Federal Motor Vehicle Safety Standards; Minimum Sound Requirements for Hybrid and Electric Vehicles |
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James C. Owens
National Highway Traffic Safety Administration
1 September 2020
[Federal Register Volume 85, Number 170 (Tuesday, September 1, 2020)]
[Rules and Regulations]
[Pages 54273-54281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19334]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. NHTSA-2020-0086]
RIN 2127-AM26
Federal Motor Vehicle Safety Standards; Minimum Sound
Requirements for Hybrid and Electric Vehicles
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Interim final rule; request for comments.
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SUMMARY: This interim final rule responds to an ``emergency petition''
submitted by the Alliance of Automotive Innovation (Alliance) regarding
the phase-in and compliance requirements of Federal Motor Vehicle
Safety Standard No. 141 (FMVSS 141), ``Minimum sound for hybrid and
electric vehicles.'' The petition details the challenges manufacturers
have encountered in complying with FMVSS 141 due to disruptions in the
supply chain caused by the Coronavirus Disease 2019 (COVID-19) public
health emergency. The petition requests three changes to the phase-in
and compliance requirements of FMVSS 141. After considering the
concerns raised in the petition, NHTSA has decided to grant the
petition, in part, by electing to defer the phase-in and compliance
dates by six months. NHTSA is denying the request for an alternative
performance option during the phase-in period.
DATES: Effective date: The amendments made in this rule are effective
August 28, 2020.
Comment date: You should submit your comments early enough to
ensure that the docket receives them not later than September 16, 2020.
ADDRESSES: You may submit comments to the docket number identified in
the heading of this document by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Docket Management Facility: U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: 1200 New Jersey Avenue SE, West
Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays. To be sure someone is
there to help you, please call (202) 366-9322 before coming.
Fax: 202-493-2251.
Regardless of how you submit your comments, please be sure to
mention the docket number of this document.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Public
Participation section of this document. Note that all comments received
will be posted without change to http://www.regulations.gov, including
any personal information provided. Please see the Privacy Act heading
under Rulemaking Notices and Analyses regarding documents submitted to
the Agency's dockets.
Docket: For access to the docket to read background documents or
comments received, go to http://
[[Page 54274]]
www.regulations.gov or the street address listed above. Follow the
online instructions for accessing the dockets.
FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call,
Mr. Michael Pyne, NHTSA Office of Crash Avoidance Standards, at (202)
366-4171.
For legal issues, you may call Mr. Paul Connet, Office of the Chief
Counsel, at (202) 366-5547, facsimile (202) 366-5547.
The mailing address for these officials at the National Highway
Traffic Safety Administration: 1200 New Jersey Avenue SW, Washington,
DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background on FMVSS 141
III. Alliance Petition
IV. Agency's Response
a. Phase-In Deferment
b. Full Compliance Delay
c. Alternative Phase-In Standard
V. Comments and Immediate Effective Date
VI. Regulatory Analyses and Notices
I. Executive Summary
Pursuant to the Pedestrian Safety Enhancement Act of 2010 (PSEA),
NHTSA published a final rule on December 14, 2016, establishing a new
Federal motor vehicle safety standard setting minimum sound level
requirements for low-speed operation of hybrid and electric light
vehicles.\1\ The minimum sound requirements provide a means for blind
and other pedestrians, as well as bicyclists and other road users, to
detect the presence of vehicles that do not naturally produce sounds
like vehicles with internal combustion engines, thereby reducing the
risk that these ``quiet'' vehicles will be involved in low-speed
pedestrian crashes.
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\1\ 81 FR 90416.
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The phase-in requirement for FMVSS 141, as modified by the 2018
rule issued in response to several petitions for reconsideration, began
on September 1, 2019, with full compliance slated to begin on September
1, 2020. However, halfway through the phase-in period, the COVID-19
public health emergency began, leading to significant public health and
economic effects. The automotive industry in the U.S. was especially
afflicted by the shutdowns as vehicle production came to a halt.
Automotive supply chains were decimated with production of parts
similarly halted.2 3 The disruptions in the global supply
chains prevented manufacturers from acquiring new parts, implementing
vehicle redesigns, and manufacturing automobiles.\4\ While production
has resumed to a certain extent, manufacturers continue to experience
ongoing difficulties in acquiring parts and returning production to
full volume.\5\
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\2\ See, Letter from MEMA members to the Secretary of Treasury
Steven Mnuchin (``A recent industry survey indicated that 21 percent
of the supplier respondents have eight weeks or fewer before
declaring insolvency''), May 20, 2020.
\3\ See, ``Original Equipment Suppliers Association Automotive
Supplier Barometer\TM\ Q2 2020, Supply Chain and Globalization,''
June 2, 2020.
\4\ See Letter for the Record, ``The State of Transportation and
Critical Infrastructure Examining the Impact of the COVID-19
Pandemic,'' from President and CEO Bill Long, Motor and Equipment
Manufacturers Association (MEMA), June 3, 2020, to Chairman Roger
Wicker and Senator Maria Cantwell, Committee on Commerce, Science &
Transportation. (``Since suppliers are responsible for two-thirds of
the value of a new vehicle, the deployment and commercialization of
these technologies are dependent on the health of the supplier
industry. Continuing to provide the U.S. consumer with increasingly
cleaner, safer vehicles will require extensive, long-term financial
commitments from the entire industry. If the supplier industry
falters or fails, the entire automotive industry will suffer,
ultimately harming the competitiveness of the U.S. automotive
industry.'')
