National Truck Equipment Ass'n v. National Highway Traffic Safety Administration

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0083p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

NATIONAL TRUCK EQUIPMENT ASSOCIATION, X

Petitioner, -

-

-

-

No. 09-3812

v.

,

>

-

-

NATIONAL HIGHWAY TRAFFIC SAFETY

Respondent. N-

ADMINISTRATION,

On Petition for Review from the

National Highway Traffic Safety Administration.

No. NHTSA-2009-0093.

Argued: November 29, 2012

Decided and Filed: March 28, 2013

Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: Bruce E. Alexander, WEINER, BRODSKY, SIDMAN & KIDER, PC,

Washington, D.C., for Petitioner. H. Thomas Byron III, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Bruce

E. Alexander, WEINER, BRODSKY, SIDMAN & KIDER, PC, Washington, D.C., for

Petitioner. H. Thomas Byron III, Michael P. Abate, UNITED STATES DEPARTMENT

OF JUSTICE, Washington, D.C., for Respondent.

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OPINION

_________________

COLE, Circuit Judge. This case arises from a longstanding dispute between the

National Highway Traffic Safety Administration (NHTSA) and the National Truck

Equipment Association (NTEA). NHTSA is a federal agency within the Department of

Transportation that writes and enforces safety standards for motor vehicles. NTEA is

1

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 2

a trade organization representing more than one thousand manufacturers who customize

bodies for special-purpose commercial vehicles. In 2005, NHTSA initiated a rulemaking

proceeding at Congress’s behest to upgrade the safety standard establishing strength

requirements for passenger compartment roofs in certain vehicles. NHTSA proposed,

among other things, extending the scope of the safety standard to include a previously

unregulated class of vehicles, many of which are produced by NTEA’s members. NTEA

resisted this proposal throughout the process, but to no avail. In 2009, NHTSA

promulgated Federal Motor Vehicle Safety Standard (FMVSS) No. 216a, which NTEA

now challenges on several grounds. For the reasons that follow, we deny the petition for

review.

I.

A.

Congress passed the National Traffic and Motor Vehicle Safety Act of 1966

(Safety Act) with the express purpose of “reduc[ing] traffic accidents and deaths and

injuries to persons resulting from traffic accidents.” Pub. L. No. 89-563, 80 Stat. 718

(codified at 49 U.S.C. §§ 30101-30183 (2010)). Toward this end, Congress directed the

Secretary of Transportation to prescribe safety standards for motor vehicles, see

49 U.S.C. § 30111(a), a statutory duty the Secretary has delegated to NHTSA since

1980, see 49 C.F.R. § 501.2 (2010). NHTSA’s standards serve as mandatory

performance benchmarks for motor vehicles and their constituent parts. See 49 U.S.C.

§ 30112(a)(1). As such, manufacturers must certify that the vehicles they produce

comply with each standard that applies. See id. § 30115.

While most of NHTSA’s standards are aimed at single-stage manufacturers of

non-commercial vehicles—the kind most of us drive everyday—this group is not the

only one subject to regulation. The Safety Act also applies to final-stage

manufacturers—who complete vehicles assembled in two or more stages—and

alterers—who make modifications to already-completed vehicles prior to sale. See id.

§ 30115(b). NTEA challenges FMVSS No. 216a only as it relates to the latter two

groups.

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 3

A little background is in order here. Final-stage manufacturers are for the most

part small companies that supply a market for custom-made work trucks driven by end-

users with specialized needs, like contractors and utility companies. See generally Nat’l

Truck Equip. Ass’n v. Nat’l Highway Traffic Safety Admin., 919 F.2d 1148, 1150-51

(6th Cir. 1990) (describing the market for multi-stage vehicles in considerable detail).

A final-stage manufacturer filling an order usually begins with a truck chassis produced

by a major manufacturer such as Ford or General Motors (GM). Oftentimes the chassis

will consist, in its entirety, of an engine, transmission, axles, wheels, and a completed

passenger compartment with bare frame rails in the rear (where the bed would be on a

non-commercial truck). This form of chassis is known as a “chassis-cab,” see 49 C.F.R.

