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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
motorcycles varies among manufacturers. The agency does not have access to a detailed make and model breakdown of the number of motorcycles produced for sale in the U.S. that are equipped with ABS and that use ISO ABS symbols and do not comply with letter height requirements that were included in NHTSAs 2012
final rule. Based on communications with members of the motorcycle industry, the agency believes that some manufacturers made design changes even after NHTSA announced its nonenforcement policy in 2014.
Consequently, some of the motorcycle manufacturers who used ISO ABS
symbols that did not comply with the letter height requirement when it went into effect in 2014 now use ISO ABS
symbols that meet the letter height requirement.
Based on communication with motorcycle manufacturers, NHTSA is aware of at least one large manufacturer and two small-volume manufacturers that currently use ISO symbols that do not meet the letter height requirement.
One of the small-volume manufacturers estimated that it would cost approximately $150,000 to redesign their ABS telltales on motorcycles for sale in the U.S. to comply with the letter height requirement. This estimated cost includes tooling, engineering resources, and recertification and homologation.
This one-time cost for manufacturers would have been allocated over a number of years of production and was expected to have minimal effect on the consumer price of motorcycles. NHTSA
estimates that this final rule prevents a cost to motorcycle manufacturers of at least $450,000 that manufacturers would have had to incur between the publication date of the final rule and its effective date if NHTSA had not announced the non-enforcement policy.
This is based on estimated one-time design cost of $150,000 per manufacturer and information from three manufacturers who use ISO
symbols that do not meet the letter height requirement. NHTSA believes the actual cost incurred would likely have been larger had all manufacturers complied with the 2012 rule, but does not have sufficient information to estimate how many more manufacturers would benefit from this final rule and how their behavior would or would not have changed had NHTSA determined to keep the original requirements in effect and withdraw the nonenforcement policy.
B. Regulatory Flexibility Act Pursuant to the Regulatory Flexibility Act 5 U.S.C. 601 et seq., as amended by
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the Small Business Regulatory Enforcement Fairness Act SBREFA of 1996, whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities i.e., small businesses, small organizations, and small governmental jurisdictions. The Small Business Administrations regulations at 13 CFR part 121 define a small business, in part, as a business entity which operates primarily within the United States. 13 CFR 121.105a.
No regulatory flexibility analysis is required if the head of an agency certifies the rule would not have a significant economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities.
NHTSA has considered the effects of this final rule under the Regulatory Flexibility Act and certifies that it will not have a significant economic impact on a substantial number of small entities. This final rule will directly impact manufacturers of motorcycles equipped with ABS. Although NHTSA
believes many manufacturers affected by this final rule are considered small businesses, we do not believe this rule will have a significant economic impact on those manufacturers. This final rule will not impose any costs upon manufacturers and may prevent costs from being incurred. This final rule will relieve motorcycle manufacturers of the burden and costs associated with changing from using the ISO symbol to using text of a minimum height to indicate an ABS malfunction.
C. Executive Order 13132 Federalism NHTSA has examined todays 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 does not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement.
The final rule does 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
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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.
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 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 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
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