[Federal Register Volume 63, Number 159 (Tuesday, August 18, 1998)]
[Rules and Regulations]
[Pages 44171-44173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21956]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 555
[Docket No. 98-NHTSA-4285]
RIN 2127-AH44
Temporary Exemption From Motor Vehicle Safety Standards
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Technical amendments; final rule.
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SUMMARY: This document amends Part 555 to clarify procedures for
submitting confidential business information to accompany applications
for temporary exemption from one or more of the Federal motor vehicle
safety standards. The intent of the rule is to simplify the process for
manufacturers who may wish to claim confidentiality for information in
their applications.
The agency is also amending the temporary exemption procedures to
give examples of factors that may be relevant in preparing hardship
applications, and in demonstrating that good faith efforts have been
made to comply with standards for which an exemption may be sought.
Finally, the agency is updating statutory references and the
location of the docket room where public comments are available for
inspection.
DATES: The final rule is effective August 18, 1998.
FOR FURTHER INFORMATION CONTACT: Taylor Vinson, Office of Chief
Counsel, NHTSA (202-366-5263).
SUPPLEMENTARY INFORMATION: The primary purpose of this document is to
clarify the agency's confidential business information procedures so
that applicants for temporary exemption from the Federal motor vehicle
safety standards may comply with NHTSA's procedural requirements
without unnecessary delay.
Manufacturers who apply for temporary exemptions from Federal motor
vehicle safety standards are afforded an opportunity to ``specify any
part of the information and data submitted which petitioner requests be
withheld from public disclosure in accordance with part 512'' of
Chapter V, Title 49, Code of Federal Regulations. Part 512,
Confidential Business Information, is the agency's regulation setting
forth the procedures under which NHTSA will consider claims that
information submitted to the agency is confidential business
information as described in 5 U.S.C. 552(b)(4).
The agency has found that, when some manufacturers file their
exemption applications, they assert a claim for confidentiality without
submitting the documentation required by part 512, or otherwise
substantiating their request. The absence of substantiation causes
unnecessary delay while the Office of Chief Counsel contacts the
applicant and explains the necessity of either submitting
substantiation or withdrawing its request.
NHTSA has also found that when some small manufacturers apply for
the first time for a temporary exemption based on a claim that
compliance would cause them substantial economic hardship, they do not
request confidential information for the financial information they
submit in support of their claim of hardship. They do not realize they
must make a specific request for confidentiality to prevent the
information from becoming a matter of public record. This omission by
applicants had limited consequences when their applications were
available only through inspection in NHTSA's docket room. However, the
applications and their supporting information are now placed ``on
line'' and may be
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accessed through the internet, making possible a much wider exposure.
This problem is readily avoidable through making the necessary request
for withholding information from public disclosure. It has been NHTSA's
practice to grant confidentiality, when requested, to such information,
and to deny it only with respect to the information absolutely required
to explain or justify a hardship decision, which must be shared with
the public as the basis for NHTSA's decision. For example, the agency
must make public the company's net losses in the three years
immediately preceding the filing of its application.
NHTSA is therefore amending Sec. 555.5(b)(6) to add subparagraphs
(i) and (ii). Under Sec. 555.5(b)(6)(i), a manufacturer's specification
of withholding must be submitted in accordance with 49 CFR 512.4,
Asserting a claim for confidential information. Under
Sec. 555.5(b)(6)(ii), the manufacturer's request for withholding must
be accompanied by a certification in support as set forth in Appendix A
to 49 CFR Part 512. NHTSA believes that these reminders will ensure
timely compliance with the confidential business information, to the
advantage of both the applicant and NHTSA.
In a related issue, in 1996, the agency received a petition for
rulemaking from the Coalition of Small Vehicle Manufacturers (COSVAM)
to amend Parts 555 and Part 571. Although no formal action has been
taken on this petition, the agency is amenable to two of the requests
relating to Sec. 555.6(a), the provisions under which the Administrator
may temporarily relieve a manufacturer from compliance upon finding
that ``compliance would cause substantial economic hardship to a
manufacturer that has tried to comply with the standard in good
faith.'' 49 U.S.C. 30113(b)(3)(B)(I).
Under Sec. 555.6(a)(1)(vi), an applicant is invited to discuss
``any other hardships (e.g., loss of market) that the petitioner
desires the agency to consider.'' COSVAM asked that the agency consider
``factors such as the difficulty in obtaining suppliers * * *.'' It is
a common refrain of small volume manufacturers that it is difficult for
them to interest outside suppliers in engineering air bags or antilock
brake systems for limited production vehicles. NHTSA has taken this
claim into account when the issue has been raised, and considered it in
formulating a decision. Accordingly, NHTSA is codifying this practice
by adding ``difficulty in obtaining suppliers'' to loss of market as an
example of a hardship whose existence may be argued when it is relevant
to do so.
COSVAM also argued that the agency should be specific about factors
it takes into consideration in determining whether an applicant has
tried in good faith to comply. Two of these factors cited as relevant
by COSVAM are the resources available to the applicant, and its
inability to procure goods and services necessary for compliance
following a timely request. The agency has also considered these
factors in its deliberations without necessarily discussing them in
each relevant case. NHTSA is also amenable to codifying this practice
by expressly citing these factors in part 555 as relevant to the
hardship argument. Accordingly, it is adding a new
Sec. 555.6(a)(2)(iii) to implement COSVAM's request.
