[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)]
[Rules and Regulations]
[Pages 26508-26517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12598]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 553
[NHTSA-98-3815]
RIN 2127-AG62
Rulemaking Procedures
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This final rule reaffirms the agency's policy of focusing its
international harmonization activities on identifying and adopting
those foreign vehicle safety standards that clearly reflect best
practices, i.e., that require significantly higher levels of safety
performance than the counterpart U.S. standards. This final rule also
announces the agency's policy regarding those instances in which the
agency's comparison of standards indicates that the safety performance
required by a foreign standard is not significantly higher, but is
still better than or at least as good as that required by the
counterpart U.S. standard.
To aid in implementing these policies, this final rule amends the
agency's regulation concerning rulemaking procedures to set forth the
process that the agency will use in comparing U.S. and foreign vehicle
safety standards and in determining what rulemaking response, if any,
is appropriate. The agency will assess whether the safety performance
of vehicles or equipment manufactured under the foreign standard is
better than or at least functionally equivalent to that of vehicles or
equipment manufactured under the U.S. standard, i.e., whether the
vehicles or equipment manufactured under the foreign standard produce
more or at least as many safety benefits
[[Page 26509]]
as those produced by the vehicles or equipment manufactured under the
U.S. standard.
This final rule also emphasizes that the agency's policy is to deny
any rulemaking petition seeking to have a foreign standard added to its
counterpart U.S. standard as a compliance alternative or to harmonize
the U.S. standard with the foreign standard if the petition does not
contain an analysis of the relative benefits of the two standards. This
policy is necessary to minimize the impact that NHTSA's consideration
of such rulemaking petitions might otherwise have on the agency's use
of its resources to upgrade its safety standards.
DATES: Effective Date: The amendments become effective on May 13, 1998.
Petitions for reconsideration: Petitions for reconsideration must
be received by June 29, 1998.
ADDRESSES: Petitions should refer to the docket and notice number of
this notice and be submitted to: The Administrator, National Highway
Traffic Safety Administration, 400 Seventh Street, SW, Washington, DC
20590.
FOR FURTHER INFORMATION CONTACT: For technical and policy issues: Ms.
Julie Abraham, Office of International Harmonization, National Highway
Traffic Safety Administration, 400 Seventh Street, SW, Washington, DC
20590. Telephone: (202) 366-2114. Fax: (202) 366-2106.
For legal issues: Rebecca MacPherson, Attorney Advisor, Office of
Chief Counsel, NCC-20, National Highway Traffic Safety Administration,
400 Seventh Street, SW, Washington, DC 20590. Telephone: (202) 366-
2992. Fax: (202) 366-3820.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview
II. Guiding principles for the harmonization of standards and the
amendment of standards based on claims of functional equivalence
III. Policy statement concerning functional equivalence
A. Background
B. November 1996 request for comments
C. Summary of oral and written comments on November 1996 notice
D. Pending rulemaking petitions based on claims of functional
equivalence
E. Policy statement
1. General description
2. The process as it will be applied in the United States
IV. Draft UN/ECE agreement on global technical regulations; public
participation
V. Rulemaking analyses and notices
A. Executive Order 12866 and DOT regulatory policies and
procedures
B. Regulatory Flexibility Act
C. National Environmental Policy Act
D. Executive Order 12612 (Federalism)
Regulatory text
I. Overview
This final rule reaffirms the agency's policy of focusing its
international harmonization activities on identifying and adopting
those foreign vehicle safety standards that clearly reflect best
practices, i.e., that require significantly higher levels of safety
performance than the counterpart U.S. standard. NHTSA's policy is to
pick the best standard in those instances. This final rule also
announces the agency's policy regarding instances in which the agency's
comparison of standards indicates that the safety performance required
by a foreign standard is not significantly higher, but is still better
than or at least as good as that required by the counterpart U.S.
standard. In those instances, the agency will consider the possibility
of amending the U.S. standard to allow manufacturers to comply with
either standard or to harmonize the U.S. standard with the foreign
standard.
To aid in implementing these policies, this final rule amends the
agency's regulation concerning rulemaking procedures by adding an
appendix that sets forth the process that the agency will use in
comparing U.S. and foreign vehicle safety standards and in determining
what rulemaking response, if any, is appropriate. In the first
instance, NHTSA will follow this process in determining whether to
commence a rulemaking proceeding on the basis that the mandatory
requirements of a foreign motor vehicle safety standard appear to be
better than or at least functionally equivalent to those of a Federal
Motor Vehicle Safety Standard (FMVSS). If the agency commences a
rulemaking proceeding, it will follow the same process in comparing the
safety performance of vehicles or equipment produced under the two
standards, and then in determining whether the foreign standard is, in
fact, better than or at least functionally equivalent to the U.S.
standard. This determination would be made by assessing whether the
vehicles or equipment manufactured under the foreign standard produce
more or at least as many safety benefits as the vehicles or equipment
manufactured under the U.S. standard. This assessment would be made on
the basis of real world data concerning benefits, or, if such data are
unavailable, on the basis of either compliance test data or data
generated by additional research and development.
This final rule emphasizes that there will be appropriate
opportunities for public participation. Any rulemaking notice that
proposes to amend a safety standard and that is based on a tentative
determination of functional equivalence will be subject to the notice
and comment requirements of the Administrative Procedure Act and all
applicable substantive statutory criteria, most notably the requirement
that the standards meet the need for motor vehicle safety.
