January 18, 2008

Ms. Nicole R. Nason

Administrator

National Highway Traffic Safety Administration (NHTSA)

1200 New Jersey Avenue, SE

Washington, DC 20590

Re: Docket ID: NHTSA-2007-0040

Action: *Joint Petition for Reconsideration; Federal Motor Vehicle
Safety Standard\
(FMVSS) No. 110; Vehicle Capacity Weight and Tire Information*

Dear Administrator Nason:

The undersigned signatory organizations petition the National Highway
Traffic Safety Administration (NHTSA) to address the following with
respect to FMVSS 110 (49 CFR §571.110), as modified by the final Cargo
Carrying Capacity (CCC) rule issued late last year.\
72 Fed. Reg. 68442, *et seq.* (December 4, 2007). Specifically,
Petitioners respectfully request that:

1.  NHTSA clarify further that the FMVSS 110 tire information relabeling
    mandate in 49 CFR § 571.110 S4.3.2. and S10 only applies to
    *altered* light-duty vehicles;

2.  The CCC relabeling trigger threshold required by 49 CFR §571.110 S10
    be set at the *greater* of 3 percent of GVWR or 100 kg (220 lb.);
    and

3.  NHTSA restore the version of 49 CFR §571.110 S4.3(d) published in
    2002.

The following evidence and arguments are offered in support of the
above-requested actions. Questions may be directed to the undersigned
individuals.

> Respectfully Submitted,

Doug Greenhaus Stuart Gosswein\
Director, Environment, Health and Safety Director, Regulatory Affairs\
National Automobile Dealers Association Specialty Equipment Market
Association\
8400 Westpark Drive 1317 F Street, NW, Suite 500\
Mclean, VA  22102 Washington, DC 20004-1105\
703-821-7040 202-783-6007, ext. 30\
<dgreenhaus@nada.org> <stuartg@sema.org>

-2-

***[Signatory Organizations]{.underline}***

Automotive Service Association

Marine Retailers Association of America

National Automobile Dealers Association

National Marine Manufacturers Association

National RV Dealer's Association

National Truck Equipment Association

Specialty Equipment Market Association

Tire Industry Association

cc: Mr. Stephen Kratzke\
Associate Administrator for Rulemaking

**Petition for Reconsideration**

**DOT Docket No. NHTSA-2007-0040**

# Final Rule

# Federal Motor Vehicle Safety Standards

> Cargo Carrying Capacity

**[Introduction]{.underline}**

The following petition makes three requests intended to clarify how
FMVSS No. 110 applies to industry and to refocus attention on the TREAD
Act goal of seeking means to compel motorists to check their tire
pressure and understand their vehicle's cargo capacity limits. As the
agency is aware, this mission remains a challenge despite decades of
efforts by the auto industry and regulators to educate the public. The
Petition seeks to uphold the challenge articulated in the TREAD Act and
away from issues that divert time and resources from the goal of
increasing highway safety.

**I. NHTSA SHOULD CLARIFY FURTHER THAT THE FMVSS 110 TIRE INFORMATION
RELABELING MANDATE IN 49 CFR § 571.110 S4.3.2.\
AND S10 ONLY APPLIES TO *ALTERED* LIGHT-DUTY VEHICLES.**

a.  **[Overview]{.underline}:** Petitioners request that NHTSA clarify
    further that the FMVSS 110 tire information relabeling mandate in 49
    CFR § 571.110 S4.3.2. and S10 only applies to *altered* light-duty
    vehicles. In support, Petitioners urge the agency to consider that:\
    \
    (1) applying a replacarding burden on "dealers"[^1] customizing but
    not "altering"\
    vehicles undermines NHTSA's well-established definition of
    "alterer"[^2] and\
    imposes an unnecessary burden on vehicle dealers and installers;\
    \
    (2) limiting the replacarding mandate will help to properly focus on
    the safety value\
    of educating the motoring public on the importance of maintaining
    proper tire\
    inflation and properly loading cargo on vehicles; and\
    \
    (3) the Agency has the discretion to so limit the tire information
    replacarding mandate.