§ 567.3, and it is functionally a work-in-progress. A final-stage manufacturer then

attaches a service body or other specialized equipment to complete the vehicle and meet

the end-user’s specific needs. One familiar example might be adding a flat bed and a

winch to complete a tow truck.

Like other manufacturers, final-stage manufacturers are required to certify that

the vehicles they complete are in compliance with all applicable safety standards.

49 U.S.C. § 30115(a)-(b). The Safety Act provides two avenues to do this. The most

straightforward avenue is to independently certify compliance. See id. § 30115(b)(2).

Taking this route generally entails conducting whatever test is specified in the relevant

standard—e.g., crashing a vehicle into a wall. Because the cost of conducting such tests

is almost always insurmountable for small companies, this is not a popular option among

final-stage manufacturers. Thankfully Congress anticipated this problem and included

a second avenue for final-stage manufacturers to certify compliance that amounts to

piggy-backing. See id. § 30115(b)(1). Final-stage manufacturers may rely on an initial

manufacturer’s certification statement that the incomplete vehicle it delivered conforms

to applicable standards—in other words, they are allowed to “pass through” the initial

certification rather than certifying independently. Id. Both the initial manufacturer and

the final-stage manufacturer of a vehicle have some responsibility in this scenario.

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 4

Pass-through certification is at the heart of the dispute between NTEA and

NHTSA. This avenue is made possible because initial manufacturers of chassis-cabs are

required to deliver their products with an incomplete vehicle document (IVD) that lists

the applicable safety standards “in effect at the time of manufacture.” 49 C.F.R.

§ 568.4(a)(7). For each standard, initial manufacturers must supply one of three kinds

of statements regarding an incomplete vehicle’s compliance. Id. A “Type 1” statement

certifies “that the vehicle when completed will conform to the standard if no alterations

are made in identified components of the incomplete vehicle.” Id. § 568.4(a)(7)(i). A

“Type 2” statement provides “specific conditions of final manufacture under which the

manufacturer specifies that the completed vehicle will conform to the standard.” Id.

§ 568.4(a)(7)(ii). Finally, a “Type 3” statement simply notes that “conformity with the

[applicable] standard cannot be determined based upon the components supplied on the

incomplete vehicle, and that the incomplete vehicle manufacturer makes no

representation as to conformity with the standard.” Id. § 568.4(a)(7)(iii). These

statements specify the restrictions and conditions that an initial manufacturer places on

the certification of a completed vehicle built on its chassis. A final-stage manufacturer

need only certify “that it has complied with the specifications set forth” in an IVD to

satisfy its duty under the Safety Act. 49 U.S.C. § 30115(b)(1); see also 49 C.F.R.

§ 567.5(d)(1) (noting that final-stage manufacturers are in the clear if they “complete the

vehicle in accordance with the prior manufacturers’ IVD”).

The Safety Act—and the attendant duty to certify—also applies to alterers. They

are generally small companies that make aftermarket modifications to single-stage

vehicles before those vehicles are first sold to end-users. See 49 C.F.R. § 567.3.

Alterers are distinct from final-stage manufacturers insofar as vehicles arrive to alterers

fully built; that is, the vehicles arrive with load-bearing and other specialized equipment

already attached rather than as an incomplete chassis-cab. For this reason, alterers face

a different certification regime under the Safety Act, one in which pass-through

certification is irrelevant. Single-stage manufacturers are required to certify that their

completed vehicles are compliant with all applicable safety standards. See 49 U.S.C.

§ 30115(a). Thus, there is no need to issue an IVD when delivering such vehicles to

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 5

alterers or anyone else. Alterers do not run afoul of the Safety Act so long as they avoid

making changes that take the completed vehicle out of conformity with any particular

standard. See 49 C.F.R. § 567.7(a)(1).

B.

