[Federal Register Volume 75, Number 66 (Wednesday, April 7, 2010)]
[Rules and Regulations]
[Pages 17590-17604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7907]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. NHTSA-2009-0093]
RIN 2127-AG51
Federal Motor Vehicle Safety Standards; Roof Crush Resistance
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.
ACTION: Final rule; further response to comments.
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SUMMARY: In May 2009, NHTSA published a final rule that upgraded the
agency's safety standard on roof crush resistance. This document
provides a further response to comments submitted by the National Truck
Equipment Association (NTEA) during that rulemaking.
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. Final Rule Upgrading FMVSS No. 216
B. Challenge by NTEA
C. Consent Motion To Stay Briefing Schedule
II. Today's Document and Related Actions
III. Multi-Stage Vehicles and the Multi-Stage Certification Scheme
A. Multi-Stage Vehicles
B. Safety Standards and Certification
C. 2005 and 2006 Final Rules on Certification of Vehicles Built
in Two or More Stages
IV. Multi-Stage Issues in the Rulemaking To Upgrade FMVSS No. 216
A. FMVSS No. 216 Prior to the Upgrade
B. The Proposed Rule
C. Public Comments
D. May 2009 Final Rule
V. Further Response to Comments Regarding Multi-Stage Vehicles
A. Introduction
B. The Current Certification Scheme Is Not an Unlawful
Delegation of Agency Authority
C. Current IVDs Concerning FMVSS No. 216 are Workable
D. Final-Stage Manufacturers Can Certify Their Vehicles Built on
Chassis-Cabs as Being Compliant With FMVSS No. 216a
E. In General, IVDs Are Workable
F. NHTSA Provided a Testing Alternative, FMVSS No. 220
G. There Is Little Cost for Multi-Stage Manufacturers To Comply
With FMVSS No. 216a
H. Conclusion
I. Background
A. Final Rule Upgrading FMVSS No. 216
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 Federal Motor Vehicle
Safety Standard (FMVSS) No. 216, Roof Crush Resistance. The upgraded
standard is designated FMVSS No. 216a.
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) 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.
Second, the rule extended the applicability of the standard so that
it will also apply to vehicles with a GVWR greater than 2,722 kilograms
(6,000 pounds), but not greater than 4,536 kilograms (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 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. The rule also included a
number of special provisions, including ones related to leadtime, to
address the needs of multi-stage manufacturers, alterers, and small
volume manufacturers.
B. 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.
C. 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.
II. Today's Document and Related Actions
In this document, we provide a fuller response to comments
submitted by NTEA on our proposal to upgrade FMVSS No. 216.
We are also publishing two separate documents related to the May
2009 final rule. One is a response to petitions for reconsideration of
that rule. The other is a correcting rule. The correcting rule
incorporates a provision that was discussed in the preamble but
inadvertently omitted from the regulatory text. As explained in the
preamble, the agency decided to
[[Page 17591]]
exclude a narrow category of multi-stage vehicles from FMVSS No. 216
altogether, multi-stage trucks with a GVWR greater than 2,722 kilograms
(6,000 pounds) not built on either a chassis-cab or an incomplete
vehicle with a full exterior van body. The regulatory text
inadvertently omitted the reference to incomplete vehicles with a full
exterior van body.
III. Multi-Stage Vehicles and the Multi-Stage Certification Scheme
A. 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.
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Most incomplete vehicles are manufactured by large manufacturers,
such as General Motors, Ford and Chrysler. 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.
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\2\ As defined by The Regulatory Flexibility Act of 1980, as
amended, 5 U.S.C. 601(3).
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In terms of degree of completeness, the spectrum of incomplete
vehicles ranges from a stripped chassis, i.e., an incomplete vehicle
without an occupant compartment, to a chassis-cab. As defined in 49 CFR
567.3, 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. 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.
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. In some cases, there may
also be intermediate stage manufacturers involved in the production of
a multi-stage motor vehicle.
B. Safety Standards and Certification
NHTSA issues Federal motor vehicle safety standards applicable to
the manufacture and sale of new motor vehicles and certain items of
motor vehicle equipment under the authority of the National Traffic and
Motor Vehicle Safety Act, as amended, codified as Chapter 301 of Title
49 of the United States Code, ``Motor Vehicle Safety'' (Vehicle Safety
Act).\3\ The agency does not provide approvals of motor vehicles or
equipment. Instead, the Vehicle Safety Act establishes a ``self-
certification'' process under which each manufacturer is responsible
for certifying that its products meet all applicable safety
standards.\4\
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\3\ 49 U.S.C. 30101 et seq.
\4\ 49 U.S.C. 30112(a) and 30115.
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Each of NHTSA's safety standards specifies 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 when tested by the agency according to the procedures
specified in the standard 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, engineering judgment or other
means.\5\
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\5\ See 71 FR 28183-28184.
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All motor vehicles, whether single stage or multi-stage, must be
certified to meet applicable FMVSSs.\6\ NHTSA has developed 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 manufacturers with the
use of an incomplete vehicle document (IVD). With limited exceptions,
\7\each manufacturer of an incomplete vehicle and each intermediate
manufacturer \8\ assumes legal responsibility for all certification-
related duties under the Vehicle Safety Act with respect to:
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\6\ 49 U.S.C. 30112(a) and 30115.
\7\ See 70 FR at 7432-33, 49 CFR 567.5(b) and (c).
\8\ In the remainder of the preamble, NHTSA will not discuss
intermediate manufacturers separately.
(i) Components and systems it installs or supplies for
installation on the incomplete vehicle, unless changed by a
subsequent manufacturer;
(ii) The vehicle as further manufactured or completed by an
intermediate or final-stage manufacturer, to the extent that the
vehicle is completed in accordance with the IVD; and
(iii) The accuracy of the information contained in the IVD.\9\
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\9\ 49 CFR 567.5(b)(1).
Final-stage manufacturers have complementary duties. Pursuant to 49
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CFR 567.5(d), final-stage manufacturers assume
legal responsibility for all certification-related duties and
liabilities under the Vehicle Safety Act, except to the extent that
the incomplete vehicle manufacturer or an intermediate manufacturer
has provided equipment subject to a safety standard or 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 Federal motor vehicle safety standards fully
addressed therein.\10\
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\10\ 49 CFR 567.5(d)(1).
Final-stage manufacturers also have the duty to affix a
certification label to each vehicle in a manner that does not obscure
labels affixed by previous stage manufacturers and that, among other
things, contains certification statements.\11\ The final-stage
manufacturer may make one of the following alternative certification
statements: (1) The vehicle conforms to all applicable FMVSS; (2) the
vehicle was completed in accordance with the prior manufacturers' IVD
where applicable and conforms to all applicable FMVSS; or (3) the
vehicle
[[Page 17592]]
was completed in accordance with the prior manufacturers' IVD where
applicable except for certain listed exceptions by FMVSS and the
vehicle conforms to all applicable FMVSS.\12\
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\11\ 49 CFR 567.5(d)(2).
\12\ 49 CFR 567.5(d)(2)(v)(A).
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As reflected above, 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 (this representation is
most often made with respect to chassis-cabs since, as indicated
earlier, they have a completed occupant compartment); (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 (e.g., the vehicle, when
completed, will meet the brake standard if it does not exceed gross
axle weight ratings, the center of gravity at a specific vehicle weight
rating is not above a certain height and no alterations are made to any
brake system component on the incomplete vehicle); 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
(e.g., when components and systems must be added by the final-stage
manufacturer and compliance cannot be decided at the time the
incomplete vehicle leaves the incomplete vehicle manufacturer).
When the IVD makes a Type 1 or Type 2 statement, there is ``pass-
through'' certification unless obviated by a subsequent manufacturer.
The final-stage manufacturer can rely on the IVD to certify the vehicle
to a particular standard.
Multi-stage vehicle manufacturers sometimes ``alter'' a vehicle to
the end-users' specifications. An altered vehicle is one that is
completed and certified in accordance with the agency's regulations and
then altered before the first retail sale of the vehicle, in such a
manner as may affect the vehicle's compliance with one or more FMVSS or
the validity of the vehicle's stated weight ratings or vehicle type
classification. This definition does not include the addition,
substitution, or removal of readily attachable components, such as
mirrors or tire and rim assemblies, or by minor finishing operations
such as painting. The person which performs such operations on a
completed vehicle is referred to as a vehicle ``alterer.'' An alterer
must certify that the vehicle remains in compliance with all applicable
FMVSS affected by the alteration.
C. 2005 and 2006 Final 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 to
address various certification issues related to vehicles built in two
or more stages and, to a lesser degree, to altered vehicles. Among
other things, the rule allowed the use of pass-through certification so
that it can be used not only for multi-stage vehicles based on chassis-
cabs, but also for those based on other types of incomplete vehicles.
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 within the affected industry
and before the agency and the courts.
Since 1977, NHTSA's regulations for certification of multi-stage
vehicles have contained provisions for certification statements by
chassis-cab manufacturers.\13\ In 1990, the United States Court of
Appeals for the Sixth Circuit ruled in National Truck and Equipment
Ass'n v. NHTSA, 919 F.2d 1148 (6th Cir. 1990), that the requirements of
a particular FMVSS were impracticable for final-stage manufacturers
using vehicles other than chassis-cabs for which the incomplete vehicle
manufacturer was not required to provide ``pass-through''
certification. That decision led to rulemaking that ultimately resulted
in the February 2005 multi-stage certification final rule.
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\13\ 49 CFR 567.5 (1977 and 1978). See 42 FR 37814 (July 25,
1977).
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NTEA petitioned for reconsideration of the February 2005 multi-
stage certification final rule. NHTSA responded to that organization's
petition in a final rule; response to petition for reconsideration
published in the Federal Register (71 FR 28168) on May 15, 2006. 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.\14\ It claimed, among other things,
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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\14\ 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.
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In denying most aspects of NTEA's petition for reconsideration,
NHTSA provided specific and detailed responses to these and other
relevant arguments. We explained that certification is important for
safety and that the certification scheme is ``workable.''
We stated that 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 by final-stage manufacturers, the regulatory system of
``pass-through'' certification is reasonable. The IVD provides the
basis for the final-stage manufacturer's certification with enumerated
FMVSS, on various conditions, including, for example, that the final-
stage manufacturer does not exceed the GVWR of the chassis or introduce
modifications to the incomplete vehicle that interfere with compliance.
As we explained, the IVD is a general document that accompanies the
incomplete vehicle. IVDs are typically not limited to one application
(one body or type of equipment), but contain limits and conditions in
light of the nature and capacity of the chassis and potential problems
resulting from completion of an incomplete vehicle. Final-stage
manufacturers are informed, by the IVD, of components and systems that
should not be altered, and, by following those instructions and other
information from the incomplete vehicle manufacturer, they are able to
certify.
