Federal Motor Vehicle Safety Standards; Roof Crush Resistance |
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Daniel C. Smith
National Highway Traffic Safety Administration
March 22, 2011
[Federal Register: March 22, 2011 (Volume 76, Number 55)]
[Proposed Rules]
[Page 15903-15919]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22mr11-37]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. NHTSA-2009-0093]
Federal Motor Vehicle Safety Standards; Roof Crush Resistance
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.
ACTION: Response to petition for reconsideration.
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SUMMARY: This document responds to a petition for reconsideration of a
final rule that upgraded the agency's safety standard on roof crush
resistance. The petition was submitted by the National Truck Equipment
Association (NTEA). After carefully considering the petition, we are
denying it.
FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call
Christopher J. Wiacek, NHTSA Office of Crashworthiness Standards,
telephone 202-366-4801. For legal issues, you may call J. Edward
Glancy, NHTSA Office of Chief Counsel, telephone 202-366-2992. You may
send mail to these officials at the National Highway Traffic Safety
Administration, 1200 New Jersey Avenue, SE., West Building, Washington,
DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Multi-Stage Vehicles and the Multi-Stage Certification Scheme
1. Multi-Stage Vehicles
2. Safety Standards and Certification
[[Page 15904]]
3. 2005 and 2006 Rules on Certification of Vehicles Built in Two
or More Stages
B. May 2009 Final Rule Upgrading FMVSS No. 216
C. Challenge by NTEA
D. Consent Motion To Stay Briefing Schedule
E. April 2010 Further Response to NTEA Comments
II. NTEA Petition for Reconsideration
III. Response to NTEA's Petition
A. Introduction
B. NTEA's Petition Is Unsupported by Evidence of an Actual
Problem
C. In extending FMVSS No. 216 to Heavier Vehicles, NHTSA Only
Included Those Multi-Stage Vehicles for Which the Incomplete Vehicle
Manufacturer Provides an Intact Roof
D. The Typical Modifications Made by Final-Stage Manufacturers
Do Not Affect Roof Strength
E. Final-Stage Truck Manufacturers Have Opportunities That
Permit Them To Certify Their Vehicles to FMVSS No. 216a Without
Testing
1. NHTSA Believes That Pass-Through Certification Is Available
on the GMT-355 IVD (2006)
2. Certification Alternatives Are Available to Final-Stage
Manufacturers
F. FMVSS No. 216a Does Not Place ``Undue'' Certification Risk on
Final-Stage Manufacturers
G. NTEA's Claim that NHTSA Needs To Test Multi-Stage Vehicles in
Support of Its Regulatory Analysis Ignores the Fact That We Excluded
the Trucks That Could Cause Compliance or Certification Issues for
Final-Stage Manufacturers
H. All Multi-Stage Vehicles Should Not Be Excluded
IV. Conclusion
I. Background
A. Multi-Stage Vehicles and the Multi-Stage Certification Scheme
1. Multi-Stage Vehicles
Multi-stage vehicles are motor vehicles that are produced in two or
more stages. These vehicles are not produced by a single manufacturer
on an assembly line as is the typical passenger car or sport utility
vehicle. Instead, one manufacturer produces an ``incomplete vehicle''
which requires further manufacturing operations to become a completed
vehicle. As defined in 49 CFR 567.3, an incomplete vehicle is an
assemblage consisting, at a minimum, of chassis (including the frame)
structure, power train, steering system, suspension system, and braking
system, in the state that those systems are to be part of the completed
vehicle, but requires further manufacturing operations to become a
completed vehicle.\1\
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\1\ The definition of ``incomplete vehicle'' also includes
incomplete trailers, and many manufacturers of incomplete trailers
are not large businesses.
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Most incomplete vehicles are manufactured by large or substantial
manufacturers, such as General Motors Company (``GM''), Ford Motor
Company (``Ford''), Chrysler Group LLC (``Chrysler''), Navistar
International Corporation, and Freightliner. Most final-stage
manufacturers are small businesses.\2\ Multi-stage vehicles are aimed
at a variety of niche markets, most of which are too small to be
serviced economically by single-stage manufacturers, which tend to have
large assembly facilities in a small number of locations.
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\2\ As defined by The Regulatory Flexibility Act of 1980, as
amended, 5 U.S.C. 601(3) (2011).
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In terms of degree of completeness, the spectrum of incomplete
vehicles ranges from a stripped chassis to a chassis-cab. A stripped
chassis is an incomplete vehicle without an occupant compartment. A
chassis-cab is an incomplete vehicle, with a completed occupant
compartment, that requires only the addition of cargo-carrying, work-
performing, or load-bearing components to perform its intended
functions. See 49 CFR 567.3. In appearance, a chassis-cab looks like a
pickup truck without a box or truck bed behind the cab. A type of
incomplete vehicle that falls between stripped chassis and chassis-cabs
on this spectrum is a chassis cutaway, which is an incomplete vehicle
delivered with a partial occupant compartment that does not have a rear
wall. A chassis cutaway may be visualized as a pickup truck or van
without a rear wall behind the driver and without a box or truck bed
behind the cab.
In a typical situation, the incomplete vehicle is delivered to the
final-stage manufacturer which adds work-performing or cargo-carrying
components to complete the vehicle. For example, the incomplete vehicle
may be a chassis-cab, i.e., have a cab, but nothing built on the frame
behind the cab. As completed, it may be a dry freight van (box truck),
dump truck, tow truck, or plumber's truck. A cutaway may be completed
into a vehicle in which the driver can enter the rear area without
leaving the vehicle, such as a small airport shuttle, a small
recreation vehicle, or some service trucks used by tradesmen. A
stripped chassis may be completed into a bus or large recreation
vehicle.
In some cases, there may also be intermediate-stage manufacturers
involved in the production of a multi-stage motor vehicle.
2. Safety Standards and Certification
NHTSA issues Federal motor vehicle safety standards (FMVSS)
applicable to new motor vehicles and certain items of motor vehicle
equipment under the authority of the National Traffic and Motor Vehicle
Safety Act, as amended and codified as Chapter 301 of Title 49 of the
United States Code, ``Motor Vehicle Safety'' (Vehicle Safety Act).\3\
Manufacturers are prohibited from manufacturing for sale, selling or
importing into the United States motor vehicles and equipment subject
to an applicable FMVSS unless the vehicle or equipment complies with
the standard and is covered by a certification issued pursuant to 49
U.S.C. 30115.\4\ This prohibition is not absolute. The prohibition on
selling non-compliant vehicles does not apply to a person who
establishes that the person had no reason to know, despite exercising
reasonable care, that a motor vehicle or equipment does not comply with
applicable FMVSSs. See United States v. Chrysler Corp., 158 F.3d 1350,
1355 (DC Cir. 1998).
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\3\ 49 U.S.C. 30101 et seq.
\4\ 49 U.S.C. 30112(a).
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Under the certification provision of the Vehicle Safety Act, a
manufacturer is required to certify that the vehicle or equipment
complies with applicable FMVSSs. A person may not issue the
certificate, if in exercising reasonable care, the person has reason to
know that the certificate is false or misleading in a material respect.
The certification provision recognizes distributions of certification
responsibilities for multi-stage vehicles between final-stage and
incomplete motor vehicle manufacturers.\5\
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\5\ The statute provides in pertinent part: If the intermediate
or final-stage manufacturer elects to assume responsibility for
compliance with the standard covered by the documentation provided
by an incomplete motor vehicle manufacturer, the intermediate or
final-stage manufacturer shall notify the incomplete motor vehicle
manufacturer in writing within a reasonable time of affixing the
certification label. 49 U.S.C. 30115(b).
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The Vehicle Safety Act employs a self-certification process, which
imposes responsibility on the manufacturer(s) to certify the vehicle or
equipment item as complying with the applicable FMVSS. In this process,
the manufacturer(s) do not submit information for certification to
NHTSA and NHTSA does not certify any motor vehicles or motor vehicle
equipment as complying with applicable FMVSS. See 73 FR 79207, 79212
(Dec 24, 2008).
Many of NHTSA's most important safety standards specify performance
requirements in the context of a crash test or some other kind of test
that may
[[Page 15905]]
significantly damage the tested vehicle. The specific tests specified
in the agency's crashworthiness standards are carefully developed to
simulate real world crashes, thereby assuring that vehicle occupants
are provided protection in actual driving situations.
NHTSA's motor vehicle safety standards contain the test conditions
and procedures that the agency will use to evaluate the performance of
the vehicle or equipment being tested for compliance with the
particular safety standard. NHTSA follows these specified test
procedures and conditions when conducting its compliance testing.
However, manufacturers are not required to test their products in the
manner specified in the relevant safety standard, or even to test the
product at all, as their basis for certifying that the product complies
with all relevant standards.
A manufacturer may evaluate its products in various ways to
determine whether the vehicle or equipment will comply with the safety
standards and to provide a basis for its certification of compliance.
Depending on the circumstances, the manufacturer may be able to base
its certification on actual testing (according to the procedure
specified in the standard or some other procedure), computer
simulation, engineering analysis, technical judgment or other means.\6\
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\6\ 71 FR 28168, 28183-28184 (May 15, 2006).
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NHTSA has developed regulations for certification and specific
certification regulations for multi-stage vehicles. The certification
process is governed by 49 CFR part 567 Certification. 49 CFR 567.5 sets
forth the certification requirements for manufacturers of vehicles
manufactured in two or more stages. Certification responsibilities for
the applicable FMVSSs are communicated between incomplete vehicle
manufacturers and final-stage manufacturers with the use of an
incomplete vehicle document (IVD). Each manufacturer of an incomplete
vehicle, with limited exceptions,\7\ assumes responsibility for
certification-related duties under the Vehicle Safety Act with respect
to the vehicle as further manufactured or completed by the final-stage
manufacturer, to the extent that the vehicle is completed in accordance
with the IVD.\8\
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\7\ See 70 FR 7414, 7432-33 (February 14, 2005); 49 CFR 567.5(b)
and (c).
\8\ 49 CFR 567.5(b)(1).
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Final-stage manufacturers have complementary duties. Pursuant to 49
CFR 567.5(d), final-stage manufacturers assume responsibility for
certification-related matters under the Vehicle Safety Act, except to
the extent that the incomplete vehicle manufacturer has expressly
assumed responsibility for standards related to systems and components
it supplied and except to the extent that the final-stage manufacturer
completed the vehicle in accordance with the prior manufacturers' IVD
or any addendum furnished pursuant to 49 CFR part 568, as to the FMVSSs
fully addressed therein.\9\
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\9\ 49 CFR 567.5(d)(1).
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The incomplete vehicle manufacturer furnishes an IVD for incomplete
vehicles pursuant to 49 CFR 568.4. For each applicable FMVSS, the
incomplete vehicle manufacturer makes one of three affirmative
statements in the IVD: (1) A Type 1 statement that the vehicle when
completed will conform to the standard if no alterations are made in
identified components; (2) a Type 2 statement that sets forth the
specific conditions of final manufacture under which the incomplete
vehicle manufacturer specifies that the completed vehicle will conform
to the standard; or (3) a Type 3 statement that conformity to the
standard cannot be determined based on the incomplete vehicle as
supplied, and the incomplete vehicle manufacturer makes no
representation as to conformity with the standard.
When the IVD makes a Type 1 or Type 2 statement, there is ``pass-
through'' certification unless a subsequent manufacturer manufactures
the vehicle in a way as to violate the language in the IVD. The final-
stage manufacturer can rely on the IVD to certify the vehicle to a
particular standard.
If a vehicle that is completed and certified in accordance with the
agency's regulations is altered by an individual or manufacturer before
the first retail sale, that individual or manufacturer is known as a
vehicle ``alterer.'' \10\ An alterer has different requirements
detailed in 49 CFR 567.7. In essence, an alterer must certify and affix
a label stating that the vehicle was altered and remains in compliance
with all applicable FMVSS affected by the alteration.\11\
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\10\ 49 CFR 567.3
\11\ While NTEA's petition for reconsideration combines alterers
and final-stage manufacturers into one definition, NHTSA notes that
the two types are different and subject to different regulations.
Namely, an alterer will not usually receive an IVD or have the
potential for pass-through certification. As such, NHTSA will refer
to these two entities separately in this document.
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3. 2005 and 2006 Rules on Certification of Vehicles Built in Two or
More Stages
On February 14, 2005, NHTSA published in the Federal Register (70
FR 7414) a final rule amending four different parts of Title 49 Code of
Federal Regulations to address various certification issues related to
vehicles built in two or more stages. Among other things, the rule
expanded the application of pass-through certification, which, as
adopted in the 1970s applied only to chassis-cabs, so that pass-through
certification can be used for multi-stage vehicles based on other types
of incomplete vehicles.\12\
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\12\ See 49 CFR 567.5 (1977 and 1978); 42 FR 37814 (July 25,
1977).
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In the preamble to the February 2005 final rule, and in other
documents in that rulemaking, NHTSA discussed the history of issues
related to the certification of vehicles built in two or more stages,
which have long been sources of contention to many, including between
incomplete vehicle manufacturers and final-stage manufacturers.
NTEA petitioned for reconsideration of the February 2005 multi-
stage certification final rule. On May 15, 2006, NHTSA responded to
that organization's petition in a final rule; response to petition for
reconsideration published in the Federal Register (71 FR 28168). While
the agency made some changes in the February 2005 final rule in
response to the petition, it denied the remainder of the petition for
reconsideration that addressed issues regarding certification of multi-
stage vehicles and responsibility for recalls of multi-stage vehicles.
In its petition for reconsideration of the February 2005
certification final rule, NTEA challenged the regulatory scheme of
certifying multi-stage vehicles.\13\ It repeated its historical mantra
that the provided IVDs are unworkable, insufficient, and that it is not
possible for a final-stage manufacturer to comply with the agency's
multi-stage certification regulations. Furthermore, NTEA argued that
even if compliance were possible, it would be economically ruinous to
NTEA's members.