The one and only safety standard relevant to this petition is FMVSS No. 216a,

which establishes strength requirements—known as “roof crush resistance”—for

passenger compartment roofs in certain vehicles. See id. § 571.216a. The standard

regulates roof pillars and roof materials to improve occupant safety in the event of a

rollover. NHTSA promulgated the first iteration of this standard in 1971 as FMVSS No.

216, see Motor Vehicle Safety Standards, 36 Fed. Reg. 23,299 (Dec. 8, 1971), and

amended it in 1991, see Roof Crush Resistance, 56 Fed. Reg. 15,510 (Apr. 17, 1991).

In 2005, Congress directed NHTSA to revisit the roof crush resistance standard

once again. See 49 U.S.C. § 30128(a), (d); see also Safe, Accountable, Flexible,

Efficient Transportation Equity Act: A Legacy for Users, Pub. L. No. 109-59, Title X,

§ 10301(a), (d), 119 Stat. 1144, 1939 (Aug. 10, 2005). The statute mandated new

rulemaking proceedings, including one to “establish performance criteria to upgrade

Federal Motor Vehicle Safety Standard No. 216 relating to roof strength for driver and

passenger sides.” 49 U.S.C. § 30128(d). This specific mandate came as part of a

broader effort to promulgate new “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 of not more than 10,000 pounds.” Id. § 30128(a).

Less than a month later, NHTSA heeded Congress’s call and issued a Notice of

Proposed Rulemaking (NPRM) regarding the roof crush resistance standard. 70 Fed.

Reg. 49,223 (Aug. 23, 2005). The NPRM set forth three significant changes intended

to upgrade existing FMVSS No. 216, one of which raised the weight limit for vehicles

subject to the standard from a Gross Vehicle Weight Rating (GVWR) of 6,000 pounds

to 10,000 pounds. Id. at 49,223-24. This particular change promised to have a large

impact on many multi-stage and altered vehicles not subject to the existing standard. In

an effort to mitigate the burden of demonstrating compliance with the new standard,

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 6

NHTSA stipulated that certain multi-stage vehicles could certify to an easier standard

(FMVSS No. 220) but excluded those built on chassis-cabs because their manufacturers

could take advantage of pass-through certification. Id. at 49,235.

In 2009, after considering public comments from numerous groups, NHTSA

modified its proposals and promulgated the final rule—designated as FMVSS No.

216a—which is the subject of this petition. See Roof Crush Resistance, Phase-In

Reporting Requirements, 74 Fed. Reg. 22,348 (May 12, 2009); see also Final Rule,

Correcting Amendment, 75 Fed. Reg. 17,604 (Apr. 7, 2010). NTEA draws our attention

to just one aspect of the final rule: NHTSA’s decision to extend the scope of the roof

crush resistance standard to include vehicles with a GVWR up to 10,000 pounds. See

74 Fed. Reg. at 22,348-49; see also 49 C.F.R. § 571.216a. At the same time that

NHTSA decided to extend the scope of the standard, it made two important concessions

regarding heavier vehicles vis-a-vis its position in the NPRM. First, the final rule only

requires that roofs on heavier vehicles be able to withstand an amount of force equal to

1.5 times the vehicle’s weight—that is, half the strength-to-weight ratio imposed on

vehicles with a GVWR of 6,000 pounds or less. See 74 Fed. Reg. at 22,348-49; see also

49 C.F.R. § 571.216a, S5.2. Second, the final rule only applies to multi-stage vehicles

“built on either a chassis cab or an incomplete vehicle with a full exterior van body.”

See 74 Fed. Reg. at 22,349; see also 49 C.F.R. § 571.216a, S3.1(a)(4). NHTSA also

provided plenty of lead time in the final rule. It decided to phase-in the upgraded roof

crush resistance standard over a lengthy period, giving manufacturers until September

2016 to begin certifying already-regulated vehicles and an extra year for newly regulated

vehicles. See 74 Fed. Reg. at 22,348; see also 49 C.F.R. § 571.216a, S8.8, S9(b).

C.

These concessions notwithstanding, one group that remains concerned about the

impact of FMVSS No. 216a is NTEA, an association counting among its members many

final-stage manufacturers and alterers who work on vehicles with GVWRs between

6,001 pounds and 10,000 pounds. These members face the daunting task of

demonstrating compliance with the roof crush resistance standard for the first time.