This final rule also emphasizes that the agency's policy is to deny
any rulemaking petition seeking to have a foreign standard added to its
counterpart U.S. standard as a functionally equivalent compliance
alternative or to harmonize the U.S. standard with the foreign standard
if the petitioner does not provide an analysis, based to the extent
practicable on crash data, comparing safety performance under the two
standards and supporting the making of a determination that the foreign
standard is, in fact, better or at least functionally equivalent. This
policy is necessary to minimize the impact that NHTSA's consideration
of rulemaking petitions involving such functional equivalence claims
might otherwise have on the agency's use of its finite resources to
upgrade its safety standards.
Finally, since the agency's priority in international harmonization
is to focus on those foreign safety standards that represent best
practices, NHTSA will give priority to petitions requesting the
upgrading of one of its standards to the level of a superior foreign
standard over petitions simply asking the agency to add a compliance
alternative, if resource limitations necessitate making a choice
between competing petitions in granting or processing them.
II. Guiding Principles for the Harmonization of Standards and the
Amendment of Standards Based on Functional Equivalence
At the April 1996 Transatlantic Automotive Industry Conference on
International Regulatory Harmonization \1\ in Washington, DC,
[[Page 26510]]
NHTSA emphasized that three goals must remain of primary importance as
the agency explores the possibility of harmonizing its standards \2\
with those of other countries and regions in appropriate circumstances.
First, the agency must ensure that there is no degradation of the
safety provided by a regulation as a result of achieving harmonization.
Second, the agency must preserve the quality and transparency of its
regulatory process by inviting all interested parties to be heard and
duly considered, including the general public. Third, the agency must
preserve its ability to respond, through future rulemaking, to changing
safety technology and problems and make appropriate improvements in its
safety standards. NHTSA noted that the same goals must be met by the
agency in considering whether a foreign motor vehicle safety standard
is better than or at least functionally equivalent to its counterpart
FMVSS.
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\1\ At that conference, the United States-European Union
automotive industry met and developed recommendations to the United
States and European Union on international harmonization and the
intergovernmental regulatory process needed to achieve such
harmonization. One of the recommendations was to develop a process
for agreeing upon ``functional equivalence'' of dissimilar existing
standards addressing the same aspect of performance. Martin
Bangemann, the European Industry Commissioner on the European
Commission, said at the conference that a first step toward
achieving common standards between the United States and the
European Union could be an intermediate one of mutual recognition of
another country's standards, provided that they were determined to
be at least functionally equivalent.
\2\ As used in this notice, the term ``standard'' refers to
mandatory requirements and thus has the same meaning given the term
``technical regulation'' in Annex 1 to the World Trade Organization
Technical Barriers to Trade Agreement.
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This notice reaffirms those goals and emphasizes the agency's top
priority in its vehicle safety rulemaking activities will remain the
development and adoption of more effective and beneficial safety
standards.
III. Policy Statement Concerning Functional Equivalence
A. Background
The harmonization of product standards has become a matter of
increasing importance in the last several decades. The manufacturing
and marketing of products have become increasingly globalized. In
response to that trend, countries and regions have moved to adjust and
coordinate their regulatory practices to the extent consistent with
consumer protection policies. Efforts to coordinate regulatory
practices on a global scale have resulted in several international
agreements that seek to promote and guide the process of harmonization,
while taking care to preserve the right of countries and regions to
adopt and maintain standards they believe necessary to address safety,
environmental and other needs within their respective jurisdictions.
The GATT Agreement on Technical Barriers to Trade (TBT), known as
the Standards Code, was negotiated during the Tokyo Round of General
Agreement on Tariffs and Trade Multinational Trade Negotiations, and
implemented in this country by the Trade Agreements Act of 1979 (Pub.
L. 103-465; 19 U.S.C. 2531-2582). A new TBT agreement was reached as a
result of the General Agreement on Tariffs and Trade Uruguay Round of
Multinational Trade Negotiations. The Uruguay Round Agreements, which
were concluded in early 1994, established the World Trade Organization.
Article 2.7 of the new TBT Agreement provides that members of the World
Trade Organization:
Shall give positive consideration to accepting as equivalent
technical regulations of other Members, even if these regulations
differ from their own, provided they are satisfied that these
regulations adequately fulfill the objectives of their own
regulations.
(Emphasis added.)
At the Transatlantic Business Dialogue Conference (TABD), held in
Seville, Spain in late 1995, participants made a series of joint
recommendations aimed at building a stronger framework for trade
between the United States and the European Union. Later that year, at
the Madrid Summit, President Clinton signed a joint United States-
European Union ``New Transatlantic Agenda,'' which was based in part on
the TABD recommendations. The Agenda called for strengthening
regulatory cooperation and addressing technical and non-tariff barriers
to trade resulting from divergent regulatory processes. Within the
framework of action established by the Agenda, a Joint United States-
European Union Action Plan was issued. Among its goals are facilitating
international regulatory harmonization, taking into account the
respective policies of the United States and European Union concerning
safety and environmental protection. The April 1996 Transatlantic
Automotive Industry Conference on International Regulatory
Harmonization, mentioned above in part I, built on the TABD
recommendations and Action Plan by generating specific recommendations
regarding harmonization and regulatory coordination in the automotive
sector.
At the 15th International Technical Conference on Enhanced Safety
of Vehicles (ESV), held in May 1996 in Melbourne, Australia,
participating countries adopted the International Harmonized Research
Agenda (IHRA). One of the six research priorities was developing the
technical and scientific aspects of an acceptable model for assessing
relative benefits and determining the functional equivalence of
existing regulatory requirements. The United States and Australia were
designated as the lead countries for this developmental activity. The
other research priorities seek improvements in such areas of vehicle
safety as biomechanics, advanced offset frontal crash protection,
vehicle compatibility, Intelligent Transportation Systems (ITS), and
pedestrian safety.
