Federal Motor Vehicle Safety Standard No. 141, Minimum Sound Requirements for Hybrid and Electric Vehicles |
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Topics: Federal Motor Vehicle Safety Standards
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James Clayton Owens
National Highway Traffic Safety Administration
17 September 2019
[Federal Register Volume 84, Number 180 (Tuesday, September 17, 2019)]
[Proposed Rules]
[Pages 48866-48872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19874]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Parts 571 and 585
[Docket No. NHTSA-2019-0085]
RIN 2127-AL93
Federal Motor Vehicle Safety Standard No. 141, Minimum Sound
Requirements for Hybrid and Electric Vehicles
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking.
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SUMMARY: This notice proposes to amend Federal Motor Vehicle Safety
Standard (FMVSS) No. 141, Minimum Sound Requirements for Hybrid and
Electric Vehicles, to allow manufacturers of hybrid and electric
vehicles (HEVs) to install a number of driver-selectable pedestrian
alert sounds in each HEV they manufacture. This proposal responds to a
petition for reconsideration of the FMVSS No. 141 final rule published
December 14, 2016. NHTSA is proposing to remove the limit to the number
of compliant sounds that a manufacturer may choose to install in a
vehicle. Drivers would be able to select the sound they prefer from the
set of sounds installed in the vehicle. NHTSA is also seeking comment
on whether interested parties believe that the agency should establish
a limit to the number of compliant sounds from which a driver may
select that a manufacturer may choose to install in a vehicle.
This document also makes technical changes.
DATES: Comments on this proposal must be received no later than
November 1, 2019.
ADDRESSES: All comments and other information relating to this notice
should refer to the docket number in the heading of this document and
be submitted to: Administrator, National Highway Traffic Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE, West Building, Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT: You may contact Mr. Thomas Healy,
NHTSA Office of the Chief Counsel, at 202-366-2992 (FAX: 202-366-3820)
or Mr. Michael Pyne, NHTSA Office of Crash Avoidance Standards, at 202-
366-4171 (FAX: 202-493-2990).
SUPPLEMENTARY INFORMATION: NHTSA is proposing to amend FMVSS No. 141,
Minimum Sound Requirements for Hybrid and Electric Vehicles (the
``Quiet Vehicles'' final rule) to remove the current limitation of one
sound per vehicle model. Under the proposal, there would not be a limit
to the number of compliant sounds a manufacturer could install in a
vehicle. NHTSA is also requesting comment on whether there should be a
limit to the number of compliant sounds that a manufacturer can install
in a vehicle and what that limit should be.
Under FMVSS No. 141 currently, the HEV pedestrian alert sounds are
allowed to vary with vehicle operating condition (stationary, reverse,
10 km/h, 20 km/h, and 30 km/h), but only one sound per operating
condition is allowed for all vehicles of the same model, model year,
body type and trim level. This proposal responds to a petition for
reconsideration of the FMVSS No. 141 final rule published on December
14, 2016.\1\ In a joint petition \2\ submitted to NHTSA in January
2017, the Alliance of Automobile Manufacturers (Alliance) and Global
Automakers (Global), the two main automotive industry groups in the
U.S. representing most light vehicle manufacturers, requested several
amendments.\3\ One of the requested
[[Page 48867]]
amendments, addressed in this proposed rule, was that NHTSA modify
section S5.5 of FMVSS No. 141 so that each HEV can be equipped with a
suite of several pedestrian alert sounds for the driver to choose from
rather than one sound. According to Alliance/Global, providing this
choice is important for consumer acceptance of future HEVs that will
have pedestrian alert sounds in compliance with FMVSS No. 141.
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\1\ Final Rule, Federal Motor Vehicle Safety Standards; Minimum
Sound Requirements for Hybrid and Electric Vehicles [81 FR 90416],
effective September 5, 2017; docket No. NHTSA-2016-0125.
\2\ Docket item no. NHTSA-2018-0018-0004.
\3\ NHTSA issued a final rule on February 26, 2018, to address
the other requested actions in the Alliance/Global petition for
reconsideration. In that petition response, the agency announced
that it was planning to publish a notice proposing to allow driver-
selectable sounds.
