Once again, all the stakeholders in tire pressure monitoring systems (TPMS) regulation can do is sit and wait.
The lawsuit filed June 6 before the U.S. Court of Appeals for the D.C. Circuit hasn't moved ahead at all, according to Allison Zieve, an attorney for the consumer watchdog group Public Citizen. No briefings have yet been scheduled by the court, Ms. Zieve said.
This is the second lawsuit Public Citizen has filed against the National Highway Traffic Safety Administration (NHTSA), delaying implementation of a rule requiring the use of tire pressure monitoring systems in cars in an effort to change provisions in the law that it dislikes. What's different about the new suit is the consumer group's co-plaintiffs.
Goodyear, Bridgestone/Firestone, Cooper Tire & Rubber Co., Pirelli Tire L.L.C. and the Tire Industry Association (TIA) have all joined Public Citizen in the suit. Normally, these tire industry giants are more likely to be on opposing sides in any given legal action. In this case, however, they are united in their conviction that the TPMS final rule promulgated by NHTSA April 7 is ``arbitrary and capricious'' and completely inadequate to protect the safety of motorists who will depend on the systems to tell them of dangerous underinflation.
Along with the lawsuit's plaintiffs, several stakeholders await NHTSA's decisions on petitions for reconsideration of the TPMS rule. Besides TIA and Public Citizen, these include the Rubber Manufacturers Association (RMA), Michelin North America Inc., Sumitomo Rubber Industries Ltd., the Specialty Equipment Market Association (SEMA), Volkswagen of America Inc., the Alliance of Automobile Manufacturers and several tire pressure monitoring system manufacturers.
The RMA, Michelin and other tire makers did not join the court action. Michelin merely said that it believed it took the appropriate course of action by not entering into litigation, while the RMA said it couldn't join the suit when there was no unanimity among RMA members regarding it.
``NHTSA may decide not to consider the petitions until the lawsuit is settled,'' said an RMA spokesman, perhaps offering a clue as to why the RMA and Michelin stayed away from the court action.
The first TPMS final rule, issued in June 2002, was held up for more than a year by the suit filed by Public Citizen and the Center for Auto Safety (CAS), during which time NHTSA essentially ceased all action on the TPMS issue.
The substance of that lawsuit was the consumer groups' objection to the substance of the first rule. It gave greater consideration to monitoring systems that measured tire inflation indirectly, a decision the Office of Management and Budget forced on the agency.
Such a slant, Public Citizen and the CAS said, compromised motorists' safety by downplaying the more reliable direct-monitoring systems. In opposition, the Alliance of Automobile Manufacturers insisted indirect systems provided substantial safety benefits to consumers.
In an August 2003 decision, the Second Circuit Court of Appeals in New York ruled in favor of the plaintiffs and sent the TPMS rule back to NHTSA for serious revision. Both the second proposed rule, issued last September, and the June 2002 final rule left the door open for advances in TPMS technology, both direct and indirect.
Stakeholders, however, were disgusted that the rewritten regulation still allowed tires to fall 25 percent below the vehicle manufacturer's recommended air pressure before consumers ever saw a warning light. Tire makers and Public Citizen also objected to the lack of any provision mandating that monitoring devices be compatible with replacement tires.
TIA made particular issue in the final rule of NHTSA doubling the TPMS response time to an underinflation situation. Instead of 10 minutes between the first recording of a severe underinflation and the illumination of a warning light, the final rule allows 20.
The association noted all these objections in its petition to the agency, said Becky MacDicken, TIA director of government affairs. ``But as far as our petition goes, there probably will be nothing good in the way of a response,'' she said. ``That's why we filed the lawsuit.''
The RMA fought for years to get NHTSA to promulgate a tire pressure reserve load requirement to counteract the 25-percent warning differential. Despite support from TIA and the American Automobile Association, however, the agency rejected the RMA petition in May, saying it found no evidence anywhere of a direct correlation between tire pressure reserve and tire failure claims.
It will be difficult, if even possible, for the RMA to appeal this decision because it was a petition, not a rulemaking, the RMA spokesman said.
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Where they stand
The following is a synopsis of the positions of the major stakeholders on the Tire Pressure Monitoring Systems (TPMS) final rule from the National Highway Traffic Safety Administration (NHTSA):
* PUBLIC CITIZEN: The organization sued NHTSA twice over TPMS-successfully in August 2003 to overturn the agency's decision to favor indirect monitoring systems-and now is in a pending suit in opposition to several aspects of the new version of the regulation. Public Citizen is particularly unhappy about the lack of a provision to mandate compatibility between TPMS units and replacement tires.
* RUBBER MANUFACTURERS ASSOCIATION: The RMA denounced both versions of the rule from the beginning, largely because of the provision allowing tire pressures to fall 25 percent below recommended levels before warning lights are illuminated. The association asked NHTSA for a tire reserve load requirement to make up for the shortfall but was turned down. It did not join in the latest lawsuit against the agency, officially because of lack of unanimity among tire manufacturing members, but also because NHTSA may not act on petitions while the case is pending.
* TIRE INDUSTRY ASSOCIATION: It stood with the RMA against the 25-percent differential and for the tire reserve load requirement. TIA is upset with the agency decision to double the TPMS response time to an underinflated tire, to 20 minutes from 10. It feels NHTSA isn't listening to the tire industry on the TPMS issue, which is why it and four major tire manufacturers-Goodyear, Bridgestone/Firestone, Cooper Tire & Rubber Co. and Pirelli Tire L.L.C.-joined Public Citizen in the current lawsuit.
* ALLIANCE OF AUTOMOBILE MANUFACTURERS: The group persuaded the Office of Management and Budget to force NHTSA to include indirect TPMS units in the first final rule, which led Public Citizen and the Center for Auto Safety to sue. The alliance's petition for reconsideration of the new rule concentrates on technical changes. It is not a party to the new Public Citizen lawsuit.