In response to these events, NHTSA published a notice requesting
comments on the recommendations made by the United States/European
Union automotive industry at the April 1996 Transatlantic Automotive
Industry Conference on International Regulatory Harmonization in
Washington, D.C. (61 FR 30657; June 17, 1996). The agency stated that
the comments would assist it in determining how to respond to those
recommendations as well as ensuring that harmonization does not result
in any degradation of safety or environmental protection in the United
States. One of the specific requests was for comments on issues
relating to the development of a process for determining the functional
equivalence of the vehicle safety standards of different countries and
regions.
Written comments on the June 1996 notice were submitted by the
American Automobile Manufacturers Association (AAMA), Association of
International Automobile Manufacturers, Inc., (AIAM), Truck
Manufacturers Association (TMA), Coalition of Small Volume Automobile
Manufacturers (COSVAM), Coalition for Vehicle Choice (CVC), Consumers
Union (CU), Center for Auto Safety, American Insurance Association
(AIA), Insurance Institute for Highway Safety (IIHS), Congressman Tom
Sawyer, and Advocates for Highway Safety (Advocates).
The commenters focused their comments on the general issue and
consequences of standards harmonization. Many emphasized that the
agency should not permit any reduction in safety to occur as a result
of any rulemaking based on a determination of functional equivalence or
any other rulemaking seeking to harmonize standards. Both
manufacturers' associations and public interest groups stated that a
foreign standard should be determined to be at least functionally
equivalent to a counterpart U.S. standard only if the foreign standard
provides at least the same level of protection. In no event, IIHS and
several consumers groups said, should harmonization result in the
adoption of lowest common denominator standards. These groups urged
that the agency focus its harmonization efforts on raising the level of
U.S. standards to the level of the best practices worldwide. AIAM urged
the agency not to adopt a rigid
[[Page 26511]]
definition of functional equivalence and made several suggestions for
promoting the future evolution of the concept of functional
equivalence.
B. November 1996 Request for Comments
On November 14, 1996, NHTSA published in the Federal Register a
generic flowchart describing a process for use by the regulatory
agencies of the United States and other countries in making
determinations of functional equivalence of vehicle safety standards
(61 FR 58362). The agency developed the flowchart based on the comments
on the June notice and other available information. The November notice
announced plans for a January 1997 public workshop to discuss the
flowchart and solicited the submission of written comments following
the workshop. The agency said that the public input would assist the
agency in deciding its future course of action regarding international
harmonization, specifically the determination of functional equivalence
as outlined in the International Harmonized Research Agenda (IHRA). The
IHRA was established in meetings held in conjunction with the May 1996
International Technical Conference on the Enhanced Safety of Vehicles
(ESV) in Australia. The notice also announced that NHTSA would be
developing requirements and procedures regarding petitions for
rulemaking based on a claim of functional equivalency.
C. Summary of Oral and Written Comments on November 1996 Notice
The January 1997 workshop was attended by representatives of U.S.
and Canadian governmental agencies, motor vehicle manufacturers,
equipment manufacturers, insurance groups and consumer interest groups.
The attendees included the U.S. Environmental Protection Agency, U.S.
Department of Commerce, Transport Canada, Industry Canada, AAMA, AIAM,
Association des Constructeurs Europeens d'Automobiles (ACEA), Ford,
General Motors, Chrysler, Toyota, Land Rover, Volkswagen, Mitsubishi,
BMW, Motor Vehicle Equipment Manufacturers Association, Lear, Jetro,
Sierra Products, Truck-Lite, Auto Occupant Restraint Council, Rubber
Manufacturers Association, Transportation Safety Equipment Institute,
IIHS, Advocates, and American Insurance Association (AIA).
After the workshop, the agency received six written comments on the
November 1996 notice. The commenters were American Suzuki Motor
Corporation (Suzuki), CU, Advocates, Sierra Products, Inc., Sekurit
Saint-Gobain, and Nissan North America, Inc. (Nissan).
The highlights of the oral and written comments are set forth
below.
Nissan expressed concern that the proposed process may rely too
much on estimates of real world safety benefits and compliance test
data as bases for determining functional equivalence:
In most cases, such data would have to developed specially to
enable a comparison, and it would be rather difficult for most of
the countries to develop them through research, because of cost,
limited resources, etc. The approach of relying primarily on a
comparison of safety benefits would not be a realistic means of
demonstrating functional equivalence* * * .
Suzuki expressed a similar concern. In a related comment, Chrysler
stated that quantification of real world safety benefits may be
impossible in the case of the crash avoidance standards. The relative
merits of two different crash avoidance standards addressing the same
safety need would be much easier to assess in terms of their impact on
vehicle or equipment performance (an input measure) instead of their
impact on the number of crashes or of deaths and injuries (an output
measure).
AIAM stated that the proposed process fails to include
consideration of what it termed the ``same design approach.'' AIAM
noted that the AAMA functional equivalence process includes that
concept. That organization argued that, given difficulty of measuring
output, i.e., benefits, NHTSA should consider input, as represented by
similarity of design approaches.
Advocates said that the process should include a statement of
NHTSA's commitment to upgrading the FMVSSs when the agency determines
that the benefits of a foreign standard are greater than those of the
counterpart FMVSS:
* * *if the FE process is to provide any significant safety
benefit to the public, upgrading safety standards must be treated as
a mandatory requirement, not as a secondary or optional activity.
CU supported the concept of a functional equivalence determination
process that would result in both increased safety and increased
efficiency and stated that the proposed process could be an appropriate
procedure toward that end. IIHS and AIA agreed that the ultimate goal
should be higher standards.
