Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Proposed Rules 15903 

TABLE 1436–1—UNIFORM CONTRACT FORMAT—Continued 

Section Title 

C .................................................. Specifications/Drawings. 

D .................................................. Packaging and marking. 

E .................................................. Inspection and acceptance. 

F .................................................. Deliveries or performance. 

G .................................................. Contract administration data. 

H .................................................. Special contract requirements. 

Part II—Contract Clauses 

I .................................................... Contract clauses. 

Part III—List of Documents, Exhibits, and Other Attachments 

J ................................................... List of attachments. 

Part IV—Representations and Instructions 

K .................................................. Representations, certifications, and other statements of offerors. 

L ................................................... Instructions, conditions, and notices to offerors. 

M .................................................. Evaluation factors for award. 

PART 1452—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

9. Add new § 1452.201–70 to read as 

follows: 

§ 1452.201–70 Authorities and delegations. 

As prescribed in § 1401.670–1, insert 

the following clause: 

AUTHORITIES AND DELEGATIONS (XXX 

2011) 

(a) The Contracting Officer is the only 

individual authorized to enter into or 

terminate this contract, modify any term or 

condition of this contract, waive any 

requirement of this contract, or accept 

nonconforming work. 

(b) The Contracting Officer will designate 

a Contracting Officer’s Representative (COR) 

at time of award. The COR will be 

responsible for technical monitoring of the 

contractor’s performance and deliveries. The 

COR will be appointed in writing, and a copy 

of the appointment will be furnished to the 

Contractor. Changes to this delegation will be 

made by written changes to the existing 

appointment or by issuance of a new 

appointment. 

(c) The COR is not authorized to perform, 

formally or informally, any of the following 

actions: 

(1) Promise, award, agree to award, or 

execute any contract, contract modification, 

or notice of intent that changes or may 

change this contract; 

(2) Waive or agree to modification of the 

delivery schedule; 

(3) Make any final decision on any contract 

matter subject to the Disputes Clause; 

(4) Terminate, for any reason, the 

Contractor’s right to proceed; 

(5) Obligate in any way, the payment of 

money by the Government. 

(d) The Contractor shall comply with the 

written or oral direction of the Contracting 

Officer or authorized representative(s) acting 

within the scope and authority of the 

appointment memorandum. The Contractor 

need not proceed with direction that it 

considers to have been issued without proper 

authority. The Contractor shall notify the 

Contracting Officer in writing, with as much 

detail as possible, when the COR has taken 

an action or has issued direction (written or 

oral) that the Contractor considers to exceed 

the COR’s appointment, within 3 days of the 

occurrence. Unless otherwise provided in 

this contract, the Contractor assumes all 

costs, risks, liabilities, and consequences of 

performing any work it is directed to perform 

that falls within any of the categories defined 

in paragraph (c) prior to receipt of the 

Contracting Officer’s response issued under 

paragraph (e) of this clause. 

(e) The Contracting Officer shall respond in 

writing within 30 days to any notice made 

under paragraph (d) of this clause. A failure 

of the parties to agree upon the nature of a 

direction, or upon the contract action to be 

taken with respect thereto, shall be subject to 

the provisions of the Disputes clause of this 

contract. 

(f) The Contractor shall provide copies of 

all correspondence to the Contracting Officer 

and the COR. 

(g) Any action(s) taken by the Contractor, 

in response to any direction given by any 

person acting on behalf of the Government or 

any Government official other than the 

Contracting Officer or the COR acting within 

his or her appointment, shall be at the 

Contractor’s risk. 

(End of clause) 

10. In § 1452.228–7, in paragraph (a), 

remove the reference ‘‘1428.311–2’’ and 

add in its place ‘‘1428.311–1.’’ 

[FR Doc. 2011–6646 Filed 3–21–11; 8:45 am] 

BILLING CODE 4310–RF–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2009–0093] 

Federal Motor Vehicle Safety 

Standards; Roof Crush Resistance 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation. 

ACTION: Response to petition for 

reconsideration. 

SUMMARY: This document responds to a 

petition for reconsideration of a final 

rule that upgraded the agency’s safety 

standard on roof crush resistance. The 

petition was submitted by the National 

Truck Equipment Association (NTEA). 

After carefully considering the petition, 

we are denying it. 

FOR FURTHER INFORMATION CONTACT: For 

non-legal issues, you may call 

Christopher J. Wiacek, NHTSA Office of 

Crashworthiness Standards, telephone 

202–366–4801. For legal issues, you 

may call J. Edward Glancy, NHTSA 

Office of Chief Counsel, telephone 202– 

366–2992. You may send mail to these 

officials at the National Highway Traffic 

Safety Administration, 1200 New Jersey 

Avenue, SE., West Building, 

Washington, DC 20590. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

A. Multi-Stage Vehicles and the MultiStage Certification Scheme 

1. Multi-Stage Vehicles 

2. Safety Standards and Certification 


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1The definition of ‘‘incomplete vehicle’’ also 

includes incomplete trailers, and many 

manufacturers of incomplete trailers are not large 

businesses. 

2As defined by The Regulatory Flexibility Act of 

1980, as amended, 5 U.S.C. 601(3) (2011). 

3 49 U.S.C. 30101 et seq. 

4 49 U.S.C. 30112(a). 

5The statute provides in pertinent part: If the 

intermediate or final-stage manufacturer elects to 

assume responsibility for compliance with the 

standard covered by the documentation provided 

by an incomplete motor vehicle manufacturer, the 

intermediate or final-stage manufacturer shall notify 

the incomplete motor vehicle manufacturer in 

writing within a reasonable time of affixing the 

certification label. 49 U.S.C. 30115(b). 

3. 2005 and 2006 Rules on Certification of 

Vehicles Built in Two or More Stages 

B. May 2009 Final Rule Upgrading FMVSS 

No. 216 

C. Challenge by NTEA 

D. Consent Motion To Stay Briefing 

Schedule 

E. April 2010 Further Response to NTEA 

Comments 

II. NTEA Petition for Reconsideration 

III. Response to NTEA’s Petition 

A. Introduction 

B. NTEA’s Petition Is Unsupported by 

Evidence of an Actual Problem 

C. In extending FMVSS No. 216 to Heavier 

Vehicles, NHTSA Only Included Those 

Multi-Stage Vehicles for Which the 

Incomplete Vehicle Manufacturer 

Provides an Intact Roof 

D. The Typical Modifications Made by 

Final-Stage Manufacturers Do Not Affect 

Roof Strength 

E. Final-Stage Truck Manufacturers Have 

Opportunities That Permit Them To 

Certify Their Vehicles to FMVSS No. 

216a Without Testing 

1. NHTSA Believes That Pass-Through 

Certification Is Available on the GMT– 

355 IVD (2006) 

2. Certification Alternatives Are Available 

to Final-Stage Manufacturers 

F. FMVSS No. 216a Does Not Place 

‘‘Undue’’ Certification Risk on FinalStage Manufacturers 

G. NTEA’s Claim that NHTSA Needs To 

Test Multi-Stage Vehicles in Support of 

Its Regulatory Analysis Ignores the Fact 

That We Excluded the Trucks That 

Could Cause Compliance or Certification 

Issues for Final-Stage Manufacturers 

H. All Multi-Stage Vehicles Should Not Be 

Excluded 

IV. Conclusion 

I. Background 

A. Multi-Stage Vehicles and the MultiStage Certification Scheme 

1. Multi-Stage Vehicles 

Multi-stage vehicles are motor 

vehicles that are produced in two or 

more stages. These vehicles are not 

produced by a single manufacturer on 

an assembly line as is the typical 

passenger car or sport utility vehicle. 

Instead, one manufacturer produces an 

‘‘incomplete vehicle’’ which requires 

further manufacturing operations to 

become a completed vehicle. As defined 

in 49 CFR 567.3, an incomplete vehicle 

is an assemblage consisting, at a 

minimum, of chassis (including the 

frame) structure, power train, steering 

system, suspension system, and braking 

system, in the state that those systems 

are to be part of the completed vehicle, 

but requires further manufacturing 

operations to become a completed 

vehicle.1

Most incomplete vehicles are 

manufactured by large or substantial 

manufacturers, such as General Motors 

Company (‘‘GM’’), Ford Motor Company 

(‘‘Ford’’), Chrysler Group LLC 

(‘‘Chrysler’’), Navistar International 

Corporation, and Freightliner. Most 

final-stage manufacturers are small 

businesses.2 Multi-stage vehicles are 

aimed at a variety of niche markets, 

most of which are too small to be 

serviced economically by single-stage 

manufacturers, which tend to have large 

assembly facilities in a small number of 

locations. 

In terms of degree of completeness, 

the spectrum of incomplete vehicles 

ranges from a stripped chassis to a 

chassis-cab. A stripped chassis is an 

incomplete vehicle without an occupant 

compartment. A chassis-cab is an 

incomplete vehicle, with a completed 

occupant compartment, that requires 

only the addition of cargo-carrying, 

work-performing, or load-bearing 

components to perform its intended 

functions. See 49 CFR 567.3. In 

appearance, a chassis-cab looks like a 

pickup truck without a box or truck bed 

behind the cab. A type of incomplete 

vehicle that falls between stripped 

chassis and chassis-cabs on this 

spectrum is a chassis cutaway, which is 

an incomplete vehicle delivered with a 

partial occupant compartment that does 

not have a rear wall. A chassis cutaway 

may be visualized as a pickup truck or 

van without a rear wall behind the 

driver and without a box or truck bed 

behind the cab. 

In a typical situation, the incomplete 

vehicle is delivered to the final-stage 

manufacturer which adds workperforming or cargo-carrying 

components to complete the vehicle. 

For example, the incomplete vehicle 

may be a chassis-cab, i.e., have a cab, 

but nothing built on the frame behind 

the cab. As completed, it may be a dry 

freight van (box truck), dump truck, tow 

truck, or plumber’s truck. A cutaway 

may be completed into a vehicle in 

which the driver can enter the rear area 

without leaving the vehicle, such as a 

small airport shuttle, a small recreation 

vehicle, or some service trucks used by 

tradesmen. A stripped chassis may be 

completed into a bus or large recreation 

vehicle. 

In some cases, there may also be 

intermediate-stage manufacturers 

involved in the production of a multistage motor vehicle. 

2. Safety Standards and Certification 

NHTSA issues Federal motor vehicle 

safety standards (FMVSS) applicable to 

new motor vehicles and certain items of 

motor vehicle equipment under the 

authority of the National Traffic and 

Motor Vehicle Safety Act, as amended 

and codified as Chapter 301 of Title 49 

of the United States Code, ‘‘Motor 

Vehicle Safety’’ (Vehicle Safety Act).3

Manufacturers are prohibited from 

manufacturing for sale, selling or 

importing into the United States motor 

vehicles and equipment subject to an 

applicable FMVSS unless the vehicle or 

equipment complies with the standard 

and is covered by a certification issued 

pursuant to 49 U.S.C. 30115.4 This 

prohibition is not absolute. The 

prohibition on selling non-compliant 

vehicles does not apply to a person who 

establishes that the person had no 

reason to know, despite exercising 

reasonable care, that a motor vehicle or 

equipment does not comply with 

applicable FMVSSs. See United States 

v. Chrysler Corp., 158 F.3d 1350, 1355 

(DC Cir. 1998). 

Under the certification provision of 

the Vehicle Safety Act, a manufacturer 

is required to certify that the vehicle or 

equipment complies with applicable 

FMVSSs. A person may not issue the 

certificate, if in exercising reasonable 

care, the person has reason to know that 

the certificate is false or misleading in 

a material respect. The certification 

provision recognizes distributions of 

certification responsibilities for multistage vehicles between final-stage and 

incomplete motor vehicle 

manufacturers.5

The Vehicle Safety Act employs a 

self-certification process, which 

imposes responsibility on the 

manufacturer(s) to certify the vehicle or 

equipment item as complying with the 

applicable FMVSS. In this process, the 

manufacturer(s) do not submit 

information for certification to NHTSA 

and NHTSA does not certify any motor 

vehicles or motor vehicle equipment as 

complying with applicable FMVSS. See 

73 FR 79207, 79212 (Dec 24, 2008). 

Many of NHTSA’s most important 

safety standards specify performance 

requirements in the context of a crash 

test or some other kind of test that may 


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6 71 FR 28168, 28183–28184 (May 15, 2006). 

7See 70 FR 7414, 7432–33 (February 14, 2005); 

49 CFR 567.5(b) and (c). 

8 49 CFR 567.5(b)(1). 

9 49 CFR 567.5(d)(1). 

10 49 CFR 567.3 11While NTEA’s petition for reconsideration 

combines alterers and final-stage manufacturers 

into one definition, NHTSA notes that the two types 

are different and subject to different regulations. 

Namely, an alterer will not usually receive an IVD 

or have the potential for pass-through certification. 

As such, NHTSA will refer to these two entities 

separately in this document. 

12See 49 CFR 567.5 (1977 and 1978); 42 FR 37814 

(July 25, 1977). 

13We note that NTEA submitted its comments on 

NHTSA’s notice of proposed rulemaking (‘‘NPRM’’) 

to upgrade the roof crush resistance standard in 

November 2005. Those comments, which addressed 

a number of multi-stage issues, were thus submitted 

after the agency had published its February 2005 

final rule on certification of multi-stage vehicles but 

before NHTSA responded to NTEA’s petition for 

reconsideration of the certification rule on May 15, 

2006. 

significantly damage the tested vehicle. 

The specific tests specified in the 

agency’s crashworthiness standards are 

carefully developed to simulate real 

world crashes, thereby assuring that 

vehicle occupants are provided 

protection in actual driving situations. 

NHTSA’s motor vehicle safety 

standards contain the test conditions 

and procedures that the agency will use 

to evaluate the performance of the 

vehicle or equipment being tested for 

compliance with the particular safety 

standard. NHTSA follows these 

specified test procedures and conditions 

when conducting its compliance testing. 

However, manufacturers are not 

required to test their products in the 

manner specified in the relevant safety 

standard, or even to test the product at 

all, as their basis for certifying that the 

product complies with all relevant 

standards. 

A manufacturer may evaluate its 

products in various ways to determine 

whether the vehicle or equipment will 

comply with the safety standards and to 

provide a basis for its certification of 

compliance. Depending on the 

circumstances, the manufacturer may be 

able to base its certification on actual 

testing (according to the procedure 

specified in the standard or some other 

procedure), computer simulation, 

engineering analysis, technical 

judgment or other means.6

NHTSA has developed regulations for 

certification and specific certification 

regulations for multi-stage vehicles. The 

certification process is governed by 49 

CFR part 567 Certification. 49 CFR 567.5 

sets forth the certification requirements 

for manufacturers of vehicles 

manufactured in two or more stages. 

Certification responsibilities for the 

applicable FMVSSs are communicated 

between incomplete vehicle 

manufacturers and final-stage 

manufacturers with the use of an 

incomplete vehicle document (IVD). 

