[Federal Register: May 15, 2006 (Volume 71, Number 93)]
[Rules and Regulations]
[Page 28167-28197]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15my06-11]
[[Page 28167]]
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Part IV
Department of Transportation
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National Highway Traffic Safety Administration
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49 CFR Parts 555, 567, 568, and 571
Vehicles Built in Two or More Stages; Final Rule
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Parts 555, 567, 568, and 571
Docket No. NHTSA-2006-24664
RIN 2127-AJ91
Vehicles Built in Two or More Stages
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Final rule; response to petition for reconsideration.
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SUMMARY: This document responds to a petition for reconsideration of
the February 14, 2005 final rule under 49 U.S.C. Chapter 301 and its
implementing regulations pertaining to vehicles built in two or more
stages and, to a lesser degree, to altered vehicles. This document
clarifies the recognition in that rule that under NHTSA's regulations,
multistage vehicles may be treated as a separate type of vehicle,
including, as appropriate, vehicles built on chassis-cab incomplete
vehicles. This document also amends a provision of the temporary
exemption procedures to allow, as appropriate, for exemption of
multistage vehicles from standards based on dynamic testing. This
document denies the remainder of the petition for reconsideration,
which involved certification of multistage vehicles and responsibility
for recalls of multistage vehicles.
DATES: The amendments made in this final rule are effective on
September 1, 2006. This final rule amends the final rule published on
February 14, 2005 (70 FR 7414), which is also effective on September 1,
2006.
Petitions: Petitions for reconsideration must be received by June
26, 2006 and should refer to this docket and be submitted to:
Administrator, Room 5220, National Highway Traffic Safety
Administration, 400 Seventh Street, SW., Washington, DC 20590. The
agency will not entertain petitions for reconsideration on 49 CFR Parts
567 Certification, 568 Vehicles Manufactured in Two or More Stages--All
Incomplete, Intermediate and Final Stage Manufacturers of Vehicles
Manufactured in Two or More Stages, or 573 Defect and Noncompliance
Responsibility and Reports. Issues under these regulations have been
addressed in rulemaking, including negotiated rulemaking, and in this
document. Any further consideration of these provisions would be
repetitive.
FOR FURTHER INFORMATION CONTACT:
For nonlegal issues: Harry Thompson, Office of Vehicle Safety
Compliance, NHTSA (telephone 202-366-5289).
For legal issues: For issues related to multistage vehicles as a
type of vehicle and temporary exemptions, George Feygin, Office of the
Chief Counsel, NHTSA (telephone 202-366-2992); For other legal issues,
Katherine Gehringer, Office of the Chief Counsel, NHTSA (telephone 202-
366-5263).
You can reach the above at the National Highway Traffic Safety
Administration, 400 Seventh St., SW., Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Description of issues unique to multistage vehicles
1. Multistage vehicles
2. Multistage vehicle manufacturers
3. Pass-through certification
4. Assumption of certification and recall responsibility
5. Incomplete vehicle document
6. Altered vehicles
B. The underlying rulemaking
II. NTEA's Petition for Reconsideration and the Agency's Response
A. Multistage vehicles built on chassis-cabs are treated the
same as those built on other types of incomplete vehicles
B. The new temporary exemption in Part 555 provision is
sufficient.
1. Clarification of what information petitioners must provide to
show good faith efforts to comply with applicable regulations
C. The current multistage vehicle certification scheme is
workable
1. Overview of the certification of multistage vehicles
2. Practical aspects of the multistage vehicle process
3. NTEA's position
4. The availability of multistage vehicles belies NTEA's
position
5. NTEA's argument is too broad and ignores gradations in types
of multistage vehicles
6. The existing IVDs are workable
a. FMVSS 105 Hydraulic and Electric Brake Systems and FMVSS 135
Light Vehicle Brake Systems.
b. FMVSS 204 Impact Protection for the Driver from the Steering
Control System.
c. FMVSS 201 Occupant Protection in Interior Impact.
d. FMVSS 212 Windshield Mounting.
e. FMVSS 219 Windshield Zone Intrusion.
f. FMVSS 214 Side Impact Protection
g. FMVSS 208 Occupant Crash Protection.
h. FMVSS 216 Roof Crush Resistance
i. FMVSS 301 Fuel System Integrity
7. Additional resources available to final-stage manufacturers
D. NHTSA's market forces argument is justified and consistent
with the multistage vehicle market
E. NHTSA's decision not to include a reasonableness requirement
is consistent with other NHTSA regulations
F. Impracticability should be decided in context of rulemaking
for each
FMVSS or on a petition for a temporary exemption
G. The current certification scheme is not an unlawful
delegation of agency authority
H. The agency's decision not to change default recall
responsibility, which historically has been assigned to final-stage
manufacturers, was reasonable
1. Background
2. Summary of NTEA's position
3. NTEA has not demonstrated that based on size, default
responsibility should be shifted from final-stage manufacturers
4. NTEA has not demonstrated that safety will be enhanced by
assigning default recall responsibility to incomplete vehicle
manufacturers
5. Additional points in support of NHTSA's decision
6. Conclusion
I. There is no need for NHTSA to require IVDs for completed
vehicles that are commonly altered, or to allow alterers to rely on
pass-through certification opportunities presented in IVDs
J. Technical amendment
III. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Regulatory Flexibility Act
C. National Environmental Policy Act
D. Executive Order 13132 (Federalism)
E. Unfunded Mandates Reform Act
F. Executive Order 12778 (Civil Justice Reform)
G. Paperwork Reduction Act
H. Executive Order 13045
I. Privacy Act
J. National Technology Transfer and Advancement Act
K. Regulation Identifier Number (RIN)
I. Background
A. Description of Issues Unique to Multistage and Altered Vehicles
The petition at issue requests NHTSA to reconsider certain
amendments adopted as part of a final rule published on February 14,
2005 (at 70 FR 7414) to address certification issues related to
vehicles built in two or more stages, and to a lesser degree, to
altered vehicles. Concepts and terminology relating to the
certification of these vehicles are described below.
1. Multistage Vehicles
In the typical situation, a vehicle built in two or more stages is
one in which an incomplete vehicle, such as a chassis-cab or cut-away
chassis built by one manufacturer, is completed by another manufacturer
who adds work-performing or cargo-carrying components to the vehicle.
For example, the incomplete vehicle may 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. Like all
[[Page 28169]]
vehicles that are manufactured for sale in the United States, a
multistage vehicle must be certified as complying with all applicable
Federal motor vehicle safety standards (FMVSS) before the vehicle is
introduced into interstate commerce.\1\ Certification is provided in
the form of a label permanently affixed to the vehicle in a prescribed
location, which, among other things, identifies the vehicle's
manufacturer and date of manufacture, and states that the vehicle
conforms to all applicable FMVSS in effect on that date.
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\1\ 15 U.S.C. 30115.
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2. Multistage Vehicle Manufacturers
Manufacturers involved in the production of multistage vehicles can
include, in addition to the incomplete vehicle manufacturer, one or
more intermediate manufacturers, who perform manufacturing operations
on the incomplete vehicle after it has left the incomplete vehicle
manufacturer's hands, and a final-stage manufacturer who completes the
vehicle so that it is capable of performing its intended function.
3. Pass-Through Certification
In some circumstances, a manufacturer at an earlier stage in the
chain of production for a multistage vehicle can certify that the
vehicle will comply with one or more FMVSS when completed, provided
specified conditions are met. This allows what is commonly referred to
as ``pass-through certification.'' As long as a subsequent manufacturer
meets the conditions of the prior certification, that manufacturer may
rely on this certification and pass it through when certifying the
completed vehicle.
4. Assumption of Certification and Recall Responsibility
Although the final-stage manufacturer normally certifies the
completed vehicle's compliance with all applicable FMVSS, this
responsibility can be assumed by any other manufacturer in the
production chain. To take on this responsibility, the other
manufacturer must ensure that it is identified as the vehicle
manufacturer on the certification label that is permanently affixed to
the vehicle. The identified manufacturer also has legal responsibility
to provide NHTSA and vehicle owners with notification of any defect
related to motor vehicle safety or noncompliance with an FMVSS that is
found to exist in the vehicle, and to remedy any such defect or
noncompliance without charge to the vehicle's owner.
5. Incomplete Vehicle Document
The agency's regulations governing vehicles manufactured in two or
more stages at 49 CFR part 568 require incomplete vehicle manufacturers
to provide with each incomplete vehicle an incomplete vehicle document
(IVD). This document details, with varying degrees of specificity, the
types of future manufacturing contemplated by the incomplete vehicle
manufacturer and must provide, for each applicable safety standard, one
of three statements that a subsequent manufacturer can rely on when
certifying compliance of the vehicle, as finally manufactured, to some
or all of all applicable FMVSS.
First, the IVD may state, with respect to a particular safety
standard, that the vehicle, when completed, will conform to the
standard if no alterations are made in identified components of the
incomplete vehicle. This representation, which is referred to as a
``Type 1 statement,'' is most often made with respect to chassis-cabs,
since a significant portion of the occupant compartment in incomplete
vehicles of that type is already complete.
Second, the IVD may provide a statement of specific conditions of
final manufacture under which the completed vehicle will conform to a
particular standard or set of standards. This statement, which is
referred to as a ``Type 2 statement,'' is applicable in those instances
in which the incomplete vehicle manufacturer has provided all or a
portion of the equipment needed to comply with the standard, but
subsequent manufacturing might be expected to change the vehicle such
that it may not comply with the standard once finally manufactured. For
example, the incomplete vehicle could be equipped with a brake system
that would, in many instances, enable the vehicle to comply with the
applicable brake standard once the vehicle was complete, but that would
not enable it to comply if the completed vehicle's weight or center of
gravity height were significantly altered from those specified in the
IVD.
Third, the IVD may identify those standards for which no
representation of conformity is made because conformity with the
standard is not substantially affected by the design of the incomplete
vehicle. This is referred to as a ``Type 3 statement.'' A statement of
this kind could be made, for example, by a manufacturer of a stripped
chassis who may be unable to make any representations about conformity
to any crashworthiness standards if the incomplete vehicle does not
contain an occupant compartment. When it issued the original set of
regulations regarding certification of vehicles built in two or more
stages, the agency indicated that it believed final-stage manufacturers
would be able to rely on the representations made in the IVDs when
certifying the completed vehicle's compliance with all applicable
FMVSS.
6. Altered Vehicles
An altered vehicle is one that is completed and certified in
accordance with the agency's regulations and then altered, other than
by 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, 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. The person who 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.
B. The Underlying Rulemaking
Issues involving vehicles built in two or more stages have long
been matters of contention within the affected industry and before the
agency and the courts. Historically, NHTSA's regulations for
certification of multistage vehicles contained provisions for
certification statements by chassis-cab manufacturers.\2\ 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. Thereafter, the agency published a notice of
proposed rulemaking (NPRM) that proposed extending certification
requirements for chassis-cab manufacturers to manufacturers of all
incomplete vehicles.\3\ This would have permitted pass-through
certification for all types of multistage vehicles.
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\2\ 49 CFR 567.5 (1977 and 1978).
\3\ 56 FR 61392 (December 3, 1991).
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The proposal was highly controversial. On December 12, 1995, the
agency held a public meeting to solicit information from affected
manufacturers and members of the public on the certification of
vehicles built in two or more stages and
[[Page 28170]]
suggestions for the revision of agency regulations governing those
activities. On May 20, 1999, NHTSA published a notice of intent to
convene a negotiated rulemaking committee on the subject.\4\ In late
1999 and early 2000, NHTSA held public meetings. A chartered committee
that included representatives from incomplete vehicle manufacturers,
component manufacturers, final-stage manufacturers and alterers,
vehicle end-users, and NHTSA held several meetings between March 2000
and February 2002 at which issues involving the certification and
recall of vehicles built in two or more stages were discussed. The
committee failed to reach a consensus on several key issues involving
certification and recall responsibilities.
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\4\ 64 FR 27499.
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On June 28, 2004, the agency published a supplemental notice of
proposed rulemaking (SNPRM) addressing five different parts of the
agency's regulations related to vehicles built in two or more stages
and, to a lesser degree, to altered vehicles.\5\
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\5\ 69 FR 36038.
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In the SNPRM, the agency addressed the issue of whether it
possesses the legal authority to exclude multi-stage vehicles as a
group from a standard.\6\ The agency tentatively concluded that it
could do so in regulations establishing FMVSS.
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\6\ 69 FR at.
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The proposed amendments included adding a new subpart to 49 CFR
part 555, Temporary Exemption from Motor Vehicle Safety and Bumper
Standards that would allow final-stage manufacturers and alterers to
obtain temporary exemptions from those portions of safety standards for
which the agency verifies compliance through dynamic crash testing. The
agency also proposed to streamline the temporary exemption process by
allowing an association or other party representing the interests of
multiple manufacturers to bundle petitions for a single vehicle design,
precluding the need for individual manufacturers to explain the
potential safety impacts of the requested exemption and their good
faith attempts to comply with the standard that is the subject of the
exemption request. The agency also proposed amendments that would
commit it to processing these temporary exemption requests in an
expedited fashion.
The agency also proposed in the SNPRM to amend 49 CFR part 567,
Certification, to extend to all incomplete vehicles, not just to
chassis-cabs, requirements for the incomplete vehicle manufacturer to
provide pass-through certification and to furnish information labels or
incomplete vehicle documents (IVDs) with the vehicle. The agency also
proposed to amend 49 CFR part 568, Vehicles Manufactured in Two or More
Stages, to reflect that an incomplete vehicle manufacturer may
incorporate by reference body builder or other design and engineering
guidance into the IVD. The agency also proposed to amend 49 CFR 571.8,
Effective Date, by providing intermediate and final-stage manufacturers
and alterers with an additional year or more of lead time to achieve
conformity with certain amendments to the FMVSS. NHTSA also published,
without the agency's endorsement, amendments to 49 CFR part 573, Defect
and Noncompliance Responsibility and Reports prepared by some parties
in the negotiated rulemaking process. These would permit the agency to
assign recall responsibility to the party it believes is in the best
position to conduct a notification and remedy campaign in circumstances
where accountability for the underlying defect or noncompliance is in
dispute among the various manufacturers in the production chain. The
agency solicited public comment on the amendments proposed in the
SNPRM.
After considering comments on the SNPRM, NHTSA published a final
rule, as previously noted, on February 14, 2005.\7\ The final rule
contained considerable relief for final stage manufacturers. First, as
a legal matter, the agency concluded that it possesses the legal
authority to exclude multistage vehicles as a group from a standard.\8\
This means that NHTSA could promulgate FMVSS that applied to some types
of vehicles such as trucks but that would not apply to multistage
vehicles. NHTSA concluded that it is appropriate to consider incomplete
vehicles, other than chassis-cabs, as a vehicle type subject to
consideration in the establishment of a regulation.\9\
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\7\ 70 FR 7414.
\8\ 70 FR at 7420 et seq.
\9\ 70 FR at 7421.
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Second, the agency amended its regulations to establish a process
under which intermediate and final-stage manufacturers and alterers can
obtain temporary exemptions from dynamic performance requirements of
certain standards, and accorded those entities an additional year of
lead time to achieve compliance with new safety requirements, unless
the agency determines that either a longer or a shorter period is
appropriate. As stated in the final rule, under the new provisions,
qualified manufacturers may be granted temporary exemptions from FMVSS
requirements that are based on dynamic crash testing.
The final rule revised 49 CFR Parts 567 Certification and 568
Vehicles Manufactured in Two or More Stages--All Incomplete,
Intermediate and Final Stage Manufacturers of Vehicles Manufactured in
Two or More Stages. The final rule adopted much of the SNPRM as it
pertained to the certification of vehicles manufactured in two or more
stages. Unlike the earlier regulation, the certification provision for
manufacturers of multistage vehicles is no longer largely limited to
chassis-cabs. Under the February 2005 rule, the final-stage
manufacturer certifies that the vehicle meets applicable FMVSS, but can
rely on the prior manufacturers' IVD. The incomplete vehicle
manufacturer and intermediate manufacturers have certification
responsibilities for the vehicle as further manufactured or completed
by a final-stage manufacturer to the extent that the vehicle is
completed in accordance with the IVD. The incomplete vehicle
manufacturer and intermediate manufacturers also have certification
responsibilities for equipment subject to equipment standards that they
supply and for other items and associated standards in the contract
between them and the next stage manufacturer(s). The fact that some
components were provided by an incomplete vehicle manufacturer, absent
more, does not shift responsibility for certification to those
manufacturers with respect to completed vehicle performance standards.
The agency did not adopt in the final rule the recommendation of
certain commenters that it require incomplete vehicle manufacturers to
provide subsequent stage manufacturers with ``reasonable compliance
envelopes'' in the IVD.
The final rule did not amend the agency's rules under which the
final-stage manufacturer has the ultimate responsibility for conducting
a notification and remedy (recall) campaign when a safety-related
defect or noncompliance with a safety standard is found to exist in a
vehicle built in two or more stages. The agency noted that under the
existing rule, recalls are not delayed on account of disputes between
manufacturers. We observed that leaving ultimate recall responsibility
with the final-stage manufacturer avoids delays in removing unsafe
vehicles from the road. The agency further decided not to assume a role
of determining whether the incomplete vehicle manufacturer or final
stage manufacturer should conduct the recall where that issue is in
dispute.
[[Page 28171]]
In the comments there was considerable opposition to the proposal for
the agency to assign recall responsibility. The agency also rejected,
as moot, a companion proposal to make the decision assigning recall
responsibility nonreviewable.
II. NTEA's Petition for Reconsideration and the Agency's Response
On March 31, 2005, the National Truck Equipment Association (NTEA)
petitioned NHTSA for reconsideration of the final rule. In the
petition, NTEA noted that it participated as a committee member in the
negotiated rulemaking that preceded the issuance of the final rule.
NTEA observed that in the negotiated rulemaking, it argued that dynamic
test standards (which it identified as including FMVSS Nos. 105
Hydraulic and Electric Brake Systems, 121 Air Brake Systems, 201
Occupant Protection in Interior Impact, 203 Impact Protection for the
Driver from the Steering Control System, 204 Steering Control Rearward
Displacement, 206 Door Locks and Door Retention Components, 208
Occupant Crash Protection, 210 Seat Belt Assembly Anchorages, 212
Windshield Mounting, 214 Side Impact Protection, 219 Windshield Zone
Intrusion, 223 Rear Impact Guards, 301 Fuel System Integrity, 303 Fuel
System Integrity of Compressed Natural Gas Vehicles, and 305 Electric-
Powered Vehicles; Electrolyte Spillage and Electrical Shock Protection)
are impractical for intermediate manufacturers, final-stage
manufacturers, and alterers who complete multistage vehicles because
the tests that are incorporated into those standards cannot be
rationally performed by small businesses that build custom-manufactured
vehicles in production runs as small as one unit. NTEA contended that
because small businesses that complete multistage vehicles cannot
afford to conduct the tests that are the core of the dynamic test
standards, those standards remain impractical as applied to
intermediate and final-stage manufacturers and alterers. Citing the
agency's recognition in the preamble of the final rule that multistage
vehicles can be treated as a distinct vehicle type for the purpose of
establishing applicability of the FMVSS, NTEA contended that the agency
was no longer subject to any legal constraints in exempting such
vehicles from compliance with the dynamic test standards.
Aside from these general observations, the NTEA petition focused on
specific issues concerning the adoption of standards to which
multistage vehicles are subject, temporary exemptions, and
certification and recall responsibilities of multistage vehicle
manufacturers. The positions expressed by NTEA with respect to each of
those issues, and the agency's response, are set forth below.
A. Multistage Vehicles Built on Chassis-Cabs are Treated the Same as
Those Built on Other Types of Incomplete Vehicles
NTEA raised several arguments relating to the treatment of
multistage vehicles built on chassis-cabs under NHTSA's regulations,
including the new temporary exemption provisions that were added to 49
CFR part 555 Temporary Exemptions from Motor Vehicle Safety and Bumper
Standards as subpart B Vehicles Built in Two or More Stages and Altered
Vehicles. NTEA first argues that the procedures in subpart B should be
available to all manufacturers of vehicles built in two or more stages,
and should not exclude manufacturers of vehicles built on chassis-cabs.
The relevant regulatory text reads as follows:
``Sec. 555.11 Application. This subpart applies to alterers and
manufacturers of motor vehicles built in two or more stages to which
one or more standards are applicable. * * * Nothing in this subpart
prohibits an alterer, an intermediate manufacturer, a manufacturer
of incomplete vehicles other than chassis-cabs, or a final-stage
manufacturer from applying for a temporary exemption under subpart A
of this part.''
``Sec. 555.12 Petition for exemption. An alterer, intermediate
or final-stage manufacturer, or industry trade association
representing a group of alterers, intermediate and/or final-stage
manufacturers may seek, as to any vehicle configuration built in two
or more stages, a temporary exemption or a renewal of a temporary
exemption from any performance requirement for which a Federal motor
vehicle safety standard specifies the use of a dynamic crash test
procedure to determine compliance * * *''
NTEA also took issue with the statement in the final rule that
NHTSA had reconsidered its previous position with respect to the
agency's authority to either exclude vehicles manufactured in two or
more stages from certain FMVSS or to subject them to different
standards. There we stated that it is appropriate to consider
multistage vehicles built on incomplete vehicles ``other than those
incorporating chassis-cabs,'' as a vehicle type subject to
consideration in the establishment of regulations.\10\ We explained
that the agency could take multistage vehicles (other than those built
on chassis-cabs) as a group and exclude them from FMVSS that are
impracticable as they apply to these vehicles, or could subject these
vehicles to different requirements. In the final rule, we expressed
anticipation that final-stage manufacturers using chassis-cabs to
produce multistage vehicles would be in position to take advantage of
``pass-through certification,'' and therefore concluded that these
vehicles did not merit special consideration.
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\10\ See 70 FR 7421.
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We now note that the regulatory text in sections 555.11 and 555.12,
as quoted above, does not expressly preclude manufacturers of vehicles
built on chassis-cabs from petitioning under the new procedures in
subpart B. However, the last sentence of Sec. 555.11 may be read to
imply that a manufacturer of a chassis cab cannot petition for a
temporary exemption under the pre-existing temporary exemption
procedures in subpart A.