Commenters differed as to whether the issues of determining
functional equivalence and possibly increasing the stringency of a
FMVSS should be considered in the same rulemaking proceeding. Advocates
said that if the agency determines that a foreign standard offers
greater benefits, the agency should conduct a single rulemaking
proceeding that results in upgrading the counterpart FMVSS. NHTSA
should not, according to that group, conduct two separate, sequential
rulemaking proceedings: the first one adding the foreign standard as a
compliance alternative and a subsequent one upgrading that FMVSS.
However, AAMA and Land Rover argued that there should be two separate
rulemaking proceedings.
Advocates implicitly recognized that the upgrading of a FMVSS might
not be appropriate in every instance in which the agency concludes that
the counterpart foreign standard yields greater benefits. That
organization noted that the upgrading of a FMVSS would be subject to
public comment and other aspects of the typical rulemaking proceeding.
Among other things, the agency would need to conduct a cost-benefit
analysis to determine whether an upgrade would be worthwhile. Land
Rover and Sierra Products agreed. Further, Advocates said that if NHTSA
decides not to propose to upgrade a FMVSS found by the agency to yield
fewer benefits than a counterpart foreign standard, the agency should
explain why upgrading is not warranted.
AIAM, Ford and Advocates expressed support for the making of
``qualified functional equivalence determinations.'' As described by
Advocates, such a determination would be made when NHTSA finds:
That a particular foreign standard would be equivalent to the
FMVSS counterpart if an additional requirement contained in the
FMVSS is also required. This qualified acceptance is appropriate
where the two standards are functionally equivalent in terms of the
estimated safety benefits, but the FMVSS standard contains a
specific provision or practice that is not required under the
foreign standard.
Advocates expressed concern that, by focusing on the level of
safety benefits of counterpart standards, the process might lead the
agency to overlook important differences between standards:
Advocates is concerned that distinctly different standards with
important safety differences will be treated as equivalent simply
because the overall estimate of benefits is comparable (or one is
greater than the other). A process that is focused only on a single
performance measure, i.e., total quantitative safety benefit, will
overlook important qualitative differences in approach that benefit
different vehicle occupants, benefit occupants in different ways, or
accrue to non-occupants, i.e., pedestrians.
Finally, Advocates urged that the agency adopt a policy ensuring
that
[[Page 26512]]
rulemaking petitions based on a claim of functional equivalence will be
granted only when it will not interfere with other agency activities
and not delay other pending rulemakings. To that end, that organization
urged that petitioners be required to submit sufficient data and
analysis to support their petitions. Transport Canada and IIHS
expressed similar concerns.
D. Pending Rulemaking Petitions Based on a Claim of Functional
Equivalence
NHTSA notes that it has already received several petitions based on
claims of functional equivalence. The AAMA has already petitioned the
agency to amend several of the FMVSSs, on the basis that their European
counterparts are functionally equivalent, to provide the alternative of
complying with those European standards. The FMVSSs include FMVSS 103,
Windshield Defrosting and Defogging Systems; FMVSS 104, Windshield
Wiping and Washing Systems; the headlamp concealment device
requirements in FMVSS 108, Lamps, Reflective Devices, and Associated
Equipment; FMVSS 202, Head Restraints; and FMVSS 209, Seat Belt
Assemblies. Noting that the petitions were not accompanied by
sufficient data and analysis, the agency informed the petitioner that
additional materials were needed in order to assess the merits of the
petition.
Additionally, the AAMA, AIAM and IIHS have jointly petitioned the
agency to amend FMVSS 214, Side Impact Protection, to give vehicle
manufacturers the option of complying with either current FMVSS 214 or
the counterpart European standard during a 7-year period. The petition
also requested that, at the end of the 7-year period, compliance with
the European standard become mandatory.
E. Policy Statement
1. General Description
NHTSA is amending Part 553, Rulemaking Procedures, by adding a new
Appendix B setting forth the process it intends to follow in
considering whether to commence a rulemaking proceeding based on a
claim that a foreign motor vehicle safety standard is better than or at
least functionally equivalent to its counterpart among the FMVSSs and
in making determinations about relative benefits and functional
equivalence. The process is set forth in the form of a flowchart and
accompanying explanation.
The agency believes that the process in Appendix B meets the
concerns expressed at the public workshop and in the written public
comments. The process is essentially the same as the generic process
published by the agency in November 1996 for public comment, except for
several clarifying or simplifying changes.
The generic process, which refers to ``Country A'' and ``Country
B,'' has been modified for the purpose of its application by this
country. The reference to ``Country A'' has been replaced by a
reference to ``NHTSA,'' so that the process as adopted in this final
rule refers to ``NHTSA'' and ``Country B.'' The rulemaking box,
formerly located in the upper left corner of the chart, has been
combined with a similar box located in the upper center of the chart.
The agency has eliminated the references to three notes formerly
included in the explanation. Those notes became unnecessary after the
agency expanded the discussion within the rulemaking box and the
discussion elsewhere in the explanation of the chart. As recognized at
the public workshop, any rulemaking to upgrade a FMVSS would have to
satisfy statutory criteria for establishing a FMVSS and would be
subject to the provisions of Executive Order 12866 regarding the
analysis of costs and benefits. This has been reflected in discussion
in the rulemaking box in the upper center of the chart. Per a request
by AAMA, descriptive titles have been added to some of the key decision
points in the chart.
Neither the chart nor its explanation has been modified to include
a reference to the ``design approach'' of determining functional
equivalence, as suggested by AIAM. As agency personnel noted at the
workshop, consideration of compliance test data would be necessary to
determine objectively whether various design approaches are really the
same. The chart already provides for consideration of compliance test
data as a method of determining relative benefits and functional
equivalence.
