Lamps, Reflective Devices and Associated Equipment; Establishment of Negotiated Rulemaking Advisory Committee

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. 95-28; Notice 1]

RIN 2127-AF73

Lamps, Reflective Devices and Associated Equipment; Establishment

of Negotiated Rulemaking Advisory Committee

AGENCY: National Highway Traffic Safety Administration (NHTSA); DOT.

ACTION: Notice of proposal to form a negotiated rulemaking advisory

committee and request for representation.

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SUMMARY: NHTSA proposes to establish a Negotiated Rulemaking Advisory

Committee under the Negotiated Rulemaking Act of 1990 and the Federal

Advisory Committee Act to develop recommended specifications for

altering the U.S. lower headlamp beam pattern to be more sharply

defined. Such a pattern would facilitate visual

[[Page 30507]] aimability of headlamps and might be the basis for a

world-wide lower beam pattern. The Committee would develop its

recommendations through a negotiation process. The Committee would be

composed of persons who represent the interests affected by the rule

such as domestic and foreign manufacturers of motor vehicles,

headlamps, and headlamp aimers, motor vehicle inspection facilities,

consumers, and State and Federal governments. NHTSA invites interested

persons to submit nominations and applications for membership on the

Committee, and comments on the subject matter.

DATES: NHTSA must receive written comments and requests for

representation or membership not later than July 10, 1995.

ADDRESSES: Comments should mention the docket and notice number shown

above and be submitted in triplicate to Docket Clerk, room 5109, 400

Seventh Street, SW, Washington, DC 20590. Docket hours are from 9:00

a.m. to 4:00 p.m.

FOR FURTHER INFORMATION CONTACT: Jere Medlin, Office of Vehicle Safety

Standards, NHTSA (202-366-5276).

SUPPLEMENTARY INFORMATION:

I. Background

(A) Petition for Rulemaking Submitted by General Motors

General Motors Corporation (GM) petitioned NHTSA for rulemaking to

amend Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective

Devices, and Associated Equipment to allow fractional balance optical

amiability of certain replaceable bulb and integral beam headlamps. GM

wants to use headlamps that can not be aimed with external mechanical

aimers, or with the on-vehicle mechanical aimers now specified by the

standard. Lamps that used fractional balance optical aim could be aimed

only by means of a new optical aimer, which is estimated to cost about

$3,000. The cost of a current mechanical aimer capable of achieving

accurate headlamp aim is about $250.

Information submitted by GM with its petition indicates that most

facilities performing motor vehicle inspections, whether owned

privately or by the State, choose to check and adjust headlamp aim

visually, rather than with the more objective mechanical aimers. In the

most common form, aim in State inspections is judged subjectively by

the eye of an inspector viewing a headlamp beam pattern cast upon a

distant vertical surface, such as a wall or screen. Based on this

subjective observation, the inspector decides whether the beam pattern

falls in the area (s)he believes is correct. Another form of visual

inspection involves the use of optical machines which condense the beam

pattern onto an internal aiming screen so that the longer separation

distance between lamp and target necessary for the other form of visual

aiming is not necessary. The cost of these machines is moderate.

Until 1983, headlamps were required to be sealed beam in

construction, of specific shapes and sizes and capable of mechanical

aim. There was a standardized location for aiming pads on headlamp

lenses, and only four simple adapters were required for the base

mechanical aimer to fulfill its function. When Standard No. 108 was

amended to permit replaceable bulb headlamps of no specific shape and

size, headlamps began growing both smaller and larger for reasons of

weight and drag reduction and style, requiring additional, adjustable

adapters for aiming by mechanical means. To preclude designing separate

adapters for mechanical aimers, and to permit even smaller headlamps

not capable of using adapters, manufacturers developed on-board

mechanical aiming devices, and Standard No. 108 was further amended to

permit these ``vehicle headlamp aiming devices'' (VHADs). While this

added modestly to vehicle cost, it eliminated the need to use external

means to mechanically aim the headlamps. However, because of the need

to reduce time and costs, the GM data indicate that inspection stations

have resorted to judging aim visually, rather than through on-board or

exterior mechanical aimers.

NHTSA granted GM's petition in order to engage in a review of the

subject of headlamp aim and amiability.

(B) Regulatory Goals

Visual aim of headlamps conforming to Standard No. 108 has a

potential negative safety effect because U.S. lower beam patterns lack

clearly defined borders which, if present, would permit a more

objective visual determination of aim. Visual aiming of U.S. lower beam

patterns introduces an element of subjectivity into the inspection

process and substantial aim error that does not exist with mechanical

or on-board aimers. Beam patterns with clearly defined fiducial marks

or cutoffs, such as those typical of European or Japanese market

headlamps, permit a more objective and more accurate determination of

whether the aim of the headlamp is correct when the headlamp is

visually aimed.