NTEA position: In its petition, NTEA argued that NHTSA should not
distinguish between multistage vehicles built on chassis-cabs and other
types of vehicles built in two or more stages. NTEA was especially
concerned that the new temporary exemption procedures would not apply
to multistage vehicles built on chassis-cabs. NTEA argued that the
certification obstacles could be as significant for vehicles built on
chassis-cabs as they are for other types of vehicles manufactured in
two or more stages. NTEA noted that in the preamble to the final rule,
NHTSA recognized that certain multistage vehicles--those other than
chassis-cabs--are a vehicle type subject to consideration in the
establishment of agency regulations (i.e., that, in the future, the
agency could subject multistage vehicles to different standards). NTEA
agreed with NHTSA's resolution as far as it goes, but raised issues
concerning certain language in the preamble that distinguished
multistage vehicles built on chassis-cabs from those built on
incomplete vehicles other than chassis-cabs. The specific language that
is the subject of NTEA's concern is found in the agency's discussion of
its authority to exclude multistage vehicles from the FMVSS. There the
agency stated:
We are also concerned that we had overlooked the existence of
relevant physical attributes of multistage vehicles. Many of the
multistage vehicles in question have distinct physical features
related to their end use. More important, all of them incorporate
incomplete vehicles other than chassis-cabs. Especially in the
context of the difficulties of serving niche markets, the physical
limitations of the incomplete vehicles other than chassis-cabs can
adversely affect the ability of multistage manufacturer[s] to design
safety performance into their completed vehicles.
(70 FR 7421).
[[Page 28172]]
According to NTEA, the distinction drawn in this paragraph between
multistage vehicles built on chassis-cabs, and those built on other
types of incomplete vehicles is an artificial one. NTEA observed that
many types of completed vehicles can be built on more than one type of
chassis. NTEA contended that vehicles built on chassis-cabs face
certification obstacles that could be as significant as those for
vehicles built on non-chassis cabs.
Agency Response
a. Distinction between vehicles built on chassis-cabs and those
built on other types of incomplete vehicles.
In discussing our authority relating to multistage vehicles in the
February 2005 final rule,\11\ the agency drew a distinction between
vehicles built on chassis-cabs and other vehicles manufactured in two
or more stages with respect to consideration of future standards or
revisions to existing FMVSS and exemptions from those standards. We
stated that we would consider multistage vehicles other than those
built on chassis-cabs in setting new standards and in revising existing
ones. On further consideration, we want to make clear that the
distinction between different types of multistage vehicles is not one
of legal authority. That is, for the purposes of our authority to
prescribe regulations affecting vehicles manufactured in two or more
stages, there is no legal distinction between vehicles built on
chassis-cabs and other vehicles manufactured in two or more stages. In
those instances where it is deemed appropriate because of
practicability concerns, and where it is consistent with our safety
objectives, the agency can consider any multistage vehicle, including
those built on a chassis-cab, as a vehicle type in establishing or
amending our regulations. Accordingly, we grant NTEA's petition to the
extent it sought this clarification and we are amending one section
added under the final rule (49 CFR 555.12) to ensure that it is
consistent with this clarification.
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\11\ NHTSA also followed this approach in its August 2005 NPRM
on roof crush resistance. See Docket No. NHTSA-2005-22143-5, August
23, 2005.
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Notwithstanding this clarification of our authority, we continue to
believe, in general, that there will be less need for the agency to
establish different standards for multistage vehicles built on chassis-
cabs, because their manufacturers should be able to take advantage of
pass-through certification and are less likely to face the
practicability concerns more readily associated with other types of
multistage vehicles. This practical distinction is discussed elsewhere
in this document.\12\
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\12\ See section II.C.5.
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b. Scope of the new temporary exemption provisions:
After carefully considering NTEA's petition, we wish to clarify the
scope of the new temporary exemption provisions in subpart B of 49 CFR
part 555. First, our discussion of our authority in the final rule, and
the distinction we noted between multistage vehicles built on chassis-
cabs and multistage vehicles built on other types of incomplete
vehicles, related primarily to consideration of future FMVSS or
revisions to existing standards. In those instances, the treatment of
multistage vehicles would be based on the facts. The discussion was not
intended to apply to subpart B, which, as the regulatory text correctly
indicates, applies not only to manufacturers of all types of multistage
vehicles, but also to alterers of completed vehicles. Therefore, the
new procedures in subpart B do not preclude manufacturers of multistage
vehicles built on chassis-cabs from petitioning for a temporary
exemption from one or more standards.
With respect to the last sentence of section 555.11, we conclude
that the sentence is unnecessary and confusing. The agency is making a
technical correction to section 555.11 to remove that sentence. We
observe that the scope of subpart A is unaffected by the availability
of the new procedures in subpart B.
Second, we note that both the subpart A and B temporary exemption
procedures are available only to manufacturers who assume legal
responsibility for the vehicle and intend to certify the vehicle in
accordance with 49 CFR part 567. In most instances, these parties are
final-stage manufacturers. However, under 49 CFR 568.7, the incomplete
vehicle manufacturer or an intermediate manufacturer can assume legal
responsibility for the vehicle as finally manufactured. Therefore,
these entities may petition the agency under either subpart A or B if
they intend to affix a certification label required by 49 CFR 567.5(f)
or (g), and if they meet other criteria specified in section 555.11. As
a practical matter, most incomplete vehicle manufacturers and
intermediate manufacturers would not qualify for financial hardship
relief because of the size of their operations. It is clear that the
new procedures in the final rule were not available to incomplete
vehicle manufacturers and intermediate manufacturers who do not certify
the vehicle as finally manufactured under 49 CFR 567.5(f) or (g), and
instead furnish IVDs and amendments to IVDs to final-stage
manufacturers in accordance with 49 CFR 568.4 or 568.5. Nevertheless,
we believe it is important to clarify the issue. Accordingly, the
agency is making a technical correction to the text of section 555.12.
For the reasons discussed above, it is clear that the new temporary
exemption procedures encompass manufacturers of all types of multistage
vehicles, including vehicles built on chassis-cabs, but are also
limited to manufacturers who assume legal responsibility for the
vehicle and intend to certify the vehicle in accordance with 49 CFR
part 567.
B. The New Temporary Exemption in Part 555 Is Sufficient
NTEA position: Though it acknowledged that the temporary exemption
provisions adopted by the agency in the final rule may help a
particular final-stage manufacturer to temporarily address a
certification problem, NTEA contended that those provisions do not
remedy the continuing inability of many final-stage manufacturers to
certify compliance with dynamic test standards. NTEA took issue with
language in sections 555.12 and 555.13, as added under the final rule,
which expressly limits the newly established temporary exemptions for
which alterers and manufacturers of motor vehicles built in two or more
stages may apply under subpart B of part 555. Those sections
characterize the temporary exemptions as being available from ``dynamic
crash test'' requirements found in the FMVSS. NTEA observed that the
agency has previously recognized that dynamic tests that do not involve
crashes may also be beyond the financial capability of final-stage
manufacturers. Accordingly, NTEA contended that the temporary exemption
provisions should apply to all dynamic test standards, and not just
those standards for which dynamic crash test requirements are
prescribed.
Agency Response
In the final rule, the agency limited subpart B to FMVSS
requirements that incorporate dynamic crash tests. As discussed above,
NTEA argued that subpart B should apply to all standards that are based
on dynamic testing and not just dynamic crash testing.
After carefully considering NTEA's petition, we have decided to
expand the scope of subpart B so that manufacturers of multistage
vehicles can petition the
[[Page 28173]]
agency for a temporary exemption from requirements that incorporate
various dynamic tests generally, and not exclusively dynamic crash
tests. Therefore, we grant this aspect of NTEA's petition, and amend
the final rule accordingly.
First, we observe that small volume manufacturers are currently
able to petition the agency for temporary exemptions from all Federal
motor vehicle safety and bumper standards under subpart A. Therefore
our reconsideration of the scope of subpart B relates to the
availability of the more streamlined procedures in that subpart rather
than to the possibility of a manufacturer obtaining an exemption, in
appropriate circumstances, at all.
Second, we note that under section 555.13(a) and (b) of subpart B,
in order to petition for an exemption, the petitioner must show why the
test requirements of a particular standard would cause substantial
economic hardship. This showing must include detailed financial
information and a complete description of the petitioner's good faith
efforts to comply with the standards.
Specifically, the petitioner must explain the inadequacy of IVD
documents furnished by one or more incomplete vehicle manufacturers or
by prior intermediate manufacturers pursuant to part 568. The
petitioner must also show why generic or cooperative testing is
impracticable. In addition, the petitioner must explain its difficulty
in procuring goods and services necessary to conduct dynamic tests. We
also note that in addition to showing hardship, each petitioner is
required to explain under section 555.13(c) why the requested temporary
exemption would not unreasonably degrade safety.
In limited circumstances, the difficulty or impracticability of
testing a multitude of unique vehicle configurations, or otherwise
obtaining an appropriate basis for certification, with the associated
financial hardships, may extend beyond the requirements for which the
agency verifies compliance solely through crash testing. We note 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. As the negotiated rulemaking
committee pointed out, and as we noted in the SNPRM,\13\ 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.
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\13\ See 69 FR 36042.
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While we have decided not to restrict the exemption provisions in
subpart B to requirements incorporating dynamic crash tests, but
instead to extend those provisions to requirements incorporating any
kind of dynamic test, we note that the ability of multistage vehicle
manufacturers to make the requisite showing of hardship will be related
to the testing costs (or the cost of other means of obtaining an
appropriate basis for certification) associated with each specific
standard and requirement for which an exemption is sought, as well as
the availability of alternatives (such as using a different incomplete
vehicle) and potential safety consequences. Therefore, in view of the
range of possible circumstances, we do not believe it is necessary for
us to attempt, in this document, to specify the dynamic tests that may
have high costs, as opposed to those for which the costs should be
relatively low.
While we have expected the number of instances in which an
exemption will be needed from requirements incorporating dynamic crash
tests to be small, we expect the number to be even smaller for
requirements incorporating other types of dynamic tests. This
expectation reflects the nature of the tests at issue, the alternatives
available to final-stage manufacturers, the information contained in
incomplete vehicle documents, and the other relief that multistage
manufacturers were provided in the February 2005 final rule.
In consideration of these issues, the agency is amending the scope
of subpart B to include requirements that are based on dynamic testing
generally, rather than those based on dynamic crash tests alone. We
have revised the text of section 555.12 accordingly.
1. Clarification of What Information Petitioners Must Provide To Show
Good Faith Efforts To Comply With Applicable Regulations
As indicated in the previous section, petitioners under subpart B
are required to provide ``a complete description of each manufacturer's
good faith efforts to comply with the standards.'' See section
555.13(b).\14\ The ability of the manufacturers of vehicles built in
two or more stages to take advantage of ``pass-through'' certification
may be dependent on selection of an incomplete vehicle that is
appropriate for the intended application. That is, the availability of
a sufficient ``pass-through'' to permit certification of compliance
depends not only on information provided by incomplete vehicle
manufacturers, but also on the intermediate and final-stage
manufacturers using the appropriate incomplete vehicle for the intended
application.
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\14\ 49 U.S.C. 30113(b)(3)(B)(i) authorizes NHTSA to exempt only
those manufacturers that have tried to comply with the standard in
good faith.
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One aspect of the final-stage manufacturer's good faith efforts to
comply with an FMVSS is determining whether an incomplete vehicle is
available that will enable it to utilize ``pass-through
certification.'' We note that it is unlikely that the agency would find
it in the public interest to grant petitions filed by a final-stage
manufacturer that made no good-faith effort to determine whether an
appropriate incomplete vehicle, which would allow effective pass-
through certification, was available. The granting of a petition would
exempt the vehicle from one or more safety standards and, as a general
matter, we believe this would not be justified if there were an
alternative that would comply with safety standards.
While the issue of appropriate selection of the incomplete vehicle
is relevant to compliance with dynamic crash test standards, we believe
the issue is likely to be more significant as we extend the scope of
subpart B to include requirements including dynamic tests more
generally. For example, in order to take advantage of pass-through
certification for a braking standard, the final stage manufacturer
needs to assess whether an incomplete vehicle is available that will
enable it to stay within the envelopes for weight and center of gravity
for the intended application. This may involve assessing incomplete
vehicles of varying size, gross vehicle weight rating or ``GVWR, \15\
and number of axles that are available from different manufacturers.
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\15\ GVWR means the value specified by the manufacturer as the
loaded weight of a single vehicle. 49 CFR 571.3.
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While we believe that the current requirement that petitioners
provide a complete description of each manufacturer's good faith
efforts to comply with the standards may be read to encompass this in
relevant situations, we believe it is appropriate to make it clear in
the regulatory text. This is particularly important since the issue is
likely to become more significant with the expanded scope of subpart B.
Accordingly, we are including in section 555.13 a provision
requiring the petitioners to furnish the agency with information
regarding the availability of
[[Page 28174]]
alternative incomplete vehicles (including ones of different size, GVWR
and number of axles), from the same and other incomplete vehicle
manufacturers, that could allow the petitioner to rely on IVDs when
certifying the completed vehicle, instead of petitioning under subpart
B. This information will also help the agency make its decisions in the
timeframe specified in subpart B.
C. The Current Multistage Vehicle Certification Scheme Is Workable
NTEA position: NTEA asserted that even though NHTSA recognized in
the SNPRM that incomplete vehicle manufacturers must provide vehicle
upfitters (as final-stage manufacturers are sometimes referred to in
the trade) with reasonable conformity envelopes (referencing 69 FR
36044), the agency did not adopt as part of the final rule a
reasonableness standard for conformity statements in an IVD. NTEA
further observed that the agency relied on a market-based argument in
concluding that ``incomplete vehicle manufacturers have business
reasons to provide workable IVDs'' and that ``[t]here is no market for
incomplete vehicles that cannot be manufactured into completed vehicles
that will meet the applicable FMVSS'' (citing final rule at 70 FR
7425). NTEA contends that the market forces theory articulated by the
agency is simply wrong. According to NTEA, incomplete vehicle
manufacturers at present provide no meaningful compliance envelope,
even on chassis-cabs, for numerous dynamic test standards.
NTEA also contends that NHTSA's market-forces argument is premised
on the erroneous assumption that the final-stage manufacturer is in a
position to choose the brand chassis on which it will complete a
vehicle. NTEA observed that in the vast majority of cases, the customer
goes to a truck dealer, not a final-stage manufacturer, to purchase a
multistage vehicle. The dealer then engages the final-stage
manufacturer to install the body and related equipment per the
customer's specifications. Given this scenario, NTEA asserts that the
final-stage manufacturer is not in a position to inform the dealer that
he would prefer to work on a different chassis. As a consequence, NTEA
concludes that the market does not exert any pressure on the incomplete
vehicle manufacturer to provide reasonable compliance envelopes.
NTEA also surmised that the incomplete vehicle manufacturer will
err on the side of not taking on liability, and does so by making its
envelope as narrow as possible or nonexistent. Reasoning that
meaningful pass-through certification would require the incomplete
vehicle manufacturer to expend resources on testing to determine the
proper parameters of such certification, NTEA concludes that the
elimination of meaningful pass-through certification therefore saves
the incomplete vehicle manufacturer time and money.
NTEA also took issue with the agency's observation in the preamble
of the final rule that because of its subjectivity, the reasonableness
standard recommended by NTEA for conformity statements in the IVD is
not susceptible to effective enforcement (referencing 70 FR 7425). NTEA
asserted that this is inconsistent with the fact that the agency uses a
good faith standard for determining the application of civil penalties.
NTEA faults the agency for failing to explain why it cannot fashion a
reasonableness standard for IVDs, but can in a closely-related context.
Agency response: For the reasons set forth below, we deny this
aspect of NTEA's petition.
1. Overview of the Certification of Multistage Vehicles
The certification process is governed by 49 CFR part 567.\16\ 49
CFR 567.5 \17\ sets forth the certification requirements for
manufacturers of vehicles manufactured in two or more stages. With
limited exceptions,\18\ each manufacturer of an incomplete vehicle and
each intermediate manufacturer \19\ assumes legal responsibility for
all certification-related duties under the Vehicle Safety Act \20\ with
respect to:
---------------------------------------------------------------------------
\16\See also 49 U.S.C. 30115.
\17\ In this part of the preamble, except as otherwise stated,
the references to the regulations are to the regulations published
on February 14, 2005 that will take effect September 1, 2006. See 70
FR 7414, 7428 (Feb. 14, 2005).
\18\ See 70 FR at 7432-33, 49 CFR 567.5 (b) and (c).
\19\ In the remainder of the preamble, NHTSA will not discuss
intermediate manufacturers separately.
\20\ The Vehicle Safety Act is officially 49 U.S.C. Chapter 301.
---------------------------------------------------------------------------
(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 [incomplete vehicle
document]; and
(iii) The accuracy of the information contained in the IVD.\21\
---------------------------------------------------------------------------
\21\ 49 CFR 567.5(b)(1).
---------------------------------------------------------------------------
Final-stage manufacturers have complementary duties. Pursuant to 49
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.\22\
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\22\ 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.\23\
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\23\ 49 CFR 567.5(d)(2).
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The final-stage manufacturer may make one of the following
alternative certification statements: (1) The vehicle conforms to all
applicable federal motor vehicle safety standards (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 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.\24\
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\24\ 49 CFR 567.5(d)(2)(v)(A).
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As reflected above, a number of certification provisions refer to
incomplete vehicle documents or IVDs. The incomplete vehicle
manufacturer furnishes an IVD for incomplete vehicles pursuant to 49
CFR 568.4. In the IVD, among other things, for each applicable FMVSS,
the incomplete vehicle manufacturer makes one of three affirmative
statements: (1) A Type 1 statement that the vehicle when completed will
conform to the standard if no alterations are made in identified
components; (2) a Type 2 statement that sets forth the specific
conditions of final manufacture under which the incomplete vehicle
manufacturer specifies that the completed vehicle will conform to the
standard (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
[[Page 28175]]
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 relies on the IVD to certify the vehicle
to a particular standard.
2. Practical Aspects of the Multistage Vehicle Process
An incomplete vehicle, as long defined by NHTSA,\25\ is not a
vehicle. It is either
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\25\ Prior to the 2005 amendments, incomplete vehicle was
similarly defined in 49 CFR 568.3 as: ``* * * an assemblage
consisting, as a minimum, of frame and chassis structure, power
train, steering system, suspension system, and braking system, to
the extent that those systems are to be part of the completed
vehicle, that requires further manufacturing operations, other than
the addition of readily attachable components, such as mirrors or
tire and rim assemblies, or minor finishing operations such as
painting, to become a completed vehicle.''
(1) 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; or
(2) An incomplete trailer.\26\
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\26\ 49 CFR 567.3 (2006).
In the multistage vehicle process, the incomplete vehicle
manufacturer builds a chassis that has sufficient attributes to meet
the definition of incomplete vehicle. After the incomplete vehicle
manufacturer completes its work, it ships the chassis. The chassis may
range from being relatively close to completion (such as a chassis-cab
\27\) to being relatively far from completion (such as a stripped
chassis \28\). The chassis may end up at a dealer, in a pool of
incomplete vehicles that are readily available for completion, or at a
final-stage manufacturer. Following the addition of a truck body or
equipment, the chassis could be used for a flatbed truck, dump truck,
tow truck (wrecker), box truck (dry freight van), service truck,
utility truck or other specialized application.\29\ Regardless of the
state of completion of the chassis or where it goes after it leaves the
incomplete vehicle manufacturer's plant, there is a fundamental fact:
once the incomplete vehicle is out of the incomplete vehicle
manufacturer's hands, the incomplete vehicle manufacturer does not have
control over what is done with or added to the incomplete vehicle.
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\27\ 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 function. See 49 CFR 567.3 (2005). For illustration
purposes, an example is a pickup truck without a standard pickup
truck bed. These may be built into various trucks including a
tradesman's utility service truck, a tow truck, a dump truck, a box
truck or a specialized work truck.
\28\ A stripped chassis may be viewed as meeting the definition
of an incomplete vehicle without more. As shipped by the incomplete
vehicle manufacturer, it would have steering control and braking
systems (to meet the definition of incomplete vehicle). It
ordinarily would not have the windshield, roof, A-pillar (the pillar
to which the windshield attaches), B pillar (the pillar behind the
front doors) or body components. Ford's E-series incomplete vehicle
manual refers to this as a basic chassis. These may not be
particularly evident on the road and may underlie, for illustration
purposes, school buses or large recreation vehicles.
\29\ See NTEA Petition at 4.
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There can be problems with the vehicle once completed that may not
be attributed to the incomplete vehicle manufacturer but that may
fairly be attributed to the final-stage manufacturer. For example,
assume that an incomplete vehicle manufacturer ships a chassis with
brakes that under the IVD would meet the applicable brake systems FMVSS
if the chassis were used for light duty applications but not for heavy
duty applications. The chassis is then out of the control of the
incomplete vehicle manufacturer. Assume that the final-stage
manufacturer adds a dump truck body so that the completed truck has a
GVWR greater than that specified in the IVD. In a colloquial sense, the
truck would be overloaded.\30\ Alternatively, assume that the final-
stage manufacturer mounts a top-heavy gasoline tank on the chassis. In
such cases, the vehicle would not meet the FMVSS for brake systems, and
ordinarily would be outside the IVD compliance envelope. As another
example, the final-stage manufacturer may make modifications to the
interior compartment of a chassis-cab, which could take the incomplete
vehicle out of compliance with various FMVSS developed to protect
occupants in crashes. Final-stage manufacturers could also add parts
and equipment that make the vehicle noncompliant.
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\30\ The term overloaded has a particular meaning in the context
of some FMVSS, not as an issue here. In this preamble, NHTSA is
using ``overloaded'' in a colloquial way, meaning too heavy or
exceeding GVWR specifications.
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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, prepared by the incomplete vehicle
manufacturer, 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. Usually, 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.
The system of pass-through certification has existed for more than
25 years, and in that time many multistage vehicles have been built and
certified by final-stage manufacturers. This indicates that the system
is workable and operates as intended.
3. NTEA's Position
NTEA takes issue with the IVD and pass-through certification
process. Assuming that FMVSS apply,\31\ NTEA maintains as a sweeping
proposition that the IVDs currently provided are unworkable and
insufficient.
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\31\ In NTEA's view, some FMVSS should not apply to multistage
vehicles as a vehicle type, and even if they are applicable under
the regulations establishing FMVSS (49 CFR part 571), there should
be exemptions from FMVSS based on petitions from individual final-
stage manufacturers or groups of such manufacturers. 49 CFR part
555.
