26508 Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 /Rules and Regulations

$15 million, businesses with gross annual

revenues of more than $15 million but not

more than $40 million and businesses with

gross revenues of more than $40 million but

not more than $75 million. We will use these

definitions for estimating the potential

number of entities choosing to partition or

disaggregate or who may acquire licenses

through partitioning and disaggregation that

are small businesses.

It is not possible to predict how many

LMDS licensees meeting one of the above

definitions will be successful at auction and

subsequently decide to partition or

disaggregate. The Commission plans to issue

2 licenses each for 493 Basic Trading Areas

(BTAs). Thus, 986 licenses will be made

available for authorization. It is expected that

a significant number of successful bidders in

the LMDS auction will satisfy one of the

above definitions. There is only one

company, CellularVision USA, Inc.

(CellularVision), that is currently providing

LMDS video services. Although the

Commission does not collect data on annual

receipts, it is assumed that CellularVision is

a small business under all of the above

outlined definitions. Similarly, it is not

possible to determine how many of those

entities obtaining licenses through

partitioning and disaggregation will meet one

of the above definitions. However, it is

expected that many entities meeting one of

the above definitions will use partitioning

and disaggregation as a means to obtain

LMDS licenses at lower costs.

D. Summary of Projected Reporting,

Recordkeeping and Other Compliance

Requirements

The rules adopted in the Fourth R&O will

impose reporting and recordkeeping

requirements on small businesses seeking

licenses through partitioning and

disaggregation. The information requirements

will be used to determine whether the

licensee is a qualifying entity to obtain a

partitioned license or disaggregated

spectrum. This information will be given in

a one-time filing by any applicant requesting

such a license. The information will be

submitted on the FCC Form 702 which is

currently in use and has already received

Office of Management and Budget clearance.

The Commission estimates that the average

burden on the applicant is three hours for the

information necessary to complete these

forms. The Commission estimates that 75

percent of the respondents (which may

include small businesses) will contract out

the burden of responding. The Commission

estimates that it will take approximately 30

minutes to coordinate information with those

contractors. The remaining 25 percent of

respondents (which may include small

businesses) are estimated to employ in-house

staff to provide the information.

E. Steps Taken To Minimize Burdens on

Small Entities

The rules adopted in the Fourth R&O are

designed to implement Congress’ goal of

giving small businesses, as well as other

entities, the opportunity to participate in the

provision of spectrum-based services and are

consistent with the Communications Act’s

mandate to identify and eliminate market

entry barriers for entrepreneurs and small

businesses in the provision and ownership of

telecommunications services.

Allowing non-restricted partitioning and

disaggregation will facilitate market entry by

parties who may lack the financial resources

for participation in auctions, including small

businesses. Some small businesses may have

been unable to obtain LMDS licensees

through auction due to high bidding. By

allowing open partitioning and

disaggregation, small businesses will be able

to obtain licenses for smaller service areas

and smaller amounts of spectrum at

presumably reduced costs, thereby providing

a method for small businesses to enter the

LMDS marketplace.

Allowing geographic partitioning of LMDS

licenses by service areas defined by the

parties will provide an opportunity for small

businesses to obtain partitioned LMDS

license areas designed to serve smaller, niche

markets. This will permit small businesses to

enter the LMDS marketplace by reducing the

overall cost of acquiring a partitioned LMDS

license.

Allowing disaggregation of spectrum in

any amount will also promote participation

by small businesses who may seek to acquire

a smaller amount of LMDS spectrum tailored

to meet the needs of their proposed service.

F. Significant Alternatives Considered and

Rejected

The Commission considered and rejected

the following alternative proposals

concerning LMDS partitioning and

disaggregation.

The Commission rejected a plan set forth

by WebCel Communications, Inc. (WebCel).

Instead of requiring all partitioning and

disaggregation transactions to comply with

our existing assignment procedures, WebCel

suggested that the Commission permit parties

to enter into agreements to partition and

disaggregate without prior Commission

approval so long as notification is given to

the Commission by the original LMDS

licensee. The Commission considers

partitioning and disaggregation transactions

to be essentially partial assignments of

license, and Commission review and

approval is necessary to ensure compliance

with its rules. Thus, the Commission

concluded that WebCel’s proposed model is

not an appropriate construct for

characterizing partitioning and

disaggregation transactions.