\5\ See generally, Victoria Johns, Ford facing shutdowns in US
because of engine shortage, Automotive Logistics, https://www.automotivelogistics.media/coronavirus/ford-facing-shutdowns-in-us-because-of-engine-shortage/40879.article.
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This interim final rule responds to an emergency petition submitted
by the Alliance resulting from the COVID-19 public health emergency.
After considering the issues raised in the Alliance petition, the
Agency agrees that the unprecedented disruptions to automotive
manufacturing caused by the public health emergency make compliance
with the phase-in schedule for FMVSS 141 impracticable and warrant
appropriate regulatory relief. The Agency is granting two of
petitioner's requests, in part, by deferring the compliance dates for
the phase-in schedule and full compliance by six months. The Agency is
declining to adopt petitioner's third request for an alternative phase-
in performance requirement. The Agency is seeking comment on all three
of the petitioner's requests and the Agency's response.
II. Background on FMVSS 141
In January 2011, Congress passed the PSEA directing NHTSA to
undertake a rulemaking to create a new safety standard requiring hybrid
and electric vehicles (HEV) to have a minimum sound level to help
pedestrians--especially those with impaired eyesight--detect those
vehicles. The PSEA stipulated that the alert sound should not require
either driver or pedestrian activation, and that the sound be
reasonably detectable by nearby pedestrians. The PSEA also directed the
Agency to establish a phase-in schedule for compliance, with full
compliance beginning the September 1st of the calendar year that begins
three years after the date on which the final rule is issued. NHTSA
published a final rule on December 14, 2016, establishing FMVSS 141,
``Minimum Sound Requirements for Hybrid and Electric Vehicles.'' \6\
The final rule fulfilled NHTSA's obligations under the PSEA to set
minimum sound requirements that increase the detectability of HEVs.
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\6\ 81 FR 90416. See also NHTSA's February 26, 2018 final rule
responding to petitions for reconsideration of that rule (83 FR
8182) (discussed below).
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After the 2016 final rule was published, NHTSA received timely
petitions for reconsideration from three sources. NHTSA determined
that, collectively, the petitioners had made six discrete requests. On
February 26, 2018, the Agency issued a final rule in response to those
petitions for reconsideration which granted five of the requests,
including: (1) Postponing the compliance schedule by one year to better
align with the PSEA; (2) allowing similar make/model vehicles to be
equipped with different hardware; (3) allowing alert sounds to vary by
trim level or model series rather than just by make/model; (4) limiting
the compliance criteria for the sameness requirement to only the
digital sound file and digital processing algorithm; and (5)
permitting, in limited circumstances, the alteration of factory-
equipped sounds during vehicle repair and recalls.\7\ The final rule
denied a request to change the cross-over speed, which is the speed
above which the pedestrian alert sound is allowed to turn off.\8\
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\7\ Id.
\8\ Another request, to allow vehicles to be manufactured with a
suite of driver-selectable pedestrian alert sounds, resulted in the
Agency publishing a notice of proposed rulemaking (NPRM) on
September 17, 2019, undertaking rulemaking on the request. 84 FR
48866. The Agency is developing the next steps in that rulemaking.
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The current phase-in period, as established in the Agency's 2018
response to the petitions for reconsideration, began on September 1,
2019, with full compliance required beginning September 1, 2020. Under
the phase-in and full compliance schedules, 50 percent of light HEVs
manufactured between September 1, 2019 and August 31, 2020, and all
light HEVs manufactured on or after September 1, 2020 must comply with
the FMVSS 141.
[[Page 54275]]
III. Alliance Petition
On April 29, 2020, the Alliance submitted an ``emergency petition''
seeking relief from certain FVMSS 141 compliance requirements. The
petitioner states in its petition that, until the end of February,
every HEV manufacturer had a credible and achievable plan for meeting
the phase-in requirements of FMVSS 141 by August 31, 2020, and all were
on target for 100 percent compliance beginning September 1, 2020.
However, the petitioner states, the public health emergency upended
these compliance plans. The petitioner states that on the date of its
petition (April 29), ``every manufacturing plant in the United States
is idle, due to the Coronavirus pandemic. And, production restart plans
are forming, but the industry is very uncertain about how long it will
take to restore pre-pandemic production levels.'' The petitioner states
its industry's highest priority is the health and safety of its workers
and its customers and neighbors, and health and safety will guide its
decisions about the pace of reopening offices and resuming production
in its plants. According to the petitioner, many suppliers are
shuttered with uncertain plans for production and shipping due to the
national health emergency and that this disruption in the supply chain
has ``adversely affected manufacturer's plans for compliance with the
FMVSS 141 phase-in.''
The petition requests that the Agency take three actions:
(a) Defer the current phase-in period (September 1, 2019 through
August 31, 2020) to September 1, 2020 through August 31, 2021;
(b) Defer the beginning of full compliance to September 1, 2021;
and
(c) Simplify the performance requirements during the phase-in
period.
