Lamps, Reflective Devices and Associated Equipment; Establishment of Negotiated Rulemaking Advisory Committee Publication: Federal Register Agency: National Highway Traffic Safety Administration Byline: Barry Felrice Date: 9 June 1995 Subject: American Government • Safety Topic:

[Federal Register Volume 60, Number 111 (Friday, June 9, 1995)]
[Proposed Rules]
[Pages 30506-30510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14329]



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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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