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\13\ We note that NTEA submitted its comments on NHTSA's notice
of proposed rulemaking (``NPRM'') to upgrade the roof crush
resistance standard in November 2005. Those comments, which
addressed a number of multi-stage issues, were thus submitted after
the agency had published its February 2005 final rule on
certification of multi-stage vehicles but before NHTSA responded to
NTEA's petition for reconsideration of the certification rule on May
15, 2006.
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In denying most aspects of NTEA's petition for reconsideration,
NHTSA provided detailed responses to these and other arguments. We
explained that certification is important for safety and that the
certification scheme is ``workable.''
[[Page 15906]]
As part of responding to NTEA's claim in its petition to the 2005
Rule that the existing IVD's are not workable, we carefully examined
the certification statements included in an IVD that NTEA appended to
its petition.\14\ The IVD was for the General Motors (GM) C/K chassis-
cab (this is comparable to the full size GM pickup trucks). We analyzed
certification statements for FMVSS Nos. 105, Hydraulic and Electric
Brake Systems; 135, Light Vehicle Brake Systems; 204, Steering Control
Rearward Displacement; 201, Occupant Protection in Interior Impact;
212, Windshield Mounting; 219, Windshield Zone Intrusion; 214, Side
Impact Protection; 208, Occupant Crash Protection; 216, Roof Crush
Resistance; and 301, Fuel System Integrity. In each instance, we showed
why the IVD was workable and why various limitations were reasonable.
We also explained that issues regarding impracticability should be
decided in the context of rulemaking for each FMVSS.\15\
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\14\ 71 FR at 28177-28183 (section titled ``The Existing IVDs
Are Workable'').
\15\ 71 FR at 28186.
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As we further explained, in recognition of the fact that incomplete
vehicle manufacturers do not control work performed by final-stage
manufacturers and can fairly anticipate only some things but not
everything done to the incomplete vehicle by final-stage manufacturers,
the regulatory system of ``pass-through'' certification in which the
final-stage manufacturers have responsibility for certification of the
vehicle \16\ but may rely on IVDs is reasonable. The IVD commonly
provides the basis for the final-stage manufacturer's certification
with enumerated FMVSS. The IVD is a general document that accompanies
the incomplete vehicle, and typically is not limited to one application
(addition of one type of body or one type of equipment), but contains
limits and conditions in light of the nature and capacity of the
chassis and potential problems resulting from completion of an
incomplete vehicle.
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\16\ Incomplete vehicles are classified as original equipment
items. 70 FR 7414, 7418 (Feb. 14, 2005). See 49 U.S.C. Sec.
30102(a) (definitions of motor vehicle and motor vehicle equipment).
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We stated that NTEA sought to remove the certification
responsibility from final-stage manufacturers and impose much of that
responsibility on incomplete vehicle manufacturers. Also, we explained
that NTEA's petition ignored the fact that incomplete vehicle
manufacturers do not control what final-stage manufacturers do with the
incomplete vehicles.
As we noted, a system of pass-through certification has existed for
more than 25 years, and in that time many multi-stage vehicles have
been built and certified by final-stage manufacturers. This fact alone
indicates that the system is workable and operates as intended.
Moreover, as we pointed out, the availability of multi-stage vehicles
belies NTEA's position.\17\ And, contrary to that petitioner's
position, market forces create business reasons for incomplete vehicle
manufacturers to provide workable IVDs. We noted that NTEA's argument
ignores the fact that the system is not broken, as evidenced by the
many types of multi-stage vehicles that are being manufactured and
offered for sale, including those manufactured by NTEA members. These
include ambulances, service trucks, small school buses, mid-size buses,
tow trucks and vans.\18\ The fact that vehicles such as these are being
made indicates that the IVDs are workable. We also noted that NTEA
ignored the cooperative relationships between incomplete and final-
stage manufacturers.\19\
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\17\ 71 FR at 28176 (section titled ``The Availability of
Multistage Vehicles Belies NTEA's Position'') and at 28184-85
(section titled ``NHTSA's Market Forces Argument Is Justified and
Consistent with the Multistage Vehicle Market'').
\18\ See, e.g., NTEA comments, NHTSA-2005-22143-0108, p.1.
\19\ We cited the example of General Motors' relationships with
final-stage manufacturers it refers to as ``Special Vehicle
Manufacturers.'' 71 FR at 28185.
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We also explained that many resources are available to final-stage
manufacturers.\20\ As a group, final-stage manufacturers do not operate
in an informational vacuum. In addition to the IVDs, these resources
include upfitter \21\ guides from incomplete vehicle manufacturers,
incomplete vehicle manufacturer help lines, the final-stage
manufacturers' own experience and judgment, and commercially available
software.
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\20\ 71 FR at 28183-28184 (section titled ``Additional Resources
Available to Final-Stage Manufacturers'').
\21\ Final-stage manufacturers are sometimes referred to as
``upfitters'' in the trade. See generally 71 FR at 28174.
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In our May 15, 2006 response to petitions for reconsideration of
the February 2005 rule, we explained that certification serves an
important safety function in the multi-stage vehicle business. Many
multi-stage vehicles carry people and important cargo--from school
children on school buses to liquid fuel on propane and gasoline trucks.
The safety need for certification of compliance with FMVSS in these
types of vehicles is uncontroverted.\22\
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\22\ See 71 FR at 28175-28176.
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B. May 2009 Final Rule Upgrading FMVSS No. 216, Roof Crush Resistance
The Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users (SAFETEA-LU), Public Law 109-59, added a
section to the Vehicle Safety Act titled Vehicle rollover prevention
and crash mitigation, codified at 49 U.S.C. 30128. Subsection (a)
required the Secretary to initiate rulemaking proceedings, for the
purpose of establishing rules or standards that will reduce vehicle
rollover crashes and mitigate deaths and injuries associated with such
crashes for motor vehicles with a gross vehicle weight rating (GVWR) of
not more than 4,536 kilograms (10,000 pounds). Subsection (d) required
that one of the rulemaking proceedings initiated under subsection (a)
was to establish performance criteria to upgrade FMVSS No. 216 relating
to roof strength for driver and passenger sides, and expressly required
issuance of a final rule.
On May 12, 2009, as part of a comprehensive plan for reducing the
serious risk of rollover crashes and the risk of death and serious
injury in those crashes, NHTSA published in the Federal Register (74 FR
22348) a final rule substantially upgrading FMVSS No. 216, Roof Crush
Resistance. The upgraded standard is designated FMVSS No. 216a, Roof
Crush Resistance; Upgraded Standard.
First, for the vehicles previously subject to the standard, i.e.,
passenger cars and multipurpose passenger vehicles, trucks and buses
with a Gross Vehicle Weight Rating (GVWR) of 2,722 kilograms (6,000
pounds) \23\ or less, the rule doubled the amount of force the
vehicle's roof structure must withstand in the specified test, from 1.5
times the vehicle's unloaded weight to 3.0 times the vehicle's unloaded
weight. We note that this value is sometimes referred to as the
strength-to-weight ratio (SWR), e.g., a SWR of 1.5, 2.0, 2.5, and so
forth.
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\23\ FMVSS No. 216(a) references both kilograms and pounds. For
ease of reading, we will refer to the pound measurement in this
document.
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Second, the rule extended the applicability of the standard so that
it will also apply to vehicles with a GVWR greater than 6,000 pounds,
but not greater than 10,000 pounds. The rule established a force
requirement of 1.5 times the vehicle's unloaded weight for these newly
included vehicles.
Third, the rule required all of the above vehicles to meet the
specified force requirements in a two-sided test, instead of a single-
sided test. For the two-sided test, the same vehicle must meet the
force requirements when tested
[[Page 15907]]
first on one side and then on the other side of the vehicle.
Fourth, the rule established a new requirement for maintenance of
headroom, i.e., survival space, during testing in addition to the
existing limit on the amount of roof crush.
NHTSA included a number of special provisions to address the
concerns of multi-stage manufacturers, alterers, and small volume
manufacturers. The rule excluded from FMVSS No. 216a multi-stage trucks
with a GVWR greater than 6,000 pounds not built using a chassis-cab or
using an incomplete vehicle with a full exterior van body, i.e., NHTSA
extended standard No. 216a to only multi-stage trucks in this weight
range for which the incomplete vehicle manufacturer provided a
completed roof structure.
The rule permitted vehicles manufactured in two or more stages,
other than chassis-cabs, and vehicles that are changed in certain ways
to raise the height of the roof, to be certified to the roof crush
requirements of FMVSS No. 220, School Bus Rollover Protection, instead
of FMVSS No. 216a.
The regulation added a test specification that provided for the
removal of added structures prior to testing on vehicles built on a
chassis-cab incomplete vehicle if some portion of the added body
structure is above the height of the incomplete vehicle. It also
provided additional leadtime for vehicles produced in two or more
stages and altered vehicles.\24\
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\24\ The foregoing presents some highlights. The reader is
referred to the entire document and subsequent documents, including
a further response to NTEA's comment and a response to petitions for
reconsideration.
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C. Challenge by NTEA
NTEA filed a petition for review of the May 2009 final rule in the
United States Court of Appeals for the Sixth Circuit. That organization
had submitted comments during the rulemaking opposing the agency's
proposed revisions with respect to multi-stage vehicles.
D. Consent Motion To Stay Briefing Schedule
NHTSA filed with the Court a motion for a stay of the briefing
schedule. The agency stated that it believed the Court's consideration
of the challenge by NTEA would be facilitated by a fuller response to
the comments that organization had submitted during the rulemaking,
which would permit both NTEA and the Court to more fully address the
agency's rationale. NHTSA also noted that petitions for reconsideration
of the rule were pending before the agency. NTEA consented to the
motion and the Court granted a six-month stay of the briefing schedule
on October 2, 2009.
E. April 2010 Further Response to NTEA Comments
On April 7, 2010, NHTSA published in the Federal Register (75 FR
17590) a document providing a further response to the comments
submitted by NTEA in the roof crush resistance rulemaking (hereinafter
referred to as the ``Further Response''). The agency also published two
other documents related to the May 2009 final rule. One of those
documents denied two petitions for reconsideration of that rule.\25\
Those petitions requested, among other things, that the agency apply
the same, more stringent strength-to-weight ratio requirement to
heavier light vehicles, i.e., ones with a GVWR greater than 6,000
pounds as it had applied to other light vehicles. The other document
was a correcting rule.\26\
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\25\ 75 FR 17605 (April 7, 2010).
\26\ 75 FR 17604 (April 7, 2010).
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In the Further Response, we provided a detailed discussion of the
multi-stage issues in the rulemaking to upgrade FMVSS No. 216. Among
other things, we discussed a section included in the NPRM concerning
multi-stage issues, provided an overview of the comments we received on
multi-stage issues, including comments submitted by NTEA, the Advocates
for Highway Safety (``Advocates''), National Mobility Equipment Dealers
Association (``NMEDA'') and Recreational Vehicle Industry Association
(``RVIA''). We also discussed our response to the comments about multi-
stage issues included in the preamble to our May 2009 final rule.
In the Further Response, we provided a detailed further response to
NTEA's comments. We explained that, as a general matter, NTEA's
comments on the agency's proposal to upgrade FMVSS No. 216 centered on
two premises: (1) NHTSA's assumption that pass-through certification is
available is invalid; and (2) because NHTSA's pass-through
certification scheme is invalid, NHTSA's analysis of the rule's impact
and costs are flawed. The end result, according to NTEA, was that
NHTSA's regulation on roof crush is impracticable for multi-stage
vehicles, and, therefore, NHTSA's roof crush regulations should not
include any requirements for multi-stage vehicles.
We noted that to reach NTEA's conclusion--FMVSS No. 216a should not
apply to multi-stage vehicles--one has to be of the view that the
certification scheme for multi-stage vehicles, which has been in place
for several decades, is unworkable and invalid, as applied to
requirements for chassis-cabs under FMVSS No. 216a.\27\
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\27\ See 71 FR at 28169-28171.
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We rejected NTEA's arguments as to multi-stage vehicles covered by
the regulation. We noted that while NTEA has repeatedly provided
pessimistic claims that the present certification scheme for multi-
stage vehicles is invalid and unworkable, the availability of multi-
stage vehicles belies that claim. There are many multi-stage vehicles
on the road that have been certified to a number of standards, and the
final-stage manufacturers are still in business. There are large
numbers of multi-stage vehicles, such as school buses, box trucks, work
trucks, flatbed and stake trucks, tow trucks, dump trucks, and gasoline
tank trucks on the road.
We also noted that final-stage manufacturers have certified multi-
stage vehicles with a GVWR of 6,000 pounds or less to the FMVSS No. 216
as it existed before the May 2009 upgrade of that rule. FMVSS No. 216
was extended to trucks, buses, and multipurpose vehicles (MPVs) with a
GVWR of 6,000 pounds or less in a final rule published in 1991. A GVWR
of 6,000 pounds or less is relatively low for commercial vehicles,\28\
which results in limited offerings in this category. But,
significantly, GM has sold an incomplete vehicle chassis-cab, the GMT-
355,\29\ that has a GVWR of 6,000 pounds or less and is therefore
subject to FMVSS No. 216. GM would not have offered and sold the
vehicle for years if there was not a market for them, as completed by
final-stage manufacturers.
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\28\ For example, most full size pickup trucks have a GVWR well
above 6,000 pounds. See Ford, 2011 Truck Payload Workbook, p. 7,
available at https://www.fleet.ford.com/truckbbas/topics/2011/2011_
Truck_Payload_Workbook.pdf (last accessed Feb. 14, 2011).
\29\ This platform has been used for the Chevrolet Colorado and
GMC Canyon pickup trucks, which are small or compact pickup trucks.
See generally 75 FR at 17593.