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NHTSA does not accept NTEA's position. The certification provisions
are important. Under them, the final-stage manufacturer historically
has provided, and under the regulations published in February of 2005
must provide, its certification that the vehicle complies with
applicable Federal motor vehicle safety standards. For almost 40 years,
these standards have been one of the most critical foundations for
motor vehicle safety. Under 49 U.S.C. 30115, the manufacturer may not
issue the certificate if, in exercising reasonable care, it has reason
to know the
[[Page 28176]]
certificate is false or misleading in a material respect.
NTEA's petition is conclusory. Overall, NTEA seeks to remove the
certification responsibility from final-stage manufacturers and impose
much of that responsibility on incomplete vehicle manufacturers. NTEA's
petition ignores the fact that incomplete vehicle manufacturers do not
control what final-stage manufacturers do with the incomplete vehicles.
NTEA also complains generally without constructively delineating the
contents of an alternative IVD that would be fair to incomplete vehicle
manufacturers and would not require them to be involved in the design
and testing of completed vehicle. Finally, NTEA fails to demonstrate
that NHTSA has the authority to unilaterally rewrite the IVDs and
impose them on incomplete vehicle manufacturers, and does not recognize
the fact that the certification process is working and multistage
vehicles are being built and certified.
4. The Availability of Multistage Vehicles Belies NTEA's Position
Overall, NTEA offers the view that it is not possible for a final-
stage manufacturer to comply with an agency's multistage certification
regulations and even if it were possible, such compliance would be
economically ruinous. NTEA's position is inconsistent with the current
state of the multistage vehicle industry. There are many multistage
vehicles on the road that have been certified and the final-stage
manufacturers are still in business. For example, most school buses are
multistage vehicles. They are certified by final-stage manufacturers to
a number of federal standards. The major final-stage manufacturers such
as Winnebago, Thomas Built and Blue Bird are able to certify vehicles
and are in business.\32\ There are also large numbers of other
multistage vehicles, such as tanker trucks, work trucks, box trucks,
flatbed and stake trucks, tow trucks and dump trucks on the road.
---------------------------------------------------------------------------
\32\ They do face economic pressures, such as those associated
with competitive bidding in the procurement of the buses.
---------------------------------------------------------------------------
NTEA's position does not correspond to statements by final-stage
manufacturers. In the trade, final-stage manufacturers are known as
upfitters or as body builders. Many of these companies readily can be
found on the web with searches for terms such as upfitter or as body
builder or by type of completed truck such as flat bed truck, service
truck, school bus or utility truck. They can also be found in the
yellow pages under truck bodies. For example, in the Washington, DC
area in the Yellow pages there are companies such as Wilbar Truck
Equipment Inc. and Fallsway Spring and Equipment Co. They have web
sites that refer to their products including http://www.wilbar.com/ and
http://www.fallswayspring.com/. The common theme on these web sites is
a ``can do'' approach. Their clear message is that they can make a
variety of trucks. NHTSA has not found any that state the reservations,
expressed by NTEA, that final-stage manufacturers cannot do so.
In addition, NTEA's position sounds a chord not expressed by
organizations within NTEA's umbrella organization. NTEA has numerous
affiliate divisions that operate ``under the NTEA umbrella'' and
``represent specific product segments within the truck body and
equipment industry.''\33\ These affiliate groups include the Ambulance
Manufacturers Division, which promulgates standards with the General
Services Administration to which all ambulances must conform,\34\ and
two bus divisions, the Manufacturers Council of Small School Buses and
the Mid-Size Bus Manufacturers Association.\35\ The members of these
affiliate divisions have been building and certifying a number of
models of multistage vehicles in their niche markets under the existing
certification structure.
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\33\ http://www.ntea.com/mr/divisions.asp \34\ http://www.ntea.com/mr/divisions/amd/intro.asp.
\35\ http://www.ntea.com/mr/divisions.asp.
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NTEA's petition does not mention a single final-stage manufacturer
that has been unable to certify a vehicle under the existing framework.
When NTEA's failure to include a single concrete example is viewed in
light of the obvious numbers of multistage vehicles,\36\ NTEA's
position can not be accepted.
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\36\ In its 2004 Annual Report, NTEA characterized truck chassis
as $64.7 billion worth of a $98.3 billion commercial truck and
transportation equipment industry.
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Certification serves an important safety function in the multistage
vehicle business. Many multistage 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. Again, final-
stage manufacturers regularly certify these and other types of
multistage vehicles.
5. NTEA's Argument Is too Broad and Ignores Gradations in Types of
Multistage Vehicles
NTEA's petition paints a broad picture of final-stage manufacturers
that are subject to many FMVSS and that must engage in extensive
engineering of the vehicle from the ground up to meet the FMVSS. There
are at least two problems with this sweeping view. First, many
multistage vehicles are heavy vehicles with a gross vehicle weight
rating (GVWR) of over 10,000 lbs (4536 kilograms) and are not subject
to a number of FMVSS.\37\ For illustration purposes, as a rough gauge,
most trucks with a GVWR of more than 10,000 lbs have at least four rear
wheels (two on each side). Trucks with one rear wheel on each side
ordinarily have a GVWR equal to or less than 10,000 lbs. As a general
rule of thumb, medium duty and heavy duty trucks have a GVWR of over
10,000 lbs.
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\37\ 70 FR at 7420-21.
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To certify a motor vehicle with a GVWR of more than 10,000 lbs
requires consideration of fewer FMVSS than for a vehicle with a GVWR of
10,000 lbs or less. Among the FMVSS that do not apply to multistage
vehicles, such as work-type and recreation vehicles with a GVWR greater
than 10,000 lbs are the following:
------------------------------------------------------------------------
FMVSS Title
------------------------------------------------------------------------
114.................................. Theft protection.
118.................................. Power-operated window, partition,
and roof panel systems.
138.................................. Tire pressure monitoring systems.
201.................................. Occupant protection in interior
impact.
202.................................. Head restraints.
203.................................. Impact protection for the driver
from the steering control
system.
204.................................. Steering control rearward
displacement.
212.................................. Windshield retention.
214 \38\............................. Side impact protection.
216 \39\............................. Roof crush resistance
219.................................. Windshield zone intrusion.
225 \40\............................. Child restraint anchorage
systems.
301 \41\............................. Fuel system integrity.
303.................................. Fuel system integrity of
compressed natural gas vehicles.
305.................................. Electric-powered vehicles:
electrolyte spillage and
electrical shock protection.
------------------------------------------------------------------------
Additionally, for some FMVSS, only some requirements apply. For
example, pursuant to FMVSS 208 Occupant Crash Protection, trucks with a
GVWR of 8,500 lbs or less or an unloaded vehicle weight of over 5,500
lbs are subject to seat belt and labeling requirements but
[[Page 28177]]
are not required to be equipped with an inflatable restraint system
(air bag) at each front outboard seating position.\42\ Also, crash
tests are not required for heavier vehicles. NTEA does not address the
limited applicability of the FMVSS.
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\38\ Dynamic crash test requirements apply to MPVs, trucks and
buses with a GVWR of 6,000 lbs and less.
\39\ Quasi-static test applies to MPVs, trucks, and buses other
than school buses with a GVWR of 6,000 lbs and less.
\40\ Requirements do not apply to MPVs and trucks with a GVWR
greater than 8,500 lbs.
\41\ Dynamic crash test applies to school buses regardless of
GVWR; same for FMVSS 303.
\42\ See 49 CFR 571.208 S 4.2.6.2.
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Second, many of the lighter multistage vehicles, with a GVWR of
10,000 lbs or less, are often built on chassis-cabs. 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 function.\43\ Multistage
vehicles built on chassis-cabs resemble pickup trucks, except that
behind the cab there is another structure instead of a pickup box.
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\43\ 49 CFR 567.3 (2005).
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NTEA recognizes that
chassis-cabs are the most ``evolved'' of the incomplete vehicle
types (followed, in descending order, by cutaways, chassis cowls and
stripped chassis). Likewise, it is undoubtedly true that the
conformity statements provided by incomplete vehicle manufacturers
give final-stage manufacturers more pass-through opportunities \44\
on chassis-cabs than on other types of incomplete vehicles.\45\
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\44\ NTEA's footnote stated in pertinent part ``Under existing
regulations, there is no pass-through certification available for
incomplete vehicles other than chassis-cabs.''
\45\ Petition at 5.
Nevertheless, NTEA does not temper its sweeping assertions or make any
allowance for the multistage vehicles that are built on chassis-cabs
and thus have more complete IVDs with (to use NTEA's words) more pass-
through opportunities. It is easier for final-stage vehicle
manufacturers to certify these vehicles in view of the scope of the
IVDs.
6. The Existing IVDs Are Workable
One of the principal pillars on which the NTEA petition rests is
the contention that incomplete vehicle manufacturers presently provide
subsequent stage manufacturers with no meaningful compliance envelope,
even on chassis-cabs, for numerous dynamic test standards. As
previously noted, NTEA surmised that incomplete vehicle manufacturers
have an incentive to make the compliance envelope as narrow as possible
or nonexistent to avoid taking on liability and the need to expend
resources on testing to determine the proper parameters of such
certification. NTEA appended a GM CK Chassis-Cab IVD to its petition,
and cited the IVD in many instances as an example of purported
deficiencies in IVDs generally. To assess the validity of these
contentions, the agency carefully examined the certification statements
in the GM IVD that NTEA identified as inadequate. Our findings are set
forth below, individually addressing each standard that was the subject
of this inquiry.\46\
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\46\ Our discussion of the FMVSS in this document is not
intended to be comprehensive. The reader is referred to the standard
itself and associated Federal Register documents for a full
description of each standard discussed.
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a. FMVSS 105 Hydraulic and Electric Brake Systems and FMVSS 135 Light
Vehicle Brake Systems
NTEA contends that the GM IVD, as it pertains to FMVSS 105
Hydraulic and Electric Brake Systems and 135 Light Vehicle Brake
Systems, provides no meaningful pass-through certification
opportunities because the compliance envelopes are non-existent. FMVSS
105 and 135 specify performance requirements for hydraulic and electric
brake systems. FMVSS 135 applies to vehicles with a GVWR of 3,500 kg/
7,716 lbs and less; FMVSS 105 applies to vehicles with a GVWR greater
than 3,500kg/7,716 lbs.\47\ These standards include stopping distance
requirements, as well as requirements for parking brakes and warning
indicators.
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\47\ Under NHTSA's regulations at 49 CFR 567.4(g)(3), the
manufacturer must specify on a vehicle's certification label the
vehicle's ``Gross Vehicle Weight Rating'' or ``GVWR.'' The
regulation provides that the value specified ``shall not be less
than the sum of the unloaded vehicle weight, rated cargo load, and
150 pounds times the vehicle's designated seating capacity [except
that] for school buses the minimum occupant weight allowance shall
be 120 pounds.'' The requirement for stating the GVWR is intended to
inform the operator of the extent to which the vehicle can be safely
loaded.
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Incomplete vehicles have functioning braking systems.\48\ The GM
IVD provides pass-through certification for both FMVSS 105 and 135 if
the final-stage manufacturer adheres to certain requirements.
Specifically, the GM IVD states that: (1) Alterations by the final-
stage manufacturer may not affect the function, properties, location or
vital special clearances of the brake system on the chassis installed
by GM; (2) the completed vehicle must not exceed the GVWR and gross
axle weight ratings (GAWR) \49\ front and rear specified by GM for the
incomplete vehicle; and (3) the center of gravity of the final vehicle
must fall within the bounds of the center of gravity chart in the
IVD.\50\
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\48\ See 49 CFR 567.3 (definition of incomplete vehicle) (2006).
\49\ GAWR means the value specified by the vehicle manufacturer
as the load-carrying capacity of a single axle system.
\50\ GM IVD, attached to Petition, at 8-12, 16-19.
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In addition to the IVD, GM's Web site http://www.gmupfitter.com,
contains publications including ``Body Builder's Manuals'' and ``Best
Practices Manuals.'' The Body Builder's Manual for each model (e.g., CK
full-size pickups) provides information and instructions about the
incomplete vehicle that can be used by final-stage manufacturers to
design the second body unit. As specified in the manual's introduction,
GM's Best Practices Manuals are intended for use by RV, truck, and
commercial upfitters in converting and completing incomplete vehicles.
In general, the information in the Best Practices Manual describes how
to install the body onto the incomplete vehicle, including clearances
between the chassis and the body that must be assured.
The GM IVD is workable and final-stage manufacturers can construct
a vehicle that adheres to the instructions in the IVD and therefore
carries pass-through certification for FMVSS 105 and 135. To begin,
GM's requirement that the final-stage manufacturer not alter the
incomplete vehicle in such a way that it changes the function,
properties, location or vital spatial clearances of the brake system
components \51\ is workable. It is common sense that GM would provide
pass-through certification with limitations on the retention of the
integrity of the brake system and that GM would not provide pass-
through certification if a final-stage manufacturer made alterations to
the brake system. Beyond not changing the brake system, a final-stage
manufacturer also must not add equipment that impinges on vital spatial
clearances of the system. In this regard, GM has provided guidance to
upfitters. GM's Best Practices Manual states: ``provide at least 2
inches clearance between body- or chassis-mounted components and brake
hoses.'' GM's Body Builder's Manual reinforces the clearance check for
brake hoses to include brake hose travel with the vehicle's suspension.
The Best Practices Manual includes requirements for a 0.7 inch minimum
clearance between a brake line and moving components, and 0.5 inch
minimum clearance between a brake line and vibrating components. These
instructions by GM provide a final-stage manufacturer with ample
information to
[[Page 28178]]
work within the limits of the pass-through certification.
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\51\ GM IVD at 8.
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Second, GM's IVD contains a restriction on the completed vehicle's
GVWR and GAWRs. The principle that brake systems are designed for
limited weight ranges is basic and widely accepted. The GM IVD states
that the GVWR and front and rear GAWRs identified on the incomplete
vehicle label cannot be exceeded. If the final-stage manufacturer
assigns a higher GVWR and changes or increases the GAWRs, or if the
completed vehicle, when loaded according to the manufacturer's
recommendations, exceeds its GVWR or a GAWR, the vehicle may not meet
stopping distance requirements. Viewed in light of the IVD, the vehicle
will be overloaded (in the colloquial sense of that term) and GM should
not be held responsible.
The final-stage manufacturer can determine whether the GVWR or
GAWRs assigned by the incomplete vehicle manufacturer have been
exceeded either by weighing the vehicle when fully manufactured or by
using engineering analysis and aggregating the weights of the
components it adds to the vehicle, which often may be obtained from
equipment suppliers, coupled with estimates of further loadings by the
user. A key concern for the final-stage manufacturer in complying with
this portion of the IVD is to use an appropriate incomplete vehicle
(chassis) for the multistage vehicle it is producing, as is addressed
more fully in other sections of this preamble. The final-stage
manufacturer cannot fairly use a chassis designed for lighter duty than
that intended for the ultimate application and then assert that the
incomplete vehicle manufacturer is responsible for the completed
vehicle's shortcomings. So long as the final-stage manufacturer uses an
appropriate chassis, it will be able to comply with this aspect of the
IVD.\52\
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\52\ NTEA's own documents recognize this. An NTEA handout from
the 2006 Design Show states: ``Before ordering a chassis, make sure
it can be upfitted as intended.'' See Johnson, Robert, Design and
Specifications for Vocational Vehicles; a Functional Approach, in
NHTSA Docket No. NHTSA-99-5673.
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Finally, the center of gravity of the vehicle must fall within the
areas set forth in the GM IVD. The IVD contains a formula to calculate
the approximate center of gravity location in a vehicle.\53\ The IVD
also contains a chart that lists the different vehicle types and the
coordinates of allowable centers of gravity for the completed vehicle.
There is no question that center of gravity is a fundamental concept,
and that the final-stage manufacturer could complete a vehicle in a way
that has a problematic center of gravity. There are ample resources
beyond the IVD itself to aid final-stage manufacturers in making the
correct center of gravity calculations. In fact, NTEA's own Web site
includes products for calculating the center of gravity, including off-
the-shelf computer programs to perform the calculations.\54\ NTEA also
conducts workshops on performing the center of gravity calculations and
selecting the right chassis.\55\ NTEA has not shown that the centers of
gravity for GM's vehicles are unreasonable.
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\53\ GM IVD at 9.
\54\ See, e.g., http://www.ntea.com/tr/techtalk_detail.asp?DOC_ID=101120; http://www.ntea.com/im/prod_
detail.asp?prod--id=1.
\55\ http://www.trailer-bodybuilders.com/mag/trucks_back_basicshow_match/index.html.
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In light of the foregoing, the GM IVD is reasonable with regard to
FMVSS 105 and 135. It would be manifestly unreasonable to expect an
incomplete vehicle manufacturer to provide a ``blank check'' pass-
through certification on FMVSS 105 or 135 without providing limitations
on the final-stage manufacturer to protect the integrity of the brake
system and to ensure that the vehicles are not overloaded in the
colloquial sense and have an appropriate center of gravity height. NTEA
did not provide any information to support a contrary conclusion.
b. FMVSS 204 Impact Protection for the Driver From the Steering Control
System
NTEA also complains about the pass-through certification in the GM
IVD pertaining to FMVSS 204 Impact Protection for the Driver from the
Steering Control System. FMVSS 204 regulates the rearward displacement
of the steering control to reduce the likelihood of chest, neck, or
head injury to the driver in the event of a front impact. The standard
has limited application in the multistage vehicle context because it
does not apply to vehicles with an unloaded vehicle weight greater than
2495 kg (5,500 lbs) or a GVWR of more than 4536 kg (10,000 lbs) and
most multistage vehicles exceed one or both of these weights. FMVSS 204
establishes a maximum displacement of the steering column and shaft in
a 48 km/hr (30 mph) crash test into a fixed concrete barrier.
The GM IVD provides pass-through certification for FMVSS 204 for
vehicles with a GVWR of 10,000 lbs or less and an unloaded vehicle
weight of 5,500 lbs or less, which corresponds to the applicable
weights in FMVSS 204, provided that the maximum unloaded vehicle weight
is not exceeded and no alterations are made to affect the properties,
location, or vital spatial clearances of the steering control system
and the frontal systems such as the frame, hood and powertrain, which
often bear the brunt of a frontal crash. The IVD provides no pass-
through certification for incomplete vehicles purchased with any bumper
delete option.
The weight restrictions in the IVD are logical and consistent with
the realities of a crash. In a crash, the energy of the moving
vehicle(s) is dissipated and the metal in the vehicle is displaced and
crumples. The energy that is dissipated is a function of the mass of
the vehicle and its speed. The incomplete vehicle manufacturer can
design a vehicle that will withstand a frontal crash of a certain
intensity such that the steering wheel is not displaced beyond
allowances in FMVSS 204. If the vehicle, as completed and loaded,
exceeds the maximum weight for which the incomplete vehicle
manufacturer provided pass-through certification (usually based on a
crash test the incomplete vehicle manufacturer performed), it would not
be reasonable to expect the certification to apply because in a crash
the excess vehicle weight could cause greater front-end displacement
than contemplated in the design of the incomplete vehicle and the
steering control mechanisms would therefore be displaced further into
the passenger compartment. The final-stage manufacturer can readily
work within weight requirements by taking care to purchase the
appropriate incomplete vehicle chassis for the use to which the vehicle
will be put.
Similarly, the restrictions in the GM IVD on alterations that
interfere with the integrity of the frontal vehicle systems and
steering system are logical and consistent with the realities of a
crash. In a crash, the energy of the vehicle is, in lay terms, absorbed
by various vehicle systems, including the bumper, front sheet metal,
hood and fenders, and drive train. Because the incomplete vehicle
manufacturer designs vehicle parts to be displaced and crumple in order
to absorb the energy of the crash, actions by the final-stage
manufacturer that modify the incomplete vehicle manufacturers' frontal
design could reduce vehicle's crashworthiness such that the steering
wheel is displaced beyond allowances in FMVSS 204. The final-stage
manufacturer could readily satisfy the conditions of the IVD by not
modifying the front or engine compartment of the chassis-cab.
Finally, the absence of pass-through certification on incomplete
vehicles
[[Page 28179]]
purchased with the ``bumper delete'' option is logical. If a final-
stage manufacturer purchases a chassis without a front bumper, it is
reasonable to expect that there will not be a pass-through
certification for FMVSS 204 because the bumper is an integral component
of the front end. In all likelihood, GM based the IVD's pass-through
certification on a vehicle with a bumper. Moreover, to satisfy State
inspection requirements for bumpers, it is likely that a bumper of some
form will be added, which further alters the vehicle's crash
performance. GM cannot be expected to provide any certification of
front impact crash test standards in such a circumstance because it
does not know what, if any, bumper the final-stage manufacturer will
install. If the final-stage manufacturer seeks front impact crash test
standard compliance, it can purchase an incomplete vehicle with a front
bumper, and obtain the workable pass-through certification described
above.
c. FMVSS 201 Occupant Protection in Interior Impact
NTEA contends that the GM IVD does not provide a compliance
envelope for compliance with FMVSS 201 Occupant Protection in Interior
Impact. In general, FMVSS 201 is concerned with head impacts on
interior surfaces of the vehicle. FMVSS 201 includes standards for
lower areas, such as the instrument panel, and for upper areas, such as
the headliner and upper trim. Testing is done with headforms that
impact various interior areas when the vehicle is stationary. Single
stage vehicle manufacturers routinely comply with FMVSS 201 by
installing padding and energy absorbing trim on instrument panels and
other areas of the vehicle. The standard has limited application in the
multistage vehicle context because it does not apply, among others, to
vehicles with a GVWR of more than 4536 kg (10,000 lbs).
The GM IVD provides vehicles with a GVWR of 10,000 lbs or less with
pass-through certification for FMVSS 201, which corresponds to the
FMVSS, provided that no alterations are made that affect the function,
properties, location or vital spatial clearances of various interior
components including the air bag system, armrests, headliner,
instrument panel, interior compartment doors, seats, seat backs and
head restraints, sun visors and upper interior trim. The IVD provides
no pass-through certification for incomplete vehicles purchased with
any seat delete option.
