Federal Motor Vehicle Safety Standards; Roof Crush Resistance, 17605-17618 [2010-7908]

Agencies

• National Highway Traffic Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 75, Number 66 (Wednesday, April 7, 2010)]
[Rules and Regulations]
[Pages 17605-17618]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-7908]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2009-0093]


Federal Motor Vehicle Safety Standards; Roof Crush Resistance

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation.

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: This document responds to two petitions for reconsideration of 
a May 12, 2009 final rule that upgraded the agency's safety standard on 
roof crush resistance. The first petition requested the agency to 
reconsider its decision to apply a lower roof strength-to-weight ratio 
requirement to heavier light vehicles, i.e., ones with a gross vehicle 
weight rating greater than 2,722 kilograms (6,000 pounds), than to 
other light vehicles. The second requested reconsideration of that 
decision as well as the agency's decision not to adopt a dynamic 
rollover test requirement as part of this rulemaking. After carefully 
considering the petitions, we are denying them. This document also 
responds to supplemental requests made by the petitioners.

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
II. Petitions for Reconsideration
III. Today's Document and Related Actions
IV. Response to Petitions
    A. Request That All Vehicles With a GVWR Not Greater Than 4,536 
Kilograms (10,000 Pounds) Be Required To Meet a 3.0 SWR
    1. May 2009 Final Rule Discussion
    2. Overall Rationale for Request and Petitioners' Argument 
Concerning Costs
    3. Petitioners' Argument Concerning Equity
    4. Consequences of Lower Roof Crush Protection for Heavier Light 
Vehicles and Documentation From NTSB
    5. Agency's Cost-Benefit Analysis
    B. Request That Agency Adopt a Dynamic Testing Provision

[[Page 17606]]

    1. May 2009 Final Rule Discussion
    2. Overall Rationale for Request
    3. Introduction to Response
    4. Petitioner's Claim That Quasi-Static Test and Criteria Do Not 
Reasonably Differentiate Between the Injury Risk of Compliant and 
Non-Compliant Vehicles
    5. Petitioner's Claim That JRS Test Device Has Been Available 
for Two Years and Extensive Test Data Submissions Show It To Be 
Reliable, Repeatable, Validated to Real World Injury Risk and 
Accurate in Assessing Comparative Injury Potential Performance
    C. Other Issues

I. Background

    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 \1\ substantially upgrading Federal Motor Vehicle 
Safety Standard (FMVSS) No. 216, Roof Crush Resistance.
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    \1\ Docket No. NHTSA-2009-093.
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    First, for the vehicles currently subject to the standard, i.e., 
passenger cars and multipurpose passenger vehicles, trucks and buses 
with a Gross Vehicle Weight Rating (GVWR) of 2,722 kilograms (6,000 
pounds) or less, the rule doubled the amount of force the vehicle's 
roof structure must withstand in the specified test, from 1.5 times the 
vehicle's unloaded weight to 3.0 times the vehicle's unloaded weight. 
We note that this value is sometimes referred to as the strength-to-
weight ratio (SWR), e.g., a SWR of 1.5, 2.0, 2.5, and so forth.
    Second, the rule extended the applicability of the standard so that 
it will also apply to vehicles with a GVWR greater than 2,722 kilograms 
(6,000 pounds), but not greater than 4,536 kilograms (10,000 pounds). 
The rule established a force requirement of 1.5 times the vehicle's 
unloaded weight for these newly included vehicles.
    Third, the rule required all of the above vehicles to meet the 
specified force requirements in a two-sided test, instead of a single-
sided test, i.e., the same vehicle must meet the force requirements 
when tested first on one side and then on the other side of the 
vehicle. Fourth, the rule established a new requirement for maintenance 
of headroom, i.e., survival space, during testing in addition to the 
existing limit on the amount of roof crush. The rule also included a 
number of special provisions, including ones related to leadtime, to 
address the needs of multi-stage manufacturers, alterers, and small 
volume manufacturers.
    The rulemaking action to improve roof strength was part of our 
comprehensive plan for addressing the serious problem of rollover 
crashes. There are more than 10,000 fatalities in rollover crashes each 
year. To address that problem, our comprehensive plan includes actions 
to: (1) Reduce the occurrence of rollovers, (2) mitigate ejection, and 
(3) enhance occupant protection when rollovers occur (improved roof 
crush resistance is included in this third category). A more complete 
discussion of our plan was included in the preamble to the May 2009 
roof crush resistance final rule (74 FR 22348).
    The roof crush final rule, by itself, addressed a relatively small 
subset of that problem. Our analysis shows that of the more than 10,000 
fatalities, roof strength is relevant to only about seven percent 
(about 667) of those fatalities. We estimated that the May 2009 rule 
will prevent 135 of those 667 fatalities.
    The portions of our comprehensive plan that will have the highest 
life-saving benefits are the ones to reduce the occurrence of rollovers 
(prevention) and to mitigate ejection (occupant containment). We 
estimate that by preventing rollovers, electronic stability control 
(ESC) will reduce the more than 10,000 fatalities that occur in 
rollover crashes each year by 4,200 to 5,500 fatalities (and also 
provide significant additional life-saving benefits by preventing other 
types of crashes). In the area of mitigating ejection, significant 
life-benefits are and/or will occur by our continuing efforts to 
increase seat belt use and our rulemaking on ejection mitigation. We 
note that on December 2, 2009, we published in the Federal Register (74 
FR 63180) a notice of proposed rulemaking (NPRM) to establish a new 
safety standard to reduce the partial and complete ejection of vehicle 
occupants through side windows in crashes, particularly rollover 
crashes.

