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Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Proposed Rules
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extent those manufacturers choose to test their products in the manner NHTSA would test them. They are not required to use the test procedures NHTSA uses.
Although we believe some entities producing tires or vehicles that would be tested by NHTSA using procedures that use the 16-inch SRTT are considered small businesses, we do not believe this proposal will have a significant economic impact on those manufacturers. First, the small manufacturers are not required to use the SRTT in certifying their products.
Second, for manufacturers choosing to use the 16-inch SRTT to test their products, this proposal would result in a cost increase of only $35 per tire to entities currently purchasing the 14inch SRTT to assess their products. We do not believe this cost increase is significant. Finally, for the changes to the UTQGS, because NHTSA is using a conversion factor to keep the rating scale used with the 14-inch SRTT and 16-inch SRTT identical, ratings of a particular line of tires should not be affected by this proposed rule. For FMVSS changes, NHTSA has determined an equivalent level of surface friction when evaluating PBC
with the 16-inch SRTT in place of the 14-inch SRTT, so the change to the standard reference test tire should not change the performance of current tires or vehicles.
C. Executive Order 13132 Federalism NHTSA has examined this proposal 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 proposal would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle
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equipment only if the standard is identical to the standard prescribed under this chapter. 49 U.S.C.
30103b1. It is this statutory command by Congress that preempts any nonidentical 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 compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law. 49 U.S.C. 30103e.
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 NHTSAs 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 manufacturers 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 existfor 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 Orders 13132
and 12988, NHTSA has considered whether this proposed rule could or should preempt State common law causes of action. The agencys 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 this proposed rule and finds that this proposal would affect only minimum safety standards and only insofar as how NHTSA would conduct compliance testing under those standards. As such, NHTSA does not
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intend that this proposed rule preempt State tort law that would effectively impose a higher standard on motor vehicle manufacturers than that established by the affected FMVSSs.
Establishment of a higher standard by means of State tort law would not conflict with the minimum standards affected by this proposal. Without any conflict, there could not be any implied preemption of a State common law tort cause of action. Aspects of this proposed rule would amend 49 CFR
part 575, which is not a safety standard but an information program to assist consumers in making informed decisions when purchasing tires. The 14-inch SRTT is used as part of the determination of a tires treadwear rating. This proposed change would not impose any requirements on anyone.
D. Executive Order 12988 Civil Justice Reform With respect to the review of the promulgation of a new regulation, section 3b of Executive Order 12988, Civil Justice Reform 61 FR 4729; Feb.
7, 1996, requires that Executive agencies make every reasonable effort to ensure that the regulation: 1 Clearly specifies the preemptive effect; 2
clearly specifies the effect on existing Federal law or regulation; 3 provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; 4 clearly specifies the retroactive effect, if any; 5
specifies whether administrative proceedings are to be required before parties file suit in court; 6 adequately defines key terms; and 7 addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.
Pursuant to this order, NHTSA notes as follows. The issue of preemption is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceedings before they may file suit in court.
E. Protection of Children From Environmental Health and Safety Risks Executive Order 13045, Protection of Children from Environmental Health and Safety Risks 62 FR 19855, April 23, 1997, applies to any rule that: 1
Is determined to be economically significant as defined under Executive Order 12866, and 2 concerns an environmental, health, or safety risk that the agency has reason to believe may have a disproportionate effect on children. If the regulatory action meets
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