The restrictions in the IVD are logical and consistent with
Standard 201. In essence, if the final-stage manufacturer does not
modify the interior of the chassis-cab, it obtains pass-through
certification. If it modifies the vehicle, such as by removing padding
or by adding its own protruding equipment with sharp edges, it does not
obtain the benefit of pass-through certification. This is reasonable.
Modifications to the interior of the vehicle may affect the intensity
of the impact as measured by the regulatory headform.
Second, with regard to the seat delete option, under FMVSS 201,
tests are performed from various reference points. One is the seating
reference point.\56\ In all likelihood, GM based the IVD's pass-through
certification on a vehicle with a standard GM seat and reference points
associated with its seat. If a seat other than one supplied by GM with
the vehicle were used (seat delete option) those reference points would
no longer apply, and it would at the very least be questionable whether
the certification would be valid. It would not be reasonable to expect
GM to provide pass-through certification for vehicles with different
seats and associated reference points from which to gauge regulatory
compliance.
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\56\ See 49 CFR 571.201 S8.12.
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Final-stage manufacturers can readily work within the GM IVD by
purchasing a vehicle with the GM seat and by not modifying the interior
of the vehicle.\57\ NTEA did not provide data showing otherwise.
---------------------------------------------------------------------------
\57\ It also is readily possible to add some controls. The
final-stage manufacturer can use equipment switches from GM that
come with GM packages, install controls in an area essentially not
regulated by FMVSS 201, or use umbilical cable controls so that
mounting controls inside the vehicle is avoided altogether. For
example, the GM Body Builder's Manual, Special Applications section
for snow plow prep, explains how to install a roof-mounted emergency
light and switch. On pages 3, 5, and 7 of the manual, option code
TRW Provision for Roof-Mounted Emergency Light is identified and on
pages 15-17 the installation is explained. A final-stage
manufacturer would be able to install a roof-mounted light using
factory-installed components (with the purchase of the optional
equipment package from GM), without the need to conduct headform
tests for FMVSS 201 compliance. The GM Best Practices and the
Special Applications manuals describe how final-stage manufacturers
can add driver convenience optional equipment, such as switches and
controls for equipment mounted on the vehicle, including snow plows.
Further, installation of other controls can be accomplished by
mounting the controls beneath the instrument panel, so that they
fall outside of the target areas in the regulation. The agency also
reviewed control systems available from a snow plow supplier, Myer.
That company offers plow controls attached to an umbilical cord so
that the driver may operate the plow using a hand-held controller.
This type of arrangement eliminates the need to install the controls
on or near the instrument panel.
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d. FMVSS 212 Windshield Mounting
NTEA levels similar criticisms at the GM IVD's treatment of FMVSS
212 Windshield Mounting. The standard provides for windshield retention
in the event of a crash, thus enabling occupants to take advantage of
the penetration-resistance and injury-avoidance properties of the
windshield materials and preventing ejection of occupants from the
vehicle. The standard requires the retention of a minimum portion of
the windshield periphery in a front-impact crash test using dummies
with the vehicle restraint systems engaged. The portion of the
windshield periphery that must be retained varies depending on whether
the vehicle is equipped with passive restraints. The standard has
limited application in the multistage vehicle context because it does
not apply, among others, to vehicles with a GVWR of more than 4536 kg
(10,000 lbs).
The GM IVD states that all vehicles with a GVWR of 10,000 lbs or
less will conform to FMVSS 212 if (1) no alterations are made that
affect the function, properties, location or vital spatial clearances
of the components, assemblies or systems of various vehicle parts,
including the air bag system, seats, seat belts (including anchorages),
frame, hood, powertrain, front impact bar assembly, steering control
system, sun visor assemblies, and the windshield system; (2) the
completed vehicle does not exceed a specified weight, center of gravity
height, and vehicle height (See Table A, p.28); (3) the clearance
between the rear-most part of the cab and the added body does not
exceed the minimum distance specified (3 inches); (4) the vertical
clearance between the cab roof and any added body parts or accessories
extending over the roof is not less than 8 inches; and (5) during a
frontal barrier impact test, no component installed moves forward from
its permanently mounted position.
The GM IVD does not provide pass-through certification if the
final-stage manufacturer modifies various parts of the vehicle,
including the front of the vehicle, that may be impacted and absorb
some of the crash energy, as well as the seat belts and the air bags.
As NHTSA has noted in a crashworthiness context, a vehicle is a system
comprised of various parts. In a crash, the items of equipment
identified in the IVD individually and collectively may prevent the
occupants, as represented by crash dummies, from making contact with
the windshield or may affect the intensity of their impact. The
windshield and associated attachment mechanisms would affect the
retention of the windshield periphery. It is understandable that the
IVD's pass-through certification for a standard
[[Page 28180]]
involving windshields would not apply if the final-stage manufacturer
makes alterations that could increase the likelihood that occupants
would contact the windshield, increase the force with which they would
impact the windshield, or affect the windshield itself. NTEA provided
no data or other specific information on why final-stage manufacturers
are not able to meet these provisions of the IVD in order to obtain
pass-through certification when upfitting a chassis-cab.
GM's IVD also contains weight, center of gravity height, and
vehicle height limitations relating to the body or equipment installed.
These parameters affect the vehicle's performance in a crash. This in
turn affects windshield retention. The IVD also includes clearance
requirements (3 inches) between the rear part of the cab and the body
added by the final-stage manufacturer, and minimum vertical clearances
between the cab roof and any portion of the installed body that extends
over the cab roof. These take into account flexing and movement of the
body in a crash. These clearance requirements preserve the integrity of
the cab, which in turn supports the windshield. Final-stage
manufacturers can refer to GM's Best Practices Manual for additional
information regarding mounting a service body to a chassis-cab. The
manual includes a section entitled ``NTEA Recommended Body-Mounting
Practices.''
In addition, the IVD provides that no component installed by the
final-stage manufacturer shall move forward from its permanently
mounted position in a 30 mph crash. The rational relationship between
this requirement and pass-through certification for FMVSS 212 is
plain--the body added by the final-stage manufacturer must be well
secured to the chassis. Movement poses a direct threat to the integrity
of the cab and, in turn, the windshield, and could lead to separation
of more than the allowed portion of the windshield in a crash. There is
considerable available information on securing bodies from both GM and
NTEA. NTEA's assertion that GM's requirement can only be verified by
the performance of a completed vehicle in a dynamic test is incorrect.
Engineering judgments may be used. For example, if the final-stage
manufacturer mounted a body on the chassis (within weight, center of
gravity, and height limitations) and followed the detailed instructions
provided in the GM Best Practices Manual for mounting bodies, the
final-stage manufacturer could reasonably judge that the body would not
move forward.
The GM IVD is workable insofar as it concerns FMVSS 212. NTEA
members can take full advantage of its statement if they do not modify
the front of the vehicle or the cab, they meet weight, center of
gravity height, body height and clearance requirements, and they
properly secure the body to the chassis. If based on the final-stage
manufacturer's modifications and additions to the chassis, the
completed vehicle does not conform to the IVD, there would be an
increased likelihood that FMVSS 212 would not be met. That risk
properly rests on the final-stage manufacturer.
e. FMVSS 219 Windshield Zone Intrusion
FMVSS 219 Windshield Zone Intrusion sets forth limits for the
displacement of motor vehicle components into the windshield area
during a crash. In general, the standard requires that in a forward
crash up to and including 48 km/hr (30 mph), no part of the vehicle
outside the occupant compartment, with the exception of windshield
molding or other materials already in contact with the windshield, may
penetrate the delineated protective zone by more than 6 mm or penetrate
the inner surface of the windshield within that zone at all. The
standard has limited application within the multistage vehicle arena
because it does not apply to vehicles with a GVWR of more than 4536 kg
(10,000 lbs). It also does not apply to certain types of vehicles such
as walk-in vans.
The GM IVD states that the vehicle will have pass-through
certification for FMVSS 219 provided that (1) no alterations are made
to the properties, location or vital spatial clearances of various
components, including antennae, body roof, sheet metal and structural
components, hood mounts and assemblies, motor compartment structure,
and windshield wipers; (2) the vehicle does not exceed a specified
unloaded weight; and (3) during a 30 mph test, no component installed
by the final-stage manufacturer prevents the hood from folding in its
designed folding pattern or penetrates the windshield or protected
zone.
The limitation in the IVD on alterations of certain components is
logical and based on the reality that in a frontal crash, sheet metal
is pushed backward. The IVD basically prohibits final-stage
manufacturers from altering the components of the incomplete vehicle
that could penetrate or contribute to the penetration of the windshield
in a frontal crash, including the hood and windshield wipers. The
incomplete vehicle manufacturer engineers these components to comply
with FMVSS 219. It would be unreasonable to expect an incomplete
vehicle manufacturer to provide pass-through certification to this
standard that allows the final-stage manufacturer to override the
incomplete vehicle manufacturer's engineering. The final-stage
manufacturer could easily work within these limitations by not altering
the completed portion of the vehicle.
As discussed elsewhere in this document, the mass of a completed
vehicle affects its performance in a crash. It is not unreasonable for
GM to include a weight limitation in the IVD. A final-stage
manufacturer can take advantage of pass-through certification with
respect to this provision of the IVD by installing equipment such that
the weight of the vehicle does not exceed GM's limitations.
The final portion of the limitations in the IVD specifies that
components added by the final-stage manufacturer cannot make the hood
crumple differently in a crash test or penetrate the protected zone in
a crash test. NTEA contends that this necessitates the final-stage
manufacturers' conducting a crash test. This is not true. Final-stage
manufacturers can make reasonable judgments without performing a crash
test. For example, in many instances such as in assembly of a work
truck, final-stage manufacturers do not install anything in front of a
clearance zone behind the rear wall of the cab.\58\ They could make
objective good-faith judgments that if they do not install anything
there, the hood will fold properly and will not penetrate the
windshield in a frontal crash test. Also, if they wish to install
equipment, they could install an equipment package designed for the
vehicle, such as a GM snow plow package, in front of the front bumper.
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\58\ See GM Best Practices Manual at 21-31 of the GM Best
Practices manual for body mounting guidance.
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NTEA expresses concerns about provisions in the IVD on the folding
pattern of the hood. To comply with FMVSS 219, the hoods on vehicles
fold so that in a crash they do not slice through the windshield. NTEA
observes that final-stage manufacturers do not have any information
regarding the hood folding pattern for GM C/K platform trucks.
Ordinarily, they do not need such information because they can use
their judgment when building trucks with nothing added forward of the
rear wall of the cab. In any event, GM's 2006 Light Duty Manual for C/K
Full Size Trucks, Pickups and Chassis-Cabs, found on the GM Upfitter
Web
[[Page 28181]]
site, contains a drawing of the hood inner panel that shows the folding
points of the hood.\59\ These are the points provided in the hood inner
panel that result in the hood folding pattern. As is discussed
elsewhere, if a final-stage manufacturer has additional questions after
consulting the manual, GM provides a telephone number for contacting
its engineering staff. These numbers are found throughout all of the
final-stage manufacturer body builder manuals available from the GM
Upfitters website, and throughout the CK IVD.
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\59\ This is located about midway along the longitudinal
centerline of the hood. See GM Light Duty Manual at 86.
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The agency also tests vehicles and makes information from those
tests available. NHTSA's Safer Car Web site contains photograph of a 4-
door Chevrolet Silverado pickup truck (that is in the GM CK vehicle
line to which the IVD under discussion belongs) \60\ during a New Car
Assessment Program (NCAP) frontal barrier test. This photograph shows
that the hood folds upwards from the engine compartment with the fold
line at the transverse midpoint of the hood. The photograph also shows
that the hood remains attached to the hinges and cowl structure, which
are areas that are not to be modified per the IVD for pass-through
certification.
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\60\ See http://www.safercar.gov/NCAP/Cars/3451.html_____________________________________-
The statements in GM's IVD pertaining to FMVSS 219 are workable. It
is not reasonable to expect GM to provide pass-through certification
for equipment added by the final-stage manufacturer that could go
through the windshield or impair the folding pattern of the hood.
f. FMVSS 214 Side Impact Protection
NTEA also contends there is no meaningful pass-through opportunity
for FMVSS 214 Side Impact Protection. FMVSS 214 sets forth performance
requirements for the protection of vehicle occupants in a side impact
crash. In general, FMVSS 214 contains two sets of requirements. In one,
vehicles must satisfy crush resistance requirements that apply in the
area of the door(s) in a static test. These requirements are applicable
to trucks, multipurpose passenger vehicles and buses with a GVWR of
10,000 lbs or less except for walk-in vans. In the other, vehicles must
meet dynamic performance requirements when impacted by a moving
deformable barrier. Performance is measured on test dummies seated in
the vehicle. The dynamic performance requirements have limited
application in the multistage vehicle context. Specifically, they do
not apply to multipurpose passenger vehicles, trucks and buses with a
GVWR of more than 6,000 lbs or to walk-in vans, motor homes, tow
trucks, dump trucks, ambulances, fire trucks, vehicles equipped with
wheelchair lifts, and other specified vehicles.
The GM IVD provides pass-through certification to vehicles with a
GVWR of 4536 kg (10,000 lbs) or less for requirements based on the
static test and 2722 kg (6,000 lbs) or less for dynamic requirements.
The IVD states the vehicle will comply with the requirements of FMVSS
214 as long as no alterations are made that affect the properties,
environment, or vital spatial clearances of various components and
systems in the vehicle, including the air bag system, the door
assemblies, hinges, and latches, the door pillars, and the seat and
seat belt anchorages and assemblies.
The GM IVD is workable insofar as it concerns FMVSS 214. GM has
designed vehicles, including the doors and associated structural
members, such as pillars, to withstand various forces applied to the
side of the vehicle. Ordinarily, GM would have tested the side of a
single stage pickup truck. Vehicles completed from a chassis-cab
incomplete vehicle have door support structures and doors that are
identical to a single stage pickup truck. Unless the final-stage
manufacturer makes alterations to the door-related structures and parts
enumerated in the IVD, pass-through certification should be available.
It would be unreasonable to expect GM or any other incomplete
vehicle manufacturer to provide pass-through certification with FMVSS
214, which is directly contingent on the engineering and performance of
the systems set forth in the IVD, without a limitation on alteration of
those systems. Moreover, if a final-stage manufacturer replaces the
seats in the incomplete vehicle, the new seats may be in a different
location or result in different acceleration measurements on the test
dummy. A final-stage manufacturer can readily mount a body onto an
incomplete GM vehicle without making modifications that would place it
outside the pass-through certification provisions of GM's IVD.
g. FMVSS 208 Occupant Crash Protection
NTEA also complains about the pass-through certification in the GM
IVD pertaining to FMVSS 208, Occupant Crash Protection. FMVSS 208
specifies vehicle crashworthiness requirements in terms of forces and
accelerations measured on dummies in test crashes and by specifying
equipment requirements for active and passive restraints, such as seat
belts and air bags. There are more substantial requirements related to
the front seating positions than the rear seating positions of covered
vehicles. The standard has limited application in the multistage
vehicle context because various requirements such as those involving
air bags do not apply to heavier vehicles.\61\
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\61\ For FMVSS 208, the requirements related to dummy
performance in a frontal impact do not apply to vehicles with a GVWR
greater than 8,500 lbs or an unloaded vehicle weight greater than
5,500 lbs. In an informal review, NGTSA staff noted that the
majority of the multistage vehicles observed at dealerships had a
GVWR of 8,600 lbs and greater.
---------------------------------------------------------------------------
The GM IVD provides pass-through certification for FMVSS 208 for
vehicles with a GVWR of 3,588 kg (8,500 lbs) or less provided that the
maximum unloaded vehicle weight specified by GM is not exceeded and no
alterations are made that affect the properties, location, or vital
spatial clearances of various components, including the number,
location and configuration of designated seating positions and seat
belt assemblies, the instrument panel, steering wheel, air bag modules
and coverings, the Sensor Diagnostic Module (which is involved in
triggering air bag deployment) and associated wiring, air bag labels,
the vehicle frame and structural members, sheet metal, and the engine
compartment, that would result in a difference in the modified
vehicle's deceleration if it were subject to barrier impact tests under
FMVSS 208.
FMVSS 208 is a complicated crashworthiness standard, and a summary
of the standard is beyond the scope of this notice. As NHTSA has
pointed out in the FMVSS 208 rulemaking context, a vehicle is a system.
That system provides protection with respect to two crashes, the crash
of the vehicle into another vehicle or object, and the ensuing crash of
the occupants or their surrogate test dummies into one or more parts of
the vehicle. In the course of the crash, various parts of the vehicle
and its restraint systems (seat belts and air bags) mitigate forces and
accelerations on the occupants. In crash tests, dummies are placed in
seated positions, the vehicle impacts a barrier and decelerates from a
test speed (e.g., 30 mph) to largely a stop in considerably less than a
second, and the test dummies move forward following the impact of the
vehicle with the barrier. The dummies are used to measure the impacts.
The person
[[Page 28182]]
conducting the tests compares the test results to requirements in the
NHTSA standard.
The restrictions in GM's Type 1 IVD are logical and consistent with
a systematic approach to occupant crash protection employed by
manufacturers. GM's first restriction is on unloaded vehicle weight and
GVWR. As discussed in the context of other standards, vehicle weight is
an essential component of crashworthiness standard certification. If
the vehicle, as completed and loaded, exceeds the maximum weight for
which the incomplete vehicle manufacturer provided pass-through
certification (usually based on a crash test the incomplete vehicle
manufacturer performed), it would not be reasonable to expect the
certification to apply because the excess vehicle weight could cause
different and excessive forces and accelerations on crash dummies. The
final-stage manufacturer can readily work within weight requirements by
taking care to purchase the appropriate incomplete vehicle chassis for
the use to which the vehicle will be put.
The restrictions in the GM IVD on alterations that interfere with
the seating positions, seat belts, instrument panel and air bags, SDM,
and vehicle frame and body in a way that would result in a difference
from the modified vehicle's deceleration if it were subjected to a
FMVSS 208 barrier test are not unreasonable. To begin, in all
likelihood, GM provided pass-through certification based on tests
performed on a pickup truck with stock GM seats and dummies in seating
positions specified by FMVSS 208. If the seating positions were
different, the test results as recorded on dummies likely would be
different. GM could not be held to anticipate performance, as measured
on dummies, in these circumstances.
Next, some tests are conducted with dummies restrained by GM seat
belts. GM would not provide pass-through certification for other,
unknown belts. Other requirements relate to the air bags and their
control unit. GM could not be expected to provide pass-through
certification if the final-stage manufacturer modified these items.
Finally, the IVD provides that various structural and sheet metal
components cannot be modified if the modifications would result in a
difference in the modified vehicle's deceleration in a barrier test
under FMVSS 208. A basic concept in designing vehicles is to design
vehicle structures that minimize the amount of injury-causing crash
energy that reaches the occupants. To accomplish this, in part,
manufacturers design into the vehicle structural zones that collapse
and absorb crash energy. A crashworthy vehicle is designed to deform
according to a deceleration-time response, or crash pulse. These vary
among vehicles. The frontal structure largely controls the deceleration
pulse. Ultimately, the deceleration response of the vehicle affects the
response experienced by the test dummies, as gauged by regulatory
injury criteria such as the thoracic acceleration of a test dummy.
Modifications by a final-stage manufacturer to the frame, sheet metal
and other components identified in GM's IVD may change the vehicle's
deceleration and its performance in a crash test, including
measurements on test dummies. GM could not reasonably be expected to
assume certification responsibility in these circumstances. But the
final-stage manufacturer could readily satisfy the conditions of the
IVD by not modifying the identified components of the incomplete
vehicle when it adds equipment to the chassis of the vehicle.
GM's IVD also addresses rear seating positions. It states, in
essence, that for pass-through certification, there shall be no changes
to the designated seating positions or seat belt assemblies. FMVSS 208
requires seat belts at designated seating positions and the belts must
meet specified standards. A change in the vehicle or its seat belts
could render the vehicle noncompliant. Most multistage vehicles do not
have rear seats, but those that do, such as those having rear seats for
crews, can readily meet IVD requirements by retaining original
equipment such as rear seats and seat belts.
The GM IVD provides pass-through certification for FMVSS 208 for
vehicles with a GVWR of greater than 8,500 lbs or an unloaded vehicle
weight of greater than 5,500 lbs. FMVSS 208 has fewer requirements for
these heavier vehicles than for lighter vehicles. GM fairly provides
pass-through certification for vehicles with complete seats and seat
belt anchorages, assemblies and warning systems that the final-stage
manufacturer does not modify. A modification by the final-stage
manufacturer could result in a noncompliance. The final-stage
manufacturer can readily meet these requirements for pass-through
certification.
h. FMVSS 216 Roof Crush Resistance
NTEA also contends that the GM IVD provides no meaningful pass-
through certification for FMVSS 216 Roof Crush Resistance. FMVSS 216
establishes strength requirements for the passenger compartment roof.
Vehicles subject to the standard must pass a static test in which a
test device applies a force, based on the vehicle's unloaded vehicle
weight, to either side of the forward edge of a vehicle's roof. The
lower surface of the test device must not move more than a specified
distance. The standard has limited applicability in the multistage
context; it applies to passenger cars, multipurpose passenger vehicles,
trucks, and buses with a GVWR of 2,722 kg (6,000 lbs) or less, a weight
that is exceeded by many multistage vehicles. Additionally, the
standard does not apply to school buses, which are subject to different
standards.
The GM IVD provides pass-through certification for incomplete
vehicles with a GVWR of 2,722 kg (6,000 lbs) or less. The certification
is conditioned on the final-stage manufacturer's making no alterations
which affect the function, properties, or vital spatial clearances of
various components and systems, including antennae, body roof
structure, body sheet metal and structural components, windshield
wipers, structural components and door assemblies.
The alteration limitations on pass-through certification in the IVD
are reasonable and logical in light of the function that the various
components serve and the effect that their alteration would have on the
roof crush capacity of the vehicle. Roof strength is dependent on
structural members such as the vehicle's A pillars and B pillars and
the roof itself. GM could not be expected to provide pass-through
certification if the vehicle components that are related to roof crush
resistance are modified. A final-stage manufacturer could readily
complete a vehicle without breaching the limitations established in the
IVD. As such, a final-stage manufacturer could complete a vehicle
without having to conduct any tests of the roof.
i. FMVSS 301 Fuel System Integrity
NTEA also contends that the GM IVD provides no meaningful pass-
through opportunity with regard to FMVSS 301 Fuel System Integrity.
