European wet
grip rating use different test procedures that do not evaluate the same
elements.

    In the NPRM, NHTSA proposed to use the traction test procedure
specified in the agency's UTQGS regulation to rate tires for
safety,\211\ reasoning that this test procedure for measuring wet
traction is the only metric for which consistent data are widely
available for a range of tires.\212\ NHTSA explained that the wet
traction test procedure measures a tire's coefficient of friction
during braking. In the context of tires on a passenger vehicle, the
amount of force available to the braking system to decelerate the
vehicle is determined by the tire, the road surface, and the conditions
of their interaction. This value is measured by the coefficient of
friction, [mu] (mu), which is the ratio of the longitudinal force
divided by the vertical load on the tire. The higher the coefficient of
friction is for a given tire, the more friction available to decelerate
the vehicle. The choice of tire can affect the amount of reduction in
friction on wet surfaces.\213\ Thus, different tires' measurements of
the coefficients of friction during a braking test provide objective
comparative information on tire's traction performance.
---------------------------------------------------------------------------

    \211\ See 49 CFR 575.104(f).
    \212\ Tire Fuel Efficiency NPRM, supra note 9, at 29560-29561.
    \213\ The instantaneous level of friction that can be developed
by a tire-road surface pair is dependent on parameters such as the
amount of lubrication (water, ice, snow, etc.) between the surfaces,
speed, temperature, and many other factors. The effects of these
parameters can be significant. For instance, in the case of the wet
friction coefficients measured in the agency's tire traction safety
rating, the water on the road surface substantially reduces the
intermolecular adhesion of the tire rubber to the road surface
aggregate, yielding a 20 to 30 percent reduction in available
friction compared to dry conditions.
---------------------------------------------------------------------------

    The UTQGS traction test procedure measures a tire's coefficient of
friction when it is tested on wet asphalt and concrete surfaces. The
test tire is installed on an instrumented axle of a traction trailer,
which is towed by a truck at 40 miles per hour (mph) over wet asphalt
and concrete surfaces. The tow truck is equipped with an on-board water
supply system that sprays water in front of the test tire. The brakes,
from the test tire only, are momentarily locked, and sensors on the
axle measure the longitudinal and vertical forces as it slides in a
straight line. The coefficient of friction for the pair, test tire and
surface, is then determined as the ratio of the longitudinal and
vertical forces.
    Which test procedure: Michelin suggested an alternate test method
for measuring traction because it stated the measurement of a tire's
wet traction capability with a traction trailer is an attempt to
quantify the tire's role in the vehicle stopping distance, which is the
actual tire performance experienced by the consumer.\214\ Michelin
commented that the poor reproducibility of the UTQGS traction test can
result in misrepresentation of tire traction. Michelin stated that this
poor repeatability has a lot to do with the fact that the ASTM E 501
ribbed bias ply tire is used as a reference to ensure that the grip of
the test lane is within tolerance and to correct test data for
evolution of test conditions. Michelin commented that because the
evolution of the E 501 tire between two test days is significantly
different than the change in test tire performance, this causes poor
repeatability.
---------------------------------------------------------------------------

    \214\ Michelin Comments, Docket No. NHTSA-2008-0121-0048.1 at 7-
8.
---------------------------------------------------------------------------