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NHTSA promulgated FMVSS No. 141 pursuant to the Pedestrian Safety
Enhancement Act (PSEA) of 2010.\4\ The PSEA included language that
placed constraints on the multitude of different HEV pedestrian alert
sounds that are possible. The PSEA stated NHTSA should allow
manufacturers to provide each vehicle with one or more sounds at the
time of manufacture. The PSEA further stated that NHTSA must require
that vehicles of the same make and model produce the same sound or set
of sounds, which would result in all similar vehicles having a similar
sound in a given operating condition (forward, reverse, etc.). The PSEA
did not, however, establish a specific limitation on the number of
sounds emitted by vehicles subject to the final rule.
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\4\ Public Law 111-373, 124 Stat. 4086 (January 4, 2011).
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NHTSA implemented this PSEA limitation in the FMVSS No. 141 final
rule \5\ under section S5.5 titled ``Sameness.'' This section states
that vehicles of the same make, model, model year, and trim level must
have the same pedestrian alert sound. The agency interpreted the PSEA
``sameness'' language to allow vehicles to have different sounds for
different operating modes, such as forward, reverse and stationary. The
requirements as published in FMVSS No. 141 do not permit a vehicle to
have multiple sounds from which the driver can choose. The agency
discussed this in the preamble of the final rule.\6\
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\5\ The PSEA also included a restriction on disabling or
altering of factory-equipped alert sounds. NHTSA implemented that
PSEA restriction separately in paragraph S8 of FMVSS No. 141.
\6\ See Final Rule, 81 FR 90416, at p. 90472.
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The automotive industry groups' petition showed they had a
different view of the language of the PSEA regarding multiple sounds
per vehicle. Because the original Notice of Proposed Rulemaking (NPRM)
for FMVSS No. 141 did not contemplate allowing driver-selectable
sounds, the agency is opening this issue for public comment before
proceeding with an amendment of FMVSS No. 141.
This notice also makes a technical change to section S6.7 of FMVSS
No. 141 relating to ambient noise correction procedures. NHTSA has
received several requests to clarify the procedural step in S6.7.3 for
evaluation of ambient one-third octave bands in compliance tests. NHTSA
is issuing a reworded paragraph S6.7.3 to specify more clearly the
point at which the one-third octave bands should be computed during
measurements of ambient noise.
Lastly, in this notice NHTSA is correcting two dates in the FMVSS
No. 141 phase-in reporting requirements in 49 CFR 585, Subpart N.
This proposed rule is deregulatory in nature and is expected to
generate benefits and cost savings in excess of costs. The proposed
rule provides manufacturers with more flexibility and options in
developing and installing sounds for their hybrid and electric
vehicles. NHTSA believes it is reasonable to assume that manufacturers
would not utilize the flexibilities provided by the proposal to develop
and install additional selectable sound options unless the benefits
exceed the costs to them. Likewise, NHTSA believes it is reasonable to
assume that consumers would not pay more for vehicles with additional
sound options unless the benefits to them exceed any additional cost of
the vehicle.
Background
The PSEA was enacted in January 2011 and mandated that NHTSA must
establish a new motor vehicle safety standard applying to HEVs. The
PSEA stated the new standard must ``establish performance requirements
for an alert sound that allows blind and other pedestrians to
reasonably detect a nearby electric or hybrid vehicle operating below
the cross-over speed . . . .'' In section 3(2) of the PSEA, there is a
provision addressing ``sameness'' of the required vehicle alert sounds.
Section 3(2) states that HEVs must have ``within reasonable
manufacturing tolerances, the same sound or set of sounds for all
vehicles of the same make and model . . . .''
Pursuant to the PSEA, NHTSA issued an NPRM \7\ in January 2013 and
a final rule in December 2016, to create a new FMVSS setting minimum
sound level requirements for the operation of HEVs at speeds up to 30
km/h. The requirements in the final rule respond to the PSEA mandate by
providing a level of vehicle sound that the blind and sighted
pedestrians, as well as bicyclists, can use to detect the presence of
these so-called ``quiet vehicles,'' thereby reducing the risk of low-
speed pedestrian and bicyclist crashes involving HEVs. The FMVSS
applies to electric and hybrid-electric passenger cars, multi-purpose
vehicles, light trucks, and buses with a GVWR of 10,000 pounds or less
that can be operated in electric mode without an internal combustion
engine (ICE). To comply with the standard, light vehicle manufacturers
in most cases will equip vehicles with pedestrian alert systems that
meet the minimum sound levels specified in the standard. These systems
typically consist of one or more audio speakers, amplifiers, a control
module, and software capable of generating the required sound. It is
possible for a vehicle to meet some or all the minimum sound levels
without added hardware if there is sufficient noise from other sources
within the vehicle. For example, the sound emitted by a battery cooling
system or a vehicle's tires at 30 km/h might satisfy the minimum
specifications without added noise from an alert system.