FMVSS 301 specifies requirements for the integrity of motor vehicle
fuel systems. Its purpose is to reduce injuries from fires resulting
from fuel spillage during and after motor vehicle crashes and injuries
from ingestion of fuels during siphoning. The standard includes barrier
testing. Tests under FMVSS 208 cover frontal barrier requirements under
FMVSS 301. In addition, there are tests in which moving barriers impact
the vehicle from the side and from the rear. These tests are followed
by a static roll-over test to determine whether any fuel leaks from the
vehicle. The standard
[[Page 28183]]
contains various fuel spillage rates for different periods of time
after the crash test. It also contains an anti-siphoning requirement.
The standard has limited application in the multistage vehicle context
because it applies only to vehicles with a GVWR of 4,536 kg (10,000
lbs) or less and to school buses.
The GM IVD provides that the incomplete vehicle, when completed,
will comply with FMVSS 301 if (1) no alterations are made that affect
the properties, environment or vital spatial clearance of certain
components or systems, including the fuel system, the fuel tank
assembly, the fuel tank filler neck/pipe assembly, and the fuel tank
shields; (2) no alterations are made to the fuel system and attaching
or protective structure, the body structure, the chassis structure, the
tires and wheels; (3) the unloaded weight of the vehicle does not
exceed the specified limits; (4) the final-stage manufacturer completes
the fuel filler neck where applicable in accordance with provided
instructions; and (5) during all barrier impact tests (a) no component
installed by the final-stage manufacturer impinges or causes distortion
to the fuel system in such a way that it punctures or separates the
fuel system; (b) no vehicle modification results in any portion of the
vehicle impinging upon or causing distortion to the fuel system in such
a way that the system is punctured or separates; and (c) any body
installed is mounted securely to absorb loads and prevent movement
relative to the frame which would cause any fuel system component to be
punctured, separated or damaged when tested to FMVSS 301.
The GM IVD as it relates to FMVSS 301 is workable. The alteration
limitations on pass-through certification in the IVD are reasonable and
logical in light of the fact that the systems and components are part
of the fuel system. Because the standard regulates the integrity of the
fuel system, it is logical that GM would provide pass-through
certification for FMVSS 301 only so long as the fuel system is not
altered. The GM IVD further limits pass-through certification if
alterations are made to the attaching or protective structure, the body
or chassis structure of the incomplete vehicle, or to the tires and
wheels on the incomplete vehicle. These provisions are logical as well.
Many fuel system parts are located inside structural components of the
vehicle. If the structure is altered, in a crash, the resulting
structure might no longer adequately protect the fuel system or the
alterations themselves could impact the fuel system components. The
tires and wheels are important to clearances that preserve the
integrity of the fuel system.
GM's weight limitation, as discussed in the context of other
standards, has a bearing on how the vehicle will withstand the effects
of a crash. A final-stage manufacturer can ensure satisfaction of this
portion of the IVD by assuring that the chassis to which it adds
equipment is appropriate.
The requirements regarding the installation of the fuel filler neck
are likewise completely workable. Fuel filler necks need to be
installed by final-stage manufacturers because they are not located in
the cab. For illustration, in pickup trucks, they are located on the
side of the vehicle, outside of the box. GM provides instructions with
the fuel filler neck on how to install it, and provides pass-through
certification only if the neck is installed in accordance with those
instructions. Because the fuel filler neck is an essential component
with respect to compliance with portions of FMVSS 301, it would be
unreasonable to expect GM to provide pass-through certification for
FMVSS 301 when a fuel filler neck is installed in a manner inconsistent
with GM's instructions.
The section of the IVD pertaining to the performance of components
added by final-stage manufacturers in barrier impact tests is likewise
reasonable. The IVD basically provides no pass-through certification
for FMVSS 301 if components added by, modifications made by, or a body
installed by the final-stage manufacturer will puncture or separate the
fuel system in a barrier impact test. It would be unreasonable to
expect GM to provide pass-through certification in these circumstances,
given the uncertainties about what the final-stage manufacturer may add
to the chassis. Moreover, these provisions of the IVD do not require
final-stage manufacturers to conduct a barrier impact test. Instead,
those manufacturers may exercise their own judgment.
As professionals in their field and sometimes as specialists (such
as school bus manufacturers), final-stage manufacturers should be
familiar with various types of vehicle bodies that can be fitted to
incomplete vehicles. The GM Chassis Upfitter guide provides clear
guidance for final-stage manufacturers working around fuel system
components and fuel lines. Among other things, the guide instructs
final-stage manufacturers to provide a minimum clearance around the
exhaust system or to install a protective metal shield around added
components. The Upfitter guide also instructs final-stage manufacturers
to avoid routing fuel lines around sharp objects and edges and to use
metal clips with plastic lining to avoid damaging the fuel lines. The
guide advises those manufacturers to leave a minimum clearance between
the fuel tank and the body or supports and to direct bolts, screws and
other potentially damaging objects away from the fuel tank.\62\ In
addition, final-stage manufacturers can obtain further information from
suppliers. Some equipment manufacturers market equipment as complying
with FMVSS 301. For example, Knapheide specifies the use of body
installation brackets, called ``Quick Mount brackets,'' that are
designed to comply with FMVSS 301.\63\
---------------------------------------------------------------------------
\62\ See GM Best Practices Guide, available at http://www.gmupfitter.com/publicat/Best_Practices.pdf
\63\ See http://www.knapheide.com/pdfpages/pricepages/
servicebody/UBPP8.pdf
---------------------------------------------------------------------------
7. Additional Resources Available to Final-Stage Manufacturers
As a group, final-stage manufacturers do not operate in an
informational vacuum. There are many resources available to them. In
addition to the IVDs, these resources include upfitter guides from
incomplete vehicle manufacturers, incomplete vehicle manufacturer help
lines, the final-stage manufacturers' own experience and judgment, and
commercially available software.
The instructions and limitations in the IVDs themselves provide
information to final-stage manufacturers. For example, in order to
provide instructions to final-stage manufacturers, incomplete vehicle
manufacturers sometimes limit the types of vehicles into which the
incomplete vehicle may be completed. Some incomplete vehicles may be
completed as buses but not as school buses. School buses are required
to meet some FMVSS that apply only to them (e.g., FMVSS 131, 220, 221);
other FMVSS have additional school bus requirements.
Additionally, a number of incomplete vehicle manufacturers provide
guides known as upfitter guides or body builder guides, which include
information that facilitates the completion of the vehicle. Some
incomplete vehicle manufacturers, such as General Motors, also have
hotlines staffed with engineers who can answer final-stage
manufacturers' questions. These resources are discussed elsewhere in
this notice.
Final-stage manufacturers can also use their judgment, including
engineering judgment, to certify vehicles. Testing, as provided in the
FMVSS, is not required as a matter of
[[Page 28184]]
law to certify a vehicle.\64\ Instead, sound engineering judgment may
be used.\65\ 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.
---------------------------------------------------------------------------
\64\ This has been recognized in interpretations by NHTSA's
Chief Counsel.
\65\ Manufacturers of passenger cars and multipurpose passenger
vehicles, among others, routinely conduct one or more tests to
assure that a representative vehicle is compliant based on the test
procedure in the FMVSS. For carryover vehicles, they may not conduct
tests.
---------------------------------------------------------------------------
Some final-stage vehicle manufacturers have a wealth of experience
in various product lines. This includes buses, school buses and
ambulances. They make a variety of models that have evolved over the
years. The yellow school buses that one sees on the road are not novel,
one-of-a-kind items.
Other final-stage vehicles often are built on chassis-cabs or
cutaways \66\ using equipment sold by specialized providers. The
majority of work-type trucks with a GVWR of 10,000 lbs or less at new
vehicle dealers are chassis-cabs with service bodies mounted to the
chassis behind the cab, chassis-cabs with stake or dump bodies mounted
to the frame behind the cab, and van cutaways with both service and
cargo storage bodies mounted to the frame behind the van-body portion
of the cutaway. The truck bodies have been manufactured by companies
such as America's Body Company, Crysteel, Forest River, Knapheide,
Monroe, Morgan, Stahl, Supreme and Unicell (collectively referred to as
truck body manufacturers). In some cases, the truck body manufacturer
completes the vehicle as a final-stage manufacturer. In other cases,
the truck bodies are sold to a distributor who installs the body on the
incomplete vehicle as a final-stage manufacturer. The availability of
prefabricated vehicle body parts to complete chassis-cab and cutaway
vehicles facilitates certification. NTEA is aware of these equipment
companies and their products because NTEA annually runs the largest
work truck show and many of these companies have booths at the NTEA
show.\67\
---------------------------------------------------------------------------
\66\ A cutaway is similar to a chassis cab in that it contains
the cab and ordinarily the seat supplied by the incomplete vehicle
manufacturer. For illustration purposes, it may be viewed as a van
without any body structure rearward of the vehicle's B pillar
(located slightly rearward of its front seating positions) There is
no rear wall. Thus, the occupant compartment is essentially
complete, surrounding the front seating positions but open to the
rear.
\67\ NTEA also holds educational sessions at the Work Truck
Show. For example, at the March, 2006 Work Truck Show there was a
session on Designs and Specifications for Vocational Vehicles--A
Functional Approach.
---------------------------------------------------------------------------
Many incomplete vehicles are completed as work-type vehicles by the
addition of cargo-carrying, work-performing, or load-bearing
components. For example, a typical beverage delivery truck is a vehicle
completed with a cargo-carrying component, and a dump truck is an
example of a vehicle completed with a load-bearing component. These
types of vehicles are generally produced by making the same kinds of
additions to the incomplete vehicles, thus reducing the variation in
the completion work the final-stage manufacturer must perform. The
relatively routine nature of these types of variations creates a body
of knowledge from which final-stage manufacturers can work.
Manufacturer changes to work-truck vehicles are either infrequent or
they represent product improvements.
In addition, some of the equipment installed by final-stage
manufacturers has been certified as complying with relevant FMVSS. Many
final-stage manufacturers rely on that certification. The following
components and systems are typically found on work-type vehicles
manufactured in two or more stages (the associated FMVSS is stated in
parenthesis): Brake hoses (FMVSS 106), lamps, reflective devices and
associated equipment (108), brake fluid (116), tires for vehicles other
than passenger cars (119), glazing materials (205), door locks and door
retention components (206), seat belt assemblies (209), and rear impact
guards (223). Recreational vehicles have all of the above except rear
impact guards. They also may have platform lifts systems (403) for
people who are disabled or who are in wheelchairs. Some of the above-
noted FMVSS have additional requirements that must be satisfied by a
vehicle manufacturer, including ranges of locations for lamps and
reflective devices (108), the track and slide or other supporting means
for a sliding door under transverse loading (206), and the installation
of rear impact guards (223 and 224) and platform lift systems (403 and
404).
The work of final-stage manufacturers is facilitated by the fact
that incomplete vehicle manufacturers do not change the chasses that
they offer every year or even every several years. When the vehicle or
chassis is not significantly changed from the previous model year, it
is referred to as a carryover vehicle. In many cases, the vehicle
components and systems that affect compliance with FMVSS requirements
are unchanged. Unless other components or systems will influence how
the vehicle performs relative to the FMVSS, the work needed to support
the final-stage manufacturers' certification to FMVSS requirements will
be limited.
Therefore, NTEA's underlying premise that the IVDs currently
supplied by incomplete vehicle manufacturers, such as the IVD attached
to NTEA's petition, cannot be used to construct compliant vehicles, is
invalid.
D. NHTSA's Market Forces Argument Is Justified and Consistent With the
Multistage Vehicle Market
In the final rule, NHTSA rejected NTEA's suggestion that the rule
specifically require IVDs to be reasonable or be prepared in good
faith.\68\ Part of the agency's justification for this decision was
that ``[t]here is no market for incomplete vehicles that cannot be
manufactured into completed vehicles that will meet the applicable
FMVSS.'' \69\ NHTSA also noted that incomplete vehicle manufacturers
have business reasons to provide workable IVDs.\70\
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\68\ 70 FR 7414, 7425 (Feb. 14, 2005).
\69\ Id.
\70\ Id.
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NTEA disputes NHTSA's market force statements.\71\ NTEA first
contends that NHTSA's position is incorrect because incomplete vehicle
manufacturers have been required to provide conformity statements in
IVDs for almost 30 years and market forces have not caused reasonable
compliance envelopes to exist today. NTEA's argument is extraordinarily
general, conclusory and unsupported. From a macro standpoint, NTEA's
market force argument ignores the fact that many types of multistage
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.\72\ The fact
that vehicles such as these are being made indicates that the IVDs are
workable. Moreover, as discussed above, we do not agree that the IVDs
supplied by incomplete vehicle manufacturers are insufficient to permit
final-stage manufacturers to construct compliant vehicles and certify
their compliance with federal motor vehicle safety standards.
---------------------------------------------------------------------------
\71\ Petition at 9.
\72\ See, e.g., http://www.ntea.com/mr/divisions.asp_____________________________________-
NTEA next contends that final-stage manufacturers do not have
sufficient
[[Page 28185]]
market presence to choose the brand of the chassis on which they will
complete a vehicle. NTEA offers the hypothetical of a customer who goes
to a Ford truck dealer that assists the customer in developing the
specification for the vehicle. In this example, the final-stage
manufacturer has no say but is willing to complete the vehicle. NTEA
observes that if the final-stage manufacturer were to decline the
business, ``another final-stage manufacturer undoubtedly would be glad
to take it.'' \73\
---------------------------------------------------------------------------
\73\ Petition at 9-10.
---------------------------------------------------------------------------
NTEA's hypothetical of a customer simply going to a Ford dealer is
unduly narrow. It assumes that there are no communications with the
final-stage manufacturer with regard to the truck body to be chosen. It
implies that the final-stage manufacturer faces substantial
difficulties in completing the vehicle but does not identify what those
difficulties are. Even that implication is contradicted by NTEA's
hypothetical. NTEA's point that another final-stage manufacturer
undoubtedly would be glad to finish the vehicle strongly indicates that
such a manufacturer can do so within the confines of the current rule
while maintaining its business. We assume NTEA did not mean to suggest
that the final stage manufacturer that would accept the work would do
so with an intention to ignore its certification responsibilities.
Moreover, a customer ordinarily is not limited to the franchised
truck dealer of one brand of truck. For example, many of the chasses
for multistage vehicles in the service truck category are known, based
on payload, as \3/4\ ton trucks and 1 ton trucks. A number of
manufacturers make these chasses, including DaimlerChrysler (Dodge),
Ford and General Motors. These manufacturers compete in the sale of
chasses. As such, they must be, and are, sensitive to the concerns of
the marketplace.
As important, customers purchasing trucks can and do go directly to
final-stage manufacturers to purchase trucks. Many of the final-stage
manufacturers use chasses built by more than one incomplete vehicle
manufacturer. Thus, final-stage manufacturers do have choices with
regard to the incomplete vehicles on which they work. The incomplete
vehicle manufacturers are marketing to, and working with, the truck
purchasers and final-stage manufacturers. For example, in NTEA's 2004
and 2006 Work Truck Shows, at least 12 of the world's leading chassis
manufacturers displayed product, and many of those manufacturers hosted
chassis update sessions.\74\ This is another reflection of a
competitive marketplace in which the chassis manufacturers are
sensitive to the marketplace.
---------------------------------------------------------------------------
\74\ NTEA Annual Report, 2004. At NTEA's 2006 Work Truck Show,
the following Truck Manufacturers had major displays: International,
Work Horse, Toyota, Hino Tucks, Mitsubishi Fuso, Sterling Trucks,
General Motors, Isuzu, Ford, Kenworth, Dodge, Freightliner,
Peterbilt and Nissan Diesel.
---------------------------------------------------------------------------
In addition, NTEA ignores the cooperative relationships between
incomplete and final-stage manufacturers. For example, GM has
relationships with final-stage manufacturers it refers to as Special
Vehicle Manufacturers (SVMs). SVMs ``are contractual partners who must
provide a quality upfit product that will enhance GM chassis and van
vehicles. SVMs are selected on the merit of their upfit/conversion,
financial stability, and adherence to governmental and trade
association requirements.'' \75\ Of 108 distinct companies listed as
SVMs on GM's Web site, 20 are NTEA members. Thus, 18.5 percent, or
nearly one fifth, of the SVMs are NTEA members, illustrating that NTEA
is well aware of this cooperative relationship between incomplete and
final-stage manufacturers. These partnerships between final-stage and
incomplete vehicle manufacturers demonstrate that both groups play a
large role in the market for multistage vehicles.
---------------------------------------------------------------------------
\75\ http://www.gmfleet.com/gmfleetjsp/svm/administration /
locator/index.jsp.
---------------------------------------------------------------------------
NTEA also focuses too narrowly on the IVD itself and ignores other
resources available to final-stage vehicle manufacturers. A number of
incomplete vehicle manufacturers provide substantial resources to
assist final-stage manufacturers in the completion of multistage
vehicles. For example, GM has extensive Web sites geared toward both
selecting the proper incomplete vehicle \76\ and completing the
incomplete vehicle once it is purchased.\77\ The purpose of the
extensive Web site is ``to improve the quality of Chevrolet and GMC
second stage manufactured vehicles by assisting the Upfitter, Body
Builder and Aftermarket Accessory communities.'' \78\ The Web site goes
on to say that GM accomplishes this goal through various avenues,
including:
---------------------------------------------------------------------------
\76\ http://www.gmfleet.com \77\ http://www.gmupfitter.com
\78\ Id.
a ``Hotline'' assistance program, which provides engineering
support and technical information; publications including Body
Builders Manuals and Technical Bulletins; and New Product Preview;
meetings, to name a few. We also represent General Motors at
upfitter association tradeshows and committee meetings, which
enables us to be your ``Voice of Customer'' within the GM Vehicle
Engineering organization.\79\
---------------------------------------------------------------------------
\79\ Id.
The Hotline, which provides technical assistance, can be accessed
both via phone and via online submissions.\80\ GM also publishes a Best
Practices Guidelines Manual, which includes examples of how to complete
incomplete vehicles and comply with Federal standards.\81\
---------------------------------------------------------------------------
\80\ http://www.gmupfitter.com/wwedo/wwwd.htm.
\81\ Id.
---------------------------------------------------------------------------
GM's Fleet Division \82\ assists consumers or final-stage
manufacturers in selecting the correct GM incomplete vehicle for the
intended use of the truck. The GM Fleet advisors are either dealers or
advisors who can be reached through another help line. GM also
publishes a Light Commercial Vehicle Body Application Guide, which
contains the specifications and possible uses of the GM incomplete
vehicles.
---------------------------------------------------------------------------
\82\ http://www.gmfleet.com_____________________________________-
As another example, Ford offers other contact information for
choosing the correct incomplete vehicle.\83\ Additionally, Ford offers
the Ford Truck Body Builders' Layout Book, which provides additional
engineering information and is referenced in the IVDs for Ford
incomplete vehicles.
---------------------------------------------------------------------------
\83\ See generally http://www.fleet.ford.com.
---------------------------------------------------------------------------
These examples of additional resources for final-stage
manufacturers indicate that the incomplete vehicle manufacturers devote
substantial resources that facilitate the work of final-stage
manufacturers. The incomplete vehicle manufacturers' allocation of
resources to the needs of final-stage manufacturers demonstrates the
market power possessed by final-stage manufacturers.
NTEA does not address the fact that the multistage vehicle industry
is a multi-billion dollar industry in which the incomplete vehicle
manufacturer and the final-stage manufacturer have complementary
interests. NTEA's arguments, which are not supported by evidence, are
inconsistent with the reality that final-stage manufacturers are doing
business and certifying vehicles within the existing IVD framework.
NTEA submitted no data demonstrating that final-stage manufacturers are
going out of business, NTEA's prediction for what will happen to final-
stage manufacturers who either complete vehicles with unworkable IVDs
or refuse to complete vehicles with unworkable IVDs. Thus, the
foundation for NTEA's argument lacks support.
[[Page 28186]]
E. NHTSA's Decision Not To Include a Reasonableness Requirement Is
Consistent With Other NHTSA Regulations
In the final rule, NHTSA rejected NTEA's proposal that NHTSA
require that incomplete vehicle manufacturers use ``good faith''
efforts to provide ``reasonable'' conformity statements that are
susceptible to being passed through to final-stage manufacturers.\84\
NHTSA stated it would not adopt the suggested language because ``due to
its subjectivity, the suggested language is not susceptible to
effective enforcement.'' \85\ NTEA contends that this is inconsistent
with the ``good faith'' standard for determining the application of
civil penalties in the context of certification and the final rule's
provision that applications for temporary exemptions contain complete
descriptions of each manufacturer's good faith efforts to comply with
the standards.\86\
---------------------------------------------------------------------------
\84\ 70 FR at 7425.
\85\ Id.
\86\ Petition at 10-11.
---------------------------------------------------------------------------
NTEA states that the agency does not explain why it is unable to
fashion a workable reasonableness standard.\87\ However, it is NTEA
that has not met its burden. Although NTEA did submit comments in
response to the SNPRM recommending an alternative approach to
multistage certification, it did not provide a workable means for
incorporating a reasonableness standard under the Safety Act. If such a
means exists, NTEA has had more than an ample opportunity to suggest a
workable approach, in response to an NPRM, in a regulatory negotiation,
and in a response to a supplemental notice of proposed rulemaking. It
is not the agency's obligation to take a vague concept from a
commenter, make it workable, flesh it out, and include it in a rule.
NTEA has not offered any basis by which the agency could determine
whether an incomplete vehicle manufacturer exercised good faith in
producing an IVD that might be usable by a final-stage manufacturer,
since it is the particular final-stage manufacturer's actions that
largely control its usability. As shown above, the typical IVDs are
usable on their face.
---------------------------------------------------------------------------
\87\ Petition at 11.
---------------------------------------------------------------------------
The two provisions that NTEA cites are not analogous. First, the
imposition of civil penalties is based on a statutory provision, 49
U.S.C. 30165, which authorizes the agency to impose and compromise
civil penalties. This provision does not provide for consideration of
``good faith,'' but does provide for consideration of other matters--
the size of the business and the gravity of the violation. The
statutory certification provision states that a person may not issue
the certificate if, in exercising reasonable care, the person has
reason to know the certificate is false or misleading in a material
respect.\88\ Second, the good faith requirement in the final rule's
provisions for temporary exemptions requires a manufacturer to make a
good faith effort to comply with FMVSS prior to seeking exemptions from
those standards, and the petition for an exemption must include a
discussion of these good faith efforts.\89\
---------------------------------------------------------------------------
\88\ 49 U.S.C. 30115.
