Saturday, February 24, 2007

Federal appeals court takes hard look at law requiring tire inflation monitoring systems.

Saturday, February 17, 2007
Judges balk at suit over tire pressure
Federal appeals court takes hard look at law requiring tire inflation monitoring systems.
David Shepardson / The Detroit News

WASHINGTON -- A three-judge federal appeals court panel Friday questioned the legitimacy of a lawsuit that challenges a new federal regulation requiring tire pressure monitoring systems on all new vehicles starting this fall.

Tire makers and auto safety group Public Citizen claim in their lawsuit that the National Highway Traffic Safety Administration's regulation falls far short of what Congress intended when it passed a 2000 law requiring that all vehicles be equipped with such monitors by Sept 1. The legislation came in the wake of a recall of 13 million tires on Ford Explorers and other vehicles that were linked to nearly 280 deaths.

During a hearing before the U.S. Court of Appeals for the District of Columbia, Judges David Sentelle, Brett Kavanaugh and A. Raymond Randolph questioned whether the tire makers and Public Citizen had the legal right or "standing" to file the suit. Friday's hearing came more than three years after another appeals court threw out NHTSA's first tire pressure regulation, issued in 2002.

The plaintiffs must overcome several hurdles. One is showing that there is a higher risk to motorists from the tire-monitoring regulation that NHTSA imposed versus the one they support. They also must show they have a legal right to file the suit.

Marc Machlin, a lawyer for Public Citizen, noted that more than 78,000 accidents yearly are caused by under-inflated tires. "It's a very serious issue," Machlin said, before he was quickly cut off by Sentelle.

Sentelle said if there is only a general risk for everyone, the matter is best decided by "the political branches" -- i.e. Congress and the White House. Sentelle said under the Public Citizen theory, drivers, passengers and pedestrians -- basically everyone in the United States -- would have a right to sue.

"If everyone has standing, than no one has standing," he said. "What has the (Transportation) department done to prevent the companies from making safer tires?" Sentelle questioned how federal regulators could be held to account by tire makers.

But Kavanaugh also asked some tough questions of Justice Department attorney H. Thomas Byron III. He said it was "odd" that NHTSA could "water down" or effectively eliminate some of the requirements that Congress set in its statute.

Byron said Congress couldn't have meant to mandate an "impossible" requirement, namely that automakers certify that their systems work with all replacement tires.

NHTSA acknowledges that up to 1 percent of replacement tires would make tire pressure systems inoperative -- or 2.25 million of the 225 million replacement tires sold annually in the United States, a figure Byron sought to downplay.

"That's still a lot," Kavanaugh said. Friday's hearing lasted about an hour. The appeals court will issue a written ruling later this year.

Public Citizen, along with tire makers Goodyear Tire & Rubber, Bridgestone/Firestone North America, Cooper Tire & Rubber and Pirelli Tire, and the industry trade group Tire Industry Association, filed the suit against the U.S. Transportation Department and NHTSA.

"NHTSA's watered-down standards will cause more tire failures, leading to more deaths, injuries and property damage than standards meeting statutory requirements," lawyers for Public Citizen, the safety advocacy group, wrote in a legal brief filed last month.

$1.2 billion annual cost

It has been estimated that the requirements will cost automakers up to $1.2 billion annually to fully implement, beginning in the 2008 model year. Car manufacturers argue the lawsuit is an attempt by the tire industry to shift their warranty costs onto them.

Tire makers say NHTSA's regulation puts drivers and passengers at risk because it fails to provide for warning drivers of low tire pressure soon enough, doesn't require the systems to work with replacement tires and allows the monitors to be tested under conditions that don't take into account cold weather extremes, which can alter tire performance.

The regulation being challenged mandates that tire pressure monitoring systems alert drivers within 20 minutes if any tire is 25 percent or more below the recommended inflation level. NHTSA's prior proposal had set the figure at 10 minutes.

When the systems are in place, a radio transmitter sends a signal to a computer that lights a warning signal on the dashboard.

The rule under challenge also says all testing on the system would be done on a test track in San Angelo, Texas, which critics said would not take into account cold weather.

The regulation was issued in April 2005, after an appeals court ruled in August 2003 that NHTSA's regulation, which set the alert level at 30 percent below recommended inflation, adopted "a standard that permits plainly inferior systems" and that was "arbitrary and capricious."

You can reach David Shepardson at (202) 662 - 8735 or

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