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\7\ 78 FR 2798.
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After the final rule was published, NHTSA received timely petitions
for reconsideration from three sources: The Auto Alliance in
conjunction with Global Automakers (Alliance/Global), Nissan North
America, Inc. (Nissan), and American Honda Motor Company, Inc. (Honda).
Each of these petitioners requested changes to various aspects of the
final rule. The requested changes included the phase-in schedule and
compliance lead-time as well as other requirements of the new safety
standard such as how much alert sound variation is allowed between
vehicles of the same make and model. The petitions also asked for
clarification of some technical aspects of the acoustic performance
requirements and test procedures.
Alliance/Global included in its petition a request for NHTSA to
amend S5.5 of the new safety standard to explicitly allow automakers to
equip their HEVs with multiple different sounds, rather than just one
sound, for each operating condition as specified in the FMVSS No. 141
final rule. NHTSA is responding to that petition request by proposing
to amend FMVSS No. 141 to accommodate driver-selectable sounds. NHTSA
is issuing this NPRM to solicit public comment on the proposed change.
Specifically, NHTSA proposes amending Paragraph S5.5.1 to remove
any limit on the number of sounds per vehicle make/model. NHTSA is also
requesting comment from any interested parties on whether there should
be a limit to the number of driver selectable sounds and what that
limit should be.
[[Page 48868]]
Discussion
Sameness Requirement
The ``Sameness'' provision appears in section 3(2) of the PSEA and
states that the federal regulation created pursuant to the PSEA ``shall
allow manufacturers to provide each vehicle with one or more sounds
that comply with the motor vehicle safety standard at the time of
manufacture.'' Section 3(2) further states that the regulation ``shall
require manufacturers to provide, within reasonable manufacturing
tolerances, the same sound or set of sounds for all vehicles of the
same make and model.''
NHTSA interpreted this section of the PSEA to mean that a
manufacturer may choose to equip a vehicle with different sounds for
different operating modes, including stationary, reverse, and forward
at 10 km/h, 20 km/h, and 30 km/h.\8\ However, in the December 2016
final rule, NHTSA did not interpret this language to mean vehicles can
be equipped with more than one alert sound for a given operating
condition and speed.
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\8\ See NHTSA NPRM [78 FR 2798], p. 2804.
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Consequently, NHTSA did not include any provision in either the
NPRM or final rule allowing for more than a single alert sound per
operating mode. Instead, FMVSS No. 141 requires that any two vehicles
of the same make and model to which the standard applies must have the
same alert sound when operating under the same test conditions and the
same speed.\9\
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\9\ Section S5.5.1 of FMVSS No. 141, as published in December
2016, allowed the alert sound to vary by model year as well as make
and model (see 81 FR 90472). This was further amended on February
26, 2018, to allow alert sounds to vary by trim level and body style
within a make/model/model year (see 83 FR 8189).
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Alliance/Global Petition
In their January 2017 petition, Alliance/Global stated that NHTSA
adopted an inflexible approach to ensuring sameness and did not account
for specific statutory language in the PSEA that permits multiple alert
sounds per vehicle. Specifically, Alliance/Global believe the words
``one or more sounds'' in Section 3(2) of the PSEA provide this
flexibility and that NHTSA's final rule was inconsistent with this.
Alliance/Global stated that providing a selection of sounds is
essential for customer acceptance of HEVs: ``Satisfying our customers
is a primary concern for OEMs [Original Equipment Manufacturers]. Since
`one size does not fit all' neither will one alert sound for a given
make, model, trim level and model year satisfy all those consumers
purchasing all these same vehicles.'' The petition also discussed
comments submitted to the agency in February 2014 jointly by the
Alliance, Global, the American Council of the Blind (ACB), and the
National Federation of the Blind (NFB), in which the commenters,
including the two advocate organizations, recognized the need to
provide consumers with a reasonable number of driver-selectable sound
choices for customer acceptance reasons.