In support of its three requests, the petitioner describes the toll
the national emergency has exacted on the automobile manufacturing
industry. The petitioner asserts that every manufacturing plant in the
United States abruptly closed earlier into the pandemic, and there
remains a lingering concern about how long it will take the industry to
restore pre-pandemic levels of production in the wake of the severe and
unprecedented disruptions in the supply chain. The petitioner states
that the hardships caused by plant closures have hindered
manufacturers' ability to produce FMVSS 141 compliant vehicles. The
petitioner also maintains that the closure of test labs in some
jurisdictions has complicated the ability of some manufacturers to
complete certification tests needed to fully support self-certification
of compliance.
The petitioner states that the phase-in requirement is especially
difficult for some manufacturers to meet because of how they designed
their compliance plans. The petitioner explains that several
manufacturers planned to meet the 50 percent fleetwide phase-in
requirement by producing compliant vehicles during the second half of
the production year. With plants shuttered, manufacturers are now
unable to produce enough FMVSS 141 compliant vehicles to counterbalance
the volume of pre-FMVSS 141 hybrid and electric vehicles manufactured
during the first half of the production year to meet the phase-in
requirement.
The petitioner also states that the national health emergency has
led some manufacturers to reassess the financial plans they had in
place for development of HEVs. The petitioner explains that these
manufacturers have been unable to amortize the tooling of several pre-
FMVSS 141 vehicle lines fully due to production disruptions, and need
more time to produce these vehicles to recover their investment costs.
The petitioner believes that manufacturers may be challenged further by
the expected lowered demand for hybrid and electric vehicles due to the
fall of oil prices.
Regarding its suggested alternative phase-in performance option,
the petitioner contends that its option, in essence, ``simplifies the
performance requirements . . . [to] require only that an HEV/EV vehicle
emit sound.'' The petitioner states that the suggested performance
standard would allow manufacturers to reach a higher phase-in
percentage. The petitioner states it ``is prepared to support an
increase in the required phase-in percentage from 50% to 75% during the
production period beginning September 1, 2020 and ending August 31,
2021,'' if NHTSA agrees to permit the petitioner's suggested
performance standard during the phase-in period.
IV. Agency Response
After considering the information provided in the petition and
assessing the ongoing hardships stemming from the public health
emergency, the Agency has decided to grant, in part, the petitioner's
requests to delay the phase-in and full compliance dates. The Agency is
not adopting the petitioner's request for an alternative phase-in
performance standard in this interim final rule.
In general, the Agency has determined that disruptions to the auto
industry caused by the COVID-19 public health emergency were
unforeseeable and have rendered otherwise valid compliance plans
impracticable and potentially even impossible. The difficulties caused
by the COVID-19 public health emergency continue to hinder production.
These disruptions justify providing some delay for the compliance
period, but the Agency believes that six months is more appropriate
than one year. While the Agency has determined that a six-month delay
is appropriate and justified, the information provided by the
petitioner in support of an alternative performance standard is not
sufficient to support changes to the standard established in the 2016
final rule. That said, the Agency is requesting comment on these
decisions and has provided an expedited comment period to allow
commenters to provide information that the Agency could address before
the expiration of the new phase-in period.
a. Phase-In Deferment
The current phase-in schedule (S9) requires that, for HEVs to which
FMVSS 141 applies that are manufactured on or after September 1, 2019
and before September 1, 2020, the quantity of HEVs complying with the
standard must be not less than 50 percent of one or both of the
following: (1) A manufacturer's total production of hybrid and electric
vehicles produced on and after September 1, 2019, and before September
1, 2020; or (2) a manufacturer's average annual production of hybrid
and electric vehicles on and after September 1, 2016, and before
September 1, 2019. As noted in the Alliance's petition, FMVSS 141
permitted manufacturers to employ different compliance strategies to
reach the phase-in requirement, including strategies that backloaded
the production of compliant vehicles into the second half of the year.
The level of disruption to automobile production caused by the
COVID-19 public health emergency has been unprecedented and was
completely unforeseeable when manufacturers established their
compliance plans. The effects of the COVID-19 public health emergency
have rendered impracticable implementation of what were valid
compliance strategies to meet the schedule established for FMVSS 141.
Those manufacturers who planned to produce compliant vehicles in the
second half of the phase-in period using newer model year vehicles are
unable to produce sufficient quantities of compliant vehicles to
recover from the
[[Page 54276]]
lost production time to meet the 50 percent phase-in threshold.\9\
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\9\ To illustrate, a manufacturer intending to build 10 hybrid
vehicles each month over the course of the production year for a
total of 120 vehicles would need to build at least 60 compliant
vehicles during the year to meet the phase-in requirement described
by FMVSS 141 S.9.1(b). If the manufacturer spends the first 6 months
building 60 model year 2019 vehicles that did not meet FMVSS 141
because it anticipated launching a compliant 2020 model year vehicle
in the second half of the phase-in schedule, the manufacturer would
need to manufacture vehicles at full capacity for the remainder of
the year to produce the requisite 60 compliant vehicles. If
production stopped for a single month, the maximum quantity of
compliant vehicles a manufacturer could produce during the year
would drop to 50, falling below the phase-in threshold.