    Accordingly, Michelin suggested an ISO test method that it argued
better measures the tire's role in vehicle stopping distance: ISO
23671, Passenger car tyres--Method for measuring relative wet grip
performance--Loaded new tyres. Michelin argued that this ISO 23671 test
method is better than the UTQGS test method for several reasons
including: (1) The standard provides for flexibility of test location
(allowing manufacturers the possibility of self-certification); (2)
either traction trailer or on-vehicle braking can be used for
measurement, allowing for greater flexibility; and (3) the design and
materials of the control tire (14-inch Standard Reference Test Tire
(SRTT), ASTM E 1136) more closely resemble modern passenger car tires
(than the tire used in the UTQGS test method). Michelin urges NHTSA to
consider a vehicle braking method for measuring traction based on its
greater imitation of in-service conditions and on its superior
repeatability and reproducibility.
    Agency response: NHTSA declines to use a test procedure other than
a modified version of what is already specified for UTQGS. Based on the
tight statutory deadline for this program, NHTSA cannot perform the
research necessary to validate and establish a test procedure other
than the wet traction trailer test that is already specified in another
NHTSA regulation. Since our equipment and procedure is well known
throughout the tire industry, we propose using the existing procedure,
as the primary traction method, but modifying current equipment to
collect peak coefficient of friction data to rate tires for this
program, as discussed immediately below.
    The agency did not adopt Michelin's recommendation to use the 14-
inch SRTT (ASTM E 1136) or 16-inch SRTT (ASTM F 2493) as the traction
test control tire instead of the current ASTM E 501 Standard Rib tire.
This decision was based on a number of factors. First, Michelin
provided no data demonstrating that the test results would be more
accurate or less variable when using a SRTT as the traction control
tire instead of the E 501 Standard Rib tire. The agency understands
that the RMA traction data provided in comments was also collected
using the E 501 tire as the control tire. Therefore, no additional data
was available for the agency for evaluation. Due to the tight statutory
deadline for this program, NHTSA does not have the time necessary to
conduct its own test program to evaluate the performance of either of
the SRTT tires against the current E 501 tire. Second, the agency has
not evaluated the durability of the all-season tread pattern of the 14-
or 16-inch SRTT radial tires as compared to the smooth-ribbed tread
design of the E 501 tire during prolonged locked-slide traction
testing. Less durable tires could increase the annual costs of testing.
Third, the UTQGS traction test includes by reference test procedures
and apparatus from ASTM E 274-79, ``Standard Method for Skid Resistance
of Paved Surfaces Using a Full-Scale Tire,'' which itself references
the E 501 tire as a standard tire (but not E 1136 or F 2493).
Therefore, the agency recommends that Michelin initially work with ASTM
to evaluate the suitability of upgrading the E 274 test procedure to
reference the ASTM E 1136 or F 2493 tires as control tires.
    Regarding the ISO 23671 test procedure recommended by Michelin,
this ISO procedure offers the option of using a trailer or vehicle as
the test equipment for means of collecting data to measure peak
traction. This approach may be practiced elsewhere, but we do not have
data to base a wet traction rating using this method. Further, this ISO
test method specifies a high coefficient of friction surface, which is
currently unavailable for use by the agency. Currently, NHTSA only has
data for concrete and asphalt surfaces used in the UTQGS testing
method, which uses a traction trailer.
    Traction testing is preferred over vehicle testing (stopping
distance) because one traction trailer may be used for various tire
sizes. Depending on the vertical load applied on the test tire, the
brake rate application may vary from tire to tire, but it may be
adjusted when using a traction trailer. Thus, one traction trailer may
be used to evaluate various tire sizes, while test conditions for
various tire sizes may be maintained during testing using a trailer.
Using a vehicle for testing would better imitate real world conditions,
but would

introduce vehicle dependent effects (due to the design of the vehicle's
brakes and suspensions). Also, several vehicles would be needed to
evaluate different size tires, which may be cost prohibitive.
    Measurements taken: The UTQGS traction rating procedure specifies
that the traction coefficients for asphalt and for concrete are to be
calculated using the locked-wheel traction coefficient on the tire, or
sliding coefficient of friction. More specifically, upon application of
the brakes, the tire is subjected to shear between the wheel and the
road surface, and deforms towards the rear of the vehicle. This
generates a traction force to oppose the motion of the vehicle. As
braking torque increases, the tire deforms more and tread elements near
the rear of the contact patch with the road begin to slip rather than
grip. The coefficient of friction rapidly reaches a maximum value at
about 10-20 percent slip, and then declines as the longitudinal slip
values increase to 100 percent, which represents a fully-locked tire.
The maximum coefficient of friction in the 0-100 percent slip range is
termed ``peak'' coefficient of friction, and the lower coefficient
value for the fully-locked tire is termed ``slide'' coefficient of
friction.
    When UTQGS was designed in the 1960s, the fully-locked slide
coefficient of friction represented the tire-road friction available to
conventional braking systems that frequently locked their tires during
hard braking. However, modern anti-lock braking and stability control
systems use wheel speed sensors and complex computer algorithms to
modulate the brake pressure in order to operate near the peak
coefficient of friction instead of locking the tire (slide), thus
utilizing more available friction from the tire-road surface pair.
    Because it uses the sliding coefficient of friction, the UTQGS
traction test procedure indicates the traction or wet pavement behavior
for a vehicle that is not equipped with anti-lock brakes (ABS) or
electronic stability control (ESC). A vehicle equipped with ABS or ESC
reacts to braking and sliding in a more sophisticated way. ABS prevents
wheel lock-up by pumping the vehicle's brakes repeatedly during braking
events. ESC may automatically perform activation of the brakes on
individual wheels in an attempt to slow down a vehicle and point it in
a different direction if the system senses a directional loss of
control. NHTSA's tire testing research showed that vehicles equipped
with ABS or ESC will exhibit safer behavior on wet pavement (i.e.,
better traction) than the sliding coefficient of friction traction
measurement would indicate in the UTQGS traction test procedure.
    The peak coefficient of friction is a metric that would better
indicate traction performance for vehicles equipped with these advanced
braking and handling systems. This is because as soon as ABS causes the
vehicle to reapply the brakes (and also during many ESC system
activations), the tires are constantly operating at or near peak
coefficient of friction. Thus, since most new cars offer ABS as either
standard or optional equipment, and ESC is being mandated on new light
vehicles via a phase-in, NHTSA proposed to base the traction rating for
purposes of the tire fuel efficiency consumer information program on
the peak coefficients of friction as measured on the asphalt and
concrete surfaces specified in the UTQGS traction test procedure.\215\
The machinery that conducts this test already measures peak coefficient
of friction, so the NPRM proposed specification of the UTQGS traction
test method, but using the peak coefficients of friction measured,
rather than the slide.
---------------------------------------------------------------------------