Overall, NTEA sought to remove the certification responsibility
from final-stage manufacturers and impose much of that responsibility
on incomplete vehicle manufacturers. NTEA's petition ignored the fact
that incomplete vehicle
[[Page 17593]]
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,\15\ 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--many types of multi-
stage vehicles 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.\16\
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.\17\
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\15\ 71 FR at 28176 (section titled ``The Availability of Multi-
stage Vehicles Belies NTEA's Position'') and at 28184-85 (section
titled ``NHTSA's Market Forces Argument Is Justified and Consistent
With the Multi-stage Vehicle Market'').
\16\ See, e.g., http://www.ntea.com/mr/divisions.asp.
\17\ 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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In our May 2006 response to petitions, 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 schoolchildren 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.\18\
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\18\ 71 FR at 28176; See also 71 FR at 28175.
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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.\19\ The IVD was for the General Motors (GM) CK chassis-
cab. 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.
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\19\ 71 FR at 28177-28183 (section titled ``The Existing IVDs
Are Workable).
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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 28183-28184 (section titled ``Additional Resources
Available to Final-Stage Manufacturers'').
\21\ Final-stage manufacturers are sometimes referred to as
upfitters in the trade.
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We also explained that issues regarding impracticability should be
decided in the context of rulemaking for each FMVSS.\22\
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\22\ 71 FR 28186.
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IV. Multi-Stage Issues in the Rulemaking To Upgrade FMVSS No. 216
A. FMVSS No. 216 Prior to the Upgrade
FMVSS No. 216 seeks to reduce deaths and serious injuries resulting
from the roof of a vehicle being crushed and pushed into the occupant
compartment when the roof strikes the ground during rollover crashes.
Prior to the upgrade, the standard required that when a large steel
test plate (sometimes referred to as a platen) is placed in contact
with either side of the forward edge of the roof of a vehicle and then
pressed downward, simulating contact of the roof with the ground during
a rollover crash, with steadily increasing force until a force
equivalent to 1.5 times the unloaded weight of the vehicle is reached,
the distance that the test plate has moved from the point of contact
must not exceed 127 mm (5 inches). The criterion of the test plate not
being permitted to move more than a specified amount is sometimes
referred to as the ``platen travel'' criterion. The application of
force was limited to 22,240 Newtons (5,000 pounds) for passenger cars,
even if the unloaded weight of the car times 1.5 is greater than that
amount.
Since 1991, this standard applied to passenger cars, multipurpose
passenger vehicles (MPVs), trucks, and buses with a GVWR of 2,722
kilograms (6,000 pounds) or less.\23\ Compliance with the final rule
was required on September 1, 1994. Therefore, FMVSS No. 216 has applied
to some multi-stage vehicles, e.g., certain small trucks and small
recreation vehicles, since 1994.\24\
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\23\ 56 FR 15510.
\24\ GM has sold an incomplete vehicle chassis-cab, the GMT-355,
that has a GVWR of 2,722 kilograms (6,000 pounds) or less and is
therefore subject to FMVSS No. 216. This chassis-cab is based on the
Chevrolet Colorado/GMC Canyon. Final-stage manufacturers can certify
completed vehicles by using the IVD for the GMT 355.
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B. The Proposed Rule
1. NPRM and SNPRM in General
On August 23, 2005, NHTSA published in the Federal Register (70 FR
49223) a NPRM to upgrade FMVSS No. 216, Roof Crush Resistance.\25\ The
NPRM reflected comments received in response to a Request for Comments
(``RFC'') published in the Federal Register (66 FR 53376) on October
22, 2001, and research and testing conducted prior to the publication
of the RFC.
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\25\ Docket No. NHTSA-2005-22143.
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To better address fatalities and injuries occurring in roof-
involved rollover crashes, we proposed to extend the application of the
standard to vehicles with a GVWR of up to 4,536 kilograms (10,000
pounds), and to strengthen the requirements of FMVSS No. 216 by
mandating that the vehicle roof structures withstand a force equivalent
to 2.5 times the unloaded vehicle weight (``SWR''), and to eliminate
the 22,240 Newton (5,000 pound) force limit for passenger cars. We note
that shortly before the NPRM was published, Congress enacted the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU), which included a specific requirement for us to
upgrade FMVSS No. 216 relating to roof strength for driver and
passenger sides for motor vehicles with a GVWR of not more than 4,536
kilograms (10,000 pounds).
Further, in recognition of the fact that the pre-test distance
between the interior surface of the roof and a given occupant's head
varies from vehicle model to vehicle model, we proposed to regulate
roof strength by requiring that the crush not exceed the available
headroom. Under the proposal, this requirement would replace the
current limit on platen travel.
We also proposed to:
Allow vehicles manufactured in two or more stages, other
than chassis-cabs, to be certified to the roof crush requirements of
FMVSS No. 220, School Bus Rollover Protection, instead of FMVSS No.
216.
Clarify the definition and scope of exclusion for
convertibles.
[[Page 17594]]
Revise the vehicle tie-down procedure to minimize
variability in testing.
On January 30, 2008, NHTSA published in the Federal Register (73 FR
5484) a supplemental notice of proposed rulemaking (SNPRM) for our
ongoing roof crush resistance rulemaking.\26\ In that document, we
asked for public comment on a number of issues that might affect the
content of the final rule, including possible variations in the
proposed requirements. We also announced the release of the results of
various vehicle tests conducted since the proposal.
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\26\ Docket No. NHTSA-2008-0015.
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2. Multi-Stage Issues
In our August 2005 NPRM to upgrade FMVSS No. 216, we included a
section titled ``Vehicles Manufactured in Two or More Stages.'' \27\
For vehicles manufactured in two or more stages, other than vehicles
incorporating chassis-cabs, we proposed to give manufacturers the
option of certifying to either the existing roof crush requirements of
FMVSS No. 220, School Bus Rollover Protection, or the new roof crush
requirements of FMVSS No. 216. FMVSS No. 220 uses a horizontal plate,
instead of the angled plate of Standard No. 216.
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\27\ 70 FR 49234-49235.
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In developing our proposal, we considered whether the proposed
standard would be appropriate for the type of motor vehicle for which
it would be prescribed. We stated that we believed it was appropriate
to consider incomplete vehicles, other than those incorporating
chassis-cabs, as a vehicle type subject to different regulatory
requirements. We anticipated that final-stage manufacturers using
chassis-cabs to produce multi-stage vehicles would be in position to
take advantage of ``pass-through certification'' of chassis-cabs, and
therefore did not believe the option of alternative compliance with
FMVSS No. 220 was appropriate.
We noted that while we believed that the requirements in FMVSS No.
220 have been effective for school buses, we were concerned that they
may not be as effective for other vehicle types. The FMVSS No. 216 test
procedure results in roof deformations that are consistent with the
observed crush patterns in the real world for light vehicles. Because
of this, we explained that our preference would be to use the FMVSS No.
216 test procedure for light vehicles. We believed, however, that this
approach would fail to consider the practicability problems and special
issues for multi-stage manufacturers.
We stated that in these circumstances, we believed that the
requirements of FMVSS No. 220 appeared to offer a reasonable avenue to
balance the desire to respond to the needs of multi-stage manufacturers
and the need to increase safety in rollover crashes. We noted that
several states already require ``para-transit'' vans and other buses,
which are typically manufactured in multiple stages, to comply with the
roof crush requirements of FMVSS No. 220.\28\ We tentatively concluded
that these state requirements show the burden on multi-stage
manufacturers for evaluating roof strength in accordance with FMVSS No.
220 is not unreasonable, and applying FMVSS No. 220 to these vehicles
would ensure that there are some requirements for roof crush protection
where none currently exist.
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\28\ These states include Pennsylvania, Minnesota, Wisconsin,
Tennessee, Michigan, Utah, Alabama, and California.
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C. Public Comments
We received comments concerning requirements for multi-stage and
altered vehicles from Advocates for Highway Safety (``Advocates''),
NTEA, National Mobility Equipment Dealers Association (NMEDA) and
Recreational Vehicle Industry Association (RVIA).
1. Overview of Comments on Multi-Stage Issues
Advocates stated that it opposed permitting FMVSS No. 220 as an
alternative for multi-stage vehicles. It claimed that FMVSS No. 220 is
a ``weak'' standard whose effects on roof strength in actual rollover
crashes are mostly unknown.
NTEA recommended that all multi-stage vehicles be excluded from
roof crush resistance requirements. It stated that manufacturers of
non-chassis-cab vehicles will not be able to conduct the tests or
perform engineering analysis to ensure conformance to FMVSS No. 220.
NTEA also disagreed with the assumption that the presence of State
requirements for FMVSS No. 220 compliance demonstrates that final-stage
manufacturers can actually comply.
NTEA also stated it is impractical for the agency to assume
manufacturers of multi-stage vehicles built on chassis-cabs will be
able to rely on IVDs to provide pass-through certification for
compliance as it relates to roof strength. It argued that the final-
stage manufacturer would therefore be responsible for conducting costly
analyses and testing to verify compliance with FMVSS No. 216.
NMEDA expressed concern that the FMVSS No. 220 option would only be
available for multi-stage vehicles. It asked that the FMVSS No. 220
option be extended to raised or altered roof vehicles. To encompass the
modifiers in the proposed upgrade to FMVSS No. 216, NMEDA asked that a
vehicle roof that is altered after first retail sale be considered in
compliance if it meets the requirements of FMVSS No. 216 or FMVSS No.
220. NMEDA also stated that raising a roof increases the available
headroom and that the roof therefore can crush more before there is any
contact with an occupant's head. NMEDA requested the agency account for
the additional headroom beyond the original vehicle's headroom in
establishing any requirement.
RVIA supported our proposal to permit FMVSS No. 220 as an option
for small motor homes as this would allow manufacturers to address the
unique issues concerning such specialized vehicles built in two or more
stages.
2. Detailed Summary of NTEA Comments
NTEA stated that NHTSA incorrectly assumes that final-stage
manufacturers of vehicles built on chassis-cabs will be able to use
pass-through certification as a means to comply with the rule.
According to NTEA, NHTSA acknowledged certification problems faced by
final-stage manufacturers with respect to safety standards that are
based on the performance of a vehicle in a dynamic test. NTEA stated
that in the preamble to the proposed rule to upgrade FMVSS No. 216,
NHTSA made several references to the compliance difficulties and
compliance issues faced by final-stage manufacturers, but without any
explanation of the root cause of those problems. NTEA said the proposed
standard is a dynamic test standard. NTEA stated that in the rulemaking
revising certification regulations for multi-stage vehicles, NHTSA
concluded that the cost of dynamic vehicle testing is a legitimate
concern when relatively small numbers of similarly configured vehicles
are produced by a small manufacturer. NTEA stated that the agency also
noted that alternative means of compliance such as computer modeling
are not appreciably more affordable for small volume manufacturing.