Finally, the Commission rejected a

suggestion by CellularVision that LMDS

partitionees and disaggregatees should be

allowed to qualify for a renewal expectancy

which is based upon their reduced license

period. The Commission found that this

approach would contradict its construction

requirements for LMDS partitionees and

disaggregatees which require these entities to

meet a separate substantial service

requirement by the end of their license term.

Partitionees and disaggregatees are not

permitted to meet a scaled-down substantial

service construction requirement simply

because of the fact that they had a license

term of less than ten years. The Commission

found that, by requiring LMDS partitionees

and disaggregatees to meet the same

substantial service requirement for renewal

expectancy as all other licensees, LMDS

licensees will be encouraged to quickly

develop their markets and fully utilize their

available spectrum.

G. Report to Congress

The Commission shall include a copy of

this Final Regulatory Flexibility Analysis,

along with this Fourth R&O, in a report to be

sent to Congress pursuant to the Small

Business Regulatory Enforcement Fairness

Act of 1996, 5 U.S.C. 801(a)(1)(A).

[FR Doc. 98–12667 Filed 5–8–98; 5:08 pm]

BILLING CODE 6712–01–U

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.

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
Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 /Rules and Regulations 26509

1At 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

Continued

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,
26510 Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 /Rules and Regulations

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.

2As 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.

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.

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
Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 /Rules and Regulations 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 Europe ́ens 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 SaintGobain, 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 costbenefit 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
26512 Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 /Rules and Regulations

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
Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 /Rules and Regulations 26513

3NHTSA 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.

4Public notice that NHTSA and the

Environmental Protection Agency would participate

in negotiations regarding an international

agreement was published March 8, 1994 (59 FR

10846).

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.

• 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.

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
26514 Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 /Rules and Regulations

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.

BILLING CODE 4910–59–P
Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 /Rules and Regulations 26515

BILLING CODE 4910–59–C
26516 Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 /Rules and Regulations

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
Federal Register / Vol. 63, No. 92 /Wednesday, May 13, 1998 /Rules and Regulations 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]

BILLING CODE 4910–59–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AE06

Endangered and Threatened Wildlife

and Plants; Final Rule to List the

Preble’s Meadow Jumping Mouse as a

Threatened Species

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The U.S. Fish and Wildlife

Service determines the Preble’s meadow

jumping mouse (Zapus hudsonius

preblei) to be a threatened species

pursuant to the Endangered Species Act

(Act) of 1973, as amended. The Preble’s

meadow jumping mouse, a small rodent

in the family Zapodidae, is known to

occur in seven counties in Colorado and

two counties in Wyoming. Historical

records document its former presence in

additional counties in Colorado and

Wyoming. The Preble’s meadow

jumping mouse lives primarily in

heavily vegetated riparian habitats.

Habitat loss and degradation caused by

agricultural, residential, commercial,

and industrial development imperil its

continued existence. This action

implements the protection of the Act for

Preble’s meadow jumping mouse.

DATES: This rule is effective June 12,

1998.

ADDRESSES: The complete file for this

rule is available for public inspection,

by appointment, during normal business

hours at the U.S. Fish and Wildlife

Service’s Colorado Field Office, 755

Parfet Street, Suite 361, Lakewood,

Colorado.

FOR FURTHER INFORMATION CONTACT:

LeRoy W. Carlson, Field Supervisor,

Colorado Field Office, U.S. Fish and

Wildlife Service, P.O. Box 25486,

Denver Federal Center, Denver,

Colorado 80225–0207 (telephone 303/

275–2370).