The explanation that accompanies the chart in Figure 1 has been
expanded to describe how the functional equivalence process would
affect each stage of a rulemaking proceeding. In response to concerns
expressed about the suitability of the process for comparing crash
avoidance standards, the explanation has been revised to note that the
types of benefits examined in comparing two standards might differ
depending on whether the standards are crash avoidance standards or
crashworthiness standards. Translating differences in performance (an
input measure) into numbers of crashes or numbers of deaths and
injuries (output measures) is more difficult in the case of crash
avoidance standards. Thus, while the relative benefits of two
crashworthiness standards would typically be assessed in terms of their
impacts on deaths and injuries in crashes, the relative merits of two
different crash avoidance standards might well be assessed in terms of
their impact on measured vehicle or equipment performance.
The explanation accompanying the flowchart also emphasizes the
flexibility of the process that will be employed by this agency. For
example, if one type of data specified in the flowchart were
unavailable, a petitioner's request for a functional equivalency
determination will not automatically be rejected. Instead, the
petitioner should submit analyses based on the types of specified data
which either are available or can be produced by means of additional
testing or research that can be performed within a reasonable time and
at a reasonable cost.
2. The Process as it Will Be Applied in the United States
Determining whether to grant the petition. NHTSA is
announcing in this notice that it will not grant any rulemaking
petition seeking to have a foreign standard added to its counterpart
U.S. standard as a compliance alternative on the basis that the foreign
standard is better than or at least functionally equivalent to the U.S.
standard or to harmonize the U.S. standard with the foreign standard,
if the petition is not accompanied by an analysis of the relative
benefits of the two standards. The analysis must be based, to the
extent practicable, on crash data, compare safety performance under the
two standards, and support the making of a determination, in accordance
with the process described in the flowchart in Figure 1 of Appendix B
to Part 553 of Title 49 CFR, that the foreign standard is better or at
least functionally equivalent to the U.S. standard. This policy is
necessary to preserve the agency's ability to focus its resources on
its priorities. Part 552 of Title 49 CFR, Petitions for rulemaking,
defect and noncompliance orders, expressly provides that, in making a
decision whether to grant a petition for rulemaking, the agency may
consider a variety of factors, include agency priorities and allocation
of agency resources. See Section 552.8.
Upon receiving a sufficiently supported rulemaking petition asking
NHTSA to amend a FMVSS based on a claim that a foreign standard is
better than or at least functionally equivalent to that FMVSS, the
agency will consider the merits of the petition in accordance
[[Page 26513]]
with Part 552 and with the functional equivalence process set forth in
the flowchart. If it appears that there is reason to believe that the
foreign standard provides greater or at least equivalent safety
benefits than the FMVSS, and if adding an alternative compliance
alternative does not appear likely to create an unacceptable
enforcement burden, the agency will likely grant the petition and
commence a rulemaking proceeding.
However, the agency emphasizes that its priority with respect to
international harmonization is identifying and adopting those foreign
safety standards that represent best practices. Accordingly, if
resource limitations make it necessary to chose between competing
petitions, the agency would give priority to granting a petition asking
the agency to upgrade one of its standards to the level of a superior
foreign standard over granting another petition simply asking the
agency to add a compliance alternative. The agency would follow the
same priorities in processing the petitions it grants. Finally, NHTSA
notes that the granting of a petition does not signify that the rule in
question will be issued, but rather that the petition appears to merit
a fuller comparison of performance under the two standards and, if
appropriate, the development of a proposal for public comment.
Development of proposal. If NHTSA grants the petition, it
will proceed, as in any other rulemaking regarding the FMVSSs, to
determine whether amending a FMVSS would be appropriate under the
applicable statutory criteria in chapter 301 of title 49, U.S.C.
Following the process set forth in the flowchart, the agency will use
the analysis and data submitted by the petitioner, supplemented by data
from other sources, to compare performance and tentatively determine
whether the foreign standard specified in the petition is better than
or at least functionally equivalent to the FMVSS specified in the
petition.
The comparison could have a variety of possible outcomes:
The comparison may indicate that the foreign standard's
safety benefits are less than those of the counterpart FMVSS. If the
comparison indicates that the foreign standard results in fewer safety
benefits than the counterpart FMVSS, NHTSA will terminate the
rulemaking proceeding.
The comparison may indicate that the foreign standard's
safety benefits are approximately equal to those of the counterpart
FMVSS. If the comparison indicates that the safety benefits of a
foreign standard are approximately equal to those of a FMVSS, NHTSA
will tentatively determine that the foreign standard is at least
functionally equivalent to the FMVSS and take one of two possible steps
in most instances. One possibility is that it will develop a notice of
proposed rulemaking (NPRM) proposing to amend the FMVSS by adding the
foreign standard as an alternative to the existing requirements of the
FMVSS.3 The other possibility is that the agency will
develop an NPRM proposing to harmonize the FMVSS with the foreign
standard. The second approach would enable NHTSA to maintain a single
set of requirements and test procedures in its standard, thereby
minimizing any drain on its enforcement resources. An additional
possibility that might be considered in some instances would be
``qualified functional equivalence.'' Under this third approach, the
agency would regard Country B's standard to be functionally equivalent
if it is supplemented by a specified requirement in the counterpart
FMVSS.
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\3\ NHTSA might have to modify or supplement the test procedures
in the foreign standard to comply with the requirements in NHTSA's
authorizing statute that FMVSSs be practicable and be stated in
objective terms.