    \215\ The phase-in electronic stability control (ESC) requires
100 percent of the fleet to be equipped with ESC by model year 2011,
i.e., by September 2010. 72 FR 17236, 17291. Since an anti-lock
braking system (ABS) provides many of the components necessary for
ESC, NHTSA believes that most manufacturers will likely equip
vehicles with ABS as they equip them with ESC. See id. at 17256, n.
49.
---------------------------------------------------------------------------

    However, recognizing that the median age for the U.S. passenger car
fleet is 9.4 years,\216\ NHTSA requested comments on whether it was
premature to suggest moving to an ABS-ESC focused rating based on new
vehicles. The NPRM explained that the agency was considering a safety
rating taken from the average of the four friction numbers (peak &
slide on asphalt & concrete), all of which can be collected during the
same test. The NPRM requested comments on whether it should instead
consider a composite test, and if the four friction numbers should be
weighted equally or differently.
---------------------------------------------------------------------------

    \216\ See http://usa.polk.com/News/LatestNews/News_20080215_
scrappage.htm (last accessed Sept. 27, 2009).
---------------------------------------------------------------------------

    NHTSA sought comment on an empirically developed traction rating
formula that included both peak and slide coefficients of friction as
an example of how the agency might do this.\217\ RMA commented that the
agency's proposal for an alternate traction rating formula is ad-hoc
and not science based.\218\ RMA commented that it is no doubt possible
to devise any number of formulas to provide a 0 to 100 rating for wet
traction, but in RMA's opinion, unless there is some underlying
scientific principle to support them, it is not a productive exercise.
Michelin, in contrast, commented that the alternate traction formula
more closely follows accepted industry practices for quantifying tire
performance.\219\ Michelin agreed with the NPRM that peak traction
values correspond more directly to advanced braking system performance
and expressed support for this move toward a characterization more in
line with consumer's needs. JATMA supported adopting the current UTQGS
traction grading test method, and not using peak coefficient of
friction.\220\ Tire Rack supported basing the traction rating on a
combination of peak and slide coefficients of friction.\221\ Tire Rack
stated that adding the coefficients of friction measured on wet asphalt
and concrete surfaces better reflects the tire performance available
through advanced braking technologies.
---------------------------------------------------------------------------

    \217\ Tire Fuel Efficiency NPRM, supra note 9, at 29580.
    \218\ RMA Comments Appendix 7, Docket No. NHTSA-2008-0121-0036.8
at 8.
    \219\ Michelin Comments, Docket No. NHTSA-2008-0121-0048.1 at 7-
8.
    \220\ JATMA Comments, Docket No. NHTSA-2008-0121-0031.1 at 1.
    \221\ Tire Rack Comments, Docket No. NHTSA-2008-0121-0026.1 at
3.
---------------------------------------------------------------------------

