[Federal Register Volume 87, Number 211 (Wednesday, November 2, 2022)]
[Rules and Regulations]
[Pages 66080-66083]
[FR Doc No: 2022-23770]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2022-0159; Project Identifier AD-2021-01019-T;
Amendment 39-22199; AD 2022-20-15]
RIN 2120-AA64

Airworthiness Directives; The Boeing Company Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The FAA is adopting a new airworthiness directive (AD) for all
The Boeing Company Model 757 airplanes. This AD was prompted by a
report of cracks found in the fastener holes at a certain location in
the center wing box rear spar, lower skin. This AD requires repetitive
inspections for cracking of certain areas of the center wing box rear
spar, lower skin and lower chord; and repair. The FAA is issuing this
AD to address the unsafe condition on these products.

DATES: This AD is effective December 7, 2022.
    The Director of the Federal Register approved the incorporation by
reference of a certain publication listed in this AD as of December 7,
2022.

ADDRESSES:
    AD Docket: You may examine the AD docket at regulations.gov under
Docket No. FAA-2022-0159; or in person at Docket Operations between 9
a.m. and

5 p.m., Monday through Friday, except Federal holidays. The AD docket
contains this final rule, any comments received, and other information.
The address for Docket Operations is U.S. Department of Transportation,
Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200
New Jersey Avenue SE, Washington, DC 20590.

Material Incorporated by Reference

     For service information identified in this final rule,
contact Boeing Commercial Airplanes, Attention: Contractual & Data
Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA
90740-5600; telephone<PHONE_NUMBER>; website myboeingfleet.com.
     You may view this service information at the FAA,
Airworthiness Products Section, Operational Safety Branch, 2200 South
216th St., Des Moines, WA. For information on the availability of this
material at the FAA, call<PHONE_NUMBER>. It is also available at
regulations.gov under Docket No. FAA-2022-0159.

FOR FURTHER INFORMATION CONTACT: Peter Jarzomb, Aerospace Engineer,
Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount
Boulevard, Lakewood, CA 90712-4137; phone:<PHONE_NUMBER>; email:
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The FAA issued a notice of proposed rulemaking (NPRM) to amend 14
CFR part 39 by adding an AD that would apply to all The Boeing Company
Model 757-200, -200PF, -200CB, and -300 series airplanes. The NPRM
published in the Federal Register on April 11, 2022 (87 FR 21032). The
NPRM was prompted by a report of cracks found in the fastener holes at
a certain location in the center wing box rear spar, lower skin, on a
Boeing Model 737-300. An analysis by Boeing showed the same condition
can occur on Boeing Model 757 airplanes. In the NPRM, the FAA proposed
to require repetitive inspections for cracking of certain areas of the
center wing box rear spar, lower skin and lower chord; and repair. The
FAA is issuing this AD to detect and correct cracking that, if
undetected, could result in the inability of a principal structural
element to sustain limit load, which could adversely affect the
structural integrity of the airplane.

Discussion of Final Airworthiness Directive

Comments

    The FAA received a comment from FedEx Express who supported the
NPRM without change.
    The FAA received additional comments from four commenters,
including Aviation Partners Boeing (APB), Boeing, Delta Air Lines
(Delta), and United Airlines (United). The following presents the
comments received on the NPRM and the FAA's response to each comment.

Effect of Winglets on Accomplishment of the Proposed Actions

    APB stated that accomplishing Supplemental Type Certificate (STC)
ST01518SE does not affect accomplishment of the actions specified in
the proposed AD.
    The FAA concurs with the commenter. The FAA has redesignated
paragraph (c) of the proposed AD as paragraph (c)(1) of this AD and
added paragraph (c)(2) to this AD to state that installation of STC
ST01518SE does not affect the ability to accomplish the actions
required by this AD. Therefore, for airplanes on which STC ST01518SE is
installed, a ``change in product'' alternative method of compliance
(AMOC) approval request is not necessary to comply with the
requirements of 14 CFR 39.17.

Request To Clarify Sealant Requirements

    Delta requested adding a paragraph to the proposed AD to provide
clarification on the sealant requirements specified in Figure 2, Sheet
3; Figure 3, Sheet 3; and Figure 4, Sheet 3 of Boeing Alert
Requirements Bulletin 757-57A0075 RB, dated August 25, 2021. Delta
stated that in those figures on the sheets specified in the previous
sentence the application of BMS 5-45 and BMS 5-168 sealants are listed
as separate substeps and calls for both of those sealants to be
applied. Delta also stated that Step 2 of Figures 2 and 4 also seem to
confirm a ``both/and'' interpretation. Delta asserted that without
clarification, operators would be unable to discern between a ``both/
and'' sub-step and an ``either/or'' sub-step in those figures. Delta
added that Boeing confirmed that ``The intent of the note is for
operators to choose one of the sealants.'' Delta pointed out that in
other Boeing service information, an ``either/or'' step for applying
sealant would use the format ``BMS X-XX (BMS Y-YY optional).'' Delta
added in closing that it is impossible for operators to obtain
materials meeting BMS 5-168. United also requested a correction to step
3 of figure 4 of Boeing Alert Requirements Bulletin 757-57A0075 RB,
dated August 25, 2021, because that step specifies applying two fuel
tank sealants at the same location while a referenced manual section
only specifies one sealant to be applied.
    The FAA agrees to clarify the sealant requirements. The FAA has
added paragraph (h)(3) to this AD to specify that where Boeing Alert
Requirements Bulletin 757-57A0075 RB, dated August 25, 2021, states in
Step 3 of Sheet 3 of Figures 2 and 4 and in Step 4 of Sheet 3 of Figure
3 to use both sealants, this AD only requires one of the sealants to be
used.

Request To Permit Certain Substitutes

    Delta requested a revision of the proposed AD to permit the use of
Section 20-30-01-201 from the Boeing 757 Aircraft Maintenance Manual
(AMM) as a means of identifying permitted substitutes for BMS 5-168 and
for fasteners, process and material substitutions. Delta stated that it
reviewed reference material of Boeing Alert Requirements Bulletin 757-
57A0075 RB, dated August 25, 2021, and found that there were no
products identified as a BMS 5-168 sealant.
    The FAA disagrees with the request to revise the proposed AD to
reference a section of the AMM. As previously stated, the FAA has added
paragraph (h)(3) to this AD to permit the use of either BMS 5-45 or BMS
5-168 sealants, which provides relief from the lack of a BMS 5-168-
qualified sealant. The FAA still requires the use of approved
fasteners, processes, and material substitutions in accordance with the
specifications of Boeing Alert Requirements Bulletin 757-57A0075 RB,
dated August 25, 2021. The FAA has not changed this AD in this regard.