II. Petitions for Reconsideration

    We received two petitions for reconsideration. One was jointly 
submitted by Advocates for Highway and Auto Safety, Center for Auto 
Safety, Consumer Federation of America and Ms. Joan Claybrook. We will 
refer to these petitioners jointly as ``Advocates et al.'' in the rest 
of this document. The other petition was submitted by the Center for 
Injury Research (CfIR).\2\
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    \2\ Petitions for reconsiderations are available in Docket No. 
NHTSA-2009-093.
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    Advocates et al. requested reconsideration of the agency's decision 
to apply a lower SWR requirement to vehicles with a GVWR greater than 
2,722 kilograms (6,000 pounds) than to lighter vehicles (1.5 SWR vs. 
3.0 SWR).
    These petitioners argued that NHTSA's overall rationale for the 1.5 
SWR requirement is inadequate, and that the agency has a duty to 
provide uniform, equal levels of safety protection to vehicle occupants 
in all light vehicles without regard to distinctions based on what they 
consider to be arbitrary factors such as vehicle weight. They 
specifically argued that the agency did not establish any specific 
standard for judging the reasonableness of the costs involved in 
increasing the stringency of the SWR for vehicles greater than 2,722 
kilograms (6,000 pounds).
    Advocates et al. made a variety of additional arguments in support 
of their request, including ones related to how the agency has 
addressed reasonableness of costs in a prior rulemaking, a claim that 
the consequences of inadequate roof protection for larger vehicles is 
more severe than for light passenger vehicles, concerns about 15-
passenger vans, National Transportation Safety Board (NTSB) 
investigations and recommendations, and a claim that the agency's cost-
benefit analysis underestimates the number of lives that could be saved 
by much stronger roofs.
    CfIR asked us to reconsider the final rule with respect to the 
lower SWR requirement for heavier light vehicles, and also with respect 
to our decision not to adopt a dynamic test. That petitioner cited 
three basic reasons for NHTSA to reconsider the final rule. First, it 
argued that the quasi-static test and criteria does not reasonably 
differentiate between the injury risk of compliant and non-compliant 
vehicles. Second, CfIR argued that contrary to NHTSA assertions, the 
Jordan Rollover System (JRS) dynamic test has been available for two 
years and extensive data submissions show it to be reliable, 
repeatable, validated to real world rollover injury risk and accurate 
in assessing comparative injury potential performance. Third, CfIR 
argued that drivers and passengers of heavier light vehicles up to 
4,536 kilograms (10,000 pounds) GVWR deserve the same rollover 
protection as occupants of vehicles with a GVWR of 2,722 kilograms 
(6,000 pounds) or less. This petitioner argued that these heavier 
vehicles are often less stable, occupants are more vulnerable and the 
vehicles are used more frequently in off-road transportation.
    In its petition, CfIR cited numerous submissions it had made to the 
docket. This petitioner requested that the agency review the data 
previously

[[Page 17607]]

submitted and summarized in its petition and consider the following 
actions: adjust the rule to allow for an alternate dynamic compliance 
test, propose and allow for an alternative dynamic test for the 
agency's New Car Assessment Program (NCAP) ratings, allow for non-
compliance or compliance exceptions based on submitted dynamic test 
evidence, correct statements made by the agency regarding the JRS' 
repeatability and reliability in testing a vehicle's dynamic 
performance that the petitioner considers to be misleading and 
inaccurate, and apply the same SWR for lighter vehicles to heavier 
vehicles with passenger seating positions of three or more. CfIR also 
claimed that the agency made errors with respect to the target 
population used to identify benefits and in addressing the effect of 
roof racks on the strength of the roof.
    In September 2009, CfIR submitted a document it called a 
``supplement'' to its petition for reconsideration. It attached a 
document discussing JRS test results which it said indicate that an SWR 
of 4.1 is required to minimize roof crush injury potential. CfIR stated 
that it requested reconsideration of JRS dynamic testing for the final 
rule for two reasons: (1) Insurance Institute for Highway Safety's \3\ 
(IIHS) SWR of 4 or greater has gained industry acceptance and timely 
voluntary compliance, and (2) the JRS test fixture accurately measures 
post crash negative headroom and can assess the injury potential of 
occupant protection systems. It stated that its supplement requests 
further (1) raising the static test criteria to the dynamically derived 
SWR criteria of 4, and (2) initiating a dynamic rollover 
crashworthiness NCAP program using the JRS fixture.
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    \3\ In March 2009, the IIHS launched a new roof strength rating 
system. According to the IIHS, a metal plate is pushed against one 
side of a roof at a constant speed. To earn a good rating, the roof 
must withstand a force of 4 times the vehicle's weight before 
reaching 5 inches of crush. This is called a strength-to-weight 
ratio. For an acceptable rating, the minimum required strength-to-
weight ratio is 3.25. A marginal rating value is 2.5. Anything lower 
than that is poor. https://www.iihs.org/news/rss/pr032409.html
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    CfIR also provided the agency a copy of a document titled 
``Scientific Review & Evaluation of the Jordan Rollover System (JRS) 
Impact Crash Test Device.'' \4\
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    \4\ Available in Docket No. NHTSA-2009-093.
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III. Today's Document and Related Actions

    In this document, we provide our response to the petitions for 
reconsideration of the May 2009 final rule upgrading FMVSS No. 216.
    We are also publishing two separate documents related to the May 
2009 final rule. One is a fuller response to comments submitted by NTEA 
on our proposal to upgrade FMVSS No. 216. The other is a correcting 
rule. The correcting rule incorporates a provision that was discussed 
in the preamble but inadvertently omitted from the regulatory text. As 
explained in the preamble, the agency decided to exclude a narrow 
category of multi-stage vehicles from FMVSS No. 216 altogether, multi-
stage trucks with a GVWR greater than 2,722 kilograms (6,000 pounds) 
not built on either a chassis cab or an incomplete vehicle with a full 
exterior van body. The regulatory text inadvertently omitted the 
reference to incomplete vehicles with a full exterior van body.

IV. Response to Petitions

    After carefully considering the two petitions, we have decided to 
deny them. The reasons for our denial are set forth below. Our 
discussion is divided into two main sections, one addressing issues 
related to the lower SWR requirement for heavier light vehicles and the 
other addressing issues related to our decision to adopt a quasi-static 
test requirement.

A. Request That All Vehicles With a GVWR Not Greater Than 4,536 
Kilograms (10,000 pounds) Be Required To Meet a 3.0 SWR

1. May 2009 Final Rule Discussion
    In our May 2009 final rule, we adopted an SWR requirement of 3.0 
for vehicles with a GVWR of 2,722 kilograms (6,000 pounds) or less, and 
1.5 for vehicles with a GVWR greater than 2,722 kilograms (6,000 
pounds) and less than or equal to 4,536 kilograms (10,000 pounds).
    In the preamble to that document, we explained that while the 
rulemaking involved a number of key decisions, the selection of an SWR 
requirement was the most important one for both costs and benefits. We 
note that our analysis, presented in detail in the Final Regulatory 
Impact Analysis (FRIA), showed that for the alternatives we evaluated, 
benefits in terms of reduced fatalities continued to rise with higher 
SWR levels due to reduced intrusion. For vehicles designed to have 
higher SWR levels, the benefits continued to rise because the vehicle 
roofs experience less intrusion in higher severity crashes. We 
explained further, however, that costs also increase substantially with 
higher SWR levels, so NHTSA needed to select the appropriate balance of 
safety benefits to added costs.
    We explained that under the Safety Act, NHTSA must issue safety 
standards that are both practicable and meet the need for motor vehicle 
safety. 49 U.S.C. Sec.  30111(a). The agency considers economic 
factors, including costs, as part of ensuring that standards are 
reasonable, practicable, and appropriate.
    In Motor Vehicle Manufacturers Association v. State Farm, 463 U.S. 
29, 54-55 (1983), the Supreme Court indicated that the agency was 
correct, in making its decisions about safety standards, to consider 
reasonableness of monetary and other costs associated with the 
standards. With respect to the agency's future revisiting of its 
earlier conclusion that the cost of detachable automatic seat belts was 
unreasonable in relation to the expected benefits from such belts, the 
Court stated, however, that ``(i)n reaching its judgment, NHTSA should 
bear in mind that Congress intended safety to be the preeminent factor 
under the Motor Vehicle Safety Act:''

    ``The Committee intends that safety shall be the overriding 
consideration in the issuance of standards under this bill. The 
Committee recognizes * * * that the Secretary will necessarily 
consider reasonableness of cost, feasibility and adequate 
leadtime.'' S.Rep. No. 1301, at 6, U.S. Code Cong. & Admin. News 
1966, p. 2714.
    ``In establishing standards the Secretary must conform to the 
requirement that the standard be practicable. This would require 
consideration of all relevant factors, including technological 
ability to achieve the goal of a particular standard as well as 
consideration of economic factors. Motor vehicle safety is the 
paramount purpose of this bill and each standard must be related 
thereto.'' H.Rep. No. 1776, at 16.