According to NTEA, under these circumstances, no company could
incur the costs of performing the tests described in the proposed rule
(or in any other dynamic test standard). NTEA stated that the multi-
stage manufacturers, for the most part, do not produce any standard
models. The
[[Page 17595]]
overwhelming majority of multi-stage vehicles are produced to end-user
specifications on a custom-order basis reflecting specifications
provided by the customer.
NTEA argument that an FMVSS is not practicable if the only means of
compliance offered in the Standard is the use of pass-through
certification.
NTEA argued that an FMVSS is not practicable if the only means of
compliance offered in the Standard is the use of pass-through
certification. It noted that the Vehicle Safety Act at 49 U.S.C.
30111(a) states that each FMVSS must ``be practicable, meet the need
for motor vehicle safety, and be stated in objective terms.'' NTEA
cited the 1990 NTEA case, and stated that the Sixth Circuit ruled that
``for a standard to be practicable, it must offer in the body of the
standard, a means for all subject to the standard to prove
compliance.'' \29\
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\29\ NTEA comment to the NPRM at p. 5, quoting NTEA decision,
919 F.2d at 1153.
---------------------------------------------------------------------------
NTEA stated that NHTSA anticipates that final-stage manufacturers
will be able to pass-through, and thereby rely on, the conformity
statements provided by the chassis-cab manufacturers in IVDs. NTEA
stated there is no requirement in NHTSA's regulations that compels an
incomplete vehicle manufacturer to provide the type of conformity
statement as to any safety standard that would facilitate pass-through
opportunities for the final-stage manufacturer. That organization said
that the chassis-cab manufacturer has absolute discretion whether to
provide a Type 1, Type 2, or Type 3 statement.
NTEA said that NHTSA apparently believes market forces will cause
chassis-cab manufacturers to provide reasonable compliance envelopes
when making conformity statements. NTEA cited the agency's multi-stage
vehicle certification rulemaking, and the petition for reconsideration
it submitted on the May 2005 final rule which, at that time, had not
yet been responded to by NHTSA. NTEA claimed that it demonstrated
through the submission of IVDs with its petition that NHTSA's market
forces theory is not supported by the IVDs that are provided by major
incomplete vehicle manufacturers. NTEA stated that those IVDs show that
incomplete vehicle manufacturers routinely provide Type 1 and Type 2
conformity statements that are so restrictive that they provide no
opportunity whatsoever for pass-through certification.
NTEA stated that if a chassis-cab manufacturer provides a Type 3
conformity statement, there is nothing to pass-through to the final-
stage manufacturer. It stated that if the chassis-cab manufacturer
provides a Type 1 conformity statement--i.e., one that states the
vehicle will conform to the standard if no alterations are made to
identified components in the vehicle--or if the manufacturer provides a
Type 2 conformity statement--i.e., one that sets out specific
conditions of final manufacture under which the vehicle would conform
to the test--then the final-stage manufacturer's ability to rely on (or
``pass-through'') the conformity statement depends entirely on whether
the vehicle can be completed by the final-stage manufacturer within the
parameters and limitations contained in the conformity statement. NTEA
stated that if the parameters and limitations are reasonable, then
there is some chance of pass-through, but if the parameters and
limitations are unreasonable (or if the stated conditions of conformity
are simply conservative as an engineering matter), pass-through will
not be possible.
NTEA also argued that incomplete vehicle manufacturers have strong
incentive to provide very narrow compliance envelopes, given
responsibilities set forth in the agency's certification regulation.
NTEA cited 49 CFR 567.5 and stated that the certification regulations
allocate to the incomplete vehicle manufacturer legal responsibility
for all components incorporated by a final-stage manufacturer (other
than defective components and systems) to the extent the vehicle is
completed in accordance with the instructions contained in the IVD,
while the regulations allocate to the final-stage manufacturer legal
responsibility for any work done by the final-stage manufacturer to
complete the vehicle that was not performed in accordance with
instruction contained in the IVD.
NTEA argued that in the context of pass-through certification, a
conformity statement in an IVD is a zero-sum game. It said that if the
final-stage manufacturer can complete the vehicle within the parameters
and conditions of the incomplete vehicle manufacturer's Type 1 or Type
2 conformity statement, the incomplete vehicle manufacturer bears legal
responsibility for compliance with the FMVSS in question; if the final-
stage manufacturer cannot complete the vehicle within the parameters of
the incomplete vehicle manufacturer's Type 1 or Type 2 conformity
statement, or if the incomplete vehicle manufacturer provides a Type 3
conformity statement, the final-stage manufacturer bears legal
responsibility for compliance with the subject FMVSS. NTEA stated that
the incomplete vehicle manufacturer's control over the type and text of
its conformity statements essentially gives it unfettered discretion to
allocate to itself or to the final-stage manufacturer the legal
responsibilities and liability for compliance with the safety standard,
and its decision is not subject to review or challenge because the
regulations do not require the incomplete vehicle manufacturer to be
reasonable or to act in good faith in crafting its conformity
statements. NTEA argued that this aspect of the certification scheme--
the ability of an interested private party to determine the legal
liability of another party with respect to a safety standard--amounts
to an impermissible delegation of NHTSA's statutory authority to a
private party. It cited several cases.\30\
---------------------------------------------------------------------------
\30\ See NTEA comment at p. 8.
---------------------------------------------------------------------------
NTEA argued that a safety standard cannot meet the statutory
requirement that it be practicable if the sole, plausible means of
compliance available to affected manufacturers is the use of pass-
through certification. It said that this is the case because that means
of compliance depends entirely on the actions of private parties (i.e.,
incomplete vehicle manufacturers) that are free to provide Type 3
statements as to any standard, and that are free to establish any
parameters and conditions they wish, reasonable or unreasonable, in any
Type 1 or Type 2 conformity statement. NTEA argued that the proposed
rule thus fails to meet the requirement of the 1990 NTEA case that a
standard offer in the body of the standard a means for all subject to
the standard to prove compliance. NTEA cited its petition for
reconsideration of the multi-stage vehicle certification rule, and
claimed that it had demonstrated that incomplete vehicle manufacturers
routinely provide Type 1 and Type 2 conformity statements with respect
to dynamic test standards that are so restrictive as to effectively
provide no pass-through opportunity whatsoever. NTEA argued that in the
real world, i.e., the reality defined by the IVDs that chassis
manufacturers provide with their products, pass-through certification
is not a viable option for final-stage manufacturers.
NTEA argument that the conformity statements in existing IVDs make
clear that final-stage manufacturers are not likely to have pass-
through opportunities for the proposed rule.
NTEA claimed that the inadequacy of pass-through certification as
the sole, plausible means of demonstrating compliance to the proposed
rule is plainly reflected in the IVDs that exist for chassis-cabs rated
up to 2,722
[[Page 17596]]
kilograms (6,000 pounds) GVWR and for those rated 2,723 and 4,536
kilograms (6,001--10,000 pounds) GVWR. That organization provided IVDs
with conformity statements as examples of the restrictiveness of IVDs.
NTEA stated that there is currently only one chassis-cab sold today
that is rated 2,722 kilograms (6,000 pounds) or less and is therefore
subject to the existing FMVSS No. 216: the General Motors GMT-355
chassis-cab. According to NTEA, all other currently available chassis-
cabs are rated above 2,722 kilograms (6,000 pounds) GVWR and thus fall
outside the purview of the existing standard.
NTEA cited language from the IVD for the 2006 model year GMT-355,
and attached a copy of the IVD to its comments. That organization
claimed that the Type I conformity statement to FMVSS No. 216 included
in that IVD would provide no pass-through opportunity whatsoever to a
final-stage manufacturer. NTEA argued that it would be invalidated by
any alteration that affected the function, physical, chemical, or
mechanical properties of any component, assembly or system in the
chassis-cab. NTEA stated that final-stage manufacturers at a minimum
will install a truck body onto the GMT-355 chassis-cab. NTEA claimed
that the simplest installation of a truck body likely weighing several
hundred pounds, plus the means used by the final-stage manufacturer to
mount that body (e.g., by drilling holes in to the frame of the
chassis-cab and bolting the body to the frame) will affect the physical
properties, for example, of the chassis frame and numerous other
structural components of the chassis-cab.
NTEA stated that GM includes an identical conformity statement for
FMVSS No. 216 in its C/K fullsize pickup truck IVD. That organization
stated that this also shows that GM is inclined to give a highly
restrictive Type I statement. NTEA also stated that the IVDs provided
by Ford for incomplete vehicles in the 2,723 and 4,536 kilograms (6,001
to 10,000 pound) GVWR range provide highly restrictive conformity
statements, and cited conformity statements for FMVSS Nos. 212, 219 and
301.
NTEA argument that it is impracticable for multi-stage vehicles
built on non-chassis-cabs to be certified to the proposed rule or to
FMVSS No. 220.
NTEA argued that manufacturers of multi-stage vehicles built on
non-chassis-cabs will be unable to confirm compliance of those vehicles
either to the proposed rule or to FMVSS No. 220. It stated that those
manufacturers will be unable to conduct the tests described in the
proposed rule or to perform some alternative engineering analysis .
NTEA argued that NHTSA's attempt to provide manufacturers with a
reasonable certification option is well-intended, but misses the mark
for several reasons.
NTEA stated that, as NHTSA seems to recognize, pass-through
certification is unlikely to be available to manufacturers of multi-
stage vehicles built on non-chassis-cabs, either for FMVSS No. 216 or
for FMVSS No. 220, because those vehicles do not have completed cab
compartments (which likely will cause the incomplete vehicle
manufacturers to provide Type 3 conformity statements or highly
restrictive Type 1 or 2 conformity statements). NTEA stated that NHTSA
proposed to permit manufacturers of multi-stage vehicles built on non-
chassis-cabs the option of certifying to FMVSS No. 220 instead of FMSS
No. 216.
First, according to NTEA, the only vehicles rated 10,000 pounds or
less that are subject to FMVSS No. 220 are Type A school buses. NTEA
stated that these vehicles are built primarily on the Ford E series
cutaway chassis and the GM G-Van cutaway chassis. That organization
stated that Ford and GM provide Type 3 conformity statements for these
vehicle and that, accordingly, manufacturers of multi-stage vehicles
completed on these non-chassis-cabs will have no opportunity to pass-
through the certification of the incomplete vehicle manufacturer. NTEA
attached copies of the IVDs for these vehicles to its comment.