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The comparison may indicate that the foreign standard's
safety benefits are greater than those of the counterpart FMVSS. If the
comparison indicates that the foreign standard results in greater
safety benefits than the counterpart FMVSS, and if upgrading the FMVSS
is appropriate, based on the incremental benefits and costs and
applicable statutory criteria, NHTSA will tentatively determine that
the foreign standard has greater benefits and develop an NPRM proposing
to upgrade the requirements of the FMVSS to the level of those in the
foreign standard. The upgrading could be accomplished in a number of
ways, such as by increasing the stringency of the requirements
presently in the FMVSS or by replacing the provisions of the FMVSS with
those of the foreign standard. If upgrading is not appropriate, NHTSA
may propose to add the foreign standard to the FMVSS as an alternative
compliance option to the existing requirements of the FMVSS. The
proposal of such an option would include a statement of the basis for
the agency's conclusion that upgrading the FMVSS is inappropriate.
If NHTSA issues an NPRM, it will request comment on the tentative
determination and the proposed amendment.
Final Rule Amending FMVSS. Any final decision to make a
determination regarding relative benefits and functional equivalency
and to amend the FMVSS will be made in accordance with the process in
the flowchart and applicable law and only after careful consideration
and analysis of the public comments.
IV. Draft UN/ECE Agreement on Global Technical Regulations; Public
Participation
To provide for the development of global technical regulations for
motor vehicles and motor vehicle equipment, the United States, the
European Union, and Japan reached accord in March of this year on a
text of an Agreement on Global Technical Regulations to supplement the
existing revised 1958 United Nations/Economic Commission for Europe
Agreement providing for uniform technical prescriptions for wheeled
vehicles, equipment, and parts, as well as the conditions for
reciprocal recognition of type approvals.4 The draft text is
subject to a final round of comment by governments participating in the
UN/ECE Working Party on the Construction of Vehicles (known as Working
Party 29) and other interested governments. The draft Agreement
contains procedures for establishing global regulations by harmonizing
existing regulations or by developing a new regulation. The new
regulation might be one that yields more benefits than existing
regulations addressing a particular problem or it might be an entirely
new regulation, i.e., a regulation addressing a problem not addressed
by any existing regulations.
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\4\ Public notice that NHTSA and the Environmental Protection
Agency would participate in negotiations regarding an international
agreement was published March 8, 1994 (59 FR 10846).
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In anticipation of the successful conclusion of efforts regarding
the draft Agreement, NHTSA wishes to reaffirm its prior public
statements about its commitment to transparency and public
participation in connection with international harmonization
activities. That commitment has guided the agency's work on the draft
Agreement. The agency is cognizant of the 1991 recommendation by the
Administrative Conference of the United States regarding ``Federal
Agency Cooperation with Foreign Government Regulators'' (Recommendation
91-1). The Conference recommended that:
(w)here appropriate, agencies should, so far as considerations
of time and international relations permit, afford affected private
and public interests timely notice of any formal system of
collaboration with foreign regulatory bodies that exists and an
opportunity where reasonable to participate
[[Page 26514]]
and comment on decisionmaking under such system.
Because of its commitment to transparency, NHTSA has met throughout
the past eighteen months with representatives of consumer interest
groups and the motor vehicle industry to keep them apprised of
developments in the negotiations regarding the draft Agreement. With
respect to the implementation of the agreement, the agency emphasizes
that it would not only keep the public advised of the key activities
and make available key documents relating to the development of vehicle
safety standards under the agreement, but also provide appropriate, and
timely, opportunities for obtaining public input regarding the merits
of these matters. The agency plans to elaborate more fully on its
procedures regarding transparency and public participation in the near
future.
V. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
NHTSA has considered the impact of this rulemaking action under
Executive Order 12866 and the Department of Transportation's regulatory
policies and procedures. This final rule was not reviewed by the Office
of Management and Budget under E.O. 12866, ``Regulatory Planning and
Review.'' This action is not ``significant'' under the Department of
Transportation's regulatory policies and procedures.
This rule will not mandate compliance with any new requirements or
the expenditure of any resources. NHTSA also notes that the cost of
passenger cars and light trucks will not be directly affected by the
rule. However, one result of adding a foreign standard to a FMVSS as an
alternative compliance option or of harmonizing the FMVSS with the
foreign standard could be to reduce overall manufacturing costs, and
thus costs to consumers. Thus, the act of granting a petition for such
a rulemaking could lead to actions that would affect the cost of new
passenger cars or light trucks.
B. Regulatory Flexibility Act
NHTSA has considered the effects of this rule under the Regulatory
Flexibility Act. I hereby certify that it will not have a significant
economic impact on a substantial number of small entities. The rule
will primarily affect manufacturers of motor vehicle and/or motor
vehicle equipment, since the majority of rulemaking petitions are
submitted by manufacturers. Few motor vehicle manufacturers qualify as
small businesses.
The Small Business Administration's regulations define a small
business, in part, as a business entity ``which operates primarily
within the United States.'' (13 CFR Part 121.105(a)) SBA's size
standards are organized according to Standard Industrial Classification
Codes (SIC). SIC Code 3711 ``Motor Vehicles and Passenger Car Bodies''
has a small business size standard of 1,000 employees or fewer. SIC
Code 3714 ``Motor Vehicle Parts and Accessories'' has a small business
size standard of 750 employees or fewer.
There were approximately twelve large manufacturers and four small
manufacturers producing passenger cars and light trucks in the United
States. Total United States manufacturing production is approximately
15 to 15.5 million passenger cars and light trucks per year.
Petitioners who are not vehicle manufacturers will also be subject
to the rule. However, NHTSA does not believe that small entities will
be burdened since the rule does not require the expenditure of funds.