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We explained that under the May 2009 roof crush resistance rule,
FMVSS No. 216a will not be applicable to vehicles with a GVWR greater
than 10,000 pounds. Incomplete vehicle manufacturers will not need to
provide an IVD regarding FMVSS No. 216a for these heavier vehicles. We
explained that, in our estimation, the largest numbers of multi-stage
vehicles are in this category.
We observed that NTEA's comments contemplated no assistance from
the incomplete vehicle manufacturer. We explained, however, that NHTSA
has seen the converse to be true--there are IVDs, upfitter guides, best
practices manuals and help lines provided by incomplete vehicle
manufacturers.
[[Page 15908]]
Final-stage manufacturers also have their own technical expertise.
We explained that final-stage manufacturers can use their judgment,
including engineering or technical judgment, to certify vehicles.
Testing, as provided in the FMVSS, is not required as a matter of law
to certify a vehicle.\30\ Instead, sound judgment may be used. Many
final-stage manufacturers bring considerable judgment to bear. They
have been building and certifying vehicles for years. Final-stage
manufacturers can and do use their base of experience in certifying
vehicles as complying with the FMVSS.
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\30\ This has long been recognized in interpretations by NHTSA's
Chief Counsel. E.g., Letter from Jacqueline Glassman, Chief Counsel,
NHTSA, to Ms. S. Trinkl, Quality Management, DEKRA Automobil GmbH
(December 30, 2004), available at http://isearch.nhtsa.gov/files/
Trinkl.1.html (last accessed February 14, 2011).
---------------------------------------------------------------------------
We also stated that NHTSA provided substantial leadtime. The rule
becomes effective for multi-stage vehicles with a GVWR of 6,000 pounds
or less, i.e., the vehicles already covered by FMVSS No. 216, on
September 1, 2016, and for the other multi-stage vehicles with a GVWR
of 10,000 pounds or less on September 1, 2017. These dates are one year
after the requirements are fully effective for manufacturers of single-
stage vehicles, the same entities that supply an incomplete chassis-cab
to a final-stage manufacturer.
In the Further Response, we made a number of points for which we
provided detailed discussion and explanation. We discussed how the
current certification scheme is not an unlawful delegation of agency
authority and that IVDs concerning FMVSS No. 216 are workable. We also
discussed the FMVSS No. 220 testing alternative that was incorporated
into the rule after being suggested by the RVIA. We also explained why
we believed that there were little if no costs for multi-stage
manufacturers to comply with FMVSS No. 216a.
II. NTEA Petition for Reconsideration
After we published our Further Response, on May 24, 2010, NTEA
submitted a petition for reconsideration to NHTSA. NTEA's petition
requested that we either exclude multi-stage vehicles from the coverage
of FMVSS No. 216a or amend the final rule in a manner that would ensure
more readily available compliance alternatives for final-stage
manufacturers.
In summary, NTEA's petition made five points. First, NTEA stated
that unreasonably restrictive conformity statements in IVDs put final-
stage manufacturers in the position of either taking ``undue'' risk of
certification or exiting the business. The petitioner stated that the
fact that final-stage manufacturers certify vehicles does not suggest
that pass-through certification under NHTSA's regulations is workable
or valid or practicable for purposes of Section 30111(a) of the Vehicle
Safety Act. NTEA claimed that this certification risk was a basis for
the court of appeals decision in National Truck Equipment Association
v. National Highway Traffic Safety Administration, 919 F.2d 1148 (6th
Cir. 1990) (1990 NTEA decision).
NTEA presented its arguments on the 1990 NTEA decision for the
proposition that the agency must offer the regulated party a chance to
demonstrate compliance in order for a standard to meet the
practicability requirement of the Vehicle Safety Act. NTEA stated that
the court ruled that where final-stage manufacturers could not afford
to conduct the test in the subject safety standards, NHTSA had to put
the alternatives in the standard itself.
NTEA argued that the court in the 1990 NTEA decision identified
problems insofar as pass-through certification was concerned: (1)
NHTSA's regulations at the time did not provide for pass-through
certification for vehicles completed on chassis other than chassis-
cabs; and (2) pass-through certification would not be an adequate
compliance alternative to costly testing to the extent incomplete
vehicle manufacturers provided unduly restrictive conformity statements
in their IVDs.
NTEA focused on the conformity language for FMVSS No. 216 in GM's
IVD for the GMT-355 (2006 Model Year) and assumed that other incomplete
vehicle manufacturers would provide similar conformity statements for
the new version of FMVSS No. 216.\31\ NTEA took issue with NHTSA's
interpretation that the conformity language for FMVSS No. 216 in the
IVD for the GMT-355 (2006 Model Year) provides a meaningful pass-
through opportunity. NTEA believes that NHTSA's analysis ``completely
ignores the actual language of GM's conformity statement.'' It claimed
that the language of GM's conformity statement is restrictive. It also
stated that the legal liability of a final-stage manufacturer for
conformity with FMVSS No. 216, as allocated pursuant to 49 CFR 567.5,
cannot depend on a ``conjuring exercise'' of what is, at minimum, a
``hopelessly ambiguous'' IVD statement drafted by GM, an incomplete
vehicle manufacturer.
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\31\ NTEA's initial comments were based on GM's 2006 IVD;
however, attached to the petition for reconsideration was GM's 2010
IVD. As the two documents are materially similar, we will refer to
them collectively. See Appendix A of NTEA's Petition for
Reconsideration, May 24, 2010, Docket No. NHTSA-2009-0093-0022.
---------------------------------------------------------------------------
NTEA argued that there is no meaningful distinction between
receiving a Type 3 conformity statement for a cutaway chassis, on the
one hand, and receiving some version of the Type 1 conformity statement
for FMVSS No. 216 that GM provides for the GMT-355 chassis, on the
other. In both cases, according to NTEA, the final-stage manufacturer
cannot use pass-through certification with respect to FMVSS No. 216 and
legal responsibility for compliance with that standard is automatically
assigned to the final-stage manufacturer.
NTEA concluded its first argument by urging NHTSA to amend FMVSS
No. 216a and/or 49 CFR 567.5 to ensure that IVDs contain conformity
statements that provide final-stage manufacturers with a reasonable
opportunity to use pass-through certification. In the absence of such
amendments, NTEA urged NHTSA to exclude multi-stage vehicles from the
population of vehicles subject to FMVSS No. 216a.
Second, NTEA stated that it does not advocate shifting
certification responsibility from final-stage manufacturers to
incomplete vehicle manufacturers. Instead, NTEA argued that all multi-
stage vehicles should be excluded from this safety standard, because it
believes the safety standard is not practicable.
NTEA claimed that NHTSA, in its Further Response, misconstrued
NTEA's position regarding multi-stage vehicle certification. In that
response, NHTSA stated that NTEA sought to remove the certification
responsibility from final-stage manufacturers and impose much of that
responsibility on incomplete vehicle manufacturers. NHTSA also stated
that NTEA's petition ignored the fact that incomplete vehicle
manufacturers do not control what final-stage manufacturers do with the
incomplete vehicles.
NTEA countered that it has not suggested in this proceeding that
certification responsibility for multi-stage vehicles be shifted from
final-stage manufacturers to incomplete vehicle manufacturers. Rather,
with respect to FMVSS No. 216a, it stated that multi-stage vehicles
should be excluded from the rule's coverage because in its view there
is an absence of practicable compliance alternatives for final-stage
manufacturers.
NTEA offered three reasons for its position, two of which,
consistent with prior assertions, placed blame on other
[[Page 15909]]
entities: (1) Final-stage manufacturers cannot afford to conduct tests
described in FMVSS No. 216a, or perform computer simulations (or other
engineering analyses) that replicate the performance of vehicles in the
test contained in that standard; (2) pass-through certification is not
available to final-stage manufacturers because incomplete vehicle
manufacturers are often unwilling or unable to provide conformity
statements that permit final-stage manufacturers to build even the most
common configurations of multi-stage vehicles within such conformity
statements; and (3) NHTSA has not included in FMVSS No. 216a an
affordable and objective alternative means (i.e., an alternative to
testing or pass-through certification) by which a final-stage
manufacturer can certify conformity of a vehicle to the standard. NTEA
concluded that final-stage manufacturers do not have a meaningful
chance to demonstrate compliance with FMVSS No. 216a. Therefore, it
stated that NHTSA should exclude all multi-stage vehicles from this
safety standard.
Third, NTEA argued that excluding all multi-stage vehicles would
not unacceptably deprive those users of the safety benefits provided by
the roof crush standard. While essentially ignoring the vehicles that
are under the umbrella of the safety provision of the rule, NTEA stated
that its statistics show that the vast majority of multi-stage vehicles
rated above 6,000 lbs. GVWR are outside the scope of FMVSS No. 216a,
and their users would not benefit from the standard's safety benefits.
NTEA noted that in extending the standard from vehicles with a GVWR
greater than 6,000 pounds to include those with a GVWR of 10,000 pounds
or less, NHTSA excluded trucks other than ones built on chassis-cabs
(and incomplete vehicles with a full exterior van body) and this means
that the agency excluded approximately one-third of multi-stage
vehicles with a GVWR of 6,001 pounds to 10,000 pounds. NTEA also said
that chassis with a GVWR of over 10,000 pounds constitute 94.5 percent
of the entire market of chassis rated above 6,000 pounds. Thus, the
vast majority of multi-stage vehicles above 6,000 pounds GVWR are
already excluded from FMVSS No. 216a, and its position would not have
any appreciable effect on the multi-stage vehicle population that will
be subject to the rule.
Fourth, NTEA took issue with NHTSA's Regulatory Impact Analysis
done for the final rule. NTEA stated that a review of the agency's
final rule and its Regulatory Impact Analysis indicated that NHTSA
tested numerous vehicles but did not include any completed multi-stage
vehicles in the testing it performed to support its amendments to FMVSS
No. 216a. In NTEA's view, NHTSA has no test data to support a
conclusion that the revised test in the final rule is workable and
reasonable with respect to multi-stage vehicles. The petitioner also
stated that the pass/fail rates computed by NHTSA and the agency's
study of the appropriate roof crush resistance requirements in its
assessment of the new testing procedure were conducted without
considering a single multi-stage vehicle.
NTEA argued that in the absence of testing any multi-stage vehicles
in support of its amendments to FMVSS No. 216a, the rule cannot be
justified in light of the difficulties final-stage manufacturers have
with certifying. The petitioner added that in the agency's regulatory
analysis of the cost effectiveness and net benefits of the final rule,
NHTSA stated that the cost/benefit impacts are disproportionately
influenced by relatively large contributions to costs and small
contributions to benefits from vehicles over 6,000 pounds GVWR. NTEA
also stated that the agency concluded that the benefits of the standard
will be limited, particularly for vehicles in this higher weight range.
NTEA also claimed that, in its analysis of the costs of compliance,
the Regulatory Impact Analysis is silent insofar as multi-stage
vehicles are concerned. It argued that the agency's cost analysis was
based upon costs incurred for mass-produced single-stage vehicles, and
do not reflect the fact that final-stage manufacturers produce
countless configurations of custom-designed vehicles, many of which are
``one off.'' NTEA stated that NHTSA made no attempt separately to
determine the cost of compliance for final-stage manufacturers, even
for those who cannot pass-through the incomplete vehicle manufacturer's
certification and who therefore have no compliance alternative other
than performing the test in FMVSS No. 216a.
The petitioner stated that NHTSA's position regarding the costs to
final-stage manufacturers to comply with FMVSS No. 216a is summarized
in NHTSA's Regulatory Flexibility Act analysis, which states that small
businesses using chassis-cabs will be in a position to take advantage
of ``pass-through certification,'' and therefore are not expected to
incur any additional expenditures. NTEA repeated its disagreement with
the assessment that pass-through certification will be available for
all multi-stage vehicles built on chassis-cabs. According to NTEA, even
if incomplete vehicle manufacturers provided reasonable conformity
statements, those statements would not cover all multi-stage vehicles
produced by final-stage manufacturers. NTEA stated that, as NHTSA has
observed, incomplete vehicle manufacturers do not control work
performed by final-stage manufacturers and can fairly anticipate only
some things, but not everything done by final-stage manufacturers.
Accordingly, NTEA stated that some number of multi-stage vehicles will
not be able to use pass-through certification.
Finally, NTEA concluded its petition with a recommendation that
NHTSA should amend the final rule in a way that would, in the
petitioner's view, make it practicable as applied to multi-stage
vehicles. NTEA repeated that most final-stage manufacturers cannot
perform or simulate the tests for FMVSS No. 216a and other more complex
and expensive standards that include tests. Due to the number of types
and configurations of final-stage manufacturing, NTEA believes that all
the safety standards that include tests are inherently impracticable.
The petitioner stated that in order to make FMVSS No. 216a
practicable for final-stage manufacturers, NHTSA should amend its
regulations to (1) ensure that the conformity statements provided by
incomplete vehicle manufacturers are reasonable in light of the known
types and sizes of multi-stage vehicles built on the chassis that are
subject to those conformity statements, (2) provide final-stage
manufacturers with an efficient way to challenge unduly restrictive
conformity statements, and (3) identify specific steps that can be
taken by a final-stage manufacturer that will constitute ``reasonable
care,'' for purposes of 49 U.S.C. 30115(a), in certifying a vehicle as
complying with FMVSS No. 216a, when the vehicle must be completed
outside the parameters of a reasonable conformity statement. These
generalized views were not accompanied by concrete suggestions for
regulatory language. NTEA went on to state that in the event NHTSA does
not amend FMVSS No. 216a and/or its multi-stage vehicle certifications
to, in its view, make pass-through certification a practicable
compliance option, or exclude multi-stage vehicles from the coverage of
FMVSS No. 216a, then the agency must incorporate into its regulations
another means for final-stage manufacturers to prove compliance.