SUPPLEMENTARY INFORMATION:

Background

The Preble’s meadow jumping mouse

(Zapus hudsonius preblei) (Preble’s) is a

small rodent in the family Zapodidae

and is 1 of 12 recognized subspecies of

the species Z. hudsonius, the meadow

jumping mouse (Krutzsch 1954,

Whitaker 1972, Hafner 1981). The

family Zapus consists of small to

medium-sized mice with long tails and

long feet adapted for jumping. Krutzsch

(1954) provided a revision of the

taxonomy of the genus Zapus in North

America and recognized three living

species, Z. hudsonius, Z. trinotatus, and

Z. princeps. As the most recent revision

of Z. hudsonius, this stands as the

authority for taxonomy. Fitzgerald et al.

(1994) described Z. hudsonius as

greyish to yellowish-brown in color

with an indistinct mid-dorsal band of

darker hair and paler sides, large

hindlegs and hindfeet, and a sparsely

haired tail that accounts for more than

60 percent of the total length.

In his 1899 revision of North

American jumping mice, E. A. Preble

referred specimens of the meadow

jumping mouse from Colorado and

southeastern Wyoming to the subspecies

Z. h. campestris (Preble 1899, cited by

Krutzsch 1954). Krutzsch (1954)

described and named Z. h. preblei as

separate from Z. h. campestris,

indicating as the holotype a specimen

obtained by E. A. Preble in July 1895

from Loveland, Larimer County,

Colorado. All records of Preble’s are

from southeastern Wyoming and eastern

Colorado. The coloration of Preble’s was

described by Krutzsch (1954) as ‘‘color

dull, back from near Clay Color to near

Tawny-Olive with a mixture of black

hair forming poorly defined dorsal

band; sides lighter than back from near

Clay Color to near Cinnamon-Buff;

lateral line distinct and clear

Ochraceous-Buff; belly white,

sometimes faint wash of clear

Ochraceous-Buff; tail bicolored,

brownish to light brownish-black above,

grayish-white to yellowish-white

below’’ (capitalized color terms refer to

a scientific standard, while lower case

terms reflect common usage). Krutzsch

(1954) also provided a technical

description of the skull of Preble’s,

which can prove important to its

identification.

There is a similarity of appearance

between the Preble’s meadow jumping

mouse and Z. princeps, which also

occurs in portions of Colorado and

Wyoming. In general, Z. hudsonius may

be distinguished from Z. princeps by

average external size and cranial size

(Krutzsch 1954, Whitaker 1972).

Preble’s may be distinguished from Z.

princeps by a less pronounced middorsal band, smaller average total

length, and a skull that is small and

light with a narrower braincase and

smaller molars (Fitzgerald et al. 1994).

Since coloration of the mid-dorsal band

and total length are not definitive

characteristics, skull measurements are

most useful for positive identification.

Ranges of the Preble’s and Z. princeps

are not known to overlap in Colorado

but the relationships between respective

ranges in Wyoming is less clear (Garber

1995, Armstrong 1972).

Krutzsch (1954) commented on the

presence of physical habitat barriers and

lack of known intergradation between

the Preble’s meadow jumping mouse,

known only from eastern Colorado and

southeastern Wyoming, and other

identified subspecies of Z. hudsonius

ranging to the east and north. Among

recognized subspecies, Krutzsch found

that Preble’s most closely resembled Z.

campestris from northeastern Wyoming,

but summarized differences in

coloration and skull characteristics.

Krutzsch concluded that considerable

differences existed between Preble’s and

related subspecies. In contrast, Jones

(1981) studied specific and intraspecific

relationships within Zapus and

recognized no subspecies of Z.

hudsonius. Jones did, however cite that

Z. hudsonius populations in Colorado

and southeastern Wyoming were

apparently isolated from other

populations. Hafner et al. (1981)

described an additional subspecies Z.

hudsonius luteus present in New

Mexico and Arizona and differentiated

it from Preble’s. This subspecies was

previously considered Z. princeps

luteus, a subspecies of the western

jumping mouse. Recently, Z. h. luteus

was found in Las Animas County,

Colorado (Riggs et al. 1997), the furthest

north that the subspecies has been

recorded, but over 100 miles south of

the confirmed range of Preble’s in

Colorado.

Results from genetic analysis of mice

from Rocky Flats Environmental

Technology Site (Rocky Flats) in

Jefferson County, Colorado, Z.