Like any petitioner for rulemaking, a petitioner that does not or
cannot generate supporting data and analyses will run the risk that the
agency may not grant its petition for rulemaking. Petitioners will not,
however, be subject to any regulatory requirements beyond those already
required by NHTSA in the Code of Federal Regulations.
C. National Environmental Policy Act
NHTSA has analyzed this rule for the purposes of the National
Environmental Policy Act and determined that it will not have any
significant impact on the quality of the human environment.
D. Executive Order 12612 (Federalism)
The agency has analyzed this rule in accordance with the principles
and criteria set forth in Executive Order 12612. NHTSA has determined
that the amendment will not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
List of Subjects in 49 CFR Part 553
Imports, Incorporation by reference, Motor vehicle safety, Motor
vehicles, Rubber and rubber products, Tires.
In consideration of the foregoing, 49 CFR Part 553 is amended as
follows:
PART 553--RULEMAKING PROCEDURES
1. The authority citation for Part 553 continues to read as
follows:
Authority: 49 U.S.C. 322, 1657, 30103, 30122, 30124, 30125,
30127, 30146, 30162, 32303, 32502, 32504, 32505, 32705, 32901,
32902, 33102, 33103 and 33107; delegation of authority at 49 CFR
1.50.
2. The title of the existing Appendix to Part 553 is revised to
read as follows:
Appendix A To Part 553--Statement of Policy: Action on Petitions
For Reconsideration
3. Part 553 is amended by adding the following new Appendix:
Appendix B To Part 553--Statement of Policy: Rulemakings Involving
The Assessment of The Functional Equivalence of Safety Standards
(a) Based on a comparison of the performance of vehicles or
equipment, the National Highway Traffic Safety Administration
(NHTSA) may tentatively determine that a foreign motor vehicle
safety standard is better than or at least functionally equivalent
to a Federal Motor Vehicle Safety Standard (FMVSS), either on its
own motion or in connection with a petition for rulemaking by any
interested party under 49 CFR Part 552. Such determinations will be
made in accordance with the process described in the flowchart in
Figure 1 of this Appendix.
(b) Under the process, if NHTSA decides that there is reason to
believe that a foreign standard is better than or at least
functionally equivalent to a FMVSS in accordance with the process,
it will commence a rulemaking proceeding that may lead to the
issuance of a proposal to add the foreign standard as an alternative
compliance option to the FMVSS, to harmonize the FMVSS with the
foreign standard or to upgrade the FMVSS to the level of the foreign
standard, as appropriate. Such a proposal will request comment on
the agency's tentative determination regarding relative benefits and
functional equivalence as well as the proposed amendment. Final
determinations regarding these matters will also be made in
accordance with the analytical criteria in the flowchart.
(c) As used in this appendix, the term ``standard'' refers to
mandatory requirements and thus has the same meaning given the term
``technical regulation'' in Annex 1 to the World Trade Organization
Technical Barriers to Trade Agreement.
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EXPLANATION OF FLOWCHART
A. ULTIMATE GOAL
The ultimate goal in comparing standards is to assess the real
world safety performance of the covered vehicles or equipment.
Particularly in the case of crashworthiness standards, the most
reliable basis for making that assessment is fatality and injury
data directly drawn from actual crashes. Accordingly, NHTSA will
make appropriate efforts to ensure the availability of such data
regarding crashes in the U.S.
B. GUIDING PRINCIPLES
Best Practices
NHTSA pursues a ``best practices'' policy in comparing U.S. and
foreign safety standards, i.e., NHTSA will propose to upgrade its
standards if it tentatively concludes that a Country B standard
offers greater benefits than the counterpart FMVSS, and if upgrading
appears appropriate, considering the incremental costs and benefits
and applicable statutory criteria. (For a discussion of another type
of rulemaking proposal that may be considered in these
circumstances, see the paragraph below on comparisons that indicate
that a foreign standard's safety benefits are greater than those of
the counterpart FMVSS.)
Conservatism
1. NHTSA places priority on preserving the safety benefits of
the FMVSSs.
2. NHTSA can best preserve those benefits by being conservative
in reaching any conclusion that a Country B standard is better than
or at least functionally equivalent to the counterpart FMVSS. One
reason for conservatism is that differences from vehicle model to
vehicle model and manufacturer to manufacturer in margins of
compliance may confound efforts to assess the relative benefits of
two standards. Further, there may be circumstantial differences,
such as special environmental conditions, driver demographics,
driver behavior, occupant behavior (e.g., level of safety belt use),
road conditions, size distribution of vehicle fleet (e.g.,
proportion of big versus small vehicles and disparity between
extremes), that could influence real world safety benefits. These
differences may result in a particular standard having a safety
record in a foreign country that would not necessarily be repeated
in the United States.
Best Available Evidence
1. NHTSA will base its comparison of standards on the best
available evidence. If available, estimates of real world safety
benefits based on fatality and injury data directly drawn from
actual crashes are the best evidence. If such data are not
available, then estimates based on other information, such as
compliance test data, may be used, although increased caution needs
to be exercised in making judgment based on those estimates. If
sufficient crash data regarding real world safety benefits are
available, and a comparison of those benefits shows that the Country
B standard is less beneficial than the counterpart Federal Motor
Vehicle Safety Standard (FMVSS), NHTSA would avoid wasting resources
making comparisons on the basis of less probative types of evidence.