NTEA noted that NHTSA stated that final-stage manufacturers need
not conduct the tests set forth in the FMVSSs such as FMVSS No. 216a,
and
[[Page 15910]]
that they may be able to base their certifications to that standard on
``computer simulation, engineering analysis, engineering judgment or
other means.'' It also noted that NHTSA further stated that there are
many resources available to final-stage manufacturers with regard to
certification: upfitter guides from incomplete vehicle manufacturers,
incomplete vehicle manufacturer help lines, the final-stage
manufacturers' own experience and judgment, and commercially available
software, and that final-stage manufacturers can use their judgment,
including engineering or technical judgment, to certify vehicles.
NTEA stated that, however, none of these suggestions are
incorporated into NHTSA's regulations as a means of demonstrating
conformity with FMVSS No. 216a, and therefore do not meet the
requirements that the methods of proving compliance must be offered in
the body of the standard itself. NTEA argued that in the event NHTSA
does not amend its FMVSS certification regulations to make pass-through
certification a practicable compliance option, NHTSA must exclude
multi-stage vehicles from the population of vehicles subject to FMVSS
No. 216a.
III. Response to NTEA's Petition
After carefully considering NTEA's petition, we have decided to
deny it. The reasons for our denial are set forth below.
A. Introduction
As discussed earlier, our rulemaking to upgrade FMVSS No. 216 was
required by Congress in SAFETEA-LU. That statute required the agency to
issue a final rule establishing performance criteria to upgrade FMVSS
No. 216 relating to roof strength for driver and passenger sides, for
motor vehicles with a GVWR of not more than 10,000 pounds. An
underlying safety concern was the crushing of the roof into the
occupant compartment in rollover crashes.
Throughout the rulemaking, we carefully considered issues related
to all types of vehicles, including multi-stage vehicle issues. In the
NPRM, for example, the agency explained why we thought a proposed
option for certain multi-stage vehicles to meet the requirements of
FMVSS No. 220, School Bus Rollover Protection, instead of FMVSS No.
216a, Roof Crush Resistance; Upgraded Standard, appeared to offer a
reasonable approach that increased safety in rollovers and at the same
time provided a mechanism for compliance. NHTSA included in the final
rule a number of other provisions to address the legitimate concerns of
multi-stage manufacturers.
First, in the upgraded FMVSS No. 216a rule, after considering
NTEA's comments, we only extended it to those multi-stage trucks that
arrive from the incomplete vehicle manufacturer with a completed roof
structure. We excluded those trucks where the final-stage manufacturer
would need to complete the roof structure. Specifically, we excluded
from FMVSS No. 216a multi-stage trucks with a GVWR greater than 6,000
pounds not built using a chassis-cab and those not built using an
incomplete vehicle with a full exterior van body. Thus, as relevant to
the petition now before the agency, the main thrust of the amended rule
is that multi-stage trucks based on chassis-cabs, whose roof
structures, by definition, are manufactured by an incomplete vehicle
manufacturer, have the same roof strength requirements as a completed
pickup truck produced by the same manufacturer.
Second, we provided an alternative testing option for certain
multi-stage manufacturers. Vehicles manufactured in two or more stages,
other than chassis-cabs, and vehicles which are changed in certain ways
to raise the height of the roof, can be certified to the roof crush
requirements of FMVSS No. 220, School Bus Rollover Protection, instead
of FMVSS No. 216a. We note that the Recreation Vehicle Industry
Association (RVIA) had supported our proposal to permit FMVSS No. 220
as an option for small motor homes allowing manufacturers of them to
address issues concerning such specialized vehicles built in two or
more stages.
Third, we added a test specification into the final rule so that
the roof structure is the only part of the vehicle that is tested.
NHTSA's test procedures specify that the vehicle's sills and chassis
will be secured to a rigid horizontal surface. See FMVSS No. 216a S
7.1. According to the test's procedure, the chassis-cab is supported by
a horizontal surface at the sills, not the vehicle's frame, and only
the cab is compressed downward onto that horizontal surface. This
ensures that the vehicle's roof is tested, independent of the vehicle's
frame.\32\ Also, if a final-stage manufacturer adds a box onto a
chassis-cab, and that box is taller than the roof, the box will be
removed prior to testing the chassis-cab's roof strength. This will
ensure that only the vehicle's roof structure is tested.
---------------------------------------------------------------------------
\32\ For a visual reference, please see the photos of tested
vehicles in NHTSA's test reports on roof crush resistance. E.g.
NHTSA Test Report No. 571, Ford F-250, available at http://www-
nrd.nhtsa.dot.gov/database/aspx/comdb/querytesttable.aspx (last
accessed on February 14, 2011) and available at Docket No. NHTSA-
2009-0093-0020 at pp. 292-299.
---------------------------------------------------------------------------
Fourth, we provided additional leadtime for multi-stage
manufacturers. This means that the vehicle manufacturers will build
their pickup trucks, which are the basis for chassis-cab incomplete
vehicles, as having the requisite roof strength one year prior to
incomplete and multi-stage vehicles built on chassis-cabs. The extra
year will provide additional time in which final-stage manufacturers
may consider the fully-certified pickup trucks.
Despite these tailored provisions that, in relevant part, regulated
only final-stage trucks built on chassis-cabs and excluded those built
on cutaways and stripped chassis, NTEA petitioned the agency for
exclusion of all multi-stage vehicles from FMVSS No. 216a. In its
petition for reconsideration NTEA alleged that the upgraded FMVSS No.
216a is not practicable for final-stage manufacturers. The end result
of NTEA's petition is for no regulation of its members. NTEA reaches
this conclusion without addressing the safety of the occupants in a
chassis cab, who, if they were in a comparable pickup truck, would have
the benefits and protections of FMVSS No. 216a. NTEA offered as grounds
for this position that the costs of compliance are too high, conformity
statements in IVDs are too restrictive, and the text of FMVSS No. 216a
does not include an alternative to testing or pass-through
certification \33\ by which a final-stage manufacturer can confirm
conformity of a vehicle to the standard. NTEA concluded by adopting the
language from a case involving stripped chassis vehicles where the
vehicle manufacturers would have to design and assemble parts and the
standard included a dynamic crash test--actually crashing the trucks
into a wall--that its members are denied a chance to demonstrate
compliance with FMVSS No. 216a.\34\
---------------------------------------------------------------------------
\33\ NTEA did not spell out alternatives in its comments.
\34\ National Truck Equipment Association v. National Highway
Traffic Safety Administration, 919 F.2d 1148, 1153, 1155 (6th Cir.
1990).
---------------------------------------------------------------------------
We disagree with NTEA's request to exclude all multi-stage vehicles
from FMVSS No. 216a. Such action would deprive occupants of multi-stage
vehicles built on chassis-cabs of the regulatory safety protections of
roof crush resistance that occupants of comparable pickup trucks have
under FMVSS No. 216a.
The assessment for whether a FMVSS is practicable depends, of
course, on the
[[Page 15911]]
vehicles and standard at issue. Here, we will focus on chassis-cabs--
multi-stage trucks that arrive at the final-stage manufacturer as
incomplete vehicles with an intact roof structure--since that is the
type of vehicle NTEA discusses in its petition. FMVSS No. 216a is an
upgrade of an existing regulation that was well understood, as
distinguished from an entirely new regulation. Before FMVSS No. 216a
was adopted, FMVSS No. 216 had covered roof crush in multi-stage
vehicles up to and including 6,000 pounds GVWR. NHTSA continues to
believe that regulation of chassis-cabs under FMVSS No. 216a is
practicable. NTEA has not justified its position that all multi-stage
vehicles should be excluded from regulation under FMVSS No. 216a.
B. NTEA's Petition Is Unsupported by Evidence of an Actual Problem
NHTSA views the matter before the final-stage manufacturer from the
perspective of starting with an incomplete chassis-cab truck and
completing it by adding a truck body. In so doing, given that FMVSS No.
216a is an upgraded rule, as distinguished from an entirely new rule,
NHTSA may take into account fact that the roof crush regulation has
been in effect for years for vehicles with a GVWR of 6,000 pounds or
under.
NHTSA pointed out that final-stage manufacturers have been
certifying to FMVSS No. 216 for years. NTEA does not deny this.
Instead, NTEA's comments say that most final-stage manufacturers took
``undue'' certification risk. NTEA goes on to say that ``[t]hose
manufacturers used their best judgment in certifying the vehicles they
produced based on their experience and the information available to
them.'' But NTEA expressed concern that they had no way of determining
whether such efforts would constitute reasonable care for purposes of
the Vehicle Safety Act.
NTEA has not cited one example of an enforcement case against a
NTEA member based on improper certification. Nor has NTEA cited one
business injury by an NTEA member related to certification to FMVSS No.
216. There have not been any enforcement cases and there have been no
recalls performed for noncompliances with FMVSS No. 216 or 220 by any
manufacturer, including final-stage manufacturers. NTEA's inability to
provide tangible information of actual injury has been long-running. In
April 2010 and May 2006, NHTSA noted that NTEA had not identified any
final-stage manufacturer that has been unable to certify a vehicle
under the existing certification framework. Specific to the roof crush
standard, in the agency's Further Response, NHTSA pointed out that not
one final-stage manufacturer identified a problem certifying a vehicle
built on a 2006 GMT-355 chassis-cab. In its May 2010 petition, NTEA
does not provide any examples of how a final-stage manufacturer has
actually been prevented from certifying its vehicle. More generally, in
the May 2006 multi-stage vehicle rulemaking, in response to NTEA's
petition we stated that we would address issues of impracticability in
the context of an individual FMVSS or on a petition for temporary
exemption, indicating that we sought information for each rulemaking as
to how the rule was impractical.\35\ NTEA did not provide this
information in the FMVSS No. 216a rulemaking, although NTEA does
provide a textual objection to the GMT-355 IVD (2006) provisions on
FMVSS No 216a. In NTEA's view NHTSA's analysis of GM's IVDs in the
agency's Further Response ignores the actual language of GM's
conformity statement.
---------------------------------------------------------------------------
\35\ 71 FR 28186.
---------------------------------------------------------------------------
NTEA is effectively asking to make vehicles based on chassis-cabs
less safe than pickup trucks because of a hypothetical argument.
Without evidence in the record of final-stage manufacturers
legitimately not being able to certify these vehicles to FMVSS No. 216
or incurring significant and very costly technical problems in
certifying vehicles, we are loathe to roll back these important safety
benefits. NHTSA does not believe FMVSS No. 216a is impracticable as
applied to final-stage manufacturers. In fact, the agency believes that
it has removed from the proposed rule provisions that could make it
impracticable as applied to final-stage manufacturers.
C. In Extending FMVSS No. 216 to Heavier Vehicles, NHTSA Only Included
Those Multi-Stage Vehicles for Which the Incomplete Vehicle
Manufacturer Provides an Intact Roof
In extending FMVSS No. 216 to heavier vehicles, we specifically
included the types of multi-stage vehicles as to which the standard is
practicable and excluded the types of multi-stage vehicles as to which
the standard could have been impracticable, consistent with the 1990
NTEA decision. The upgraded standard applies to chassis-cabs \36\ and
certain vans, vehicles that are equipped by the incomplete vehicle
manufacturer with a completed roof and structure. Compliance and
certification will not be difficult for final-stage manufacturers of
these included vehicles, as the final-stage manufacturer will receive
these incomplete vehicles from the incomplete vehicle manufacturer with
a compliant, intact roof. Given that the final-stage manufacturing done
on the included vehicles would not affect the vehicle's roof strength,
final-stage manufacturers will not need to do more than ensure that
their modifications do not take the vehicle out of compliance with
FMVSS No. 216a. On the other hand, we excluded those trucks for which
the final-stage manufacturer would design and build the vehicle's roof
or its supporting structure.
---------------------------------------------------------------------------
\36\ Some manufacturers may use the term ``pick-up box delete''
instead of ``chassis-cab'' in marketing materials for those
instances where the incomplete vehicle manufacturer completes a
pickup truck, but ``deletes'' the pickup box. These vehicles are
sold as an incomplete vehicle. See Ford, 2010 Body Application
Guide, available at https://www.fleet.ford.com/truckbbas/topics/
bodyappguide.html (last accessed February 14, 2010).
---------------------------------------------------------------------------
More particularly, as described above, a chassis-cab from an
incomplete vehicle manufacturer is essentially a pickup truck without
the cargo bed. The pickup truck and chassis-cab employ a body-on-frame
structure. In a body-on-frame vehicle, as used here, the frame includes
the chassis structure, power train, and suspension, steering and
braking systems. The cab and body are mounted to the frame. When the
chassis-cab leaves the incomplete vehicle manufacturer, it will have a
completed cab, and will have two steel frame rails running
longitudinally behind the cab. Final-stage manufacturers typically add
a body onto the frame rails behind the cab; the body stores work-
related materials or cargo. As we explained in our Further Response, an
illustrative example of a chassis-cab vehicle is a delivery truck. The
final-stage manufacturer adds a cargo box to the back of the incomplete
vehicle, and a door is provided at the rear of the cargo box for access
to its contents.
In the next several years, Ford, GM, Chrysler and other
manufacturers of incomplete vehicles with a GVWR of 10,000 pounds or
less will be required to upgrade their pickup trucks, as necessary, to
meet the upgraded FMVSS No. 216a published in 2009. These pickup trucks
will have an intact roof that will meet FMVSS No. 216a.
NHTSA's approach is confirmed by its exclusion from FMVSS No. 216a
of multi-stage trucks not built on a chassis-cab. Typically, these
excluded vehicles would be built on cutaways or on a stripped chassis.
In a cutaway chassis, the back wall of the occupant
[[Page 15912]]
compartment is missing, or cutaway, i.e. there is no wall behind the
front seats. A stripped chassis, which is less complete than a cutaway,
would ordinarily not have a roof structure at all. These types of
multi-stage vehicles were addressed in the 1990 NTEA case. Because
these trucks would arrive without an intact roof, there could be some
of the problems described in the 1990 NTEA case.
Also excluded from FMVSS No. 216a are vehicles with a GVWR greater
than 10,000 pounds. The vast majority of the multi-stage trucks have a
GVWR in excess of 10,000 pounds,\37\ as NTEA noted.