Finally, NHTSA is adopting several technical amendments. The
National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.)
was repealed on July 5, 1994, and reenacted without substantive change
as 49 U.S.C. Chapter 301-Motor Vehicle Safety. References to the former
statute have been changed to reflect the new references in Sec. 555.1
and Sec. 555.10(b). Since the location of the NHTSA Docket Room was
changed in 1997, Sec. 555.10(a) has been revised to substitute the new
location.
Effective Date
Since the amendment relates to internal procedures, prior notice
and comment on it are not required under the Administrative Procedure
Act. Since the rule imposes no additional burden upon any party, the
agency hereby finds that an effective date earlier than 180 days after
issuance is in the public interest, and the final rule is effective
upon its publication in the Federal Register.
Rulemaking Analyses
A. Executive Order 12866 (Federal Regulation) and DOT Regulatory
Policies and Procedures
This notice has not been reviewed under E.O. 12866. After
considering the impacts of this rulemaking action, NHTSA has determined
that the action is not significant within the meaning of the Department
of Transportation regulatory policies and procedures. The final rule
makes no substantive changes. The impacts are so minimal as not to
warrant the preparation of a full regulatory evaluation.
B. Regulatory Flexibility Act
The agency has also considered the effects of this action in
relation to the Regulatory Flexibility Act. For the reasons discussed
above, I certify that this action would not have a significant economic
impact upon ``a substantial number of small entities.'' The amendment
is intended to assist potential applicants for temporary exemptions,
including small businesses, to understand agency procedures so that, if
a request for confidentiality is made, the documentation will be
complete at the time the request is made. It is also designed to
provide guidance as to arguments the agency considers relevant in
making decisions upon exemption applications. Governmental
jurisdictions will not be affected at all since they are generally
neither importers nor purchasers of nonconforming imported motor
vehicles.
C. Executive Order 12612 (Federalism)
The agency has analyzed this action in accordance with the
principles and criteria contained in Executive Order 12612
``Federalism'' and determined that the action does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
D. National Environmental Policy Act
NHTSA has analyzed this action for purposes of the National
Environmental Policy Act and concludes that the action will not have a
significant effect upon the environment because it is anticipated that
the annual volume of motor vehicles produced or imported will not vary
from that existing before promulgation of the rule.
E. Civil Justice Reform
This final rule will not have any retroactive effect. Under 49
U.S.C. 30103), whenever a Federal motor vehicle safety standard is in
effect, a state may not adopt or maintain a safety standard applicable
to the same aspect of performance which is not identical to the Federal
standard. A procedure is set forth in 49 U.S.C. 30161 for judicial
review of final rules establishing, amending or revoking Federal motor
vehicle safety standards. That section does not require submission of a
petition for reconsideration or other administrative proceedings before
parties may file suit in court.
F. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires
agencies to prepare a written assessment of the cost, benefits and
other effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the
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private sector, of more than $100 million annually. Since this final
rule will not have a $100 million effect, no Unfunded Mandates
assessment has been prepared.
List of Subjects in 49 CFR Part 555
Imports, Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, 49 CFR part 555 is amended as
follows:
PART 555--TEMPORARY EXEMPTION FROM MOTOR VEHICLE SAFETY STANDARDS
1. The authority citation for part 555 continues to read as
follows:
Authority: 49 U.S.C. 30113; delegation of authority at 49 CFR
1.50.
Sec. 555.1 [Amended]
2. Section 555.1 is amended by removing ``section 123 of the
National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. 1410''
and adding in its place ``49 U.S.C. 30113.''
3. New Sec. 555.5(b)(6)(i) and (ii) are added to read as follows:
Sec. 555.5 Petition for exemption.
* * * * *
(b) * * *
(6) * * *
(i) The information and data which petitioner requests be withheld
from public disclosure must be submitted in accordance with Sec. 512.4
Asserting a claim for confidential information of this chapter.
(ii) The petitioner's request for withholding from public
disclosure must be accompanied by a certification in support as set
forth in appendix A to part 512 of this chapter.
* * * * *
4. a. Section 555.6(a)(1)(vi) is revised to read as follows;
b. Section 555.6(a)(2)(iii) and (iv) are redesignated as (a)(2)(iv)
and (v) respectively; and
c. New Sec. 555.6(a)(2)(iii) is added to read as follows:
Sec. 555.6 Basis for petition.
(a) * * *
(1) * * *
(vi) A discussion of any other hardships (e.g., loss of market,
difficulty of obtaining goods and services for compliance) that the
petitioner desires the agency to consider.
(2) * * *
(iii) A discussion of any other factors (e.g., the resources
available to the petitioner, inability to procure goods and services
necessary for compliance following a timely request) that the
petitioner desires the NHTSA to consider in deciding whether the
petitioner tried in good faith to comply with the standard;
* * * * *
Sec. 555.10 [Amended]
5. The first sentence of Sec. 555.10(a) is amended by removing
``Docket Section, Room 5109, National Highway Traffic Safety
Administration,'' and by adding in its place ``Docket Management, Room
PL-401.''
6. Section 555.10(b) is amended by removing ``sections 112, 113,
and 158 of the Act (15 U.S.C. 1401, 1402, and 1418)'' and adding in its
place ``49 U.S.C. 30166 and 30167.''
Issued on: August 11, 1998.
L. Robert Shelton,
Associate Administrator for Safety Performance Standards.
[FR Doc. 98-21956 Filed 8-17-98; 8:45 am]
BILLING CODE 4910-59-P
