[Federal Register Volume 87, Number 219 (Tuesday, November 15, 2022)]
[Notices]
[Pages 68540-68544]
[FR Doc No: 2022-24763]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-96262; File No. SR-NYSENAT-2022-24]

Self-Regulatory Organizations; NYSE National, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Extending
the Expiration Date of the Temporary Amendments to Rules 10.9261 and
10.9830

November 8, 2022.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given
that on October 28, 2022, NYSE National, Inc. (``NYSE National'' or the
``Exchange'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I and II
below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes extending the expiration date of the
temporary amendments to Rules 10.9261 and 10.9830 as set forth in SR-
NYSENAT-2020-31 from October 31, 2022 to January 31, 2023, in
conformity with recent changes by the Financial Industry Regulatory
Authority, Inc. (``FINRA''). The proposed rule change would not make
any changes to the text of NYSE National Rules 10.9261 and 10.9830. The
proposed rule change is available on the Exchange's website at
www.nyse.com, at the principal office of the Exchange, and at the
Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes extending the expiration date of the
temporary amendments as set forth in SR-NYSENAT-2020-31 \4\ to Rules
10.9261 (Evidence and Procedure in Hearing) and 10.9830 (Hearing) from
October 31, 2022 to January 31, 2023 to harmonize with recent changes
by FINRA to extend the expiration date of the temporary amendments to
its Rules 9261 and 9830. SR-NYSENAT-2020-31 temporarily granted to the
Chief or Deputy Chief Hearing Officer the authority to order that
hearings be conducted by video conference if warranted by the current
COVID-19 public health risks posed by in-person hearings. The proposed
rule change would not make any changes to the text of Exchange Rules
10.9261 and 10.9830.\5\
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    \4\ See Securities Exchange Act Release No. 90137 (October 8,
2020), 85 FR 65087 (October 14, 2020) (SR-NYSENAT-2020-31) (``SR-
NYSENAT-2020-31'').
    \5\ The Exchange may submit a separate rule filing to extend the
expiration date of the proposed extension beyond January 31, 2023 if
the Exchange requires additional temporary relief from the rule
requirements identified in SR-NYSENAT-2020-31. The amended NYSE
National rules will revert back to their original state at the
conclusion of the temporary relief period and any extension thereof.

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Background
    In 2018, NYSE National adopted disciplinary rules that are, with
certain exceptions, substantially the same as the disciplinary rules of
its affiliate NYSE American LLC, which are in turn substantially
similar to the FINRA Rule 8000 Series and Rule 9000 Series, and which
set forth rules for conducting investigations and enforcement
actions.\6\
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    \6\ See Securities Exchange Act Release No. 83289 (May 17,
2018), 83 FR 23968, 23976 (May 23, 2018) (SR-NYSENAT-2018-02)
(``2018 Approval Order'').
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    In adopting disciplinary rules modeled on FINRA's rules, NYSE
National adopted the hearing and evidentiary processes set forth in
Rule 10.9261 and in Rule 10.9830 for hearings in matters involving
temporary and permanent cease and desist orders under the Rule 10.9800
Series. As adopted, the text of Rule 10.9261 and Rule 10.9830 are
substantially the same as the FINRA rules with certain
modifications.\7\
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    \7\ See id.
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    In response to the COVID-19 global health crisis and the
corresponding need to restrict in-person activities, on August 31,
2020, FINRA filed with the Commission a proposed rule change for
immediate effectiveness, SR-FINRA-2020-027, which allowed FINRA's
Office of Hearing Officers (``OHO'') to conduct hearings, on a
temporary basis, by video conference, if warranted by the current
COVID-19-related public health risks posed by an in-person hearing.
Among the rules FINRA amended were Rules 9261 and 9830.\8\
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    \8\ See Securities Exchange Act Release No. 89737 (September 2,
2020), 85 FR 55712 (September 9, 2020) (SR-FINRA-2020-027) (``SR-
FINRA-2020-027'').
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    Given that FINRA and OHO administers disciplinary hearings on the
Exchange's behalf, and that the public health concerns addressed by
FINRA's amendments apply equally to Exchange disciplinary hearings, on
September 29, 2020, the Exchange filed to temporarily amend Rule
10.9261 and Rule 10.9830 to permit FINRA to conduct virtual hearings on
its behalf.\9\ In December 2020, FINRA filed a proposed rule change,
SR-FINRA-2020-042, to extend the expiration date of the temporary
amendments in SR-FINRA-2020-027 from December 31, 2020, to April 30,
2021.\10\ On December 22, 2020, the Exchange similarly filed to extend
the temporary amendments to Rule 10.9261 and Rule 10.9830 to April 30,
2021.\11\ On April 1, 2021, FINRA filed a proposed rule change, SR-
FINRA-2021-006, to extend the expiration date of the temporary rule
amendments to, among other rules, FINRA Rule 9261 and 9830 from April
30, 2021, to August 31, 2021.\12\ On April 20, 2021, the Exchange filed
to extend the temporary amendments to Rule 10.9261 and Rule 10.9830 to
August 31, 2021.\13\ On August 13, 2021, FINRA filed a proposed rule
change, SR-FINRA-2021-019, to extend the expiration date of the
temporary amendments to, among other rules, FINRA Rule 9261 and 9830
from August 31, 2021, to December 31, 2021.\14\ On August 27, 2021, the
Exchange filed to extend the temporary amendments to Rule 10.9261 and
Rule 10.9830 to December 31, 2021.\15\ On December 7, 2021, FINRA filed
a proposed rule change, SR-FINRA-2021-031, to extend the expiration
date of the temporary amendments in both SR-FINRA-2020-015 and SR-
FINRA-2020-027 from December 31, 2021, to March 31, 2022.\16\ On
December 27, 2021, the Exchange filed to extend the temporary
amendments to Rule 10.9261 and Rule 10.9830 to March 31, 2022, after
which the temporary amendments will expire absent another proposed rule
change filing by the Exchange.\17\ On March 7, 2022, FINRA filed to
extend the expiration date of the temporary rule amendments to, among
other rules, FINRA Rule 9261 and 9830 from March 31, 2022, to July 31,
2022.\18\ On March 29, 2022, the Exchange filed to extend the temporary
amendments to Rule 9261 and Rule 9830 to July 31, 2022.\19\ On July 8,
2022, FINRA filed to extend the expiration date of the temporary rule
amendments to, among other rules, FINRA Rule 9261 and 9830 from July
31, 2022 to October 31, 2022.\20\ On July 29, 2022, the Exchange filed
to extend the temporary amendments to Rule 10.9261 and Rule 10.9830 to
October 31, 2022, after which the temporary amendments will expire
absent another proposed rule change filing by the Exchange.\21\
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    \9\ See note 4, supra.
    \10\ See Securities Exchange Act Release No. 90619 (December 9,
2020), 85 FR 81250 (December 15, 2020) (SR-FINRA-2020-042).
    \11\ See Securities Exchange Act Release No. 90822 (December 30,
2020), 86 FR 627 (January 6, 2021) (SR-NYSENAT-2020-39).
    \12\ See Securities Exchange Act Release No. 91495 (April 7,
2021), 86 FR 19306 (April 13, 2021) (SR-FINRA-2021-006).
    \13\ See Securities Exchange Act Release No. 91634 (April 22,
2021), 86 FR 22477 (April 28, 2021) (SR-NYSENAT-2021-11).
    \14\ See Securities Exchange Act Release No. 92685 (August 17,
2021), 86 FR 47169 (August 23, 2021) (SR-FINRA-2021-019).
    \15\ See Securities Exchange Act Release No. 92908 (September 9,
2021), 86 FR 51424 (September 15, 2021) (SR-NYSENAT-2021-16).
    \16\ See Securities Exchange Act Release No. 93758 (December 13,
2021), 86 FR 71695 (December 17, 2021) (SR-FINRA-2021-31).
    \17\ See Securities Exchange Act Release No. 93919 (January 6,
2022), 87 FR 1804 (January 12, 2022) (SR-NYSENAT-2021-25).
    \18\ See Securities Exchange Act Release No. 94430 (March 16,
2022), 87 FR 16262 (March 22, 2022) (SR-FINRA-2022-004).
    \19\ See Securities Exchange Act Release No. 94662 (April 11,
2022), 87 FR 22601 (April 15, 2022) (SR-NYSENAT-2022-03).
    \20\ See Securities Exchange Act Release No. 95281 (July 14,
2022), 87 FR 43335 (July 20, 2022) (SR-FINRA-2022-018).
    \21\ See Securities Exchange Act Release No. 95476 (August 11,
2022), 87 FR 50668 (August17, 2022) (SR-NYSENAT-2022-14).
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    According to FINRA, although there has been a downward trend in the
number of COVID-19 cases since July 2022--when FINRA last filed to
extend the temporary relief, COVID-19 still remains a public health
concern.\22\ For example, according to the Centers for Disease Control
and Prevention (``CDC''), the 7-day moving average of new deaths from
COVID-19 in the United States during September 2022 ranged from
approximately 300 to 500 deaths per day,\23\ and approximately 23
percent of counties in the United States have a medium or high COVID-19
Community Level based on the CDC's most recent calculations.\24\ Much
uncertainty also remains as to whether there will be a significant
increase in the number of cases of COVID-19 in the future given the
emergence of new Omicron variants that the CDC currently is tracking
\25\ and the dissimilar vaccination rates (completed primary series and
a first booster dose) throughout the United States.\26\ Due to the
continued presence and uncertainty of COVID-19, FINRA believes that
there is a continued need for temporary relief beyond October 31,
2022.\27\ On October

