overview_of_rulemaking

A Brief Overview of the National Highway Traffic Safety Administration's Rulemaking Process

The National Highway Traffic Safety Administration (NHTSA), which is part of the U.S. Department of Transportation (DOT), is responsible for reducing traffic accidents and death and injuries to persons from traffic accidents. One of the most significant ways that the agency accomplishes this is through the issuance and enforcement of safety standards for motor vehicle and motor vehicle equipment—the Federal Motor Vehicle Safety Standards (FMVSS).

The first FMVSSs were initiated as a result of the Congress’ passage of the National Motor Vehicle Safety Act of 1966. Taking a cue from the public health community, these standards marked the beginning of a new type of requirement—one that regulated the vehicle rather than the operator. These requirements were the result of an approach that examined the cause of injuries, not the cause of accidents.

The Federal Motor Vehicle Safety Standards are considered minimum standards to which manufacturers must comply. Compliance is accomplished through self-certification, which requires manufacturers to exercise "due care" to ensure that their vehicles meet the specified tests. The due care clause allows manufacturers to certify their products through any test method that would insure compliance with the federal standard.

Since the promulgation of the initial standards, the agency has amended and created new requirements through the rulemaking process. The process can be examined through notices published in the Federal Register and in more detail through the examination of related hearings, research, petitions, and comments that form the foundation for these notices. This is all part of the regulatory activity that precedes the issuance or the amendment of a rule.

Once a foundation for an amendment or new rule has been established, the agency issues an Advanced Notice of Proposed Rulemaking (ANPRM) that summarizes its rationale and current position on the issue under consideration. An ANPRM can be based on prior research from any number of areas including government or private interests. An ANPRM can also be issued based on a Petition for Rulemaking.

A Petition for Rulemaking requesting amendments or a new safety standard can be submitted to the agency by any interested party. The agency is required to evaluate the petition and decide whether to proceed with the rulemaking process or deny the petition. As a part of the rulemaking process, the industry and other interested parties are requested to provide feedback to the agency by submitting comments regarding their proposals. These comments and submissions are filed in a docket that is established for each notice. After these comments are considered, NHTSA makes a decision to discontinue the rulemaking or move to the next step in the process and issue a Notice of Proposed Rulemaking (NPRM) or a Notice of Proposed Safety Standard. Important or controversial rulemaking proceedings often include public hearings that provide an additional forum for public comment on the proposals.

After NHTSA’s internal review of the submissions and comments, the agency again decides whether to discontinue the rulemaking or issue supplemental NPRMs or a final rule. Even after a final rule is issued, the rule may be reconsidered if an interested party files a Petition for Reconsideration. A Petition for Reconsideration requires that the agency review its decision and either confirm its position regarding the amendment or rule, revoke the rule, or revisit the rulemaking process to reformulate the rule.

An historical examination of the rulemaking and comments to the rulemaking on a particular issue or standard provides a context and understanding of how and why a regulation developed and the industry's position throughout this process, which is important for engineering and design, litigation, and future policy development.