Request To Remove Incorrect Phrasing From Service Information

    Delta requested a paragraph be added to the proposed AD to remove
the phrase ``as an accepted procedure'' from note (b) in Sheet 3 of
Figure 1 of Boeing Alert Requirements Bulletin 757-57A0075 RB, dated
August 25, 2021. Delta noted that a general note in the Accomplishment
Instructions of Boeing Alert Requirements Bulletin 757-57A0075 RB,
dated August 25, 2021, defines ``refer to'' (suggested action) and ``in
accordance with'' (required action) and that ``as an accepted
procedure'' is being used in a note that specifies ``in accordance
with.'' Delta received confirmation from Boeing that the phrase ``as an
accepted procedure''

should not have been used in a note that specified ``in accordance
with.''
    The FAA agrees to add paragraph (h)(4) to this AD to require
omitting ``as an accepted procedure'' from note (b) in Sheet 3 of
Figure 1 of Boeing Alert Requirements Bulletin 757-57A0075 RB, dated
August 25, 2021.

Request To Identify Inspection Locations in Costs of Compliance

    Boeing requested that the inspection locations identified in the
table of the Costs of Compliance paragraph of the proposed AD be
revised. Boeing stated that the second row of the table, which
identifies ultrasonic and detailed inspection action, does not specify
a location. Boeing identified that location as being between LBBL [left
body buttock line] 5.5 and 9.5 and RBBL [right body buttock line] 5.5
and 9.5. Boeing also stated that the third row of the table is not
correct and should specify ``between LBBL 5.5 and RBBL 5.5.''
    The FAA agrees to revise the table in the Cost of Compliance
paragraph of this AD as suggested by Boeing.

Request To Revise Estimated Work Hours

    Boeing requested the table in Cost of Compliance paragraph in the
proposed AD be revised to clarify that internal access hours are
included with inspection actions. Boeing suggested either breaking out
the internal access hours in a separate row or adding a footnote to
clarify that the internal access hours have been included in each
inspection action and thus, the overall inspection hours may be less
when accomplished concurrently. Boeing noted that the proposal would
allow operators to more accurately estimate the costs for their fleets.
    The FAA agrees to clarify the estimated costs. The FAA acknowledges
that access and close-out actions comprise the bulk of the work-hour
estimates for the inspections. Further, for some situations, there
might be duplicated access costs included in the estimates and thus the
AD might look more ``expensive'' than the actual cost to operators.
However, it is FAA policy to include all related work-hours in the cost
estimate for required actions. Although an operator may choose to
complete multiple inspections at once, they are not required to.
Therefore the FAA includes all related costs for each inspection, which
includes the access and close-out work-hours. The FAA has not changed
this AD in this regard.

Conclusion

    The FAA reviewed the relevant data, considered any comments
received, and determined that air safety requires adopting this AD as
proposed. Accordingly, the FAA is issuing this AD to address the unsafe
condition on these products. Except for minor editorial changes, and
any other changes described previously, this AD is adopted as proposed
in the NPRM. None of the changes will increase the economic burden on
any operator.

Related Service Information Under 1 CFR Part 51

    The FAA reviewed Boeing Alert Requirements Bulletin 757-57A0075 RB,
dated August 25, 2021. This service information specifies procedures
for repetitive external high-frequency eddy current (HFEC) or internal
detailed inspections for cracking in the center wing box rear spar,
lower skin, and lower chord between LBBL 9.5 and 39.0 and RBBL 9.5 and
39.0; repetitive internal ultrasonic inspection of the center wing box
lower chord and detailed inspections of the lower skin at the rear spar
between LBBL 5.5 and LBBL 9.5, and between RBBL 5.5 and RBBL 9.5 for
cracking; repetitive internal detailed inspection of the center wing
box lower skin and rear spar lower chord between LBBL 5.5 and RBBL 5.5
for any cracking; and repair. This service information is reasonably
available because the interested parties have access to it through
their normal course of business or by the means identified in
ADDRESSES.

Costs of Compliance

    The FAA estimates that this AD affects 477 airplanes of U.S.
registry. The FAA estimates the following costs to comply with this AD:

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost on U.S.
              Action                    Labor cost        Parts cost      Cost per product        operators
----------------------------------------------------------------------------------------------------------------
HFEC inspection or detailed        Up to 19 work-hours              $0  $1,615 per           Up to $770,355 per
 inspection (between LBBL 9.5 and   x $85 per hour =                     inspection cycle.    inspection cycle.
 39.0 and RBBL 9.5 and 39.0).       Up to $1,615 per
                                    inspection cycle.
Ultrasonic and detailed            19 work-hours x $85               0  $1,615 per           $770,355 per
 inspection (between LBBL 5.5 and   per hour = $1,615                    inspection cycle.    inspection cycle.
 9.5 and RBBL 5.5 and 9.5).         per inspection
                                    cycle.
Detailed inspection (between LBBL  18 work-hour x $85                0  $1,530 per           $729,810 per
 5.5 and RBBL 5.5).                 per hour = $1,530                    inspection cycle.    inspection cycle.
                                    per inspection
                                    cycle.
----------------------------------------------------------------------------------------------------------------

    The FAA has received no definitive data on which to base the cost
estimates for the on-condition repairs specified in this AD.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. Subtitle VII: Aviation Programs,
describes in more detail the scope of the Agency's authority.
    The FAA is issuing this rulemaking under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701: General requirements.
Under that section, Congress charges the FAA with promoting safe flight
of civil aircraft in air commerce by prescribing regulations for
practices, methods, and procedures the Administrator finds necessary
for safety in air commerce. This regulation is within the scope of that
authority because it addresses an unsafe condition that is likely to
exist or develop on products identified in this rulemaking action.

Regulatory Findings

    This AD will not have federalism implications under Executive Order
13132. This AD will not have a substantial direct effect on the States,
on the relationship between the national government and the States, or
on the

distribution of power and responsibilities among the various levels of
government.
    For the reasons discussed above, I certify that this AD:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Will not affect intrastate aviation in Alaska, and
    (3) Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive:

2022-20-15 The Boeing Company: Amendment 39-22199; Docket No. FAA-
2022-0159; Project Identifier AD-2021-01019-T.