\89\ 49 CFR 555.13(b).
---------------------------------------------------------------------------
Unlike civil penalties, which are considered in an enforcement
context between the government and a regulated entity and on a case-by-
case basis, or petitions for exemptions from FMVSS, which are addressed
in an administrative proceeding involving the agency and a regulated
entity on a case-by-case basis, IVDs are documents of general
application that are passed from one private entity--incomplete vehicle
manufacturers--to another private entity--final-stage manufacturers--
when a multistage vehicle is manufactured. The agency does not have a
statutory role in this private process to rewrite IVDs and impose a
rewritten IVD on the manufacturers involved in making a multistage
vehicle. Moreover, the agency does not have the resources to do so.
The agency cannot police or enforce a nebulous ``reasonableness''
standard for IVDs particularly given that, for all of the reasons
discussed above, NTEA has demonstrated that it cannot agree with NHTSA
as to what a workable IVD contains. The agency would thus be left
policing a relationship between companies that have sometimes competing
interests and concerns regarding IVDs, and NHTSA would have to do so
with its only norm being the one of ``reasonableness'' in the context
of particular upfits of trucks.
F. Impracticability Should Be Decided in Context of Rulemaking for Each
FMVSS or on a Petition for a Temporary Exemption
NTEA contends that it is impracticable for final-stage
manufacturers to comply with standards that require dynamic tests. To
the extent that impracticability is a legitimate concern, it is
properly addressed in the context of an individual FMVSS itself. In the
final multistage rule, NHTSA recognized that multistage vehicles are a
type of vehicle. As a result, within a particular FMVSS, separate
requirements may be established for multistage vehicles. NHTSA is
following this approach on a standard-by-standard basis. For example,
in the August 2005 NPRM \90\ on roof crush standards, NHTSA proposed
the designation of incomplete vehicles ``as a vehicle type subject to
different regulatory requirements.'' \91\ The NPRM proposed allowing
final-stage manufacturers to certify ``non-chassis-cab vehicles to the
roof crush requirements of FMVSS 220, as an alternative to the
requirements of FMVSS 216.'' \92\ Alternatively, the final-stage
manufacturer should apply for a temporary exemption as provided by the
final rule and amended in this document.
---------------------------------------------------------------------------
\90\ 70 FR 49223 (Aug. 23, 2005).
\91\ Id. at 49235.
\92\ Id. FMVSS 216 regulates standard roof crush resistance for
passenger compartments, while FMVSS 220 regulates school bus
rollover protection.
---------------------------------------------------------------------------
G. The Current Certification Scheme Is Not an Unlawful Delegation of
Agency Authority
NTEA position: NTEA observed that under the final rule, the
incomplete vehicle manufacturer creates the IVD and the IVD controls
the assignment of certification responsibility. NTEA further asserts
that narrow compliance envelopes shift responsibility for certifying
compliance to the final-stage manufacturer. Based on these
observations, NTEA contends that the agency has, in effect, delegated
to a private, self-interested party (i.e., the incomplete vehicle
manufacturer) the authority to determine, as between itself and the
final-stage manufacturer, which entity bears certification
responsibility. NTEA contends that the determination of certification
responsibility by this private, self-interested party is essentially
non-reviewable, as the agency declined to impose a reasonableness
standard for conformity statements in the IVD. Noting that courts
disfavor delegation of agency responsibility to outside entities,
particularly private entities whose objectivity may be questioned on
grounds of conflict of interest, NTEA argues that the agency's
delegation to incomplete vehicle manufacturers of unfettered authority
to determine certification responsibility should be subject to careful
review.
Agency's response: NTEA relies on a case involving an unlawful
delegation of an agency's authority to a private entity.\93\ However,
NTEA ignores the
[[Page 28187]]
central premise of the case, namely, that the relevant inquiry on a
private delegation issue is to assess Congressional intent, based on
the pertinent statute(s) and its legislative history. Moreover, NTEA
does not refer at all to the statutory certification provisions in the
Vehicle Safety Act. Specifically, NTEA does not cite to any statutory
provision assigning to NHTSA any duty to regulate the allocation of
certification responsibility for any particular vehicle between the
incomplete vehicle manufacturer and final-stage manufacturers.
---------------------------------------------------------------------------
\93\ Nat'l Park and Conservation Ass'n v. Stanton, 54 F.Supp. 2d
7 (D.D.C. 1999).
---------------------------------------------------------------------------
In the National Traffic and Motor Vehicle Safety Act, Congress
imposed the responsibility to certify compliance on manufacturers and
distributors.\94\ The Safety Act created a self-certification scheme.
Under this statutory framework, the agency promulgates the FMVSS, 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
FMVSS. 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 multistage vehicle
context.
---------------------------------------------------------------------------
\94\ See Section 114 of the Act, Pub. L. 89-563, 80 Stat. 726
(recodified at 49 U.S.C. 30115).
---------------------------------------------------------------------------
In the 1970s, NHTSA promulgated regulations specifying
certification requirements for manufacturers of vehicles manufactured
in two or more stages and prescribing the method by which manufacturers
of vehicles manufactured in two or more stages shall ensure conformity
of those vehicles with FMVSS.\95\ Under these regulations,
certification responsibility may rest with incomplete vehicle
manufacturers, or with intermediate or final-stage manufacturers.
NHTSA's regulations do not provide for the agency to allocate
certification responsibility between incomplete vehicle manufacturers
and final-stage manufacturers.
---------------------------------------------------------------------------
\95\ See 49 CFR 567.5 and 49 CFR part 568 (1977).
---------------------------------------------------------------------------
In 2000, Congress enacted the Transportation Recall Enhancement,
Accountability, and Documentation (TREAD) Act.\96\ Section 9 of the Act
amended 49 U.S.C. 30115 to address certification labels.\97\ 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.\98\ 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.\99\ 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 multistage
vehicles.
---------------------------------------------------------------------------
\96\ Pub. L. 106-414.
\97\ 114 Stat. 1805.
\98\ Id.
\99\ 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.\100\ 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. Moreover, the TREAD Act amendments
specifically addressed certification in the multistage vehicle context
and did not assign the agency an arbiter role in the certification
process.
---------------------------------------------------------------------------
\100\ 42 U.S.C. 7525(a).
---------------------------------------------------------------------------
In view of the foregoing, NHTSA does not accept NTEA's argument
that the certification scheme in the final rule delegates too much
power to the final-stage vehicle manufacturers. Accordingly, NHTSA will
not modify the final rule on this ground and denies this aspect of
NTEA's petition.\101\
---------------------------------------------------------------------------
\101\ The agency also notes that NTEA has not addressed the
practical implications of its assertions. The imposition of
reponsibilities on NHTSA to arbitrate certification issues would
delay the introduction of vehicles into the market. NHTSA does not
have staff to undertake these activities.
---------------------------------------------------------------------------
H. The Agency's Decision Not To Change Default Recall Responsibility,
Which Historically Has Been Assigned to Final-Stage Manufacturers, Was
Reasonable
NTEA position: NTEA notes that in the SNPRM, NHTSA sought to change
its practice of allocating recall responsibility to the final-stage
manufacturer in the case of a dispute between manufacturers, and
proposed instead to allocate recall responsibility to the party it
believed to be best able to conduct the recall (referencing 69 FR
36047). NTEA further notes that the agency did not carry this through
in the final rule. NTEA contends that the correct approach is the one
proposed in the SNPRM--the elimination of any default allocation of
recall responsibility and the assignment of such responsibility to the
party responsible for the defect. NTEA observes that if the agency does
not wish to resolve disputes, then the default responsibility should be
on the incomplete vehicle manufacturer. Alternately, the agency could
hold all manufacturers responsible.
NTEA further observes that in the SNPRM, the agency recognized that
final-stage manufacturers may lack the financial resources to conduct
recall campaigns (referencing 69 FR 36047). NTEA contends that the
agency downplayed this in the final rule by noting that ``historically,
incomplete and final-stage manufacturers have been able to resolve
issues of determination of responsibility'' (referencing 70 FR 7427).
According to NTEA, these disputes are typically resolved by the final-
stage manufacturer ``agreeing'' to conduct the recall because it can
ill afford to do otherwise. NTEA contends that NHTSA's treatment of the
final-stage manufacturer as the default party gives extraordinary
leverage to the incomplete vehicle manufacturer, because in case of a
disagreement, the incomplete vehicle manufacturer can report the defect
to NHTSA, causing the final-stage manufacturer to take on the recall to
avoid a costly legal challenge. NTEA characterizes NHTSA's policy as
ignoring the final-stage manufacturer's lack of bargaining power with
the incomplete vehicle manufacturer. According to NTEA, the final-stage
manufacturer values its relationship with the incomplete vehicle
manufacturer more than the incomplete vehicle manufacturer values its
relationship with the final-stage manufacturer.
NTEA also contends that safety will be enhanced if incomplete
vehicle manufacturers have default recall responsibility. Noting that
most incomplete vehicle manufacturers are large multi-national
companies that have dealerships in most counties in the United States,
NTEA postulates that the campaigns will be more efficiently conducted,
particularly where vehicles are sold over a wide geographic area. In
this circumstance, NTEA observes that disruption to customers will be
minimized.
[[Page 28188]]
NTEA further notes that the incomplete vehicle manufacturer makes
or supplies most of the complex components on the vehicle that are
likely to be involved in recall campaigns, and the final-stage
manufacturer may lack technical expertise with regard to these
components. Disputing the agency's expressed (70 FR 7427) presumption
that the present recall scheme ``provides an incentive for a final-
stage manufacturer to deal with a solid and reputable incomplete
vehicle manufacturer,'' NTEA reiterates its contention that the final-
stage manufacturer cannot choose which incomplete vehicle supplier to
use. NTEA further observes that most final-stage manufacturers cannot
identify owners from sales and warranty records because they have no
interaction with the end user, and the incomplete vehicle manufacturer
is in a better position to obtain this information through the dealer.
Agency response: For the reasons set forth below, we deny this
aspect of NTEA's petition.
1. Background
NHTSA's basic approach to, and regulation of, recall responsibility
has been in effect for several decades. The regulations on recall
responsibility were adopted in 1978 and codified in 49 CFR part 579. In
essence, the regulations provided that each manufacturer of a motor
vehicle shall be responsible for any safety-related defect determined
to exist in the vehicle or in any item of original equipment.\102\
Under the agency's interpretations, an incomplete vehicle is classified
as an original equipment item for which the final-stage manufacturer
has recall responsibility. Separately, the rules on certification of
multistage vehicles were adopted in 1971 and codified in 49 CFR part
568.\103\
---------------------------------------------------------------------------
\102\ 49 CFR 579.5 (1978).
\103\ The regulations defined an ``incomplete vehicle'' as ``an
assemblage consisting, as a minimum, of frame and chassis structure,
power train * * *.'' In contrast, a ``complete vehicle'' was defined
as ``a vehicle that requires no further manufacturing operations.''
49 CFR 568.3 (emphasis added). The Act defined a motor vehicle as
``any vehicle driven or drawn by mechanical power manufactured
primarily for use on the public streets, roads, and highways, except
any vehicle operated exclusively on a rail or rails.'' 15 U.S.C.
1391(3) (1985), recodified at 49 U.S.C. 30102(a)(6) (1994). Because
it requires further manufacturing operations to perform its intended
function, an incomplete vehicle cannot be regarded as having been
primarily manufactured for use on public streets, roads, and
highways, and therefore does not qualify as a ``motor vehicle''
under the above definition.
---------------------------------------------------------------------------
In 1988, NTEA petitioned NHTSA to institute a rulemaking to amend
49 CFR part 579 to clarify and equitably apportion between incomplete
vehicle manufacturers and final-stage manufacturers the responsibility
for conducting recalls.\104\ NHTSA granted the petition to institute a
rulemaking proceeding.\105\ The decision to grant the petition was
influenced by a conflict between an incomplete vehicle manufacturer and
final-stage vehicle manufacturers that produced ambulances. The defect
at issue, which caused the contents of the vehicle's fuel tank to boil
and seep through the gas cap, posed a grave risk of vehicle fires. The
parties to the dispute denied their own fault and attributed the defect
to the others' actions. This dispute delayed the recall. Ultimately,
the incomplete vehicle manufacturer agreed to conduct the recall.\106\
---------------------------------------------------------------------------
\104\ 58 FR 40402, 40403 (July 28, 1993).
\105\ Id.
\106\ Id.
---------------------------------------------------------------------------
In 1993, NHTSA terminated the rulemaking on the grounds that there
was no need for the requested rule. NHTSA pointed out that the
conflicts between incomplete vehicle manufacturers and final-stage
manufacturers that the agency had witnessed in the ambulance recall had
not been evident in subsequent enforcement actions involving multistage
vehicles.\107\ The agency further explained that its regulations do not
mandate that responsibility for defects be borne exclusively by final-
stage manufacturers. Instead, the recall could be conducted by either
the incomplete vehicle manufacturer or the final-stage manufacturer.
NHTSA emphasized that its objective was to ensure that a manufacturer
in the production chain assumes responsibility for the recall.\108\
---------------------------------------------------------------------------
\107\ Id.
\108\ 58 FR at 40404.
---------------------------------------------------------------------------
In 1991, NHTSA issued an NPRM that proposed to extend the
certification requirements then being exercised by chassis-cab
manufacturers to all incomplete vehicle manufacturers.\109\ This would
have permitted pass-through certification for multistage vehicles built
on all types of incomplete vehicles. The proposal generated a great
deal of controversy. \110\ Following a public meeting in 1995 \111\ and
the creation of an ad hoc advisory committee on the subject of
multistage vehicle certification,\112\ in 1999, NHTSA initiated a
negotiated rulemaking in an effort to resolve the assignment of
certification responsibilities among multistage vehicle
manufacturers.\113\
---------------------------------------------------------------------------
\109\ 56 FR 61392 (December 3, 1991).
\110\ 60 FR 57694 (November 17, 1995).
\111\ 64 FR 57499, 27500 (May 20, 1999).
\112\ Id.
\113\ 64 FR 66447, 66447 (Nov. 26, 1999).
---------------------------------------------------------------------------
Although, historically, the agency has addressed certification and
recall responsibility for multistage vehicles separately, in the
negotiated rulemaking the interests representing final-stage
manufacturers added issues related to recall responsibility. In the
negotiated rulemaking, the final-stage and incomplete vehicle
manufacturers largely maintained opposing positions. The final-stage
manufacturers contended that the incomplete vehicle manufacturers
should be responsible at least for recalls involving incomplete
vehicles. The incomplete vehicle manufacturers asserted that final-
stage vehicle manufacturers should be held responsible for the
vehicles. The incomplete vehicle manufacturers pointed out that the
final-stage manufacturer is free to add to or modify the incomplete
vehicle in any way, as the vehicle is no longer under the control of
the incomplete vehicle manufacturer. These additions and modifications
may introduce defects or affect the conformity of the vehicle to
federal standards. These diametrically opposed positions could not be
harmonized without substantial compromise, which led in part to the
failure of the negotiated rulemaking. After several years of meetings
that did not culminate in an agreed-upon rule, in 2004 NHTSA published
an SNPRM.\114\
---------------------------------------------------------------------------
\114\ 69 FR 36038 (June 28, 2004).
---------------------------------------------------------------------------
In the SNPRM, NHTSA, although not legally bound to do so, honored a
commitment made in the course of the negotiated rulemaking to propose a
regulation that mirrored a report produced, but not agreed upon, in the
negotiated rulemaking process. NHTSA made clear in the SNPRM that it
was proposing ``the applicable regulations as drafted by the
committee,'' \115\ not as proposals NHTSA itself supported. In this
vein, NHTSA proposed for the first time to amend its recall
responsibility regulation, which had been recodified at 49 CFR 573.5
from 49 CFR part 579.\116\ The proposal provided that when there is a
determination of a safety-related defect and the incomplete vehicle
manufacturer and final-stage manufacturer can not agree as to which
manufacturer is responsible for the defect, NHTSA would determine which
manufacturer is in the best position to conduct the recall.\117\
NHTSA's decision would not be reviewable.
---------------------------------------------------------------------------
\115\ 69 FR at 36041; see id at 36048.
\116\ In 2002, the regulations on recall responsibility were
moved to 49 CFR 573.5 and the early warning rules were added to 49
CFR part 579.
\117\ 69 FR at 36047.
---------------------------------------------------------------------------
[[Page 28189]]
As noted in the preamble to the SNPRM, this proposal was the
subject of vociferous objection by many of the incomplete vehicle
manufacturers.\118\ Their primary concern was that NHTSA's
determination would not be reviewable. One incomplete vehicle
manufacturer offered alternative language that did not provide a
dispute resolution mechanism.\119\ As NHTSA further noted in the
preamble, the alternative language also did not assure that in the
event of a dispute that is not easily resolvable, a recall campaign is
conducted in a timely manner. The agency observed that
``[h]istorically, NHTSA has maintained that while any stage
manufacturer may assume responsibility for a recall campaign, the
final-stage manufacturer is responsible for any campaign that a
previous stage manufacturer has not agreed to conduct.'' \120\
---------------------------------------------------------------------------
\118\ Id.
\119\ Id.
\120\ Id.
---------------------------------------------------------------------------
In the SNPRM, NHTSA further noted that the allocation of recall
responsibility was a ``difficult issue.'' \121\ The agency observed
that final-stage manufacturers often may not have the resources to
conduct a recall for a safety problem they did not cause. On the other
hand, NHTSA maintained that allocating recall responsibility to a
specific party in the event of a dispute as to legal responsibility
allows the agency to achieve the result it believes is essential to its
safety-based mission: getting defective systems or equipment remedied
as soon as possible so as to reduce the likelihood of motor vehicle-
related injury or death.\122\ In the absence of a default allocation of
recall responsibility, recalls would be delayed by disputes.
---------------------------------------------------------------------------
\121\ Id.
\122\ Id. at 36047-48.
---------------------------------------------------------------------------
NHTSA also voiced concerns in the SNPRM that the non-reviewability
provision in the proposed rule may ``ultimately be determined
impermissible.'' \123\ In connection with our concerns about the non-
reviewability provision's chances of withstanding judicial review, we
asked commenters to ``provide arguments and analysis as to which
manufacturer should be deemed responsible for a recall campaign in the
event that NHTSA and the various-stage manufacturers could not
determine in a timely manner which party should bear responsibility for
the recall.'' \124\
---------------------------------------------------------------------------
\123\ Id. at 36048.
\124\ Id.
---------------------------------------------------------------------------
In February 2005, NHTSA issued the final rule that is the subject
of the NTEA petition.\125\ In the final rule, NHTSA decided not to
amend the rules on allocation of recall responsibility. Thus, the
final-stage manufacturer continued to have default responsibility for
recalls in the event of a dispute with the incomplete vehicle
manufacturer. NHTSA recognized that the majority of commenters opposed
the proposal for NHTSA to allocate recall responsibility.\126\ The
agency stated:
---------------------------------------------------------------------------
\125\ 70 FR 7414 (February 14, 2005).
\126\ 70 FR at 7425.
NHTSA's primary concern is safety; NHTSA is also concerned that
the rule be workable. The most compelling fact is that under
existing Sec. 573.5, in general, recalls are not delayed by
disputes between manufacturers. In fact, practical disputes rarely
occur * * * It is clear from this fact that the private parties are
able to resolve and in fact are successfully resolving the issues
regarding the conducting of recalls * * * In addition, the proposal
was not well received.\127\
---------------------------------------------------------------------------
\127\ Id. at 7427.
The agency concluded that ``the existing rule meets the fundamental
safety need for prompt recalls.'' \128\
---------------------------------------------------------------------------
\128\ Id.
---------------------------------------------------------------------------
2. Summary of NTEA's Position
In its petition, NTEA asserts that NHTSA should adopt the proposal
published in the SNPRM and rejected in the final rule--that should the
manufacturers in the production chain of a multistage vehicle or NHTSA
be unable to determine or agree which manufacturer is responsible for a
safety-related defect, NHTSA shall make a nonreviewable determination
as to which manufacturer is to conduct the recall campaign.\129\ This
would eliminate the default responsibility of final-stage manufacturers
that has long existed under NHTSA's regulations. In its petition, the
NTEA further proposed that if the agency does not wish to resolve
recalls in this manner, default recall responsibility should rest with
the incomplete vehicle manufacturer instead of the final-stage
manufacturer. Alternatively, NTEA proposed that default recall
responsibility be placed on all manufacturers of a defective or
noncompliant multistage vehicle.\130\ NTEA does not explain how the
latter alternative would work.
---------------------------------------------------------------------------
\129\ Petition at 12.
\130\ Id.
---------------------------------------------------------------------------
In support of its request, NTEA asserts, first, that final-stage
manufacturers lack the financial resources needed to have default
recall responsibility.\131\ Second, NTEA contends that safety will be
enhanced if incomplete vehicle manufacturers have default recall
responsibility.\132\ NTEA's arguments why NHTSA should reconsider its
position on this issue basically mirror these concerns.
---------------------------------------------------------------------------
\131\ Petition at 12-14.
\132\ Petition at 14-15.
---------------------------------------------------------------------------
3. NTEA Has Not Demonstrated That, Based on Size, Default
Responsibility Should Be Shifted From Final-Stage Manufacturers
In its petition, NTEA notes that in the preamble to the SNPRM,
NHTSA recognized that final-stage manufacturers often ``may'' not have
the resources to conduct a recall for a safety problem they did not
cause.\133\ NTEA offers that the cost of a recall campaign could easily
bankrupt a final-stage manufacturer.\134\ In its view, the final rule
downplays the adverse consequences the assignment of disputed recalls
can have on final-stage manufacturers by asserting that ``historically,
incomplete and final-stage manufacturers have been able to resolve
issues of determination of responsibility.'' \135\ In NTEA's view,
disputes typically are resolved by the final-stage manufacturer
agreeing to conduct the recall because it can not afford to do
otherwise.\136\ NTEA provides no factual support for its
assertions.\137\
---------------------------------------------------------------------------
\133\ Petition at 12.
\134\ Id at 13.
\135\ Id., quoting 70 FR at 7427.
\136\ Petition at 13.
\137\ Petition at 13.