b.  **[Regulatory Background]{.underline}:** In 2002, in response to
    Section 11 of the Transportation Recall Enhancement, Accountability,
    and Documentation (TREAD) Act,[^3] NHTSA issued a rule standardizing
    the location and format of the tire label that FMVSS 110 had long
    required manufacturers to install on light-duty vehicles. 67 Fed.
    Reg. 69599, *et seq*. (November 18, 2002). Manufacturers must now
    attach a label or placard on the driver's side B-pillar, the
    driver's side door, or otherwise near the driver's seating position
    (for vehicles with driver seating positions) for all vehicles with a
    GVWR of 10,000 lbs. or less. 49 CFR §571.110 S4.3. Notably, the
    November 2002 rule suggested a legal mandate and safety
    justification for the replacarding of completed vehicles prior to
    first sale, but only for vehicle "alterers." 67 Fed. Reg. at 69618.\
    \
    In 2004, NHTSA issued a second rule which, among other things,
    attempted to require dealers to revise the FMVSS 110 tire placard
    whenever the tire size changed on completed light-duty vehicles
    prior to first sale. 69 Fed. Reg. 31306, *et seq.* (June 3, 2004).
    In support of this position, NHTSA cited to 49 USC § 30112, which
    prohibits a person from selling a noncompliant motor vehicle or item
    of motor vehicle equipment, and to the 49 USC §30122 "make
    inoperative" prohibition. 49 CFR §571.110 S 4.3(d); 69 Fed. Reg.
    at 31311. In an April 7, 2006, letter of interpretation, NHTSA later
    clarified that replacarding is not required if light-duty vehicles
    are modified after first retail sale in a manner that changes their
    tire size, cold inflation pressure, and/or cargo capacity rating.

c.  **[Vehicle Parts and Accessories]{.underline}:** It is useful to
    understand how light-duty vehicles are customized prior to first
    retail sale. In addition to typically having several factory option
    packages to choose from, light-duty vehicle customers often have
    factory and aftermarket parts and accessories installed on or in
    their new vehicles. This customization typically occurs at new
    vehicle dealerships or at off-site aftermarket installers.
    Occasionally, more than one installer may work on a vehicle (e.g.,
    one for a sunroof and another for a hitch and grille guard). Each
    vehicle is different, and there are endless accessory variables.
    Given these circumstances, tracking and totaling the weights of
    multiple components -- 5, 10, 45 pounds -- can prove challenging.

d.  **[Alterations]{.underline}:** For decades, dealers and installers
    have worked within a regulatory environment that distinguishes
    between minor and more substantial changes that trigger alteration
    certification. The regulated community has devoted considerable
    resources on outreach focused on compliance responsibilities
    associated with "altered vehicles."[^4] This is a never-ending
    effort given that there are always new companies and workers to
    bring up to speed. Of course, the key issue has always been that
    "altered vehicles" do not involve the installation of readily
    attachable components, including tires. The CCC rule appropriately
    appears to impose a replacarding mandate only with respect to
    "altered vehicles." 49 CFR §571.110 S4.3.2 and S10. Petitioners
    request that NHTSA verify this reading of FMVSS 110 by making a
    simple, conforming regulatory amendment. Specifically, Petitioners
    request that 49 CFR §571.110 S10.1 be amended to read *"....on the
    placard required by S4.3.2 or S4.3.5 and....*" This will indicate
    unequivocally that the tire information replacarding mandate only is
    triggered with respect to altered vehicles, thus enabling the
    regulated community to recognize clearly that they need only, but
    must, evaluate whether to relabel the tire information label
    pursuant to 49 CFR §571.110 S4.3.2 and S10, if and when they are
    required to add an alteration label pursuant to 49 CFR Part 567.

