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Federal Register / Vol. 86, No. 166 / Tuesday, August 31, 2021 / Rules and Regulations trailers and makes other technical amendments. It will not result in any costs nor will it have any impact on safety.

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B. Regulatory Flexibility Act Pursuant to the Regulatory Flexibility Act 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act SBREFA of 1996, whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities i.e., small businesses, small organizations, and small governmental jurisdictions. The Small Business 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. I certify that this rule will not have a significant economic impact on a substantial number of small entities. This rule will directly impact manufacturers of tires. Although we believe some manufacturers affected by this rule are considered small businesses, we do not believe this rule will have a significant economic impact on those manufacturers. This final rule makes only minor technical changes to the FMVSSs, and does not affect the substantive requirements of the FMVSSs. This rule will not impose any costs upon manufacturers and instead, will relieve any confusion that may exist regarding the applicability of FMVSS No. 109 to specialty tires.
C. Executive Order 13132 Federalism NHTSA has examined this 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
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local officials or the preparation of a federalism summary impact statement.
The final rule would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. 49 U.S.C.
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.

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Pursuant to Executive Order 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 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 rule and finds that this rule, like many NHTSA rules, prescribes only a minimum safety standard. As such, NHTSA does not intend that this rule preempt State tort law that effectively would impose a higher standard on motor vehicle manufacturers than that established by todays rule. Establishment of a higher standard by means of State tort law would not conflict with the minimum standard announced here. Without any conflict, there could not be any implied preemption of a State common law tort cause of action.
D. Executive Order 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

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