(a) Effective Date

    This airworthiness directive (AD) is effective December 7, 2022.

(b) Affected ADs

    None.

(c) Applicability

    (1) This AD applies to all The Boeing Company Model 757-200, -
200PF, -200CB, and -300 series airplanes, certificated in any
category.
    (2) Installation of Supplemental Type Certificate (STC)
ST01518SE does not affect the ability to accomplish the actions
required by this AD. Therefore, for airplanes on which STC ST01518SE
is installed, a ``change in product'' alternative method of
compliance (AMOC) approval request is not necessary to comply with
the requirements of 14 CFR 39.17.

(d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

(e) Unsafe Condition

    This AD was prompted by a report of cracks found in the fastener
holes at a certain location on the center wing box rear spar, lower
skin. The FAA is issuing this AD to detect and correct cracking
that, if undetected, could result in the inability of a principal
structural element to sustain limit load, which could adversely
affect the structural integrity of the airplane.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Required Actions

    Except as specified by paragraph (h) of this AD: At the
applicable times specified in the ``Compliance'' paragraph of Boeing
Alert Requirements Bulletin 757-57A0075 RB, dated August 25, 2021,
do all applicable actions identified in, and in accordance with, the
Accomplishment Instructions of Boeing Alert Requirements Bulletin
757-57A0075 RB, dated August 25, 2021.

    Note 1 to paragraph (g): Guidance for accomplishing the actions
required by this AD can be found in Boeing Alert Service Bulletin
757-57A0075, dated August 25, 2021, which is referred to in Boeing
Alert Requirements Bulletin 757-57A0075 RB, dated August 25, 2021.

(h) Exceptions to Service Information Specifications

    (1) Where the Compliance Time columns of the tables in the
``Compliance'' paragraph of Boeing Alert Requirements Bulletin 757-
57A0075 RB, dated August 25, 2021, use the phrase ``the original
issue date of Requirements Bulletin 757-57A0075 RB,'' this AD
requires using ``the effective date of this AD.''
    (2) Where Boeing Alert Requirements Bulletin 757-57A0075 RB,
dated August 25, 2021, specifies contacting Boeing for repair
instructions: This AD requires doing the repair before further
flight using a method approved in accordance with the procedures
specified in paragraph (i) of this AD.
    (3) Where Step 3 in Sheet 3 of Figures 2 and 4, and Step 4 in
Sheet 3 of Figure 3 of Boeing Alert Requirements Bulletin 757-
57A0075 RB, dated August 25, 2021, specifies applying both BMS 5-45
and BMS 5-168 sealants, this AD requires application of either BMS
5-45 or BMS 5-168 sealant.
    (4) Where note (b) in Sheet 3 of Figure 1 of Boeing Alert
Requirements Bulletin 757-57A0075 RB, dated August 25, 2021,
specifies ``as an accepted procedure,'' this AD requires omitting
that phrase.

(i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Los Angeles ACO Branch, FAA, has the authority
to approve AMOCs for this AD, if requested using the procedures
found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your
request to your principal inspector or responsible Flight Standards
Office, as appropriate. If sending information directly to the
manager of the certification office, send it to the attention of the
person identified in paragraph (j)(1) of this AD. Information may be
emailed to: [email protected].
    (2) Before using any approved AMOC, notify your appropriate
principal inspector, or lacking a principal inspector, the manager
of the responsible Flight Standards Office.
    (3) An AMOC that provides an acceptable level of safety may be
used for any repair, modification, or alteration required by this AD
if it is approved by The Boeing Company Organization Designation
Authorization (ODA) that has been authorized by the Manager, Los
Angeles ACO Branch, FAA, to make those findings. To be approved, the
repair method, modification deviation, or alteration deviation must
meet the certification basis of the airplane, and the approval must
specifically refer to this AD.

(j) Related Information

    (1) For more information about this AD, contact Peter Jarzomb,
Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch,
3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-
5234; email: [email protected].
    (2) Service information identified in this AD that is not
incorporated by reference is available at the addresses specified in
paragraphs (k)(3) and (4) of this AD.

(k) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the
incorporation by reference (IBR) of the service information listed
in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
    (2) You must use this service information as applicable to do
the actions required by this AD, unless the AD specifies otherwise.
    (i) Boeing Alert Requirements Bulletin 757-57A0075 RB, dated
August 25, 2021.
    (ii) [Reserved]
    (3) For service information identified in this AD, contact
Boeing Commercial Airplanes, Attention: Contractual & Data Services
(C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-
5600; telephone<PHONE_NUMBER>; website myboeingfleet.com.
    (4) You may view this service information at the FAA,
Airworthiness Products Section, Operational Safety Branch, 2200
South 216th St., Des Moines, WA. For information on the availability
of this material at the FAA, call<PHONE_NUMBER>.
    (5) You may view this service information that is incorporated
by reference at the National Archives and Records Administration
(NARA). For information on the availability of this material at
NARA, [email protected], or go to: www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued on September 24, 2022.
Christina Underwood,
Acting Director, Compliance & Airworthiness Division, Aircraft
Certification Service.
[FR Doc. 2022-23770 Filed 11-1-22; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 81, Number 136 (Friday, July 15, 2016)]
[Rules and Regulations]
[Pages 45979-45982]
[FR Doc No: 2016-16565]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 8

RIN 2105-AE50

Classified Information: Classification/Declassification/Access;
Authority To Classify Information (RRR)

AGENCY: Office of the Secretary of Transportation (OST), U.S.
Department of Transportation (DOT).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule updates the regulations regarding classified
information to reflect changes in organizational structure, update the
legal authorities, incorporate new references, and refer historical
researchers and former Presidential appointees to Executive Order
13526.

DATES: This final rule is effective July 15, 2016.