NTEA stated that as to all of the other models of non-chassis-cabs
rated 10,000 pounds or less, there simply is no conformity statement
provided with respect to FMVSS No. 220. That organization stated that
this reflects the fact that none of these incomplete vehicles are used
in the manufacturing of school buses.
NTEA stated that NHTSA indicated in the preamble of the proposed
rule that certain States require para-transit vans and other buses to
comply with FMVSS No. 220 and that these State requirements show that
the burden on multi-stage manufacturers for evaluating roof strength in
accordance with FMVSS No. 220 is not unreasonable. NTEA stated that the
existence of State requirements concerning compliance with a dynamic
test standard is not good evidence that final-stage manufacturers in
fact are able to confirm compliance of vehicles with that standard.
NTEA also stated that to the extent school bus manufacturers or
para-transit bus manufacturers are able to comply with FMVSS No. 220,
that would merely reflect the particular circumstances regarding the
manufacture of those vehicles, i.e., the production of relatively
standardized models in relatively large production runs. NTEA stated
that the fact that manufacturers in certain niche markets may be able
to comply with FMVSS No. 220 does not change the fact that the typical
final-stage manufacturer, which produces scores of vehicle
configurations in small production runs, cannot demonstrate compliance
with that dynamic testing standard through testing or engineering
analysis.
NTEA compliance cost estimates.
NTEA stated that, in connection with its proposal, NHTSA presented
extensive cost data which explain how much it would cost to
structurally upgrade a vehicle in order to meet the new testing
requirements, and then factored in increased vehicle weight and the
effect on fuel costs. That organization stated that these costs are
applied to populations of vehicle models each in the hundreds of
thousands of vehicles.
NTEA stated that NHTSA's cost estimates do not factor in the costs
of compliance testing for multi-stage produced vehicles. That
organization stated that its members are faced with at least 1,085
identifiable vehicle configurations in the affected weight category
that would require separate compliance testing. It stated that these
vehicle configurations could be built by almost any of the 1,000 or
more final-stage manufacturers in the U.S. NTEA stated that as each of
these companies are competitors, there is no reason to believe that if
one company actually tested one configuration that they would or could
share that testing with another company. It also stated that no trade
association or consortium could ever conduct over 1,000 compliance
tests for the affected vehicle designs and then continue to test each
year any of these configurations that are redesigned.
NTEA cited cost estimates for conducting the FMVSS No. 216 test and
a test based on FMVSS 220. It also stated that the test is a
destructive test, and that while the vehicle could be repaired and sold
as used, this would be unwise for liability reasons and the vehicle
should be destroyed after the test. NTEA stated that there are few, if
any, final-stage manufacturers that have the equipment or personnel to
conduct such tests, and that they would need to outsource the testing.
NTEA stated that to its knowledge there are only three companies in the
country that regularly perform such tests for third parties, and
[[Page 17597]]
final-stage manufacturers would have to incur substantial costs to
transport their vehicles long distances to have them tested. It also
said that following the testing, the vehicles could not be sold as new
and would need to be repaired even to be sold as used, resulting in
additional costs to be absorbed by the final-stage manufacturer. NTEA
stated that, given these costs, it would be impracticable for
manufacturers to demonstrate compliance by performing tests.
NTEA stated that NHTSA appeared to recognize that the cost of
testing would be prohibitive for both vehicles built on chassis-cabs
and those built on non-chassis-cabs, and that it would also be
impracticable to demonstrate compliance by computer simulation or other
engineering analysis. And, despite that recognition, NTEA stated that
NHTSA proposed to apply the standard.
Based on discussions with one of the companies that conduct FMVSS
compliance tests, NTEA understands that the average cost of conducting
the existing test in FMVSS No. 216 is approximately $3,600 per vehicle
configuration. It stated that NHTSA estimates that tests to comply with
the proposed regulation will cost approximately $5,000. NTEA stated
that a total test cost of $5,000 plus a vehicle value loss of $15,000
for 1,085 vehicle configurations results in testing costs of
$21,700,000. It stated that this figure does not include design or
structural costs for compliance or certain other costs.
NTEA concluded this portion of its comment by stating that the cost
benefit analysis prepared by NHTSA ignores more than 20 million dollars
in compliance tests primarily placed on small businesses.
NTEA conclusion.
NTEA stated that, as demonstrated, final-stage manufacturers will
face compliance burdens that are not reasonable under NHTSA's proposed
rule, and that compliance with the proposed requirements in FMVSS No.
216 will not be possible for final-stage manufacturers.
That organization stated that while it applauded NHTSA's decision
to propose an alternative to compliance with FMVSS No. 216, the option
to comply with FMVSS No. 220 would not provide any relief to
manufacturers of multi-stage vehicles built on non-chassis-cabs. It
stated that, due to costs, those manufacturers will not be able to
perform the dynamic tests set forth in the proposed rule or in FMSVS
No. 220, nor conduct engineering analyses to simulate the performance
of vehicles in those tests. It also stated that because manufacturers
of non-chassis-cabs do not have a completed occupant compartment, there
will be no pass-through certification opportunities for multi-stage
vehicles built on those chassis. NTEA argued that the option of
certifying to FMVSS No. 220 is no option at all.
NTEA stated that as the demonstration of compliance with neither
FMVSS No. 220 nor the proposed FMVSS No. 216 requirements will be
possible for most final-stage manufacturers building on chassis-cabs or
non-chassis-cabs, it urged that all vehicles manufactured in two or
more stages be excluded from the rule.
D. May 2009 Final Rule
1. The Final Rule in General
As discussed earlier, 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. The upgraded standard is designated FMVSS No. 216a.
First, for the vehicles currently subject to the standard, i.e.,
passenger cars and MPVs, trucks and buses with a GVWR of 2,722
kilograms (6,000 pounds) 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.
Second, the rule extended the applicability of the standard so that
it will also apply to vehicles with a GVWR greater than 2,722 kilograms
(6,000 pounds), but not greater than 4,536 kilograms (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, i.e., the same vehicle must meet the force requirements
when tested 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.
The rule also included a number of special provisions, including
ones related to leadtime, to address the needs of multi-stage
manufacturers, alterers, and small volume manufacturers.
2. The Final Rule and Multi-Stage Issues
In the May 2009 final rule upgrading FMVSS No. 216, we included a
section in the preamble titled ``Requirements for Multi-Stage and
Altered Vehicles.'' \31\ We included a summary of the comments
concerning requirements for multi-stage and altered vehicles from NTEA,
NMEDA, Advocates, and RVIA, and a response to those comments.
---------------------------------------------------------------------------
\31\ 74 FR at 22372-74. This section was part of a larger
section titled ``Agency Decision and Response to Comments.''
---------------------------------------------------------------------------
In addressing the issues raised by NTEA, we stated that, as a
general matter, we believe that it is neither necessary nor would it be
appropriate to exclude all multi-stage vehicles from roof crush
resistance requirements. We explained that the purpose of FMVSS No. 216
is to improve occupant safety in the event of a rollover. If a multi-
stage vehicle is involved in a rollover, the vehicle's roof strength
will be an important factor in providing occupant protection. We stated
that, therefore, while we seek to address the special needs and
circumstances of multi-stage manufacturers, we declined to provide any
blanket exclusion for all multi-stage vehicles. However, based on
NTEA's comments, we did not extend FMVSS No. 216 to any trucks built on
van cutaways or other types of incomplete vehicles without a completed
roof structure, a difference from the NPRM.
The upgraded FMVSS No. 216 rule does not apply to any vehicles with
a GVWR greater than 4,536 kilograms (10,000 pounds), including multi-
stage vehicles. A good number of multi-stage vehicles, such as tow-
trucks, some airport shuttles, and customized farm trucks, have a GVWR
greater than 4,536 kilograms (10,000 pounds). Also, as with the
previous version of FMVSS No. 216, the standard does not apply to
school buses, which have been covered by FMVSS No. 220.
In the final rule, we then addressed the issues raised by NTEA and
other commenters separately for the different types of multi-stage
vehicles. The requirements that apply to multi-stage vehicles with a
GVWR of 4,536 kilograms (10,000 pounds) or less are dependent on the
GVWR and type of vehicle, including whether the vehicle was built using
a chassis-cab.
Multi-stage vehicles built on chassis-cab incomplete vehicles.
If a vehicle is built on a chassis-cab, and it has a GVWR of 4,536
kilograms (10,000 pounds) or less, it is required to meet the same
FMVSS No. 216 requirements as single stage vehicles. Therefore, these
vehicles must meet the requirements of FMVSS No. 216a and
[[Page 17598]]
have a SWR of at least 3.0 if they have a GVWR of 2,722 kilograms
(6,000 pounds) or less and a SWR of 1.5 if they have a GVWR above that
level but not greater than 4,536 kilograms (10,000 pounds).
As background, we explained that 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. As such, chassis-cabs have intact
roof designs. Chassis-cabs are based on vehicles that are sold as
complete vehicles by larger manufacturers, e.g., medium and full size
pickup trucks, so their roof structure will be designed to meet the
upgraded requirements of FMVSS No. 216. A good example of a chassis-cab
vehicle is a moving truck. The driver of a chassis-cab vehicle would
need to exit the vehicle to access the contents in the rear of the
vehicle.
We stated that after considering the comments of NTEA, we believed
that final-stage manufacturers can rely on the incomplete vehicle
documents (IVD) for pass-through certification of compliance with FMVSS
No. 216 for vehicles built using chassis-cabs. To do this, final-stage
manufacturers will need to remain within specifications contained in
the IVD. We stated that since the stringency of FMVSS No. 216 (SWR
requirement) is dependent on a vehicle's unloaded vehicle weight, the
final-stage manufacturer would need to remain within the specification
for unloaded vehicle weight. If they did not, the roof would not likely
have the strength to comply with FMVSS No. 216. We also explained that
final-stage manufacturers will need to avoid changes to the vehicle
that would affect roof strength adversely.\32\
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\32\ We also noted that some changes made by final-stage
manufacturers could affect the ability to conduct an FMVSS No. 216
test, e.g., for a multi-stage truck, the addition of a cargo box
structure higher than the occupant compartment could interfere with
the placement of the FMVSS No. 216 test device. To address this
concern, we included a specification in the final rule that such
structures are removed prior to testing. (However, the structures
are still counted as part of a vehicle's unloaded weight.)
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Multi-stage trucks with a GVWR greater than 2,722 kilograms (6,000
pounds) not built using a chassis-cab and not built using an incomplete
vehicle with a full exterior van body.
We explained that, based on the comments received, we had decided
to exclude from FMVSS No. 216 multi-stage trucks with a GVWR greater
than 2,722 kilograms (6,000 pounds) not built using a chassis cab and
not built using an incomplete vehicle with a full exterior van body.