    Agency response: Based on the fact that vehicles not equipped with
advanced braking technologies will be on the road for many years, NHTSA
has determined that the safety rating should be based on a combination
of slide and peak coefficients of friction on asphalt and concrete.
However, since the agency will be finalizing the form of the ratings
and the consumer information requirements in a future rulemaking, we
will not discuss the comments on the proposed formula for a safety
rating in this final rule.
    Basing a safety rating on a composite index using both peak and
slide coefficients of friction measurements creates a safety rating
that considers the safety performance for both old vehicles without
advanced braking technologies (wet traction performance correlates to
slide), and new vehicle types with advanced braking technologies (wet
traction performance correlates to peak). A safety rating based only on
slide or only on peak coefficient of friction would be essentially
meaningless to either vehicles with advanced braking technologies or to
vehicles with conventional brake technology, respectively. NHTSA
considered weighing the slide and peak coefficients of friction in the
rating formula to create an index that reflected the percentage of the
types of vehicles on the road. The

agency realizes that the ratio of new braking technology vehicles on
the road to conventional braking vehicles on the road will persistently
increase for decades until all conventional brake technology vehicles
are essentially phased out, at which point peak coefficient of friction
will be the only measure of traction that is relevant to the way that
all vehicles brake. NHTSA will continuously monitor the fleet turnover,
and will likely transfer the safety rating to an index based mostly on
peak. Until that point, the agency believes it is best to have a rating
based on a combination of indices that indicate something useful and
comparative to everyone, as opposed to a rating based only on peak or
slide, which would mean nothing to some. Continuously changing the
formula to reflect these shifting percentages would likely cause some
changes in ratings of existing tires, and NHTSA believes there is a
benefit to keeping the ratings stable for a period of time, both in
terms of reducing costs to NHTSA and manufacturers, and reducing
potential confusion for consumers.
    Additionally, and as will be discussed in the forthcoming
supplemental NPRM on the consumer information and consumer education
portions of this program, a combination of peak and slide coefficients
of friction also reduces the variability of the ratings. A safety
rating based only on peak coefficient of friction results in ratings
with high variability.
    RMA suggested that wet traction be weighted for the percentage of
asphalt and concrete road surfaces in the U.S., since concrete now
accounts for less than 4 percent of roads. The agency analyzed the
number of fatal crashes in the Fatality Analysis Reporting System
(FARS). For the years 2002 to 2008, approximately 8.2 percent of fatal
crashes occurred on wet concrete road surfaces.\222\ After
consideration of comments, NHTSA has determined that a safety rating
should be based on both wet concrete and asphalt road surfaces. While
wet concrete is likely not a condition that occurs often for any
particular motorist, it potentially is the most dangerous because
coefficients of friction can be lower/worse on concrete than on
asphalt. Thus, wet concrete represents the ``worse case scenario'' in
terms of the type of roadways on which a motorist might find him/
herself driving. Arguably, if manufacturers will design tires with the
goal of achieving a higher safety (wet traction) rating, NHTSA should
include concrete coefficients of friction in the rating index so that
manufacturers take all likely driving wet surfaces into account when
designing tires. NHTSA, therefore, believes that concrete coefficients
of friction should be included in the safety rating as they likely
represent a ``worse case scenario.''
---------------------------------------------------------------------------

    \222\ This analysis excluded the ``Water (standing or moving)''
roadway surface condition category, which was added in 2007 and not
indicative of the water depths used in UTQGS wet traction testing.
This analysis also excluded blank, other or unknown roadway surface
conditions and roadway surface types.
---------------------------------------------------------------------------

    In response to the comments on the alternate traction formula NHTSA
sought comment on in the NPRM,\223\ since publication of the NPRM the
agency has realized that the formula it sought comment on is weighted
by taking the test tire's friction coefficient and divided by a
weighted sequence of two control tires. Mathematically, it is still a
fraction number, which is typical for a friction coefficient, but
unfortunately it no longer means it still represents a ``friction.''
Physically, it would just be a ratio or factor. Therefore, the agency
does not think this is a correct approach. NHTSA believes that an
empirically developed wet traction index is an appropriate metric for a
wet traction rating, as NHTSA will discuss in the forthcoming
supplemental NPRM on the content of the consumer information and
consumer education portions of the tire fuel efficiency consumer
information program.
---------------------------------------------------------------------------