FOR FURTHER INFORMATION CONTACT: Joan Harris, Associate Director,
Office of Security,<PHONE_NUMBER>, or electronically at
<EMAIL_ADDRESS>You may also contact David Meade, Senior Security
Specialist, Office of Security,<PHONE_NUMBER>, or electronically at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: A 2011 DOT final rule (76 FR 19707)
announced changes regarding the authority to classify information, but
did not update other parts of the rule. As a result, the Department's
regulations at 49 CFR part 8 need to be updated. This final rule makes
the following corrections: Executive Order 12958, ``Classified National
Security Information,'' has been replaced by Executive Order 13526, so
references to the outdated Executive Order have been removed. The
``Interagency Classification Review Committee'' is now the Interagency
Security Classification Appeals Panel. As a result of reorganizations
after the September 11, 2001, terrorist attacks, the U.S. Coast Guard
is no longer a part of DOT, so references to that agency as a
departmental component have been removed, and a representative from the
Federal Highway Administration replaces the U.S. Coast Guard's
representative on the Department's Personnel Security Review Board.
This final rule also updates the names of some departmental offices,
which have changed.
    Section 8.19, which contained detailed instructions for submitting
and processing requests for classification challenges and mandatory
classification reviews, is also eliminated because of inconsistencies
with the current regulations at 32 CFR 2001. Sections 8.15 (Mandatory
review for classification) and 8.17 (Classification challenges) have
been rewritten to cite the appropriate sections of 32 CFR 2001
regarding such requests.
    The detailed instructions in Section 8.29, Access by historical
researchers and former Presidential appointees, have been eliminated
because they were outdated. Instead, the instructions have been
replaced with a reference to Executive Order 13526, which describes the
conditions that qualify such persons for access, and Executive Order
12968 which provides general guidelines for access to classified
information.
    This final rule is exempt from Administrative Procedure Act (APA)
notice-and-comment requirements. This final rule does not affect any
substantive changes to the regulations or alter any existing compliance
obligations. This final rule would only make technical corrections to
part 8 by correcting outdated references without affecting the
substance of the underlying rulemaking document. For the reasons stated
above, notice and comment procedures are unnecessary within the meaning
of the APA. See 5 U.S.C. 553(b)(3)(B).
    The Department finds good cause for this final rule to become
effective immediately under 5 U.S.C. 553(d)(1). This final rule is only
removing outdated, obsolete, and inconsistent language in the
regulations without altering any existing compliance obligations
contained in the current regulations. Since this final rule is
nonsubstantive and will not affect any regulated entity's compliance
with the current regulations, the Department finds good cause for it to
become effective immediately.

Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    The DOT has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866, and
within the meaning of DOT's regulatory policies and procedures. Since
this rulemaking merely removes obsolete and inconsistent language and
makes editorial corrections and does not have any substantive impact on
the regulated community, DOT anticipates that this rulemaking will have
no economic impact.
    Additionally, this action fulfills the principles of Executive
Order 13563, specifically those relating to retrospective analyses of
existing rules. This rule is being issued as a result of the reviews of
existing regulations that the Department periodically conducts. In
addition, these changes will not interfere with any action taken or
planned by another agency and would not materially alter the budgetary
impact of any entitlements, grants, user fees, or loan programs.
Consequently, a full regulatory evaluation is not necessary.

B. Executive Order 13132

    Executive Order 13132 requires agencies to ensure meaningful and
timely input by State and local officials in the development of
regulatory policies that may have a substantial, direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. This action has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132, dated August 4, 1999, and the DOT has determined that this
action would not have a substantial direct effect or sufficient
federalism implications on the States. The DOT has also determined that
this action would not preempt any State law or regulation or affect the
States' ability to discharge traditional State governmental functions.
Therefore, consultation with the States is not necessary.

C. Executive Order 13175

    The DOT has analyzed this action under Executive Order 13175, dated
November 6, 2000, and believes that the action would not have
substantial direct effects on one or more Indian tribes, would not
impose substantial direct compliance costs on Indian tribal
governments, and would not preempt tribal laws. This final rule merely
updates outdated terminology, and removes inconsistent language
relating to compliance with the Department's classified information
regulations. It does not impose any new requirements on Indian tribal
governments. Therefore, a tribal summary impact statement is not
required.

D. Regulatory Flexibility Act

    Since notice-and-comment rulemaking is not necessary for this rule,
the provisions of the Regulatory Flexibility Act (Pub. L. 96-354, 5
U.S.C.

601-612) do not apply. However, the DOT has evaluated the effects of
this action on small entities and has determined that the action would
not have a significant economic impact on a substantial number of small
entities. The rule removes obsolete guidance language and updates
outdated terminology and, therefore, does not add to or alter any
existing obligations.

E. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget for each collection of information they conduct,
sponsor, or require through regulations. The DOT has analyzed this
final rule under the PRA and has determined that this rule does not
contain collection of information requirements for the purposes of the
PRA.

F. Unfunded Mandates Reform Act

    This final rule would not impose unfunded mandates, as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48,
March 22, 1995), as it will not result in the expenditure by State,
local, or tribal governments, in the aggregate, or by the private
sector, of $148.1 million or more in any one year (2 U.S.C. 1532).

G. National Environmental Policy Act

    The agency has analyzed the environmental impacts of this proposed
action pursuant to the National Environmental Policy Act of 1969 (NEPA)
(42 U.S.C. 4321 et seq.) and has determined that it is categorically
excluded pursuant to DOT Order 5610.1C, Procedures for Considering
Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical
exclusions are actions identified in an agency's NEPA implementing
procedures that do not normally have a significant impact on the
environment and therefore do not require either an environmental
assessment (EA) or environmental impact statement (EIS). See 40 CFR
1508.4. In analyzing the applicability of a categorical exclusion, the
agency must also consider whether extraordinary circumstances are
present that would warrant the preparation of an EA or EIS. Id.
Paragraph 3.c.5 of DOT Order 5610.1C incorporates by reference the
categorical exclusions for all DOT Operating Administrations. This
action is covered by the categorical exclusion listed in the Federal
Highway Administration's implementing procedures, ``[p]romulgation of
rules, regulations, and directives.'' 23 CFR 771.117(c)(20). The
purpose of this rulemaking is to make editorial corrections and remove
obsolete and inconsistent language in the Department's classified
information regulations. The agency does not anticipate any
environmental impacts, and there are no extraordinary circumstances
present in connection with this rulemaking.

List of Subjects in 49 CFR Part 8

    Classified Information (Government agencies), Classification/
Declassification/Access (Government agencies).