    We explained that, in making our decision concerning SWR, we were 
guided by the statutory language, legislative history, and the Supreme 
Court's construction of the Safety Act, as well as by the specific 
requirement in the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) for us to 
upgrade FMVSS No. 216 relating to roof strength for driver and 
passenger sides for motor vehicles with a GVWR of not more than 4,536 
kilograms (10,000 pounds). We explained that we considered both costs 
and benefits, bearing in mind that Congress intended safety to be the 
preeminent factor under the Safety Act.
    As indicated above, our analysis showed that while benefits 
continued to rise with higher SWR levels, costs also increase 
substantially. We explained that the challenge was to push to a level 
where the safety benefits are still reasonable in relation to the 
associated costs. We explained further that, as part

[[Page 17608]]

of this, we considered issues related to cost effectiveness. We noted 
that the agency's analysis of cost effectiveness was presented in the 
FRIA and summarized in the preamble.
    We also explained that another important factor in the selection of 
the SWR requirements was that there are much higher costs relative to 
benefits associated with any level SWR requirement for vehicles with a 
GVWR greater than 2,722 kilograms (6,000 pounds) as compared to the 
lighter vehicles that were already subject to the standard.
    We noted that there are a number of reasons for this differential 
between heavier and lighter vehicles. The absolute strength needed to 
meet a specific SWR is a function of the vehicle's unloaded weight. By 
way of example, to meet a 2.0 SWR, an unloaded vehicle that weighs 
1,360 kilograms (3,000 pounds) must have a roof structure capable of 
withstanding 26,690 N (6,000 pounds) of force, while an unloaded 
vehicle that weighs 2,268 kilograms (5,000 pounds) must have a roof 
structure capable of withstanding 44,482 N (10,000 pounds) of force. 
This means more structure or reinforcement are needed for the heavier 
vehicle, which means more cost and weight. Moreover, vehicles in the 
heavier category have not previously been subject to FMVSS No. 216, so 
they have not been required to meet the existing 1.5 SWR single-sided 
requirement.
    We also noted that, at the same time, these heavier vehicles 
account for only a very small part of the target population of 
occupants who might benefit from improved roof strength. Only 5 percent 
of the fatalities in the overall target population (33 in terms of a 
specific number) occur in vehicles over 2,722 kilograms (6,000 pounds) 
GVWR. Ninety-five percent of the fatalities (635 in terms of a specific 
number) occur in vehicles under 2,722 kilograms (6,000 pounds) GVWR. 
These differences reflect the fact that there are far fewer vehicles in 
this category in the on-road fleet, and may reflect their frequency of 
use as working vehicles.
    We stated that we recognized the argument that all light vehicles 
should meet the same SWR requirements, to ensure the same minimum level 
of protection in a rollover crash. We explained, however, that in 
selecting particular requirements for a final rule, we believed that 
our focus needed to be on saving lives while also considering costs and 
relative risk. We stated (74 FR 22360):

    What is necessary to meet the need for safety and is practicable 
for one type or size of vehicle may not be necessary or reasonable, 
practicable and appropriate for another type or size of vehicle. 
Thus, to the extent the goal of establishing the same SWR 
requirements for all light vehicles would have the effect of either 
unnecessarily reducing the number of lives saved in lighter vehicles 
or imposing substantially higher, unreasonable costs on heavier 
vehicles despite their lesser relative risk, we believe it is 
appropriate to adopt different requirements for different vehicles. 
We also observe that because the same SWR requirement is 
significantly more stringent for heavier vehicles than lighter 
vehicles (due to SWR being a multiple of unloaded vehicle weight), 
establishing the same SWR requirement for heavier vehicles is not 
simply a matter of expecting manufacturers to provide the same 
countermeasures as they do for light vehicles.

    We included specific explanations as to why we adopted a 3.0 SWR 
requirement for vehicles with a GVWR of 2,722 kilograms (6,000 pounds) 
or less and a 1.5 SWR requirement for vehicles with a GVWR greater than 
2,722 kilograms (6,000 pounds).
    While we will not repeat all of the details of the reasons we 
provided for our decision concerning the 3.0 SWR required for vehicles 
with a GVWR of 2,722 kilograms (6,000 pounds) or less, we noted that an 
SWR requirement of 3.0 prevented about 66 percent more fatalities than 
one at 2.5, 133 instead of 80. However, costs increased by a 
considerably higher percentage, resulting in a less favorable cost per 
equivalent life saved, $5.7 million to $8.5 million for 3.0 SWR as 
compared to $3.8 million to $7.2 million for 2.5 SWR. We explained that 
in these particular circumstances, we believed that a 3.0 SWR 
requirement was appropriate and the costs reasonable given the 
increased benefits. We explained that while the cost per equivalent 
life saved was relatively high compared to other NHTSA rulemakings, we 
concluded that the higher safety benefits, the legislative mandate for 
an upgrade, the technical feasibility of making roofs this strong, and 
the fact that these costs were generally within the range of accepted 
values justified moving NHTSA's roof crush standards to a 3.0 SWR for 
vehicles that have been subject to the 1.5 SWR requirements.
    As to vehicles with a GVWR greater than 2,722 kilograms (6,000 
pounds), we noted that these vehicles are not currently subject to 
FMVSS No. 216 and, because of their greater unloaded vehicle weight, 
these vehicles posed greater design challenges. These heavier vehicles 
also tend to have greater variations in packaging options (4-wheel 
drive, extended/crew cabs, engine size, etc.) which span a larger range 
of unloaded vehicle weights for a given body design. In response to the 
NPRM, 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. We also 
noted that given the relatively small target population for these 
vehicles, the benefits will necessarily be small regardless of the SWR 
selected.
    We explained that after considering our original proposal of a SWR 
of 2.5 and the available information, we concluded that a SWR of 1.5 
was appropriate for these heavier vehicles. We noted that the 
requirement we were adopting is more stringent than the longstanding 
requirement that has applied to lighter vehicles until this rulemaking 
because it is a two-sided requirement. The FRIA estimated that two 
fatalities and 46 nonfatal injuries will be prevented annually by this 
requirement. We stated that because of the high cost relative to the 
benefits for all of the alternatives for these heavier vehicles, from 
the 1.5 SWR alternative and above, any alternative we select would 
adversely affect the overall cost effectiveness of this rulemaking 
(covering all light vehicles).
    We stated that we believed that a SWR of 1.5 is appropriate for 
these heavier vehicles. We stated that given the requirements of 
SAFETEA-LU, we needed to ensure that the standard results in improved 
real world roof crush resistance for these vehicles. We declined, 
however, to adopt a SWR higher than 1.5 for vehicles with a GVWR 
greater than 2,722 kilograms (6,000 pounds), given the small additional 
benefits (4 additional lives saved and 137 nonfatal injuries prevented) 
and substantially higher costs. We explained that adopting a SWR of 2.0 
for these vehicles would more than double the costs of the rule for 
these vehicles.
2. Overall Rationale for Request and Petitioners' Argument Concerning 
Costs
    In their petition for reconsideration, Advocates et al. argued that 
the agency's rationale for a SWR of 1.5 for heavier light vehicles is 
inadequate. While they conceded that cost burdens are a consideration 
to be taken into account, these petitioners claimed that the agency had 
unwarrantedly elevated cost considerations above the need to secure 
substantial increases in benefits for people involved in rollover 
crashes in light vehicles above 2,722 kilograms (6,000 pounds) GVWR.
    While the petitioners acknowledged the agency's discussion of the 
Supreme Court's decision in Motor Vehicle