e.  **[Nothing in Section 11 of the TREAD Act nor in 49 USC §§ 30112 or
    30122 Constrains NHTSA's Discretion to Clarify the Application of
    the FMVSS 110 Relabeling Requirements]{.underline}:** Petitioners
    urge NHTSA to recognize its discretion in this regard. NHTSA has a
    long history of interpreting the nature and scope of Sections 30112
    and 30122 when evaluating changes to completed vehicles before first
    sale, and that the clarification Petitioners are requesting herein
    by no means runs afoul of these statutory provisions. In addition, a
    plain reading of Section 11 of the TREAD Act indicates that NHTSA
    has broad discretion with respect to how it crafts its tire
    information rule. Moreover, Section 11 clearly indicates Congress'
    intent that the public be educated on the importance of proper tire
    loading and inflation. Clearly, the objective should be to provide
    consumers with tangible and useful tire safety information. A well
    designed rule should avoid any focus on de minimis cargo carrying
    capacity changes or on consumer requested tire changes as they
    distract from that important objective. Instead, resources should be
    devoted to educating customers and motorists regarding proper
    vehicle loading and tire inflation techniques.\
    \
    Since the motoring public typically has no practical means of
    calculating the weight of the cargo they load into and onto their
    vehicles, an exact cargo carrying capacity number is of limited, if
    any, utility to them. Fortunately, in most driving situations,
    light-duty vehicles rarely are loaded above the CCC limit and thus
    overloading is not an issue. On the other hand, occasionally the CCC
    limit may come into play, such as during a family vacation or move.
    In such situations where passengers and luggage may be loaded
    excessively or improperly, motorists historically do not weigh and
    tally up the cargo and passengers they are loading. In addition to
    language in light-duty vehicle owners' manuals, educational outreach
    should be considered with the aim of improving the motoring public's
    focus on the safety benefits of proper vehicle loading.

> Importantly, there are a several variables that may play as much or
> more of a safety role than cargo weight. Proper distribution of the
> weight within the vehicle is important. For example, the weight of a
> roof rack is inconsequential when compared with how much weight
> someone may load or overload on it, as one or two hundred pounds or
> more can directly impact a vehicle's center of gravity. Conversely,
> tubular steps and other items of equipment that ride lower to the
> ground may actually increase a vehicle's stability and therefore
> provide a net safety benefit. Petitioners look forward to working with
> NHTSA on additional educational outreach in this regard.

**II. Request to Establish a 220 Pound trigger Threshold\
for Cargo Carrying Capacity Relabeling**

a.  **[Overview]{.underline}:** Recognizing that it is impractical and
    unnecessary to update the CCC label every time an item of equipment
    is added to light-duty vehicles by vehicle alterers, NHTSA has
    established a minimum weight trigger threshold above which CCC label
    information must be updated. 49 CFR § 571.110 S10. After initially
    suggesting relabeling threshold equal to or less than 0.5 percent of
    GVWR (e.g., 15 pounds on a 3,000 pound vehicle), the December 2007
    rule was issued with a trigger threshold of the *lesser* of 1.5
    percent of GVWR or 45.4 kg (100 pounds). 70 Fed. Reg. 51707 (August
    31, 2005); 72 Fed. Reg. at 68452. This latest threshold translates
    into 45 pounds for a 3,000 pound vehicle. Importantly, Petitioners
    had argued for a minimum trigger threshold of 3 percent of GVWR or
    100 kg (220 lb), whichever is *greater*.\
    \
    As follow, Petitioners respectfully urge NHTSA to reconsider its
    minimum trigger threshold. Note that where the discussion below
    periodically references "220 pounds," in all cases that reference
    means "the *greater* of 3 percent GVWR or 100 kg (220 lb)."

b.  **[NHTSA Misstates The Consensus For A 220 Pound
    Threshold]{.underline}:** In its December 2007 final rule, NHTSA
    acknowledged that it had "*received comments from numerous sources
    arguing that the proposed 0.5 percent GVWR threshold for relabeling
    requirements to be triggered was too low. Most commenters suggested
    that the threshold be the lesser of 3 percent GVWR or 100 kg (220
    lb). This suggested threshold was based on the 49 CFR 595.7
    threshold afforded to those who modify vehicles to accommodate
    persons with disabilities*." 72 Fed. Reg. at 68452. Contrary to that
    reference, Petitioner commenters had urged NHTSA to adopt a
    relabeling threshold of the *greater* of 3 percent GVWR or 100 kg
    (220 lb), not the *lesser.*