Each manufacturer of an incomplete 

vehicle, with limited exceptions,7

assumes responsibility for certificationrelated duties under the Vehicle Safety 

Act with respect to the vehicle as 

further manufactured or completed by 

the final-stage manufacturer, to the 

extent that the vehicle is completed in 

accordance with the IVD.8

Final-stage manufacturers have 

complementary duties. Pursuant to 49 

CFR 567.5(d), final-stage manufacturers 

assume responsibility for certificationrelated matters under the Vehicle Safety 

Act, except to the extent that the 

incomplete vehicle manufacturer has 

expressly assumed responsibility for 

standards related to systems and 

components it supplied and except to 

the extent that the final-stage 

manufacturer completed the vehicle in 

accordance with the prior 

manufacturers’ IVD or any addendum 

furnished pursuant to 49 CFR part 568, 

as to the FMVSSs fully addressed 

therein.9

The incomplete vehicle manufacturer 

furnishes an IVD for incomplete 

vehicles pursuant to 49 CFR 568.4. For 

each applicable FMVSS, the incomplete 

vehicle manufacturer makes one of three 

affirmative statements in the IVD: (1) A 

Type 1 statement that the vehicle when 

completed will conform to the standard 

if no alterations are made in identified 

components; (2) a Type 2 statement that 

sets forth the specific conditions of final 

manufacture under which the 

incomplete vehicle manufacturer 

specifies that the completed vehicle will 

conform to the standard; or (3) a Type 

3 statement that conformity to the 

standard cannot be determined based on 

the incomplete vehicle as supplied, and 

the incomplete vehicle manufacturer 

makes no representation as to 

conformity with the standard. 

When the IVD makes a Type 1 or 

Type 2 statement, there is ‘‘passthrough’’ certification unless a 

subsequent manufacturer manufactures 

the vehicle in a way as to violate the 

language in the IVD. The final-stage 

manufacturer can rely on the IVD to 

certify the vehicle to a particular 

standard. 

If a vehicle that is completed and 

certified in accordance with the 

agency’s regulations is altered by an 

individual or manufacturer before the 

first retail sale, that individual or 

manufacturer is known as a vehicle 

‘‘alterer.’’ 10 An alterer has different 

requirements detailed in 49 CFR 567.7. 

In essence, an alterer must certify and 

affix a label stating that the vehicle was 

altered and remains in compliance with 

all applicable FMVSS affected by the 

alteration.11

3. 2005 and 2006 Rules on Certification 

of Vehicles Built in Two or More Stages 

On February 14, 2005, NHTSA 

published in the Federal Register (70 

FR 7414) a final rule amending four 

different parts of Title 49 Code of 

Federal Regulations to address various 

certification issues related to vehicles 

built in two or more stages. Among 

other things, the rule expanded the 

application of pass-through 

certification, which, as adopted in the 

1970s applied only to chassis-cabs, so 

that pass-through certification can be 

used for multi-stage vehicles based on 

other types of incomplete vehicles.12

In the preamble to the February 2005 

final rule, and in other documents in 

that rulemaking, NHTSA discussed the 

history of issues related to the 

certification of vehicles built in two or 

more stages, which have long been 

sources of contention to many, 

including between incomplete vehicle 

manufacturers and final-stage 

manufacturers. 

NTEA petitioned for reconsideration 

of the February 2005 multi-stage 

certification final rule. On May 15, 

2006, NHTSA responded to that 

organization’s petition in a final rule; 

response to petition for reconsideration 

published in the Federal Register (71 

FR 28168). While the agency made some 

changes in the February 2005 final rule 

in response to the petition, it denied the 

remainder of the petition for 

reconsideration that addressed issues 

regarding certification of multi-stage 

vehicles and responsibility for recalls of 

multi-stage vehicles. 

In its petition for reconsideration of 

the February 2005 certification final 

rule, NTEA challenged the regulatory 

scheme of certifying multi-stage 

vehicles.13 It repeated its historical 

mantra that the provided IVDs are 

unworkable, insufficient, and that it is 

not possible for a final-stage 

manufacturer to comply with the 

agency’s multi-stage certification 

regulations. Furthermore, NTEA argued 

that even if compliance were possible, 

it would be economically ruinous to 

NTEA’s members. 

In denying most aspects of NTEA’s 

petition for reconsideration, NHTSA 

provided detailed responses to these 

and other arguments. We explained that 

certification is important for safety and 

that the certification scheme is 

‘‘workable.’’ 


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14 71 FR at 28177–28183 (section titled ‘‘The 

Existing IVDs Are Workable’’). 

15 71 FR at 28186. 

16 Incomplete vehicles are classified as original 

equipment items. 70 FR 7414, 7418 (Feb. 14, 2005). 

See 49 U.S.C. § 30102(a) (definitions of motor 

vehicle and motor vehicle equipment). 

17 71 FR at 28176 (section titled ‘‘The Availability 

of Multistage Vehicles Belies NTEA’s Position’’) and 

at 28184–85 (section titled ‘‘NHTSA’s Market Forces 

Argument Is Justified and Consistent with the 

Multistage Vehicle Market’’). 

18See, e.g., NTEA comments, NHTSA–2005– 

22143–0108, p.1. 

19We cited the example of General Motors’ 

relationships with final-stage manufacturers it 

refers to as ‘‘Special Vehicle Manufacturers.’’ 71 FR 

at 28185. 

20 71 FR at 28183–28184 (section titled 

‘‘Additional Resources Available to Final-Stage 

Manufacturers’’). 

21Final-stage manufacturers are sometimes 

referred to as ‘‘upfitters’’ in the trade. See generally 

71 FR at 28174. 

22See 71 FR at 28175–28176. 

23FMVSS No. 216(a) references both kilograms 

and pounds. For ease of reading, we will refer to 

the pound measurement in this document. 

As part of responding to NTEA’s 

claim in its petition to the 2005 Rule 

that the existing IVD’s are not workable, 

we carefully examined the certification 

statements included in an IVD that 

NTEA appended to its petition.14 The 

IVD was for the General Motors (GM) C/ 

K chassis-cab (this is comparable to the 

full size GM pickup trucks). We 

analyzed certification statements for 

FMVSS Nos. 105, Hydraulic and 

Electric Brake Systems; 135, Light 

Vehicle Brake Systems; 204, Steering 

Control Rearward Displacement; 201, 

Occupant Protection in Interior Impact; 

212, Windshield Mounting; 219, 

Windshield Zone Intrusion; 214, Side 

Impact Protection; 208, Occupant Crash 

Protection; 216, Roof Crush Resistance; 

and 301, Fuel System Integrity. In each 

instance, we showed why the IVD was 

workable and why various limitations 

were reasonable. We also explained that 

issues regarding impracticability should 

be decided in the context of rulemaking 

for each FMVSS.15

As we further explained, in 

recognition of the fact that incomplete 

vehicle manufacturers do not control 

work performed by final-stage 

manufacturers and can fairly anticipate 

only some things but not everything 

done to the incomplete vehicle by finalstage manufacturers, the regulatory 

system of ‘‘pass-through’’ certification in 

which the final-stage manufacturers 

have responsibility for certification of 

the vehicle 16 but may rely on IVDs is 

reasonable. The IVD commonly 

provides the basis for the final-stage 

manufacturer’s certification with 

enumerated FMVSS. The IVD is a 

general document that accompanies the 

incomplete vehicle, and typically is not 

limited to one application (addition of 

one type of body or one type of 

equipment), but contains limits and 

conditions in light of the nature and 

capacity of the chassis and potential 

problems resulting from completion of 

an incomplete vehicle. 

We stated that NTEA sought to 

remove the certification responsibility 

from final-stage manufacturers and 

impose much of that responsibility on 

incomplete vehicle manufacturers. Also, 

we explained that NTEA’s petition 

ignored the fact that incomplete vehicle 

manufacturers do not control what finalstage manufacturers do with the 

incomplete vehicles. 

As we noted, a system of pass-through 

certification has existed for more than 

25 years, and in that time many multistage vehicles have been built and 

certified by final-stage manufacturers. 

This fact alone indicates that the system 

is workable and operates as intended. 

Moreover, as we pointed out, the 

availability of multi-stage vehicles 

belies NTEA’s position.17 And, contrary 

to that petitioner’s position, market 

forces create business reasons for 

incomplete vehicle manufacturers to 

provide workable IVDs. We noted that 

NTEA’s argument ignores the fact that 

the system is not broken, as evidenced 

by the many types of multi-stage 

vehicles that are being manufactured 

and offered for sale, including those 

manufactured by NTEA members. These 

include ambulances, service trucks, 

small school buses, mid-size buses, tow 

trucks and vans.18 The fact that vehicles 

such as these are being made indicates 

that the IVDs are workable. We also 

noted that NTEA ignored the 

cooperative relationships between 

incomplete and final-stage 

manufacturers.19

We also explained that many 

resources are available to final-stage 

manufacturers.20 As a group, final-stage 

manufacturers do not operate in an 

informational vacuum. In addition to 

the IVDs, these resources include 

upfitter 21 guides from incomplete 

vehicle manufacturers, incomplete 

vehicle manufacturer help lines, the 

final-stage manufacturers’ own 

experience and judgment, and 

commercially available software. 

In our May 15, 2006 response to 

petitions for reconsideration of the 

February 2005 rule, we explained that 

certification serves an important safety 

function in the multi-stage vehicle 

business. Many multi-stage vehicles 

carry people and important cargo—from 

school children on school buses to 

liquid fuel on propane and gasoline 

trucks. The safety need for certification 

of compliance with FMVSS in these 

types of vehicles is uncontroverted.22

B. May 2009 Final Rule Upgrading 

FMVSS No. 216, Roof Crush Resistance 

The Safe, Accountable, Flexible, 

Efficient Transportation Equity Act: A 

Legacy for Users (SAFETEA–LU), Public 

Law 109–59, added a section to the 

Vehicle Safety Act titled Vehicle 

rollover prevention and crash 

mitigation, codified at 49 U.S.C. 30128. 

Subsection (a) required the Secretary to 

initiate rulemaking proceedings, for the 

purpose of establishing rules or 

standards that will reduce vehicle 

rollover crashes and mitigate deaths and 

injuries associated with such crashes for 

motor vehicles with a gross vehicle 

weight rating (GVWR) of not more than 

4,536 kilograms (10,000 pounds). 

Subsection (d) required that one of the 

rulemaking proceedings initiated under 

subsection (a) was to establish 

performance criteria to upgrade FMVSS 

No. 216 relating to roof strength for 

driver and passenger sides, and 

expressly required issuance of a final 

rule. 

On May 12, 2009, as part of a 

comprehensive plan for reducing the 

serious risk of rollover crashes and the 

risk of death and serious injury in those 

crashes, NHTSA published in the 

Federal Register (74 FR 22348) a final 

rule substantially upgrading FMVSS No. 

216, Roof Crush Resistance. The 

upgraded standard is designated FMVSS 

No. 216a, Roof Crush Resistance; 

Upgraded Standard. 

First, for the vehicles previously 

subject to the standard, i.e., passenger 

cars and multipurpose passenger 

vehicles, trucks and buses with a Gross 

Vehicle Weight Rating (GVWR) of 2,722 

kilograms (6,000 pounds) 23 or less, the 

rule doubled the amount of force the 

vehicle’s roof structure must withstand 

in the specified test, from 1.5 times the 

vehicle’s unloaded weight to 3.0 times 

the vehicle’s unloaded weight. We note 

that this value is sometimes referred to 

as the strength-to-weight ratio (SWR), 

e.g., a SWR of 1.5, 2.0, 2.5, and so forth. 

Second, the rule extended the 

applicability of the standard so that it 

will also apply to vehicles with a GVWR 

greater than 6,000 pounds, but not 

greater than 10,000 pounds. The rule 

established a force requirement of 1.5 

times the vehicle’s unloaded weight for 

these newly included vehicles. 

Third, the rule required all of the 

above vehicles to meet the specified 

force requirements in a two-sided test, 

instead of a single-sided test. For the 

two-sided test, the same vehicle must 

meet the force requirements when tested 


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24The foregoing presents some highlights. The 

reader is referred to the entire document and 

subsequent documents, including a further 

response to NTEA’s comment and a response to 

petitions for reconsideration. 

25 75 FR 17605 (April 7, 2010). 

26 75 FR 17604 (April 7, 2010). 

27See 71 FR at 28169–28171. 

28For example, most full size pickup trucks have 

a GVWR well above 6,000 pounds. See Ford, 2011 

Truck Payload Workbook, p. 7, available at 

https://www.fleet.ford.com/truckbbas/topics/2011/ 

2011_Truck_Payload_Workbook.pdf (last accessed 

Feb. 14, 2011). 

29This platform has been used for the Chevrolet 

Colorado and GMC Canyon pickup trucks, which 

are small or compact pickup trucks. See generally 

75 FR at 17593. 

first on one side and then on the other 

side of the vehicle. 

Fourth, the rule established a new 

requirement for maintenance of 

headroom, i.e., survival space, during 

testing in addition to the existing limit 

on the amount of roof crush. 

NHTSA included a number of special 

provisions to address the concerns of 

multi-stage manufacturers, alterers, and 

small volume manufacturers. The rule 

excluded from FMVSS No. 216a multistage trucks with a GVWR greater than 

6,000 pounds not built using a chassiscab or using an incomplete vehicle with 

a full exterior van body, i.e., NHTSA 

extended standard No. 216a to only 

multi-stage trucks in this weight range 

for which the incomplete vehicle 

manufacturer provided a completed roof 

structure. 

The rule permitted vehicles 

manufactured in two or more stages, 

other than chassis-cabs, and vehicles 

that are changed in certain ways to raise 

the height of the roof, to be certified to 

the roof crush requirements of FMVSS 

No. 220, School Bus Rollover Protection, 

instead of FMVSS No. 216a. 

The regulation added a test 

specification that provided for the 

removal of added structures prior to 

testing on vehicles built on a chassis-cab 

incomplete vehicle if some portion of 

the added body structure is above the 

height of the incomplete vehicle. It also 

provided additional leadtime for 

vehicles produced in two or more stages 

and altered vehicles.24

C. Challenge by NTEA 

NTEA filed a petition for review of 

the May 2009 final rule in the United 

States Court of Appeals for the Sixth 

Circuit. That organization had 

submitted comments during the 

rulemaking opposing the agency’s 

proposed revisions with respect to 

multi-stage vehicles. 

D. Consent Motion To Stay Briefing 

Schedule 

NHTSA filed with the Court a motion 

for a stay of the briefing schedule. The 

agency stated that it believed the Court’s 

consideration of the challenge by NTEA 

would be facilitated by a fuller response 

to the comments that organization had 

submitted during the rulemaking, which 

would permit both NTEA and the Court 

to more fully address the agency’s 

rationale. NHTSA also noted that 

petitions for reconsideration of the rule 

were pending before the agency. NTEA 

consented to the motion and the Court 

granted a six-month stay of the briefing 

schedule on October 2, 2009. 

E. April 2010 Further Response to NTEA 

Comments 

On April 7, 2010, NHTSA published 

in the Federal Register (75 FR 17590) a 

document providing a further response 

to the comments submitted by NTEA in 

the roof crush resistance rulemaking 

(hereinafter referred to as the ‘‘Further 

Response’’). The agency also published 

two other documents related to the May 

2009 final rule. One of those documents 

denied two petitions for reconsideration 

of that rule.25 Those petitions requested, 

among other things, that the agency 

apply the same, more stringent strengthto-weight ratio requirement to heavier 

light vehicles, i.e., ones with a GVWR 

greater than 6,000 pounds as it had 

applied to other light vehicles. The 

other document was a correcting rule.26

In the Further Response, we provided 

a detailed discussion of the multi-stage 

issues in the rulemaking to upgrade 

FMVSS No. 216. Among other things, 

we discussed a section included in the 

NPRM concerning multi-stage issues, 

provided an overview of the comments 

we received on multi-stage issues, 

including comments submitted by 

NTEA, the Advocates for Highway 

Safety (‘‘Advocates’’), National Mobility 

Equipment Dealers Association 

(‘‘NMEDA’’) and Recreational Vehicle 

Industry Association (‘‘RVIA’’). We also 

discussed our response to the comments 

about multi-stage issues included in the 

preamble to our May 2009 final rule. 