17, 2022, FINRA accordingly filed to extend the expiration date of the
temporary rule amendments to, among other rules, FINRA Rule 9261 and
9830 from October 31, 2022 to January 31, 2023.\28\
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    \22\ See Securities Exchange Act Release No. 96107 (October 19,
2022), 87 FR 64526 (October 25, 2022) (SR-FINRA-2022-029) (``SR-
FINRA-2022-029'').
    \23\ See CDC, COVID Data Tracker--Trends in Number of COVID-19
Cases and Deaths in the US Reported to CDC, by State/Territory,
https://covid.cdc.gov/covid-data-tracker/#trends_dailydeaths_select_00 (last visited Oct. 11, 2022).
    \24\ See CDC, COVID Data Tracker--COVID-19 Integrated County
View, https://covid.cdc.gov/covid-data-tracker/#county-view?list_select_state=all_states&list_select_county=all_counties&data-type=CommunityLevels&null=CommunityLevels (last visited Oct. 11,
2022).
    \25\ These new Omicron variants include BA.4.6, BF.7, and
BA.2.75. See CDC, COVID Data Tracker--Variant Proportions, https://covid.cdc.gov/covid-data-tracker/#variant-proportions (last visited
Oct. 11, 2022).
    \26\ A state-by-state comparison of vaccination rates is
available at https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-people-additional-dose-totalpop.
    \27\ See SR-FINRA-2022-029, 87 FR at 64526-28.
    \28\ See generally SR-FINRA-2022-029.
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Proposed Rule Change
    Consistent with FINRA's recent proposal, the Exchange proposes to
extend the expiration date of the temporary rule amendments to NYSE
National Rules 10.9261 and 10.9830 as set forth in SR-NYSENAT-2020-31
from October 31, 2022 to January 31, 2023.
    As set forth in SR-FINRA-2022-029, although there has been a
downward trend in the number of COVID-19 cases since July 2022--when
FINRA last filed to extend the temporary relief, that COVID-19 still
remains a public health concern. For example, according to the Centers
for Disease Control and Prevention (``CDC''), the 7-day moving average
of new deaths from COVID-19 in the United States during September 2022
ranged from approximately 300 to 500 deaths per day,\29\ and
approximately 23 percent of counties in the United States have a medium
or high COVID-19 Community Level based on the CDC's most recent
calculations.\30\ Much uncertainty also remains as to whether there
will be a significant increase in the number of cases of COVID-19 in
the future given the emergence of new Omicron variants that the CDC
currently is tracking \31\ and the dissimilar vaccination rates
(completed primary series and a first booster dose) throughout the
United States.\32\ Due to the continued presence and uncertainty of
COVID-19, FINRA believes that there is a continued need for temporary
relief beyond October 31, 2022.\33\ FINRA accordingly proposed to
extend the expiration date of the temporary rule amendments from
October 31, 2022 to January 31, 2023.
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    \29\ See supra note 23 (CDC, COVID Data Tracker--Trends in
Number of COVID-19 Cases and Deaths in the US Reported to CDC, by
State/Territory).
    \30\ See supra note 24 (CDC, COVID Data Tracker--COVID-19
Integrated County View).
    \31\ See supra note 25 (regarding the new Omicron variants
include BA.4.6, BF.7, and BA.2.75 described in CDC, COVID Data
Tracker--Variant Proportions).
    \32\ See supra note 26 (regarding state-by-state comparison of
COVID-19 vaccination rates).
    \33\ See SR-FINRA-2022-029, 87 FR at 64526-28.
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    The Exchange proposes to similarly extend the expiration date of
the temporary rule amendments to NYSE National Rules 10.9261 and
10.9830 as set forth in SR-NYSENAT-2020-31 from October 31, 2022 to
January 31, 2023. The Exchange agrees with FINRA that, although there
has been a downward trend in the number of COVID-19 cases since July
2022--when FINRA last filed to extend the temporary relief, that COVID-
19 still remains a public health concern. The Exchange also agrees
that, due to the continued presence and uncertainty of COVID-19, for
the reasons set forth in SR-FINRA-2022-029, there is a continued need
for this temporary relief beyond October 31, 2022. The proposed change
would permit OHO to continue to assess, based on critical COVID-19 data
and criteria and the guidance of health and security consultants,
whether an in-person hearing would compromise the health and safety of
the hearing participants such that the hearing should proceed by video
conference. As noted in SR-FINRA-2022-029, in deciding whether to
schedule a hearing by video conference, OHO may consider a variety of
other factors in addition to COVID-19 trends. Similarly, as noted in
SR-FINRA-2022-029, in SR-FINRA-2020-027, FINRA provided a non-
exhaustive list of other factors OHO may take into consideration,
including a hearing participant's individual health concerns and access
to the connectivity and technology necessary to participate in a video
conference hearing.\34\ The Exchange believes that this is a reasonable
procedure to continue to follow for hearings under Rules 10.9261 and
10.9830 chaired by a FINRA employee.
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    \34\ See SR-FINRA-2022-029, 87 FR at 64527, n. 15.
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    As noted below, the Exchange has filed the proposed rule change for
immediate effectiveness and has requested that the SEC waive the
requirement that the proposed rule change not become operative for 30
days after the date of the filing, so the Exchange can implement the
proposed rule change immediately.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the
Act,\35\ in general, and furthers the objectives of Section
6(b)(5),\36\ in particular, because it is designed to prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade, to foster cooperation and coordination
with persons engaged in facilitating transactions in securities, to
remove impediments to, and perfect the mechanism of, a free and open
market and a national market system and, in general, to protect
investors and the public interest. Additionally, the Exchange believes
the proposed rule change is designed to provide a fair procedure for
the disciplining of members and persons associated with members,
consistent with Sections 6(b)(7) and 6(d) of the Act.\37\
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    \35\ 15 U.S.C. 78f(b).
    \36\ 15 U.S.C. 78f(b)(5).
    \37\ 15 U.S.C. 78f(b)(7) & 78f(d).
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    The Exchange believes that the proposed rule change supports the
objectives of the Act by providing greater harmonization between
Exchange rules and FINRA rules of similar purpose, resulting in less
burdensome and more efficient regulatory compliance. As such, the
proposed rule change will foster cooperation and coordination with
persons engaged in facilitating transactions in securities and will
remove impediments to and perfect the mechanism of a free and open
market and a national market system.
    The proposed rule change, which extends the expiration date of the
temporary amendments to Exchange rules consistent with FINRA's
extension to its Rules 9261 and 9830 as set forth in SR-FINRA-2022-029,
will permit the Exchange to continue to effectively conduct hearings
given the continued presence and uncertainty of COVID-19. Given that
COVID-19 remains a public health concern and the uncertainty around a
potential spike in cases of the disease, without this relief allowing
OHO to proceed by video conference, some or all hearings may have to be
postponed. The ability to conduct hearings by video conference will
permit the adjudicatory functions of the Exchange's disciplinary rules
to continue unabated, thereby avoiding protracted delays. The Exchange
believes that this is especially important in matters where temporary
and permanent cease and desist orders are sought because the proposed
rule change would enable those hearings to continue to proceed without
delay, thereby enabling the Exchange to continue to take immediate
action to stop significant, ongoing customer harm, to the benefit of
the investing public.
    As set forth in detail in SR-NYSENAT-2020-31, the temporary relief
to permit hearings to be conducted via video conference maintains fair
process and will continue to provide fair process consistent with
Sections 6(b)(7) and 6(d) of the Act \38\ while striking an appropriate
balance between providing fair process and enabling the Exchange to
fulfill its statutory obligations to protect investors and