2. The types of benefits examined in comparing two standards
might differ depending on whether the standards are crash avoidance
standards or crashworthiness standards. Translating differences in
performance (an input measure) into numbers of crashes or numbers of
deaths and injuries (output measures) is more difficult in the case
of crash avoidance standards. As a result, while the relative
benefits of two crashworthiness standards would typically be
assessed in terms of their impacts on deaths and injuries in
crashes, the relative merits of two different crash avoidance
standards might well be assessed in terms of their impact on vehicle
or equipment performance.
Sufficiency of Evidence
1. Many types of data are available for a comparison of two
standards. Often there is an abundance of one type of data and
little or no data from other sources. If insufficient data are
available, and such data either cannot be generated through
engineering analysis (e.g., real world safety benefits estimates),
or conducting additional research and development is not cost
effective, then NHTSA will stop consideration of such data and
consider the other available data instead.
2. The essentially horizontal, left-to-right path through the
flowchart is intended to illustrate the sources of data that will be
considered and provide a rough idea of the priority they will
receive. Each step branches independently to the tentative
determination of relative benefits and functional equivalency by its
``yes'' path. This may seem to preclude later steps once any ``yes''
path is encountered. In practice, however, all data sources will be
considered to the extent that they are available before a final
determination regarding these matters is made.
Reciprocity
1. NHTSA will take steps to encourage reciprocity by other
countries in the making of functional equivalence determinations.
2. When NHTSA's comparison of standards indicates that one of
the FMVSSs has benefits equal to or greater than the counterpart
Country B standard, NHTSA may forward the results of that comparison
to Country B and request that consideration be given by Country B to
determining that the FMVSS is better than or at least functionally
equivalent to the counterpart Country B standard, and to
subsequently amending its standard accordingly.
C. AGENCY DECISIONS IN WHICH FLOWCHART IS USED
This flowchart guides agency decisions in connection with a
rulemaking proceeding that involves the issue of relative benefits
and functional equivalence.
1. Decision whether to grant a rulemaking petition. If the
agency receives a petition for rulemaking based on a claim that one
of Country B's standards is better than or at least functionally
equivalent to one of the Federal Motor Vehicle Safety Standards
(FMVSSs), the agency will consider the merits of the petition in
accordance with 49 CFR Part 552, Petitions for rulemaking, defect,
and noncompliance orders, and with the functional equivalence
process set forth in the flowchart. If it appears that there is
reason to believe that Country B's standard provides safety benefits
are greater than or at least equal to those of the FMVSS, the agency
will likely grant the petition and commence a rulemaking proceeding.
The agency emphasizes that its priority with respect to
international harmonization is identifying and adopting those
foreign safety standards that represent best practices. Accordingly,
if resource limitations make it necessary to choose between
competing petitions in granting or processing them, the agency would
give priority to petitions asking the agency to upgrade one of its
standards to the level of a superior foreign standard over petitions
simply asking the agency to add a compliance alternative.
2. Decision whether to issue a notice of proposed rulemaking. If
NHTSA grants the petition, it will proceed, as in any other
rulemaking regarding the FMVSSs, to determine whether amending an
FMVSS would be appropriate under the applicable statutory criteria
in chapter 301 of title 49, U.S.C. Following the process set forth
in the flowchart, the agency will use data submitted by the
petitioner, supplemented by data from other sources, to compare
performance and tentatively determine whether Country B's standard
specified in the petition is better than or at least functionally
equivalent to the FMVSS specified in the petition.
This comparison could have a variety of possible outcomes:
a. The comparison may indicate that the foreign standard's
safety benefits are less than those of the counterpart FMVSS. If
NHTSA determines that the foreign standard results in fewer safety
benefits than the counterpart FMVSS, it will terminate the
rulemaking proceeding.
b. The comparison may indicate that the foreign standard's
safety benefits are approximately equal to those of the counterpart
FMVSS. If the agency tentatively determines that the safety benefits
of a foreign standard are approximately equal to those of a FMVSS,
it will take one of two steps in most instances. One possibility is
that it will develop a notice of proposed rulemaking (NPRM)
proposing to amend the FMVSS by adding the foreign standard as an
alternative to the existing requirements of the FMVSS. The other
possibility is that the agency will develop an NPRM proposing to
harmonize the FMVSS with the foreign standard. This second approach
would enable NHTSA to maintain a single set of requirements and test
procedures in its standard, thereby minimizing any drain on its
enforcement resources. An additional possibility that might be
considered in some instances would be ``qualified functional
equivalence.'' Under this third approach, the agency would regard
Country B's standard to be functionally equivalent if it is
supplemented by a specified requirement in the counterpart FMVSS.
c. The comparison may indicate that the foreign standard's
safety benefits are greater than those of the counterpart FMVSS. If
NHTSA tentatively determines that the foreign standard results in
greater safety benefits than the counterpart FMVSS, and if
[[Page 26517]]
upgrading is appropriate, based on the incremental benefits and
costs and applicable statutory criteria, the agency issues an NPRM
proposing to upgrade the FMVSS to the level of Country B's std. If
upgrading is not appropriate, NHTSA considers issuing an NPRM
proposing to add the requirements of Country B's std to the FMVSS as
an alternative compliance option. The proposal to add the compliance
option would set forth the basis for the agency's conclusion that
upgrading the FMVSS is inappropriate.
If NHTSA issues an NPRM, it would request comment on the tentative
determination and the proposed amendment.
3. Decision whether to issue a final rule. Any final decision to
make a determination regarding relative benefits and functional
equivalency and to amend the FMVSS will be made in accordance with
the process in the flowchart and applicable law and only after
careful consideration and analysis of the public comments.
Issued on May 6, 1998.
Ricardo Martinez,
Administrator.
[FR Doc. 98-12598 Filed 5-12-98; 8:45 am]
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