---------------------------------------------------------------------------
NTEA's argument is based in part on the assertion that incomplete
vehicle manufacturers are in a better financial position to conduct
recalls. This disregards the fact that the Vehicle Safety Act (49
U.S.C. Chapter 301) does not identify financial means as a criterion
for exercising recall responsibility. The Safety Act states that the
vehicle's manufacturer shall conduct the recall.\138\ In the multistage
vehicle context, NHTSA has interpreted that to be the final-stage
manufacturer, because the incomplete vehicle is an original equipment
item, and not a vehicle.\139\ Further, assuming that recall
responsibility could be allocated between incomplete and final stage
manufacturers, NTEA has not addressed the issue of whether the Federal
courts would be likely to accept the view that under the Safety Act,
NHTSA may make decisions allocating recall responsibility that would be
unreviewable by the courts, as discussed in the SNPRM.\140\ NTEA has
also not addressed the resource demands for NHTSA involvement in the
allocation of recall
[[Page 28190]]
responsibility and NHTSA's corresponding lack of resources to be so
engaged. In any event, on the question of finances, it is a matter of
public record that a number of incomplete vehicle manufacturers are
financially strained.
---------------------------------------------------------------------------
\138\ See 49 U.S.C. 30118.
\139\ See 58 FR 40402, 40403 (July 28, 1993).
\140\ See 69 FR 36047-48.
---------------------------------------------------------------------------
NTEA's arguments regarding default recall responsibility rest in
general on NTEA's premise that final-stage manufacturers are left with
the responsibility for recalling vehicles to remedy problems that were
not of their own making. NTEA goes on to argue that final-stage
manufacturers left with the responsibility for these recalls will be
put out of business by the crippling costs of these recalls.\141\
---------------------------------------------------------------------------
\141\ See generally Petition at 12-14.
---------------------------------------------------------------------------
In an effort to evaluate these assertions, NHTSA assessed recalls
of multistage vehicles over a three model-year period.\142\ As detailed
below, the review revealed that incomplete vehicle manufacturers
conducted the recalls in 98 percent (193 of 197) of the instances in
which the underlying cause could be attributed to them. Additionally,
final-stage manufacturers conducted recalls for which the underlying
cause could be attributed to incomplete vehicle manufacturers in only 2
percent (4 of 197) of the recalls conducted for which the incomplete
vehicle manufacturer was most likely responsible.
---------------------------------------------------------------------------
\142\ See report, in administrative record. NHTSA Docket No. 99-
5673.
---------------------------------------------------------------------------
To conduct the assessment, the agency reviewed about three years of
recall data covering model year 2003 and more recent vehicles.\143\
Based on our experience with recalls, this would provide sufficient
relevant information upon which to make an assessment. We searched
Artemis, NHTSA's central repository of vehicle data on, among other
things, vehicle complaints, investigations and recalls. More
particularly, Artemis contains summaries of safety recalls of motor
vehicles and motor vehicle equipment, as well as Defect and
Noncompliance Information Reports submitted by manufacturers under 49
CFR 573.6 and copies of notification letters from manufacturers to
vehicle owners under 49 CFR part 577 and 49 CFR 573.6(c)(11).\144\
---------------------------------------------------------------------------
\143\ The agency began its assessment in November of 2005, based
on data that was available as of that date. The data do not include
recalls in November and December of 2005.
\144\ Artemis contains no information not contained in 573
reports and 577 reports.
---------------------------------------------------------------------------
Artemis does not include a separate code for multistage vehicles.
Agency staff screened the vehicle recalls in Artemis to identify those
involving multistage vehicles. The search produced three hundred
seventy-nine (379) recalls of MY 2003 and more recent vintage
multistage vehicles. Next, agency staff made an assessment of the
nature of the safety-related defect, the manufacturer likely to be
responsible for the defect and the manufacturer that conducted the
recall. The assignment of responsibility was made by engineers based on
the information about the problem and the remedy based on summary
information from part 573 and 577 reports and the reports in Artemis.
Based on this review, a substantial portion of the recalls of
multistage vehicles were conducted by incomplete vehicle manufacturers.
Of the 379 recalls of multistage vehicles, 193 (51%) were conducted by
the incomplete vehicle manufacturer. This is illustrated by the
following examples:
On September 14, 2005, Ford notified ODI (05V-415) \145\
about F-650/750 medium duty trucks built with a defective park brake
anchor bolt, which upon failure could allow the truck to roll away from
a parked position.
---------------------------------------------------------------------------
\145\ The numbers in parentheses are the identifying Recall
Numbers assigned by NHTSA.
---------------------------------------------------------------------------
On September 2, 2005, Freightliner notified ODI (05V-408)
of a defect on its motor home chassis in which the steering shaft was
pushing through the lower yoke, resulting in a loss of steering.
On November 10, 2005, International Truck and Engine
notified ODI (05V-523) of a defect concerning a cab entry step failure,
possibly resulting in personal injury.
On October 11, 2005, Hino Motors Sales USA Inc. notified
ODI (05V-492) of a defect in which the battery box was not properly
torqued in place on certain cabs and chassis. This could result in the
battery and box becoming dislodged from the vehicle.
On July 7, 2005, Mack Trucks notified ODI (05V-312) of a
defect concerning non-conforming transverse beam castings on the AD
Series suspensions. If a part were to fail, it could drop to the ground
and become a projectile or cause sparks and ignite a fire.
On June 29, 2005, Four Winds International, a final-stage
manufacturer, notified ODI of a defect in certain RV chassis-cab
vehicles built by Ford (05V-306). Ford notified Four Winds of a fuel
line which could disconnect resulting in a stall. Ford, the incomplete
vehicle manufacturer, conducted the recall (05V-266).
On June 23, 2005, International notified ODI (05V-297) of
a defect on model year 2006, model 4200 and 4300 trucks. The defect
involved the rub through of a front brake hose resulting in diminished
brake performance.
On June 16, 2005, General Motors notified ODI of a defect
(05V-288) in which a power steering hose was chafing on the
intermediate steering shaft. The trucks involved were model year 2003-
2005 4500/5500 Kodiak school bus chassis and the GMC Top Kick. The
defect is loss of power steering fluid, which could result in an
increased steering and braking effort, increasing the risk of a crash.
On June 15, 2005, Spartan Chassis Inc. notified ODI of a
defect (05V-283) in the steering system on certain model Spartan
chassis. Due to a defect in the linkage between the steering wheel and
steering gear, the connection could be lost, resulting in a loss of
steering.
Of the 193 recalls conducted by incomplete vehicle manufacturers
for problems that can be attributed to the incomplete vehicle
manufacturer, 18 warrant a comment. These 18 recalls, using NHTSA's
nomenclature, are: 03V-040, 03V-041, 03V-047, 0V-048, 03V-059, 03V-060,
03V-064, 03V-066, 03V-068, 03V-069, 03V-080, 03V-092, 03V-116, 03V-119,
03V-148, 03V-149, 03V-152, and 03V-347. These 18 recalls stemmed from a
notification letter sent by Ford Motor Company (02V-327) in January
2003 pertaining to model years 2000-2003 F53 chassis built at the IMMSA
and Detroit chassis plant and assembled at the final stage
manufacturer's facility. Ford's letter states ``The instrument panel,
as shipped by Ford[,] may not be wired correctly to illuminate the
brake warning indicator and/or low brake fluid light as required by
FMVSS 105 S5.3.''
In reviewing the owner notifications for these recalls, ODI found
examples where the remedy was apparently conducted by the final stage
manufacturer, with such language as ``Damon Corporation will notify
owners and dealers of the affected vehicles to return them to a dealer
to have the remedy performed at no charge to them.'' We found other
statements which indicated that Ford, the incomplete vehicle
manufacturer, would conduct the recall. For example, ``Winnebago
Industries will assist Ford to correct the situation by sending them a
list containing the names and addresses of the owners and dealers who
have the defective panel installed in their motor homes.'' During this
review, NHTSA discussed the matter with Ford and was informed that any
final stage manufacturer that conducted the recall was notified to
submit a form for each remedied vehicle and Ford would reimburse the
final stage
[[Page 28191]]
manufacturer $110.00 dollars per vehicle in an attempt to reduce or
eliminate the financial burden associated with this recall. The $110
reimbursement appeared to be sufficient. For example, in one recall
NHTSA found that .7 hours of labor were allowed by the final stage
manufacturer for an inspection and repair. Therefore, even though some
of these recalls could technically be classified as being performed by
the final stage manufacturer, NHTSA has decided that all recalls
related to this matter will be binned into the group where the
incomplete manufacturer is listed as conducting the recall, since they
either did conduct the recall or they reimbursed the final stage
manufacturers when appropriate paperwork was submitted for
reimbursement.
Forty-one (41) percent of the recalls of multistage vehicles (157
of 379) were conducted by the final-stage manufacturer. In 80 percent
of these recalls (126 of 157), the underlying problem appeared to have
been created by the final-stage manufacturer. In these recalls, there
were problems in or with parts or equipment installed by the final
stage manufacturer. For example, some problems stemmed from parts and
equipment that themselves were flawed or noncompliant (including
rendering a vehicle noncompliant). Others were the result of the final
stage manufacturer's improper installation of parts and equipment by
(e.g., improper attachment of parts and equipment, installation of
equipment that was missing parts such as bolts, and improper routing of
parts). Some problems originated from the installation by the final
stage manufacturer of parts and equipment that were not proper for the
application. Still others involved parts and equipment installed by the
final stage manufacturer that could interfere with the functioning of
parts or equipment on the chassis or the vehicle as a whole, such as
parts that were too close to or could rub chassis components such as
fuel lines and brake lines. Also, some recalls were based on improper
labels added by final stage manufacturers (e.g., labels stating GVWR,
tire pressure). For example:
On October 7, 2005, Winnebago Industries notified the
agency (05V-475) of a safety-related defect in 3,613 Winnebago
recreational vehicles built on a Ford chassis. Winnebago discovered
that the fasteners holding the fuel tank mounting straps may not have
been properly tightened, allowing the possibility for the fuel tank to
loosen and fall, which has the potential to ignite.
On September 22, 2005, Gulf Stream Coach, Inc. notified
ODI (05V-446) of a safety defect in 306 Class ``B'' motor homes built
on the Sprinter chassis. The steel bracket securing the holding tank
was installed in a location that pressed against the OEM brake line.
This created points of possible wear due to vibration during vehicle
operation, which, over time, could cause the brake lines to leak brake
fluid, thus causing deterioration in braking performance. Winnebago was
made aware of this matter by an owner.
On September 23, 2005, the agency was notified (05V-440)
of a safety defect by Collin Bus Corporation. The company identified
150 school buses built on the Chevrolet and Ford ``cutaway'' van
chassis as having a safety defect. On the vehicles in question, the
fasteners securing the seats and barriers to the wall tack may not have
been adequately tightened. This could allow the seat or barrier to move
relative to the vehicle wall in a crash and compromise passenger crash
protection.
On August 11, 2005, Monaco Coach Corporation notified the
agency of a defect (05V-366) on 114 Class ``A'' motorhomes built on a
Roadmaster chassis. Monaco determined that the headlight switch was
overloading, possibly causing the headlights to stop functioning
without warning.
On July 3, 2005, McNeilus Truck and Manufacturing Company
notified the agency (05V-357) of a safety defect on 107 trucks.
McNeilus discovered a potential overload on the front axle that was
rated at 10,000 lbs. The wheels were rated at 9,000 lbs. and the tires
were rated at 8,270 lbs. Thus, both the tires and wheels would be
overloaded in a maximum (10,000 lbs) front axle load condition.
On April 28, 2005, ElDorado National notified the agency
(05V-194) of a safety defect on 39 low-floor conversions built on the
Chrysler minivan chassis. The defect involved a rubber fuel line that
could come in close proximity to the van's exhaust system, thus
resulting in a fire.
On August 19, 2005, Girardin Minibus notified the agency
(05V-365) of a non-compliance with Federal Motor Vehicle Safety
Standard 221, on certain school buses built on Ford and General Motors
chassis. Compliance testing showed that the company had built 10 buses
with inadequate body joint strength. This could lead to a compromise of
the passenger compartment in the event of a crash.
Twenty-seven (27) of the recalls conducted by the final-stage
manufacturers were attributed to components manufactured by an
equipment supplier and added to the incomplete vehicle by the final-
stage manufacturer. For example, safety recalls 05V-429, (Les
Enterprises Michel Corbel Inc.), 05V-490 (Mid Bus Inc.), 05V-352
(Girardin Minibus, Inc.), 05V-347 (Thomas Built Buses), 05V-345
(Collins Bus Corporation), 05V-336 (U.S. Bus Corporation), and 05V-308
(Van-Con Inc.) were all conducted by the final-stage manufacturers as
the result of notification from an equipment supplier, Specialty
Manufacturing Company (05E-032) advising of a safety defect in school
bus stop arms. The stop arms had a micro switch that could malfunction
in extremely cold and wet weather, causing the arm to not open or
close. Other examples of recalls based on faulty equipment manufactured
by an equipment supplier and added to the incomplete vehicle by the
final-stage manufacturer involved water heaters on recreational
vehicles. Safety recalls were conducted by Featherlite Inc. on motor
coach conversions (05V-280), Tiffin Motorhomes, Inc. (05V-268), and
Gulf Stream Coach Inc. (05V-258) after they were advised by Aqua-Hot
heaters of a problem (05E-015) that could result in the ignition of
combustible materials in and around the vehicle.
Four (4) safety recalls were conducted by final-stage manufacturers
for problems that appeared to be attributable to an incomplete vehicle
manufacturer.\146\ These include the following:
---------------------------------------------------------------------------
\146\ Nothing herein constitutes a finding of fact as would be
the case after a hearing or trial, or a final agency action.
---------------------------------------------------------------------------
On November 1, 2005, Winnebago Industries, Inc. notified
the agency (05V-496) of a defect in certain motor homes in which the
cinch bolt in the steering column that connects to the intermediate
shaft was improperly tightened, resulting in the possibility of bolt
threads being stripped. This could cause a loss of steering control.
On February 20, 2003, Jayco Inc. notified the agency (03V-
057) of a defect in motor homes which involved a change made by the
chassis manufacturer that increased pressure in the fuel return line.
Jayco was not aware of the change. On account of the change, when
connecting the RV's generator system into the chassis fuel system, fuel
could overflow from the generator's carburetor, resulting in fuel
spillage. This creates a fire hazard.
On July 25, 2003, Monaco notified the agency of a defect
(03V-268) in
[[Page 28192]]
which the parking brake bracket was improperly secured to the chassis
by the chassis manufacturer. This could allow the coach to roll away.
On May 5, 2003, Fleetwood notified the agency of a defect
(03V-169) in which drive shaft carrier bolts were not properly torqued.
This could lead to carrier bearing failure and resulting drive shaft
failure.
The remaining 29 recalls were conducted by equipment manufacturers
for problems attributed to the equipment supplied by the equipment
manufacturer. For example:
On May 4, 2005, Country Coach, Inc. submitted a 573 report
(05V-209) notifying NHTSA of a recall that would be conducted by
Vehicle Systems, Inc. Vehicle Systems, Inc. had informed Country Coach
that certain coolant heaters supplied to Country Coach by Vehicle
Systems, Inc., had a burner tube that may have been made out of
material that is not within specification and could fail prematurely
and cause a fire. Vehicle Systems, Inc. conducted the recall (05E-015).
On September 14, 2004, Glaval Bus informed NHTSA (04V-458)
that Sure-Lok would be conducting a recall on wheelchair securement
retractor assemblies installed in Glaval's buses (04E-058).
On September 30, 2004, Daimler Chrysler notified NHTSA of
a recall (04V-505) Sure-Lok was conducting on a seatbelt retractor
assembly installed in certain Daimler Chrysler commercial buses (04E-
058).
On January 15, 2003, Georgie Boy Manufacturing, LLC
(Georgie Boy), filed a 573 Report (03V-012) alerting NHTSA to a recall
being conducted by Caterpillar on certain engine models sold in the
2000 model year and which were installed in ten Georgie Boy vehicles.
The engines experienced a fuel system problem that could result in a
stall. Caterpillar conducted the recall (03V-012.001).
Thus, only 8 percent of the recalls (31 of 379) conducted on
multistage vehicles were conducted by final-stage manufacturers for
problems that appeared to have been created by others. This indicates
that, contrary to NTEA's assertion, incomplete vehicle manufacturers
are not exploiting the final-stage-manufacturers' default recall
responsibility, but are, instead, in the overwhelming majority of cases
assuming responsibility for the recalls for which they were the source
of the defect. Indeed, of the 197 recalls for which NHTSA staff
informally determined that incomplete vehicle manufacturers were the
source of the precipitating problem, the incomplete vehicle
manufacturers conducted the recalls in 98 percent of the cases (193 of
197).
The remaining 2 percent (the 4 safety recalls conducted by final-
stage manufacturers for problems attributable to incomplete vehicle
manufacturers addressed above) demonstrate the need to maintain the
default rule. Those recalls involved significant safety concerns,
including brakes, steering, fires, and motive power. It is very
important that problems such as these be corrected promptly. In the
absence of a default rule, there would be delays while the various
manufacturers pointed fingers at each other, ramped up their legal
teams and engaged in a dispute. Meanwhile, the safety problem would go
unresolved. To make matters worse, NHTSA might not know about the
safety-related defect. The first notification that NHTSA receives is
the manufacturer's Defect and Noncompliance Information Report under 49
CFR 573.6 (part 573 Report). Section 573.6(b) requires the report to be
filed with NHTSA not later than five days after the manufacturer
determines the existence of the defect or noncompliance. In the case of
a dispute between manufacturers, it is likely that neither manufacturer
would file a part 573 Report in order to avoid taking responsibility
for the recall. If default responsibility were placed on the incomplete
vehicle manufacturer, those manufacturers would face responsibility in
many circumstances to remedy defects or noncompliances that they had no
hand in creating.
We also considered NTEA's assertion that final-stage manufacturers
that conducted recalls for problems caused by incomplete vehicle
manufacturers were being driven out of business. NTEA did not support
its assertion. We researched multistage vehicle manufacturers whose
products have been the subject of recall campaigns or compliance tests.
A review of the available financial information on multistage vehicle
manufacturers (both intermediate and final-stage) involved in the
recalls, concluded that these companies are not being run out of
business.\147\ No business failures have been identified among
multistage vehicle manufacturers that can be specifically traced to any
Federal safety recall campaigns. Moreover, in the small number of cases
in which final-stage manufacturers conducted recalls for problems
attributable to incomplete vehicle manufacturers, we have no
information on whether the final-stage manufacturers obtained any
reimbursement for some or all of their expenses.
---------------------------------------------------------------------------
\147\ See Report on Business Failures Resulting from Recall
Campaigns, NHTSA Docket No. 99-5673.
---------------------------------------------------------------------------
NHTSA's review of the recalls, set forth above, does not support
NTEA's contention that disputes between final-stage and incomplete
vehicle manufacturers over recall responsibility ``typically are
resolved by the final-stage manufacturer `agreeing'' to conduct the
recall because it cannot afford to do otherwise.'' Contrary to NTEA's
unsusstantiated assertion, incomplete vehicle manufacturers in practice
took responsibility for the defects and noncompliances they created and
conducted recalls to remedy those problems 96 percent of the time.
NTEA has failed to demonstrate any actual harm to any final-stage
manufacturers, and instead relies on unsubstantiated allegations
regarding the theoretical impact of default recall responsibility.
NHTSA's own review of three years of multistage vehicle recalls
demonstrates that NTEA's general assertions about the harm likely to
befall final-stage manufacturers due to the retention of default recall
responsibility are not valid.
4. NTEA Has Not Demonstrated That Safety Will Be Enhanced by Assigning
Default Recall Responsibility to the Incomplete Vehicle Manufacturers
NTEA offers several rationales for shifting recall responsibility
to incomplete vehicle manufacturers. Before turning to those reasons,
we note that NTEA ignores the fact that the system that has been in
place for over twenty-five years is working. That is reflected, in
part, by the analysis of recalls explained above.
NTEA advances two arguments as to why safety would be enhanced if
default recall responsibility were assigned to the incomplete vehicle
manufacturer. These are premised on the contention that final-stage
manufacturers are often confined to a single geographic location while
incomplete vehicle manufacturers are large international organizations
with a much greater geographic range. NTEA argues that the incomplete
vehicle manufacturers' geographic diversity would allow recalls to be
more efficiently conducted, because more outlets would be available to
perform remedies. NTEA also argued that recalls conducted by incomplete
vehicles manufacturers are likely to be more effective because owners
are more likely to respond to recall notices when the remedy is
available at multiple locations.\148\
---------------------------------------------------------------------------
\148\ Petition at 14.
---------------------------------------------------------------------------
[[Page 28193]]
NTEA submits no information or data that suggests that final-stage
manufacturers' products are dispersed over a geographically wide area
that would make recalls difficult. Additionally, NTEA has not submitted
evidence of situations in which a final-stage manufacturer could not
conduct a recall effectively. Also, as discussed more thoroughly above,
NHTSA's analysis of multistage vehicle recalls reveals that in nearly
all of the cases in which an incomplete vehicle manufacturer was
responsible for the problem necessitating a recall, that manufacturer
conducted the recall campaign. Thus, final-stage manufacturers are most
often conducting recalls only to remedy problems they created. The fact
that incomplete vehicle manufacturers often have a more widespread
network of locations and service centers provides no rationale for
requiring them to shoulder responsibility for problems caused by final-
stage manufacturers. Finally, NTEA has not demonstrated that incomplete
vehicle manufacturers' dealers have the knowledge and wherewithal to
address many of the defects and noncompliances that final-stage
manufacturers introduce into a vehicle, such as those inherent in the
equipment (including such items as hot water heaters in recreational
vehicles) a final-stage manufacturers may install.
NTEA also argues that because the incomplete vehicle manufacturer
supplies the most complicated components of the vehicle, a recall
campaign is more likely to involve components installed by the
incomplete vehicle manufacturer.\149\ NTEA cites this as another reason
why default recall responsibility should be assigned to the incomplete
vehicle manufacturer. NTEA's argument relies on, and assumes the truth
of, its underlying assertion that incomplete vehicle manufacturers do
not conduct recalls when they are responsible for the underlying defect
or noncompliance. As discussed at great length above, this contention
is inconsistent with the facts and utterly groundless.