The Final Rule

    For the reasons set forth in the preamble, OST amends 49 CFR part 8
as follows:

PART 8--[AMENDED]

0
1. The authority citation for part 8 is revised to read as follows:

    Authority: E.O. 10450, 18 FR 2489, 3 CFR, 1949-1953 Comp., p.
936, amended by E.O. 10491, 18 FR 6583, 3 CFR, 1949-1953 Comp., p.
973, E.O. 10531, 19 FR 3069, 3 CFR, 1949-1953 Comp., p. 973, E.O.
10548, 19 FR 4871, 3 CFR, 1954-1958 Comp., p. 200, E.O. 10550, 19 FR
4981, 3 CFR, 1954-1958 Comp., p. 200, E.O. 11605, 20 FR 2747, 3 CFR,
1971-1975 Comp., p. 580, E.O. 11785, 39 FR 20053, 3 CFR, 1971-1975
Comp., p. 874, E.O. 12107, 44 FR 1055, 3 CFR, 1978 Comp., p. 266;
E.O. 12829, 58 FR 3479, 3 CFR, 1993 Comp., p. 570, amended by E.O.
12885, 58 FR 65863, 3 CFR, 1993 Comp., p. 684; E.O. 13526, 75 FR
707, 3 CFR, 2010 Comp., p. 298; E.O. 12968, 3 CFR, 1995 Comp., p.
391, amended by E.O. 13467, 73 FR 38103, 3 CFR, 2009 Comp., p. 196.

0
2. Part 8 is amended by:
0
a. Removing ``Director of Security and Administrative Management'' and
adding in its place ``Director of Security'' wherever it appears; and
0
b. Removing ``Executive Order 12958'' and adding in its place
``Executive Order 13526'' wherever it appears.

Subpart A--General

0
3. Section 8.1 is revised to read as follows:

Sec.  8.1  Scope.

    This part sets forth procedures for the classification,
declassification, and availability of information that must be
protected in the interest of national security, in implementation of
Executive Order 13526 of December 29, 2010, ``Classified National
Security Information;'' and for the review of decisions to revoke, or
not to issue, national security information clearances, or to deny
access to classified information, under Executive Order 12968 of August
2, 1995, ``Access to National Security Information,'' as amended by
Executive Order 13467 of June 30, 2008, ``Reforming Processes Related
to Suitability for Government Employment, Fitness for Contractor
Employees, and Eligibility for Access to Classified National Security
Information.''
0
4. In Sec.  8.5, add a definition for ``Authorized holder'' and revise
the definitions of ``Clearance'', ``Damage to the national security'',
``Mandatory declassification'', and ``Original classification
authority'' to read as follows:

Sec.  8.5  Definitions.

* * * * *
    Authorized holder is any individual who has been granted access to
specific classified information in accordance with Executive Order
13526 or any successor order.
* * * * *
    Clearance means that an individual is eligible, under the standards
of Executive Orders 10450, 12968, 13467, and appropriate DOT
regulations, for access to classified information.
    Damage to the national security means harm to the national defense
or foreign relations of the United States from the unauthorized
disclosure of information, taking into consideration such aspects of
the information as the sensitivity, value, utility, and provenance of
that information.
* * * * *
    Mandatory declassification review means the review for
declassification of classified information in response to a request for
declassification that meets the requirements of section 3.5 of
Executive Order 13526.
* * * * *
    Original classification authority means an individual authorized in
writing, either by the President, the Vice President, or by agency
heads or other officials designated by the President, to classify
information in the first instance.

0
5. In Sec.  8.7, paragraph (a) is revised to read as follows:

Sec.  8.7  Spheres of responsibility.

    (a) Pursuant to section 5.4(d) of Executive Order 13526, and to
section 6.1 of Executive Order 12968, the Assistant Secretary for
Administration is hereby designated as the senior agency official of
the Department of Transportation with assigned responsibilities to
assure effective compliance with and implementation of Executive Order
13526, Executive Order 12968, Office of Management and

Budget Directives, the regulations in this part, and related issuances.
* * * * *

Subpart B--Classification/Declassification of Information

0
6. In Sec.  8.9, paragraphs (a) introductory text and (b) are revised
to read as follows:

Sec.  8.9  Information Security Review Committee.

    (a) The Department of Transportation Information Security Review
Committee has the authority to:
* * * * *
    (b) The Information Security Review Committee will be composed of
the Assistant Secretary for Administration, who will serve as Chair;
the General Counsel; and the Director of Security. When matters
affecting a particular Departmental component are at issue, the
Associate Administrator for Administration for that component (or for
the Federal Aviation Administration, the Associate Administrator for
Security and Hazardous Materials Safety) will participate as an ad hoc
member, together with the Chief Counsel of that component. Any regular
member may designate a representative with full power to serve in his/
her place.
* * * * *

0
7. In Sec.  8.11, paragraphs (a), (b)(1) and (2), and (c) are revised
to read as follows:

Sec.  8.11  Authority to classify information.

    (a) Presidential Order of December 29, 2009, ``Original
Classification Authority'' confers upon the Secretary of Transportation
the authority to originally classify information as SECRET or
CONFIDENTIAL with further authorization to delegate this authority.
    (b) * * *
    (1) Office of the Secretary of Transportation. The Deputy
Secretary; Assistant Secretary for Administration; Director of
Intelligence, Security and Emergency Response; Director of Security.
    (2) Federal Aviation Administration. Administrator; Associate
Administrator for Security and Hazardous Materials Safety.
* * * * *
    (c) Although the delegations of authority set out in paragraph (b)
of this section are expressed in terms of positions, the authority is
personal and is invested only in the individual occupying the position.
The authority may not be exercised ``by direction of'' a designated
official. The formal appointment or assignment of an individual to one
of the identified positions or a designation in writing to act in the
absence of one of these officials, however, conveys the authority to
originally classify information as SECRET or CONFIDENTIAL.
* * * * *

0
8. Revise Sec.  8.15 to read as follows:

Sec.  8.15  Mandatory review for classification.