[[Page 17609]]

Manufacturers Association v. State Farm, they argued that NHTSA did not 
establish any specific standard for judging the reasonableness of costs 
involved in increasing the stringency of the SWR for vehicles greater 
than 2,722 kilograms (6,000 pounds). They stated that the point at 
issue, whether the costs are reasonable with respect to higher SWR 
levels for these vehicles, was not independently established by an 
appeal to any specific, recognized test that the agency sets forth for 
objective assessment of ``what costs are tolerable for gaining 
additional safety benefits.''
    While we believe that the basis for our decision concerning SWR was 
adequately presented and explained in the final rule, we will provide a 
more detailed discussion in responding to the petitions for 
reconsideration.
    We begin by elaborating on our earlier discussion of the Supreme 
Court's statement in State Farm that safety is the pre-eminent factor 
in vehicle safety rulemaking. We note that neither the Court nor the 
passages of legislative history it quoted suggested that the pre-
eminence of safety considerations leaves no significant role for other 
considerations to influence rulemaking decisions. The Court's opinion, 
as well as each of the two passages of legislative history, all 
emphasize that it is necessary and appropriate to consider costs as 
well as other non-safety factors, in making those decisions. We take 
the pre-eminence of safety to mean that strict considerations of 
economic efficiency do not govern vehicle safety rulemaking. We do not, 
however, understand it to mean that we must establish requirements 
whose benefits are mathematically significantly disproportionate to 
their costs, especially when the costs are large in absolute terms.
    As to the suggestion that we establish a specific numerical test 
for determining whether costs are reasonable in relation to likely 
benefits and apply it across the board to particular rulemakings, 
regardless of their individual circumstances, we decline to do so. 
Adoption of a formulaic calculus of decisionmaking would preclude a 
careful, fact-based assessing and weighing of competing considerations. 
We must consider all relevant factors in the context of the facts in 
any particular rulemaking, and therefore cannot consider safety in 
isolation or without due regard to those other factors.
    We can, however, identify the types of facts that lead us to give 
careful scrutiny to reasonableness of costs in a rulemaking, and which 
lead us to place increased weight on this factor as we consider all 
other relevant factors in reaching a particular decision. Specifically, 
we give scrutiny to the issue of reasonableness of costs in rulemakings 
where our analyses indicate that either the overall rulemaking, or a 
significant portion of the rulemaking, is borderline with respect to 
whether it is cost beneficial, i.e., whether the benefits of the 
rulemaking exceed the costs. Moreover, in situations where either the 
overall rulemaking or a significant portion of the rulemaking appears 
likely to result in net disbenefits, i.e., net losses, our scrutiny 
increases as the size of the potential net disbenefits increases, and 
the weight we accordingly place on this factor increases.
    The agency did weigh the competing considerations and relevant 
factors for this rule. Although Advocates et al. argue that the agency 
merely cited the fact that there are increased costs, the agency 
presented detailed cost-effectiveness and benefit-cost analyses in its 
FRIA for the roof crush resistance final rule and summarized those 
analyses in the preamble. Among other items, these analyses looked at 
the number of fatalities that the rule would prevent. In fact, in the 
FRIA, NHTSA published a table summarizing costs and benefits for 
various SWR alternatives (1.5, 2.0, 2.5, 3.0, 3.5). The agency also 
considered one-sided and two-sided tests. See FRIA, pp. 125-134. Based 
on the analysis of the alternatives in the FRIA and after considering 
the comments received, the agency changed the SWR requirement from that 
included in the proposal. In the NPRM, the agency included a 2.5 SWR, 
one-sided requirement for all vehicles with a GVWR of 4,536 kilograms 
(10,000 pounds) or less. While the agency lowered the SWR requirement, 
as compared to the NPRM, to 1.5 for the heavier light vehicles in the 
final rule, the agency actually raised the SWR to 3.0 for vehicles with 
a GVWR of 2,722 kilograms (6,000 pounds) or less. This was done, in 
part, because doing so would prevent significantly more fatalities.
    In an effort to respond to the petition of Advocates et al., the 
agency is including a recitation of how the agency came to its 
conclusions relating to the change in SWR. As with any rule, the 
estimates of cost effectiveness rely on a number of important inputs 
and calculations.\5\ For example, the cost effectiveness of the rule 
was estimated for each alternative using both 3% and 7% discount rates. 
The net benefits for each alternative represent the difference between 
total costs and the total monetary value of benefits.
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    \5\ It is important to note that many benefit and cost 
calculations changed between publication of the PRIA and FRIA. These 
changes are detailed in the FRIA. For example, the agency's inputs 
changed due to the increased use of electronic stability control and 
for increased seat belt use. The agency also made adjustments to 
calculations of costs. For example, the agency's cost inputs changed 
because the agency received more information concerning vehicle 
weight.
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    In order to calculate net benefits, it is necessary to use a value 
per statistical life saved (VSL). Guidance from the Office of the 
Secretary of Transportation (OST) specifies a value of $5.8 million, 
with recommendations that values of $3.2 million and $8.4 million also 
be considered to account for uncertainty. We note that this guidance is 
available on the OST Web site.\6\ We also note that the value of $5.8 
million was adopted in February 2008 and represented an increase from 
an earlier value of $3.0 million that had been adopted in January 2002.
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    \6\ https://ostpxweb.dot.gov/policy/reports/080205.htm.
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    The monetary value of benefits used by NHTSA also included $300,000 
in economic costs prevented. Thus, for our primary estimates, the 
monetary value of benefits was estimated by assigning a value of $6.1 
million to each equivalent fatality prevented.
    The FRIA includes cost-effectiveness and benefit-cost analyses for 
various alternatives considered by the agency. As noted in the 
preamble, nearly all alternatives covering vehicles from 2,723 and 
4,536 kilograms (6,001 and 10,000 pounds) GVWR yield net losses rather 
than net savings to society. The agency's specific estimates of net 
benefits for two-sided test requirements with alternative SWRs are 
presented in the following table.\7\
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    \7\ See Table VII-4 of the FRIA. We note that NHTSA identified 
minor errors in Table VII-4. The agency is placing a corrected table 
in the docket. The numbers presented in this document are the 
corrected numbers.