---------------------------------------------------------------------------
\149\ Petition at 14.
---------------------------------------------------------------------------
NTEA contends that NHTSA's position that default recall
responsibility should remain with the final-stage manufacturer rests on
a faulty interpretation of the market power of incomplete vehicle
manufacturers. Specifically, NTEA takes issue with the agency's
position that the default recall responsibility scheme ``provides an
incentive for a final-stage manufacturer to deal with a solid and
reputable incomplete vehicle manufacturer.''\150\ The agency has
addressed the weakness of NTEA's market forces argument in the section
of this notice pertaining to the reasonableness of IVDs. NHTSA relies
on that analysis in rejecting NTEA's argument on this issue as well. As
reflected in that analysis, final-stage manufacturers have been shown
to be a considerable market force in a multi-billion dollar industry.
---------------------------------------------------------------------------
\150\ Id. (quoting 70 FR at 7427).
---------------------------------------------------------------------------
NTEA also takes issue with a statement in a 1993 Federal Register
notice published by NHTSA.\151\ In that notice, NHTSA announced that it
was terminating a rulemaking proceeding, initiated in response to an
NTEA petition, that sought to allocate recall responsibility for
vehicles built in two or more stages to the various manufacturers in
the chain of production for those vehicles \152\ Among the reasons
stated for NHTSA's termination of the rulemaking was that ``the final-
stage manufacturer is most likely to be able to identify owners from
sales and warranty records, as well as State registration records,
which may not be available to incomplete or intermediate stage vehicle
manufacturers.'' \153\ NTEA contends that this justification is not
true.
---------------------------------------------------------------------------
\151\ Petition at 14.
\152\ 58 FR at 40402.
\153\ Id. at 40404.
---------------------------------------------------------------------------
NTEA considerably overreaches in asserting that:
The incomplete vehicle manufacturer is in a much better position
to obtain information about the current owner of a vehicle subject
to a recall. The incomplete vehicle manufacturer is likely to have
the longer and more lucrative relationship with the dealer, and,
consequently, more leverage to obtain the dealer's prompt
cooperation in compiling the necessary information.\154\
---------------------------------------------------------------------------
\154\ Petition at 14.
NTEA overlooks the fact that there are many different kinds of
incomplete vehicles, and incomplete vehicles are sold in various stages
of completion. Similarly, for some types of multistage vehicles (e.g.,
school buses, recreational vehicles and ambulances), the customer often
purchases the vehicle from a final-stage manufacturer or one of its
dealers rather than from a dealer franchised by the incomplete vehicle
manufacturer. Moreover, NTEA ignores the fact that mailing lists for
many recalls, particularly those for vehicles in service for some time,
are obtained from companies such as R.L. Polk, which cull the names and
addresses of vehicle owners from State motor vehicle registries. NTEA
provides no information or support for its statements regarding the
relationships between incomplete vehicle manufacturers and dealers or
its contention that ``the incomplete vehicle manufacturer is in a much
better position to obtain information'' about owners to conduct a
recall.
NTEA's position also contradicts the manner in which NHTSA has
historically treated multistage and incomplete vehicles. As discussed
above, NHTSA has traditionally regarded an incomplete vehicle as an
item of original equipment installed on the vehicle, as finally
assembled, at the time it is delivered to its first purchaser.\155\
Under provisions of the Safety Act now codified at 49 U.S.C.
30102(b)(G) and (b)(F), a defect or noncompliance in original equipment
``is deemed to be a defect or noncompliance of the motor vehicle in or
on which the equipment was installed at the time of delivery of the
first purchaser,'' and ``the manufacturer of a motor vehicle in or on
which original equipment was installed at the time of delivery to the
first purchaser is deemed to be the manufacturer of the equipment.'' As
such, the final-stage manufacturer properly holds default recall
responsibility.
---------------------------------------------------------------------------
\155\ See Interp. letter to B.H. Smith, Nabors Trailers, Inc.
(Oct. 3, 1969).
---------------------------------------------------------------------------
5. Additional Points in Support of NHTSA's Decision
NTEA's alternative argument is that default responsibility should
rest with incomplete vehicle manufacturers. Apart from the legal issues
and practices noted above, this ignores the fact that there are
considerable fairness issues associated with assigning default recall
responsibility to a class of manufacturers that has no say in what
happens to an incomplete vehicle once it leaves their hands. The
incomplete vehicle manufacturer transfers the incomplete vehicle to a
subsequent manufacturer over which the incomplete vehicle manufacturer
has no control, and the subsequent manufacturer builds on the
incomplete vehicle a completed vehicle about which the incomplete
vehicle manufacturer may have no knowledge. Given these circumstances,
to require the incomplete vehicle manufacturer to have default recall
responsibility over the vehicle as finally assembled would be to impose
a regulatory scheme without logical support, which NHTSA declines to
do.
6. Conclusion
Because NTEA's arguments regarding default recall responsibility
are
[[Page 28194]]
founded, in large part, on a factual premise (i.e., that final-stage
manufacturers often unfairly assume the burden of recalls for problems
they did not cause) expressly controverted by NHTSA's review of
multistage vehicle recalls, many of NTEA's arguments cannot be
accepted. Moreover, the logic and policy behind assigning default
recall responsibility to final-stage manufacturers are supported by
both the agency's historical treatment of multistage vehicles and the
documented practice of incomplete vehicle manufacturers taking
responsibility for recalls for which their actions are the
precipitating cause. Therefore, NHTSA must deny NTEA's petition as it
pertains to recall responsibility.
I. There Is No Need for NHTSA To Require IVDs for Completed Vehicles
That Are Commonly Altered, or To Allow Alterers To Rely on Pass-Through
Certification Opportunities Presented in IVDs
Noting that IVDs and the related pass-through opportunities are
available only for incomplete vehicles, but that some IVDs include
conformity statements for completed vehicles as well as for incomplete
vehicles, NTEA asked that alterers be allowed to rely on such
conformity statements in performing their own certification
responsibilities. NTEA further requested the agency to require IVDs for
completed vehicle configurations commonly altered prior to first retail
sale.
Agency response: Unlike incomplete vehicles, completed vehicles
that are altered prior to first retail sale have already been certified
by their original manufacturer as complying with all applicable FMVSS.
By affixing the appropriate label, as required under 49 CFR 567.4, the
original manufacturer discharges its certification responsibilities
with respect to the vehicle. It would be unreasonable to expect the
original manufacturer to be able to anticipate that a vehicle it has
fully manufactured and certified will be altered prior to first retail
sale, and even more unreasonable to expect the manufacturer to
anticipate the myriad kinds of alterations that could be performed on
such a vehicle. The agency is therefore unwilling to require
manufacturers to supply IVDs with completed vehicles. Accordingly, we
deny this aspect of NTEA's petition.
Nevertheless, the agency is aware that IVDs for some incomplete
vehicle models are readily available on their manufacturers' websites
and elsewhere. To the extent that a vehicle to be altered is similar to
one produced in an incomplete vehicle configuration, the alterer is
able to rely on appropriate compliance statements made in the relevant
IVD, if any, in certifying that the vehicle remains in compliance with
all applicable FMVSS affected by the alteration.
The agency notes that unlike a final-stage manufacturer, which must
certify a vehicle's compliance with all applicable standards, an
alterer need only ``ascertain that the vehicle as altered conforms to
the standards which are affected by the alteration,'' and must certify
that the vehicle, as altered, ``conforms to all applicable Federal
Motor Vehicle Safety, Bumper, and Theft Prevention Standards affected
by the alteration.'' \156\ Given the more circumscribed nature of this
certification, the agency does not recognize alterers as needing the
same opportunities for pass-through certification that are needed by
final-stage manufacturers.
---------------------------------------------------------------------------
\156\ See 49 CFR 567.7 and 568.8.
---------------------------------------------------------------------------
J. Technical Amendment
NTEA noted that section 568.4(a)(5), as amended under the final
rule, provides that the IVD should include the ``[g]ross axle weight
rating (GAWR) for each axle of the completed vehicle * * *'' (Emphasis
added.) NTEA suggested that ``incomplete vehicle'' be substituted for
the highlighted phrase. The agency agrees that the existing language in
paragraph (a)(5) is unclear, and has reworded the first sentence of
that paragraph to correspond to the language of paragraph (a)(4),
pertaining to the gross vehicle weight rating specification in the IVD.
By doing so, the agency grants this aspect of NTEA's petition.
III. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
Executive Order 12866, ``Regulatory Planning and Review'' (58 FR
51735, October 4, 1993), provides for making determinations whether a
regulatory action is ``significant'' and therefore subject to Office of
Management and Budget (OMB) review and to the requirements of the
Executive Order. The Order defines a ``significant regulatory action''
as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
We have considered the impact of this rulemaking under Executive
Order 12866 and the Department of Transportation's regulatory policies
and procedures, and for the following reasons have determined that it
is not a ``significant regulatory action'' within the meaning of
section 3 of E.O. 12866 and is not ``significant'' within the meaning
of the Department of Transportation's regulatory policies and
procedures. There are only two non-technical amendments adopted in this
rulemaking. The first permits manufacturers of multistage vehicles to
petition the agency for temporary exemptions from ``dynamic test
requirements'' in the FMVSS, as opposed to ``dynamic crash test
requirements,'' which was specified in the February 2005 Final Rule.
This amendment places no additional requirements on multistage vehicle
manufacturers for the purpose of obtaining temporary exemptions, and
can have no adverse consequence, financial or otherwise, for any party
that stands to be affected by the rule.
The second non-technical amendment requires multistage vehicle
manufacturers who petition the agency for a temporary exemption under
the expedited procedures in subpart B of 49 CFR part 555 to discuss in
the petition the availability of alternate incomplete vehicles that
could allow the petitioner to rely on IVDs when certifying a completed
vehicle, instead of petitioning under that subpart. This amendment does
not preclude multistage vehicles manufacturers who fail to discuss the
availability of alternate incomplete vehicles from petitioning for a
temporary exemption, as the temporary exemption procedures set forth in
subpart A of 49 CFR part 555 could still be used in that circumstance.
However, given the critical time limitations that the agency faces in
processing a petition under subpart B, obvious means to avoid the need
for filing such a petition must be addressed. This document was not
reviewed by the Office of Management and Budget under E.O. 12866,
``Regulatory Planning and Review.''
For the following reasons, NHTSA concludes that this final rule
will not
[[Page 28195]]
have any quantifiable cost effect on motor vehicle manufacturers or
motor vehicle equipment manufacturers. Even though multistage vehicle
manufacturers stand to be affected by the two non-technical amendments
adopted in this final rule, one of those amendments confers a benefit
on those manufacturers by broadening the range of requirements in the
FMVSS from which multistage manufacturers may obtain temporary
exemptions. The other non-technical amendment merely adds a requirement
for a fuller discussion of the need for a multistage manufacturer to
obtain a temporary exemption on an expedited basis, but does not
preclude those manufacturers from obtaining temporary exemptions under
other procedures.
Because the economic effects of this final rule are so minimal, no
further regulatory evaluation is necessary.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBFEFA) of 1996), whenever an agency is required to publish a notice
of proposed rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
The Small Business Administration's regulations at 13 CFR part 121
define a small business, in part, as a business entity ``which operates
primarily within the United States.'' (13 CFR 121.105(a)). No
regulatory flexibility analysis is required if the head of an agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. The SBREFA amended the
Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that a rule will not have
a significant economic impact on a substantial number of small
entities.
The Deputy Administrator has considered the effects of this
rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.) and certifies that this final rule will not have a significant
economic impact on a substantial number of small entities. The
statement of the factual basis for the certification is that this final
rule, formulated in response to a petition for reconsideration, makes
two non-technical amendments to the agency's regulations. The first
allows multistage vehicle manufacturers, many of which qualify as small
businesses, to obtain temporary exemptions on an expedited basis from a
broader range of requirements in the FMVSS than were previously
permitted under the regulation in question. The second non-technical
amendment requires a petitioner to provide a fuller discussion of the
need to obtain a temporary exemption on an expedited basis, but does
not preclude a petitioner unwilling to provide this discussion from
seeking an exemption under other applicable procedures. As such, the
amendments impose no adverse economic impact on any party.
For these reasons, and for the reasons described in our discussion
on Executive Order 12866 and DOT Regulatory Policies and Procedures,
NHTSA concludes that this final rule will not have a significant
economic impact on a substantial number of small entities.
C. National Environmental Policy Act
NHTSA has analyzed these amendments for the purposes of the
National Environmental Policy Act and determined that they will not
have any significant impact on the quality of the human environment.
D. Executive Order 13132 (Federalism)
Executive Order 13132 requires NHTSA to develop an accountable
process to ensure ``meaningful and timely input by State and local
officials in the development of regulatory policies that have
federalism implications.'' The Executive Order defines ``policies that
have federalism implications'' to include regulations that have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.'' Under
Executive Order 13132, NHTSA may not issue a regulation with Federalism
implications, that imposes substantial direct compliance costs, and
that is not required by statute, unless the Federal government provides
the funds necessary to pay the direct compliance costs incurred by
State and local governments, or the agency consults with State and
local officials early in the process of developing the regulation.
NHTSA also may not issue a regulation with Federalism implications and
that preempts State law unless the agency consults with State and local
officials early in the process of developing the regulation.
NHTSA has analyzed this rulemaking action in accordance with the
principles and criteria set forth in Executive Order 13132. The agency
has determined that this rule will not have sufficient federalism
implications to warrant consultation with State and local officials or
the preparation of a federalism summary impact statement. This rule
will not have any substantial effects on the States, or on the current
Federal-State relationship, or on the current distribution of power and
responsibilities among the various local officials. Thus, the
requirements of section 6 of the Executive Order do not apply.
E. Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires Federal agencies to prepare a written assessment of the costs,
benefits and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local or
tribal governments, in the aggregate, or by the private sector, of more
than $100 million annually (adjusted for inflation with base year of
1995). Before promulgating a rule for which a written assessment is
needed, section 205 of the UMRA generally requires NHTSA to identify
and consider a reasonable number of regulatory alternatives and to
adopt the least costly, most cost-effective, or least burdensome
alternative that achieves the objectives of the rule. The provisions of
Section 205 do not apply when they are inconsistent with applicable
law. Moreover, Section 205 allows NHTSA to adopt an alternative other
than the least costly, most cost-effective or least burdensome
alternative if the agency publishes with the final rule an explanation
as to why that alternative was not adopted.
This rule will not result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of more
than $100 million annually. Accordingly, this rule is not subject to
the requirements of sections 202 and 205 of the UMRA.
F. Executive Order 12778 (Civil Justice Reform)
Pursuant to Executive Order 12988 ``Civil Justice Reform,'' this
agency has considered whether this final rule would have any
retroactive effect. NHTSA concludes that this final rule will not have
any retroactive effect. Judicial review of the rule may be obtainable
under 5 U.S.C. 702. That section does not require submission of a
petition for reconsideration or other administrative proceedings before
parties may file suit in court.
[[Page 28196]]
G. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), a person is not
required to respond to a collection of information by a Federal agency
unless the collection displays a valid OMB control number. This final
rule does not impose any new information collection requirements for
which a 5 CFR part 1320 clearance must be obtained.
H. Executive Order 13045
Executive Order 13045 applies to any rule that: (1) is determined
to be ``economically significant'' as defined under E.O. 12866, and (2)
concerns an environmental, health, or safety risk that NHTSA has reason
to believe may have a disproportionate effect on children. If the
regulatory action meets both criteria, we must evaluate the
environmental health or safety effects of the planned rule on children,
and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by us.
This rulemaking is not economically significant and does not
involve any environmental, health, or safety risks that
disproportionately affect children.
I. Privacy Act
Anyone is able to search the electronic form of all submissions
received into any of our dockets by the name of the individual
submitting the comment or petition (or signing the comment or petition,
if submitted on behalf of an association, business, labor union, etc.).
You may review DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (Volume 65, Number 70; Pages
19477-78) or you may visit http://dms.dot.gov.
J. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Pub. L. 104-113, section 12(d) (15 U.S.C. 272)
directs NHTSA to use voluntary consensus standards in its regulatory
activities unless doing so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies, such as the Society of Automotive
Engineers (SAE). The NTTAA directs the agency to provide Congress,
through the OMB, explanations when we decide not to use available and
applicable voluntary consensus standards.
This rulemaking only addresses the allocation of legal
responsibilities among regulated parties. As such, the issues involved
here are not amenable to the development of voluntary standards.
K. Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN contained in the heading at the beginning of this document
to find this action in the Unified Agenda.
0
In consideration of the foregoing, NHTSA amends 49 CFR Chapter V as
follows:
List of Subjects in 49 CFR Parts 555, 567, 568, and 571
Imports, Motor vehicle safety, Reporting and recordkeeping
requirements, Tires.
PART 555--TEMPORARY EXEMPTION FROM MOTOR VEHICLE SAFETY AND BUMPER
STANDARDS
0
1. The authority citation for part 555 of title 49 continues to read as
follows:
Authority: 49 U.S.C. 30113, 32502, Pub. L. 105-277; delegation
of authority at 49 CFR 1.50.
0
2. Part 555 subpart B is amended by revising Sec. Sec. 555.11, 555.12,
and 555.13 to read as follows:
Sec. 555.11 Application.
This subpart applies to alterers and manufacturers of motor
vehicles built in two or more stages to which one or more standards are
applicable. No manufacturer or alterer that produces or alters a total
exceeding 10,000 motor vehicles annually shall be eligible for a
temporary exemption under this subpart. Any exemption granted under
this subpart shall be limited, per manufacturer, to 2,500 vehicles to
be sold in the United States in any 12 consecutive month period.
Incomplete vehicle manufacturers and intermediate manufacturers that do
not intend to certify the vehicles in accordance with 49 CFR 567.5(f)
or (g), and instead furnish Incomplete Vehicle Documents to final-stage
manufacturers in accordance with 49 CFR 568.4 or 49 CFR 568.5, are not
eligible for temporary exemptions under this subpart.
Sec. 555.12 Petition for exemption.
An alterer; an incomplete vehicle manufacturer intending to certify
the vehicle in accordance with 49 CFR 567.5(f); an intermediate
manufacturer intending to certify the vehicle in accordance with 49 CFR
567.5(g); a final-stage manufacturer; or an industry trade association
representing a group of alterers, incomplete vehicle manufacturers,
intermediate manufacturers and/or final-stage manufacturers may seek,
as to any vehicle configuration altered and/or built in two or more
stages, a temporary exemption or a renewal of a temporary exemption
from any performance requirement for which a Federal motor vehicle
safety standard specifies the use of a dynamic test procedure to
determine compliance. Each petition for an exemption under this section
must be submitted to NHTSA and must:
(a) Be written in the English language;
(b) Be submitted in three copies to: Administrator, National
Highway Traffic Safety Administration, 400 Seventh St., SW.,
Washington, DC 20590;
(c) State the full name and address of the applicant, the nature of
its organization (e.g., individual, partnership, corporation, or trade
association), the name of the State or country under the laws of which
it is organized, and the name of each alterer, incomplete vehicle
manufacturer, intermediate manufacturer and/or final-stage manufacturer
for which the exemption is sought;
(d) State the number, title, paragraph designation, and the text or
substance of the portion(s) of the standard(s) from which the exemption
is sought;
(e) Describe by type and use each vehicle configuration (or range
of vehicle configurations) for which the exemption is sought;
(f) State the estimated number of units of each vehicle
configuration to be produced annually by each of the manufacturer(s)
for whom the exemption is sought;
(g) Specify any part of the information and data submitted that the
petitioner requests be withheld from public disclosure in accordance
with part 512 of this chapter, as provided by Sec. 555.5(b)(6).
(1) The information and data which petitioner requests be withheld
from public disclosure must be submitted in accordance with Sec. 512.4
of this chapter.
(2) The petitioner's request for withholding from public disclosure
must be accompanied by a certification in support as set forth in
appendix A to part 512 of this chapter.
Sec. 555.13 Basis for petition.
The petition shall:
(a) Discuss any factors (e.g., demand for the vehicle
configuration, loss of
[[Page 28197]]
market, difficulty in procuring goods and services necessary to conduct
dynamic tests) that the applicant desires NHTSA to consider in deciding
whether to grant the application based on economic hardship.
(b) Explain the grounds on which the applicant asserts that the
application of the dynamic test requirements of the standard(s) in
question to the vehicles covered by the application would cause
substantial economic hardship to each of the manufacturers on whose
behalf the application is filed, providing a complete financial
statement for each manufacturer and a complete description of each
manufacturer's good faith efforts to comply with the standards,
including a discussion of:
(1) The extent that no Type (1) or Type (2) statement with respect
to such standard is available in the incomplete vehicle document
furnished, per part 568 of this chapter, by the incomplete vehicle
manufacturer or by a prior intermediate-stage manufacturer or why, if
one is available, it cannot be followed;
(2) A description of the incomplete vehicle to be used to
manufacture the vehicle(s) subject to the petition. This description
must identify the manufacturer of the incomplete vehicle, state the
incomplete vehicle's GVWR, and provide other available specifications;
(3) The availability of alternative incomplete vehicles, including
incomplete vehicles of different size, GVWR, and number of axles, from
the same and other incomplete vehicle manufacturers, that could allow
the petitioner to rely on Incomplete Vehicle Documents when certifying
the completed vehicle, instead of petitioning under this subpart;
(4) The existence, or lack thereof, of generic or cooperative
testing that would provide a basis for demonstrating compliance with
the standard(s); and
(c) Explain why the requested temporary exemption would not
unreasonably degrade safety.
PART 568--VEHICLES MANUFACTURED IN TWO OR MORE STAGES
0
1. The authority citation for part 568 of title 49 continues to read as
follows:
Authority: 49 U.S.C. 30111, 30115, 30117, 30116; delegation of
authority at 49 CFR 1.50.
0
2. Part 568 is amended by revising the first sentence of paragraph
(a)(5) of Sec. 568.4 to read as follows:
Sec. 568.4 Requirements for incomplete vehicle manufacturers.
(a) * * *
(5) Gross axle weight rating (GAWR) for each axle of the completed
vehicle for which the incomplete vehicle is intended, listed and
identified in order from front to rear (e.g., front, first
intermediate, second intermediate, rear). * * *
* * * * *
Jacqueline Glassman,
Deputy Administrator.
[FR Doc. 06-4387 Filed 5-12-06; 8:45 am]
BILLING CODE 4910-59-P