maintain fair and orderly markets while avoiding the COVID-19-related
public health risks for hearing participants. The Exchange notes that
this proposal, like SR-NYSENAT-2020-31, provides only temporary relief.
As proposed, the changes would be in place through January 31, 2023. As
noted in SR-NYSENAT-2020-31 and above, the amended rules will revert
back to their original state at the conclusion of the temporary relief
period and, if applicable, any extension thereof.
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    \38\ 15 U.S.C. 78f(b)(7) & 78f(d).
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    Accordingly, the proposed rule change extending this temporary
relief is in the public interest and consistent with the Act's purpose.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed temporary rule
change will impose any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act. The proposed
rule change is not intended to address competitive issues but is rather
intended solely to extend temporary relief necessitated by the
continued presence and uncertainty of COVID-19 and the related health
and safety risks of conducting in-person activities. The Exchange
believes that the proposed rule change will prevent unnecessary
impediments to critical adjudicatory processes and its ability to
fulfill its statutory obligations to protect investors and maintain
fair and orderly markets that would otherwise result if the temporary
amendments were to expire on October 31, 2022.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \39\ and Rule 19b-4(f)(6) thereunder.\40\
Because the proposed rule change does not: (i) significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
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    \39\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \40\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) \41\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b4(f)(6)(iii),\42\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative immediately upon filing. The Exchange has
indicated that there is a continued need to extend the temporary relief
because the Exchange agrees with FINRA that the COVID-19 related health
concerns necessitating this relief will continue beyond October 31,
2022.\43\ The Exchange also states that extending the temporary relief
provided in SR-NYSENAT-2020-31 immediately upon filing and without a
30-day operative delay will allow the Exchange to continue critical
adjudicatory and review processes so that the Exchange may continue to
operate effectively and meet its critical investor protection goals,
while also protecting the health and safety of hearing
participants.\44\ The Commission also notes that this proposal extends
without change the temporary relief previously provided by SR-NYSENAT-
2020-31.\45\ As proposed, the temporary changes would be in place
through January 31, 2023 and the amended rules will revert back to
their original state at the conclusion of the temporary relief period
and, if applicable, any extension thereof.\46\ For these reasons, the
Commission believes that waiver of the 30-day operative delay for this
proposal is consistent with the protection of investors and the public
interest. Accordingly, the Commission hereby waives the 30-day
operative delay and designates the proposal operative upon filing.\47\
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    \41\ 17 CFR 240.19b-4(f)(6).
    \42\ 17 CFR 240.19b-4(f)(6)(iii).
    \43\ See supra Item II; see also SR-FINRA-2022-029, 87 FR 64526,
at 64527.
    \44\ See 87 FR 64526, at 64528-29 (noting the same in granting
FINRA's request to waive the 30-day operative delay so that SR-
FINRA-2022-029 would become operative immediately upon filing).
    \45\ See supra note 4.
    \46\ See supra note 5. As noted above, the Exchange states that
if it requires temporary relief from the rule requirements
identified in this proposal beyond January 31, 2023, it may submit a
separate rule filing to extend the effectiveness of the temporary
relief under these rules.
    \47\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule change's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \48\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
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    \48\ 15 U.S.C. 78s(b)(2)(B).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-NYSENAT-2022-24 on the subject line.