---------------------------------------------------------------------------
\37\ Ford publishes a ``Body Application Guide'' on its Web site
that provides a description of the types of incomplete vehicles that
it sells. See Ford, 2010 Body Application Guide, available at
https://www.fleet.ford.com/truckbbas/topics/bodyappguide.html (last
accessed February 14, 2010). This document assists in ``matching the
truck customer's length and load carrying requirements with the
appropriate'' Ford incomplete vehicle. According to this document,
FMVSS No. 216a would likely apply to Ford's F-250 truck and certain
F-350 trucks with a pick-up box delete option, as these trucks have
a GVWR of 10,000 pounds or less. As mentioned previously, Ford does
not market these vehicles as chassis-cabs; instead, Ford uses the
term ``pick-up box delete option'' for these incomplete vehicles.
FMVSS No. 216a would not apply to the majority of F-350, and all F-
450, F-550, F-650, and F-750 vehicles. Likewise, it would not apply
to Ford's cutaways or stripped chassis vehicles. Apparent from this
document is the limited number of incomplete vehicles to which FMVSS
No. 216a likely will apply.
---------------------------------------------------------------------------
D. The Typical Modifications Made by Final-Stage Manufacturers Do Not
Affect Roof Strength
The addition by a final-stage manufacturer of a body such as a
cargo box behind the cab, where the pickup bed is located on a pickup
truck, would not affect the strength of the roof. There is therefore no
reason to expect that the final-stage manufacturer will have difficulty
complying with FMVSS No. 216a in making this or similar kinds of
additions/modifications, e.g., attaching various types of cargo or
equipment-carrying compartments to the truck frame behind the cab.
NTEA describes itself as ``the nation's only trade association
representing distributors and manufacturers of multi-stage produced,
work-related trucks, truck bodies, and equipment,'' and states that it
has over 1,600 member companies.\38\ While NTEA members are undoubtedly
familiar with incomplete vehicles and bodies and equipment that are
added to them,\39\ NTEA did not provide any real world examples
demonstrating that the modifications made by final-stage manufacturers
will affect the strength of a roof of a chassis-cab. Instead, it stated
that the attachment of a truck body onto the frame presents pass-
through certification problems with GM's IVD for a Model Year 2006 GMT-
355 chassis, which has a GVWR of 6,000 pounds or less. These concerns
were hypothetical and not supported by the NTEA members' real world
experience of completing and certifying vehicles.
---------------------------------------------------------------------------
\38\ NTEA comments, NHTSA-2005-22143-0108, p.1.
\39\ NTEA has annual Work Truck Shows that are large events that
NTEA bills as North America's largest vocational truck event. In
2011 and 2012, it will be in the Indiana Convention Center in
Indianapolis. As explained by NTEA, the Work Truck Show brings
together thousands of industry professionals including vocational,
governmental and private truck fleet managers and truck buyers from
the range of weight markets, as well as hundreds of truck and
equipment manufacturers, distributors and dealers. According to
promotional materials, the event gives attendees the opportunity to
check out the latest full-size work trucks, vocational equipment,
and vehicle components. It also features industry-specific technical
and business management training sessions. The Association
represents nearly 1,600 companies that manufacture, distribute,
install, sell and repair commercial trucks, truck bodies, truck
equipment, trailers and accessories. See http://www.ntea.com/
worktruckshow/about/ (last accessed February 14, 2011).
---------------------------------------------------------------------------
The market for incomplete vehicles with a GVWR of 6,000 pounds or
less is limited. GM offered the incomplete version of the small pickup
truck built on the GMT-355 chassis, known as the Canyon or Colorado.
Other vehicle manufacturers did not offer incomplete vehicles in this
category. Some light duty truck bodies from equipment suppliers have
been available for the small GM incomplete vehicle.
We expect that incomplete vehicles within the newly regulated
weight class from over 6,000 pounds to 10,000 pounds GVWR will be
available. For final-stage manufacturers using chassis-cabs with a GVWR
of 10,000 pounds or less, the additions to complete the vehicles appear
to be routine and involve the attachment of a truck body manufactured
by an equipment manufacturer onto a chassis-cab manufactured by an
incomplete vehicle manufacturer.
In its Body Application Guide, Ford lists the typical applications
for multi stage vehicles built on chassis-cabs.\40\ For chassis-cabs
with a GVWR of 10,000 pounds or less, the typical installations appear
to be for service providers, including contractors, caterers, painters,
and electricians, and typically use a ``service body.'' These service
bodies are typically not fabricated from scratch; instead, they are
ordered from an equipment manufacturer, such as an NTEA equipment
supplier member, and the final-stage manufacturer would install it on
the chassis-cab. The service bodies can be as simple as a platform bed,
to an electrician's truck that contains ``toolboxes'' and shelves on
the side.
---------------------------------------------------------------------------
\40\ See Ford, 2010 Body Application Guide, available at https:/
/www.fleet.ford.com/truckbbas/topics/bodyappguide.html (last
accessed February 14, 2010).
---------------------------------------------------------------------------
As an example of a service body, the KSS, is sold by the Knapheide
Manufacturing Company (``Knapheide''). The KSS is a service body that
looks similar to a pickup bed, except that the sides above the fender
wells contain cabinets.\41\ A smaller truck bed remains in between the
cabinets. The KSS is a box that attaches to the frame behind the cab,
and is not incorporated into the cab itself. As such, the KSS would not
affect the vehicle's roof strength in a FMVSS No. 216a test.
---------------------------------------------------------------------------
\41\ Brochure from the Knapheide Manufacturing Company, The All
New KSS, available at http://www.knapheide.com/literature/gmc_
kss.pdf (last accessed February 14, 2011).
---------------------------------------------------------------------------
The Knapheide KSS bodies can be customized further from the base
truck body. These customizations do not affect the roof or its support
structure. This is true even for ladder racks. According to the design
drawings, the ladder racks mount to the KSS body, and hang over the
vehicle's roof. The ladder racks do not attach to the chassis-cab
itself. Instead, the racks remain suspended over the top of the
cab.\42\ Furthermore, in a test by NHTSA under FMVSS No. 216a, the
ladder racks would be removed before testing the vehicle's roof
strength.
---------------------------------------------------------------------------
\42\ Brochure from the Knapheide Manufacturing Company, KSS Body
Option, available at http://www.knapheide.com/pdfpages/
optionfitpages/kssoptions/KSOPG18.pdf (last accessed February 14,
2011).
---------------------------------------------------------------------------
Knapheide also advertises its installation methods, and sells a
``Spring Mounting Kit'' that ``provides flexible attachment of the
front of the body to the chassis and minimizes the risk of torsional
fatigue cracking.'' \43\ The spring mounting kit's hardware ``utilizes
the existing holes in the chassis and body end rail.'' For certain Ford
vehicles, which, according to this document, do not have holes on the
top of the frame, adapter plates are U-bolted to the top of the frame
to facilitate spring mounting. This document indicates that there are
mounting options that do not require final-stage manufacturers to alter
a vehicle's frame rail.
---------------------------------------------------------------------------
\43\ Brochure from the Knapheide Manufacturing Company, Service
Body Option, available at http://www.knapheide.com/pdfpages/
optionfitpages/servicebodyoptions/PG47.pdf (last accessed on
February 14, 2011).
---------------------------------------------------------------------------
Other equipment manufacturers' service bodies indicate an easy
installation. Hillsboro Industries, Inc.
[[Page 15913]]
sells an aluminum light truck bed.\44\ This type of product would
typically be installed on a truck under 10,000 pounds GVWR, and the
completed vehicle would therefore need to comply with the FMVSS No.
216a requirements. According to the owner's manual, the aluminum truck
bed arrives equipped with bed sills that attach to the chassis-cab's
frame rail in three places. The bed sills can be bolted or welded to
the chassis-cab frame. The front of the bed sills must be at least 4\1/
8\ inches from the vehicle's cab, and, therefore, do not
attach to the vehicle's chassis-cab. After the sills are attached to
the frame, the aluminum light truck bed is then mounted with bolts on
top of the bed sills. In summary, this truck body attaches sills to the
vehicle's frame in only three places, and the cab is not modified.\45\
---------------------------------------------------------------------------
\44\ See generally, Brochure from Hillsboro Industries, Inc.,
Aluminum Truck beds, available at http://hillsboroindustries.com/
Products/Brochures/AluminumTruckBedBrochure.pdf (last accessed
February 14, 2011).
\45\ Hillsboro Industries, Inc., Aluminum Light Truck Bed
Owner's Manual, available at http://www.hillsboroindustries.com/
Support/AluminumTruckBedsManual.pdf (last accessed February 14,
2011).
---------------------------------------------------------------------------
Another manufacturer of service bodies, RKI, furnishes mounting
kits standard with its service bodies.\46\ While RKI offers a large
number of customizable options for its service bodies, the bodies all
mount to a 12 gauge metal treadplate that is installed on top of the
vehicle's frame and added steel cross members. Here, the service body
does not mount directly to the frame itself, but to a treadplate
attached on top of the frame. This approach standardizes the mounting
to the treadplate and there would not be problematic modifications to
the vehicle's frame.
---------------------------------------------------------------------------
\46\ RKI, Inc., Service Body Specification L, S and T 40'' &
42'' CA, available at http://www.rki-us.com/images/uploads/
Service%20Body%20Specifications.pdf (last accessed February 14,
2011).
---------------------------------------------------------------------------
As indicated by the above, the mounting of the body on a truck does
not affect the strength of the roof.
GM Upfitter's Best Practices Manual ``provide[s] engineering
recommendations and guidelines to assist the Special Vehicle
Manufacturer (SVM) for all areas in the conversion process'' (An
upfitter is a final-stage manufacturer and SVMs are upfitters
recognized by GM). According to GM, these guidelines ``generally
reflect industry recognized processes and procedures'' that are
intended to help the upfitter ``maintain the safety, reliability, and
integrity of the vehicle's original design, as well as comply with any
state, Federal, or industry requirement.'' \47\
---------------------------------------------------------------------------
\47\ ``GM Upfitter--Best Practices Manual,'' http://
www.gmupfitter.com/best_practice_manuals.html (last accessed
February 14, 2011).
---------------------------------------------------------------------------
GM Upfitter's Best Practices Manual provides eight pages on the
preferred way to mount a box to a truck frame.\48\ These
recommendations are detailed and include illustrated diagrams. In fact,
GM Upfitter's Best Practices Manual states that ``NTEA advises that
proper body mounting practices and materials are necessary in order to
avoid damaging the frame side rail and body.'' \49\ The recommended
approaches include: (1) U-Bolt/Threaded Rod and End Plate Technique to
secure the truck body's longitudinal mounting rails to the chassis
frame; (2) Brackets and Pinch Bolts Techniques where fabricated and
formed brackets of angles are welded and/or bolted to the longitudinal
mounting rails of the body and bolted to the chassis frame; (3) the
Rigid Mounting Technique where the service/utility body is attached
directly to existing holes, such as the OEM pickup box attachment
points; and (4) the Shear Plate Approach, where a shear plate and bolts
are used to attach the non-rigid body to the frame rails.\50\ The GM
Upfitters' guide provides direction on the various types of bodies and
the rigidity of the selected body types.\51\
---------------------------------------------------------------------------
\48\ GM, GM Upfitter--Chassis Best Practices,'' 2010, available
at http://www.gmupfitter.com/publicat/REV_FF-3_BstPrac_Chss_
Indx_0810.pdf (last accessed February 14, 2011); see also GM, GM
Upfitter--Chassis Best Practices, 2009, NHTSA-2009-0093-0020, pp.
87-96.
\49\ GM, GM Upfitter--Chassis Best Practices,'' 2010, at 23.
\50\ Id. at 23.
\51\ Id. at 24.
---------------------------------------------------------------------------
In the Further Response, we noted that these four mounting types in
the GM Upfitter's Best Practices Manual were approved by NTEA, all four
mounting techniques mount to the frame and are permissible under the GM
IVD for the GMT-355, and none of the mounting methods involve
attachments to the roof-supporting members, including the A- and B-
pillars (the A-pillar is the roof support just behind the windshield;
the B-pillar is the roof support behind the front door). In a footnote
response, NTEA stated that these four mounting techniques are draft
recommendations and only address some of ``hundreds of vehicle
configurations that are built by final-stage manufacturers.'' \52\
However, NTEA does not contradict that these four mounting techniques
do not involve attachments to the A- and B-pillar, nor do they address
NHTSA's contention that they are permissible under the GM IVD.
---------------------------------------------------------------------------
\52\ NTEA Petition for Reconsideration, Docket No. NHTSA-2009-
0093-0022, page 13, fn. 18.
---------------------------------------------------------------------------
Similarly, GM's Upfitter Guide states that final-stage
manufacturers should design their body-mounting schemes to comply with
either the GM Guidelines in the GM Body Builders Manual, NTEA Industry
Standards, and Federal Government Mil-Std Specifications.\53\
Noticeably absent from NTEA's petition is any reference to the NTEA
Industry Standards.
---------------------------------------------------------------------------
\53\ GM, GM Upfitter--Chassis Best Practices,'' 2010, at p. 21.
---------------------------------------------------------------------------
E. Final-Stage Truck Manufacturers Have Opportunities That Permit Them
To Certify Their Vehicles to FMVSS No. 216a Without Testing
Consistent with its longstanding position on NHTSA's safety
standards that include tests, NTEA argued that FMVSS No. 216a is
impracticable for its members. In its view, pass-through certification
is not available. Therefore, its members are unable to certify their
vehicles to FMVSS No. 216a without ``undue'' certification risk, since
they cannot afford to conduct expensive vehicle tests to demonstrate
compliance for small production runs.