In the Further Response, we provided 

a detailed further response to NTEA’s 

comments. We explained that, as a 

general matter, NTEA’s comments on 

the agency’s proposal to upgrade 

FMVSS No. 216 centered on two 

premises: (1) NHTSA’s assumption that 

pass-through certification is available is 

invalid; and (2) because NHTSA’s passthrough certification scheme is invalid, 

NHTSA’s analysis of the rule’s impact 

and costs are flawed. The end result, 

according to NTEA, was that NHTSA’s 

regulation on roof crush is impracticable 

for multi-stage vehicles, and, therefore, 

NHTSA’s roof crush regulations should 

not include any requirements for multistage vehicles. 

We noted that to reach NTEA’s 

conclusion—FMVSS No. 216a should 

not apply to multi-stage vehicles—one 

has to be of the view that the 

certification scheme for multi-stage 

vehicles, which has been in place for 

several decades, is unworkable and 

invalid, as applied to requirements for 

chassis-cabs under FMVSS No. 216a.27

We rejected NTEA’s arguments as to 

multi-stage vehicles covered by the 

regulation. We noted that while NTEA 

has repeatedly provided pessimistic 

claims that the present certification 

scheme for multi-stage vehicles is 

invalid and unworkable, the availability 

of multi-stage vehicles belies that claim. 

There are many multi-stage vehicles on 

the road that have been certified to a 

number of standards, and the final-stage 

manufacturers are still in business. 

There are large numbers of multi-stage 

vehicles, such as school buses, box 

trucks, work trucks, flatbed and stake 

trucks, tow trucks, dump trucks, and 

gasoline tank trucks on the road. 

We also noted that final-stage 

manufacturers have certified multi-stage 

vehicles with a GVWR of 6,000 pounds 

or less to the FMVSS No. 216 as it 

existed before the May 2009 upgrade of 

that rule. FMVSS No. 216 was extended 

to trucks, buses, and multipurpose 

vehicles (MPVs) with a GVWR of 6,000 

pounds or less in a final rule published 

in 1991. A GVWR of 6,000 pounds or 

less is relatively low for commercial 

vehicles,28 which results in limited 

offerings in this category. But, 

significantly, GM has sold an 

incomplete vehicle chassis-cab, the 

GMT–355,29 that has a GVWR of 6,000 

pounds or less and is therefore subject 

to FMVSS No. 216. GM would not have 

offered and sold the vehicle for years if 

there was not a market for them, as 

completed by final-stage manufacturers. 

We explained that under the May 

2009 roof crush resistance rule, FMVSS 

No. 216a will not be applicable to 

vehicles with a GVWR greater than 

10,000 pounds. Incomplete vehicle 

manufacturers will not need to provide 

an IVD regarding FMVSS No. 216a for 

these heavier vehicles. We explained 

that, in our estimation, the largest 

numbers of multi-stage vehicles are in 

this category. 

We observed that NTEA’s comments 

contemplated no assistance from the 

incomplete vehicle manufacturer. We 

explained, however, that NHTSA has 

seen the converse to be true—there are 

IVDs, upfitter guides, best practices 

manuals and help lines provided by 

incomplete vehicle manufacturers. 


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30This has long been recognized in 

interpretations by NHTSA’s Chief Counsel. E.g., 

Letter from Jacqueline Glassman, Chief Counsel, 

NHTSA, to Ms. S. Trinkl, Quality Management, 

DEKRA Automobil GmbH (December 30, 2004), 

available at http://isearch.nhtsa.gov/files/ 

Trinkl.1.html (last accessed February 14, 2011). 

31NTEA’s initial comments were based on GM’s 

2006 IVD; however, attached to the petition for 

reconsideration was GM’s 2010 IVD. As the two 

documents are materially similar, we will refer to 

them collectively. See Appendix A of NTEA’s 

Petition for Reconsideration, May 24, 2010, Docket 

No. NHTSA–2009–0093–0022. 

Final-stage manufacturers also have 

their own technical expertise. 

We explained that final-stage 

manufacturers can use their judgment, 

including engineering or technical 

judgment, to certify vehicles. Testing, as 

provided in the FMVSS, is not required 

as a matter of law to certify a vehicle.30

Instead, sound judgment may be used. 

Many final-stage manufacturers bring 

considerable judgment to bear. They 

have been building and certifying 

vehicles for years. Final-stage 

manufacturers can and do use their base 

of experience in certifying vehicles as 

complying with the FMVSS. 

We also stated that NHTSA provided 

substantial leadtime. The rule becomes 

effective for multi-stage vehicles with a 

GVWR of 6,000 pounds or less, i.e., the 

vehicles already covered by FMVSS No. 

216, on September 1, 2016, and for the 

other multi-stage vehicles with a GVWR 

of 10,000 pounds or less on September 

1, 2017. These dates are one year after 

the requirements are fully effective for 

manufacturers of single-stage vehicles, 

the same entities that supply an 

incomplete chassis-cab to a final-stage 

manufacturer. 

In the Further Response, we made a 

number of points for which we provided 

detailed discussion and explanation. We 

discussed how the current certification 

scheme is not an unlawful delegation of 

agency authority and that IVDs 

concerning FMVSS No. 216 are 

workable. We also discussed the FMVSS 

No. 220 testing alternative that was 

incorporated into the rule after being 

suggested by the RVIA. We also 

explained why we believed that there 

were little if no costs for multi-stage 

manufacturers to comply with FMVSS 

No. 216a. 

II. NTEA Petition for Reconsideration 

After we published our Further 

Response, on May 24, 2010, NTEA 

submitted a petition for reconsideration 

to NHTSA. NTEA’s petition requested 

that we either exclude multi-stage 

vehicles from the coverage of FMVSS 

No. 216a or amend the final rule in a 

manner that would ensure more readily 

available compliance alternatives for 

final-stage manufacturers. 

In summary, NTEA’s petition made 

five points. First, NTEA stated that 

unreasonably restrictive conformity 

statements in IVDs put final-stage 

manufacturers in the position of either 

taking ‘‘undue’’ risk of certification or 

exiting the business. The petitioner 

stated that the fact that final-stage 

manufacturers certify vehicles does not 

suggest that pass-through certification 

under NHTSA’s regulations is workable 

or valid or practicable for purposes of 

Section 30111(a) of the Vehicle Safety 

Act. NTEA claimed that this 

certification risk was a basis for the 

court of appeals decision in National 

Truck Equipment Association v. 

National Highway Traffic Safety 

Administration, 919 F.2d 1148 (6th Cir. 

1990) (1990 NTEA decision). 

NTEA presented its arguments on the 

1990 NTEA decision for the proposition 

that the agency must offer the regulated 

party a chance to demonstrate 

compliance in order for a standard to 

meet the practicability requirement of 

the Vehicle Safety Act. NTEA stated that 

the court ruled that where final-stage 

manufacturers could not afford to 

conduct the test in the subject safety 

standards, NHTSA had to put the 

alternatives in the standard itself. 

NTEA argued that the court in the 

1990 NTEA decision identified 

problems insofar as pass-through 

certification was concerned: (1) 

NHTSA’s regulations at the time did not 

provide for pass-through certification 

for vehicles completed on chassis other 

than chassis-cabs; and (2) pass-through 

certification would not be an adequate 

compliance alternative to costly testing 

to the extent incomplete vehicle 

manufacturers provided unduly 

restrictive conformity statements in 

their IVDs. 

NTEA focused on the conformity 

language for FMVSS No. 216 in GM’s 

IVD for the GMT–355 (2006 Model Year) 

and assumed that other incomplete 

vehicle manufacturers would provide 

similar conformity statements for the 

new version of FMVSS No. 216.31 NTEA 

took issue with NHTSA’s interpretation 

that the conformity language for FMVSS 

No. 216 in the IVD for the GMT–355 

(2006 Model Year) provides a 

meaningful pass-through opportunity. 

NTEA believes that NHTSA’s analysis 

‘‘completely ignores the actual language 

of GM’s conformity statement.’’ It 

claimed that the language of GM’s 

conformity statement is restrictive. It 

also stated that the legal liability of a 

final-stage manufacturer for conformity 

with FMVSS No. 216, as allocated 

pursuant to 49 CFR 567.5, cannot 

depend on a ‘‘conjuring exercise’’ of 

what is, at minimum, a ‘‘hopelessly 

ambiguous’’ IVD statement drafted by 

GM, an incomplete vehicle 

manufacturer. 

NTEA argued that there is no 

meaningful distinction between 

receiving a Type 3 conformity statement 

for a cutaway chassis, on the one hand, 

and receiving some version of the Type 

1 conformity statement for FMVSS No. 

216 that GM provides for the GMT–355 

chassis, on the other. In both cases, 

according to NTEA, the final-stage 

manufacturer cannot use pass-through 

certification with respect to FMVSS No. 

216 and legal responsibility for 

compliance with that standard is 

automatically assigned to the final-stage 

manufacturer. 

NTEA concluded its first argument by 

urging NHTSA to amend FMVSS No. 

216a and/or 49 CFR 567.5 to ensure that 

IVDs contain conformity statements that 

provide final-stage manufacturers with a 

reasonable opportunity to use passthrough certification. In the absence of 

such amendments, NTEA urged NHTSA 

to exclude multi-stage vehicles from the 

population of vehicles subject to 

FMVSS No. 216a. 

Second, NTEA stated that it does not 

advocate shifting certification 

responsibility from final-stage 

manufacturers to incomplete vehicle 

manufacturers. Instead, NTEA argued 

that all multi-stage vehicles should be 

excluded from this safety standard, 

because it believes the safety standard is 

not practicable. 

NTEA claimed that NHTSA, in its 

Further Response, misconstrued NTEA’s 

position regarding multi-stage vehicle 

certification. In that response, NHTSA 

stated that NTEA sought to remove the 

certification responsibility from finalstage manufacturers and impose much 

of that responsibility on incomplete 

vehicle manufacturers. NHTSA also 

stated that NTEA’s petition ignored the 

fact that incomplete vehicle 

manufacturers do not control what finalstage manufacturers do with the 

incomplete vehicles. 

NTEA countered that it has not 

suggested in this proceeding that 

certification responsibility for multistage vehicles be shifted from final-stage 

manufacturers to incomplete vehicle 

manufacturers. Rather, with respect to 

FMVSS No. 216a, it stated that multistage vehicles should be excluded from 

the rule’s coverage because in its view 

there is an absence of practicable 

compliance alternatives for final-stage 

manufacturers. 

NTEA offered three reasons for its 

position, two of which, consistent with 

prior assertions, placed blame on other 


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entities: (1) Final-stage manufacturers 

cannot afford to conduct tests described 

in FMVSS No. 216a, or perform 

computer simulations (or other 

engineering analyses) that replicate the 

performance of vehicles in the test 

contained in that standard; (2) passthrough certification is not available to 

final-stage manufacturers because 

incomplete vehicle manufacturers are 

often unwilling or unable to provide 

conformity statements that permit finalstage manufacturers to build even the 

most common configurations of multistage vehicles within such conformity 

statements; and (3) NHTSA has not 

included in FMVSS No. 216a an 

affordable and objective alternative 

means (i.e., an alternative to testing or 

pass-through certification) by which a 

final-stage manufacturer can certify 

conformity of a vehicle to the standard. 

NTEA concluded that final-stage 

manufacturers do not have a meaningful 

chance to demonstrate compliance with 

FMVSS No. 216a. Therefore, it stated 

that NHTSA should exclude all multistage vehicles from this safety standard. 

Third, NTEA argued that excluding 

all multi-stage vehicles would not 

unacceptably deprive those users of the 

safety benefits provided by the roof 

crush standard. While essentially 

ignoring the vehicles that are under the 

umbrella of the safety provision of the 

rule, NTEA stated that its statistics show 

that the vast majority of multi-stage 

vehicles rated above 6,000 lbs. GVWR 

are outside the scope of FMVSS No. 

216a, and their users would not benefit 

from the standard’s safety benefits. 

NTEA noted that in extending the 

standard from vehicles with a GVWR 

greater than 6,000 pounds to include 

those with a GVWR of 10,000 pounds or 

less, NHTSA excluded trucks other than 

ones built on chassis-cabs (and 

incomplete vehicles with a full exterior 

van body) and this means that the 

agency excluded approximately onethird of multi-stage vehicles with a 

GVWR of 6,001 pounds to 10,000 

pounds. NTEA also said that chassis 

with a GVWR of over 10,000 pounds 

constitute 94.5 percent of the entire 

market of chassis rated above 6,000 

pounds. Thus, the vast majority of 

multi-stage vehicles above 6,000 pounds 

GVWR are already excluded from 

FMVSS No. 216a, and its position 

would not have any appreciable effect 

on the multi-stage vehicle population 

that will be subject to the rule. 

Fourth, NTEA took issue with 

NHTSA’s Regulatory Impact Analysis 

done for the final rule. NTEA stated that 

a review of the agency’s final rule and 

its Regulatory Impact Analysis indicated 

that NHTSA tested numerous vehicles 

but did not include any completed 

multi-stage vehicles in the testing it 

performed to support its amendments to 

FMVSS No. 216a. In NTEA’s view, 

NHTSA has no test data to support a 

conclusion that the revised test in the 

final rule is workable and reasonable 

with respect to multi-stage vehicles. The 

petitioner also stated that the pass/fail 

rates computed by NHTSA and the 

agency’s study of the appropriate roof 

crush resistance requirements in its 

assessment of the new testing procedure 

were conducted without considering a 

single multi-stage vehicle. 

NTEA argued that in the absence of 

testing any multi-stage vehicles in 

support of its amendments to FMVSS 

No. 216a, the rule cannot be justified in 

light of the difficulties final-stage 

manufacturers have with certifying. The 

petitioner added that in the agency’s 

regulatory analysis of the cost 

effectiveness and net benefits of the 

final rule, NHTSA stated that the cost/ 

benefit impacts are disproportionately 

influenced by relatively large 

contributions to costs and small 

contributions to benefits from vehicles 

over 6,000 pounds GVWR. NTEA also 

stated that the agency concluded that 

the benefits of the standard will be 

limited, particularly for vehicles in this 

higher weight range. 

NTEA also claimed that, in its 

analysis of the costs of compliance, the 

Regulatory Impact Analysis is silent 

insofar as multi-stage vehicles are 

concerned. It argued that the agency’s 

cost analysis was based upon costs 

incurred for mass-produced single-stage 

vehicles, and do not reflect the fact that 

final-stage manufacturers produce 

countless configurations of customdesigned vehicles, many of which are 

‘‘one off.’’ NTEA stated that NHTSA 

made no attempt separately to 

determine the cost of compliance for 

final-stage manufacturers, even for those 

who cannot pass-through the 

incomplete vehicle manufacturer’s 

certification and who therefore have no 

compliance alternative other than 

performing the test in FMVSS No. 216a. 

The petitioner stated that NHTSA’s 

position regarding the costs to finalstage manufacturers to comply with 

FMVSS No. 216a is summarized in 

NHTSA’s Regulatory Flexibility Act 

analysis, which states that small 

businesses using chassis-cabs will be in 

a position to take advantage of ‘‘passthrough certification,’’ and therefore are 

not expected to incur any additional 

expenditures. NTEA repeated its 

disagreement with the assessment that 

pass-through certification will be 

available for all multi-stage vehicles 

built on chassis-cabs. According to 

NTEA, even if incomplete vehicle 

manufacturers provided reasonable 

conformity statements, those statements 

would not cover all multi-stage vehicles 

produced by final-stage manufacturers. 