This was a change from the NPRM. First, to be excluded, these multi-
stage vehicles must be a truck. A truck is defined in 49 CFR 571.3 as
being a ``motor vehicle with motive power * * * designed primarily for
the transportation of property or special purpose equipment.'' Second,
to be excluded, these multi-stage trucks cannot be built using a
chassis-cab or using an incomplete vehicle with a full exterior van
body. Both chassis-cabs and incomplete vehicles built on a full
exterior van body contain a completed roof structure, but would need
additions before a final-stage manufacturer could certify its
compliance as a completed vehicle. Incomplete vehicles with full
exterior van bodies could include a van that did not have any seats. An
incomplete vehicle such as this could, for example, be completed as a
truck (cargo van) by adding front seats and interior shelves and
partitions. Such a vehicle would not be excluded from the standard.
If a multi-stage truck within this weight range is not built on a
chassis-cab or on a full exterior van body, then the vehicle is
excluded from FMVSS No. 216 and the final-stage manufacturer would not
need to certify compliance with the standard. Typically, these vehicles
would be built on cutaways or on a stripped chassis. A cutaway chassis
is a van cab design whose occupant compartment is not complete and ends
immediately behind the driver and front passenger seat, i.e. there is
no wall behind the front seats. A good example of this type of a multi-
stage truck is a parcel delivery vehicle. These specialized vehicles
are typically built on van cutaways because the driver or passenger may
need access to the contents in the rear of the vehicle. A stripped
chassis is an incomplete vehicle that is less complete than a cutaway,
and could be nothing more than a rolling chassis consisting of only the
engine, transmission, and ladder-type frame.
The agency excluded these vehicles in the final rule because there
may be practicability problems. These incomplete vehicles will not have
an intact roof. Because the strength of the roof may be dependent on
the structure to be added by the final-stage manufacturer, the
incomplete vehicle manufacturer may not provide IVD or similar
information that would permit pass-through certification. Moreover, the
design of the completed truck may be such that it is not possible to
test the vehicle to FMVSS No. 216 (due to interference with the FMVSS
test device) or inappropriate for testing with FMVSS No. 220.
Multi-Stage Buses and MPVS Not Built on Chassis-Cabs
For other multi-stage vehicles not built on chassis-cabs, we stated
that we continued to believe, for the reasons discussed in the NPRM,
that permitting FMVSS No. 220 as an option is a reasonable way to
balance the desire to respond to the needs of multi-stage manufacturers
and the need to increase safety in rollover crashes. These vehicles
would be classified as a bus or MPV. Under 49 CFR 571.3, a bus is a
motor vehicle ``* * * designed for carrying more than ten persons,''
and a MPV is defined as a motor vehicle ``* * * designed to carry ten
passengers or less which is constructed on a truck chassis or with
special features for occasional off-road operation.'' These buses and
MPVs are built commonly using a van cutaway and would include, e.g.,
transit shuttle vehicles, ambulances, mobility vehicles and recreation
vehicles. The FMVSS No. 220 test uses a single, horizontal platen and
requires a SWR of 1.5.
In responding to Advocates' comment arguing against permitting
FMVSS No. 220 as an alternative for multi-stage vehicles because it
believes that FMVSS No. 220 is not sufficiently stringent, we noted
that the organization did not provide analysis or data addressing the
special circumstances faced by multi-stage manufacturers, or explain
why it believed these manufacturers could certify compliance of their
vehicles to FMVSS No. 216. We stated, therefore, that the commenter had
not provided a basis for us to take a different position than we had
taken in the NPRM. We stated that, as we had discussed in the NPRM, we
believed the requirements in FMVSS No. 220 have been effective for
school buses, but we are concerned that they may not be as effective
for other vehicle types. We explained that our preference would be to
use the FMVSS No. 216 test procedure for light vehicles, but that this
approach would fail to consider the practicability problems and special
issues for multi-stage manufacturers.
We noted that RVIA supported our proposal permitting testing to the
FMVSS No. 220 standard, and that some of the vehicles in this category
are already required to meet the requirements of FMVSS No. 220 as a
result of State regulations.
[[Page 17599]]
Multi-Stage Vehicles and Complete Vehicles With a GVWR Greater Than
2,722 Kilograms (6,000 Pounds) Which Have Been Changed by Raising Their
Original Roof
In the May 2009 final rule preamble, we stated that, in response to
the comments of NMEDA, we agreed that the FMVSS No. 220 option should
be available to multi-stage and complete vehicles with a GVWR greater
than 2,722 kilograms (6,000 pounds) which have been changed by raising
their original roof.
We stated that we believed that practicability issues arise for
vehicles with a GVWR greater than 2,722 kilograms (6,000 pounds) whose
roofs are raised. We also stated that we believe that the FMVSS No. 220
option is appropriate for the ``para-transit'' vans and buses. We
stated that the FMVSS No. 220 option will help ensure that these
occupants are afforded a level of protection that is currently not
required. We stated that we were not providing this option to vehicles
with raised roofs and a GVWR of less than or equal to 2,722 kilograms
(6,000 pounds).
We stated that we believed that the practicability issues for
vehicle alterers which raise roofs on the vehicles at issue are
comparable to those of final-stage manufacturers. An alterer may raise
a roof on a vehicle that was originally certified to FMVSS No. 216. We
also stated that we believe that permitting alterers which raise roofs
on these vehicles the option of certifying to FMVSS No. 220 balances
potential practicability issues with the need to increase safety in
rollovers.
Multi-Stage Vehicles With a GVWR of 2,722 Kilograms (6,000 Pounds) or
Less
If a multi-stage vehicle has a GVWR of 2,722 kilograms (6,000
pounds) or less, it previously was subject to FMVSS No. 216. If these
vehicles are built using a chassis-cab, they must comply with the
upgraded roof crush resistance standard, including the 3.0 SWR
requirement. For these vehicles that are not built on a chassis-cab,
the final-stage manufacturer has the option of meeting either the
upgraded roof crush resistance standard in FMVSS No. 216a, or can meet
the standard in FMVSS No. 220 (1.5 SWR). As previously discussed, that
test uses a single, horizontal platen.
V. Further Response to Comments Regarding Multi-Stage Vehicles
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 as evidenced by
present IVDs; 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, is 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.
To get to NTEA's conclusion--FMVSS No. 216 should not apply to
multi-stage vehicles--one has to believe that the certification scheme
for multi-stage vehicles, which has been in place for several decades,
is unworkable and invalid, at least as applied to FMVSS No. 216. NTEA
has been making this argument in various contexts for over 25
years.\33\
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\33\ See 71 FR 28169-28171.
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Generally, NTEA makes the argument that pass-through certification
is an impermissible delegation of NHTSA's statutory authority to a
private party. Specific to FMVSS No. 216, NTEA believes NHTSA
incorrectly assumes that pass-through certification will be available.
NTEA argues that current IVDs prepared by incomplete vehicle
manufacturers for FMVSS No. 216 and other standards are so restrictive
that a final-stage manufacturer would violate the IVD by making a
simple installation.
If that is so, NTEA argues, the final-stage manufacturers would be
left to conduct their own testing to certify compliance with FMVSS No.
216. According to that organization, neither the two-sided platen test
in FMVSS No. 216 nor the horizontal platen school bus test in FMVSS No.
220 is workable. Testing to either standard is, in NTEA's estimation,
too burdensome and costly. According to NTEA, because NHTSA incorrectly
assumes that pass-through certifications will be available, the
agency's analysis of the costs of the rule is incorrect, and the rule
is overly burdensome as to final-stage manufacturers.
For the reasons discussed below, NHTSA rejects NTEA's arguments and
their conclusions.
A. Introduction
While NTEA has repeatedly claimed 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, tanker trucks, work trucks, flatbed and stake trucks, tow
trucks, dump trucks, and gasoline tank trucks on the road.
Moreover, final-stage manufacturers have certified multi-stage
vehicles with a GVWR of 2,722 kilograms (6,000 pounds) or less to the
current version of FMVSS No. 216. As noted earlier, FMVSS No. 216 was
extended to trucks, buses, and MPVs with a GVWR of 2,722 kilograms
(6,000 pounds) or less in a final rule published in 1991. This is a
relatively low gross vehicle weight rating for commercial vehicles,
which results in limited offerings. But, significantly, General Motors
(GM) has sold an incomplete vehicle chassis-cab, the GMT-355, that has
a GVWR of 2,722 kilograms (6,000 pounds) or less and is therefore
subject to FMVSS No. 216. GM would not have offered the vehicle for
years if there was not a market for them, as completed by final-stage
manufacturers.
We note that under the May 2009 final rule, FMVSS No. 216 will not
be applicable to vehicles with a GVWR greater than 4,536 kilograms
(10,000 pounds). Incomplete vehicle manufacturers will not need to
provide an IVD regarding FMVSS No. 216 for these heavier vehicles. In
our estimation, the largest number of multi-stage vehicles are in this
category.
In addition, final-stage manufacturers are currently certifying the
compliance of their vehicles with a number of complex safety standards
that include crash testing as part of the agency's compliance tests.
These include, for example, FMVSS No. 214, Side Impact Protection,
FMVSS No. 208, Occupant Crash Protection (frontal air bag technology),
and FMVSS No. 301, Fuel System Integrity. These manufacturers
ordinarily rely on the IVD in making these certifications.
NTEA's comments further contemplate no assistance from the
incomplete vehicle manufacturer. However, NHTSA has seen the converse
to be true--there are IVDs, upfitter guides, best practices manuals and
help lines provided by incomplete vehicle manufacturers. Final-stage
manufacturers also have their own technical expertise and engineering
judgment, and commercially available computer aided engineering
software.
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
[[Page 17600]]
a vehicle.\34\ 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.
---------------------------------------------------------------------------
\34\ This has been recognized in interpretations by NHTSA's
Chief Counsel.
---------------------------------------------------------------------------
In addition, NHTSA provided substantial leadtime. The rule becomes
effective for multi-stage vehicles with a GVWR of 2,722 kilograms
(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 4,536 kilograms (10,000 pounds) or less on September 1, 2017.
These dates are one year after the requirements are fully effective for
single stage vehicles.
B. The Current Certification Scheme Is Not an Unlawful Delegation of
Agency Authority
NTEA argued that under the current certification scheme the ability
of an interested private party to determine the legal responsibility of
another party with respect to a safety standard, which it contends is
the result of the incomplete vehicle manufacturer creating the IVD,
amounts to an impermissible delegation of NHTSA's statutory authority
to a private party.