    (a) Mandatory declassification review requests will be processed in
accordance with 32 CFR 2001.33.
    (b) Except as provided in paragraph b of section 3.5 of Executive
Order 13526, all information classified by the Department of
Transportation under Executive Order 13526 or predecessor orders shall
be subject to a review for declassification if:
    (1) The request for review describes the information with
sufficient specificity to enable its location with a reasonable amount
of effort;
    (2) The information has not been reviewed for declassification
within the prior two years. If the information has been reviewed within
the prior two years, or the information is the subject of pending
litigation, the requestor will be informed of this fact, and of the
Department's decision not to declassify the information and of his/her
right to appeal the Department's decision not to declassify the
information to the Interagency Security Classification Appeals Panel
(ISCAP);
    (3) The document or material containing the information responsive
to the request is not contained within an operational file exempted
from search and review, publication, and disclosure under 5 U.S.C. 552
in accordance with law; and
    (4) The information is not the subject of pending litigation.
    (c) All information reviewed for declassification because of a
mandatory review will be declassified if it does not meet the standards
for classification in Executive Order 13526. The information will then
be released unless withholding is otherwise authorized and warranted
under applicable law.
    (d) Mandatory declassification review requests for information that
has been classified by the Department of Transportation may be
addressed to the Director of Security, U.S. Department of
Transportation, 1200 New Jersey Avenue, Washington, DC 20590. The
Director will forward the request to the appropriate Departmental
Original Classification Authority for processing.
    (e) Denied requests may be appealed to the DOT Information Security
Review Committee (DISRC) through the Director of Security within 60
days of receipt of the denial. If the DISRC upholds the denial, it will
inform the requestor of his or her final appeal rights to the ISCAP.

0
9. Revise Sec.  8.17 to read as follows:

Sec.  8.17  Classification challenges.

    (a) Authorized holders of information classified by the Department
of Transportation who, in good faith, believe that its classification
status is improper are encouraged and expected to challenge the
classification status of the information before the Original
Classification Authority (OCA) having jurisdiction over the
information. A formal challenge must be in writing, but need not be any
more specific than to question why information is or is not classified,
or is classified at a certain level.
    (b) Classification challenges to DOT information must be addressed
to the DOT Original Classification Authority (OCA) who is responsible
for the information. If unsure of the OCA, address the challenge to the
DOT Director of Security.
    (c) Classification challenges will be processed according to 32 CFR
2001.14.

Sec.  8.19  [Removed and Reserved]

0
10. Remove and reserve Sec.  8.19.

Sec.  8.21  [Amended]

0
11. Amend Sec.  8.21 by removing ``8.13,'' and the comma following
``8.15'', and by removing the word ``agency'' and adding ``component''
in its place.

Sec.  8.23  [Amended]

0
12. Amend Sec.  8.23 as follows:
0
a. In paragraph (a) by adding an ``s'' to the word ``function'';
0
b. In paragraph (b) by removing the word ``a'' and adding in its place
the word ``another'' in the first sentence and by adding the words ``at
a lower level'' after the word ``resolved'' in the last sentence;
0
c. In paragraph (c) by adding ``, directives issued pursuant to
Executive Order 13526,'' after the words ``Executive Order 13526'' in
the first sentence and in the second sentence by removing the words
``in NARA'' and adding in their place ``into the National Archives'';
and
0
d. In paragraph (d) by removing the words ``of this part for automatic
declassification'' at the end of the first sentence, and adding in
their place ``for automatic declassification in section 3.3 of
Executive Order 13526 and its implementing directives''.

Subpart C--Access to Information

0
13. 13. In Sec.  8.25, revise paragraphs (a) introductory text and
(b)(1) through (4)

and add paragraph (b)(5) to read as follows:

Sec.  8.25  Personnel Security Review Board.

    (a) The Department of Transportation Personnel Security Review
Board will, on behalf of the Secretary of Transportation (except in any
case in which the Secretary personally makes the decision), make the
administratively final decision on an appeal arising in any part of the
Department from:
* * * * *
    (b) * * *
    (1) Two persons appointed by the Assistant Secretary for
Administration: One from the Office of Human Resource Management, and
one, familiar with personnel security adjudication, from the Office of
Security, who will serve as Chair;
    (2) One person appointed by the General Counsel, who, in addition
to serving as a member of the Board, will provide to the Board whatever
legal services it may require;
    (3) One person appointed by the Administrator of the Federal
Aviation Administration; and
    (4) One person appointed by the Administrator of the Federal
Highway Administration.
    (5) Any member may designate a representative, meeting the same
criteria as the member, with full power to serve in his/her place.
* * * * *

0
14. Section 8.29 is revised to read as follows:

Sec.  8.29  Access by historical researchers and former Presidential
appointees.

    Access to classified information may be granted to historical
researchers and former Presidents and Vice-Presidents and their
appointees as outlined in Executive Order 13526 or its successor order.
The general guidelines for access to classified information are
contained in Executive Order 12968.

0
15. In Sec.  8.31, amend paragraph (b) by adding the word ``an''
between ``into agreement'' in the first sentence and by removing the
last three sentences and adding a new sentence in their place.
    The addition reads as follows:

Sec.  8.31  Industrial security.

* * * * *
    (b) * * * Specifically, this regulation is DOD 5220.22-M, National
Industrial Security Program Operating Manual, and is effective within
the Department of Transportation. Appropriate security staff, project
personnel, and contracting officers must assure that actions required
by the regulation are taken.

    Issued in Washington, DC, on July 5, 2016, under authority
delegated in 49 CFR 1.27(c).
Molly J. Moran,
Acting General Counsel.
[FR Doc. 2016-16565 Filed 7-14-16; 8:45 am]
 BILLING CODE 4910-9X-P


[Federal Register Volume 87, Number 204 (Monday, October 24, 2022)]
[Notices]
[Pages 64307-64309]
[FR Doc No: 2022-23020]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2020-0066; Notice 2]

Volkswagen Group of America, Inc., Denial of Petition for
Decision of Inconsequential Noncompliance

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

ACTION: Denial of petition.

-----------------------------------------------------------------------

SUMMARY: Volkswagen Group of America, Inc., (``Volkswagen'') has
determined that certain model year (MY) 2019-2020 Volkswagen and Audi
motor vehicles do not fully comply with Federal Motor Vehicle Safety
Standard (FMVSS) No. 138, Tire Pressure Monitoring Systems. Volkswagen
filed a noncompliance report dated May 6, 2020, and later amended it on
May 15, 2020. Volkswagen subsequently petitioned NHTSA on May 20, 2020,
and later amended the petition on June 8, 2020, for a decision that the
subject noncompliance is inconsequential as it relates to motor vehicle
safety. This document announces and explains the denial of Volkswagen's
petition.