NTEA stated that, as NHTSA has 

observed, incomplete vehicle 

manufacturers do not control work 

performed by final-stage manufacturers 

and can fairly anticipate only some 

things, but not everything done by finalstage manufacturers. Accordingly, 

NTEA stated that some number of multistage vehicles will not be able to use 

pass-through certification. 

Finally, NTEA concluded its petition 

with a recommendation that NHTSA 

should amend the final rule in a way 

that would, in the petitioner’s view, 

make it practicable as applied to multistage vehicles. NTEA repeated that most 

final-stage manufacturers cannot 

perform or simulate the tests for FMVSS 

No. 216a and other more complex and 

expensive standards that include tests. 

Due to the number of types and 

configurations of final-stage 

manufacturing, NTEA believes that all 

the safety standards that include tests 

are inherently impracticable. 

The petitioner stated that in order to 

make FMVSS No. 216a practicable for 

final-stage manufacturers, NHTSA 

should amend its regulations to (1) 

ensure that the conformity statements 

provided by incomplete vehicle 

manufacturers are reasonable in light of 

the known types and sizes of multi-stage 

vehicles built on the chassis that are 

subject to those conformity statements, 

(2) provide final-stage manufacturers 

with an efficient way to challenge 

unduly restrictive conformity 

statements, and (3) identify specific 

steps that can be taken by a final-stage 

manufacturer that will constitute 

‘‘reasonable care,’’ for purposes of 49 

U.S.C. 30115(a), in certifying a vehicle 

as complying with FMVSS No. 216a, 

when the vehicle must be completed 

outside the parameters of a reasonable 

conformity statement. These generalized 

views were not accompanied by 

concrete suggestions for regulatory 

language. NTEA went on to state that in 

the event NHTSA does not amend 

FMVSS No. 216a and/or its multi-stage 

vehicle certifications to, in its view, 

make pass-through certification a 

practicable compliance option, or 

exclude multi-stage vehicles from the 

coverage of FMVSS No. 216a, then the 

agency must incorporate into its 

regulations another means for final-stage 

manufacturers to prove compliance. 

NTEA noted that NHTSA stated that 

final-stage manufacturers need not 

conduct the tests set forth in the 

FMVSSs such as FMVSS No. 216a, and 


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32For a visual reference, please see the photos of 

tested vehicles in NHTSA’s test reports on roof 

crush resistance. E.g. NHTSA Test Report No. 571, 

Ford F–250, available at http://wwwnrd.nhtsa.dot.gov/database/aspx/comdb/ 

querytesttable.aspx (last accessed on February 14, 

2011) and available at Docket No. NHTSA–2009– 

0093–0020 at pp. 292–299. 

33NTEA did not spell out alternatives in its 

comments. 34National Truck Equipment Association v. 

National Highway Traffic Safety Administration, 

919 F.2d 1148, 1153, 1155 (6th Cir. 1990). 

that they may be able to base their 

certifications to that standard on 

‘‘computer simulation, engineering 

analysis, engineering judgment or other 

means.’’ It also noted that NHTSA 

further stated that there are many 

resources available to final-stage 

manufacturers with regard to 

certification: upfitter guides from 

incomplete vehicle manufacturers, 

incomplete vehicle manufacturer help 

lines, the final-stage manufacturers’ own 

experience and judgment, and 

commercially available software, and 

that final-stage manufacturers can use 

their judgment, including engineering or 

technical judgment, to certify vehicles. 

NTEA stated that, however, none of 

these suggestions are incorporated into 

NHTSA’s regulations as a means of 

demonstrating conformity with FMVSS 

No. 216a, and therefore do not meet the 

requirements that the methods of 

proving compliance must be offered in 

the body of the standard itself. NTEA 

argued that in the event NHTSA does 

not amend its FMVSS certification 

regulations to make pass-through 

certification a practicable compliance 

option, NHTSA must exclude multistage vehicles from the population of 

vehicles subject to FMVSS No. 216a. 

III. Response to NTEA’s Petition 

After carefully considering NTEA’s 

petition, we have decided to deny it. 

The reasons for our denial are set forth 

below. 

A. Introduction 

As discussed earlier, our rulemaking 

to upgrade FMVSS No. 216 was 

required by Congress in SAFETEA–LU. 

That statute required the agency to issue 

a final rule establishing performance 

criteria to upgrade FMVSS No. 216 

relating to roof strength for driver and 

passenger sides, for motor vehicles with 

a GVWR of not more than 10,000 

pounds. An underlying safety concern 

was the crushing of the roof into the 

occupant compartment in rollover 

crashes. 

Throughout the rulemaking, we 

carefully considered issues related to all 

types of vehicles, including multi-stage 

vehicle issues. In the NPRM, for 

example, the agency explained why we 

thought a proposed option for certain 

multi-stage vehicles to meet the 

requirements of FMVSS No. 220, School 

Bus Rollover Protection, instead of 

FMVSS No. 216a, Roof Crush 

Resistance; Upgraded Standard, 

appeared to offer a reasonable approach 

that increased safety in rollovers and at 

the same time provided a mechanism 

for compliance. NHTSA included in the 

final rule a number of other provisions 

to address the legitimate concerns of 

multi-stage manufacturers. 

First, in the upgraded FMVSS No. 

216a rule, after considering NTEA’s 

comments, we only extended it to those 

multi-stage trucks that arrive from the 

incomplete vehicle manufacturer with a 

completed roof structure. We excluded 

those trucks where the final-stage 

manufacturer would need to complete 

the roof structure. Specifically, we 

excluded from FMVSS No. 216a multistage trucks with a GVWR greater than 

6,000 pounds not built using a chassiscab and those not built using an 

incomplete vehicle with a full exterior 

van body. Thus, as relevant to the 

petition now before the agency, the 

main thrust of the amended rule is that 

multi-stage trucks based on chassiscabs, whose roof structures, by 

definition, are manufactured by an 

incomplete vehicle manufacturer, have 

the same roof strength requirements as 

a completed pickup truck produced by 

the same manufacturer. 

Second, we provided an alternative 

testing option for certain multi-stage 

manufacturers. Vehicles manufactured 

in two or more stages, other than 

chassis-cabs, and vehicles which are 

changed in certain ways to raise the 

height of the roof, can be certified to the 

roof crush requirements of FMVSS No. 

220, School Bus Rollover Protection, 

instead of FMVSS No. 216a. We note 

that the Recreation Vehicle Industry 

Association (RVIA) had supported our 

proposal to permit FMVSS No. 220 as 

an option for small motor homes 

allowing manufacturers of them to 

address issues concerning such 

specialized vehicles built in two or 

more stages. 

Third, we added a test specification 

into the final rule so that the roof 

structure is the only part of the vehicle 

that is tested. NHTSA’s test procedures 

specify that the vehicle’s sills and 

chassis will be secured to a rigid 

horizontal surface. See FMVSS No. 216a 

S 7.1. According to the test’s procedure, 

the chassis-cab is supported by a 

horizontal surface at the sills, not the 

vehicle’s frame, and only the cab is 

compressed downward onto that 

horizontal surface. This ensures that the 

vehicle’s roof is tested, independent of 

the vehicle’s frame.32 Also, if a finalstage manufacturer adds a box onto a 

chassis-cab, and that box is taller than 

the roof, the box will be removed prior 

to testing the chassis-cab’s roof strength. 

This will ensure that only the vehicle’s 

roof structure is tested. 

Fourth, we provided additional 

leadtime for multi-stage manufacturers. 

This means that the vehicle 

manufacturers will build their pickup 

trucks, which are the basis for chassiscab incomplete vehicles, as having the 

requisite roof strength one year prior to 

incomplete and multi-stage vehicles 

built on chassis-cabs. The extra year 

will provide additional time in which 

final-stage manufacturers may consider 

the fully-certified pickup trucks. 

Despite these tailored provisions that, 

in relevant part, regulated only finalstage trucks built on chassis-cabs and 

excluded those built on cutaways and 

stripped chassis, NTEA petitioned the 

agency for exclusion of all multi-stage 

vehicles from FMVSS No. 216a. In its 

petition for reconsideration NTEA 

alleged that the upgraded FMVSS No. 

216a is not practicable for final-stage 

manufacturers. The end result of 

NTEA’s petition is for no regulation of 

its members. NTEA reaches this 

conclusion without addressing the 

safety of the occupants in a chassis cab, 

who, if they were in a comparable 

pickup truck, would have the benefits 

and protections of FMVSS No. 216a. 

NTEA offered as grounds for this 

position that the costs of compliance are 

too high, conformity statements in IVDs 

are too restrictive, and the text of 

FMVSS No. 216a does not include an 

alternative to testing or pass-through 

certification 33 by which a final-stage 

manufacturer can confirm conformity of 

a vehicle to the standard. NTEA 

concluded by adopting the language 

from a case involving stripped chassis 

vehicles where the vehicle 

manufacturers would have to design 

and assemble parts and the standard 

included a dynamic crash test—actually 

crashing the trucks into a wall—that its 

members are denied a chance to 

demonstrate compliance with FMVSS 

No. 216a.34

We disagree with NTEA’s request to 

exclude all multi-stage vehicles from 

FMVSS No. 216a. Such action would 

deprive occupants of multi-stage 

vehicles built on chassis-cabs of the 

regulatory safety protections of roof 

crush resistance that occupants of 

comparable pickup trucks have under 

FMVSS No. 216a. 

The assessment for whether a FMVSS 

is practicable depends, of course, on the 


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35 71 FR 28186. 

36Some manufacturers may use the term ‘‘pick-up 

box delete’’ instead of ‘‘chassis-cab’’ in marketing 

materials for those instances where the incomplete 

vehicle manufacturer completes a pickup truck, but 

‘‘deletes’’ the pickup box. These vehicles are sold as 

an incomplete vehicle. See Ford, 2010 Body 

Application Guide, available at https:// 

www.fleet.ford.com/truckbbas/topics/ 

bodyappguide.html (last accessed February 14, 

2010). 

vehicles and standard at issue. Here, we 

will focus on chassis-cabs—multi-stage 

trucks that arrive at the final-stage 

manufacturer as incomplete vehicles 

with an intact roof structure—since that 

is the type of vehicle NTEA discusses in 

its petition. FMVSS No. 216a is an 

upgrade of an existing regulation that 

was well understood, as distinguished 

from an entirely new regulation. Before 

FMVSS No. 216a was adopted, FMVSS 

No. 216 had covered roof crush in 

multi-stage vehicles up to and including 

6,000 pounds GVWR. NHTSA continues 

to believe that regulation of chassis-cabs 

under FMVSS No. 216a is practicable. 

NTEA has not justified its position that 

all multi-stage vehicles should be 

excluded from regulation under FMVSS 

No. 216a. 

B. NTEA’s Petition Is Unsupported by 

Evidence of an Actual Problem 

NHTSA views the matter before the 

final-stage manufacturer from the 

perspective of starting with an 

incomplete chassis-cab truck and 

completing it by adding a truck body. In 

so doing, given that FMVSS No. 216a is 

an upgraded rule, as distinguished from 

an entirely new rule, NHTSA may take 

into account fact that the roof crush 

regulation has been in effect for years 

for vehicles with a GVWR of 6,000 

pounds or under. 

NHTSA pointed out that final-stage 

manufacturers have been certifying to 

FMVSS No. 216 for years. NTEA does 

not deny this. Instead, NTEA’s 

comments say that most final-stage 

manufacturers took ‘‘undue’’ 

certification risk. NTEA goes on to say 

that ‘‘[t]hose manufacturers used their 

best judgment in certifying the vehicles 

they produced based on their 

experience and the information 

available to them.’’ But NTEA expressed 

concern that they had no way of 

determining whether such efforts would 

constitute reasonable care for purposes 

of the Vehicle Safety Act. 

NTEA has not cited one example of an 

enforcement case against a NTEA 

member based on improper 

certification. Nor has NTEA cited one 

business injury by an NTEA member 

related to certification to FMVSS No. 

216. There have not been any 

enforcement cases and there have been 

no recalls performed for 

noncompliances with FMVSS No. 216 

or 220 by any manufacturer, including 

final-stage manufacturers. NTEA’s 

inability to provide tangible information 

of actual injury has been long-running. 

In April 2010 and May 2006, NHTSA 

noted that NTEA had not identified any 

final-stage manufacturer that has been 

unable to certify a vehicle under the 

existing certification framework. 

Specific to the roof crush standard, in 

the agency’s Further Response, NHTSA 

pointed out that not one final-stage 

manufacturer identified a problem 

certifying a vehicle built on a 2006 

GMT–355 chassis-cab. In its May 2010 

petition, NTEA does not provide any 

examples of how a final-stage 

manufacturer has actually been 

prevented from certifying its vehicle. 

More generally, in the May 2006 multistage vehicle rulemaking, in response to 

NTEA’s petition we stated that we 

would address issues of impracticability 

in the context of an individual FMVSS 

or on a petition for temporary 

exemption, indicating that we sought 

information for each rulemaking as to 

how the rule was impractical.35 NTEA 

did not provide this information in the 

FMVSS No. 216a rulemaking, although 

NTEA does provide a textual objection 

to the GMT–355 IVD (2006) provisions 

on FMVSS No 216a. In NTEA’s view 

NHTSA’s analysis of GM’s IVDs in the 

agency’s Further Response ignores the 

actual language of GM’s conformity 

statement. 

NTEA is effectively asking to make 

vehicles based on chassis-cabs less safe 

than pickup trucks because of a 

hypothetical argument. Without 

evidence in the record of final-stage 

manufacturers legitimately not being 

able to certify these vehicles to FMVSS 

No. 216 or incurring significant and 

very costly technical problems in 

certifying vehicles, we are loathe to roll 

back these important safety benefits. 

NHTSA does not believe FMVSS No. 

216a is impracticable as applied to finalstage manufacturers. In fact, the agency 

believes that it has removed from the 

proposed rule provisions that could 

make it impracticable as applied to 

final-stage manufacturers. 

C. In Extending FMVSS No. 216 to 

Heavier Vehicles, NHTSA Only 

Included Those Multi-Stage Vehicles for 

Which the Incomplete Vehicle 

Manufacturer Provides an Intact Roof 

In extending FMVSS No. 216 to 

heavier vehicles, we specifically 

included the types of multi-stage 

vehicles as to which the standard is 

practicable and excluded the types of 

multi-stage vehicles as to which the 

standard could have been impracticable, 

consistent with the 1990 NTEA 

decision. The upgraded standard 

applies to chassis-cabs 36 and certain 

vans, vehicles that are equipped by the 

incomplete vehicle manufacturer with a 

completed roof and structure. 

Compliance and certification will not be 

difficult for final-stage manufacturers of 

these included vehicles, as the finalstage manufacturer will receive these 

incomplete vehicles from the 

incomplete vehicle manufacturer with a 

compliant, intact roof. Given that the 

final-stage manufacturing done on the 

included vehicles would not affect the 

vehicle’s roof strength, final-stage 

manufacturers will not need to do more 

than ensure that their modifications do 

not take the vehicle out of compliance 

with FMVSS No. 216a. On the other 

hand, we excluded those trucks for 

which the final-stage manufacturer 

would design and build the vehicle’s 

roof or its supporting structure. 

