
[Federal Register Volume 76, Number 55 (Tuesday, March 22, 2011)]
[Proposed Rules]
[Pages 15903-15919]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6595]


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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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \63\ National Truck Equipment Association, Certification Guide, 
Appendix 5l (2007).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.)
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \76\ A detailed discussion is located at 74 FR at 22367 under 
the heading, ``Tie Down Procedure.''
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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