Alliance/Global submitted a follow-up letter \10\ dated March 1,
2017, to supplement their petition. One aspect of the letter addressed
the fact that the variety of alert sounds that manufacturers can create
that comply with the safety standard is virtually unlimited due to the
acoustic flexibility provided by the requirements in FMVSS No. 141. To
address this concern, Alliance/Global stated that, in the event NHTSA
amended FMVSS No. 141 to allow selectable sounds, they recommend a
limit of five sounds per vehicle. They provided the following
explanation: ``Because every additional driver-selectable choice of
sound requires a separate certification test as well as a compliance
test, the number of driver-selectable choices provided by manufacturers
would naturally be limited for practical reasons. However, to address
potential concerns that manufacturers might provide too many optional
sounds, we recommend that the number of permitted driver-selectable
sounds be limited to no more than five driver-selectable alert sounds
for any make, model, trim level, model year vehicle.''
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\10\ Docket No. NHTSA-2016-0125-0016.
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The Alliance and Global's January 2017 petition also discussed
possible implications of paragraph S8 of FMVSS No. 141 regarding a
selectable-sounds provision. Paragraph S8 implements part of Section
3(2) of the PSEA by prohibiting alteration of a factory-installed sound
except in case of a vehicle repair or recall.\11\ The Alliance/Global
petition states, ``The ability to permit customers to select different
compliant sounds from a set of driver-selectable compliant sounds does
not violate the PSEA restrictions against disabling, altering,
replacing, or modifying the sound or set of sounds. Specifically, as
long as the customer is selecting a sound that is among the `set of
sounds' provided by the manufacturer when the car is new, then the
driver is not modifying the `set' by selecting sounds provided within
the `set.' ''
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\11\ The Alliance/Global petition requested a small change to
paragraph S8 of FMVSS No. 141 so that vehicle repairs to a module
that controls both the pedestrian alert system and other vehicle
systems would not violate the prohibition on alterations to the
alert system. NHTSA granted their request on this point in the
agency's February 2018 petition response by adopting minor edits to
paragraph S8 as suggested by Alliance/Global.
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NHTSA Proposal and Request for Comments
After considering the Alliance/Global petition, and recognizing
that the language of the PSEA regarding sameness of sounds among
vehicles of the same make and model is subject to more than one
interpretation, and also that consumer preferences for vehicle alert
sounds will depend on subjective factors, NHTSA has decided to propose
amending FMVSS No. 141 to allow an unlimited number of pedestrian alert
sounds per vehicle for any operating condition. (As previously stated,
the different operating conditions are when the vehicle is stationary,
in reverse, or moving forward at speeds up to 30 km/h.)
This proposal would also improve international harmonization by
aligning FMVSS No. 141 more closely with international regulations,
particularly United Nations ECE Regulation No. 138 for Audible Vehicle
Alerting Systems, which states ``a vehicle manufacturer may define
alternative sounds which can be selected by the driver.'' The ECE
regulation does not specify a particular limit on the number of
alternative sounds that may be provided.
The agency believes that allowing for an additional number of
sounds will have no effect on safety, since all sounds would still need
to comply with the standard. NHTSA notes that the Alliance/Global
petition recommended up to five sounds per operating condition. The
agency requests comment on this suggestion and any other appropriate
limit.
In summary, NHTSA is seeking comment from all interested parties on
amending the ``Sameness'' requirement, section S5.5.1 of FMVSS No. 141,
which currently allows only one sound, to allow multiple sounds per
operating condition for each model, model year, trim, and body style of
HEV. Specifically, NHTSA requests comment and supporting information on
any safety implications, compliance issues, consumer-acceptance
factors, cost issues, or other possible alternatives that would
accompany allowing an unlimited number of compliant driver-selectable
sounds in FMVSS No. 141.
In particular, NHTSA seeks comment on the potential safety issues
related to HEV recognition by pedestrians if a multitude of new
compliant driver-
[[Page 48869]]
selectable sounds are available, and the extent to which having an
unlimited number of sounds would lead to the potential for a
pedestrian's inability to identify the sounds as a motor vehicle.