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 7

NTEA voiced their concerns throughout the rulemaking process in response to NHTSA’s

many requests for comments. See, e.g., Further Response to Comments, 75 Fed. Reg.

17,590 (Apr. 7, 2010). When those concerns were not addressed to their satisfaction in

the final rule, NTEA immediately filed this petition for review. We granted a motion to

hold the litigation in abeyance while NHTSA responded to further NTEA comments

regarding compliance with FMVSS No. 216a.

In 2010, NHTSA published its response to NTEA’s core concern: that

pass-through certification did not provide a realistic avenue for final-stage manufacturers

using chassis-cabs to comply with the upgraded roof crush resistance standard. See id.

NTEA had requested that NHTSA completely exclude its members from FMVSS No.

216a rather than leave them subject to its requirements with no way to certify

compliance. See id. at 17,594. But NHTSA rejected both the premise and the

conclusion. NHTSA noted that final-stage manufacturers had been using pass-through

certification to successfully comply with FMVSS No. 216 and similar standards for

decades. Id. at 17,599. NHTSA thus determined that final-stage manufacturers could

use this method to demonstrate compliance with the upgraded standard in FMVSS No.

216a without incurring significant new costs. Id. at 17,604. NHTSA also determined

that excluding all multi-stage vehicles from FMVSS No. 216a would be inconsistent

with Congress’s cardinal desire to improve occupant safety during rollovers. See

49 U.S.C. § 30128(a).

Immediately following NHTSA’s response, NTEA filed a petition for

reconsideration, which NHTSA predictably denied. See Response to Petition for

Reconsideration, 76 Fed. Reg. 15,903 (Mar. 22, 2011). The parties continued to trade

proposals regarding amendments to FMVSS No. 216a. But a mutually agreeable

solution proved elusive. When the settlement process finally broke down, this litigation

recommenced.

NTEA now challenges NHTSA’s adoption of FMVSS No. 216a insofar as it

extends the scope of the roof crush resistance standard to include vehicles with a GVWR

up to 10,000 pounds. NTEA asserts that NHTSA’s decision is arbitrary and capricious

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 8

and that the final rule fails to satisfy the minimum substantive criteria prescribed in the

Safety Act. In addition, NTEA asserts that NHTSA improperly delegated its statutory

authority. By contrast, NHTSA maintains that it conducted an appropriately thorough

rulemaking, involving input from many groups and numerous modifications to its

proposals, and ultimately promulgated a final rule that conforms to the language of the

Safety Act.

II.

Before we reach the merits, we begin by identifying the appropriate standards of

review. This is not always an easy task, especially in the administrative law context, but

it is a critical one. Here, our review of the final rule in question is to proceed along two

tracks: the first can be described as generally procedural, the other substantive.

The first track is defined by the traditional standards set forth in the

Administrative Procedure Act (APA). See Chrysler Corp. v. Dep’t of Transp., 472 F.2d

659, 670 (6th Cir. 1972). Section 706 requires us to uphold agency action unless it is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A). This inquiry is principally concerned with the agency

decisionmaking process. It is a familiar refrain that the process is considered arbitrary

and capricious if

the agency has relied on factors which Congress has not intended it to

consider, entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43 (1983). The arbitrary-and-capricious standard is a narrow one inasmuch as we are

“not to substitute [our] judgment for that of the agency.” Id. Instead, our role is limited

to reviewing the administrative record “to determine whether there exists a ‘rational

connection between the facts found and the choice made.’” Alliance for Cmty. Media

v. F.C.C., 529 F.3d 763, 786 (6th Cir. 2008) (quoting State Farm, 463 U.S. at 43). The

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 9

facts found, of course, must be supported by substantial evidence in the record as a

whole. Chrysler, 472 F.2d at 668; see also State Farm, 463 U.S. at 44. Put another way,

our role under the arbitrary-and-capricious standard is to ensure that NHTSA “complied

with all applicable procedural requirements” in making its decisions. Chrysler, 472

F.2d at 671 (emphasis added).