 Net Benefits; Vehicles > 2,722 Kilograms (6,000 Pounds); 2-Sided Tests;
                            $5.8 Million VSL*
------------------------------------------------------------------------
            SWR alternative                       Net benefits
------------------------------------------------------------------------
1.5...................................  $55 million to $180 million.
2.0...................................  $123 million to $547 million.
2.5...................................  $590 million to $1,189 million.
3.0...................................  $1,280 million to $2,136
                                         million.
------------------------------------------------------------------------
* Based on $5.8 million VSL plus $300,000 economic costs.

    This table shows that for light vehicles with a GVWR greater than

[[Page 17610]]

2,722 kilograms (6,000 pounds), all of these alternative SWRs, 
including the one we adopted, result in net losses to society, and also 
that net losses increase by a substantial amount at each higher 
alternative. For example, it is clear that going successively to each 
alternative above 1.5 can result in additional hundreds of millions of 
dollars of net losses. The net losses from the 3.0 SWR alternative, the 
one advocated by the petitioners, would be well in excess of a billion 
dollars.
    We also note that consideration of uncertainties related to VSL 
does not significantly affect these numbers. The net losses are 
slightly higher using a VSL of $3.2 million and slightly lower using a 
VSL of $8.4 million. See Tables VII-5 and VII-6 of the FRIA. However, 
even using a VSL of $8.4 million, the net losses are $50 million to 
$174 million for an SWR of 1.5 and $101 million to $524 million for an 
SWR of 2.0, and continue to rise substantially for higher SWRs.
    The FRIA presents cost-effectiveness and benefit-cost analyses in a 
number of different ways, including calculations of cost per equivalent 
life saved for different alternatives. The cost per equivalent life 
saved for all of the alternatives identified in the table above is well 
above the range of plausible VSL, i.e., the range where they would be 
considered cost-beneficial. See Table VII-3 of the FRIA. We note that, 
while well above this range, the cost per equivalent life saved is 
slightly less disfavorable for a 2.0 SWR than a 1.5 SWR ($18.8 million 
to $72.0 million vs. $27.9 million to $90.3 million). However, given 
the small number of additional benefits and the substantially higher 
costs associated with the 2.0 SWR alternative, the net losses for this 
alternative are substantially higher than for the 1.5 SWR alternative 
($123 million to $547 million vs. $55 million to $180 million). The 
cost per equivalent life saved for an SWR of 3.0 would be $88.4 million 
to $140.0 million.
    NHTSA and other agencies evaluate cost-effectiveness and benefit-
cost analyses as part of ensuring that they and the public are fully 
aware of the consequences of their rulemaking decisions. Societies have 
limited resources and many alternative ways of using those resources, 
including many alternative ways of reducing risks. To the extent that 
various regulatory alternatives result in increasingly high costs to 
achieve limited safety benefits and net losses to society rather than 
net benefits, they raise the issue of whether those societal resources 
could better be used elsewhere, especially when the net losses are 
substantial. While NHTSA has always placed primary importance on safety 
benefits, it has never considered safety without regard to cost 
implications.
    In our May 2009 final rule, we adopted a SWR of 1.5 for the heavier 
light vehicles despite the fact that, at this level, our analyses 
showed that there would be net losses to society. The reasons for this 
are cited above. We declined, however, to adopt a SWR higher than 1.5 
for vehicles with a GVWR greater than 2,722 kilograms (6,000 pounds). 
As we stated in the FRIA, ``the cost/equivalent fatality for vehicles 
over 6,000 lbs. GVWR is roughly 12-16 times that for the lighter 
vehicles at any given SWR.'' \8\
---------------------------------------------------------------------------

    \8\ FRIA at p. 120.
---------------------------------------------------------------------------

    The costs of the rule for these vehicles are substantial at 1.5 
SWR, i.e., $70.9 million to $195.0 million, and would increase to 
$182.3 million to $605.9 million for an SWR of 2.0. See Table VII-2 of 
the FRIA. Moreover, as noted above, given the small number of 
additional benefits and the substantially higher costs associated with 
the 2.0 SWR alternative, the net losses to society for this portion of 
the rulemaking would increase from the range of $55 million to $180 
million for the 1.5 SWR alternative to the range of $123 million to 
$547 million for the 2.0 SWR alternative. Also, the increased net 
losses for still higher SWRs would be very substantial, e.g., well in 
excess of a billion dollars for SWR of 3.0. Given the small number of 
additional benefits, the magnitude of the net losses to society, and 
given how far outside the range of cost per equivalent life that would 
ordinarily be considered to be cost-beneficial, we believe our decision 
not to adopt an SWR higher than 1.5 for these vehicles is reasonable, 
and we do not accept these petitioners' argument that the agency 
unwarrantedly elevated cost considerations above safety.
    Advocates et al. also claimed that NHTSA had previously reached a 
significantly different result in similar circumstances, citing the 
agency's 1995 rule amending FMVSS No. 201, Occupant Protection in 
Interior Impact, to require light vehicles to provide protection when 
an occupant's head strikes upper interior components. They specifically 
cited the agency's decision to include components in the rear seating 
area of light trucks and vans (LTVs), despite a great disparity in the 
costs per equivalent life saved between preventing fatalities in front 
seat areas and preventing fatalities in rear seat areas, and despite a 
very high cost per equivalent life saved for the latter areas.
    As indicated earlier, we decline to define or otherwise adopt any 
specific numerical test related to costs and benefits as determinative 
as to whether costs are reasonable or not. We instead consider all 
relevant factors in any particular rulemaking, and do not consider this 
factor in isolation. Moreover, NHTSA rulemakings where either the 
overall rulemaking or a signification portion of the rulemaking is 
borderline with respect to whether the benefits exceed the costs or 
where there may appear to be net disbenefits are rare. For these 
reasons, and in light of the unique nature of the issues involved in 
such rulemakings, we do not consider the specific decisions we reach in 
one of these rulemakings to be directly comparable to other 
rulemakings. We note that while the overall FMVSS No. 201 rulemaking 
was highly cost-beneficial, the overall FMVSS No. 216 rulemaking is 
not.\9\ We also note that the agency decided in the former rulemaking 
that coverage of the rear seat areas was particularly necessary because 
children are disproportionately likely to be seated in the rear, 
instead of the front, seating area and would be subject to head 
injuries unless the rear seating areas were included.
---------------------------------------------------------------------------