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The shutdown in testing facilities during the COVID-19 public
health emergency has made it difficult for some manufacturers to test
their vehicles for compliance as they had planned. NHTSA believes
manufacturers should be provided more time to test and assess the
compliance of their vehicles adequately, and implement potential design
and manufacturing changes, since manufacturers often rely on internal
pre-production testing to verify that vehicles meet performance
targets.
The Agency concludes that the disruptions to production and testing
were due to forces beyond the control of manufacturers and that holding
manufacturers accountable for these unavoidable circumstances would be
unreasonable and contrary to the National Traffic and Motor Vehicle
Safety Act (Safety Act). The Safety Act requires Federal motor vehicle
safety standards to be practicable.\10\ The hardships created by the
COVID-19 public health emergency have made meeting the current phase-in
requirements impossible for some manufacturers. While manufacturers
were able to resume production to some extent in recent months, that
production has been limited and continues to be affected by supply
chain disruptions. Accordingly, the standard is no longer practicable
for the effective dates that had been established, which is contrary to
the Safety Act requirements for the FMVSS.
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\10\ 49 U.S.C. 30111(a). NHTSA also must consider whether a
standard is reasonable when prescribing an FMVSS. Id. at
30111(b)(3).
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Refusing to amend the compliance dates would also be
counterproductive to the nation's recovery effort. On May 19, 2020, the
President issued Executive Order 13924, ``Regulatory Relief to Support
Economic Recovery,'' (the Order) as part of the country's ongoing
recovery effort in response to the national COVID-19 public health
emergency. The Order directs agencies to address the current economic
emergency by using, to the fullest extent possible, available emergency
authorities to support the economic response to the COVID-19 outbreak.
It also directs agencies to provide relief through rescinding,
modifying, waiving, or providing exemptions from regulations and other
requirements that may inhibit economic recovery or by issuing new
proposed rules as necessary.
The Agency believes that changing the compliance dates is
consistent with the Order's directive and will assist with the
recovery. Extending the phase-in date prevents manufacturers from
either ceasing production of vehicles that do not conform to FMVSS 141
or falling into non-compliance. The extension affords manufacturers the
opportunity to continue production of pre-FMVSS 141 vehicles for a
brief period. This encourages manufacturers to resume production of
more vehicle lines and, as a consequence, more-quickly return their
workforce to the assembly lines. Consumers, who have experienced
economic hardships from the COVID-19 public health emergency, would
also benefit from extension of the effective dates because these pre-
FMVSS 141 vehicles present additional HEV choices.
Accordingly, the Agency agrees that the phase-in period should be
deferred. The Agency believes that a six-month deferment strikes a
reasonable balance between regulatory relief and the goal of
implementing FMVSS 141 as reasonably possible. Moving the phase-in
start date back six months ``resets'' production volumes for compliance
purposes and allows manufacturers to restart their compliance plans.
This six-month extension also provides additional time for supply
chains to recover, and for manufacturers to reopen plants and
reevaluate strategies for FMVSS 141 compliance. While the petitioner
requested a one-year extension, the petitioner did not provide
supporting data or information justifying such a deferment. At this
stage, therefore, NHTSA is not convinced that a year-long deferment is
warranted to provide adequate relief. However, as part of this interim
final rule, the Agency is requesting comment on whether to provide the
full year requested by petitioners.
The new phase-in period will begin March 1, 2020, and end February
28, 2021. For manufacturers that intend to meet the phase-in
requirement based on their previous three-year production volumes, the
average fleet size will remain the average the annual production
volumes of hybrid and electric vehicles from September 1, 2016 to
August 31, 2019.\11\ The Agency is not changing the required 50 percent
phase-in percentage.
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\11\ NHTSA is keeping these dates out of simplicity, as doing so
avoids manufacturers and NHTSA's enforcement office having to track
down older data and parsing it into mid-year increments to determine
compliance requirements. As the cut-off date for determining the
three-year production average preceded the national emergency, the
required compliance production volume for 9.1(b) should be
unaffected.
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b. Full Compliance Delay
The Agency has also decided to grant the petitioner's request, in
part, to defer full compliance with FMVSS 141, but is allowing for six
months instead of the requested year. The aforementioned reasons for
deferring the phase-in period are applicable to the full compliance
deadline. The Agency considered retaining the current full compliance
date and only amending the phase-in period. However, as with the phase-
in schedule, manufacturers had established plans leading to full
compliance for vehicles produced on and after September 1, 2020. The
COVID-19 public health emergency has rendered those plans
impracticable, not only for the phase-in schedule, but also for
vehicles for the coming year, since the disruptions to manufacturing,
supply chains, and testing have continued. To the extent that
production has resumed, that production has been limited and continues
to be affected by the public health emergency, both regarding a
manufacturer's own capacity and its reliance upon a global supply chain
for needed parts and equipment. Further, challenges in accessing
testing facilities continue, which may make it difficult for some
manufacturers to exercise reasonable care in certifying that their
vehicles are compliant. Thus, the Agency has determined that the
continuing effects of the COVID-19 public health emergency have
rendered the full compliance mandate for vehicles manufactured after
September 1, 2020 impracticable. To address this practical
impossibility, NHTSA is deferring the date for full compliance to March
1, 2021.