Paper Comments

     Send paper comments in triplicate to: Secretary,
Securities and Exchange Commission, 100 F Street NE, Washington, DC
20549-1090.

All submissions should refer to File Number SR-NYSENAT-2022-24. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of

10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change. Persons submitting
comments are cautioned that we do not redact or edit personal
identifying information from comment submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSENAT-2022-24 and should
be submitted on or before December 6, 2022.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\49\
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    \49\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-24763 Filed 11-14-22; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 80, Number 242 (Thursday, December 17, 2015)]
[Rules and Regulations]
[Pages 78664-78670]
[FR Doc No: 2015-31353]

=======================================================================
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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR PART 571

[Docket No. NHTSA-2015-0057]
RIN 2127-AL41

Federal Motor Vehicle Safety Standard Lamps, Reflective Devices,
and Associated Equipment

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: This final rule amends the rear license plate holder
requirements contained in Federal Motor Vehicle Safety Standard (FMVSS)
No. 108; ``Lamps, reflective devices, and associated equipment.'' The
final rule expands upon the proposal in the NPRM and allows license
plates on all motor vehicles to be mounted on a plane up to 30 degrees
upward from vertical if the upper edge of the license plate is not more
than 1.2 meters (47.25 inches) from the ground. Previously, the maximum
allowable upward mounting angle was 15 degrees beyond vertical. This
final rule increases harmonization with existing requirements in
European regulations. Additionally, this final rule increases a
manufacturer's design flexibility while providing opportunity to
decrease cost without compromising safety.

DATES: Effective June 14, 2016, with optional early compliance as
discussed below.
    Petitions for Reconsideration: Petitions for reconsideration of
this final rule must be received not later than February 1, 2016.

ADDRESSES: Petitions for reconsideration of this final rule must refer
to the docket and notice number set forth above and be submitted to the
Administrator, National Highway Traffic Safety Administration, 1200 New
Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: For technical issues: Mr. David Beck,
Office of Crash Avoidance Standards, Telephone:<PHONE_NUMBER>,
Facsimile:<PHONE_NUMBER>.
    For legal issues: Mr. John Piazza, Office of the Chief Counsel,
Telephone:<PHONE_NUMBER>, Facsimile:<PHONE_NUMBER>.
    The mailing address for these officials is: National Highway
Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington,
DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. Summary of the Notice of Proposed Rulemaking (NPRM)
III. Summary of Public Comments and NHTSA's Response
IV. Final Rule
V. Effective Date
VI. Regulatory Analyses and Notices