More particularly, as described above, 

a chassis-cab from an incomplete 

vehicle manufacturer is essentially a 

pickup truck without the cargo bed. The 

pickup truck and chassis-cab employ a 

body-on-frame structure. In a body-onframe vehicle, as used here, the frame 

includes the chassis structure, power 

train, and suspension, steering and 

braking systems. The cab and body are 

mounted to the frame. When the 

chassis-cab leaves the incomplete 

vehicle manufacturer, it will have a 

completed cab, and will have two steel 

frame rails running longitudinally 

behind the cab. Final-stage 

manufacturers typically add a body onto 

the frame rails behind the cab; the body 

stores work-related materials or cargo. 

As we explained in our Further 

Response, an illustrative example of a 

chassis-cab vehicle is a delivery truck. 

The final-stage manufacturer adds a 

cargo box to the back of the incomplete 

vehicle, and a door is provided at the 

rear of the cargo box for access to its 

contents. 

In the next several years, Ford, GM, 

Chrysler and other manufacturers of 

incomplete vehicles with a GVWR of 

10,000 pounds or less will be required 

to upgrade their pickup trucks, as 

necessary, to meet the upgraded FMVSS 

No. 216a published in 2009. These 

pickup trucks will have an intact roof 

that will meet FMVSS No. 216a. 

NHTSA’s approach is confirmed by 

its exclusion from FMVSS No. 216a of 

multi-stage trucks not built on a chassiscab. Typically, these excluded vehicles 

would be built on cutaways or on a 

stripped chassis. In a cutaway chassis, 

the back wall of the occupant 


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37Ford publishes a ‘‘Body Application Guide’’ on 

its Web site that provides a description of the types 

of incomplete vehicles that it sells. See Ford, 2010 

Body Application Guide, available at https:// 

www.fleet.ford.com/truckbbas/topics/ 

bodyappguide.html (last accessed February 14, 

2010). This document assists in ‘‘matching the truck 

customer’s length and load carrying requirements 

with the appropriate’’ Ford incomplete vehicle. 

According to this document, FMVSS No. 216a 

would likely apply to Ford’s F–250 truck and 

certain F–350 trucks with a pick-up box delete 

option, as these trucks have a GVWR of 10,000 

pounds or less. As mentioned previously, Ford does 

not market these vehicles as chassis-cabs; instead, 

Ford uses the term ‘‘pick-up box delete option’’ for 

these incomplete vehicles. FMVSS No. 216a would 

not apply to the majority of F–350, and all F–450, 

F–550, F–650, and F–750 vehicles. Likewise, it 

would not apply to Ford’s cutaways or stripped 

chassis vehicles. Apparent from this document is 

the limited number of incomplete vehicles to which 

FMVSS No. 216a likely will apply. 

38NTEA comments, NHTSA–2005–22143–0108, 

p.1. 

39NTEA has annual Work Truck Shows that are 

large events that NTEA bills as North America’s 

largest vocational truck event. In 2011 and 2012, it 

will be in the Indiana Convention Center in 

Indianapolis. As explained by NTEA, the Work 

Truck Show brings together thousands of industry 

professionals including vocational, governmental 

and private truck fleet managers and truck buyers 

from the range of weight markets, as well as 

hundreds of truck and equipment manufacturers, 

distributors and dealers. According to promotional 

materials, the event gives attendees the opportunity 

to check out the latest full-size work trucks, 

vocational equipment, and vehicle components. It 

also features industry-specific technical and 

business management training sessions. The 

Association represents nearly 1,600 companies that 

manufacture, distribute, install, sell and repair 

commercial trucks, truck bodies, truck equipment, 

trailers and accessories. See http://www.ntea.com/ 

worktruckshow/about/ (last accessed February 14, 

2011). 

40See Ford, 2010 Body Application Guide, 

available at https://www.fleet.ford.com/truckbbas/ 

topics/bodyappguide.html (last accessed February 

14, 2010). 

41Brochure from the Knapheide Manufacturing 

Company, The All New KSS, available at http:// 

www.knapheide.com/literature/gmc_kss.pdf (last 

accessed February 14, 2011). 

42Brochure from the Knapheide Manufacturing 

Company, KSS Body Option, available at http:// 

www.knapheide.com/pdfpages/optionfitpages/ 

kssoptions/KSOPG18.pdf (last accessed February 

14, 2011). 

43Brochure from the Knapheide Manufacturing 

Company, Service Body Option, available at http:// 

www.knapheide.com/pdfpages/optionfitpages/ 

servicebodyoptions/PG47.pdf (last accessed on 

February 14, 2011). 

compartment is missing, or cutaway, i.e. 

there is no wall behind the front seats. 

A stripped chassis, which is less 

complete than a cutaway, would 

ordinarily not have a roof structure at 

all. These types of multi-stage vehicles 

were addressed in the 1990 NTEA case. 

Because these trucks would arrive 

without an intact roof, there could be 

some of the problems described in the 

1990 NTEA case. 

Also excluded from FMVSS No. 216a 

are vehicles with a GVWR greater than 

10,000 pounds. The vast majority of the 

multi-stage trucks have a GVWR in 

excess of 10,000 pounds,37 as NTEA 

noted. 

D. The Typical Modifications Made by 

Final-Stage Manufacturers Do Not 

Affect Roof Strength 

The addition by a final-stage 

manufacturer of a body such as a cargo 

box behind the cab, where the pickup 

bed is located on a pickup truck, would 

not affect the strength of the roof. There 

is therefore no reason to expect that the 

final-stage manufacturer will have 

difficulty complying with FMVSS No. 

216a in making this or similar kinds of 

additions/modifications, e.g., attaching 

various types of cargo or equipmentcarrying compartments to the truck 

frame behind the cab. 

NTEA describes itself as ‘‘the nation’s 

only trade association representing 

distributors and manufacturers of multistage produced, work-related trucks, 

truck bodies, and equipment,’’ and states 

that it has over 1,600 member 

companies.38 While NTEA members are 

undoubtedly familiar with incomplete 

vehicles and bodies and equipment that 

are added to them,39 NTEA did not 

provide any real world examples 

demonstrating that the modifications 

made by final-stage manufacturers will 

affect the strength of a roof of a chassiscab. Instead, it stated that the 

attachment of a truck body onto the 

frame presents pass-through 

certification problems with GM’s IVD 

for a Model Year 2006 GMT–355 

chassis, which has a GVWR of 6,000 

pounds or less. These concerns were 

hypothetical and not supported by the 

NTEA members’ real world experience 

of completing and certifying vehicles. 

The market for incomplete vehicles 

with a GVWR of 6,000 pounds or less 

is limited. GM offered the incomplete 

version of the small pickup truck built 

on the GMT–355 chassis, known as the 

Canyon or Colorado. Other vehicle 

manufacturers did not offer incomplete 

vehicles in this category. Some light 

duty truck bodies from equipment 

suppliers have been available for the 

small GM incomplete vehicle. 

We expect that incomplete vehicles 

within the newly regulated weight class 

from over 6,000 pounds to 10,000 

pounds GVWR will be available. For 

final-stage manufacturers using chassiscabs with a GVWR of 10,000 pounds or 

less, the additions to complete the 

vehicles appear to be routine and 

involve the attachment of a truck body 

manufactured by an equipment 

manufacturer onto a chassis-cab 

manufactured by an incomplete vehicle 

manufacturer. 

In its Body Application Guide, Ford 

lists the typical applications for multi 

stage vehicles built on chassis-cabs.40

For chassis-cabs with a GVWR of 10,000 

pounds or less, the typical installations 

appear to be for service providers, 

including contractors, caterers, painters, 

and electricians, and typically use a 

‘‘service body.’’ These service bodies are 

typically not fabricated from scratch; 

instead, they are ordered from an 

equipment manufacturer, such as an 

NTEA equipment supplier member, and 

the final-stage manufacturer would 

install it on the chassis-cab. The service 

bodies can be as simple as a platform 

bed, to an electrician’s truck that 

contains ‘‘toolboxes’’ and shelves on the 

side. 

As an example of a service body, the 

KSS, is sold by the Knapheide 

Manufacturing Company (‘‘Knapheide’’). 

The KSS is a service body that looks 

similar to a pickup bed, except that the 

sides above the fender wells contain 

cabinets.41 A smaller truck bed remains 

in between the cabinets. The KSS is a 

box that attaches to the frame behind 

the cab, and is not incorporated into the 

cab itself. As such, the KSS would not 

affect the vehicle’s roof strength in a 

FMVSS No. 216a test. 

The Knapheide KSS bodies can be 

customized further from the base truck 

body. These customizations do not 

affect the roof or its support structure. 

This is true even for ladder racks. 

According to the design drawings, the 

ladder racks mount to the KSS body, 

and hang over the vehicle’s roof. The 

ladder racks do not attach to the chassiscab itself. Instead, the racks remain 

suspended over the top of the cab.42

Furthermore, in a test by NHTSA under 

FMVSS No. 216a, the ladder racks 

would be removed before testing the 

vehicle’s roof strength. 

Knapheide also advertises its 

installation methods, and sells a ‘‘Spring 

Mounting Kit’’ that ‘‘provides flexible 

attachment of the front of the body to 

the chassis and minimizes the risk of 

torsional fatigue cracking.’’ 43 The spring 

mounting kit’s hardware ‘‘utilizes the 

existing holes in the chassis and body 

end rail.’’ For certain Ford vehicles, 

which, according to this document, do 

not have holes on the top of the frame, 

adapter plates are U-bolted to the top of 

the frame to facilitate spring mounting. 

This document indicates that there are 

mounting options that do not require 

final-stage manufacturers to alter a 

vehicle’s frame rail. 

Other equipment manufacturers’ 

service bodies indicate an easy 

installation. Hillsboro Industries, Inc. 


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44See generally, Brochure from Hillsboro 

Industries, Inc., Aluminum Truck beds, available at 

http://hillsboroindustries.com/Products/Brochures/ 

AluminumTruckBedBrochure.pdf (last accessed 

February 14, 2011). 

45Hillsboro Industries, Inc., Aluminum Light 

Truck Bed Owner’s Manual, available at http:// 

www.hillsboroindustries.com/Support/ 

AluminumTruckBedsManual.pdf (last accessed 

February 14, 2011). 

46RKI, Inc., Service Body Specification L, S and 

T 40’’ & 42’’ CA, available at http://www.rki-us.com/ 

images/uploads/ 

Service%20Body%20Specifications.pdf (last 

accessed February 14, 2011). 

47 ‘‘GM Upfitter—Best Practices Manual,’’ http:// 

www.gmupfitter.com/best_practice_manuals.html 

(last accessed February 14, 2011). 

48 GM, GM Upfitter—Chassis Best Practices,’’ 

2010, available at http://www.gmupfitter.com/ 

publicat/REV_FF–3_BstPrac_Chss_Indx_0810.pdf 

(last accessed February 14, 2011); see also GM, GM 

Upfitter—Chassis Best Practices, 2009, NHTSA– 

2009–0093–0020, pp. 87–96. 

49 GM, GM Upfitter—Chassis Best Practices,’’ 

2010, at 23. 

50 Id. at 23. 

51 Id. at 24. 

52NTEA Petition for Reconsideration, Docket No. 

NHTSA–2009–0093–0022, page 13, fn. 18. 

53 GM, GM Upfitter—Chassis Best Practices,’’ 

2010, at p. 21. 

sells an aluminum light truck bed.44

This type of product would typically be 

installed on a truck under 10,000 

pounds GVWR, and the completed 

vehicle would therefore need to comply 

with the FMVSS No. 216a requirements. 

According to the owner’s manual, the 

aluminum truck bed arrives equipped 

with bed sills that attach to the chassiscab’s frame rail in three places. The bed 

sills can be bolted or welded to the 

chassis-cab frame. The front of the bed 

sills must be at least 41⁄8′′ inches from 

the vehicle’s cab, and, therefore, do not 

attach to the vehicle’s chassis-cab. After 

the sills are attached to the frame, the 

aluminum light truck bed is then 

mounted with bolts on top of the bed 

sills. In summary, this truck body 

attaches sills to the vehicle’s frame in 

only three places, and the cab is not 

modified.45

Another manufacturer of service 

bodies, RKI, furnishes mounting kits 

standard with its service bodies.46

While RKI offers a large number of 

customizable options for its service 

bodies, the bodies all mount to a 12 

gauge metal treadplate that is installed 

on top of the vehicle’s frame and added 

steel cross members. Here, the service 

body does not mount directly to the 

frame itself, but to a treadplate attached 

on top of the frame. This approach 

standardizes the mounting to the 

treadplate and there would not be 

problematic modifications to the 

vehicle’s frame. 

As indicated by the above, the 

mounting of the body on a truck does 

not affect the strength of the roof. 

GM Upfitter’s Best Practices Manual 

‘‘provide[s] engineering 

recommendations and guidelines to 

assist the Special Vehicle Manufacturer 

(SVM) for all areas in the conversion 

process’’ (An upfitter is a final-stage 

manufacturer and SVMs are upfitters 

recognized by GM). According to GM, 

these guidelines ‘‘generally reflect 

industry recognized processes and 

procedures’’ that are intended to help 

the upfitter ‘‘maintain the safety, 

reliability, and integrity of the vehicle’s 

original design, as well as comply with 

any state, Federal, or industry 

requirement.’’ 47

GM Upfitter’s Best Practices Manual 

provides eight pages on the preferred 

way to mount a box to a truck frame.48

These recommendations are detailed 

and include illustrated diagrams. In fact, 

GM Upfitter’s Best Practices Manual 

states that ‘‘NTEA advises that proper 

body mounting practices and materials 

are necessary in order to avoid 

damaging the frame side rail and 

body.’’ 49 The recommended approaches 

include: (1) U-Bolt/Threaded Rod and 

End Plate Technique to secure the truck 

body’s longitudinal mounting rails to 

the chassis frame; (2) Brackets and 

Pinch Bolts Techniques where 

fabricated and formed brackets of angles 

are welded and/or bolted to the 

longitudinal mounting rails of the body 

and bolted to the chassis frame; (3) the 

Rigid Mounting Technique where the 

service/utility body is attached directly 

to existing holes, such as the OEM 

pickup box attachment points; and (4) 

the Shear Plate Approach, where a shear 

plate and bolts are used to attach the 

non-rigid body to the frame rails.50 The 

GM Upfitters’ guide provides direction 

on the various types of bodies and the 

rigidity of the selected body types.51

In the Further Response, we noted 

that these four mounting types in the 

GM Upfitter’s Best Practices Manual 

were approved by NTEA, all four 

mounting techniques mount to the 

frame and are permissible under the GM 

IVD for the GMT–355, and none of the 

mounting methods involve attachments 

to the roof-supporting members, 

including the A- and B-pillars (the Apillar is the roof support just behind the 

windshield; the B-pillar is the roof 

support behind the front door). In a 

footnote response, NTEA stated that 

these four mounting techniques are draft 

recommendations and only address 

some of ‘‘hundreds of vehicle 

configurations that are built by finalstage manufacturers.’’ 52 However, NTEA 

does not contradict that these four 

mounting techniques do not involve 

attachments to the A- and B-pillar, nor 

do they address NHTSA’s contention 

that they are permissible under the GM 

IVD. 

Similarly, GM’s Upfitter Guide states 

that final-stage manufacturers should 

design their body-mounting schemes to 

comply with either the GM Guidelines 

in the GM Body Builders Manual, NTEA 

Industry Standards, and Federal 

Government Mil-Std Specifications.53

Noticeably absent from NTEA’s petition 

is any reference to the NTEA Industry 

Standards. 

E. Final-Stage Truck Manufacturers 

Have Opportunities That Permit Them 

To Certify Their Vehicles to FMVSS No. 