    \9\ Adjusted to 2007 economics, the cost per equivalent life 
saved for the overall FMVSS No. 201 rulemaking was $1.1 million to 
$1.3 million.
---------------------------------------------------------------------------

3. Petitioners' Argument Concerning Equity
    Advocates et al. made arguments related to equity. They claimed 
that it is inequitable to those who travel in large vans and large 
sport utility vehicles (SUVs) for those vehicles to be subject to a 
lower standard for roof crush resistance safety. They noted that the 
agency proposed an SWR of 2.5 for all light vehicles, and the 
petitioners claimed that the agency ``reneged on the need to provide 
equal safety for all light motor vehicle occupants in the final rule.'' 
CfIR argued that drivers and passengers of light trucks, SUVs and vans 
to 4,536 kilograms (10,000 pounds) GVWR deserve the same rollover 
protection as occupants of 2,722 kilograms (6,000 pounds) GVWR 
vehicles. It stated that trucks, SUVs and vans which accommodate four 
to 15 passengers are primarily used by commercial operators, schools, 
social groups, and non-profit entities.
    In responding to these arguments, we note that we explained in the 
final rule preamble that while we recognized the argument that all 
light vehicles should meet the same SWR requirements, to ensure the 
same minimum level of

[[Page 17611]]

protection in a rollover crash, we believed in selecting particular 
requirements for a final rule that our focus needed to be on saving 
lives while also considering costs and relative risk. We stated that 
what is necessary to meet the need for safety and is practicable for 
one type or size of vehicle may not be necessary or reasonable, 
practicable and appropriate for another type or size of vehicle.
    We explained further that, to the extent the goal of establishing 
the same SWR requirements for all light vehicles would have the effect 
of either unnecessarily reducing the number of lives saved in lighter 
vehicles or imposing substantially higher, unreasonable costs on 
heavier vehicles despite their lesser relative risk, we believed it was 
appropriate to adopt different requirements for different vehicles.
    NHTSA considers all relevant factors, including, where appropriate, 
special concerns. As noted above, in a FMVSS No. 201 rulemaking, the 
agency decided that it was particularly necessary to protect children, 
who are often seated in the rear and who would be susceptible to head 
injuries unless the rear seating areas were included.
    The agency has never, however, adopted a position that identical 
safety requirements should apply to all light vehicles or at all 
seating positions regardless of considerations such as relative risks 
and costs. The Vehicle Safety Act requires us to issue standards that 
meet the need for motor vehicle safety. For any given aspect of vehicle 
safety performance, the need for motor vehicle safety, which is defined 
in the Act in terms of unreasonable risk, varies by type and size/
weight of vehicle, as well as by other factors. Given those differences 
in risk, the type and level of regulation that is reasonable, 
practicable and appropriate for one vehicle type may differ from that 
for another vehicle type. Moreover, we believe that adopting an 
inflexible position of identical requirements regardless of the 
particular circumstances would be contrary to public safety. Such a 
position, in combination with the fact that often some light vehicles 
have greater compliance difficulties than other light vehicles and thus 
might not be able to achieve as high a level of performance as those 
other vehicles, could force the adoption of lower, less protective 
requirements for all light vehicles.
    Given these considerations, we do not accept the petitioners' 
arguments concerning equity.
4. Consequences of Lower Roof Crush Protection for Heavier Light 
Vehicles and Documentation From NTSB
    Advocates et al. argued that the consequences of what they term 
inadequate roof crush protection for large light truck and van 
occupants are more severe than for light passenger vehicles. They also 
argued that NTSB comments, investigations, and recommendations document 
the serious occupant risks of death and injury in large van rollover 
crashes.
    The petitioners stated that the greater weight of the heavier 
vehicle places higher loads on the roof and roof supports during a 
rollover. They also stated that certain heavier passenger vehicles will 
be even more inadequately protected from intrusive roof crush in 
rollover crashes than lighter passenger vehicles because they have long 
roofs and multi-row seating, especially 8-occupant large SUVs, and 12- 
and 15-passenger vans. They stated that the specified test requirements 
do not test the crush resistance of C-, D- and E- pillars of heavier, 
longer passenger vehicles.
    Advocates et al. also noted that NHTSA has published repeated 
advisories and research analyses warning of the very high rollover 
propensity of 15-passenger vans. They stated in its latest research 
note, titled Fatalities to Occupants of 15-Passenger Vans, 2003-
2007,\10\ NHTSA stressed that ``15-passenger vans with 10 or more 
occupants had a rollover rate in single vehicle crashes that is nearly 
three times the rate of those that had fewer than five occupants.'' 
They also noted that the research report indicated that, in 2007, 
fatalities of occupants of 15-passenger vans increased nearly 20 
percent from the previous year, as well as other data from that report.
---------------------------------------------------------------------------

    \10\ Fatalities to Occupants of 15-Passenger Vans, 2003-2007, 
Traffic Safety Facts: Research Note, DOT HS 811 143, National 
Highway Traffic Safety Administration, May 2009, at page 5.
---------------------------------------------------------------------------

    The petitioners stated that NTSB also emphasized the need for much 
stronger roofs in heavy passenger vans both in its accident reports and 
in its comments filed with NHTSA rulemaking dockets on passenger 
vehicle roof crush resistance. Advocates et al. stated that in 
commenting on NHTSA's NPRM to amend FMVSS No. 216, NTSB pointed out 
that heavier vehicles such as 12- and 15-passenger vans, not subjected 
to the roof strength standard, were experiencing patterns of roof 
intrusion greater than vehicles already subject to the requirements and 
cited two investigations it conducted concerning the safety need for 
vehicles between 2,722 and 4,536 kilograms (6,000 and 10,000 pounds) 
GVWR to meet roof crush resistance requirements. These petitioners 
included a discussion of these investigations, and asserted that 
NHTSA's roof crush final rule does not fulfill NTSB recommendations for 
vans and heavier vehicles.
    In reaching its decision on the roof crush final rule, NHTSA 
carefully considered the consequences of alternative SWR requirements 
for the heavier light vehicles. As discussed above, as part of this, 
the agency conducted a detailed analysis of the benefits and costs at 
alternative SWR levels, which is presented in detail in the agency's 
FRIA. Among other things, the agency conducted a detailed analysis of 
the target population of occupants who would be likely to benefit from 
a stronger roof due to an upgrade of FMVSS No. 216, and how they would 
benefit from stronger roofs meeting alternative SWR level requirements.
    While we adopted, for reasons discussed in the final rule preamble 
(and also discussed above), a lower SWR level for the heavier light 
vehicles than for ones with a GVWR of 2,722 kilograms (6,000 pounds) or 
less, the 1.5 SWR requirement we adopted is more stringent than the 
longstanding requirement that has applied to lighter vehicles until 
this rulemaking. The standard now requires a two-sided test. We also 
note that since the amount of force that a vehicle's roof must 
withstand in the specified test is a multiple of the vehicle's unloaded 
weight, e.g., 1.5 times the unloaded weight of the vehicle, the amount 
of force that is applied to a vehicle's roof is higher for heavier 
vehicles than lighter vehicles at any constant SWR.
    Advocates et al. raised specific issues concerning the safety of 
larger passenger vans. We note that, as discussed in the May 2009 
research note \11\ they cited, and in documents referenced by that 
note, NHTSA developed a specific action plan for 15-passenger van 
safety. In September 2003, the agency published the NHTSA Action Plan 
for 15-Passenger Van Safety. It described a number of research 
programs, consumer information activities and potential regulatory 
actions with which NHTSA intended to address the safety of 15-passenger 
van users. The plan was updated in November 2004 and the most recent 
update to the plan was