    \223\ Tire Fuel Efficiency NPRM, supra note 9, at 29580.
---------------------------------------------------------------------------

    Authority to establish safety and durability ratings: NHTSA's
proposal provided that alongside a fuel efficiency rating, tire
manufacturers would provide safety and durability ratings. RMA and Ford
argued that EISA does not give NHTSA authority to establish a new
rating system for consumer information on safety or durability.
According to RMA and Ford, because EISA only directs NHTSA to establish
a national tire fuel efficiency rating system, NHTSA is not authorized
by EISA to create new ratings or consumer information requirements for
the safety and durability of replacement tires.\224\
---------------------------------------------------------------------------

    \224\ RMA Comments, Appendix 3, Docket No. NHTSA-2008-0121-
0036.4 at 2-3; Ford Comments, Docket No. NHTSA-2008-0121-0038.1 at
2-3.
---------------------------------------------------------------------------

    Agency response: Section 111 of EISA directs NHTSA to promulgate
rules establishing a ``national tire fuel efficiency consumer
information program for motor vehicle replacement tires * * * to
educate consumers about the effect of tires on automobile fuel
efficiency, safety and durability.'' \225\ RMA recognizes that NHTSA
has the authority under EISA to require replacement tire fuel
efficiency rating information. And RMA concedes that EISA gives NHTSA
the authority to include traction and treadwear ratings in the
label.\226\ But RMA states that because EISA directs NHTSA to
promulgate regulations that include ``a national tire fuel efficiency
rating system,'' EISA provides limited authority regarding new
``safety'' and ``durability'' ratings. More particularly, RMA contends
that EISA does not give NHTSA authority to create new ``safety'' or
``durability'' consumer rating systems or mandate new consumer
information on these attributes at the point of sale. RMA instead
suggests that as to these concerns, NHTSA is limited to the UTQGS
ratings: ``[t]he fact that the UTQGS system already exists enables
NHTSA to use the existing wet traction and treadwear to satisfy the
requirements.'' \227\
---------------------------------------------------------------------------

    \225\ 49 U.S.C. 32304A(a)(1).
    \226\ RMA Comments, Appendix 3, Docket No. NHTSA-2008-0121-
0036.4 at 3.
    \227\ Id. at 3.
---------------------------------------------------------------------------

    NHTSA interprets EISA to provide NHTSA authority to establish new
``safety'' and ``durability'' rating systems and to require consumer
information on these attributes of tires. The Congress spoke clearly.
NHTSA is required to establish a national tire fuel efficiency consumer
information program for replacement tires. Congress specified that this
program is to educate consumers about the effect of tires on automobile
fuel efficiency, safety and durability.\228\ Congress further stated
what the consumer information program is to include. Among others, it
is to include a national tire fuel efficiency rating system to assist
consumers in making more educated tire purchasing decisions.\229\ It
also is to include requirements for providing information at the point
of sale.\230\ Thus, the scope of the national tire fuel efficiency
consumer information program is set forth in subsection (a)(1). It
covers consumer information on automobile fuel efficiency, safety, and
durability for replacement tires. For each of these attributes, under
subsection (a)(2), the national tire fuel efficiency consumer
information program is to include, among others, a national tire fuel
efficiency rating system and consumer information. This is a new
program, because the rule was to ``establish'' a program.\231\ EISA
does not use the terms modify or amend with reference to an existing
program. For this new program, the rating system under subsection
(a)(2)

of Section 32304A is not limited to ``automobile fuel efficiency'' of
tires because both subsection (a)(1) and subsection (a)(2)(A) refer to
the rule establishing a ``national tire fuel efficiency'' consumer
information program, and automobile fuel efficiency is only one
attribute of the information program. The others are safety and
durability.\232\ Moreover, subsection (a)(2)(A) does not differentiate
the agency's authority on that aspect of the consumer information
program providing a rating on ``automobile fuel efficiency'' and those
aspects of the program providing ratings on ``safety'' and
``durability.'' \233\ Accordingly, EISA requires NHTSA to establish a
new program with ratings on safety and durability.
---------------------------------------------------------------------------

    \228\ 49 U.S.C. 32304A(a)(1).
    \229\ 49 U.S.C. 32304A(a)(2)(A).
    \230\ 49 U.S.C. 32304A(a)(2)(B).
    \231\ 49 U.S.C. 32304A(a)(1).