The second track is defined by the statutory limitations set forth in the Safety Act

itself, which is the source of NHTSA’s grant of authority to promulgate standards for

newly manufactured vehicles. Importantly, the grant is conditioned upon standards that

“shall be practicable, meet the need for motor vehicle safety, and be stated in objective

terms.” 49 U.S.C. § 30111(a). We have characterized these factors as the “minimum

substantive criteria against which each . . . standard must be tested.” Chrysler, 472 F.2d

at 668. Whether or not a standard passes the statutory test is an inquiry distinguishable

from traditional arbitrary-and-capricious review. Id. at 671. Our focus here is

principally substantive rather than procedural. Still, under the APA, a final rule that

conflicts with the language of the statute relied upon by the agency is considered “not

in accordance with the law.” City of Cleveland v. Ohio, 508 F.3d 827, 838 (6th Cir.

2007); see 5 U.S.C. § 706(2)(A).

While both of these standards of review are premised on deference, it is

important to be clear about the particular brand of deference. To that end, this case is

not one in which the Chevron analytical framework controls—notwithstanding

NHTSA’s assertion to the contrary. See Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984). The Chevron framework is generally appropriate

for use when an agency’s authority to act under a statute is questioned. See id. at 842-

45; see also Arent v. Shalala, 70 F.3d 610, 615 (D.C. Cir. 1995). Such a dispute often

manifests as competing interpretations of the statutory text demarcating the bounds of

Congress’s delegation to the agency. Arent, 70 F.3d at 615. But it is hardly

controversial that the Safety Act authorizes NHTSA to promulgate a safety standard

regulating roof crush resistance in certain vehicles. See 49 U.S.C. § 30111. Nor do the

parties dispute the proper meaning of the text of the Safety Act. What is ultimately in

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 10

doubt is whether NHTSA discharged its delegated authority in a justifiable manner. And

we review that question under the standards set forth in the APA and State Farm. See

Arent, 70 F.3d at 615-16.

In the instant petition, we are thus presented with three broad questions for

decision—some easier to answer than others. (1) Was the process by which NHTSA

promulgated FMVSS No. 216a arbitrary and capricious, or did NHTSA conduct its

rulemaking proceedings in a sufficiently thorough manner? (2) Setting aside the

decisionmaking process, does FMVSS No. 216a fall short of the minimum substantive

criteria prescribed in the Safety Act, or does it satisfy all three? (3) Finally, did NHTSA

improperly delegate its statutory authority as part of FMVSS No. 216a? We answer each

question in turn.

III.

The first question is essentially a procedural one. We must ask whether NHTSA

conducted the rulemaking proceeding that resulted in the adoption of FMVSS No. 216a

in accordance with the APA’s procedural requirements. Our review is limited by the

narrow scope of the petition, concerning only the decision to regulate final-stage

manufacturers and alterers. After canvassing the record, we are satisfied that the agency

decisionmaking process was adequate.

Under the APA, we have the power to set aside agency action if it is “arbitrary

and capricious.” 5 U.S.C. § 706(2)(A). Here, our review turns in part on whether

NHTSA amassed sufficient record evidence to support its conclusions. See State Farm,

463 U.S. at 43-44. Our review turns in other part on whether NHTSA properly relied

on the factors Congress intended it to consider when promulgating a new safety

standard. See id. at 43. These factors are clearly articulated in the Safety Act. Congress

directed NHTSA to consider the “relevant available motor vehicle safety information”;

“whether [the] proposed standard is reasonable, practicable, and appropriate for the

particular type of motor vehicle”; and “the extent to which the standard will carry out”

the purposes of the Safety Act. 49 U.S.C. § 30111(b). These factors underscore the

notion that “[t]he Safety Act’s mandate is not . . . categorical,” Ctr. for Auto Safety v.