As to the remaining aspects of the Alliance/Global petition, NHTSA
is not proposing any change to paragraph S8 of FMVSS No. 141 and
believes amending S5.5.1 as proposed in this notice will fully address
the Alliance/Global petition on driver-selectable sounds. The
requirements in S8 still would apply to the set of selectable sounds
provided by the OEM, i.e., aftermarket modification of the set of
sounds would not be permitted except in allowable circumstances
specified in section S8, such as vehicle repairs and recalls.
Technical Clarification and Correction
NHTSA recently became aware that the procedure in FMVSS No. 141 for
evaluating ambient noise during compliance tests is unclear. The
Alliance and Global raised this issue in an April 2018 letter along
with several other FMVSS No. 141 technical concerns.\12\ The ambient
noise correction procedure at issue is in section S6.7.3.
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\12\ See Docket item no. NHTSA-2018-0018-0004.
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This paragraph indicates that the one-third octave band levels of
the ambient noise recording that are used for correction of vehicle
measurements are the individual minimum levels in each one-third octave
at any point in time over the 60-seconds of recorded ambient noise.
This incorrectly implies that the levels of different one-third octave
bands may be evaluated at different times. This was not NHTSA's
intention. The correct method intended by the agency is to evaluate
ambient levels of all 13 one-third octave bands at the same point in
time. The point in time at which ambient one-third octave bands are
supposed to be evaluated is the unique point during the 60 seconds when
the overall sound pressure level of the ambient is at a minimum, as
identified in S6.7.2, the preceding step in the ambient correction
procedure.
To resolve this, NHTSA is proposing to amend paragraph S6.7.3 to
more clearly state the intended method of evaluating one-third octave
bands for ambient correction. A proposed rewording of section S6.7.3
that would implement this change is included at the end of this
document. The agency invites all interested parties to comment on this
change.
Additionally, NHTSA has become aware of a minor correction that is
needed in the phase-in reporting requirements of FMVSS No. 141. The
FMVSS No. 141 final rule published in December 2016 required vehicle
manufacturers to report on their production of compliant HEVs during a
one-year phase-in period. (This kind of reporting requirement is
standard practice for NHTSA rules that include a phase-in period.) The
reporting requirements and associated due dates for phase in of
compliance with FMVSS No. 141 are contained in 49 CFR 585, Subpart N.
NHTSA has determined that the December 2016 rule amending Part 585,
Subpart N, states in two places, ``the production year ending August
31, 2018'' instead of ``the production year ending August 31, 2019.''
When NHTSA granted a petition to extend the FMVSS No. 141 phase-in and
compliance deadlines by one year,\13\ the reporting dates in Part 585,
Subpart N, were all adjusted by adding one year. However, because those
two dates were stated incorrectly in the original final rule, the
adjusted dates also were off by one year. In this notice, NHTSA is
making the necessary changes to 49 CFR 585, Subpart N, to specify that
phase-in reporting applies to the production year ending August 31,
2020. The corrected regulatory text, is included at the end of this
document.
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\13\ 83 FR 8182, published Feb. 26, 2018.
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Rulemaking Analyses and Notices
A. Executive Order 12866, Executive Order 13563, and DOT Regulatory
Policies and Procedures
NHTSA has considered the impact of this rulemaking action under
Executive Order 12866, Executive Order 13563, and the Department of
Transportation Order 2100.6, ``Policies and Procedures for
Rulemakings.'' This rulemaking is not considered significant and was
not reviewed by the Office of Management and Budget under E.O. 12866,
``Regulatory Planning and Review.'' Given the minimal impact of the
rule, in accordance with the Department's regulatory policies and
procedures, we have not prepared a full regulatory evaluation.\14\ The
agency has further determined that the impact of this proposed rule is
so minimal that the preparation of a full regulatory evaluation is not
required.
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\14\ Department of Transportation, Adoption of Regulatory
Policies and Procedures, 44 FR 11034 (Feb. 26, 1979).
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This proposed rule responding to a petition for reconsideration
does not add any cost, as it would afford manufacturers additional
flexibility in designing their vehicles to meet customer acceptance
goals. It would not add new requirements or increase design or
production burden for vehicle manufacturers.