1. Pass-Through Certification Is Available on the GMT-355 IVD
The opening and central thrust of NTEA's petition is its
disagreement with NHTSA's assessment that pass-through certification is
available for vehicles built on chassis-cabs. In its petition, NTEA
focused on the wording of the General Motors GMT-355 (small pickup
truck) 2006 chassis IVD provision for FMVSS No. 216. NTEA stated that
the simple mounting of a box to a chassis-cab's frame rail invalidates
GM's IVD for FMVSS No. 216 because it affects the properties of the
frame rail, and prevents final-stage manufacturers from utilizing pass-
through certifications. NTEA argued that, in general, an IVDs'
restrictiveness prevents pass-through opportunities for final-stage
manufacturers, forcing final-stage manufacturers to conduct expensive
testing or cost-prohibitive computer simulations. This alleged burden
goes beyond the real world burden in which, as NTEA recognizes, final-
stage manufacturers have used their best judgment in certifying the
vehicles they produced based on their experience and the information
available to them, albeit with what NTEA refers to as certification
risk.
In our Further Response, NHTSA explained that it reviewed the IVDs
identified by NTEA as being too restrictive and found them to be
[[Page 15914]]
workable. NHTSA reviewed the statements in the provided IVDs as to
FMVSS No. 216. Specifically, the agency reviewed the Type 1 conformity
statements for the GM 2006 GMT-355 incomplete truck and the GM 2006 C/K
full size incomplete truck.\54\ The agency stated that pass-through
certification is available for the GMT-355, as the ``conformity
statement in the IVD is written to allow modifications to the
incomplete vehicle, but not to the components that affect the vehicle's
roof strength.'' The agency further noted that pass-through
certification would not be provided if vehicle components related to
roof strength are modified. As we explained, NTEA had not provided any
examples of modification necessary to the roof structure or the A- and
B-pillars. As described previously, the A-pillar is the roof support
just behind the windshield; the B-pillar is the roof support behind the
front door.
---------------------------------------------------------------------------
\54\ As we noted in our Further Response, NTEA stated that GM
included an identical conformity statement for FMVSS No. 216 in its
IVD for the GM 2006 C/K full size incomplete truck, although, to
NTEA's knowledge, GM did not produce a C/K chassis rated 6,000
pounds GVWR or below. FMVSS No. 216 would have applied to the
vehicle only if it were rated with a GVWR of 6,000 pounds or less.
---------------------------------------------------------------------------
NTEA read the 2006 and 2010 IVD as preventing the simple addition
of an aftermarket body, because, it argues GM's conformity statement is
invalidated by alterations that affects the function, physical,
chemical, or mechanical properties of any component, assembly or
system, ``including, but not limited to'' various systems. NTEA argued
that this goes beyond the chassis-cab and as a result, there is no
difference between a Type 1 and a Type 3 statement.
NTEA stated that NHTSA's interpretation, above, is not on the
spectrum of plausibility and later refers to GM's provision, in the
alternative, as ``hopelessly ambiguous.'' However, as GM noted in its
comments to NTEA's Petition for Reconsideration to the multi-stage
vehicle certification rule, NTEA's claim that any body or equipment
mounting invalidates the IVD is overreaching.\55\ NTEA made almost
identical claims about GM's IVDs in that rulemaking that they make in
this rulemaking.
---------------------------------------------------------------------------
\55\ GM's May 13, 2005 comment on NTEA's petition for
reconsideration of the multi-stage certification rule, Docket No.
NHTSA-99-5673-0056.
---------------------------------------------------------------------------
As we have stated previously, pass-through certification is and we
believe will be available for chassis-cabs. We believe that pass-
through certification on the 2006 GMT-355 IVD is available even using
NTEA's limited reading of that IVD. As discussed above, there are body
mounting techniques that do not ``affect'' the properties of the frame
rail. For example, in the Rigid Mounting Technique and in the Shear
Plate Approach, it is recommended by GM and NTEA's Subcommittee on Body
Mounting Practices that the final-stage manufacturer utilizes existing
holes on the chassis-cab's frame to attach an aftermarket truck body. A
truck body, which is comparable to the original pickup truck box in
that it is attached to the frame behind the cab, attached with bolts to
existing holes in the chassis-cab's frame would not ``affect'' the
vehicle's properties. No additions are made to chassis-cab's roof, its
support pillars, or other supporting structures. No alterations are
made to the vehicle's frame rail.
Furthermore, the concern is certifying compliance with FMVSS No.
216a. Repeating what we stated before, we added a test specification
into the final rule so that the roof structure is the only part of the
vehicle that is tested. Under the test procedure for roof strength in
FMVSS No. 216a, the chassis-cab is supported by a horizontal surface
under the cab along the sills, and not the vehicle's frame. Only the
vehicle's cab is compressed into that structure. The frame generally
and other parts of the vehicle are not tested in this test.
Modifications to the frame rail in attaching a body to the incomplete
vehicle would not be tested or affect the FMVSS No. 216a test. Assuming
that the FMVSS No. 216a test applied, a final-stage manufacturer that
installed a service body onto a GMT-355 utilizing existing holes could
certify based on GM's Type 1 statement. We believe this would qualify
as pass-through,\56\ and a final-stage manufacturer could certify
without the need for testing.
---------------------------------------------------------------------------
\56\ In the Further Response, NHTSA stated in a footnote that
alterers removing a pickup truck bed and replacing it with a
different body could affect the unloaded vehicle weight of the
vehicle. In its petition, NTEA stated that the footnote suggests
that body weight (and presumably body weight distribution), by
itself, affects testing and compliance with FMVSS No. 216. The
unloaded vehicle weight is a factor in the calculation of the SWR.
See 49 CFR 571.216a S5.2(b). Incomplete vehicle manufacturers' IVDs
contain a maximum unloaded vehicle weight that must not be exceeded.
See Ford's Incomplete Vehicle Manual, p. 5, infra note 58. In this
rulemaking, vehicle manufacturers noted that to minimize their
manufacturing tooling costs, they would need to design their roof
strength performance to the worst case weight for a given model
line. See 75 FR 17605, 17608 (April 7, 2010). In view of this design
approach, we do not anticipate an issue with unloaded vehicle weight
and compliance with FMVSS No. 216a. Of course, alterers should
consider the effect of their additions. Alterers should consult with
the manufacturer providing the complete vehicle that is altered.
---------------------------------------------------------------------------
We note that GM uses language regarding no alterations being made
which affect the properties of ``the components, assemblies or systems
including but not limited to those listed below'' elsewhere, including
in its certification for FMVSS No. 118, Power-Operated Window,
Partition, and Roof-Panel Systems, 49 CFR 571.118. This is instructive.
We do not view that IVD language for power windows as referring to
components, assemblies or systems unless they are related to the
standard for which the certification applies, namely power window
system performance. Similarly, we view the language regarding roof
crush as pertaining to components, assemblies, or systems affecting
roof crush.
2. Certification Alternatives Are Available to Final-Stage
Manufacturers
NTEA's argument concerning certification relies on a self-generated
and false dichotomy about certification opportunities, either: (1)
Pass-through certification or (2) testing in accordance with the test
in the FMVSS. As has been made clear by the agency in the multi-stage
certification rulemaking and this FMVSS No. 216a rulemaking, and
recognized by others, final-stage manufacturers may certify on other
bases. With respect to this rule, NTEA ignores the obvious alternatives
available to final-stage manufacturers.
Before turning to the specifics, we recognize that FMVSS No. 216a
does not apply until September 1, 2016, which is five-and-a-half years
away. We do not know with certainty what statements the IVDs will
contain, but we can look at current IVDs and make reasonable
assumptions.
First, the GM IVD is not the only relevant IVD, as other
manufacturers sell incomplete vehicles. The IVD for Model Year 2011
Chrysler incomplete vehicles, dated April 5, 2010, contains the
following statement: ``[t]his vehicle, when completed, will conform to
[F]MVSS 216--Roof Crush Resistance if no alterations are made to the
roof panel or its support structure, including the roof rails, front
header, roof pillars, the door window frames, the windshield and the
windshield mounting system.'' \57\ This provides an opportunity for
final-stage manufacturers to achieve pass-through certification so long
as they do not alter the roof or its supporting structure.
---------------------------------------------------------------------------
\57\ Chrysler Group LLC, Incomplete Vehicle Document 2011 Model
Year, April 5, 2010, available at http://www.dodge.com/bodybuilder/
2011/docs/cc/dddpivd.pdf (last accessed on February 14, 2011).
---------------------------------------------------------------------------
Ford does not have a statement in its IVD on FMVSS No. 216, which
only
[[Page 15915]]
applies to vehicles with a GVWR under 6,000 pounds or less until
September 1, 2016. However, the general language used throughout Ford's
IVD does not appear to be restrictive. For example, for FMVSS No. 118,
Power-Operated Window, Partition, and Roof-Panel Systems, Ford stated
that the completed vehicle will comply to this standard if the ``power
operated windows, motors, wiring, and key and switch activation
systems, where provided by Ford Motor Company, are not removed,
relocated, altered or modified in any way.'' \58\ Similarly, Chrysler's
IVD statement on FMVSS No. 118 stated that its incomplete vehicle, when
completed, will conform to FMVSS No. 118 if ``no alterations are made
to the power window and related electrical systems.'' \59\ Based on
these statements, and others, it does not appear that these IVDs are
``unduly restrictive'' for final-stage manufacturers.
---------------------------------------------------------------------------
\58\ Ford, 2008 Super Duty F-Series Incomplete Vehicle Manual,
March, 2007, p. 15, available at https://www.fleet.ford.com/
truckbbas/non-html/2008/08ivm_%20fseriesmar.pdf (last accessed on
February 14, 2011); Ford, 2011 Super Duty F-Series Incomplete
Vehicle Manual, March 2010, available at https://www.fleet.ford.com/
truckbbas/topics/2011/2011_SD-F_IVM_BC34-19A268-AB.pdf (last
accessed on February 14, 2011).
\59\ Chrysler Group, LLC, Incomplete Vehicle Document 2011 Model
Year, page 2.
---------------------------------------------------------------------------
As we have explained, we do not read GM's IVD as restrictively as
NTEA reads it. However, if final-stage manufacturers feel unduly
restricted by the language in GM's IVD, a different manufacturer's
chassis-cab could be used.
Second, in certain instances, final-stage manufacturers may be able
to use information obtained from equipment manufacturers in making
certifications. We note, for example, that Knapheide advertises that
its KC series bodies for conventional cab chassis, which are designed
for specific Ford, Dodge, and GM chassis, have a mounting kit,
Knapheide Quick Mount brackets and hardware, ``designed to comply with
FMVSS-301.'' \60\
---------------------------------------------------------------------------
\60\ Knapheide Manufacturing Company, Standard Service Bodies
Specifications, available at http://www.knapheide.com/pdfpages/
pricepages/servicebody/UBPP2-3.pdf (last accessed on February 14,
2011).
---------------------------------------------------------------------------
The final-stage manufacturer, rather than the equipment
manufacturer, will be certifying compliance of a vehicle with
applicable FMVSS. Thus, as part of exercising reasonable care in
considering information provided by an equipment manufacturer, the
final-stage manufacturer needs to consider whether it is reasonable to
rely on the information. For example, the final-stage manufacturer can
ask the equipment manufacturer about the basis of any representation it
makes related to compliance with FMVSS. It can also consider whether
there is reason to consider the equipment company a reliable company
and the amount of experience and expertise it may have related to the
manufacture of vehicles that meet applicable FMVSSs.
Third, an IVD provides the basis on which a final-stage
manufacturer could certify, without literal pass-through certification.
This statement was made in our Further Response, and is not addressed
in NTEA's petition for reconsideration. If an IVD is read as not
providing actual pass-through, it will still provide a basis for the
final-stage manufacturer to certify its vehicles as complying with
FMVSS No. 216a. Using the example of the GMT-355 IVD, the IVD states
that the incomplete vehicle conforms to FMVSS No. 216 unless certain
kinds of alterations are made. Thus, according to GM, the GMT-355,
albeit an incomplete vehicle, complies with FMVSS No. 216 at the time
it leaves the incomplete vehicle manufacturer.
For example, if a final-stage manufacturer installs a Knapheide
service body on the back of a GM C/K chassis-cab by drilling holes into
the frame and installing fabricated brackets, the final-stage
manufacturer could still certify without conducting testing. The final-
stage manufacturer can use the IVD, coupled with its knowledge that the
work it does in mounting a truck body to the rear of the incomplete
vehicle does not modify the roof supports (A- or B-pillars) or roof
itself, to come to the conclusion that it will not take the vehicle out
of compliance with FMVSS No. 216a. It could rely on its own technical
judgment, calculations, information obtained by calling the
manufacturer, reviewing body-building manuals, or looking at a host of
other resources available. Regardless, it knows it was given an
incomplete vehicle with a compliant roof, and will only need to certify
based on that fact and its own work. This is not a complex or difficult
task, as the addition of a truck body such as bins or a box attached
directly to the frame would not affect roof strength.
Fourth, NHTSA makes available its data and reports from its testing
of various makes and models of vehicles to various FMVSSs. NHTSA's
Office of Vehicle Safety Compliance tests vehicles, including pickup
trucks. Before testing, NHTSA commonly asks a manufacturer for its
certification data. For those safety standards that include tests, the
agency will perform a test as specified in the FMVSS. The results of
these tests are publicly available. In the past, these tests included
FMVSS No. 216. NHTSA's testing under FMVSS No. 216a is currently
planned to begin later this year, as vehicles are certified to this
standard. See 49 CFR 571.216a S8. If NHTSA tests a pickup truck and a
final-stage manufacturer is considering using it as a chassis-cab, the
final stage-manufacturer can consult the testing results and underlying
data.
Fifth, many resources exist to assist the final-stage manufacturers
in certification. We stated this fact in our May 2006 response and in
the April 2010 Further Response. NTEA does not address the prevalence
of these resources. These resources, most of which are detailed manuals
and instructions from the incomplete vehicle manufacturer, are relevant
both to situations where there is pass-through certification and also
where a final-stage manufacturer may base its certification on an IVD
coupled with its evaluation.