NTEA made the same argument in its petition for reconsideration of
the certification rule, and the agency addressed it in its May 2006
response to that petition.\35\ As we explained in that response, NTEA
relied on a case involving an unlawful delegation of an agency's
authority to a private entity.\36\ However, NTEA ignored the holding in
that case, that the relevant inquiry on a private delegation issue is
to assess Congressional intent, based on the pertinent statute(s) and
its legislative history.
---------------------------------------------------------------------------
\35\ 71 FR at 28186-87.
\36\ Nat'l Park and Conservation Ass'n v. Stanton, 54 F.Supp. 2d
7 (D.D.C. 1999).
---------------------------------------------------------------------------
In the Vehicle Safety Act, Congress imposed the responsibility to
certify compliance on manufacturers and distributors.\37\ The Safety
Act created a self-certification scheme. Under this statutory
framework, the agency promulgates the FMVSSs, and it is then the
manufacturer's or distributor's responsibility to comply with these
standards and to furnish a certification to the distributor or dealer
that the vehicle or equipment conforms to all applicable FMVSSs. The
statute, as originally enacted, did not provide for agency review and
approval of the manufacturer's certification or for agency allocation
of responsibility of certification in the multi-stage vehicle context.
---------------------------------------------------------------------------
\37\ See Section 114 of the Act, Public Law 89-563, 80 Stat. 726
(recodified at 49 U.S.C. 30115).
---------------------------------------------------------------------------
NHTSA's regulations do not provide for the agency to allocate
certification responsibility between incomplete vehicle manufacturers
and final-stage manufacturers.
In 2000, Congress enacted the Transportation Recall Enhancement,
Accountability, and Documentation (TREAD) Act.\38\ Section 9 of the Act
amended 49 U.S.C. 30115 to address certification labels.\39\ In
general, the amendments required an intermediate or final-stage
manufacturer to certify with respect to each FMVSS either that it has
followed the compliance documents provided by the incomplete vehicle
manufacturer or that it has chosen to assume responsibility for
compliance with that standard.\40\ The amendments further provided that
if an intermediate or final-stage manufacturer assumes responsibility
for compliance with a standard covered by the documentation, it must
notify the incomplete vehicle manufacturer within a reasonable
time.\41\ Significantly, the TREAD Act amendments did not alter the
regulatory approach in 49 CFR 567.5 and 49 CFR part 568. They did not
require NHTSA to allocate certification responsibilities between the
various manufacturers in the chain of production of multi-stage
vehicles.
---------------------------------------------------------------------------
\38\ Public Law 106-414.
\39\ 114 Stat. 1805.
\40\ Id.
\41\ Id.
---------------------------------------------------------------------------
In contrast to this regulatory approach, Congress has enacted other
regulatory schemes that require agency review and approval of
manufacturers' certifications. For example, the Clean Air Act requires
the Administrator of the Environmental Protection Agency (EPA) to test
or require testing of motor vehicles or engines to determine whether
they comply with the emissions requirements and, if they conform, to
issue a certificate of conformity.\42\ In that context, EPA has a
significant administrative role. In contrast, in the Vehicle Safety
Act, Congress did not provide for agency review or approval of a
manufacturer's certification before first sale. Moreover, the TREAD Act
amendments specifically addressed certification in the multi-stage
vehicle context and did not assign the agency an arbiter role in the
certification process.
---------------------------------------------------------------------------
\42\ 42 U.S.C. 7525(a).
---------------------------------------------------------------------------
In view of the foregoing, NHTSA does not accept NTEA's argument
that the certification scheme in NHTSA's regulations delegates too much
power to a private entity.
C. Current IVDs Concerning FMVSS No. 216 Are Workable
NTEA submitted with its comment relevant portions of the IVDs with
Type 1 conformity statements for the General Motors 2006 GMT-355
incomplete truck and also the IVD for the GM 2006 C/K full size
incomplete truck.\43\ NTEA attached these documents to demonstrate that
the simplest installation of a truck body likely weighing several
hundred pounds, plus the means used by the final-stage manufacturer to
mount that body (e.g., by drilling holes into the frame of the chassis-
cab and bolting the body to the frame) will affect the physical
properties, e.g., of the chassis frame and numerous other structural
components of the chassis-cab.
---------------------------------------------------------------------------
\43\ 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 GVW or below. FMVSS No. 216 would
have applied to the vehicle only if it were rated with a GVWR of
2,722 kilograms (6,000 pounds) or less.
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GM's IVD allows for additions to the chassis-cab. The GMT-355's IVD
states that the incomplete vehicle will comply with FMVSS No. 216
``providing no alterations are made which affect the function,
physical, chemical, or mechanical properties, environment, location, or
vital spatial clearances of the components, assemblies or systems
including but not limited to those listed below: antennae; body roof
structure or components/reinforcements; body sheet metal/
reinforcements; body structural components/reinforcements; front rear
and side glazing materials and mounting; structural components and door
assemblies; windshield wipers; and windshield wiper motor.''
NTEA read the IVD and claimed that adding a box to a chassis-cab
frame would affect the physical, chemical, or mechanical properties of
the body's structural components/reinforcements. Based on this
statement, NTEA concluded that pass-through certification is not
available. NHTSA disagrees.
Before turning to the specifics, we note that NTEA characterized
the FMVSS No. 216 test as a dynamic test. As a technical matter, the
test is considered a quasi-static test rather than a dynamic test. In a
quasi-static test, the conditions vary slowly enough so that
[[Page 17601]]
the dynamic effects are negligible.\44\ In developing our proposal to
upgrade FMVSS No. 216, we considered potential dynamic tests, e.g., the
Jordan Rollover System test and the Controlled Rollover Impact System
test, but decided to focus on the quasi-static test procedure. This was
an issue that was addressed in detail in the rulemaking. The quasi-
static test in this standard does, however, have some dynamic
characteristics.\45\ In any event, potential compliance difficulties
relate to the specific details of a test and relevant requirements
based on that test rather than whether the test is called quasi-static
or dynamic.
---------------------------------------------------------------------------
\44\ That is the case with the lowering of the FMVSS No. 216
test device. In the FMVSS No. 216 test procedure, a test device
applies a force, based on the vehicle's unloaded weight, to the
vehicle's roof. The lower surface of the test device must not move
more than the specified distance. The May 2009 final rule maintained
the fundamental nature of the test.
\45\ We believe the quasi-static test has sufficient dynamic
characteristics that we would consider the new procedures adopted by
the agency in the 2005 and 2006 certification rules for applying for
temporary exemptions to be available for FMVSS No. 216, although we
are not aware of any specific situations in which they would be
needed. In those rules, NHTSA amended its regulations to establish a
new process under which intermediate and final-stage manufacturers
and alterers can obtain temporary exemptions from dynamic
performance requirements of certain standards. While the 2005 rule
limited this process to dynamic crash test requirements, in response
to NTEA's petition, the agency expanded the scope of the
availability of the new procedures in the 2006 rule so that
manufacturers of multi-stage vehicles can petition the agency for a
temporary exemption from requirements that incorporate various
dynamic tests generally, and not exclusively dynamic crash tests.
NHTSA explained that a dynamic test is one that requires application
of forces or energy to the vehicle and the FMVSS include a variety
of dynamic tests in addition to those involving crash tests. The
agency noted that in some circumstances, there may be considerable
costs associated with dynamic tests other than dynamic crash tests,
and there may be significant damage to vehicles from such tests.
Given the broad language used in characterizing dynamic tests, we
would consider the procedures to be available for the quasi-static
test specified by FMVSS No. 216. The test does require application
of forces or energy to the vehicle and may result in significant
damage to the vehicle.
---------------------------------------------------------------------------
We now turn to the GMT-355 incomplete vehicle. This incomplete
vehicle is classified as a body-on-frame, as distinguished from unibody
construction used in making passenger cars, which generally do not have
frames. The cab is attached to the frame. Roof strength is dependent on
structural members of the vehicle's largely vertical pillars, including
the A pillar (between the windshield and the front of the front door)
and the B pillar (behind the front door), and the roof itself.
In completing an incomplete GMT-355, the final-stage manufacturer
adds a unit behind the cab. That unit or truck body is attached to the
frame. Commonly, the attached unit is a box of some form that goods or
materials can be carried in. The attached unit does not attach to the
cab. Pass-through certification is readily available for this vehicle.
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.
While pass-through certification is not provided if vehicle
components related to roof strength are modified, NTEA has not provided
an example where the addition of a truck body would modify the
structural members of the A- and B- pillars, and NHTSA is unaware of
one. NTEA did not provide other examples where roof modifications would
be necessary. In the example of mounting a box to the frame, there
would be no modifications to the roof.
D. Final-Stage Manufacturers Can Certify Their Vehicles Built on
Chassis-cabs as Being Compliant With FMVSS No. 216a
FMVSS No. 216 has applied to multi-stage vehicles with a GVWR of
2,722 kilograms (6,000 pounds) or less since the early 1990s. Despite
NTEA's articulated problems with the GMT-355 IVD, final-stage
manufacturers undoubtedly have made additions to this incomplete
vehicle and certified it compliant. Otherwise, GM would not have
offered it for sale for years.
There are a number of resources available for final-stage
manufacturers. Many of these were mentioned in the 2006 response to
NTEA's petition.\46\ These resources are still available. For example,
General Motors has relationships with final-stage manufacturers, which
it refers to as ``Special Vehicle Manufacturers,'' or SVMs. According
to GM Upfitters' Best Practices Manual, ``[t]he success of the Upfitter
Integration group depends on an atmosphere of communication,
cooperation and trust between SVMs and GM. SVMs would therefore be
expected to use the Upfitter Integration resources available to them
(i.e., telephone hotline, quality surveys, guideline manuals and
Upfitter Integration engineering expertise). SVMs are expected to have
documented processes which are understood and accepted by all.'' (p.
4).\47\
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\46\ 71 FR 28185
\47\ http://www.gmupfitter.com/publicat/Best_Practices.pdf.
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According to the GM Upfitters' Best Practices Manual, NTEA reviews
and recommends Body-Mounting Practices in the GM Upfitters' Best
Practices Manual that identifies industry recognized processes and
procedures. NTEA has a ``Body Practices Subcommittee'' that reviewed
the mounting methods of several chassis manufacturers. NTEA approved
four general mounting types. All mount to the frame and are permissible
under the IVD for the GMT-355. None of the mounting methods involve
attachments to the A- and B-pillars.
A final-stage manufacturer is not limited to the IVD. If a final-
stage manufacturer wanted to make modifications beyond the IVD, it
could still use the IVD as a starting point and then utilize technical
judgment. This is different from a vehicle built on a stripped chassis
where the final-stage manufacturer would be designing the complete
occupant compartment structure. The final-stage manufacturer is
beginning with a vehicle with a completed occupant compartment
structure, including the roof, that it knows already meets FMVSS No.