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 11

Peck, 751 F.2d 1336, 1343 (D.C. Cir. 1985), as the Act does not contemplate the

elimination of all accidents or injuries, only those that are “unreasonable.” See 49

U.S.C. § 30102(a)(8); S. Rep. No. 89-1301, at 2714 (1966) (noting that the Secretary

“will necessarily consider reasonableness of cost, feasibility and adequate lead time”).

Nonetheless, Congress has maintained that “safety shall be the overriding consideration”

in the regulatory calculus. S. Rep. No. 89-1301, at 2714.

Turning now to the record, it seems obvious to us that NHTSA promulgated the

final rule at issue only after engaging in an exhaustive and well-considered

decisionmaking process. We begin with the evidence. NHTSA compiled multiple

studies and reports “indicat[ing] that a significant number of serious and fatal injuries

occur during rollovers of light trucks”—a class of vehicles including multi-stage and

altered trucks with a GVWR up to 10,000 pounds—and that many of those injuries could

be attributed to roof crush. See 70 Fed. Reg. at 49,232-34 (finding that “412 belted, not

fully ejected occupants are killed or seriously injured every year in light trucks” with a

GVWR between 6,001 pounds and 10,000 pounds “involved in rollover crashes resulting

in roof intrusion”); see also id. at 49,228 (noting that heavier vehicles experience higher-

than-usual roof crush). NHTSA also connected the rollover problem in heavier vehicles

with occupant safety. Specifically, NHTSA found that extending the scope of the roof

crush resistance standard to include heavier vehicles would help “prevent 135 fatalities

and 1,065 nonfatal injuries annually.” 74 Fed. Reg. at 22,349. All of which goes to

show that NHTSA amassed sufficient evidence of a problem and moved to enact a

reasonable solution.

In addition, we have little doubt that NHTSA weighed the proper factors in

crafting this solution—one part of which was to extend the reach of the roof crush

resistance standard to heavier vehicles. The record attests to NHTSA’s sensitivity to

manufacturers’ concerns about demonstrating compliance with the upgraded standard.

See, e.g., 70 Fed. Reg. at 49,234. The record also attests to NHTSA’s desire to seek a

workable balance between such concerns and Congress’s “overriding” interest in safety.

Among other things, NHTSA exempted multi-stage vehicles “where the final-stage

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 12

manufacturer would need to complete the roof structure,” see 76 Fed. Reg. at 15,910;

allowed all multi-stage vehicles not built on chassis-cabs to certify to an easier standard,

see id. at 15,908; and modified the test in FMVSS No. 216a to avoid any compression

of the frame rails, see id. at 15,918-19. Moreover, NHTSA made these concessions after

engaging in an extensive dialogue with groups of all stripes, including NTEA. We do

not think the APA or State Farm compel anything more from the decisionmaking

process.

NTEA disagrees and raises two objections that we view as inherently procedural.

First, NTEA charges that NHTSA “did not even bother to test multi-stage or altered

vehicles” at any point in the process. But NHTSA did perform a roof strength test on

a chassis-cab prior to adopting FMVSS No. 216a. See 76 Fed. Reg. at 15,918 n.77;

75 Fed. Reg. at 17,602 & n.53 (noting that NHTSA’s test of a single-stage pickup truck

would have sufficed because an attached bed does not affect roof strength). This

objection misses the mark in any event. NTEA fails to identify statutory authority for

the so-called testing requirement and similarly fails to explain adequately how testing

might undermine the overwhelming record evidence supporting NHTSA’s decision to

regulate heavier vehicles.

Second, NTEA charges that NHTSA did not sufficiently consider whether the

supposedly unique attributes of multi-stage and altered vehicles justified exemption from

the roof crush resistance standard. This objection is based on NHTSA’s Final

Regulatory Impact Analysis (FRIA)—conducted in accordance with Executive Order

12,866—in which the agency found that injury-causing rollovers appear to affect multi-

stage and altered vehicles at relatively lower rates and speculated that factors like

frequent use at job sites and operation in low-speed environments might explain why.

But NTEA’s focus on the FRIA is misplaced. Executive Order 12,866 does not create

judicially enforceable rights, nor does it provide a basis for rejecting final agency action.