The Agency believes that the six-month deferment strikes a
reasonable balance between providing necessary regulatory relief and
implementing FMVSS 141 as quickly as possible. An additional six months
provides time for supply chains to take into account the effects of the
public health emergency, and for manufacturers to reevaluate strategies
for meeting FMVSS 141. While the petitioner requested a year-
[[Page 54277]]
long deferment of the final compliance date, it did not provide data or
information justifying such an extension. NHTSA is not convinced that a
year-long deferment is warranted to provide adequate relief,
particularly since manufacturers would have been in position to be in
full compliance by September 1, 2020 prior to the public health
emergency.
A six-month deferment will set the new full compliance date
approximately one year after the onset of the disruptions caused by
COVID-19. Those six months should provide manufacturers sufficient time
to resume planned operations and to set new production schedules. A
six-month deferment also encourages manufacturers to prioritize
achieving fully-compliant vehicles more rapidly than one twice as long,
thus encouraging the production of HEVs that meet FMVSS 141. However,
as part of this interim final rule, the Agency is requesting comment on
whether to provide the full year requested by petitioners.
c. Alternative Phase-In Option
The Agency is not adopting petitioner's request for an alternative
performance standard during the phase-in period in this interim final
rule for several reasons.
First, the Agency believes that deferring the phase-in period will
provide sufficient relief to manufacturers. An additional six months
gives manufacturers time to reestablish supply chains. Furthermore,
deferring the phase-in period fully addresses the unique hardships to
meet the 50 percent phase-in threshold caused by production
disruptions, since the phase-in requirement only applies to vehicles
manufactured during the phase-in period.
Second, the Agency has concerns about the efficacy of petitioner's
proposed alternative. The Agency considered a similar alternative
during the original rulemaking establishing FMVSS 141, and found that
it inadequately specified the frequency content of sounds, such that
many sounds meeting the alternative could be undetectable. The
alternative also was found to allow many sounds that are less robust
and thus more susceptible to being masked by surrounding ambient
sounds.\12\
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\12\ See 81 FR at 90456.
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Finally, the Agency finds that the Alliance's petition lacks a
sufficient justification for the alternative phase-in compliance
option. The petition does not explain why a simplified performance
requirement eases the burdens caused by the COVID-19 public health
emergency.
For these reasons, the Agency does not agree to the third request
and is not incorporating the petitioner's alternative phase-in
compliance option into this interim final rule. The Agency requests
comment on this issue.
V. Comments and Immediate Effective Date
Because the August 31 and September 1, 2020 compliance dates are
fast approaching, NHTSA finds good cause to issue this interim final
rule delaying the compliance dates for six months. There is good cause
to make this rule effective immediately so as to provide needed relief
to manufacturers facing insurmountable barriers in meeting FMVSS 141
due to the effects of the COVID-19 public health emergency. Pursuant to
DOT's regulation on rulemaking procedures, 49 CFR 5.13(j)(2), NHTSA
seeks to replace this interim final rule with a final rule, which may
differ from today's rule in response to comments received. Accordingly,
NHTSA is accepting comments on this interim final rule. The Agency is
seeking comments on all three of the requests made by Alliance in its
petition and the Agency's response. In particular, the Agency is
interested in information concerning whether the six-month period is
adequate and whether the Agency should reconsider its position on the
modified standard during the phase-in period. Given the narrow focus of
this rule and its near-term effects, the Agency has provided an
expedited comment period, which the Agency believes will allow
commenters sufficient time to address the issues in this rule and
provide the Agency with time to respond to those comments well before
the end of revised compliance date. See ``Request for Comments''
section below.
The Agency is issuing this interim final rule without prior notice
and the opportunity for public comment and the 30-day delayed effective
date ordinarily prescribed by the Administrative Procedure Act (APA).
Pursuant to section 553(b)(B) of the APA, general notice and the
opportunity for public comment are not required with respect to a
rulemaking when an ``agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefor in the rules issued)
that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.''
As discussed above in this document, the intent of this action is
to provide relief to manufacturers of hybrid and electric vehicles who
have experienced unprecedented disruptions in their production
processes and supply chains due to the COVID-19 public health
emergency. The phase-in period is currently set to end on August 31,
2020, with full compliance beginning immediately thereafter. Since the
compliance dates are imminent, the Agency finds it impracticable to
seek public comment. NHTSA seeks to issue this rule to provide relief
before August 31 so there is not enough time to publish an NPRM and a
final rule before that date. The Agency's understanding from the
petitioners is that several members of the industry intended to
backload production of compliant vehicles during the phase-in period,
such that much of the 50% of vehicles that must comply with the
standard would be produced at the beginning of the spring of 2020.
However, this plan was made impracticable by the COVID-19 public health
emergency, which continues to cause severe disruptions in the auto
industry regarding manufacturing, supply chains, and sales. The
disruptions have also resulted in delays and challenges to compliance
testing by some manufacturers seeking to test for compliance as the
basis for certification. As a result, some manufacturers have been
unable to either produce sufficient compliant vehicles during the
phase-in period to satisfy phase-in requirements, or test new models
for compliance with the substantive standards. Failure to extend the
compliance period to account for these realities, before the phase-in
period concludes, would lead to some manufacturers either withholding
production of HEVs, or facing potential non-compliance, due to factors
beyond their control.