As to pass-through, we note that in some instances, the body
builder manuals may be incorporated into the IVD. NHTSA's multi-stage
regulation, 49 CFR 568.4(9)(b), contains the following statement:
``[t]o the extent the IVD expressly incorporates by reference body
builder or other design and engineering guidance (Reference Material),
the incomplete vehicle manufacturer shall make such Reference Material
readily available to subsequent manufacturers. Reference Materials
incorporated by reference in the IVD shall be deemed to be part of the
IVD.''
The GM Upfitter Web site includes the statement that ``The Body
Builders Manual contains information that may be used in addition to
the Incomplete Vehicle Document (IVD) for any manufacturer making
alterations to a GM complete/incomplete vehicle. No alteration should
be made to the incomplete vehicle which either directly or indirectly
results in any component, assembly or system being in nonconformance
with any Federal Motor Vehicle Safety Standard or Emission
Regulation.'' \61\
---------------------------------------------------------------------------
\61\ GM Upfitter Body Builder manuals, http://
www.gmupfitter.com/body_builder_manuals.html (last accessed on
February 14, 2011).
---------------------------------------------------------------------------
GM's IVD (Attachment A of NTEA's petition) states, ``[i]f
supplemental technical information is required to support this
document, go to the body builder Web site located at http://
www.gmupfitter.com or contact the Upfitter Integration Hotline at 1-
800-875-4742.''
Ford's Incomplete Vehicle Manual for the 2010 Super Duty F-Series
contains the following statement: ``[t]hroughout this manual you will
find references to information found in the Ford Truck
[[Page 15916]]
Body Builders Layout Book. Additional Design Recommendations and
specifications are also provided to assist subsequent stage
manufacturers in completing chassis-cab and incomplete vehicles. The
Ford Truck Body Builders Layout Book can be accessed via the Web at
http://www.fleet.ford.com/truckbbas under the ``Publications'' tab; a
CD-ROM copy may be ordered under the same tab.'' \62\
---------------------------------------------------------------------------
\62\ Ford, 2011 Super Duty F-Series Incomplete Vehicle Manual,
March 2010, p.35, supra note 58.
---------------------------------------------------------------------------
These resources can help the final-stage manufacturer in
determining whether a vehicle complies with a certain standard. These
resources, whether they are printed instructions, or a telephone call
to the incomplete vehicle manufacturer, may provide the basis of the
judgment needed to certify.
F. FMVSS No. 216a Does Not Place ``Undue'' Certification Risk on Final-
Stage Manufacturers
Despite the limited assessment required of a final-stage
manufacturer in certifying a completed chassis-cab vehicle to FMVSS No.
216a with the options described above, and the fact that multi-stage
vehicles have been certified to FMVSS No. 216 for many years, NTEA
argued that the self-certification scheme enacted by Congress forces
its members to undertake ``undue'' certification risk. While NTEA
acknowledged that multi-stage vehicles have been and are being built
and certified to FMVSS No. 216, NTEA presented the issues as whether
NHTSA's regulations ``can permissibly allocate to final-stage
manufacturers full legal responsibility for compliance with a safety
standard when those manufacturers have no reasonable means of
demonstrating conformity to that standard.'' Elsewhere in its petition,
NTEA stated that it ``has never suggested that incomplete vehicle
manufacturers take all certification responsibility for multi-stage
vehicles.'' As we understand these two statements, even though final-
stage manufacturers are selling and certifying vehicles, FMVSS No. 216a
is impractical because it forces final-stage manufacturers to take
legal responsibility under the Vehicle Safety Act for their work.
NTEA's solution is to have single-stage manufacturers certify those
vehicles as being compliant with FMVSS No. 216a, but exclude final-
stage manufacturers from certification.
First, in general, final-stage manufacturers do not have full legal
responsibility--each manufacturer in the manufacturing chain is
responsible for affixing its own certification label. See 49 CFR
567.4(a) and 567.5. As NTEA noted in its Vehicle Certification Guide,
final-stage manufacturers assumed full legal responsibility prior to
the 2005 amendments to the certification rule, but now ``each company
in the manufacturing chain will be legally responsible for its own
work.'' \63\ As we have described, for FMVSS No. 216a, the incomplete
vehicle manufacturer will deliver to the final-stage manufacturer a
chassis-cab with a FMVSS No. 216a compliant, intact roof structure.
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\63\ National Truck Equipment Association, Certification Guide,
Appendix 5l (2007).
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Second, although NTEA stated that unreasonably restrictive
conformity statements put final-stage manufacturers in the position of
either taking ``undue'' risk of certification or exiting the business,
we note that NTEA has not provided any evidence of a single final-stage
manufacturer forced to ``exit the business'' or harmed by the ``undue''
certification risk.\64\
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\64\ NTEA does state in a footnote in its petition that its
members ``report that incomplete vehicle manufacturers refrain from
providing any such guidance on certification issues.'' NTEA Petition
for Reconsideration, Docket No. NHTSA-2009-0093-022, p. 6, fn 10.
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Third, NTEA generally believes that its members do not have the
``reasonable means'' to ``demonstrate conformity'' with any safety
standard that includes tests. Therefore, NTEA requested that the agency
identify specific steps that can be taken by a final-stage manufacturer
that will constitute ``reasonable care,'' for purposes of 49 U.S.C.
30115(a), in certifying a vehicle as complying with FMVSS No. 216a.
NTEA cited language from the 1990 NTEA decision for the proposition
that ``[i]n order for a standard to meet the practicability
requirement, it must offer the regulated party a chance to demonstrate
compliance,'' and ``in order for a standard to be practicable, it must
offer in the body of the standard itself, a means for all subjected to
the standard to prove compliance.'' NTEA, 919 F.2d. at 1153.
We note that the factual predicate in the 1990 NTEA decision was
different than the situation at issue here. The 1990 NTEA court had
before it a safety standard on steering wheel rearward displacement in
crashes that applied to both chassis-cab and non-chassis-cab final-
stage manufacturers. The final-stage manufacturers faced dynamic
testing (crashing a vehicle into a wall) or studies they could not
afford. The court noted that, at that time, pass-through regulations
only applied to chassis-cabs, and final-stage manufacturers that
manufactured on a cutaway chassis or stripped chassis could not pass-
through the certification provided by the chassis-cab manufacturer.
NTEA, 919 F.2d. at 1152. The court order from the 1990 NTEA case
remanded the standard to the ``extent that it applies to vehicles
completed by final-stage manufacturers that cannot pass-through the
certification of the initial manufacturer.'' NTEA, 919 F.2d. at 1158.
For FMVSS No. 216a, we have specifically excluded those multi-stage
trucks for which the final-stage manufacturer would be responsible for
manufacturing the roof and/or its support structure and certifying it,
as was the case with cutaways and stripped chassis. As relevant here,
FMVSS No. 216a applies only to final-stage manufacturers that build
trucks on a chassis-cab.
Chassis-cabs will depart from the incomplete vehicle manufacturer's
facility with an IVD and a compliant roof. In NTEA's view, they cannot
be relied upon, because final-stage manufacturers are only provided
with ``overly-restrictive'' IVDs that limit pass-through opportunities.
Therefore, NTEA argued, because final-stage manufacturers are presented
with a document that they read, to be applicable, limits later-stage
manufacturing, they must conduct expensive tests or computer
simulations, the cost of which, is prohibitive or take ``undue''
certification risk. Furthermore, NTEA argued that since NHTSA has not
described in the standard, in advance, each and every way that a final-
stage manufacturer can demonstrate ``reasonable care,'' FMVSS No. 216a
is impracticable.
We disagree. We have explained in the multi-stage vehicle
rulemaking why we reject NTEA's broad claims about the current multi-
stage certification scheme not providing final-stage manufacturers a
reasonable way to ensure compliance and certify their vehicles. See 71
FR 28168; 70 FR 7414. Likewise, we explained above that pass-through
certification is available, and that other methods, short of testing,
are available if pass-through certification is not.\65\
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\65\ NTEA's petition for reconsideration of FMVSS No. 216a is
not appropriate mechanism to address multi-stage certification
issues, such as requesting a mechanism to challenge conformity
statements. These issues were resolved in the multi-stage
certification rulemaking in 2006.
---------------------------------------------------------------------------
There appears to be a fundamental misunderstanding about the
applicability of the tests described in FMVSS No. 216a and other
standards' ``crash tests.'' Simply put, ``reasonable care'' does not
require a manufacturer to test its vehicles in the manner specified
[[Page 15917]]
by the relevant safety standard, or even to test the vehicles at all. A
manufacturer may choose any means of evaluating its products to
determine whether the vehicle complies with the requirements of the
safety standards, provided, however, that the manufacturer certifies
that the vehicle will comply with the safety standards when tested by
the agency according to the procedures described in the standard. See
49 U.S.C. 30115.\66\
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\66\ Congress used different terms in its requirements for
Federal motor vehicle safety standards and for certification. The
differences are meaningful. The authorization for standards
provides, among other things, that the standards be ``stated in
objective terms.'' 49 U.S.C 30111(a). In contrast, reasonable care,
which is used in 49 U.S.C. 30112(b)(2) [prohibitions on manufacture
and sale of noncomplying motor vehicles] and 49 U.S.C. 30115
[certification of compliance] looks more broadly to care exercised
by a prudent and competent person under similar circumstances. See
definition from Black's Law Dictionary, below.
---------------------------------------------------------------------------
To put this into context, it is helpful to consider the way that
single-stage manufacturers typically certify vehicles. Each
manufacturer assembles a vehicle for testing that it decides is
representative of a model. It then certifies other variations of the
model based upon the test results and engineering design of the
vehicles within that model. In essence, the single-stage manufacturers
certify based upon testing and evaluation, and do so even though the
word ``evaluation'' does not appear in the safety standards. That is so
because single-stage manufacturers, such as GM, Ford, or Honda, do not
``demonstrate conformity'' by testing each and every vehicle that they
sell--to do so would mean that all consumers would buy crash-tested
vehicles. Instead, single-stage vehicle manufacturers will ordinarily
conduct, or sponsor, vehicle testing to support their certifications
with a FMVSS. For the vehicles that they sell, as we have stated, and
as GM stated in 2005 in comments to NTEA's petition for reconsideration
of the multi-stage vehicle certification rule, certification is based
on testing and evaluation.'' \67\
---------------------------------------------------------------------------
\67\ See GM's May 13, 2005 comment on NTEA's petition for
reconsideration of the multi-stage certification rule, Docket No.
NHTSA-99-5673-0056.
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We recognize, of course, that small final-stage manufacturers may
not have the resources of large, single-stage manufacturers to conduct
``testing and/or evaluation.'' For that reason, we excluded from FMVSS
No. 216a those multi-stage trucks for which the final-stage
manufacturer would be responsible for designing and manufacturing the
roof structure. However, for chassis- cabs, which arrive from the
incomplete vehicle manufacturer with a compliant, intact roof structure
certified by a reputable manufacturer on the basis of testing and/or
evaluation, we do not see how the final-stage manufacturer's additions
will affect the vehicle's roof strength that would require more
testing. Nor has NTEA provided any examples. As we have explained
repeatedly, and discussed above, these final-stage manufacturers can
use pass-through certification. If they cannot, they can use the IVD as
the foundation on which they can certify, as they will receive a
vehicle certified as compliant with FMVSS No. 216a, or they can rely on
a comparable pickup truck that has been certified by the manufacturer.
Certifications can and will occur without testing or computer
simulations, as the final-stage manufacturer can evaluate the vehicle
in light of the available information provided by the incomplete
vehicle manufacturers in IVDs and other resources familiar to final-
stage manufacturers, and its addition(s) or alteration(s).
Despite this practical understanding, NTEA demands that the agency
place the instances that will constitute reasonable care in FMVSS No.
216a. In short, NTEA is seeking a kind of assurance of compliance that
is inconsistent with that of self-certification under 49 U.S.C. 30115,
and fundamentally different from that of manufacturers generally,
including single-stage manufacturers.
The agency has long said that it is unable to judge what efforts
would constitute ``reasonable care'' in advance of the actual
circumstances. This answer has been provided by multiple
administrations over the decades in response to requests to provide
interpretations of the Vehicle Safety Act.\68\ Moreover, NHTSA does not
delineate ``reasonable care'' in the Federal motor vehicle safety
standards.\69\ This is due to the fact that the exercise of reasonable
care is different from and broader than demonstrating conformity with a
safety standard by the test method described in the standard.\70\
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\68\ See e.g., Letter from Philip R. Recht, Chief Counsel,
NHTSA, to Mr. Mark Warlick, Four Winds International Corporation
(February 27, 1995), available at http://isearch.nhtsa.gov/files/
10595.html (last accessed February 14, 2011).; Letter from Paul
Jackson Rice, Chief Counsel, NHTSA, to Mr. Vaughn Crawley, Vice
President, Monitor Manufacturing Co. (August 15, 1990), available at
http://isearch.nhtsa.gov/files/2625y.html (last accessed February
14, 2011); and Letter from Jacqueline Glassman, Chief Counsel,
NHTSA, to Ms. S. Trinkl, Quality Management, DEKRA Automobil GmbH
(December 30, 2004), available at http://isearch.nhtsa.gov/files/
Trinkl.1.html (last accessed February 14, 2011).
\69\ In a final rule concerning advanced air bags issued in
2000, the agency removed the ``due care provision'' contained in
FMVSS No. 208, Occupant Crash Protection, stating that it does not
fit with the overall statutory scheme and ``it introduces a measure
of subjectivity into the issue of whether a vehicle complies with a
standard.'' 65 FR 30680, 30725 (May 12, 2000).
\70\ While NTEA objects to being subject to reasonable care
standards, its members are otherwise subject to such standards. See
Croskey v. BMW of North America, 532 F.3d 511 (6th Cir. 2008);
Morales v. American Honda Motor Co., 151 F.3d 500 (6th Cir. 1998);
see also Williamson v. Mazda Motor of America, 131 S.Ct. 1131
(2011); Fabian v. Fulmer Helmets, Inc., 628 F.3d. 278 (6th Cir.