FOR FURTHER INFORMATION CONTACT: Ahmad Barnes, Office of Vehicle Safety
Compliance, NHTSA,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Overview

    Volkswagen has determined that certain MY 2019-2020 Volkswagen and
Audi motor vehicles do not fully comply with the requirements of
paragraph S6(f)(3) of FMVSS No. 138, Tire Pressure Monitoring Systems
(49 CFR 571.138). Volkswagen filed a noncompliance report dated May 6,
2020, and later amended it on May 15, 2020, pursuant to 49 CFR part
573, Defect and Noncompliance Responsibility and Reports. Volkswagen
subsequently petitioned NHTSA on May 20, 2020,\1\ for an exemption from
the notification and remedy requirements of 49 U.S.C. Chapter 301 on
the basis that this noncompliance is inconsequential as it relates to
motor vehicle safety, pursuant to 49 U.S.C. 30118(d) and 30120(h) and
49 CFR part 556, Exemption for Inconsequential Defect or Noncompliance.
---------------------------------------------------------------------------

    \1\ Volkswagen amended this petition on June 8, 2020 to correct
certain vehicle information to match its filing information.
---------------------------------------------------------------------------

    Notice of receipt of Volkswagen's petition was published with a 30-
day public comment period on July 10, 2020, in the Federal Register (85
FR 41670). One comment was received. To view the petition and all
supporting documents, log onto the Federal Docket Management System
(FDMS) website at https://www.regulations.gov/, and then follow the
online search instructions to locate docket number ``NHTSA-2020-0066''

II. Vehicles Involved

    Approximately 299,043 of the following MY 2019-2020 Volkswagen and
Audi motor vehicles manufactured between November 26, 2018, and
February 19, 2020, are potentially involved:

 2019-2020 Volkswagen Atlas
 2020 Volkswagen Atlas Cross Sport
 2019 Volkswagen Golf R
 2019 Volkswagen Tiguan LWB
 2019-2020 Volkswagen Jetta NF
 2019-2020 Volkswagen Jetta GLI
 2019 Volkswagen Golf Sportwagen A7
 2019 Audi Q3
 2019-2020 Volkswagen Golf GTI
 2019 Volkswagen Golf Alltrack
 2019-2020 Volkswagen Golf A7
 2019-2020 Audi A3 Sedan
 2019 Audi A3 Cabriolet

III. Noncompliance

    Volkswagen explains that the noncompliance is that the subject
vehicles are equipped with tire pressure monitoring systems (TPMS) that
do not fully comply with the requirements set forth in paragraph
S6(f)(3) of FMVSS No. 138. Specifically, when there is a simultaneous
pressure loss on all four tires, in which pressure loss occurs at the
same rate and time, the detection may not occur within the 20-minute
timeframe specified in test procedure requirements.

IV. Rule Requirements

    Paragraphs S4.2(a), S4.3.1(c), and S6(f)(3) of FMVSS No. 138
include the requirements relevant to this petition. Paragraph S4.2(a)
requires that the TPMS must illuminate a low tire pressure warning
telltale not more than 20 minutes after the inflation pressure in one
or more of the vehicle's tires, up to a total of four tires, is equal
to or less than either the pressure 25 percent below the vehicle
manufacturer's recommended cold inflation pressure, or the pressure
specified in the 3rd column of Table 1 of FMVSS No. 138 for the
corresponding type of tire, whichever is higher. Paragraph S4.3.1(c)
requires that the TPMS is illuminated under the conditions specified in
Paragraph S4.2. Paragraph S6(f)(3) requires that the sum of the total
cumulative drive time under the test procedures described in paragraphs
S6(f)(1) and (2) shall be the lesser of 20 minutes or the time at which
the low tire pressure telltale illuminates.

V. Summary of Volkswagen's Petition

    The following summarizes the views and arguments provided by
Volkswagen in its petition. Therein, Volkswagen describes the subject
noncompliance and contends that the noncompliance is inconsequential as
it relates to motor vehicle safety.
    In support of its petition, Volkswagen offers the following
reasoning:
    1. A rapid tire pressure loss on one or more tires is accurately
detected and the low tire pressure warning telltale will illuminate and
warn the driver.
    2. A pressure loss on fewer than four tires at the same time and
rate will be detected, and the low tire pressure warning telltale will
illuminate and warn the driver.
    3. A simultaneous pressure loss on all four tires at the same rate
will be detected and indicated to the driver, but not in the required
20 minutes. Internal tests have shown that in those tests where the
pressure loss was not detected in 20 minutes, a warning to the

driver was still shown in under 50 minutes. Volkswagen believes this
behavior is not relevant for real world driving, as this particular
diffusion scenario, involving all four tires at the same time and same
rate, is very unlikely to happen in real world driving.
    4. Volkswagen states that as of the production dates listed below
for each respective vehicle, the condition has been corrected:
    Volkswagen:
     2019-2020 Volkswagen Golf vehicles, as of October 26,
2019;
     2019 Volkswagen Golf Alltrack vehicles, as of October 26,
2019;
     2019-2020 Volkswagen Golf GTI vehicles, as of October 26,
2019;
     2019 Volkswagen Golf Sportwagen vehicles, as of August 28,
2019;
     2019 Volkswagen Golf R vehicles, as of August 20, 2019;
     2019-2020 Volkswagen Jetta vehicles, as of October 24,
2019;
     2019-2020 Volkswagen Jetta GLI vehicles, as of October 24,
2019;
     2019 Volkswagen Tiguan vehicles, as of August 18, 2019;
     2019-2020 Volkswagen Atlas vehicles, as of February 20,
2020; and
     2020 Volkswagen Atlas Cross Sport vehicles, as of July 25,
2019.
    Audi:
     2019-2020 Audi A3 vehicles, as of January 25, 2020;
     2019 Audi A3 Cabriolet vehicles, as of July 13, 2019; and
     2019 Audi Q3 vehicles, as of July 31, 2019.
    5. The affected vehicles held at the factory have been corrected,
and unsold units in dealer inventory will be corrected prior to sale.
    6. Additionally, Volkswagen states that it is not aware of any
field or customer complaints related to this condition, nor has it been
made aware of any accidents or injuries that have occurred as a result
of this issue.
    Volkswagen concludes by again contending that the subject
noncompliance is inconsequential as it relates to motor vehicle safety,
and asking that it be exempted from providing notification of the
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the
noncompliance, as required by 49 U.S.C. 30120.

VI. Public Comment

    NHTSA received one comment from the public. This comment was
submitted anonymously by an individual who expressed their opinion that
the subject noncompliance is inconsequential. However, the commenter
did not provide any information specific to the subject noncompliance
in support of this opinion. While the Agency takes great interest in
the public's concerns and appreciates the commenter's feedback, the
comment does not address the substance of Volkswagen's petition.