216, and can use judgment to ensure that the modifications it makes
will not weaken the roof. As such, a final-stage manufacturer could
complete the vehicle and certify it.
In the case of chassis-cabs, for example, data are available on the
strength of the roofs. Chassis-cabs have intact roof designs and for
the most part are the same as vehicles that are sold as complete
vehicles, such as large pickup trucks. The roof structures of those
trucks will be designed to meet the upgraded requirements of FMVSS No.
216. NHTSA tests vehicles, including pickup trucks, to FMVSS No. 216
and makes the data available.\48\ Final-stage manufacturers can readily
refer to these data for certification.
---------------------------------------------------------------------------
\48\ For example, there are data available on NHTSA's testing of
pickup trucks. NHTSA's testing of completed trucks under 6,000 lbs
shows the following: (a) MY 2007 Chevy Colorado, GVWR = 4850 lbs,
SWR 2.18 (Test 560), (b) MY 2007 Toyota Tacoma, GVWR = 5250 lbs, SWR
3.29, (Test 566), (c) MY 2007 Toyota Tacoma, GVWR = 4550 lbs, SWR
4.4 (Test 530).
---------------------------------------------------------------------------
NTEA also argued that Ford provided guidance for 10 safety
standards in its 2006 Pickup Box Removal/Alterations Design
Recommendations for the pick-up box removal for the Ford Ranger, but
not for FMVSS No. 216 (p. 8 of NTEA's comments, footnote 4). It said
that, therefore, in the alterer context, the alterer is on its own as
to the roof crush resistance standard. We note that Ford's 2006 Pickup
Box Removal/Alterations Design Recommendations do not involve
incomplete vehicles. The Ranger is not sold as an incomplete vehicle.
Ford's recommendations are for
[[Page 17602]]
alterers \49\ that remove a pick-up box from a completed vehicle. Ford
has already certified that vehicle. The document cited in NTEA's
comment is guidance and is not required under 49 CFR 567.7 for
certification.
---------------------------------------------------------------------------
\49\ An alterer ``means a person who alters by addition,
substitution, or removal of components (other than readily
attachable components) a certified vehicle before the first purchase
of the vehicle other than for resale.'' 49 CFR 567.3.
---------------------------------------------------------------------------
Moreover, we have reviewed the Ford document in question and
believe that NTEA has not shown a real problem for alterers. For pickup
trucks such as the Ranger, the passenger compartment is completely
separate from the cargo box. Each is separately secured to a common
frame. For this reason, simply replacing the pickup box with an
aftermarket body would not affect the strength of the roof.\50\
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\50\ The weight of the aftermarket body could affect the
unloaded weight of the vehicle and, therefore, the amount of force
the vehicle would need to withstand in a FMVSS No. 216 test. If
replacing the pickup box with an aftermarket body resulted in
greater unloaded vehicle weight, the alterer could consult with the
manufacturer about implications for FMVSS No. 216 compliance.
---------------------------------------------------------------------------
In the FMVSS No. 216a test procedure adopted in the 2009 final
rule, the body of the vehicle is securely mounted. In the case of a
body-on-frame pickup truck, the occupant compartment cab would be
rigidly mounted such that only the roof strength of the occupant
compartment of the vehicle is tested. In support of the final rule, the
agency tested a number of pickup trucks in one- and two-sided test
configurations.\51\ In addition, the agency also tested an incomplete
2008 Ford F-250 (NHTSA Test No. 571) \52\ chassis-cab pickup. The F-250
was delivered and tested without a cargo bed. From our testing, the
presence of the cargo box did not have any impact on the strength of
the roof.\53\
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\51\ 74 FR 22391, Appendix B and C.
\52\ Test reports available at http:// www-nrd.nhtsa.dot.gov/database/aspx/comdb/querytesttable.aspx.
\53\ The F-250 chassis-cab's roof resisted a maximum force of
just over 54,000 N when the first side of the roof was tested. In a
test conducted with a 2003 Ford F-250 with the cargo bed attached,
the roof resisted over 44,000 N on the first side. The difference in
peak strength of the roof is attributed to the vehicles being
different body styles for different model year vehicles.
---------------------------------------------------------------------------
NTEA also stated that for the 2004 model year, Ford produced the
Freestar/Monterey van as an incomplete vehicle to be used in the
manufacturer of mobility vehicles. It stated that these vehicles had a
GVWR of 2,722 kilograms (6,000 pounds) or less, and were thus subject
to FMVSS No. 216. NTEA stated that for reasons that are unclear, Ford
did not provide a conformity statement for FMVSS No. 216 in the IVD for
this vehicle. NTEA stated that this is a situation where the final-
stage manufacturer would have no pass-through certification
opportunity. NHTSA notes that the Freestar/Monterey vans have not been
produced for years and NTEA did not demonstrate that the issue is
likely to recur with newer models. We note, however that Ford has a
mobility vehicle program, for transporting handicapped people, and NTEA
has not demonstrated that there are any problems with respect to
availability or certification of mobility vehicles. We also note that
NMEDA did not cite any such difficulties. In addition, Ford has
programs to assist mobility manufacturers.\54\
---------------------------------------------------------------------------
\54\ See https://www.fleet.ford.com/truckbbas/non-html/qpg/2004/mobilityguidelines04.pdf.
---------------------------------------------------------------------------
FMVSS No. 216 is not, of course, currently applicable to vehicles
with a GVWR greater than 2,722 kilograms (6,000 pounds). For that
reason, the IVDs for chassis-cabs currently used for these heavier
vehicles do not and cannot be expected to address FMVSS No. 216.
However, as the upgraded standard will apply to these vehicles,
manufacturers will address it in the future.\55\
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\55\ See 49 CFR 568.4.
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E. In General, IVDs Are Workable
NTEA claimed that IVDs containing conformity statements for
standards other than FMVSS No. 216 are overly restrictive. It cited the
conformity statements provided by GM for the C/K fullsize pickup truck
IVD. It also cited the IVD provided by Ford for the E-series incomplete
vehicle with respect to FMVSS Nos. 212, 219 and 301. NTEA stated that
the conformity statements are based on the performance of the vehicle
in the dynamic tests in those standards.
As noted earlier, in our May 2006 response to NTEA's petition for
reconsideration of the certification rule, we addressed in detail
NTEA's arguments in connection with the certification statements in the
GM IVD that NTEA identified as inadequate. In each case, the agency's
findings supported the conclusion that the existing IVDs are workable.
Moreover, we demonstrated that the current multi-stage certification is
workable and pointed out the errors in NTEA's arguments. Among other
things, we noted that NTEA's petition did not identify any final-stage
manufacturer that has been unable to certify a vehicle under the
existing framework. Since this rulemaking is about FMVSS No. 216, and
given the above discussion, there is no need to address other
standards.
The final rule becomes effective for multi-stage vehicles with a
GVWR of 2,722 kilograms (6,000 pounds) or less, i.e., the vehicles
already covered by FMVSS No. 216, on September 1, 2016, and to the
other multi-stage vehicles with a GVWR of 4,536 kilograms (10,000
pounds) or less on September 1, 2017. These dates are one year after
the requirements are fully effective for single stage vehicles. This is
a seven-year leadtime for vehicles currently subject to the standard,
and an eight-year leadtime for the vehicles newly subject to the
standard. NHTSA anticipates that this leadtime will be ample for
incomplete vehicle manufacturers and final-stage manufacturers to work
out any issues.
F. NHTSA Provided a Testing Alternative, FMVSS No. 220
NTEA commented that final-stage manufacturers of vehicles built on
incomplete vehicles other than chassis-cabs (cutaways, chassis
cowls,\56\ or stripped chassis) cannot rely on pass-through
certification or perform the tests in FMVSS Nos. 216 or 220. It did not
agree with statements in the NPRM that the existence of State
operational requirements for para-transit vans and other buses to
comply with FMVSS No. 220 is good evidence that final-stage
manufacturers in fact are able to comply with that standard. It also
said that the fact that final-stage manufacturers are able to comply
with FMVSS No. 220 for some vehicles merely reflects the particular
manufacturing of that vehicle, and the fact that certain niche markets
can comply with FMVSS No. 220 does not translate to final-stage
manufacturers that produce scores of vehicles in small production runs.
NTEA thus advocated a lowest common denominator approach.
---------------------------------------------------------------------------
\56\ An incomplete vehicle which is similar to a stripped
chassis but includes a portion of the body bounded by the front
fenders, hood and base of the windshield.
---------------------------------------------------------------------------
NHTSA sees no reason to exclude all multi-stage vehicles from the
requirements of FMVSS No. 216. We do recognize, unlike vehicles derived
from chassis-cabs, there will not be an opportunity for a pass-through
certification of FMVSS No. 216 for vehicles without intact roofs such
as cutaways and stripped chassis. In light of this, in the 2009 final
rule, for multi-stage trucks, NHTSA decided not to extend the coverage
of the upgraded FMVSS No. 216 as proposed in the NPRM. Multi-stage
trucks not built on a chassis-cab or a full exterior van body with a
GVWR greater than 2,722 kilograms (6,000 pounds) are not covered. This
is discussed below.
[[Page 17603]]
Multi-stage trucks with a GVWR of 2,722 kilograms (6,000 pounds) or
less have already been subject to FMVSS No. 216, and no practicability
issues have been identified. While there are differences between the
existing requirements and those of the upgraded standard, the basic
nature of the FMVSS No. 216 test is the same, i.e., a quasi-static test
that applies a force to the roof. Moreover, the FMVSS No. 220 option
will also be available (other than for trucks built using chassis-
cabs). Given these considerations, we believe that these vehicles do
not raise practicability concerns. We note that we are not aware of any
incomplete cutaway vehicles with a GVWR of 2,722 kilograms (6,000
pounds) or less.
We decided not to extend the standard to multi-stage trucks with a
GVWR above 2,722 kilograms (6,000 pounds) not built on a chassis-cab or
a full exterior van body. The incomplete vehicles for these excluded
multi-stage trucks will not have an intact roof, and because the
strength of the roof may be dependent on the structure to be added by
the final-stage manufacturer in completing the truck, the incomplete
vehicle manufacturer may not provide for pass-through certification.
Moreover, the FMVSS No. 220 test was designed for school buses and uses
a horizontal plate over the driver and passenger compartment instead of
the angled plate of Standard No. 216. This test may not be appropriate
for trucks with certain roof configurations.
For the remaining multi-stage vehicles other than trucks, we
believe that the FMVSS No. 220 option is a reasonable way to balance
the need to increase safety in rollover crashes of multi-stage vehicles
and the capabilities of multi-stage manufacturers. Examples of vehicles
in this category include Type II ambulances,\57\ small recreation
vehicles, and shuttle vans with a GVWR greater than 2,722 kilograms
(6,000 pounds) but not greater than 4,536 kilograms (10,000 pounds).