c.  **[When "100 Pounds" Actually Means 45 Pounds]{.underline}:** By
    urging the adoption of the *greater* of 220 lbs. or 3% of GVWR,
    Petitioners had envisioned a single minimum safe harbor: 220 lbs.
    Dealers and installers working on heavier vehicles would be free to
    calculate potentially higher safe harbors (e.g., 3% of 10,000 pounds
    or 300 pounds). This position was crafted to be consistent with 49
    CFR 595.7, which contains a relabeling trigger for *"any reduction
    in the load carrying capacity of the vehicle of more than 100 kg
    (220 lb) after the modifications are completed*." For reasons
    unexplained, NHTSA's final rule sets the *lesser* of *lesser* of 1.5
    percent of GVWR or 45.4 kg (100 pounds). As a practical matter, for
    most light-duty vehicles this would unnecessarily burden dealers
    with having to calculate a percentage of GVWR, and would only
    provide for a 100 pound trigger threshold for vehicles above 6,666
    pounds.

d.  **[No Support Data For 100 Pound Threshold]{.underline}**: The
    rulemaking record contains no data supporting NHTSA's decision to
    create a 100 pound trigger threshold. Instead, the final rule simply
    makes the unsupported assertion that "*The most commonly installed
    heavy item by dealers before first retail sale is a heavy duty Class
    IV trailer hitch for a pickup truck. Such hitches have an advertised
    shipping weight of less than 36.3 kg (80 lbs)."* 72 Fed. Reg.
    at 68452. Conversely, the docket contains several documents
    supporting a higher weight threshold. For example, in its March 17,
    2006 comments, the Association of International Automobile
    Manufacturers, Inc (AIAM) lists the weights of a variety of items
    potentially installed prior to first retail sale.
    [NHTSA-2005-22242-23](http://dms.dot.gov/search/document.cfm?documentid=390289&docketid=22242).
    Among other notable items, AIAM's comments provided data on a number
    of hitches, but none matching the trailer hitch weighing 36.3 kg (80
    lbs) NHTSA references as "*the most commonly installed heavy item by
    dealers prior to first retail sale."* 72 Fed. Reg. at 68452.

e.  **[100 Pounds Provides No Meaningful Relief]{.underline}:** In its
    December 2007 rule, NHTSA states that "*We believe the threshold for
    added equipment weight of the lesser of 1.5 percent of GWVR or 100
    pounds relieves passenger vehicle dealers of the responsibility for
    label changes in the vast majority of equipment sales without
    creating a practical safety problem."* 72 Fed. Reg. at 68452.
    Petitioners do not agree. For example, AIAM's March 17, 2006
    comments illustrate both how the originally proposed limit of 0.5%
    GVWR easily could be exceeded by common dealer-installed accessories
    and how a 100 pound trigger threshold would not provide much
    additional relief. While automakers frequently offer
    factory-installed package options (e.g., tow packages, tonneau
    covers, moon/sun roofs, sport accessory packages, etc.) the weight
    of such packages will be reflected in the original tire label cargo
    capacity rating. Of course, as described above, dealerships and
    installers often further accessorize vehicles before first sale,
    often bundling groups of accessories in appearance or towing
    packages. A customer who has a trailer hitch installed likely will
    have other items attached to the vehicle, such as a roof rack,
    fender flares and/or grille guard.\
    \
    A careful review of common accessory lists shows that these
    combinations frequently exceed 100 pounds, but fall below 220
    pounds, demonstrating a clear rationale for a minimum 220 pound
    threshold. The following are examples of common packages:

> *Hummer H2 (with factory-installed tow package)*
>
> -Tubular Steps -- 57.2
>
> -Dual Headrest DVD -- 9.2
>
> -Roof Rack -- 24.1
>
> -Kayak Carrier -- 11.0
>
> -Remote engine starter -- 3.0
>
> Total -- 104
>
> *Chevy Tahoe (with factory-installed tow package)*
>
> -Splash Guards -- 1.4
>
> -Tubular Steps -- 57.2
>
> -Brush Guard -- 31.2
>
> -DVD Player -- 9.2
>
> \- All weather mats -- 12.0
>
> Total -- 111
>
> *Nissan Titan (with factory-installed tow package)*
>
> -Rear bumper step -- 28.0
>
> -Under seat storage -- 6.6
>
> -Bed Divider -- 12.06
>
> -Hard Tonneau Cover -- 73.5
>
> -Bed extender -- 13.0
>
> -Brush guard -- 31.2
>
> -Skid plates -- 9.0
>
> Total -- 173.36
>
> *Cadillac CTS*
>
> -Splash guards -- 1.4
>
> -All-weather mats -- 12.0
>
> -Spoiler -- 7.0
>
> -Side-window deflector- 2.4
>
> -Receiver hitch -- 43.3
>
> -Remote engine starter -- 3.0
>
> Total -- 69.1
>
> *Subaru Outback*
>
> -Front license plate -- 1.1
>
> -Receiver hitch -- 43.3
>
> -Cargo organizer -- 4.0
>
> -All-weather mats -- 12.0
>
> -Splash guards -- 1.4
>
> -Roof rack -- 24.1
>
> -Roof mount bike -- 13.1
>
> -Kayak carrier -- 11.0
>
> -Remote starter -- 3.0

Total - 113

f.  **[No Demonstrated Safety Justification for a 100 Pound Trigger
    Threshold]{.underline}:** While dealers and other installers have
    accessorized vehicles since automobiles were first sold, the docket
    nowhere cites to and Petitioners are unaware of any
    overloading-related safety concerns associated with properly
    installed accessories. Importantly, the National Traffic and Motor
    Vehicle Safety Act of 1966 requires NHTSA to prescribe motor vehicle
    safety standards that are practicable, that meet the need for motor
    vehicle safety, and that can be stated in objective terms. 49 U.S.C.
    §30111. Petitioners contend that a standard that contains an
    arbitrary 100 pound trigger threshold does not provide for an
    objectively-based standard that is practicable and that meets safety
    needs.\
    \
    NHTSA notes in its December 2007 final rule that "*A vehicle with
    the maximum weight of added equipment of 1.5 percent of GVWR when
    also loaded to the maximum weight of passengers and cargo specified
    in the original label could exceed the tire load rating by 1.5
    percent as a worst case. However, NHTSA tire research (for example,
    Docket NHTSA 2000-8011 item 22) shows that fully inflated tires are
    not very sensitive to small overloads. Even in a high speed test
    rigorous enough to fail a third of the tire samples, tires that were
    slightly overloaded (taking into consideration the curvature of the
    test wheel) performed comparably to a sample of the same tire
    make/models with 10 percent less load*." 72 Fed. Reg. at 68452.
    Petitioners submit that this rationale also applies to a 220 pound
    minimum trigger threshold. Again, the Act clearly requires a safety
    basis for establishing standards, yet nothing in the record supports
    a threshold below 220 pounds.

g.  [**An Existing NHTSA Regulation Uses a 220 Pound Trigger Threshold
    (49 CFR 595.7**)]{.underline}: The rulemaking record contains
    several comments referring to the 100 kg (220 lb) trigger threshold
    set out in NHTSA's rule governing the modification of vehicles to
    accommodate persons with disabilities. 49 CFR 595.7. Curiously,
    NHTSA failed to indicate in the final CCC rule why it was diverging
    from this relevant and logical precedent. Simply put, if a 220 pound
    trigger threshold provides a level of safety for persons with
    disabilities, it should serve well for the motoring public
    generally.

h.  **[Conclusion]{.underline}:** The rulemaking docket is replete with
    uncontroverted and compelling support for a minimum 220 pound
    trigger threshold. Conversely, NHTSA failed to provide any
    reasonable justification for the final rule's "lesser of 1.5 percent
    GVWR or 45.4 kg (100 pounds)" limit. Therefore, Petitioners
    respectfully request that NHTSA reconsider and revise the final CCC
    rule to establish a relabeling trigger threshold of *the greater of
    3 percent GVWR or 100 kg (220 lb).* Specifically, 49 CFR§571.110
    S10.1 should be amended to read as follows:

> *"S10.1 If weight exceeding [the greater of 3 percent GVWR or 100 kg
> (220 lb)]{.underline} is added to a vehicle between final vehicle
> certification and first retail sale of the vehicle, the vehicle
> capacity weight values on the placard required by S4.3.[2]{.underline}
> or S4.3.5 and the load carrying capacity weight values on the RV load
> capacity labels (Figures 3 and 4) required by S9.3 must be corrected
> using one or a combination of the following methods:"*

1.  **NHTSA SHOULD RESTORE 49 CFR §571.110 S4.3(d) TO THE VERSION OF
    PUBLISHED IN 2002.**

> **A. Petitoners' Specific Recommendation**
>
> NHTSA's 2002 final rule tire information rule contained the following
> language with regard to the new label's tire size information:
>
> \(d\) Tire size designation, indicated by the headings "original tire
> size" or "original size," for the tires installed *as original
> equipment on the vehicle by the vehicle manufacturer.*
>
> [67 Fed. Reg. at 69623; 49 CFR §571.110S4.3(d)]{.underline}.
>
> In 2004, NHTSA changed this provision to read:
>
> d\) Tire size designation, indicated by the headings "original tire
> size" or "original size," and "spare tire" or "spare," for the tires
> installed *at the time of the first purchase for purposes other than
> resale.*

[69 Fed. Reg. at 31317; 49 CFR §571.110S4.3(d)]{.underline}.

While supportive of the language referencing spare tires, Petitioners
object to NHTSA's substitution of *at the time of the first purchase for
purposes other than resale* for *as original equipment on the vehicle by
the vehicle manufacturer.* While dealers and installers sometimes
replace tires on completed light-duty vehicles with tires of a different
size, such changes typically involve a size option recommended by the
original vehicle manufacturer. Moreover, customers typically are aware
of the new tire size as they are the ones ordering the change. Lastly,
NHTSA nowhere has shown any safety concern associated with the
installation of replacement tires on new vehicles prior to first sale.
Given these facts, the burden associated with having to relabel a
vehicle whenever replacement tires of a different size are installed
prior to first sale outweighs any benefit associated with doing so.
Therefore, Petitioners urge NHTSA to amend 49 CFR §571.110S4.3(d) so
that it once again reads *as original equipment on the vehicle by the
vehicle manufacturer.*

> **B. Additional Outreach Regarding Proper Tire Inflation**

While many motorists are disciplined about the need to properly and
periodically check the air in their tires, few may understand the
importance of doing so to accommodate extra loads. Petitioners look
forward to working with NHTSA and with other key stakeholders to engage
in ongoing educational outreach on this important issue.

[^1]: NHTSA's use of the term "dealer" appears to mean anyone performing
    operations on a vehicle between\
    final vehicle certification and first retail sale of the vehicle

[^2]: "*Alterer"* means a person who alters by addition, substitution,
    or removal of components (other than readily\
    attachable components) a certified vehicle before the first purchase
    of the vehicle other than for resale.\
    49 CFR §567.3.

[^3]: SEC.  11.  Improved Tire Information. 

    > \(a\) Tire Labeling.  Directs the Secretary to initiate
    > rulemaking, within 30 days of enactment, to improve the labeling
    > of tires to assist consumers in identifying tires that may be the
    > subject of a recall, and to complete the rulemaking no later than
    > June 1, 2002. 
    >
    > \(b\) Inflation Levels and Load Limits.  In the rulemaking above
    > for tire labeling, the Secretary may take whatever additional
    > action is appropriate to ensure that the public is aware of the
    > importance of observing tire load limits and maintaining proper
    > tire inflation levels for safe operation.  The additional action
    > may include a requirement that the manufacturer of motor vehicles
    > provide the purchasers of the motor vehicles information on
    > appropriate tire inflation levels and load limits if the Secretary
    > determines that requiring such manufacturers to provide this
    > information is the most appropriate way the information can be
    > provided.

    Public Law No. 106-414, Nov. 1, 2000.

[^4]: ^4^ "*Altered vehicle"* means a completed vehicle previously
    certified in accordance with § 567.4 or § 567.5 that has been
    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 purchase of the vehicle other than for resale, in
    such a manner as may affect the conformity of the vehicle with one
    or more Federal Motor Vehicle Safety Standard(s) or the validity of
    the vehicle's stated weight ratings or vehicle type classification.