216a Without Testing 

Consistent with its longstanding 

position on NHTSA’s safety standards 

that include tests, NTEA argued that 

FMVSS No. 216a is impracticable for its 

members. In its view, pass-through 

certification is not available. Therefore, 

its members are unable to certify their 

vehicles to FMVSS No. 216a without 

‘‘undue’’ certification risk, since they 

cannot afford to conduct expensive 

vehicle tests to demonstrate compliance 

for small production runs. 

1. Pass-Through Certification Is 

Available on the GMT–355 IVD 

The opening and central thrust of 

NTEA’s petition is its disagreement with 

NHTSA’s assessment that pass-through 

certification is available for vehicles 

built on chassis-cabs. In its petition, 

NTEA focused on the wording of the 

General Motors GMT–355 (small pickup 

truck) 2006 chassis IVD provision for 

FMVSS No. 216. NTEA stated that the 

simple mounting of a box to a chassiscab’s frame rail invalidates GM’s IVD for 

FMVSS No. 216 because it affects the 

properties of the frame rail, and 

prevents final-stage manufacturers from 

utilizing pass-through certifications. 

NTEA argued that, in general, an IVDs’ 

restrictiveness prevents pass-through 

opportunities for final-stage 

manufacturers, forcing final-stage 

manufacturers to conduct expensive 

testing or cost-prohibitive computer 

simulations. This alleged burden goes 

beyond the real world burden in which, 

as NTEA recognizes, final-stage 

manufacturers have used their best 

judgment in certifying the vehicles they 

produced based on their experience and 

the information available to them, albeit 

with what NTEA refers to as 

certification risk. 

In our Further Response, NHTSA 

explained that it reviewed the IVDs 

identified by NTEA as being too 

restrictive and found them to be 


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54As we noted in our Further Response, NTEA 

stated that GM included an identical conformity 

statement for FMVSS No. 216 in its IVD for the GM 

2006 C/K full size incomplete truck, although, to 

NTEA’s knowledge, GM did not produce a C/K 

chassis rated 6,000 pounds GVWR or below. 

FMVSS No. 216 would have applied to the vehicle 

only if it were rated with a GVWR of 6,000 pounds 

or less. 

55 GM’s May 13, 2005 comment on NTEA’s 

petition for reconsideration of the multi-stage 

certification rule, Docket No. NHTSA–99–5673– 

0056. 

56 In the Further Response, NHTSA stated in a 

footnote that alterers removing a pickup truck bed 

and replacing it with a different body could affect 

the unloaded vehicle weight of the vehicle. In its 

petition, NTEA stated that the footnote suggests that 

body weight (and presumably body weight 

distribution), by itself, affects testing and 

compliance with FMVSS No. 216. The unloaded 

vehicle weight is a factor in the calculation of the 

SWR. See 49 CFR 571.216a S5.2(b). Incomplete 

vehicle manufacturers’ IVDs contain a maximum 

unloaded vehicle weight that must not be exceeded. 

See Ford’s Incomplete Vehicle Manual, p. 5, infra 

note 58. In this rulemaking, vehicle manufacturers 

noted that to minimize their manufacturing tooling 

costs, they would need to design their roof strength 

performance to the worst case weight for a given 

model line. See 75 FR 17605, 17608 (April 7, 2010). 

In view of this design approach, we do not 

anticipate an issue with unloaded vehicle weight 

and compliance with FMVSS No. 216a. Of course, 

alterers should consider the effect of their 

additions. Alterers should consult with the 

manufacturer providing the complete vehicle that is 

altered. 

57Chrysler Group LLC, Incomplete Vehicle 

Document 2011 Model Year, April 5, 2010, 

available at http://www.dodge.com/bodybuilder/ 

2011/docs/cc/dddpivd.pdf (last accessed on 

February 14, 2011). 

workable. NHTSA reviewed the 

statements in the provided IVDs as to 

FMVSS No. 216. Specifically, the 

agency reviewed the Type 1 conformity 

statements for the GM 2006 GMT–355 

incomplete truck and the GM 2006 C/K 

full size incomplete truck.54 The agency 

stated that pass-through certification is 

available for the GMT–355, as the 

‘‘conformity statement in the IVD is 

written to allow modifications to the 

incomplete vehicle, but not to the 

components that affect the vehicle’s roof 

strength.’’ The agency further noted that 

pass-through certification would not be 

provided if vehicle components related 

to roof strength are modified. As we 

explained, NTEA had not provided any 

examples of modification necessary to 

the roof structure or the A- and Bpillars. As described previously, the Apillar is the roof support just behind the 

windshield; the B-pillar is the roof 

support behind the front door. 

NTEA read the 2006 and 2010 IVD as 

preventing the simple addition of an 

aftermarket body, because, it argues 

GM’s conformity statement is 

invalidated by alterations that affects 

the function, physical, chemical, or 

mechanical properties of any 

component, assembly or system, 

‘‘including, but not limited to’’ various 

systems. NTEA argued that this goes 

beyond the chassis-cab and as a result, 

there is no difference between a Type 1 

and a Type 3 statement. 

NTEA stated that NHTSA’s 

interpretation, above, is not on the 

spectrum of plausibility and later refers 

to GM’s provision, in the alternative, as 

‘‘hopelessly ambiguous.’’ However, as 

GM noted in its comments to NTEA’s 

Petition for Reconsideration to the 

multi-stage vehicle certification rule, 

NTEA’s claim that any body or 

equipment mounting invalidates the 

IVD is overreaching.55 NTEA made 

almost identical claims about GM’s IVDs 

in that rulemaking that they make in 

this rulemaking. 

As we have stated previously, passthrough certification is and we believe 

will be available for chassis-cabs. We 

believe that pass-through certification 

on the 2006 GMT–355 IVD is available 

even using NTEA’s limited reading of 

that IVD. As discussed above, there are 

body mounting techniques that do not 

‘‘affect’’ the properties of the frame rail. 

For example, in the Rigid Mounting 

Technique and in the Shear Plate 

Approach, it is recommended by GM 

and NTEA’s Subcommittee on Body 

Mounting Practices that the final-stage 

manufacturer utilizes existing holes on 

the chassis-cab’s frame to attach an 

aftermarket truck body. A truck body, 

which is comparable to the original 

pickup truck box in that it is attached 

to the frame behind the cab, attached 

with bolts to existing holes in the 

chassis-cab’s frame would not ‘‘affect’’ 

the vehicle’s properties. No additions 

are made to chassis-cab’s roof, its 

support pillars, or other supporting 

structures. No alterations are made to 

the vehicle’s frame rail. 

Furthermore, the concern is certifying 

compliance with FMVSS No. 216a. 

Repeating what we stated before, we 

added a test specification into the final 

rule so that the roof structure is the only 

part of the vehicle that is tested. Under 

the test procedure for roof strength in 

FMVSS No. 216a, the chassis-cab is 

supported by a horizontal surface under 

the cab along the sills, and not the 

vehicle’s frame. Only the vehicle’s cab 

is compressed into that structure. The 

frame generally and other parts of the 

vehicle are not tested in this test. 

Modifications to the frame rail in 

attaching a body to the incomplete 

vehicle would not be tested or affect the 

FMVSS No. 216a test. Assuming that the 

FMVSS No. 216a test applied, a finalstage manufacturer that installed a 

service body onto a GMT–355 utilizing 

existing holes could certify based on 

GM’s Type 1 statement. We believe this 

would qualify as pass-through,56 and a 

final-stage manufacturer could certify 

without the need for testing. 

We note that GM uses language 

regarding no alterations being made 

which affect the properties of ‘‘the 

components, assemblies or systems 

including but not limited to those listed 

below’’ elsewhere, including in its 

certification for FMVSS No. 118, PowerOperated Window, Partition, and RoofPanel Systems, 49 CFR 571.118. This is 

instructive. We do not view that IVD 

language for power windows as 

referring to components, assemblies or 

systems unless they are related to the 

standard for which the certification 

applies, namely power window system 

performance. Similarly, we view the 

language regarding roof crush as 

pertaining to components, assemblies, 

or systems affecting roof crush. 

2. Certification Alternatives Are 

Available to Final-Stage Manufacturers 

NTEA’s argument concerning 

certification relies on a self-generated 

and false dichotomy about certification 

opportunities, either: (1) Pass-through 

certification or (2) testing in accordance 

with the test in the FMVSS. As has been 

made clear by the agency in the multistage certification rulemaking and this 

FMVSS No. 216a rulemaking, and 

recognized by others, final-stage 

manufacturers may certify on other 

bases. With respect to this rule, NTEA 

ignores the obvious alternatives 

available to final-stage manufacturers. 

Before turning to the specifics, we 

recognize that FMVSS No. 216a does 

not apply until September 1, 2016, 

which is five-and-a-half years away. We 

do not know with certainty what 

statements the IVDs will contain, but we 

can look at current IVDs and make 

reasonable assumptions. 

First, the GM IVD is not the only 

relevant IVD, as other manufacturers 

sell incomplete vehicles. The IVD for 

Model Year 2011 Chrysler incomplete 

vehicles, dated April 5, 2010, contains 

the following statement: ‘‘[t]his vehicle, 

when completed, will conform to 

[F]MVSS 216—Roof Crush Resistance if 

no alterations are made to the roof panel 

or its support structure, including the 

roof rails, front header, roof pillars, the 

door window frames, the windshield 

and the windshield mounting 

system.’’ 57 This provides an opportunity 

for final-stage manufacturers to achieve 

pass-through certification so long as 

they do not alter the roof or its 

supporting structure. 

Ford does not have a statement in its 

IVD on FMVSS No. 216, which only 


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58Ford, 2008 Super Duty F–Series Incomplete 

Vehicle Manual, March, 2007, p. 15, available at 

https://www.fleet.ford.com/truckbbas/non-html/ 

2008/08ivm_%20fseriesmar.pdf (last accessed on 

February 14, 2011); Ford, 2011 Super Duty F–Series 

Incomplete Vehicle Manual, March 2010, available 

at https://www.fleet.ford.com/truckbbas/topics/ 

2011/2011_SD-F_IVM_BC34-19A268-AB.pdf (last 

accessed on February 14, 2011). 

59Chrysler Group, LLC, Incomplete Vehicle 

Document 2011 Model Year, page 2. 

60 Knapheide Manufacturing Company, Standard 

Service Bodies Specifications, available at http:// 

www.knapheide.com/pdfpages/pricepages/ 

servicebody/UBPP2-3.pdf (last accessed on 

February 14, 2011). 

61 GM Upfitter Body Builder manuals, http:// 

www.gmupfitter.com/body_builder_manuals.html 

(last accessed on February 14, 2011). 

applies to vehicles with a GVWR under 

6,000 pounds or less until September 1, 

2016. However, the general language 

used throughout Ford’s IVD does not 

appear to be restrictive. For example, for 

FMVSS No. 118, Power-Operated 

Window, Partition, and Roof-Panel 

Systems, Ford stated that the completed 

vehicle will comply to this standard if 

the ‘‘power operated windows, motors, 

wiring, and key and switch activation 

systems, where provided by Ford Motor 

Company, are not removed, relocated, 

altered or modified in any way.’’ 58

Similarly, Chrysler’s IVD statement on 

FMVSS No. 118 stated that its 

incomplete vehicle, when completed, 

will conform to FMVSS No. 118 if ‘‘no 

alterations are made to the power 

window and related electrical 

systems.’’ 59 Based on these statements, 

and others, it does not appear that these 

IVDs are ‘‘unduly restrictive’’ for finalstage manufacturers. 

As we have explained, we do not read 

GM’s IVD as restrictively as NTEA reads 

it. However, if final-stage manufacturers 

feel unduly restricted by the language in 

GM’s IVD, a different manufacturer’s 

chassis-cab could be used. 

Second, in certain instances, finalstage manufacturers may be able to use 

information obtained from equipment 

manufacturers in making certifications. 

We note, for example, that Knapheide 

advertises that its KC series bodies for 

conventional cab chassis, which are 

designed for specific Ford, Dodge, and 

GM chassis, have a mounting kit, 

Knapheide Quick Mount brackets and 

hardware, ‘‘designed to comply with 

FMVSS–301.’’ 60

The final-stage manufacturer, rather 

than the equipment manufacturer, will 

be certifying compliance of a vehicle 

with applicable FMVSS. Thus, as part of 

exercising reasonable care in 

considering information provided by an 

equipment manufacturer, the final-stage 

manufacturer needs to consider whether 

it is reasonable to rely on the 

information. For example, the finalstage manufacturer can ask the 

equipment manufacturer about the basis 

of any representation it makes related to 

compliance with FMVSS. It can also 

consider whether there is reason to 

consider the equipment company a 

reliable company and the amount of 

experience and expertise it may have 

related to the manufacture of vehicles 

that meet applicable FMVSSs. 

Third, an IVD provides the basis on 

which a final-stage manufacturer could 

certify, without literal pass-through 

certification. This statement was made 

in our Further Response, and is not 

addressed in NTEA’s petition for 

reconsideration. If an IVD is read as not 

providing actual pass-through, it will 

still provide a basis for the final-stage 

manufacturer to certify its vehicles as 

complying with FMVSS No. 216a. Using 

the example of the GMT–355 IVD, the 

IVD states that the incomplete vehicle 

conforms to FMVSS No. 216 unless 

certain kinds of alterations are made. 

Thus, according to GM, the GMT–355, 

albeit an incomplete vehicle, complies 

with FMVSS No. 216 at the time it 

leaves the incomplete vehicle 

manufacturer. 

For example, if a final-stage 

manufacturer installs a Knapheide 

service body on the back of a GM C/K 

chassis-cab by drilling holes into the 

frame and installing fabricated brackets, 

the final-stage manufacturer could still 

certify without conducting testing. The 

final-stage manufacturer can use the 

IVD, coupled with its knowledge that 

the work it does in mounting a truck 

body to the rear of the incomplete 

vehicle does not modify the roof 

supports (A- or B-pillars) or roof itself, 

to come to the conclusion that it will 

not take the vehicle out of compliance 

with FMVSS No. 216a. It could rely on 

its own technical judgment, 

calculations, information obtained by 

calling the manufacturer, reviewing 

body-building manuals, or looking at a 

host of other resources available. 

Regardless, it knows it was given an 

incomplete vehicle with a compliant 

roof, and will only need to certify based 

on that fact and its own work. This is 

not a complex or difficult task, as the 

addition of a truck body such as bins or 

a box attached directly to the frame 

would not affect roof strength. 

Fourth, NHTSA makes available its 

data and reports from its testing of 

various makes and models of vehicles to 

various FMVSSs. NHTSA’s Office of 

Vehicle Safety Compliance tests 

vehicles, including pickup trucks. 

Before testing, NHTSA commonly asks 

a manufacturer for its certification data. 

For those safety standards that include 

tests, the agency will perform a test as 

specified in the FMVSS. The results of 

these tests are publicly available. In the 

past, these tests included FMVSS No. 

216. NHTSA’s testing under FMVSS No. 

216a is currently planned to begin later 

this year, as vehicles are certified to this 

standard. See 49 CFR 571.216a S8. If 

NHTSA tests a pickup truck and a finalstage manufacturer is considering using 

it as a chassis-cab, the final stagemanufacturer can consult the testing 

results and underlying data. 

Fifth, many resources exist to assist 

the final-stage manufacturers in 

certification. We stated this fact in our 

May 2006 response and in the April 

2010 Further Response. NTEA does not 

address the prevalence of these 

resources. These resources, most of 

which are detailed manuals and 

instructions from the incomplete 

vehicle manufacturer, are relevant both 

to situations where there is pass-through 

certification and also where a final-stage 

manufacturer may base its certification 

on an IVD coupled with its evaluation. 