Since the compliance dates are imminent, the Agency finds it
impracticable to seek public comment. Similarly, in order to provide
meaningful relief to manufacturers, the Agency finds good cause to make
this rule effective immediately. Section 30111(d) of the Safety Act
states that a standard may not become effective before the 180th day
after the standard is prescribed or later than one year after it is
prescribed, unless the Secretary (NHTSA by delegation) finds, for good
cause shown, that a different effective date is in the public interest
and publishes the reasons for the finding. For the reasons discussed in
this preamble, NHTSA finds there is good cause for this rule to be
effective immediately. This immediate effective date is in the public
interest given the
[[Page 54278]]
impact the COVID-19 public health emergency has had on the ability of
manufacturers to meet the compliance schedule for FMVSS 141
implementation. Although this interim final rule is effective
immediately, comments are solicited from interested members of the
public on all aspects of the interim final rule. These comments must be
submitted on or before the date indicated in the DATES section at the
beginning of this document. NHTSA will consider these comments in
deciding the next steps following this interim final rule.
VI. Regulatory Analyses and Notices
a. Executive Orders 12866, 13563, 13771 and DOT Rulemaking Procedures
Executive Order 12866, Executive Order 13563, and the Department of
Transportation's administrative rulemaking procedures set forth in 49
CFR part 5, subpart B, provide for making determinations whether a
regulatory action is ``significant'' and therefore subject to Office of
Management and Budget (OMB) review and to the requirements of E.O.
12866.
Today's final rule is not significant and has not been reviewed by
OMB under E.O. 12866. This final rule only makes a six-month adjustment
to the existing compliance schedules of FMVSS 141. We are only
adjusting the phase-in schedule and the September 1, 2020 full
compliance date by six months to give manufacturers time to revise
their production and compliance schedules in response to disruptions
caused by the COVID-19 public health emergency and restore their
manufacturing abilities to meet the requirements of the standard.
Without this interim final, the automobile industry would
experience a burden due to an inability to comply with FMVSS 141. The
interim rule alleviates this burden by delaying the FMVSS 141
compliance date by six months. The delay is unavoidable due to
disruptions the auto manufacturing industry has experienced as a
consequence of the 2020 COVID-19 public health emergency. The rule
provides relief to manufacturers of hybrid and electric vehicles who
have experienced unprecedented disruptions to the supply chain; without
this interim final rule, compliance with the current schedule for FMVSS
141 implementation would be impracticable and potentially impossible.
The Agency's estimates of aggregate costs and benefits from the initial
final rule, restated in the response to petitions for reconsideration,
were based upon an expected sales volume that has been severely
disrupted by the COVID-19 public health emergency and, therefore, is no
longer helpful in determining the rule's likely impacts. Further, there
is significant uncertainty about how and when vehicle sales,
specifically HEV sales, will rebound over the limited six-month period
relevant to this rulemaking, making any new projections impracticable,
particularly in light of the need to issue this rule expeditiously.
Comments are requested on this issue.
Executive Order 13771 titled ``Reducing Regulation and Controlling
Regulatory Costs,'' directs that, unless prohibited by law, whenever an
executive department or agency publicly proposes for notice and comment
or otherwise promulgates a new regulation, it shall identify at least
two existing regulations to be repealed. In addition, any new
incremental costs associated with new regulations shall, to the extent
permitted by law, be offset by the elimination of existing costs. Only
those rules deemed significant under section 3(f) of Executive Order
12866, ``Regulatory Planning and Review,'' are subject to these
requirements. Per OMB Memo M-17-21, E.O. 13771 applies to a rulemaking
action that 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.'' As discussed above, by delaying the compliance
dates by six months, this action is a deregulatory rule under Executive
Order 13771, but the Agency has not estimated quantified cost savings.
b. Executive Order 13924
On May 19, 2020, the President issued Executive Order 13924,
``Regulatory Relief to Support Economic Recovery,'' as part of the
Country's ongoing recovery effort to the national COVID-19 public
health emergency. The Order directs agencies to address the current
economic emergency by using to the fullest extent possible any
available emergency authorities to support the economic response to the
COVID-19 outbreak. It also directs agencies to provide relief through
rescinding, modifying, waiving, or providing exemptions from
regulations and other requirements that may inhibit economic recovery
or by issuing new proposed rules as necessary. This interim final rule
is consistent with E.O. 13924 by providing manufacturers adversely
affected by production disruptions caused by the national health
emergency time to recover to meet the phase-in and full compliance
requirements of FMVSS 141, and reassess how best to implement FMVSS
141.
c. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, NHTSA has considered
the impacts of this rulemaking action on small entities (5 U.S.C. Sec.