I. Background

    The agency reorganized FMVSS No. 108, ``Lamps, reflective devices,
and associated equipment,'' in a 2007 final rule by streamlining the
regulatory text and clarifying the standard's requirements.\1\ The
final rule, among other things, incorporated important agency
interpretations and reduced reliance on third-party documents
incorporated by reference. Regulated parties provided feedback to the
agency that documents, incorporated by reference before the 2007
reorganization, made it difficult to determine all of the applicable
requirements. For example, the standard incorporated some older
versions of SAE standards, not the most current versions; not only were
the older SAE standards sometimes difficult to obtain, but some
regulated parties may have mistakenly believed that FMVSS No. 108
incorporated the most recent SAE standards. The reorganization was
intended to fix these problems. The agency stated in the final rule
that the reorganization of FMVSS No. 108 was administrative and not
intended to change the standard's substantive requirements.
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    \1\ 72 FR 68234, Dec. 4, 2007.
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    SAE \2\ International Recommended Practice, SAE J587 OCT81, License
Plate Lamps (Rear Registration Plate Lamps) was one of the third-party
documents whose requirements were transferred to the regulatory text of
the standard. Among other requirements derived from SAE J587 OCT81,
S6.6.3 of the final rule required that the rear license plate holder be
mounted within an angle  15 degrees of a plane
perpendicular to that on which the vehicle stands. This requirement was
not expressly stated in the text of the standard previously. Instead,
FMVSS No. 108 contained two tables indicating the lighting requirements
for different types of vehicles, and these tables indicated that ``SAE
J587, October 1981'' was an ``Applicable SAE standard'' for a ``license
plate lamp.'' \3\ Even though the 2007 final rule explicitly stated the
SAE J587 requirements for the first time, these requirements were not
new, since FMVSS No. 108 had previously incorporated them by reference.
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    \2\ Previously named Society of Automotive Engineers.
    \3\ See 49 CFR 571.108, Table I (Required Motor Vehicle Lighting
Equipment Other Than Headlamps, Multipurpose Passenger Vehicles,
Trucks, Trailers, and Buses, of 80 or More Inches in Overall Width)
(2006); see also Table III (Required Motor Vehicle Lighting
Equipment, Passenger Cars and Motorcycles, and Multipurpose
Passenger Vehicles, Trucks, Buses and Trailers of Less than 80
Inches in Overall Width).
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    In response to the December 2007 final rule, the agency received
petitions for reconsideration from Harley-Davidson Motor Company \4\
(Harley-Davidson) and Ford Motor Company (Ford).\5\ Ford requested that
the agency delete S6.6.3 because, Ford concluded, NHTSA had stated that
not all requirements of referenced SAE standards were intended to be
incorporated into FMVSS No. 108. Harley-Davidson petitioned NHTSA to
either withdraw or amend the license plate mounting angle requirements
because, Harley-Davidson stated, FMVSS No. 108 regulated license plate
lamps, not holders. After the 2007 final rule was published, the
Motorcycle Industry Council (MIC) submitted a petition for
reconsideration requesting that the agency amend the license plate
angle mounting requirement for motorcycles.\6\ Because the petition for
reconsideration was received on March 19, 2009, well after the allowed
time for such petitions, NHTSA treated it as a petition for
rulemaking.\7\
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    \4\ Docket No. NHTSA 2011-0052.
    \5\ Docket No. NHTSA 2007-28322.
    \6\ MIC had also submitted a petition for rulemaking before the
2007 final rule (on March 14, 2005) requesting that the agency
modify the license mounting angle requirement to allow license
plates to be mounted between 30 degrees upward and 15 degrees
downward of a plane perpendicular to that on which the vehicle
stands. NHTSA did not grant this request before or during the
administrative re-write of FMVSS No. 108 because the agency's intent
was to streamline and clarify the standard, not to make substantive
changes.
    \7\ See 49 CFR 553.35.
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    In two separate notices, both issued on April 26, 2011, NHTSA
granted MIC's petition for rulemaking \8\ and denied, in part, the
petitions for reconsideration of the 2007 final rule on the same
issue.\9\ Because of confusion among regulated entities over whether
the license plate mounting angle requirements in SAE J587 OCT81 were
incorporated into FMVSS No. 108, the agency announced that it would not
enforce the 15 degree mounting angle requirement while it is completing
the rulemaking that was the subject of the petition.\10\ That
enforcement policy will end as of the effective date of this final
rule.
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    \8\ See 76 FR 23254, Apr. 26, 2011 (granting petition for
rulemaking).
    \9\ See 76 FR 23255, Apr. 26, 2011 (denying, in part, petitions
for reconsideration).
    \10\ See id. at 23256.
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II. Summary of the Notice of Proposed Rulemaking (NPRM)

    On September 3, 2013, the agency published an NPRM proposing to
amend FMVSS No. 108 to allow manufacturers greater flexibility in the
design of the license plate mounting surface on motorcycles.\11\ The
proposal stated that the maximum downward angle at which a motorcycle
license plate could be mounted (i.e., the plate faces below the
horizon) would remain 15 degrees, as would the maximum upward angle for
license plates on motorcycles on which the upper edge of the license
plate is more than 1.2 m (47.25 inches) from the ground. If the upper
edge of the license plate is not more than 1.2 m (47.25 inches) above
the ground, however, NHTSA proposed to amend the motorcycle license
plate mounting angle requirements to allow mounting angles of up to 30
degrees upward from the vertical (i.e., the plate faces above the
horizon).
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    \11\ 78 FR 54210, Sept. 3, 2013.
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    NHTSA anticipated that this change would reduce costs for
manufacturers by allowing them to use the same mounting hardware for
the license plate in both the U.S. and Europe. The agency also stated
that it did not believe that the proposal would compromise safety
because the proposed changes to the license plate mounting angle
requirement would not affect the ability of law enforcement personnel
or the general public to view the license plate. The NPRM also
requested comment on the following issues: Amending the license plate
mounting angle requirements to allow the license plate to be mounted at
an angle of 30 degrees upward of vertical on all vehicles, or,
alternatively, on vehicles with a gross vehicle weight rating of 10,000
pounds and less; adopting the maximum height requirement of 1.5 m
specified in the analogous European Economic Community (EEC)
regulations; and whether the proposed amendments would negatively
affect the ability of license plate recognition technology to read
license plate characters.\12\
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    \12\ Id.
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III. Summary of Public Comments and NHTSA's Response

    In response to the NPRM, the agency received comments from trade
associations, a non-profit association, manufacturers, and an
individual. The trade associations that submitted comments were the
Alliance of Automobile Manufacturers (the Alliance) and MIC. The
voluntary non-profit association of state and provincial motor vehicle
administrations--the

American Association of Motor Vehicle Administrators (AAMVA)--submitted
a comment. Volkswagen Group of America (Volkswagen) and Harley-Davidson
Motor Company (Harley-Davidson) also submitted comments. The agency
also received a comment from an individual commenter. Comments are
summarized below by topic, along with the agency's responses.

Harmonization and Cost Saving Benefits of the Proposal

Comments
    MIC and Harley-Davidson supported the proposal to increase the
maximum mounting angle to 30 degrees beyond vertical if the upper edge
of the license plate is not more than 1.2 m (47.25 inches) above the
ground. (MIC and Harley-Davidson also suggested, as discussed below,
adopting the EEC height requirement.) Each commented that the proposal
would align FMVSS No. 108 more closely with the EEC mounting angle
requirements.\13\ Each also stated that this change would increase
manufacturer design flexibility and decrease manufacturers' costs
without decreasing safety.
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    \13\ See EEC Council Directive 2009/62/EC, 1990 O.J. (L 198/20).
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Agency Response
    The agency agrees with MIC's and Harley-Davidson's comments
supporting the agency's proposal. Regarding MIC's comment that the
proposal would align FMVSS No. 108 more closely with the EEC license
plate mounting angle requirement, the agency verified that today's
final rule is generally consistent with the inclination provisions of
EEC Council Directive 2009/62/EC.\14\
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    \14\ 3. INCLINATION
     3.1. The rear registration plate:
     3.1.1. must be at right angles to the median longitudinal plane
of the vehicle;
     3.1.2. may be inclined from the vertical by not more than
30[deg], with the vehicle unladen, when the backing plate for the
registration number faces upwards;
     3.1.3. may be inclined by not more than 15[deg] from the
vertical, with the vehicle unladen, when the backing plate for the
registration number faces downwards.
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Legibility