This proposal, if adopted, would remove a final-rule restriction on
vehicle design that auto manufacturers in the U.S. have sought to
remove. This amendment also would give manufacturers of hybrid and
electric vehicles greater flexibility in marketing those vehicles to
consumers and make vehicles potentially more appealing to consumers by
providing customer choice in selecting vehicle sounds.
The benefits and cost savings of this proposed rule are expected to
exceed any increase in costs to manufacturers if they choose to create
additional sounds. The proposal would allow manufacturers to equip
vehicles with additional sounds but would not require it. If this
proposal is finalized, a manufacturer would still be able to comply
with FMVSS No. 141 by equipping a vehicle with a single sound.
The proposed rule provides manufacturers with more flexibility and
options in developing and installing sounds for their hybrid and
electric vehicles. NHTSA believes it is reasonable to assume that
manufacturers would not utilize the flexibilities provided by the
proposal to develop and install additional selectable sounds unless the
benefits to them exceed the costs to them. Likewise, NHTSA believes it
is reasonable to assume that consumers would not purchase vehicles with
additional sounds unless the benefits to them exceed any additional
cost of the vehicle. At the same time, the proposal would not have any
effect on safety, as all sounds would still need to comply with the
standard.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
The Small Business Administration's regulations at 13 CFR part 121
define a small business, in part, as a business entity ``which operates
primarily within the United States.'' (13 CFR 121.105(a)). No
regulatory flexibility analysis is required if the head of an agency
certifies the rule would not have a significant economic impact on a
substantial number of small entities. SBREFA amended the Regulatory
[[Page 48870]]
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule would not have a
significant economic impact on a substantial number of small entities.
NHTSA has considered the effects of this proposed rule under the
Regulatory Flexibility Act. This proposed rule would directly impact
manufacturers of hybrid and electric vehicles. Most manufacturers
affected by this proposed rule are not small businesses. To the extent
any manufacturers of hybrid or electric vehicles are small businesses,
we do not believe this proposed rule would have a significant economic
impact on any small businesses as this proposed rule would not impose
any costs on manufacturers but would instead increase flexibility for
vehicle manufacturers.
C. Executive Order 13132 (Federalism)
NHTSA has examined today's proposed rule pursuant to Executive
Order 13132 (64 FR 43255, August 10, 1999) and concluded that no
additional consultation with States, local governments or their
representatives is mandated beyond the rulemaking process. The agency
has concluded that the rulemaking would not have sufficient federalism
implications to warrant consultation with State and local officials or
the preparation of a federalism summary impact statement. The proposed
rule would not have ``substantial direct effects 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.''
NHTSA rules can preempt in two ways. First, the National Traffic
and Motor Vehicle Safety Act contains an express preemption provision:
When a motor vehicle safety standard is in effect under this chapter, a
State or a political subdivision of a State may prescribe or continue
in effect a standard applicable to the same aspect of performance of a
motor vehicle or motor vehicle equipment only if the standard is
identical to the standard prescribed under this chapter. 49 U.S.C.
30103(b)(1). It is this statutory command by Congress that preempts any
non-identical State legislative and administrative law addressing the
same aspect of performance.
The express preemption provision described above is subject to a
savings clause under which ``[c]ompliance with a motor vehicle safety
standard prescribed under this chapter does not exempt a person from
liability at common law.'' 49 U.S.C. 30103(e). Pursuant to this
provision, State common law tort causes of action against motor vehicle
manufacturers that might otherwise be preempted by the express
preemption provision are generally preserved. However, the Supreme
Court has recognized the possibility, in some instances, of implied
preemption of such State common law tort causes of action by virtue of
NHTSA's rules, even if not expressly preempted. This second way that
NHTSA rules can preempt is dependent upon there being an actual
conflict between an FMVSS and the higher standard that would
effectively be imposed on motor vehicle manufacturers if someone
obtained a State common law tort judgment against the manufacturer,
notwithstanding the manufacturer's compliance with the NHTSA standard.
Because most NHTSA standards established by an FMVSS are minimum
standards, a State common law tort cause of action that seeks to impose
a higher standard on motor vehicle manufacturers will generally not be
preempted. However, if and when such a conflict does exist--for
example, when the standard at issue is both a minimum and a maximum
standard--the State common law tort cause of action is impliedly
preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).