Some of these vehicles involve vans with raised roofs.
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\57\ See the Federal Specification for the Star-of-Life
Ambulance (KKK-A-1822F), as promulgated by the General Services
Administration. http://www.gsa.gov/gsa/cm_attachments/GSA_DOCUMENT/ambulanc_1_R2FI5H_0Z5RDZ-i34K-pR.pdf.
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First, NTEA's argument, which appears to be largely in the context
of work trucks, on relatively unique configurations and very limited
production numbers, does not truly apply. There are companies that make
ambulances, other companies that make small RVs, and others that make
shuttle vans. These vehicles are generally made in larger production
runs and/or with relatively standardized exterior structures.
Therefore, there are significantly fewer issues related to special
structural issues potentially affecting roof configuration and roof
strength for multipurpose vehicles and buses than for trucks which may
have more specialized and customized uses.\58\
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\58\ On a related note, as to school buses, NTEA has recognized
that these vehicles are produced in relatively large production runs
of similarly configured vehicles, and that Ford and GM provide
guidance. NTEA stated that it expressed no view as to the
practicability of FMVSS No. 220 for currently affected
manufacturers.
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Second, these vehicles transport passengers, not property. While we
are concerned about the safety of occupants in all kinds of vehicles,
there is a greater safety concern about unnecessarily excluding
passenger vehicles, such as 15-passenger vans and small shuttle buses
from roof strength requirements, given the number of occupants.
NTEA is correct that current IVDs do not provide a Type I or Type
II statement regarding FMVSS No. 220, School Bus Rollover Protection.
The Type 3 statements for Ford and GM cutaway chassis used for school
buses are reasonable given the fact that these incomplete vehicles do
include occupant compartment structures. School bus manufacturers using
these chassis provide their own occupant compartment structures, and
have long certified their vehicles to FMVSS No. 220.
As we noted in the NPRM, several states already require ``para-
transit'' vans and other buses, which are typically manufactured in
multiple stages, to comply with the roof crush requirements of FMVSS
No. 220. Moreover, the RVIA endorsed the agency's proposal.
Recreational vehicles, including motorhomes, are used to transport
passengers, not property, and are commonly built on stripped chassis.
The RVIA stated that several thousand of the smallest motor homes
produced each year would be subject to the proposed rule and that
virtually all of the affected vehicles are manufactured in two or more
stages. RVIA stated that NHTSA rightly acknowledged that the
requirements of FMVSS No. 220 appear to offer a reasonable avenue to
balance the desire to respond to the needs of multi-stage manufacturers
and the need to increase safety in rollover crashes.
While NTEA claimed that the cited State laws are not good evidence
that final-stage manufacturers in fact are able to confirm compliance
of vehicles with FMVSS No. 220, it did not provide reasons for us to
doubt manufacturer claims that their vehicles meet these requirements.
We also note that the Ambulance Manufacturers Association of NTEA
adopted a standard, AMD Standard No. 001, with a test based on FMVSS
No. 220. AMD Standard No. 001, Ambulance Body Structure Static Load
Test, is issued by the Ambulance Manufacturers Association of NTEA. The
purpose of that standard is to demonstrate the static strength of the
patient compartment of an ambulance when subjected to a uniform load.
NTEA stated that an ambulance manufacturer recently had three units
tested at a cost of $40,000, i.e., an amount slightly over $13,000
each. NTEA stated that ambulances are unlike most multi-stage vehicles
in that most manufacturers produce a small number of models that
require only limited alterations to meet specific customer needs and
that, as a result, these testing costs, while still significant, can be
allocated over multiple vehicle sales.
A limited internet search reveals that many manufacturers,
including alterers, advertise that various mobility, para-transit and
other vehicles meet the requirements of FMVSS No. 220.\59\
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\59\ In some cases, the manufacturer indicates that a vehicle is
``certified'' to meet FMVSS No. 220. We note that unless an FMVSS
applies to a vehicle, it cannot be certified to the FMVSS for
purposes of the Vehicle Safety Act.
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For example:
National Van sells wheelchair vans/ambulettes with
modified roofs that are said to be FMVSS No. 220 School Bus Rollover
certified.\60\ These can be built on the Ford E-150 chassis.
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\60\ http://www.nationalvans.com/models/wheelchair_vans.html
(last accessed on January 17, 2010).
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New England Wheels sells a Municipal Transporter that has
a 30 raised transporter roof with a FMVSS No. 220 certified
roll cage. New England Wheels also sells a Ford E-250 Van with an
18 Executive Raised Roof w/FMVSS 220 Certified Roll
Cage.\61\
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\61\ http://www.newenglandwheels.com/commercial-vans/municipal-transporter.html (last accessed on January 17, 2010).
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Accubilt sells a shuttle van with an 8,600 lbs GVWR that
has an ``exclusive tubular steel roll cage (FMVSS certified).'' \62\
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\62\ http://www.accubuiltmobility.com/shuttle_specs.html (last
accessed on January 17, 2010).
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MobilityWorks of Akron, Ohio advertises that ``[a]ll
MobilityWorks vehicles meet or exceed the requirements set forth for
vehicles of gross weight less than 10,000 lbs.'' for the FMVSS No. 220
load test.\63\
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\63\ http://www.mobilityworks.com/Commercial/Commercial-Van-AboutUs.php (last accessed on January 17, 2010).
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[[Page 17604]]
Mid America Coach of Kansas City, MO, sells full-size
wheelchair vans with a FMVSS No. 220 roll cage.\64\
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\64\ http://www.midamericacoach.com/category/full-size-wheelchair-vans (last accessed on January 17, 2010).
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Safety Vans, LLC, of Hagerstown, MD, sells vans with
reinforced roofs for which ``[r]oof load tests (FMVSS 220 compliant)
demonstrate how the SafetyVan, under the weight of nearly 6 tons, is
still capable of allowing access into and egress from the passenger
area!'' \65\ According to the company, standard features for these vans
include them being built on GM's Model CG 33706--Express/Savanna: Pass.
Van Ext. 3500, 9,600 GVW.\66\
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\65\ http://www.safetyvans.com/index.html (last accessed on
January 17, 2010).
\66\ http://www.safetyvans.com/specs.html (last accessed on
January 17, 2010).
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Furthermore, the agency conducted a FMVSS No. 220 roof strength
test on a Roadtrek Class B MPV motorhome (Test No. 693) with a GVWR of
3,901 kg (8,600 pounds). The motorhome was built on a General Motors
incomplete vehicle van body where the multi-stage manufacturer added a
raised fiberglass roof to the body. The results of the test showed the
vehicle met the 1.5 SWR required under the standard within 130 mm
(5.125 inches) of displacement of the load application plate. The test
illustrated that it is practicable for multi-stage vehicles with a
raised or altered roof and with a GVWR greater than 2,722 kg (6,000
pounds) but less than 4,536 kilograms (10,000 pounds), to conform to
the requirements of FMVSS No. 220 as an option.
G. There Is Little Cost for Multi-Stage Manufacturers To Comply With
FMVSS No. 216a
NTEA commented that in proposing to upgrade FMVSS No. 216, the
agency ignored more than 20 million dollars in compliance tests
primarily placed on small businesses. That organization stated that
there are at least 1,085 identifiable vehicle configurations in the
affected weight category that would require separate testing. NTEA
multiplied this figure by $5,000 per test plus a vehicle value loss of
$15,000, resulting in a total of $21,700,000. The 1,085 vehicle
configuration number included 798 that were based on chassis-cabs.\67\
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\67\ NTEA stated that there are 42 chassis-cab models in the
affected weight category that could accommodate 19 different body
and/or equipment configurations. Multiplying 42 by 19 results in the
798 number.
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These cost projections are grossly exaggerated. As indicated above,
testing, as provided in a FMVSS, is not required as a matter of law to
certify a vehicle. A manufacturer may choose any valid means of
evaluating its products to determine whether the vehicle or equipment
will comply with the safety standards when tested by the agency
according to the procedures specified in the standard and to provide a
basis for its certification of compliance.
NTEA's projected costs assume, inaccurately, that pass-through
certification is not available for any of its member's vehicles, and,
that they, as final-stage manufacturers, will need to conduct testing
for these vehicles. However, for the reasons discussed earlier, final-
stage manufacturers will be able to rely on the IVDs for vehicles built
using chassis-cabs or incomplete vehicles with a full exterior van
body. They will be able to certify their vehicles using pass-through
and engineering judgment and will not need to incur testing costs for
these vehicles.
Moreover, the agency did not adopt the proposal in the NPRM to
extend FMVSS No. 216 to multi-stage trucks with a GVWR greater than
2,722 kilograms (6,000 pounds) not built on a chassis-cab and not built
on an incomplete vehicle with a full exterior van body, e.g., those
built using cutaways and stripped chassis. Therefore, there will not be
any FMVSS No. 216 compliance costs for these vehicles.
As to other multi-stage vehicles, final-stage manufacturers will
have the option of certifying with the FMVSS No. 216 test or the FMVSS
No. 220 test. The FMVSS No. 220 test option will minimize the costs of
compliance for these vehicles. As noted above, these vehicles are used
to transport passengers. Various mobility, para-transit and other
vehicles were also being designed to meet the FMVSS No. 220 test prior
to this rulemaking. Models are produced in sufficient quantities and do
not vary such that compliance tests would be required for each
variation. In light of the above, the requirements are reasonable.
Also, RVIA supported this aspect of the proposal.
We also observe that new procedures adopted by the agency in the
2005 and 2006 certification rules for applying for temporary exemptions
are available, although we are not aware of any specific situations in
which they would be needed.
H. Conclusion
While NTEA commented that the proposed upgrade of FMVSS No. 216
would be impracticable for its members, the final rule we adopted is
not impracticable for final-stage manufacturers.
Final-stage manufacturers that build their vehicles using chassis-
cabs will be able to rely on pass-through certification. A reasonable
reading of the provided IVDs demonstrates this, as does the fact of the
number of multi-stage vehicles on the road today that are certified to
comply with many FMVSSs. In extending FVMSS No. 216 to heavier light
vehicles, we did not include trucks other than those built using a
chassis-cab or incomplete vehicle with a full exterior van body--a
change from the NPRM. Also, for multi-stage vehicles other than those
built using chassis-cabs, NHTSA provided an alternative test procedure
that is used for school buses and has also been used by a number of
States for para-transit buses. Many manufacturers are already building
vehicles to this alternative.
Issued: April 2, 2010.
David L. Strickland,
Administrator.
[FR Doc. 2010-7907 Filed 4-6-10; 8:45 am]
BILLING CODE 4910-59-P