PROCESS USED BY NHTSA IN COMPARING ITS VEHICLE SAFETY STANDARDS WITH THOSE OF ANOTHER COUNTRY (B) AND DETERMINING WHETHER RULEMAKING IS APPROPRIATE

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 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.

[63 FR 26514, May 13, 1998]

554.4 Office of Vehicle Safety Compliance. 554.5 Office of Defects Investigation. 554.6 Opening an investigation.

554.7 Investigation priorities. 554.8 Monthly reports.

554.9 Availability of files.

554.10 Initial determinations and public meetings.

554.11 Final decisions.

AUTHORITY: 49 U.S.C. 30102-103, 30111-112, 30117-121, 30162, 30165-67; delegation of authority at 49 CFR 1.50.

SOURCE: 45 FR 10797, Feb. 19, 1980, unless otherwise noted.

§ 554.1 Scope.

This part establishes procedures for enforcing Federal motor vehicle safety standards and associated regulations, investigating possible safety-related defects, and making non-compliance and defect determinations.

§ 554.2 Purpose.

The purpose of this part is to inform interested persons of the procedures followed by the National Highway Traffic Safety Administration in order more fairly and effectively to implement 49 U.S.C. Chapter 301.

[60 FR 17267, Apr. 5, 1995]

§ 554.3 Application.

This part applies to actions, investigations, and defect and noncompliance decisions of the National Highway traffic Safety Administration under 49 U.S.C. 30116, 30117, 30118, 30120 and 30165. [60 FR 17267, Apr. 5, 1995]

§ 554.4 Office of Vehicle Safety Compli

ance.

The Office of Vehicle Safety Compliance, investigates compliance with Federal motor vehicle safety standards and associated regulations, and to this end may:

(a) Verify that manufacturers certify compliance with all applicable safety standards;

(b) Collect field reports from all sources;

(c) Inspect manufacturers' certification test data and other supporting evidence, including dealer communications;

(d) Inspect vehicles and equipment already in use or new vehicles and

equipment at any stage of the manufacturing, distribution and sales chain; (e) Conduct selective selective compliance tests; and

(f) Utilize other means necessary to conduct investigations.

§ 554.5 Office of Defects Investigation.

The Office of Defects Investigation conducts investigations to implement the provisions of the Act concerning the identification and correction of safety-related defects in motor vehicles and motor vehicle equipment. It elicits from every available source and evaluates on a continuing basis any information suggesting the existence of a safety-related defect.

§ 554.6 Opening an investigation.

(a) A compliance or defect investigation is opened either on the motion of the Administrator or his delegate or on the granting of a petition of an interested party under part 552 of this chapter.

(b) A manufacturer is notified immediately by telephone of any compliance test failure in order to enable the manufacturer to begin his own investigation. Notification is sent by mail at the beginning of any defect or noncompliance investigation.

§ 554.7 Investigation priorities.

(a) Compliance investigation priorities are reviewed annually and are set according to the following criteria:

(1) Prior compliance test data; (2) Accident data;

(3) Engineering analysis of vehicle and equipment designs;

(4) Consumer complaints; and (5) Market share.

(b) Defects inputs are reviewed periodically by an appropriate panel of engineers in consultation with the Office of Chief Counsel to determine whether formal investigation should be opened by the Office of Defects Investigation.

a

§ 554.8 Monthly reports.

(a) Compliance. A monthly compliance report is issued which lists investigations opened, closed, and pending

during that month, identifies compliance test reports accepted, and indicates how individual reports may be obtained.

(b) Defects. A monthly defects report is issued which lists investigations opened, closed, pending, and suspended during that month. An investigation may be designated "suspended" where the information available is insufficient to warrant further investigation. Suspended cases are automatically closed 60 days after appearing in a monthly report unless new information is received which justifies a different disposition.

§ 554.9 Availability of files.

All files of closed or suspended investigations are available for public inspection in the NHTSA Technical Reference Library. Communications between the agency and a manufacturer with respect to ongoing investigations are also available. Such files and communications may contain material which is considered confidential but has been determined to be necessary to the subject proceeding. Material which is considered confidential but has not been determined to be necessary to the subject proceeding will not be disclosed. Reproduction of entire public files or of individual documents can be arranged.

§ 554.10 Initial determinations public meetings.

and

(a) An initial decision of failure to comply with safety standards or of a safety-related defect is made by the Administrator or his delegate based on the completed investigative file compiled by the appropriate office.

(b) The decision is communicated to the manufacturer in a letter which makes available all information on which the decision is based. The letter advises the manufacturer of his right to present information, views, and arguments to establish that there is no defect or failure to comply or that the alleged defect does not affect motor vehicle safety. The letter also specifies the time and place of a public meeting for the presentation of arguments or sets a date by which written comments must be submitted. Submission of all information, whether at a public meet

ing or in written form, is normally scheduled about 30 days after the initial decision. The deadline for submission of information can be extended for good cause shown.

(c) Public notice of an initial decision is made in a FEDERAL REGISTER notice that—

(1) Identifies the motor vehicle or item of equipment and its manufacturer;

(2) Summarizes the information on which the decision is based.

(3) Gives the location of all information available for public examination; and

(4) States the time and place of a public meeting or the deadline for written submission in which the manufacturer and interested persons may present information, views, and arguments respecting the decision.

(d) A transcript of the public meeting is kept and exhibits may be offered. There is no cross-examination of witnesses.

[45 FR 10797, Feb. 19, 1980, as amended at 60 FR 17267, Apr. 5, 1995]

§ 554.11 Final decisions.

(a) The Administrator bases his final decision on the completed investigative file and on information, views, and arguments submitted at the public meeting.

(b) If the Administrator decides that a failure to comply or a safety-related defect exists, he orders the manufacturer to furnish the notification specified in 49 U.S.C. 30118 and 30119 and to remedy the defect or failure to comply.

(c) If the Administrator closes an investigation following an initial determination, without making a final determination that a failure to comply or a safety-related defect exists, he or she will so notify the manufacturer and publish a notice of that closing in the FEDERAL REGISTER.

(d) A statement of the Administrator's final decision and the reasons for it appears in each completed public file.

[60 FR 17268, Apr. 5, 1995]