[[Page 17612]]

prepared in April 2008.\12\ The action plan is discussed at pp. 4 to 5 
of the referenced May 2009 research note.\13\
---------------------------------------------------------------------------

    \11\ The research note available on NHTSA's Web site at https://www-nrd.nhtsa.dot.gov/Pubs/811143.PDF.
    \12\ This update is available on NHTSA's Web site at: https://www.nhtsa.dot.gov/cars/problems/studies/15PassVans/VAP_rev1_2008.pdf.
    \13\ We note that there is some overlap between the actions in 
the agency's action plan for 15-passenger van safety and its 
comprehensive plan for addressing the serious problem of rollover 
crashes, discussed earlier in this document.
---------------------------------------------------------------------------

    Occupant protection for 12- and 15-passenger van continues to be an 
agency priority and, as a result of the agency's rulemaking to upgrade 
FMVSS No. 216, these vehicles will for the first time be required to 
comply with FMVSS No. 216. The May 2009 research note indicated that 
fatalities, both total and in vans that rolled over, have been on a 
declining trend since 2001. As noted by the petitioner, there was an 
increase in 2007; however, we expect that the safety benefits that will 
occur as a result of new regulatory requirements adopted in connection 
with the agency's action plan for 15-passenger van safety and its 
comprehensive plan to address the serious problem of rollover crashes 
will increase over time as the new requirements are phased in and as an 
increasing percentage of the on-road fleet meet these requirements.
    As part of our rulemaking to upgrade FMVSS No. 216, we considered 
the comments and recommendation of the NTSB. In the final rule, we 
indicated that the rule would address the NTSB's recommendation H-03-
16, to include 12- and 15-passenger vans in FMVSS No. 216, to minimize 
the extent to which survivable space is compromised in the event of a 
rollover accident. We plan to consult further with NTSB about its 
recommendation. We note that the petitioners have not provided any 
information that would lead us to change our view that the rule 
addresses that NTSB recommendation.
    In its petition, CFiR also requested the agency to adopt a higher 
SWR for the heavier light vehicles with passenger seating positions of 
three or more. CfIR stated that these vehicles are often less stable, 
occupants are more vulnerable, and the vehicles are used more 
frequently in off-road transportation. As part of analyzing the target 
population of occupants who would be likely to benefit from a stronger 
roof due to an upgrade of FMVSS No. 216, the agency has already 
accounted for issues related to the stability of these vehicles and 
vulnerability of their occupants. Historically, vehicles with a GVWR 
between 2,723 and 4,536 kilograms (6,001 and 10,000 pounds) comprise 
approximately 20 percent of the fleet with over 90 percent of these 
heavy vehicles allowing for three or more seating positions.\14\ As to 
the issue of more frequent off-road use, we note that the relevant 
agency sources would not collect data for crashes that happen during 
off-road transportation such as at work sites. However, CfIR has not 
provided any supporting information relating to its claim that the 
vehicles are used more frequently in off-road transportation, or that 
there are any significant number of rollover crashes that would 
meaningfully affect the target population used by the agency for its 
analysis of benefits and costs. We therefore do not accept this 
argument.
---------------------------------------------------------------------------

    \14\ According to the 2007 model year Polk Automotive vehicle 
registration data, standard cab pickup trucks with one row of 
seating and at least two designated seating positions account for 
approximately 10 percent of all vehicles registered with a GVWR 
between 2,723 and 4,536 kilograms (6,001 and 10,000 pounds). 
Extended cab pickup trucks, vans and sport utility vehicles that 
have the capacity to seat three or more occupants account for the 
remaining registrations in this vehicle weight class.
---------------------------------------------------------------------------

5. Agency's Cost-Benefit Analysis
    Advocates et al. argued that NHTSA's cost-benefit analysis 
underestimates the number of lives that could be saved by much stronger 
roofs. They cited benefits estimates submitted by the Insurance 
Institute for Highway Safety (IIHS) in a March 2008 comment and in a 
subsequent publication. These petitioners stated that in that 
publication IIHS claimed that NHTSA underestimated roof strength 
improvement benefits due to the agency's mistaken belief that there 
will be no benefits for unbelted occupants or those occupants who risk 
ejection. They also said that IIHS provided much higher estimates of 
benefits than NHTSA.
    Advocates et al. claimed that the agency failed to discuss or 
respond to the initial IIHS benefits estimate in the final rule. They 
claimed that while the agency engaged in ``a highly detailed, extensive 
evaluation in the FRIA of the strengths and weaknesses of the study 
attached by IIHS to its docket comments,'' the agency failed in this 
supporting document to evaluate the benefits claims proffered by IIHS. 
The petitioners stated that the central point of the IIHS submission to 
the supplemental notice of proposed rulemaking (SNPRM) docket was to 
emphasize that the agency had dramatically underestimated the benefits 
of adopting a stronger fleet-wide FMVSS No. 216. Advocates et al. 
claimed that NHTSA ignored the merits of the IIHS benefits analysis 
``notwithstanding the internal debate set forth in the FRIA over some 
aspects of the methodology and data selected by IIHS in conducting its 
study.''
    NHTSA does not accept the claim of these petitioners that the 
agency ignored the merits of the IIHS benefits analysis. We begin by 
emphasizing that NHTSA's decision is based in significant part on the 
agency's Final Regulatory Impact Analysis. In section VII of the 
preamble to the final rule, titled Costs and Benefits, we explained 
that ``(t)he agency addresses the comments concerning its analysis of 
costs and benefits in detail in the FRIA.'' 74 FR 22377. We also noted 
that, in the final rule preamble, we summarized the agency's estimates 
of costs and benefits and discussed the comments concerning target 
population and roof crush as a cause of injury.
    In the FRIA, the agency provided a detailed 5-page discussion of 
the various IIHS studies, including both their methodology and 
conclusions (see pages 47-51). This discussion addressed the IIHS 
submissions from March 2008, May 2008, and February 2009, representing 
the most recent IIHS research submitted prior to publication of the 
final rule in May 2009. This same discussion also addressed comments by 
JP Research, which submitted its own evaluation of the IIHS study, and 
argued that there were significant flaws in its methodology.
    NHTSA's discussion in the FRIA showed the limitations of the IIHS 
methodology and showed that its conclusions regarding ejections and 
belt use are not supported by the data. This discussion was not, as 
Advocates et al. suggest, an ``internal debate'' but an evaluation of 
the merits of the IIHS study and its findings. The FRIA also described 
the agency's own study, which applied previously peer-reviewed methods 
specifically to ejections and unbelted occupants, and which 
contradicted the IIHS studies. Given these considerations, the agency 
did not accept the benefit estimates provided by IIHS. The relevant 
issues concerning estimated benefits are addressed in much greater 
detail in Chapter IV of the FRIA.
    Advocates et al. did not address any of the detailed criticisms of 
the IIHS analyses discussed by NHTSA in the FRIA, but simply claimed in 
its petition that the agency had ignored the merits of the IIHS study. 
Given the above discussion, we do not accept that claim.
    Advocates also criticized the agency's adjustment of future target 
populations to reflect the required installation of electronic 
stability control (ESC) in all passenger vehicles. Advocates stated 
that the agency has only projected safety benefits as the fleet 
gradually is