601 et seq.). Rules that are exempt from notice and comment are also
exempt from the RFA requirements, including conducting a regulatory
flexibility analysis, when among other things the agency for good cause
finds that notice and public procedure are impracticable, unnecessary,
or contrary to the public interest. Small Business Administration's
Office of Advocacy guide: How to Comply with the Regulatory Flexibility
Ac. Ch.1. p.9. Accordingly, NHTSA is not required to conduct a
regulatory flexibility analysis. Nevertheless, the Agency believes that
today's interim final rule will reduce the regulatory burden on small
businesses because it delays the compliance with FMVSS 141 for an
additional year. I certify that this rulemaking action will not have a
significant economic impact upon a substantial number of small
entities.
Even though the Agency is not required to conduct a regulatory
flexibility analysis, the Agency believes this interim final rule will
reduce the regulatory burden on small businesses but will have a
limited impact on small businesses. Extending the phase-in and full
compliance dates provide small businesses with additional lead time to
meet an already existing standard. As such, small businesses may use
the additional time to spread out compliance costs and to continue to
sell current vehicles to amortize expenses related to existing vehicle
lines. NHTSA notes, however, that it has not heard from small entities
about challenges in meeting the compliance dates of FMVSS 141. Thus,
NHTSA believes the interim final rule will not have a significant
impact on a substantial number of small entities.
d. Executive Order 13132, Federalism
NHTSA has examined today's interim final 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 interim
final rule will not have
[[Page 54279]]
``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 interim final rule 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 interim final rule and finds that this rule will prescribe only
a change in effectives dates of a safety standard. As such, NHTSA does
not intend that this rule will 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 rule
adopted here. Without any conflict, there could not be any implied
preemption of a State common law tort cause of action.
e. The Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires
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. This action will not result in additional
expenditures by State, local or tribal governments or by any members of
the private sector. Therefore, the Agency has not prepared an economic
assessment pursuant to the Unfunded Mandates Reform Act.
f. 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. This final
rule adjusts the timing of the phase-in reporting requirements to match
the manufacturer's production year but includes no new collection of
information because the actual reporting requirements are the same as
the requirements in the December 2016 final rule.
g. Civil Justice Reform
This final rule does not have any retroactive effect. Under 49
U.S.C. 30103(b), whenever a Federal motor vehicle safety standard is in
effect, a state or political subdivision may prescribe or continue in
effect a standard applicable to the same aspect of performance of a
Federal motor vehicle safety standard only if the standard is identical
to the Federal standard. However, the United States Government, a
State, or political subdivision of a State, may prescribe a standard
for a motor vehicle or motor vehicle equipment obtained for its own use
that imposes a higher performance requirement than that required by the
Federal standard. 49 U.S.C. 30161 sets forth a procedure for judicial
review of final rules establishing, amending, or revoking Federal motor
vehicle safety standards. A petition for reconsideration or other
administrative proceedings are not required before parties file suit in
court.
h. 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), or you may visit http://dms.dot.gov.
i. Environmental Impacts
NHTSA has analyzed this rulemaking action for the purposes of the
National Environmental Policy Act. Since this rulemaking action only
extends the compliance dates and does not substantive requirements of
the standard, the Agency has determined that implementation of this
action would not have any significant impact on the quality of the
human environment. NHTSA has also determined that the changes in this
final rule would not change the findings in the Final Environmental
Assessment prepared in connection with the final rule.
J. Executive Order 13609
The policy statement in section 1 of Executive Order 13609
provides, in part: The regulatory approaches taken by foreign
governments may differ from those taken by U.S. regulatory agencies to
address similar issues. In some cases, the differences between the
regulatory approaches of U.S. agencies and those of their foreign
counterparts might not be necessary and might impair the ability of
American businesses to export and compete internationally. In meeting
shared challenges involving health, safety, labor, security,
environmental, and other issues, international regulatory cooperation
can identify approaches that are at least as protective as those that
are or would be adopted in the absence of such cooperation.
[[Page 54280]]
International regulatory cooperation can also reduce, eliminate, or
prevent unnecessary differences in regulatory requirements.
In the preamble to the December 2016 final rule NHTSA discussed the
reasons for the differences in the regulatory approach taken by foreign
governments that have addressed this issue. This interim final rule
does not affect those decisions made in the December 2016 final rule.
Further, the Agency reiterates that NHTSA's test procedures are not
requirements that manufacturers must follow when certifying vehicles to
the FMVSS and manufacturers are free to choose whatever certification
method they wish as long as the manufacturer can demonstrate a good
faith basis for certification.
VII. Request for Comments
How long do I have to submit comments?
We are providing a 15-day comment period.
How do I prepare and submit comments?
Your comments must be written in English.
To ensure that your comments are correctly filed in the
Docket, please include the Docket Number shown at the beginning of this
document in your comments.
Your comments must not be more than 15 pages long. (49 CFR
553.21). We established this limit to encourage you to write your
primary comments in a concise fashion. However, you may attach
necessary additional documents to your comments. There is no limit on
the length of the attachments.
If you are submitting comments electronically as a PDF
(Adobe) File, NHTSA asks that the documents be submitted using the
Optical Character Recognition (OCR) process, thus allowing NHTSA to
search and copy certain portions of your submissions. Comments may be
submitted to the docket electronically by logging onto the Docket
Management System website at http://www.regulations.gov. Follow the
online instructions for submitting comments.
You may also submit two copies of your comments, including
the attachments, to Docket Management at the address given above under
ADDRESSES.