Comments
    MIC agreed with the agency's tentative conclusion that the proposed
maximum mounting angle would not adversely affect the ability of
license plate recognition technology to read license plates. MIC also
stated that optics and software could be readily modified, and that the
technology is more sensitive to downward than upward angles. A former
law enforcement officer stated that license plates mounted at an angle
are often more difficult to read in low light. He stated that the
proposed rule would interfere with the ability of witnesses, police
officers, and the public to identify vehicles.
Agency Response
    In response to the commenter that expressed concern that the
proposed rule would decrease the legibility of the license plate in low
light conditions, the agency considered the potential impact of
increasing the allowable mounting plate angle in the context of the
totality of factors that influence the legibility of the plate in low
light conditions. FMVSS No. 108 contains various photometric and
geometric requirements aimed at assuring legibility of the license
plate. While this final rule expands the allowable license plate
mounting plane angle, other lamp photometric requirements and geometric
requirements remain unchanged. The plate illumination restriction
continues to require that the test station targets be illuminated at a
value of no less than 8 lux by the license plate lamp. Additionally,
the highest to lowest illumination ratio requirements, which protect
against shadowing across the plate, remain unchanged. Also unchanged is
a requirement that the incident light from the license plate lamp never
be less than 8 degrees. These factors all influence the legibility of
the license plate in low light conditions more than the mounting angle
within the range of allowable angles and heights of this final rule.
    Finally, the final rule's adoption of the proposed maximum plate
height for which this expanded angle range applies of 1.2 m (measured
from the top of the plate) limits the range of likely vertical viewing
angles. Considering the sales-weighted average driver's eye height for
a car is 1.1 m and 1.42 m for light trucks and vans, the agency
anticipates that occurrences of an observer reading plate at large
vertical visual angles will remain rare.\15\ A driver, whose eye height
is at the sales-weighted average height in a sedan, will view the
center of a license plate (approximately 1.15 m to 1.125 m from the
ground), if mounted at the maximum height of 1.2 m (at the top of the
plate), nearly parallel to the horizon. This means that the maximum
vertical viewing angle for a license plate mounted at the maximum
height and at the maximum angle, when viewed by the average driver's
eye height (worst-case situation) will be no greater than 30[deg] from
perpendicular to the plate. Considering all these factors, the agency
concludes that the legibility of a license plate in low light
situations for drivers will not be negatively impacted by today's final
rule.
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    \15\ UMTRI-2002-8, ``The Location of Headlamps and Driver Eye
Positions In Vehicles Sold in The U.S.A.'' (2002) Schoettle, B.,
Sivak, M., and Nakata, Y.
---------------------------------------------------------------------------

    For automated license plate readers, the agency estimates that they
are often mounted similar to, or higher than a driver's eye height. As
such, the agency believes that the geometric and photometric factors
outlined above apply similarly to machine license plate readers as they
do to human viewers. As such, the agency agrees with MIC that today's
final rule will not have a negative impact on automated plate readers.

License Plate Height

Comments
    Harley-Davidson and MIC commented that the agency should adopt the
EEC maximum height allowance of 1.5 m above the ground, as measured
from the upper edge of the license plate when the vehicle is unladen.
Harley-Davidson stated that this more liberal height requirement would
provide greater design flexibility and potential harmonization-related
cost savings. MIC stated that, in addition to benefits from
harmonization, the 1.2 m and 1.5 m values are arbitrary and there is no
material advantage or disadvantage to either.
Agency Response
    The agency has decided not to adopt the EEC maximum height
allowance. Neither MIC nor Harley-Davidson submitted data or specific
information to support their comments. The agency disagrees with MIC
that the 1.2 m maximum plate height for which the expanded angle
applies is arbitrary. As outlined above, this restriction limits the
vertical visual angle for which a driver is likely to view a license
plate. While a 1.2 m maximum plate height, for which the plate may be
angled at 30[deg] upward, produces a maximum vertical viewing angle of
30[deg] beyond perpendicular, a value of 1.5 m will not provide such an
assurance. If the agency chose the value of 1.5 m as suggested by MIC
and Harley-Davidson, and as allowed in the EEC regulation, a viewer
located at the average, sales-weighted eye height would need to look up
beyond horizontal for a plate mounted at the upper height limit. Such
an arrangement would cause the vertical

viewing angle to increase beyond 30[deg] depending on the viewing
distance. As such, we have chosen to adapt the proposed limit of 1.2 m
as the maximum mounting height for a plate mounted on a plane more than
15 degrees (but less than 30 degrees) upward from vertical. The agency
has chosen, however, not to adopt the ECE maximum height of 1.5 m
because we are concerned that higher mounting locations could create a
situation where the legibility of the plate becomes compromised.

Vehicles to Which the Proposed Changes Should Apply

Comments
    In the NPRM, the agency solicited comment on amending the mounting
angle requirement not just for motorcycles but for other types of
vehicles as well. We stated that after receiving public comment the
agency may decide to allow license plates to be mounted at an angle of
up to 30 degrees upward of vertical on all vehicles, or on all vehicles
with a gross vehicle weight rating of 10,000 pounds and less.
    The agency received two comments regarding the issue of what
vehicles to which the proposed rule should apply. Both Volkswagen and
the Alliance stated that the proposed change in mounting angle should
apply not just to motorcycles but to all classes of vehicles.
Volkswagen and the Alliance stated that making the rule generally
applicable would harmonize the FMVSS No. 108 provision with the
comparable ECE regulations and, (as Volkswagen stated) with SAEJ587,
both of which apply the maximum 30 degree upward mounting angle to all
classes of vehicles.\16\ The Alliance also indicated that the
permissible upward mounting angle should not depend on vehicle weight
because license plate visibility and legibility do not depend on
vehicle weight.
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    \16\ SAE J587 SEP2003, 6.5.2. ``The design shall be such that,
when the plate is mounted on a vehicle as intended and the upper
edge of the license plate is more than 1.2 m from the ground, the
angle between the plane of the license plate and a vertical plane
perpendicular to the plane of the ground on which the vehicle stands
shall be 15 degrees. If the upper edge of the license
plate is not more than 1.2 m from the ground, the plate surface
bearing the license numbers shall face between 30 degrees upward and
15 degrees downward from the vertical plane.''
---------------------------------------------------------------------------

Agency Response
    The agency anticipates that this final rule can yield design and
manufacturing benefits to all motor vehicles, not just motorcycles,
without compromising safety. As such, the agency has applied this final
rule to all motor vehicles regardless of vehicle type or weight. In the
NPRM, the agency considered applying the relaxed requirement to
vehicles that are rated at 10,000 pound or less vehicles. After
considering the Alliance's comment, the agency agrees that there is no
logical connection between the weight rating of the vehicle and the
legibility of the plate based on the mounting angle considering the
size of the plate and other photometric and geometric requirement are
the same for heavy and light vehicles. Applying this final rule to all
motor vehicles will allow manufacturers of these additional vehicle
types the flexibility to use an expanded mounting angle without
compromising safety.