VII. NHTSA's Analysis

    The burden of establishing the inconsequentiality of a failure to
comply with a performance requirement in a standard--as opposed to a
labeling requirement with no performance implications--is more
substantial and difficult to meet. Accordingly, the Agency has not
found many such noncompliances inconsequential.\2\
---------------------------------------------------------------------------

    \2\ Cf. Gen. Motors Corporation; Ruling on Petition for
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899
(Apr. 14, 2004) (citing prior cases where noncompliance was expected
to be imperceptible, or nearly so, to vehicle occupants or
approaching drivers).
---------------------------------------------------------------------------

    In determining inconsequentiality of a noncompliance, NHTSA focuses
on the safety risk to individuals who experience the type of event
against which the recall would otherwise protect.\3\ In general, NHTSA
does not consider the absence of complaints or injuries as evidence
that the issue is inconsequential to safety. The absence of complaints
does not mean vehicle occupants have not experienced a safety issue,
nor does it mean that there will not be safety issues in the future.\4\
---------------------------------------------------------------------------

    \3\ See, e.g., Gen. Motors, LLC; Grant of Petition for Decision
of Inconsequential Noncompliance, 78 FR 35355 (June 12, 2013)
(finding noncompliance had no effect on occupant safety because it
had no effect on the proper operation of the occupant classification
system and the correct deployment of an air bag); Osram Sylvania
Prods. Inc.; Grant of Petition for Decision of Inconsequential
Noncompliance, 78 FR 46000 (July 30, 2013) (finding occupant using
noncompliant light source would not be exposed to significantly
greater risk than occupant using similar compliant light source).
    \4\ See Morgan 3 Wheeler Limited; Denial of Petition for
Decision of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr.
12, 2016); see also United States v. Gen. Motors Corp., 565 F.2d
754, 759 (D.C. Cir. 1977) (finding defect poses an unreasonable risk
when it ``results in hazards as potentially dangerous as sudden
engine fire, and where there is no dispute that at least some such
hazards, in this case fires, can definitely be expected to occur in
the future'').
---------------------------------------------------------------------------

    Arguments that only a small number of vehicles or items of motor
vehicle equipment are affected also do not justify granting an
inconsequentiality petition.\5\ Similarly, mere assertions that only a
small percentage of vehicles or items of equipment are likely to
actually exhibit a noncompliance are unpersuasive. The percentage of
potential occupants that could be adversely affected by a noncompliance
is not relevant to whether the noncompliance poses an inconsequential
risk to safety. Rather, NHTSA focuses on the consequence to an occupant
who is exposed to the consequence of that noncompliance.\6\
---------------------------------------------------------------------------

    \5\ See Mercedes-Benz, U.S.A., L.L.C.; Denial of Application for
Decision of Inconsequential Noncompliance, 66 FR 38342 (July 23,
2001) (rejecting argument that noncompliance was inconsequential
because of the small number of vehicles affected); Aston Martin
Lagonda Ltd.; Denial of Petition for Decision of Inconsequential
Noncompliance, 81 FR 41370 (June 24, 2016) (noting that situations
involving individuals trapped in motor vehicles--while infrequent--
are consequential to safety); Morgan 3 Wheeler Ltd.; Denial of
Petition for Decision of Inconsequential Noncompliance, 81 FR 21663,
21664 (Apr. 12, 2016) (rejecting argument that petition should be
granted because the vehicle was produced in very low numbers and
likely to be operated on a limited basis).
    \6\ See Gen. Motors Corp.; Ruling on Petition for Determination
of Inconsequential Noncompliance, 69 FR 19897, 19900 (Apr. 14,
2004); Cosco Inc.; Denial of Application for Decision of
Inconsequential Noncompliance, 64 FR 29408, 29409 (June 1, 1999).
---------------------------------------------------------------------------

    NHTSA has evaluated the merits of Volkswagen's petition for
inconsequential noncompliance and has decided to deny the petition.
    The intent of FMVSS No. 138 is to ensure that performance
requirements for TPMS warn drivers of significant under-inflation of
tires and the resulting safety problems.
    Volkswagen explains that in certain instances where there is
simultaneous pressure loss on all 4 tires, in which the pressure loss
occurs at the same rate and time, the detection may not occur within
the prescribed timeframe of the FMVSS No. 138 test procedure, but that
a warning to the driver was still shown in under 50 minutes. Volkswagen
believes this behavior is not relevant for real world driving, as this
particular diffusion scenario, involving all four tires at the same
time and same rate, is very unlikely to happen in real world driving.
    The loss of tire air pressure in one, two, three, or all four tires
is relevant and can occur under normal driving conditions. Under-
inflation is one of the leading causes of tire failure. If tire
pressure is too low, too much of the tire's surface area touches the
road, which increases friction. Increased friction can cause the tires
to overheat, which can lead to premature wear, tread separation, and
blowouts. Even if the likelihood of all four tires deflating at the
same rate at the same time is low, when they happen, blowouts can
endanger the driver of the vehicle with the damaged tire as well as
other drivers sharing the adjacent roadway. A blowout could cause the
driver to lose control of their vehicle and crash. Depending on the
severity of the blowout, other drivers might swerve to

avoid pieces of flying debris from the blown tire and crash their
vehicles. The TPMS detection requirements were established to reduce
the possibility of any negative consequences due to underinflated
tires. The Agency established the requirement that the driver be given
a warning when tire pressure is 25 percent or more below the vehicle
manufacturer's recommended cold tire inflation pressure. This low-tire
pressure threshold, combined with the corresponding 20-minute limit to
notify vehicle operators of this condition, was created to facilitate
warning drivers of significant underinflation of tires to prevent
resulting safety problems.

VIII. NHTSA's Decision

    In consideration of the foregoing, NHTSA has decided that
Volkswagen has not met its burden of persuasion that the subject FMVSS
No. 138 noncompliance is inconsequential to motor vehicle safety.
Accordingly, Volkswagen's petition is hereby denied, and Volkswagen is
consequently obligated to provide notification of and free remedy for
that noncompliance under 49 U.S.C. 30118 and 30120.

(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49
CFR 1.95 and 501.8)

Anne L. Collins,
Associate Administrator for Enforcement.
[FR Doc. 2022-23020 Filed 10-21-22; 8:45 am]
BILLING CODE 4910-59-P