For some years, NHTSA has been engaged in harmonization efforts to

find and implement windows of overlapping performance between the

lighting requirements of Standard No. 108 and those of Europe and

Japan. With respect to headlamps, to achieve such a window where a

headlamp could comply with regulations worldwide, Standard No. 108

would need to move toward a beam pattern with more clearly defined

features in it for visual amiability. Such a move would recognize the

current reality of headlamp aiming inspection in the United States, and

ultimately enhance safety by increasing the objectivity and accuracy of

determining correct headlamp aim with the naked eye.

The Society of Automotive Engineers (SAE) has addressed the issue

of a modified beam pattern in SAE Standard J1735 Harmonized Vehicle

Headlamp Performance Requirement. SAE members from vehicle and lighting

manufacturers around the world have participated in this effort for the

sole purpose of developing a lower beam pattern that could be the model

for a world-wide specification, if not the specification itself. It is

similar, but not identical, to the European, Japanese and U.S. lower

beam patterns, combining important features of each, while trying not

to compromise features deemed essential by those regulatory

jurisdictions.

In summary, given the trend away from mechanical aiming by those

who aim headlamps and the desire to not offer a mechanically amiable

headlamp on vehicles, the optimal solution for improving headlamp aim

in the United States appears to be the development of a beam pattern

that provides an objective visual determination of the accuracy of that

aim.

II. Regulatory Negotiation

Due to the increasing complexity and formalization of the written

rulemaking process, it can be difficult for an agency to craft

effective regulatory solutions to certain problems. During the

rulemaking process, the participants may develop adversarial

relationships that prevent effective communication and creative

solutions. The exchange of ideas that can lead to solutions acceptable

to all interested groups sometimes do not occur in the traditional

notice and comment context. As the Administrative Conference of the

United States (ACUS) noted in its Recommendation 82-4:

Experience indicates that if the parties in interest work

together to negotiate the text of a proposed rule, they might be

able in some circumstances to identify the major issues, gauge their

importance to the respective [[Page 30508]] parties, identify the

information and data necessary to resolve the issues, and develop a

rule that is acceptable to the respective interests, all within the

contours of the substantive statute.

ACUS adopted this recommendation in ``Procedures for Negotiating

Proposed Regulations,'' 47 FR 30708. The thrust of the recommendation

is that representatives of all interests should be assembled to discuss

the issue and all potential solutions, reach consensus, and prepare a

proposed rule for consideration by the agency. After public comment on

any proposal issued by the agency, the group would reconvene to review

the comments and make recommendations for a final rule. This inclusive

process is intended to make the rule more acceptable to all affected

interests and prevent the need for petitions for reconsideration (and

litigation) that often follow issuance of a final rule.

The movement toward negotiated rulemaking gained impetus with

enactment of the Negotiated Rulemaking Act of 1990 (RegNeg), 5 U.S.C.

Sec. 561 et seq. In 1993, Executive Order 12866 (58 FR 51735) added to

this impetus:

In particular, before issuing a notice of proposed rulemaking,

each agency should, where appropriate, seek the involvement of those

who are intended to benefit from and those expected to be burdened

by any regulation * * * Each agency is also directed to explore and,

where appropriate, use consensual mechanisms for developing

regulations, including negotiated rulemaking.

(Sec. 6(a), p. 51740)

Although relatively new, negotiated rulemakings have been used

successfully by agencies within DOT: the Federal Aviation

Administration, Federal Highway Administration, Federal Railroad

Administration, and the United States Coast Guard. NHTSA now intends to

begin this process in a formal manner for the first time in

promulgating a Federal motor vehicle safety standard. It welcomes the

opportunity to work with those who will be affected directly by such a

rule, and is confident that the agency, industry, and the public will

benefit with the creation of an effective and reasonable regulation.

Pursuant to section 563(a) of RegNeg, an agency considering

rulemaking by negotiation should consider whether:

(1) There is need for the rule;

(2) There is a limited number of identifiable interests;

(3) These interests can be adequately represented by persons

willing to negotiate in good faith to reach a consensus;

(4) There is a reasonable likelihood that the committee will

reach consensus within a fixed period of time;

(5) The negotiated rulemaking procedure will not unreasonably

delay the notice of proposed rulemaking;

(6) The agency has adequate resources and is willing to commit

such resources to the process; and

(7) The agency is committed to use the result of the negotiation

in formulating a proposed rule if at all possible.

For the reasons stated in this Notice, NHTSA believes that these

criteria have been met with regard to headlamp amiability and beam

pattern issues.