Orientation of the License Plate as Either Vertical or Horizontal

Comments
    The AAMVA commented that the proposed rule would continue to allow
license plates to be mounted vertically (i.e., displayed so that the
characters on the plate are read from top to bottom rather than left to
right). AAMVA stated that vertically-mounted plates are difficult to
read and that it ``supports the horizontal display of a front and rear
plate and the uniform manufacture and design of plates, to increase the
effective and efficient identification of license plates. The use of
common characteristics and predictable designs on license plates will
enhance readability, usability, and a connection to vehicle
registration records.''
Agency Response
    While the agency appreciates AAMVA's comment, this rulemaking is
limited to the mounting angle of the plate and does not address whether
the license plate is horizontally or vertically displayed. Accordingly,
the AAMVA's proposed requirement is outside the scope of this
rulemaking.

IV. Final Rule

    The agency is amending FMVSS No. 108 to allow license plate
mounting angles of up to 30 degrees upward from vertical (an installed
plate will face above the horizon) if the upper edge of the license
plate is not more than 1.2 m (47.25 inches) from the ground. The agency
is also expanding the application of this change beyond that proposed
in the NPRM (motorcycles) to include all motor vehicles. The maximum
downward angle (an installed plate will face below the horizon) at
which a license plate can be mounted remains 15 degrees, as does the
maximum upward angle on vehicles for which the upper edge of the
license plate is more than 1.2 m (47.25 inches) above the ground. The
agency believes that these changes to the license plate mounting angle
requirements will reduce costs for manufacturers by allowing them to
use the same mounting hardware for the license plate in both the United
States and Europe without compromising safety because, as described
above, we do not believe that plate legibility will be compromised.
    As of the effective date of the final rule we are terminating the
policy, in effect since our denial of the petitions for reconsideration
of the 2007 final rule, of not enforcing the license plate holder
mounting requirement.

V. Effective Date

    In the NPRM we proposed an effective date of 60 days after
publication of the final rule. Under the Safety Act, a FMVSS typically
is not effective before the 180th day after the standard is
published.\17\ We did not receive any comments concerning the proposed
effective date. In keeping with typical practice, this final rule will
be effective June 14, 2016, with optional early compliance. We believe
that specifying a later effective date for this final rule will not
have any adverse effects or prejudice any regulated parties. This final
rule expands the range of compliance options available to
manufacturers; it does not enact any new duties or restrictions.
Moreover, providing for optional early compliance will allow
manufacturers to immediately benefit from the flexibility afforded by
the expanded mounting angle requirements the same as if the effective
date were earlier.
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    \17\ See 49 U.S.C. 30111(d).
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VI. Regulatory Notices and Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563, and DOT Regulatory Policies and Procedures

    NHTSA has considered the impact of this rulemaking action under
Executive Order 12866, Executive Order 13563, and the Department of
Transportation's regulatory policies and procedures. This final rule
does not result in any increased costs or significant benefits.
Therefore, it is not considered to be significant under E.O. 12866 or
the Department's regulatory policies and procedures. The Office of
Management and Budget has designated this rule as non-significant.

B. Executive Order 13609: Promoting International Regulatory
Cooperation

    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. International regulatory cooperation can also reduce,
eliminate, or prevent unnecessary differences in regulatory
requirements.

This rule more closely aligns the U.S. regulatory requirements for
mounting motor vehicle license plates with those of European countries.
Permitting an upward mounting angle of up to 30 degrees for all
vehicles harmonizes with the ECE Council Directive 2009/62/EC, 1990
O.J. (L 198/20). These changes will increase manufacturer design
flexibility without decreasing safety. The agency has chosen, however,
not to adopt the ECE maximum height of 1.5 m because we are concerned
that the higher mounting locations could create a situation where the
legibility of the plate becomes compromised.

C. National Environmental Policy Act

    We have reviewed this final rule for the purposes of the National
Environmental Policy Act and determined that it would not have a
significant impact on the quality of the human environment.

D. 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 Administration's regulations at 13 CFR part 121
define a small business, in part, as a business entity ``which operates
primarily within the United States.'' \18\ No regulatory flexibility
analysis is required if the head of an agency certifies the rule will
not have a significant economic impact on a substantial number of small
entities.
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    \18\ 13 CFR 121.105(a).
---------------------------------------------------------------------------

    NHTSA has considered the effects of this 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
expands the range of permissible mounting angles for license plates on
motor vehicles. We do not anticipate that there will be any increased
costs as a result of this rulemaking action. Accordingly, we do not
anticipate that this rule will have a significant economic impact on a
substantial number of small entities.

E. Executive Order 13132 (Federalism)

    NHTSA has examined today's final rule pursuant to Executive Order
13132 \19\ 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 rule will not
have sufficient federalism implications to warrant consultation with
State and local officials or the preparation of a federalism summary
impact statement. The rule will 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.''
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    \19\ 64 FR 43255, Aug. 10, 1999.
---------------------------------------------------------------------------

    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.\20\ It is this
statutory command by Congress that preempts any non-identical State
legislative and administrative law addressing the same aspect of
performance.
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    \20\ 49 U.S.C. 30103(b)(1).
---------------------------------------------------------------------------

    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.'' \21\ 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.\22\
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    \21\ 49 U.S.C. 30103(e).
    \22\ See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).
---------------------------------------------------------------------------

    Pursuant to Executive Order 13132, NHTSA has considered whether
this 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 rule
and finds that the rule, like many NHTSA rules, would prescribe only a
minimum safety standard. As such, NHTSA does not intend that this final
rule would preempt state tort law that would effectively impose a
higher standard on motor vehicle manufacturers than that established by
today's proposed rule. Establishment of a higher standard by means of
State tort law would not conflict with the minimum standard established
here. Without any conflict, there could not be any implied preemption
of a State common law tort cause of action.

