Products Liability Law Daily Phase-in and compliance dates for ‘quiet car’ safety standard deferred for six months due to COVID-19 pandemic
Tuesday, September 1, 2020

Phase-in and compliance dates for ‘quiet car’ safety standard deferred for six months due to COVID-19 pandemic

By Kathleen Bianco, J.D.

NHTSA grants emergency petition for delayed compliance but denies request for alternative performance option during phase-in stage.

The National Highway Traffic Safety Administration (NHTSA) issued an interim final rule granting in part an emergency petition regarding the phase-in and compliance requirements of a December 2016 final rule that established Federal Motor Vehicle Safety Standard (FMVSS) No. 141, Minimum Sound Requirements for Hybrid and Electric Vehicles. The emergency petition, submitted by the Alliance of Automotive Innovation, detailed 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, and requested three changes to the phase-in and compliance requirements of FMVSS 141. Based on the concerns raised by the petitioner, NHTSA granted the petition in part by deferring the phase-in and compliance dates for six months. However, the request for an alternative performance option was denied at this stage. Pursuant to the interim final rule, the deferred phase-in period began March 1, 2020, and will end on February 28, 2021; while the new compliance date has been set for March 1, 2021. While the agency declined to grant the petitioner’s request for a one-year deferment and denied the request for an alternative performance option, the agency is seeking comments on all three issues. Comments must be received no later than September 16, 2020 (NHTSA Interim Final Rule85 FR 54273, September 1, 2020).

Background. The Pedestrian Safety Enhancement Act (PSEA) of 2010 provides that NHTSA must establish performance requirements for an alert sound that is recognizable as a motor vehicle in operation so that blind and other pedestrians are able to detect a nearby electric vehicle or hybrid vehicle operating at lower speeds. Accordingly, FMVSS No. 141 requires all hybrid and electric light vehicles with four wheels and a gross vehicle weight rating of 10,000 pounds or less to make audible noise when traveling in reverse or forward at speeds up to 30 kilometers per hour (about 19 miles per hour). At higher speeds, the sound alert is not required because other factors, such as tire and wind noise, provide adequate audible warnings to pedestrians [see Products Liability Law Daily’s December 14, 2016 analysis].

Emergency petition. An "emergency petition" seeking relief from certain FMVSS 141 compliance requirements was filed by the Alliance in April 2020. The petition asserted that, until the end of February, every hybrid and electric vehicle (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 COVID-19 public health emergency upended these compliance plans with the shutdown of manufacturing facilities and no clear indication of how long it would take to restore production levels. This disruption in the supply chain negatively impacted manufacturers’ plans for compliance with the FMVSS 141 phase-in. As a result, the petitioner requested that the agency defer the current phase-in period (September 1, 2019, through August 31, 2020) to September 1, 2020, through August 31, 2021; postpone the beginning of full compliance to September 1, 2021; and simplify the performance requirements during the phase-in period.

In support of its requests, the petitioner described the toll the national emergency has exacted on the automobile manufacturing industry. The petitioner asserted 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 further stated that the hardships caused by plant closures have hindered manufacturers' ability to produce FMVSS 141-compliant vehicles. The petitioner also maintained that the closure of test labs in some jurisdictions further complicated the ability of some manufacturers to complete certification tests needed to fully support self-certification of compliance.

The phase-in requirement is especially difficult for some manufacturers to meet because of how they designed their compliance plans. The petitioner explained that several manufacturers planned to meet the 50-percent fleet wide 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.

Regarding the suggested alternative phase-in performance option, the petitioner contended that its proposed option "simplifies the performance requirements [to] require only that an HEV/EV vehicle emit sound."

Determinations. After evaluating the arguments put forth by the Alliance and assessing the ongoing hardships stemming from the public health emergency, NHTSA determined that a six-month deferral of the phase-in and full compliance dates was warranted. The agency, however, declined to adopt the proposed alternative phase-in performance standard in this interim final rule, opting instead to open a notice and comment period on all three requests.

In reaching these conclusions, NHTSA 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 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 at this time. However, as part of this interim final rule, NHTSA is requesting input, under an expedited comment period, addressing whether to provide the full-year deferral requested by petitioners, along with whether to adopt the proposed alternative phase-in compliance option.

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