[[Page 17613]]

equipped with ESC, including large vans, but no actual crash data 
specifically verifying that rollovers have been reduced in large vans 
as a direct result of ESC.
    The analysis presented by NHTSA in the FRIA reflects a projection 
of annual impacts that will occur when the entire vehicle fleet has 
been designed to include both ESC and stronger roofs, not the impacts 
to today's on-road fleet. In numerous studies as well as in vehicle 
tests, ESC has been shown to significantly reduce rollover crashes in 
passenger vehicles. During the course of the ESC rulemaking, when 
projecting the costs and benefits of ESC, NHTSA used effectiveness 
estimates based on sound, peer reviewed statistical studies to project 
the benefits of ESC in all passenger vehicles, including large vans. We 
note that in comments concerning the PRIA for ESC, Advocates 
acknowledged that the installation of ESC would impact the FMVSS No. 
216 rulemaking by reducing the number of rollovers.
    ESC will be standard equipment on all passenger vehicles before the 
new roof crush requirements become effective. This means that future 
vehicle fleets containing the stronger roofs required by FMVSS No. 216 
will experience fewer rollover crashes than are experienced by the 
current on-road fleet. It would be inappropriate to compare the costs 
of improving roof strength to benefits derived from current fatality 
and injury levels without first adjusting for the significant impact 
that ESC will have on the crash experience of future vehicle fleets 
with enhanced roof strength.
    Advocates et al. also claimed that ESC may not be effective in 
large vans. At the time NHTSA did its statistical analysis of this 
issue, there were too few vans on the road with ESC to analyze them 
separately from other vehicles. However, NHTSA has tested ESC on large 
vans and found that it is effective in improving stability in potential 
rollover scenarios. This study \15\ found that ``* * * installation of 
ESC on 15-passenger vans may have important safety benefits in some, 
but not necessarily all, on-road driving situations.'' This is 
reasonably consistent with ESC applicability in other vehicles where it 
is highly effective in many circumstances, but cannot prevent rollover 
in all situations.
---------------------------------------------------------------------------

    \15\ Forkenbrock, G.J., and Garrott, W.R., ``Testing the 
Rollover Resistance of Two 15-Passenger Vans with Multiple Load 
Configurations,'' National Highway Traffic Safety Administration, 
Washington, DC, June 2004, DOT HS 809 704.
---------------------------------------------------------------------------

    Moreover, large vans make up a very small portion of the target 
population. NHTSA examined the sample cases included in its target 
population and did not find any cases involving large vans that met the 
criteria for inclusion. This does not imply that there would never be 
such cases, but it does indicate that they are a relatively rare 
occurrence.
    One possible reason, aside from the relative rarity of these 
vehicles in the fleet, is that roof crush typically is only an issue in 
vehicles that roll more than one quarter turn. The general shape of 
large vans, with more extensive areas of sheet metal on each side, 
makes it less likely that they would roll more than one quarter turn. 
In NHTSA's Crashworthiness Data System (CDS) from 2004-2008, the 
portion of crash-involved passenger cars that rolled over was roughly 
equal to the portion of crash-involved vans that rolled over, but, 
passenger cars were twice as likely as vans to roll more than one 
quarter turn and thus expose their occupants to potential roof 
intrusion.
    Given the above considerations, we decline to reconsider the target 
population related to ESC considerations.

B. Request That Agency Adopt a Dynamic Testing Provision

1. May 2009 Preamble Discussion
    As discussed in the preamble to our May 2009 final rule, we 
developed our proposal to upgrade roof crush resistance requirements 
after considerable analysis and research, including conducting a 
research program to examine potential test procedures that might be 
adopted to improve the roof crush resistance requirements. The agency 
testing program included full vehicle dynamic rollover testing, 
inverted vehicle drop testing, and comparing inverted drop testing to a 
modified FMVSS No. 216 test. After considering the results of the 
testing and other available information, the agency concluded that the 
quasi-static procedure generates results that suitably represent the 
real-world dynamic loading damage patterns, and is the most appropriate 
one on which to focus our upgrade efforts.
    We did not propose a dynamic test procedure in either the NPRM or 
the SNPRM. We did discuss in the NPRM a number of types of dynamic 
tests and why we were not including them in the proposal. With respect 
to the JRS test, we noted that although the agency was open to further 
investigating that test, we had no data regarding the repeatability of 
dummy injury and roof intrusion measurements, and would also need 
further information on its performance measures, practicability, and 
relevance to real-world injuries. We stated that, in summary, we were 
not proposing a dynamic test procedure and that we believed the current 
quasi-static test procedure is repeatable and capable of simulating 
real-world deformation patterns. We also stated that we were unaware of 
any dynamic test procedures that provide a sufficiently repeatable test 
environment.
    Consumer advocacy organizations and a number of other commenters 
argued that it is not enough to upgrade the current quasi-static 
requirement, and that a dynamic test requirement is needed. While 
specific recommendations varied, one was for the agency to adopt an 
upgraded quasi-static requirement now, and to proceed with further 
rulemaking at this time for a dynamic test.
    After reviewing the comments, we declined to pursue a dynamic test 
as part of that rulemaking, or to initiate a separate rulemaking for a 
dynamic test. We included an analysis of the comments recommending a 
dynamic test in an appendix.
    We stated in the preamble that we were still not aware of any 
dynamic test procedure that provides a sufficien