F. Executive Order 12988 (Civil Justice Reform)

    Pursuant to Executive Order 12988, ``Civil Justice Reform,'' \23\
NHTSA has considered whether this rule would have any retroactive
effect. This rule does not have any retroactive effect.
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    \23\ 61 FR 4729, Feb. 7, 1996.

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G. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires Federal agencies to prepare a written assessment of the costs,
benefits, and other effects of a proposed or final rule that includes 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 in any one year (adjusted for inflation with a base
year of 1995).
    Before promulgating a rule for which a written statement is needed,
section 205 of the UMRA generally requires NHTSA to identify and
consider a reasonable number of regulatory alternatives and adopts the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows NHTSA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
agency publishes with the final rule an explanation why that
alternative was not adopted.
    This rule, by harmonizing this provision of FMVSS No. 108 with the
comparable EEC standard will likely reduce the manufacturing and design
costs of manufacturers by allowing a greater degree of commonality
between vehicles manufactured for sale in the United States and for
sale in Europe, and possibly other markets. The rule is not anticipated
to result in the expenditure by state, local, or tribal governments, in
the aggregate, or by the private sector in excess, of $100 million
annually. Therefore, the agency has not prepared an economic assessment
pursuant to the Unfunded Mandate Reform Act.

H. Paperwork Reduction Act

    Under the procedures established by 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 rule does not contain any collection of
information requirements requiring review under the PRA.

I. Executive Order 13045

    Executive Order 13045 \24\ applies to any rule that: (1) Is
determined to be economically significant as defined under E.O. 12866,
and (2) concerns an environmental, health or safety risk that NHTSA has
reason to believe may have a disproportionate effect on children. If
the regulatory action meets both criteria, we must evaluate the
environmental health or safety effects of the proposed rule on
children, and explain why the proposed regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by us.
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    \24\ 62 FR 19885, Apr. 23, 1997.
---------------------------------------------------------------------------

    Today's rule does not pose such a risk for children. The primary
effect of this rule is to amend the license plate mounting angle for
motor vehicles.

J. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) requires NHTSA to evaluate and use existing voluntary
consensus standards in its regulatory activities unless doing so would
be inconsistent with applicable law (e.g., the statutory provisions
regarding NHTSA's vehicle safety authority) or otherwise impractical.
    Voluntary consensus standards are technical standards developed or
adopted by voluntary consensus standards bodies. Technical standards
are defined by the NTTAA as ``performance-based or design-specific
technical specification and related management systems practices.''
They pertain to ``products and processes, such as size, strength, or
technical performance of a product, process or material.''
    Examples of organizations generally regarded as voluntary consensus
standards bodies include the American Society for Testing and Materials
(ASTM), the Society of Automotive Engineers (SAE), and the American
National Standards Institute (ANSI). If NHTSA does not use available
and potentially applicable voluntary consensus standards, we are
required by the Act to provide Congress, through OMB, an explanation of
the reasons for not using such standards.
    While SAE J587 SEP 2003, License Plate Lamps (Rear Registration
Plate Lamps) contains a mounting angle requirement for motor vehicles
similar to the agency's proposal, the agency did not believe that it
would be appropriate to adopt J587 SEP 2003 in its entirety. FMVSS No.
108 currently requires that when a single lamp is used to illuminate
the plate, the lamp and license plate holder must bear such relation to
each other that at no point on the plate must the incident light make
an angle of less than 8 degrees to the plane of the plate.\25\ SAE J587
SEP 2003 does not contain this requirement. While the agency considered
incorporating SAE J587 SEP 2003 in its entirety, we concluded that the
deletion of the test requirement to maintain an 8 degree relationship
between the lamp and the license plate holder might negatively impact
the direction toward which the plate reflects the light provided by the
license plate lamp. For this reason the agency has decided not to use a
voluntary consensus standard in its entirety in this regulatory
activity.
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    \25\ FMVSS 108, S<IP_ADDRESS>.
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K. Executive Order 13211

    Executive Order 13211 \26\ applies to any rule that: (1) Is
determined to be economically significant as defined under E.O. 12866,
and is likely to have a significant adverse effect on the supply,
distribution, or use of energy; or (2) that is designated by the
Administrator of the Office of Information and Regulatory Affairs as a
significant energy action. If the regulatory action meets either
criterion, we must evaluate the adverse energy effects of the rule and
explain why it is preferable to other potentially effective and
reasonably feasible alternatives considered by NHTSA.
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    \26\ 66 FR 28355, May 18, 2001.
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    This rule amends the license plate mounting angle for motor
vehicles. Therefore, this rule will not have any adverse energy
effects. Accordingly, this rulemaking action is not designated as a
significant energy action.

L. Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN contained in the heading at the beginning of this document
to find this action in the Unified Agenda.

Regulatory Text

List of Subjects in 49 CFR Part 571

    Motor vehicle safety, Reporting and recordkeeping requirements.

    In consideration of the foregoing, NHTSA is amending 49 CFR part
571 as set forth below.

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
1. The authority citation for Part 571 of Title 49 continues to read as
follows:

    Authority: 49 U.S.C. 322, 30111, 30115, 30117, 30166; delegation
of authority at 49 CFR 1.95.

0
2. Amend Sec.  571.108 by revising paragraph S6.6.3 to read as follows:

Sec.  571.108  Standard No. 108; Lamps, reflective devices, and
associated equipment.

* * * * *
    S6.6.3 License plate holder. Each rear license plate holder must be
designed and constructed to provide a substantial plane surface on
which to mount the plate.
    S<IP_ADDRESS> For motor vehicles on which the license plate is designed
to be mounted on the vehicle such that the upper edge of the license
plate is 1.2 m or less from the ground, the plane of the license plate
mounting surface and the plane on which the vehicle stands must be
perpendicular within 30[deg] upward (an installed plate will face above
the horizon) and 15[deg] downward (an installed plate will face below
the horizon).
    S<IP_ADDRESS> For motor vehicles on which the license plate is designed
to be mounted on the vehicle such that the upper edge of the license
plate is more than 1.2m from the ground, the plane of the license plate
mounting surface and the plane on which the vehicle stands must be
perpendicular within  15[deg].
* * * * *

    Issued on: December 8, 2015.
Mark R. Rosekind,
Administrator.
[FR Doc. 2015-31353 Filed 12-16-15; 8:45 am]
 BILLING CODE 4910-59-P