Please note that pursuant to the Data Quality Act, in order for
substantive data to be relied upon and used by the agency, it must meet
the information quality standards set forth in the OMB and DOT Data
Quality Act guidelines. Accordingly, we encourage you to consult the
guidelines in preparing your comments. OMB's guidelines may be accessed
at http://www.whitehouse.gov/omb/fedreg/reproducible.html. DOT's
guidelines may be accessed at http://www.bts.gov/programs/statistical_policy_and_research/data_quality_guidelines.
How can I be sure that my comments were received?
If you wish Docket Management to notify you upon its receipt of
your comments, enclose a self-addressed, stamped postcard in the
envelope containing your comments. Upon receiving your comments, Docket
Management will return the postcard by mail.
How do I submit confidential business information?
If you wish to submit any information under a claim of
confidentiality, you should submit three copies of your complete
submission, including the information you claim to be confidential
business information, to the Chief Counsel, NHTSA, at the address given
above under FOR FURTHER INFORMATION CONTACT. In addition, you should
submit two copies, from which you have deleted the claimed confidential
business information, to Docket Management at the address given above
under ADDRESSES. When you send a comment containing information claimed
to be confidential business information, you should include a cover
letter setting forth the information specified in our confidential
business information regulation. (49 CFR part 512). To facilitate
social distancing during COVID-19, NHTSA is temporarily accepting
confidential business information electronically. Please see https://www.nhtsa.gov/coronavirus/submission-confidential-business-information
for details.
Will the agency consider late comments?
We will consider all comments that Docket Management receives
before the close of business on the comment closing date indicated
above under DATES. To the extent possible, we will also consider
comments that Docket Management receives after that date. If Docket
Management receives a comment too late for us to consider in developing
the follow on action, we will consider that comment as an informal
suggestion for future rulemaking action.
How can I read the comments submitted by other people?
You may read the comments received by Docket Management at the
address given above under ADDRESSES. The hours of the Docket are
indicated above in the same location. You may also see the comments on
the internet. To read the comments on the internet, go to http://www.regulations.gov. Follow the online instructions for accessing the
dockets.
Please note that, even after the comment closing date, we will
continue to file relevant information in the Docket as it becomes
available. Further, some people may submit late comments. Accordingly,
we recommend that you periodically check the Docket for new material.
List of Subjects in 49 CFR Part 571
Motor vehicle safety, reporting and record keeping requirements,
tires.
In consideration of the foregoing, NHTSA amends 49 CFR part 571 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.
Subpart B--Federal Motor Vehicle Safety Standards
0
2. Section 571.141 is amended by revising S9 to read as follows:
Sec. 571.141 Standard No. 141; Minimum Sound Requirements for Hybrid
and Electric Vehicles.
* * * * *
S9 Phase-in schedule.
S9.1 Hybrid and Electric Vehicles manufactured on or after March 1,
2020, and before February 28, 2021. For hybrid and electric vehicles to
which this standard applies manufactured on and after March 1, 2020,
and before March 1, 2021, except vehicles produced by small volume
manufacturers, the quantity of hybrid and electric vehicles complying
with this safety standard shall be not less than 50 percent of one or
both of the following:
(a) A manufacturer's average annual production of hybrid and
electric vehicles on and after September 1, 2016, and before September
1, 2019;
(b) A manufacturer's total production of hybrid and electric
vehicles on and after March 1, 2020, and before March 1, 2021.
[[Page 54281]]
S9.2 Hybrid and Electric Vehicles manufactured on or after March 1,
2021. All hybrid and electric vehicles to which this standard applies
manufactured on or after March 1, 2021, shall comply with this safety
standard.
PART 585--PHASE-IN REPORTING REQUIREMENTS
0
3. The authority citation for part 585 continues to read as follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.95.
Subpart N--Minimum Sound Requirements for Hybrid and Electric
Vehicles Reporting Requirements
0
4. Revise Sec. 585.130 to read as follows:
Sec. 585.130 Applicability.
This subpart applies to manufacturers of hybrid and electric
passenger cars, trucks, buses, multipurpose passenger vehicles, and
low-speed vehicles subject to the phase-in requirements of S9.1 Hybrid
and Electric Vehicles manufactured on or after March 1, 2020, and
before March 1, 2021 (49 CFR 571.141).
0
5. Revise Sec. 585.132 to read as follows:
Sec. 585.132 Response to inquiries.
At any time, 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
6. Section 585.133 is amended by revising paragraph (a) to read as
follows:
Sec. 585.133 Reporting requirements.
(a) Phase-in reporting requirements. Within 60 days after February
28, 2021, 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 from March 1, 2020 to February 28, 2021. Each report shall
provide the information specified in paragraph (b) of this section and
in Sec. 585.2.
* * * * *
0
7. Revise Sec. 585.134 to read as follows:
Sec. 585.134 Records.
Each manufacturer shall maintain records of the Vehicle
Identification Number for each vehicle for which information is
reported under Sec. 585.133 until December 31, 2025.
James C. Owens,
Deputy Administrator.
[FR Doc. 2020-19334 Filed 8-28-20; 11:15 am]
BILLING CODE 4910-59-P