Pursuant to Executive Order 13132 and 12988, NHTSA has considered
whether this rulemaking action could or should preempt State common law
causes of action. The agency's ability to announce its conclusion
regarding the preemptive effect of one of its rules reduces the
likelihood that preemption will be an issue in any subsequent tort
litigation.
To this end, the agency has examined the nature (e.g., the language
and structure of the regulatory text) and objectives of today's
proposed rule and finds that this rule, like many NHTSA rules,
prescribes only a minimum safety standard. As such, NHTSA does not
intend that this rule preempt State tort law that would effectively
impose a higher standard on motor vehicle manufacturers than that
established by today's rule. Establishment of a higher standard by
means of State tort law would not conflict with the minimum standard
announced here. Without any conflict, there could not be any implied
preemption of a State common law tort cause of action.
D. Executive Order 13771 (Regulatory Reform)
NHTSA has reviewed this proposed rule for compliance with E.O.
13771 (``Reducing Regulation and Controlling Regulatory Costs''), which
requires Federal agencies to offset the number and cost of new
regulations through the repeal, revocation, or revision of existing
regulations. As provided in OMB Memorandum M-17-21 (``Implementing E.O.
13771''), a ``regulatory action'' subject to E.O. 13771 is a
significant regulatory action as defined in section 3(f) of E.O. 12866
that has been finalized and that imposes total costs greater than zero.
For the reasons identified in the previous sections, this proposed rule
is not a significant regulatory action under E.O. 12866.
Furthermore, this proposal is a ``deregulatory action'' under E.O.
13771 because, as discussed above, it would reduce regulatory burden on
industry by allowing design flexibility by giving manufacturers the
option to use selectable sounds. Also, it would improve international
harmonization by aligning more closely with international regulations,
particularly United Nations ECE Regulation No. 138 for Audible Vehicle
Alerting Systems.
E. Executive Order 12988 (Civil Justice Reform)
With respect to the review of the promulgation of a new regulation,
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR
4729; Feb. 7, 1996), requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect; (2) clearly specifies the effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct, while promoting simplification and burden reduction;
(4) clearly specifies the retroactive effect, if any; (5) specifies
whether administrative proceedings are to be required before parties
file suit in court; (6) adequately defines key terms; and (7) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the Attorney General. This document is
consistent with that requirement.
Pursuant to this Order, NHTSA notes that the issue of preemption is
discussed separately in this notice. NHTSA notes further that there is
no requirement that individuals submit a petition for reconsideration
or pursue other administrative proceedings before they may file suit in
court.
F. Protection of Children From Environmental Health and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health and Safety Risks'' (62 FR 19855, April 23, 1997), applies to any
rule that: (1)
[[Page 48871]]
Is determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental, health, or
safety risk that the agency has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the agency.
This notice is part of a rulemaking that is not expected to have a
disproportionate health or safety impact on children. Consequently, no
further analysis is required under Executive Order 13045.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), a person is not
required to respond to a collection of information by a Federal agency
unless the collection displays a valid OMB control number. There is not
any new information collection requirement associated with this
proposed rule.
H. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) requires NHTSA to evaluate and use existing voluntary
consensus standards in its regulatory activities unless doing so would
be inconsistent with applicable law (e.g., the statutory provisions
regarding NHTSA's vehicle safety authority) or otherwise impractical.
Voluntary consensus standards are technical standards developed or
adopted by voluntary consensus standards bodies. Technical standards
are defined by the NTTAA as ``performance-based or design-specific
technical specification and related management systems practices.''
They pertain to ``products and processes, such as size, strength, or
technical performance of a product, process or material.'' Examples of
organizations generally regarded as voluntary consensus standards
bodies include ASTM International, the SAE International, and the
American National Standards Institute. If NHTSA does not use available
and potentially applicable voluntary consensus standards, we are
required by the Act to provide Congress, through OMB, an explanation of
the reasons for not using such standards.
There are no voluntary consensus standards developed by voluntary
consensus standards bodies pertaining to this proposed rule.
I. Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires federal agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of more
than $100 million annually (adjusted for inflation with base year of
1995). Before promulgating a NHTSA rule for which a written statement
is needed, section 205 of the UMRA generally requires the agency to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most cost-effective, or least burdensome
alternative that achieves the objectives of the rule. The provisions of
section 205 do not apply when they are inconsistent with applicable
law. Moreover, section 205 allows the agency to adopt an alternative
other than the least costly, most cost-effective, or least burdensome
alternative if the agency publishes with the final rule an explanation
of why that alternative was not adopted.
This proposed rule would not result in any expenditure by State,
local, or tribal governments or the private sector of more than $100
million, adjusted for inflation.
J. National Environmental Policy Act
NHTSA analyzed the original FMVSS No. 141 final rule for the
purposes of the National Environmental Policy Act. The agency
determined that implementation of that rule would not have any
significant impact on the quality of the human environment.\15\
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\15\ Docket item no. NHTSA-2016-0125-0009, https://www.regulations.gov/document?D=NHTSA-2016-0125-0009.
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The rulemaking action in this notice would amend the FMVSS No. 141
final rule in a way that would not change the impact for the purposes
of the National Environmental Policy Act. Therefore, the agency has
determined that implementation of this action would not have any
significant impact on the quality of the human environment.
K. Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN contained in the heading at the beginning of this document
to find this action in the Unified Agenda.
L. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78).
List of Subjects
49 CFR Part 571
Minimum sound requirements for hybrid and electric vehicles; Phase-
in reporting requirements.
49 CFR Part 585
Imports, Motor vehicle safety, Reporting and recordkeeping
requirements, Tires.
For the reasons set forth in the preamble, the National Highway
Traffic Safety Administration proposes to amend 49 CFR parts 571 and
585 as follows:
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
0
1. The authority citation for Part 571 continues to read as follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.95.
0
2. Amend Sec. 571.141 by revising paragraph S5.5.1 and S6.7.3 to read
as follows:
Sec. 571.141 Standard No. 141; Minimum Sound Requirements for Hybrid
and Electric Vehicles
* * * * *
S5.5 Sameness Requirement
S5.5.1 Any two vehicles of the same make, model, model year, body
type, and trim level (as those terms are defined in 49 CFR 565.12 or in
section S4 of this safety standard) to which this standard applies
shall be designed to have the same pedestrian alert sound or set of
sounds, when operating under the same test conditions and at the same
speed within the range of test conditions and speeds for which an alert
sound is required in Section S5 of this safety standard.
* * * * *
S6.7.3 For each microphone, compute an ambient level for each of
the 13 one-third octave bands using the time that is associated with
the
[[Page 48872]]
minimum A-weighted overall ambient identified in S6.7.2.
* * * * *
PART 585--PHASE-IN REPORTING REQUIREMENTS
0
3. The authority citation for part 585 continues to read/is revised to
read as follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.95.
0
4. Revise Sec. 585.132 to read as follows:
Sec. 585.132 Response to Inquiries.
At any time during the production year ending August 31, 2020, each
manufacturer shall, upon request from the Office of Vehicle Safety
Compliance, provide information identifying the vehicles (by make,
model and vehicle identification number) that have been certified as
complying with the requirements of Standard No. 141, Minimum Sound
Requirements for Hybrid and Electric Vehicles (49 CFR 571.141). The
manufacturer's designation of a vehicle as a certified vehicle is
irrevocable.
0
5. Amend Sec. 585.133 by revising paragraph (a) to read as follows:
Sec. 585.133 Reporting requirements.
(a) Phase-in reporting requirements. Within 60 days after the end
of the production year ending August 31, 2020, each manufacturer shall
submit a report to the National Highway Traffic Safety Administration
concerning its compliance with the requirements of Standard No. 141
Minimum Sound Requirements for Hybrid and Electric Vehicles (49 CFR
571.141) for its vehicles produced in that year. Each report shall
provide the information specified in paragraph (b) of this section and
in Sec. 585.2 of this part.
* * * * *
Issued on September 10, 2019 in Washington, DC, under authority
delegated in 49 CFR 1.95 and 501.5.
James Clayton Owens,
Acting Administrator.
[FR Doc. 2019-19874 Filed 9-16-19; 8:45 am]
BILLING CODE 4910-59-P