[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


