Appendix B to Part 553 - Statement of Policy: Rulemakings Involving the Assessment of the Functional Equivalence of Safety Standards
49:6.1.2.3.25.4.7.1.23 : Appendix B
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.
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]