The regulatory negotiation NHTSA proposes would be carried out by

an advisory committee (Committee) created under the Federal Advisory

Committee Act (FACA), as amended, 5 U.S.C. App., and in a manner that

reflects appropriate rulemaking directives, including pertinent

executive Orders. NHTSA will be represented on the Committee and will

take an active part in the negotiations as a Committee member. However,

pursuant to section 566(c) of RegNeg, those representing NHTSA would

not facilitate or otherwise chair the proceedings.

III. Procedures and Guidelines

The following proposed procedures and guidelines would apply to

NHTSA's negotiated rulemaking process, subject to appropriate changes

made as a result of comments received on this Notice or as are

determined to be necessary during the negotiating process.

(A) Facilitator: The Facilitator will not be involved with

substantive development of this regulation. This individual will chair

the negotiations, may offer alternative suggestions toward the desired

consensus, and will determine the feasibility of negotiating particular

issues. The Facilitator may ask members to submit additional

information or to reconsider their position. NHTSA has contracted with

the Federal Mediation and Conciliation Service for a Facilitator.

(B) Feasibility: NHTSA has examined the issues and interests

involved and has made a preliminary inquiry among representatives of

those interests to determine whether it is possible to reach agreement

on: (a) individuals to represent those interests; (b) the preliminary

scope of the issues to be addressed; and (c) a schedule for developing

a notice of proposed rulemaking. The results are sufficiently

encouraging to believe that a workable proposal could be developed, and

that there are potential participants who could adequately represent

the affected interests.

(C) Participants and Interests: The number of Committee

participants generally should not exceed 25. However, it is not

necessary that each individual or organization affected by a final rule

have its own representative on the Committee. Rather, each interest

must be adequately represented, and the Committee should be fairly

balanced. However, individuals who are not part of the Committee may

attend sessions and confer with or provide their views to Committee

members.

The following interests have been tentatively identified as those

that are likely to be significantly affected by the rule:

(1) Motor vehicle manufacturers

(2) Motor vehicle headlamp manufacturers

(3) Manufacturers of headlamp aiming devices

(4) International standards organizations

(5) State and Federal governments

(6) General public

NHTSA proposes that persons selected by the various interests be

named to the Committee. In addition to NHTSA, the following interests

have been tentatively identified as those that would supply Committee

members:

(1) American Automobile Manufacturers Association (AAMA)

(2) Association of International Automobile Manufacturers, Inc. (AIAM)

(3) Society of Automotive Engineers, Road Illumination Devices

Subcommittee

(4) Hopkins Manufacturing Corporation

(5) Groupe de Travail Brussels

(6) Liaison Committee for the Manufacturers of Automobile Equipment and

Spare Parts

(7) Japanese Automobile Standards Internationalization Center

(8) American Association of Motor Vehicle Administrators (AAMVA)

(9) National Automobile Dealers Association

(10) Automotive Service Association

(11) Advocates for Highway and Auto Safety

(12) Federal Highway Administration

As indicated previously in this Notice, NHTSA invites applications for

representation from any interests that will be affected by a final rule

on the subject but are not named in this list or who may not be

represented or be able to be represented by the interests on the list.

Such applications must be filed within thirty days from the date of

publication of this Notice, and must meet the requirements set forth

herein. Also, such interests should provide the name(s) of the

individual(s) they propose to represent their interest. As noted, the

Committee should not exceed 25 members.

(D) Good Faith: Participants must be committed to negotiate in good

faith. It [[Page 30509]] is therefore important that senior individuals

within each interest group be designated to represent that interest. No

individual will be required to ``bind'' the interest represented, but

the individual should be at a high enough level to represent the

interest with confidence. For this process to be successful, the

interests represented should be willing to accept the final Committee

product.

(E) Notice of Intent to Establish Advisory Committee and Request

for Comment: In accordance with the requirements of FACA, an agency of

the Federal government cannot establish or utilize a group of people in

the interest of obtaining consensus advice or recommendations unless

that group is chartered as a Federal advisory committee. It is the

purpose of this Notice to indicate NHTSA's intent to create a Federal

advisory committee, to identify the issues involved in the rulemaking,

to identify the interests affected by the rulemaking, to identify

potential participants who will adequately represent those interests,

and to ask for comment on the use of regulatory negotiation and on the

identification of the issues, interests, procedures, and participants.