2010); Sours v. General Motors Corp., 717 F.2d 1511, 1517 (6th Cir.
1983); Restatement (Third) of Torts, Product Liability Sec. 2, 4
(1998).
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We note that the term ``reasonable care'' is similar to the term
``reasonable person,'' which is a widely understood term used in tort
law. Black's Law Dictionary defines ``reasonable care'' as being ``the
degree of care that a prudent and competent person engaged in the same
line of business or endeavor would exercise under similar
circumstances.'' \71\
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\71\ Black's Law Dictionary, Eighth Edition, Thomson West.
---------------------------------------------------------------------------
While testing in accordance with the test procedures described in
NHTSA's standards may be the best approach, it is not the only way to
certify. As we have indicated before, the United States self-
certification system leaves it up to the vehicle manufacturer as to the
bases it uses to certify its vehicles. This provides reasonable
flexibility that may take into account new approaches and technologies
without the time consuming process of adopting detailed regulations; in
fact, at least major manufacturers have not advocated burdening
certification with detailed, technical regulations. The providing of a
step-by-step method of how a vehicle manufacturer should certify its
product is something that was not called for or contemplated by
Congress when it enacted the broad self-certification system, rather
than a system of governmental approval in advance of the sale of the
product,\72\ as in the case with certain drugs.
---------------------------------------------------------------------------
\72\ See generally, Letter from Jacqueline Glassman, Chief
Counsel, NHTSA, to Ms. S. Trinkl, Quality Management, DEKRA
Automobil GmbH (December 30, 2004), available at http://
isearch.nhtsa.gov/files/Trinkl.1.html (last accessed February 14,
2011) (for brief comparison of the European approval process and the
U.S. self-certification process).
---------------------------------------------------------------------------
NTEA, which has noted that thousands of items are produced for work
truck applications, has not suggested how the instances that constitute
reasonable care should or could be included in an objective Federal
motor vehicle safety standard. If there is a way around this dilemma,
NTEA has not provided an answer,
[[Page 15918]]
despite repeated entreaties for it to do so.
As the industry and the agency understands, there can be many
methods a manufacturer can use to form the basis of its certification
other than conducting a test using the procedures contained in a
particular Federal motor vehicle safety standard. This, apparently, is
understood by NTEA. In its Truck Equipment Handbook,\73\ it states that
the principle of due care \74\ allows one vehicle type to be certified
on the basis of testing a similar vehicle type. It also states in that
handbook that, in cases of modification and/or completion of vehicles
outside of the chassis manufacturer's guidelines, the principle of due
care allows the small manufacturer to employ one or a combination of
alternative testing methods, such as engineering analysis and
calculations, computer simulations, periodic testing, laboratory tests
and inspection by an independent laboratory to certify the vehicle.
NTEA also states in the handbook that while such tests, calculations
and simulations need not be performed for each vehicle, ``a
manufacturer must be reasonably certain that a particular vehicle
configuration will conform to all applicable standards.'' \75\
(Emphasis added.)
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\73\ National Truck Equipment Association, Truck Equipment
Handbook, Eighth edition, October 2010, p. 61.
\74\ The National Traffic and Motor Vehicle Safety Act
originally required the exercise of ``due care.'' 80 Stat. 722
(1966), see NTEA, 919 F.2d. at 1151. The wording was changed to
``reasonable care'' in the recodification of the Federal
transportation laws in 1994 to maintain consistency throughout the
revised code. See H.R. Rep. 103-180, at 3, reprinted in 1994
U.S.C.C.A.N. 818. The recodification expressly provided that there
is no substantive change in meaning. See Public Law 103-272, 108
Stat. 745.
\75\ National Truck Equipment Association, Truck Equipment
Handbook, Eighth edition, October 2010, p. 61.
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As explained in this response, the demands placed on final-stage
manufacturers by FMVSS No. 216a are minimal--all that is required is
reasonableness. If the roof or its structure is not modified or
altered, the final-stage manufacturer can rely on the IVD for pass-
through certification or another basis on which it can certify. In
instances of the latter, for purposes of FMVSS No. 216a, the agency
believes that a final-stage manufacturer's reasonable reliance on the
IVD or on a comparable pickup truck that has been certified by the
manufacturer, coupled with sound technical judgment, would constitute
the exercise of reasonable care should no modifications be made to the
chassis-cab's roof or its A- or B-pillars. In our view, however, more
robust means of analysis for completed chassis-cabs, including testing,
may be appropriate in instances where the final-stage manufacturer
alters or modifies the intact roof structure or its supporting
structures. NTEA has not identified an instance when this has been a
necessity.
G. NTEA's Claim That NHTSA Needs To Test Multi-Stage Vehicles in
Support of Its Regulatory Analysis Ignores the Fact That We Excluded
the Trucks That Could Cause Compliance or Certification Issues for
Final-Stage Manufacturers
NTEA stated that a review of the agency's final rule and Regulatory
Impact Analysis indicates that NHTSA did not include any completed
multi-stage vehicles in connection with any of the testing it performed
to support its amendments to FMVSS No. 216a. It said that it appears
that NHTSA has no test data to support a conclusion that the revised
test in the final rule is workable and reasonable with respect to
multi-stage vehicles.
As discussed earlier, to address practicability concerns, we
included chassis-cabs in FMVSS No. 216a, and excluded those trucks for
which final-stage manufacturers would be completing or building the
roof structure. These are the vehicles that could likely cause
practicability problems for final-stage truck manufacturers.
The chassis-cabs will have intact, compliant roofs at the time they
are delivered to the final-stage manufacturer. Moreover, these vehicles
will be identical in material respects to vehicles that are sold by the
same incomplete vehicle manufacturers as pickup trucks, and have the
same roof structures. The incomplete vehicle manufacturers will be
redesigning the roof structures of their pickup trucks, as necessary,
to meet FMVSS No. 216a, and will then be providing incomplete versions
of the same vehicles, with the same roof structures, to final-stage
truck manufacturers. The final-stage truck manufacturers will be able
to comply with FMVSS No. 216a by not taking these vehicles out of
compliance with the standard. It is for this reason that NHTSA's
technical analyses did not specifically test multi-stage vehicles.
Furthermore, as the chassis-cabs are based on the incomplete vehicle
manufacturer's pickup trucks, and the FMVSS No. 216a test only
compresses the supported cab, it would be redundant to separately test
multi-stage versions of these vehicles.
The 216a Test
Part of the rationale for not testing completed multi-stage
vehicles is due to the nature of the FMVSS No. 216a test. Originally,
in the NPRM, we proposed a test with a rigid support under the
vehicle's frame. However, in the test procedure adopted in the May 2009
final rule, the agency will support the vehicle body off of its
suspension and rigidly secure the vehicle's sill and chassis on a rigid
horizontal surface.\76\ An angled platen compresses the vehicle above
its A- and B-pillars. The vehicle must meet the specified strength-to-
weight (SWR) to be considered compliant.
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\76\ A detailed discussion is located at 74 FR at 22367 under
the heading, ``Tie Down Procedure.''
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As we stated in the final rule, the FMVSS No. 216a test was adopted
and changed from the NPRM test procedure based on comments from the
industry and because the test procedure was found to reduce unwanted
deflection of the vehicle body when undergoing testing when the load is
applied to the roof. This was done due to issues in conducting the test
with body-on-frame vehicles, e.g. chassis-cabs.
We excluded those multi-stage trucks from FMVSS No. 216a where the
final-stage manufacturer would design and fabricate the roof, its
support structure, or a portion thereof. We included chassis-cabs in
FMVSS No. 216a; only the vehicle's cab is tested, and not the frame. As
we explained, incomplete vehicle manufacturers are responsible for the
design and fabrication of these chassis-cabs, most of which are based
off of pickup trucks sold directly to consumers in dealerships.
In its petition, NTEA argued that NHTSA failed to consider or test
multi-stage vehicles in the final rule. Given the vehicles covered, the
standard, and the test procedure, such testing is not necessary for our
analysis.\77\ First, as we stated previously, only the vehicle's
chassis-cab is tested, and the chassis-cab is supported by a horizontal
surface at the vehicle's sill. The cab is compressed from an angled
platen above the A- and the B-pillars into this added, rigid support at
the cab's sill. Therefore, modifications to the vehicle's frame would
not affect the vehicle's compliance in the FMVSS No. 216a test. Second,
if a final-stage manufacturer installs a box that is taller than the
cab, the box will be removed. Similarly, any additions to the roof will
be removed
[[Page 15919]]
before the test, per the regulation. Furthermore, it is not apparent
how the modifications generally made by a final-stage manufacturer will
create compliance difficulties with FMVSS No. 216a. Moreover, as we
explained in the multi-stage certification rulemaking, if final-stage
manufacturers identify particular areas where compliance with FMVSS No.
216a is a problem, they, or NTEA on behalf of its members, can petition
for a temporary exemption under 49 CFR part 555.\78\
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\77\ However, NHTSA did test a Ford F-250 chassis-cab on October
2, 2008. See Docket No. NHTSA-2009-0093-0019. Video files and test
reports are available to the public through NHTSA's Internet vehicle
crash test database: http://www-nrd.nhtsa.dot.gov/database/veh/
veh.htm.
\78\ NTEA stated to its members that it could submit a petition
and individual companies would only need to submit limited
information to opt-in. See National Truck Equipment Association,
Certification Guide, Appendix 5l (2007).
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In our Further Response, we stated that in analyzing the 2006 GMT-
355 IVD, which is for a body-on-frame vehicle, pass-through
certification would be available to final-stage manufacturers if no
modifications were made to the roof or its structural support members.
We still believe that to be true. NTEA has not presented NHTSA with
descriptions or evidence of any modifications that are made to a
chassis-cab or its support structure. If such modifications do occur,
they could affect the vehicle's compliance with FMVSS No. 216a if the
roof or its support structure is weakened. However, we have no evidence
that such modifications occur. As we presented earlier in this
document, NHTSA is unaware of equipment manufacturers that require
modifications to the chassis-cab or its support structure.
The only modifications mentioned by NTEA in it comments or petition
is where a final-stage manufacturer drills holes in the frame rails
behind the chassis-cab and attaches a box onto those frame rails. FMVSS
No. 216a will only test the roof strength of the chassis-cab
independent of the vehicle's frame. The chassis-cab is manufactured by
an incomplete vehicle manufacturer who will provide the final-stage
manufacturer with a compliant roof. Therefore, provided modifications
are not made to the vehicle's chassis-cab or its support structure,
subsequent modifications to the vehicle's frame rails will not affect
the vehicle's performance in the FMVSS No. 216a test. For those
reasons, NHTSA believes there was no reason for the agency to
specifically test a completed multi-stage truck in support of its
evaluation.
H. All Multi-Stage Vehicles Should Not Be Excluded
NTEA argued that excluding all multi-stage vehicles would not
unacceptably deprive those users of the safety benefits provided by the
roof crush standard. NTEA stated that its statistics show that the vast
majority of multi-stage vehicles are rated above 6,000 pounds. NTEA
noted that FMVSS No. 216a excludes trucks other than ones built on
chassis-cabs (and incomplete vehicles with a full exterior van body),
meaning that the agency excluded approximately one-third of multi-stage
vehicles with a GVWR of 6001 pounds to 10,000 pounds. NTEA also said
that chassis with a GVWR of over 10,000 pounds constitute 94.5 percent
of the entire market of chassis rated above 6,000 pounds. Thus, the
vast majority of multi-stage vehicles above 6,000 pounds GVWR are
already excluded from FMVSS No. 216a, and its position would not have
any appreciable effect on the multi-stage vehicle population that will
be subject to the rule.
NTEA's argument ignores the fact that Congress, in SAFETEA-LU,
required NHTSA to establish rules or standards that will reduce vehicle
rollover crashes and mitigate deaths and injuries associated with such
crashes for motor vehicles with a GVWR of not more than 10,000 pounds.
We recognized in the final rule that there are benefits for vehicles
with a GVWR above 6,000 pounds up to 10,000 pounds, although they are
relatively small compared to those associated with lighter vehicles.
However, the benefits are not trivial. We noted that if a multi-stage
vehicle is involved in a rollover, the vehicle's roof strength will be
an important factor in providing occupant protection.
In the final rule, as discussed above, NHTSA included those multi-
stage trucks that have an intact, compliant roof structure when it
leaves the incomplete vehicle manufacturer and excluded those trucks
for which the final-stage manufacturer would be responsible for
designing and manufacturing the roof structure. While the number of
included vehicles is a small number of the total multi-stage vehicles
built and certified every day, adequate justification as to why the
drivers of chassis-cabs should be less safe than the driver of a nearly
identical pickup truck has not been provided. This is especially so
when the later-stage manufacturing does not affect the strength of the
chassis-cab's roof.
While there may not be an appreciable effect on the entire multi-
stage population, as NTEA argues, that was not the intent. Instead, the
intent was to implement the provisions of SAFETEA-LU and, where
practicable, to give drivers of vehicles with a GVWR of 10,000 pounds
or less increased safety in case of a rollover. We note that NTEA has
not presented a persuasive safety argument. Instead, its arguments are
based primarily on overstated certification risk. As such, we believe
that this rule should continue to include those vehicles with an
intact, compliant roof structure, whether they are delivered to the
dealership or the final-stage manufacturer.
IV. Conclusion
For the reasons discussed above, we deny the petition for
reconsideration submitted by NTEA.
Authority: 49 U.S.C. 322, 30111, 30115, 30166 and 30177;
delegation of authority at 49 CFR 1.50.
Issued: March 16, 2011.
Daniel C. Smith,
Senior Associate Administrator for Vehicle Safety.
[FR Doc. 2011-6595 Filed 3-21-11; 8:45 am]
BILLING CODE 4910-59-P