As to pass-through, we note that in 

some instances, the body builder 

manuals may be incorporated into the 

IVD. NHTSA’s multi-stage regulation, 49 

CFR 568.4(9)(b), contains the following 

statement: ‘‘[t]o the extent the IVD 

expressly incorporates by reference 

body builder or other design and 

engineering guidance (Reference 

Material), the incomplete vehicle 

manufacturer shall make such Reference 

Material readily available to subsequent 

manufacturers. Reference Materials 

incorporated by reference in the IVD 

shall be deemed to be part of the IVD.’’ 

The GM Upfitter Web site includes 

the statement that ‘‘The Body Builders 

Manual contains information that may 

be used in addition to the Incomplete 

Vehicle Document (IVD) for any 

manufacturer making alterations to a 

GM complete/incomplete vehicle. No 

alteration should be made to the 

incomplete vehicle which either 

directly or indirectly results in any 

component, assembly or system being in 

nonconformance with any Federal 

Motor Vehicle Safety Standard or 

Emission Regulation.’’ 61

GM’s IVD (Attachment A of NTEA’s 

petition) states, ‘‘[i]f supplemental 

technical information is required to 

support this document, go to the body 

builder Web site located at http:// 

www.gmupfitter.com or contact the 

Upfitter Integration Hotline at 1–800– 

875–4742.’’ 

Ford’s Incomplete Vehicle Manual for 

the 2010 Super Duty F-Series contains 

the following statement: ‘‘[t]hroughout 

this manual you will find references to 

information found in the Ford Truck 


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62Ford, 2011 Super Duty F-Series Incomplete 

Vehicle Manual, March 2010, p.35, supra note 58. 

63National Truck Equipment Association, 

Certification Guide, Appendix 5l (2007). 

64NTEA does state in a footnote in its petition 

that its members ‘‘report that incomplete vehicle 

manufacturers refrain from providing any such 

guidance on certification issues.’’ NTEA Petition for 

Reconsideration, Docket No. NHTSA–2009–0093– 

022, p. 6, fn 10. 

65NTEA’s petition for reconsideration of FMVSS 

No. 216a is not appropriate mechanism to address 

multi-stage certification issues, such as requesting 

a mechanism to challenge conformity statements. 

These issues were resolved in the multi-stage 

certification rulemaking in 2006. 

Body Builders Layout Book. Additional 

Design Recommendations and 

specifications are also provided to assist 

subsequent stage manufacturers in 

completing chassis-cab and incomplete 

vehicles. The Ford Truck Body Builders 

Layout Book can be accessed via the 

Web at http://www.fleet.ford.com/ 

truckbbas under the ‘‘Publications’’ tab; 

a CD–ROM copy may be ordered under 

the same tab.’’ 62

These resources can help the finalstage manufacturer in determining 

whether a vehicle complies with a 

certain standard. These resources, 

whether they are printed instructions, or 

a telephone call to the incomplete 

vehicle manufacturer, may provide the 

basis of the judgment needed to certify. 

F. FMVSS No. 216a Does Not Place 

‘‘Undue’’ Certification Risk on FinalStage Manufacturers 

Despite the limited assessment 

required of a final-stage manufacturer in 

certifying a completed chassis-cab 

vehicle to FMVSS No. 216a with the 

options described above, and the fact 

that multi-stage vehicles have been 

certified to FMVSS No. 216 for many 

years, NTEA argued that the selfcertification scheme enacted by 

Congress forces its members to 

undertake ‘‘undue’’ certification risk. 

While NTEA acknowledged that multistage vehicles have been and are being 

built and certified to FMVSS No. 216, 

NTEA presented the issues as whether 

NHTSA’s regulations ‘‘can permissibly 

allocate to final-stage manufacturers full 

legal responsibility for compliance with 

a safety standard when those 

manufacturers have no reasonable 

means of demonstrating conformity to 

that standard.’’ Elsewhere in its petition, 

NTEA stated that it ‘‘has never suggested 

that incomplete vehicle manufacturers 

take all certification responsibility for 

multi-stage vehicles.’’ As we understand 

these two statements, even though finalstage manufacturers are selling and 

certifying vehicles, FMVSS No. 216a is 

impractical because it forces final-stage 

manufacturers to take legal 

responsibility under the Vehicle Safety 

Act for their work. NTEA’s solution is 

to have single-stage manufacturers 

certify those vehicles as being compliant 

with FMVSS No. 216a, but exclude 

final-stage manufacturers from 

certification. 

First, in general, final-stage 

manufacturers do not have full legal 

responsibility—each manufacturer in 

the manufacturing chain is responsible 

for affixing its own certification label. 

See 49 CFR 567.4(a) and 567.5. As 

NTEA noted in its Vehicle Certification 

Guide, final-stage manufacturers 

assumed full legal responsibility prior to 

the 2005 amendments to the 

certification rule, but now ‘‘each 

company in the manufacturing chain 

will be legally responsible for its own 

work.’’ 63 As we have described, for 

FMVSS No. 216a, the incomplete 

vehicle manufacturer will deliver to the 

final-stage manufacturer a chassis-cab 

with a FMVSS No. 216a compliant, 

intact roof structure. 

Second, although NTEA stated that 

unreasonably restrictive conformity 

statements put final-stage manufacturers 

in the position of either taking ‘‘undue’’ 

risk of certification or exiting the 

business, we note that NTEA has not 

provided any evidence of a single finalstage manufacturer forced to ‘‘exit the 

business’’ or harmed by the ‘‘undue’’ 

certification risk.64

Third, NTEA generally believes that 

its members do not have the ‘‘reasonable 

means’’ to ‘‘demonstrate conformity’’ 

with any safety standard that includes 

tests. Therefore, NTEA requested that 

the agency identify specific steps that 

can be taken by a final-stage 

manufacturer that will constitute 

‘‘reasonable care,’’ for purposes of 49 

U.S.C. 30115(a), in certifying a vehicle 

as complying with FMVSS No. 216a. 

NTEA cited language from the 1990 

NTEA decision for the proposition that 

‘‘[i]n order for a standard to meet the 

practicability requirement, it must offer 

the regulated party a chance to 

demonstrate compliance,’’ and ‘‘in order 

for a standard to be practicable, it must 

offer in the body of the standard itself, 

a means for all subjected to the standard 

to prove compliance.’’ NTEA, 919 F.2d. 

at 1153. 

We note that the factual predicate in 

the 1990 NTEA decision was different 

than the situation at issue here. The 

1990 NTEA court had before it a safety 

standard on steering wheel rearward 

displacement in crashes that applied to 

both chassis-cab and non-chassis-cab 

final-stage manufacturers. The finalstage manufacturers faced dynamic 

testing (crashing a vehicle into a wall) 

or studies they could not afford. The 

court noted that, at that time, passthrough regulations only applied to 

chassis-cabs, and final-stage 

manufacturers that manufactured on a 

cutaway chassis or stripped chassis 

could not pass-through the certification 

provided by the chassis-cab 

manufacturer. NTEA, 919 F.2d. at 1152. 

The court order from the 1990 NTEA 

case remanded the standard to the 

‘‘extent that it applies to vehicles 

completed by final-stage manufacturers 

that cannot pass-through the 

certification of the initial manufacturer.’’ 

NTEA, 919 F.2d. at 1158. 

For FMVSS No. 216a, we have 

specifically excluded those multi-stage 

trucks for which the final-stage 

manufacturer would be responsible for 

manufacturing the roof and/or its 

support structure and certifying it, as 

was the case with cutaways and 

stripped chassis. As relevant here, 

FMVSS No. 216a applies only to finalstage manufacturers that build trucks on 

a chassis-cab. 

Chassis-cabs will depart from the 

incomplete vehicle manufacturer’s 

facility with an IVD and a compliant 

roof. In NTEA’s view, they cannot be 

relied upon, because final-stage 

manufacturers are only provided with 

‘‘overly-restrictive’’ IVDs that limit passthrough opportunities. Therefore, NTEA 

argued, because final-stage 

manufacturers are presented with a 

document that they read, to be 

applicable, limits later-stage 

manufacturing, they must conduct 

expensive tests or computer 

simulations, the cost of which, is 

prohibitive or take ‘‘undue’’ certification 

risk. Furthermore, NTEA argued that 

since NHTSA has not described in the 

standard, in advance, each and every 

way that a final-stage manufacturer can 

demonstrate ‘‘reasonable care,’’ FMVSS 

No. 216a is impracticable. 

We disagree. We have explained in 

the multi-stage vehicle rulemaking why 

we reject NTEA’s broad claims about the 

current multi-stage certification scheme 

not providing final-stage manufacturers 

a reasonable way to ensure compliance 

and certify their vehicles. See 71 FR 

28168; 70 FR 7414. Likewise, we 

explained above that pass-through 

certification is available, and that other 

methods, short of testing, are available 

if pass-through certification is not.65

There appears to be a fundamental 

misunderstanding about the 

applicability of the tests described in 

FMVSS No. 216a and other standards’ 

‘‘crash tests.’’ Simply put, ‘‘reasonable 

care’’ does not require a manufacturer to 

test its vehicles in the manner specified 


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66Congress used different terms in its 

requirements for Federal motor vehicle safety 

standards and for certification. The differences are 

meaningful. The authorization for standards 

provides, among other things, that the standards be 

‘‘stated in objective terms.’’ 49 U.S.C 30111(a). In 

contrast, reasonable care, which is used in 49 U.S.C. 

30112(b)(2) [prohibitions on manufacture and sale 

of noncomplying motor vehicles] and 49 U.S.C. 

30115 [certification of compliance] looks more 

broadly to care exercised by a prudent and 

competent person under similar circumstances. See 

definition from Black’s Law Dictionary, below. 

67See GM’s May 13, 2005 comment on NTEA’s 

petition for reconsideration of the multi-stage 

certification rule, Docket No. NHTSA–99–5673– 

0056. 

68See e.g., Letter from Philip R. Recht, Chief 

Counsel, NHTSA, to Mr. Mark Warlick, Four Winds 

International Corporation (February 27, 1995), 

available at http://isearch.nhtsa.gov/files/ 

10595.html (last accessed February 14, 2011).; 

Letter from Paul Jackson Rice, Chief Counsel, 

NHTSA, to Mr. Vaughn Crawley, Vice President, 

Monitor Manufacturing Co. (August 15, 1990), 

available at http://isearch.nhtsa.gov/files/ 

2625y.html (last accessed February 14, 2011); and 

Letter from Jacqueline Glassman, Chief Counsel, 

NHTSA, to Ms. S. Trinkl, Quality Management, 

DEKRA Automobil GmbH (December 30, 2004), 

available at http://isearch.nhtsa.gov/files/ 

Trinkl.1.html (last accessed February 14, 2011). 

69 In a final rule concerning advanced air bags 

issued in 2000, the agency removed the ‘‘due care 

provision’’ contained in FMVSS No. 208, Occupant 

Crash Protection, stating that it does not fit with the 

overall statutory scheme and ‘‘it introduces a 

measure of subjectivity into the issue of whether a 

vehicle complies with a standard.’’ 65 FR 30680, 

30725 (May 12, 2000). 

70While NTEA objects to being subject to 

reasonable care standards, its members are 

otherwise subject to such standards. See Croskey v. 

BMW of North America, 532 F.3d 511 (6th Cir. 

2008); Morales v. American Honda Motor Co., 151 

F.3d 500 (6th Cir. 1998); see also Williamson v. 

Mazda Motor of America, 131 S.Ct. 1131 (2011); 

Fabian v. Fulmer Helmets, Inc., 628 F.3d. 278 (6th 

Cir. 2010); Sours v. General Motors Corp., 717 F.2d 

1511, 1517 (6th Cir. 1983); Restatement (Third) of 

Torts, Product Liability § 2, 4 (1998). 

71Black’s Law Dictionary, Eighth Edition, 

Thomson West. 

72See generally, Letter from Jacqueline Glassman, 

Chief Counsel, NHTSA, to Ms. S. Trinkl, Quality 

Management, DEKRA Automobil GmbH (December 

30, 2004), available at http://isearch.nhtsa.gov/ 

files/Trinkl.1.html (last accessed February 14, 2011) 

(for brief comparison of the European approval 

process and the U.S. self-certification process). 

by the relevant safety standard, or even 

to test the vehicles at all. A 

manufacturer may choose any means of 

evaluating its products to determine 

whether the vehicle complies with the 

requirements of the safety standards, 

provided, however, that the 

manufacturer certifies that the vehicle 

will comply with the safety standards 

when tested by the agency according to 

the procedures described in the 

standard. See 49 U.S.C. 30115.66

To put this into context, it is helpful 

to consider the way that single-stage 

manufacturers typically certify vehicles. 

Each manufacturer assembles a vehicle 

for testing that it decides is 

representative of a model. It then 

certifies other variations of the model 

based upon the test results and 

engineering design of the vehicles 

within that model. In essence, the 

single-stage manufacturers certify based 

upon testing and evaluation, and do so 

even though the word ‘‘evaluation’’ does 

not appear in the safety standards. That 

is so because single-stage 

manufacturers, such as GM, Ford, or 

Honda, do not ‘‘demonstrate conformity’’ 

by testing each and every vehicle that 

they sell—to do so would mean that all 

consumers would buy crash-tested 

vehicles. Instead, single-stage vehicle 

manufacturers will ordinarily conduct, 

or sponsor, vehicle testing to support 

their certifications with a FMVSS. For 

the vehicles that they sell, as we have 

stated, and as GM stated in 2005 in 

comments to NTEA’s petition for 

reconsideration of the multi-stage 

vehicle certification rule, certification is 

based on testing and evaluation.’’ 67

We recognize, of course, that small 

final-stage manufacturers may not have 

the resources of large, single-stage 

manufacturers to conduct ‘‘testing and/ 

or evaluation.’’ For that reason, we 

excluded from FMVSS No. 216a those 

multi-stage trucks for which the finalstage manufacturer would be 

responsible for designing and 

manufacturing the roof structure. 

However, for chassis- cabs, which arrive 

from the incomplete vehicle 

manufacturer with a compliant, intact 

roof structure certified by a reputable 

manufacturer on the basis of testing 

and/or evaluation, we do not see how 

the final-stage manufacturer’s additions 

will affect the vehicle’s roof strength 

that would require more testing. Nor has 

NTEA provided any examples. As we 

have explained repeatedly, and 

discussed above, these final-stage 

manufacturers can use pass-through 

certification. If they cannot, they can 

use the IVD as the foundation on which 

they can certify, as they will receive a 

vehicle certified as compliant with 

FMVSS No. 216a, or they can rely on a 

comparable pickup truck that has been 

certified by the manufacturer. 

Certifications can and will occur 

without testing or computer 

simulations, as the final-stage 

manufacturer can evaluate the vehicle 

in light of the available information 

provided by the incomplete vehicle 

manufacturers in IVDs and other 

resources familiar to final-stage 

manufacturers, and its addition(s) or 

alteration(s). 

Despite this practical understanding, 

NTEA demands that the agency place 

the instances that will constitute 

reasonable care in FMVSS No. 216a. In 

short, NTEA is seeking a kind of 

assurance of compliance that is 

inconsistent with that of selfcertification under 49 U.S.C. 30115, and 

fundamentally different from that of 

manufacturers generally, including 

single-stage manufacturers. 