(F) Requests for Representation: One purpose of this notice is to

determine whether interests exist that may be substantially affected by

a rule, but have not been represented in the list of prospective

Committee members. Commenters should identify such interests if they

exist. Each application or nomination to the Committee should include

(i) the name of the applicant or nominee and the interests such person

would represent; (ii) evidence that the applicant or nominee is

authorized to represent parties related to the interest the person

proposes to represent; and (iii) a written commitment that the

applicant or nominee would participate in good faith. If any additional

person or interest requests membership or representation on the

Committee, NHTSA shall determine (i) whether that interest will be

substantially affected by the rule, (ii) if such interest would be

adequately represented by an individual on the Committee, and (iii)

whether the requested organization should be added to the group or

whether interests can be consolidated to provide adequate

representation.

(G) Final Notice: After evaluating the comments received in

response to this Notice, NHTSA will issue a further notice announcing

the establishment of the Federal advisory committee, unless it

determines that such action is inappropriate in light of comments

received, and the composition of the Committee. After the Committee is

chartered, the negotiations should begin.

(H) Administrative Support and Meetings: Staff support would be

provided by NHTSA and meetings would take place in Washington, D.C.

unless agreed otherwise by the Committee.

(I) Tentative Schedule: If the Committee is established and

selected, NHTSA will publish a schedule for the first meeting in the

Federal Register. The first meeting will focus on procedural matters,

including dates, times, and locations of further meetings. Notice of

subsequent meetings would also be published in the Federal Register

before being held.

NHTSA expects that the Committee would reach consensus and prepare

a report recommending a proposed rule within ten months of the first

meeting. However, if unforeseen delays occur, the Administrator may

agree to an extension of that time if it is the consensus of the

Committee that additional time will result in agreement. The process

may end earlier if the Facilitator so recommends.

(J) Committee Procedures: Under the general guidance of the

Facilitator, and subject to legal requirements, the Committee would

establish the detailed procedures for meetings which it considers

appropriate.

(K) Records of Meetings: In accordance with FACA's requirements,

NHTSA would keep a summary record of all Committee meetings. This

record would be placed in Docket No. 95-28. Meetings of the Committee

would be open to the public to observe, but not to participate.

(L) Consensus: The goal of the negotiating process is consensus.

NHTSA proposes that the Committee would develop its own definition of

consensus, which may include unanimity, a simple majority, or

substantial agreement such that no member will disapprove the final

recommendation of the Committee. However, if the Committee does not

develop its own definition, consensus shall mean unanimous concurrence.

(M) Regulatory Approach: The Committee's first objective is to

prepare a report recommending a regulatory approach for resolving the

issues discussed in the BACKGROUND section of this notice. If consensus

is not obtained on some issues, the report should identify the areas of

agreement and disagreement, and explanations for any disagreement. It

is expected that participants will be mindful of cost/benefit

considerations.

NHTSA will issue a notice of proposed rulemaking based upon the

approach recommended by the Committee.

(N) Key Issues for Negotiation: NHTSA has reviewed correspondence,

reports, petitions, relevant data, and other information. Based on this

information and rulemaking requirements, NHTSA has tentatively

identified major issues that should be considered in this negotiated

rulemaking. Other issues related to headlamp amiability and beam

pattern not specifically listed in this Notice may be addressed as they

arise in the course of the negotiation. Comments are invited concerning

the appropriateness of these issues for consideration and whether other

issues should be added. These issues are:

1. Should NHTSA be involved in specifying headlamp amiability

requirements? Standard No. 108 applies only to the manufacture and sale

of new vehicles and new equipment. It is the States that specify

headlamp aim regulations for vehicles in service. Some States, at

present, specify procedures for visually aiming headlamps, even though

headlamps are not intended to be visually aimed. Is it appropriate for

NHTSA to try to develop a single approach to visual aim or any other

aim? Should NHTSA delete amiability requirements from Standard No. 108

and leave this subject to be regulated at the State level?

2. If negotiations produce a result, is it likely that the States

and individual inspection stations would follow the results to adjust

the aim of headlamps on vehicles in service, or would those groups

continue to use inappropriate procedures to aim headlamps? If they

would choose not to follow the procedures of the potential solution, is

there any reason to proceed with negotiations?

3. Is SAE Standard J1735 Harmonized Vehicle Headlamp Performance

Requirement acceptable to all parties as a starting point from which to

begin negotiating the details of a visual aim provision in Standard No.

108?

IV. Public Participation

NHTSA invites comments on all issues, procedures, guidelines,

interests, and suggested participants embodied in this Notice. All

comments and requests for participation should be submitted to the

Docket Clerk, NHTSA, Room 5109, 400 Seventh Street, S.W., Washington,

D.C. 20590.

[[Page 30510]] Issued on: June 7, 1995.

Barry Felrice,

Associate Administrator for Safety Performance Standards.

[FR Doc. 95-14329 Filed 6-7-95; 12:50 pm]

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