The agency has long said that it is 

unable to judge what efforts would 

constitute ‘‘reasonable care’’ in advance 

of the actual circumstances. This answer 

has been provided by multiple 

administrations over the decades in 

response to requests to provide 

interpretations of the Vehicle Safety 

Act.68 Moreover, NHTSA does not 

delineate ‘‘reasonable care’’ in the 

Federal motor vehicle safety 

standards.69 This is due to the fact that 

the exercise of reasonable care is 

different from and broader than 

demonstrating conformity with a safety 

standard by the test method described 

in the standard.70

We note that the term ‘‘reasonable 

care’’ is similar to the term ‘‘reasonable 

person,’’ which is a widely understood 

term used in tort law. Black’s Law 

Dictionary defines ‘‘reasonable care’’ as 

being ‘‘the degree of care that a prudent 

and competent person engaged in the 

same line of business or endeavor 

would exercise under similar 

circumstances.’’ 71

While testing in accordance with the 

test procedures described in NHTSA’s 

standards may be the best approach, it 

is not the only way to certify. As we 

have indicated before, the United States 

self-certification system leaves it up to 

the vehicle manufacturer as to the bases 

it uses to certify its vehicles. This 

provides reasonable flexibility that may 

take into account new approaches and 

technologies without the time 

consuming process of adopting detailed 

regulations; in fact, at least major 

manufacturers have not advocated 

burdening certification with detailed, 

technical regulations. The providing of 

a step-by-step method of how a vehicle 

manufacturer should certify its product 

is something that was not called for or 

contemplated by Congress when it 

enacted the broad self-certification 

system, rather than a system of 

governmental approval in advance of 

the sale of the product,72 as in the case 

with certain drugs. 

NTEA, which has noted that 

thousands of items are produced for 

work truck applications, has not 

suggested how the instances that 

constitute reasonable care should or 

could be included in an objective 

Federal motor vehicle safety standard. If 

there is a way around this dilemma, 

NTEA has not provided an answer, 


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73National Truck Equipment Association, Truck 

Equipment Handbook, Eighth edition, October 

2010, p. 61. 

74The National Traffic and Motor Vehicle Safety 

Act originally required the exercise of ‘‘due care.’’ 

80 Stat. 722 (1966), see NTEA, 919 F.2d. at 1151. 

The wording was changed to ‘‘reasonable care’’ in 

the recodification of the Federal transportation laws 

in 1994 to maintain consistency throughout the 

revised code. See H.R. Rep. 103–180, at 3, reprinted 

in 1994 U.S.C.C.A.N. 818. The recodification 

expressly provided that there is no substantive 

change in meaning. See Public Law 103–272, 108 

Stat. 745. 

75National Truck Equipment Association, Truck 

Equipment Handbook, Eighth edition, October 

2010, p. 61. 

76A detailed discussion is located at 74 FR at 

22367 under the heading, ‘‘Tie Down Procedure.’’ 

77However, NHTSA did test a Ford F–250 

chassis-cab on October 2, 2008. See Docket No. 

NHTSA–2009–0093–0019. Video files and test 

reports are available to the public through NHTSA’s 

Internet vehicle crash test database: http://wwwnrd.nhtsa.dot.gov/database/veh/veh.htm. 

despite repeated entreaties for it to do 

so. 

As the industry and the agency 

understands, there can be many 

methods a manufacturer can use to form 

the basis of its certification other than 

conducting a test using the procedures 

contained in a particular Federal motor 

vehicle safety standard. This, 

apparently, is understood by NTEA. In 

its Truck Equipment Handbook,73 it 

states that the principle of due care 74

allows one vehicle type to be certified 

on the basis of testing a similar vehicle 

type. It also states in that handbook that, 

in cases of modification and/or 

completion of vehicles outside of the 

chassis manufacturer’s guidelines, the 

principle of due care allows the small 

manufacturer to employ one or a 

combination of alternative testing 

methods, such as engineering analysis 

and calculations, computer simulations, 

periodic testing, laboratory tests and 

inspection by an independent laboratory 

to certify the vehicle. NTEA also states 

in the handbook that while such tests, 

calculations and simulations need not 

be performed for each vehicle, ‘‘a 

manufacturer must be reasonably 

certain that a particular vehicle 

configuration will conform to all 

applicable standards.’’ 75 (Emphasis 

added.) 

As explained in this response, the 

demands placed on final-stage 

manufacturers by FMVSS No. 216a are 

minimal—all that is required is 

reasonableness. If the roof or its 

structure is not modified or altered, the 

final-stage manufacturer can rely on the 

IVD for pass-through certification or 

another basis on which it can certify. In 

instances of the latter, for purposes of 

FMVSS No. 216a, the agency believes 

that a final-stage manufacturer’s 

reasonable reliance on the IVD or on a 

comparable pickup truck that has been 

certified by the manufacturer, coupled 

with sound technical judgment, would 

constitute the exercise of reasonable 

care should no modifications be made to 

the chassis-cab’s roof or its A- or Bpillars. In our view, however, more 

robust means of analysis for completed 

chassis-cabs, including testing, may be 

appropriate in instances where the finalstage manufacturer alters or modifies 

the intact roof structure or its 

supporting structures. NTEA has not 

identified an instance when this has 

been a necessity. 

G. NTEA’s Claim That NHTSA Needs 

To Test Multi-Stage Vehicles in Support 

of Its Regulatory Analysis Ignores the 

Fact That We Excluded the Trucks That 

Could Cause Compliance or 

Certification Issues for Final-Stage 

Manufacturers 

NTEA stated that a review of the 

agency’s final rule and Regulatory 

Impact Analysis indicates that NHTSA 

did not include any completed multistage vehicles in connection with any of 

the testing it performed to support its 

amendments to FMVSS No. 216a. It said 

that it appears that NHTSA has no test 

data to support a conclusion that the 

revised test in the final rule is workable 

and reasonable with respect to multistage vehicles. 

As discussed earlier, to address 

practicability concerns, we included 

chassis-cabs in FMVSS No. 216a, and 

excluded those trucks for which finalstage manufacturers would be 

completing or building the roof 

structure. These are the vehicles that 

could likely cause practicability 

problems for final-stage truck 

manufacturers. 

The chassis-cabs will have intact, 

compliant roofs at the time they are 

delivered to the final-stage 

manufacturer. Moreover, these vehicles 

will be identical in material respects to 

vehicles that are sold by the same 

incomplete vehicle manufacturers as 

pickup trucks, and have the same roof 

structures. The incomplete vehicle 

manufacturers will be redesigning the 

roof structures of their pickup trucks, as 

necessary, to meet FMVSS No. 216a, 

and will then be providing incomplete 

versions of the same vehicles, with the 

same roof structures, to final-stage truck 

manufacturers. The final-stage truck 

manufacturers will be able to comply 

with FMVSS No. 216a by not taking 

these vehicles out of compliance with 

the standard. It is for this reason that 

NHTSA’s technical analyses did not 

specifically test multi-stage vehicles. 

Furthermore, as the chassis-cabs are 

based on the incomplete vehicle 

manufacturer’s pickup trucks, and the 

FMVSS No. 216a test only compresses 

the supported cab, it would be 

redundant to separately test multi-stage 

versions of these vehicles. 

The 216a Test 

Part of the rationale for not testing 

completed multi-stage vehicles is due to 

the nature of the FMVSS No. 216a test. 

Originally, in the NPRM, we proposed 

a test with a rigid support under the 

vehicle’s frame. However, in the test 

procedure adopted in the May 2009 

final rule, the agency will support the 

vehicle body off of its suspension and 

rigidly secure the vehicle’s sill and 

chassis on a rigid horizontal surface.76

An angled platen compresses the 

vehicle above its A- and B-pillars. The 

vehicle must meet the specified 

strength-to-weight (SWR) to be 

considered compliant. 

As we stated in the final rule, the 

FMVSS No. 216a test was adopted and 

changed from the NPRM test procedure 

based on comments from the industry 

and because the test procedure was 

found to reduce unwanted deflection of 

the vehicle body when undergoing 

testing when the load is applied to the 

roof. This was done due to issues in 

conducting the test with body-on-frame 

vehicles, e.g. chassis-cabs. 

We excluded those multi-stage trucks 

from FMVSS No. 216a where the finalstage manufacturer would design and 

fabricate the roof, its support structure, 

or a portion thereof. We included 

chassis-cabs in FMVSS No. 216a; only 

the vehicle’s cab is tested, and not the 

frame. As we explained, incomplete 

vehicle manufacturers are responsible 

for the design and fabrication of these 

chassis-cabs, most of which are based 

off of pickup trucks sold directly to 

consumers in dealerships. 

In its petition, NTEA argued that 

NHTSA failed to consider or test multistage vehicles in the final rule. Given 

the vehicles covered, the standard, and 

the test procedure, such testing is not 

necessary for our analysis.77 First, as we 

stated previously, only the vehicle’s 

chassis-cab is tested, and the chassis-cab 

is supported by a horizontal surface at 

the vehicle’s sill. The cab is compressed 

from an angled platen above the A- and 

the B-pillars into this added, rigid 

support at the cab’s sill. Therefore, 

modifications to the vehicle’s frame 

would not affect the vehicle’s 

compliance in the FMVSS No. 216a test. 

Second, if a final-stage manufacturer 

installs a box that is taller than the cab, 

the box will be removed. Similarly, any 

additions to the roof will be removed 


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Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Proposed Rules 15919 

78NTEA stated to its members that it could 

submit a petition and individual companies would 

only need to submit limited information to opt-in. 

See National Truck Equipment Association, 

Certification Guide, Appendix 5l (2007). 

before the test, per the regulation. 

Furthermore, it is not apparent how the 

modifications generally made by a finalstage manufacturer will create 

compliance difficulties with FMVSS No. 

216a. Moreover, as we explained in the 

multi-stage certification rulemaking, if 

final-stage manufacturers identify 

particular areas where compliance with 

FMVSS No. 216a is a problem, they, or 

NTEA on behalf of its members, can 

petition for a temporary exemption 

under 49 CFR part 555.78

In our Further Response, we stated 

that in analyzing the 2006 GMT–355 

IVD, which is for a body-on-frame 

vehicle, pass-through certification 

would be available to final-stage 

manufacturers if no modifications were 

made to the roof or its structural support 

members. We still believe that to be 

true. NTEA has not presented NHTSA 

with descriptions or evidence of any 

modifications that are made to a chassiscab or its support structure. If such 

modifications do occur, they could 

affect the vehicle’s compliance with 

FMVSS No. 216a if the roof or its 

support structure is weakened. 

However, we have no evidence that 

such modifications occur. As we 

presented earlier in this document, 

NHTSA is unaware of equipment 

manufacturers that require 

modifications to the chassis-cab or its 

support structure. 

The only modifications mentioned by 

NTEA in it comments or petition is 

where a final-stage manufacturer drills 

holes in the frame rails behind the 

chassis-cab and attaches a box onto 

those frame rails. FMVSS No. 216a will 

only test the roof strength of the chassiscab independent of the vehicle’s frame. 

The chassis-cab is manufactured by an 

incomplete vehicle manufacturer who 

will provide the final-stage 

manufacturer with a compliant roof. 

Therefore, provided modifications are 

not made to the vehicle’s chassis-cab or 

its support structure, subsequent 

modifications to the vehicle’s frame 

rails will not affect the vehicle’s 

performance in the FMVSS No. 216a 

test. For those reasons, NHTSA believes 

there was no reason for the agency to 

specifically test a completed multi-stage 

truck in support of its evaluation. 

H. All Multi-Stage Vehicles Should Not 

Be Excluded 

NTEA argued that excluding all multistage vehicles would not unacceptably 

deprive those users of the safety benefits 

provided by the roof crush standard. 

NTEA stated that its statistics show that 

the vast majority of multi-stage vehicles 

are rated above 6,000 pounds. NTEA 

noted that FMVSS No. 216a excludes 

trucks other than ones built on chassiscabs (and incomplete vehicles with a 

full exterior van body), meaning that the 

agency excluded approximately onethird of multi-stage vehicles with a 

GVWR of 6001 pounds to 10,000 

pounds. NTEA also said that chassis 

with a GVWR of over 10,000 pounds 

constitute 94.5 percent of the entire 

market of chassis rated above 6,000 

pounds. Thus, the vast majority of 

multi-stage vehicles above 6,000 pounds 

GVWR are already excluded from 

FMVSS No. 216a, and its position 

would not have any appreciable effect 

on the multi-stage vehicle population 

that will be subject to the rule. 

NTEA’s argument ignores the fact that 

Congress, in SAFETEA–LU, required 

NHTSA to establish rules or standards 

that will reduce vehicle rollover crashes 

and mitigate deaths and injuries 

associated with such crashes for motor 

vehicles with a GVWR of not more than 

10,000 pounds. We recognized in the 

final rule that there are benefits for 

vehicles with a GVWR above 6,000 

pounds up to 10,000 pounds, although 

they are relatively small compared to 

those associated with lighter vehicles. 

However, the benefits are not trivial. We 

noted that if a multi-stage vehicle is 

involved in a rollover, the vehicle’s roof 

strength will be an important factor in 

providing occupant protection. 

In the final rule, as discussed above, 

NHTSA included those multi-stage 

trucks that have an intact, compliant 

roof structure when it leaves the 

incomplete vehicle manufacturer and 

excluded those trucks for which the 

final-stage manufacturer would be 

responsible for designing and 

manufacturing the roof structure. While 

the number of included vehicles is a 

small number of the total multi-stage 

vehicles built and certified every day, 

adequate justification as to why the 

drivers of chassis-cabs should be less 

safe than the driver of a nearly identical 

pickup truck has not been provided. 

This is especially so when the laterstage manufacturing does not affect the 

strength of the chassis-cab’s roof. 

While there may not be an 

appreciable effect on the entire multistage population, as NTEA argues, that 

was not the intent. Instead, the intent 

was to implement the provisions of 

SAFETEA–LU and, where practicable, 

to give drivers of vehicles with a GVWR 

of 10,000 pounds or less increased 

safety in case of a rollover. We note that 

NTEA has not presented a persuasive 

safety argument. Instead, its arguments 

are based primarily on overstated 

certification risk. As such, we believe 

that this rule should continue to include 

those vehicles with an intact, compliant 

roof structure, whether they are 

delivered to the dealership or the finalstage manufacturer. 

IV. Conclusion 

For the reasons discussed above, we 

deny the petition for reconsideration 

submitted by NTEA. 

Authority: 49 U.S.C. 322, 30111, 30115, 

30166 and 30177; delegation of authority at 

49 CFR 1.50. 

Issued: March 16, 2011. 

Daniel C. Smith, 

Senior Associate Administrator for Vehicle 

Safety. 

[FR Doc. 2011–6595 Filed 3–21–11; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2010–0011; MO 

92210–0–0008] 

Endangered and Threatened Wildlife 

and Plants; 12-Month Finding on a 

Petition To List the Berry Cave 

Salamander as Endangered 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 12-month petition 

finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

12-month finding on a petition to list 

the Berry Cave salamander 

(Gyrinophilus gulolineatus) as 

endangered under the Endangered 

Species Act of 1973, as amended (Act). 

After review of all available scientific 

and commercial information, we find 

that listing the Berry Cave salamander is 

warranted. Currently, however, listing is 

precluded by higher priority actions to 

amend the Lists of Endangered and 

Threatened Wildlife and Plants. Upon 

publication of this 12-month petition 

finding, we will add the Berry Cave 

salamander to our candidate species list. 

We will develop a proposed rule to list 

the Berry Cave salamander as our 

priorities allow. We will make any 

determination on critical habitat during 

development of the proposed listing 

rule. During any interim period, we will 

address the status of the candidate taxon 

through our annual Candidate Notice of 

Review (CNOR). 


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