See §10, 3 C.F.R. 638, 649 (1993). Regardless, NHTSA did consider whether to apply

the upgraded standard to all vehicles within the newly regulated weight class or whether

to exempt multi-stage and altered work trucks. The agency found that the latter class of

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 13

vehicles was not categorically immune from rollovers and roof crush—reasonably

refusing to make the same inferential leap as did NTEA based on the FRIA. See 74 Fed.

Reg. at 22,373.

So, to recap, we conclude that NHTSA conducted a more-than-adequate

investigation and reached a reasonable decision based on the results of that investigation.

There is ample evidence in the record showing a connection between the problem of

injuries resulting from roof crush during rollovers of heavier vehicles, including multi-

stage and altered vehicles, and the solution put forth in FMVSS No. 216a. In the end,

we must defer to the agency when it has engaged in such an involved process. Congress

entrusted NHTSA with an important proactive regulatory mission, and it is not our role

in the institutional scheme of things to make that mission unnecessarily difficult to

accomplish. Indeed, the agency’s job is to promulgate standards and ours is simply to

ensure that it does so responsibly. To ask for more process in a situation like this would

render NHTSA’s standard-setting mission a practical impossibility. Because that is not

what Congress had in mind when it passed the Safety Act, we decline to do so here.

IV.

Our review does not end with the determination that NHTSA followed the APA’s

procedural requirements. This case presents a second question for decision, which is

essentially a substantive one. We must ask whether FMVSS No. 216a complies with the

“statutory limitations” of the Safety Act. Chrysler, 472 F.2d at 669. There are three

relevant limitations—or “minimum substantive criteria.” Congress specified that any

new safety standard “shall be practicable, meet the need for motor vehicle safety, and

be stated in objective terms.” 49 U.S.C. § 30111(a). NTEA argues that FMVSS No.

216a falls short on all three counts. We disagree.

A.

NTEA’s principal argument is that FMVSS No. 216a is not “practicable” within

the meaning of the Safety Act. Our guidance on this issue comes from a prior case

involving these very same parties, in which we held that a safety standard is practicable

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 14

only if it “offer[s] the regulated party a chance to demonstrate compliance.” Nat’l Truck,

919 F.2d at 1153. NTEA says that FMVSS No. 216a does not. It argues that performing

the prescribed test is too costly for its members and that pass-through certification is

inherently unworkable for multi-stage vehicles as a general matter. This line of

argument is hardly novel: NTEA has made it in one form or another throughout the

rulemaking proceeding, as well as in other rulemaking proceedings going back decades.

We must decide whether the argument has any merit here—in other words, whether

FMVSS No. 216a offers final-stage manufacturers and alterers a fair shot to demonstrate

compliance via pass-through certification or other means. We think that it does.

We begin with some background. Most manufacturers can demonstrate

compliance with FMVSS No. 216a by conducting the dynamic test prescribed in the

standard itself. See 49 C.F.R. § 571.216a, S5-7. We do not doubt that this test is stated

in objective terms and can be repeated. But NTEA and NHTSA agree that conducting

the test is not a realistic option for final-stage manufacturers and alterers for other

reasons. As small businesses with a fraction of the financial and engineering resources

available to major manufacturers like Ford and GM, the cost of independently certifying

is prohibitive. See Nat’l Truck, 919 F.2d at 1154-55. Final-stage manufacturers and

alterers cannot afford to produce vehicles for the sole purpose of crushing roofs,

something the test requires. See 49 C.F.R. § 571.216a, S7. Their compliance difficulties

are only exacerbated by the fact of limited production runs. In extreme cases, a

final-stage manufacturer or alterer might have to produce two vehicles just to sell one.

(A major manufacturer, on the other hand, can spread the cost of testing across

thousands of vehicles in a particular model line.) The upshot is that final-stage

manufacturers and alterers need an alternative avenue for demonstrating compliance.

For final-stage manufacturers, NHTSA says that pass-through certification is the

solution to their compliance problem—and we agree. It is clear from the record that

final-stage manufacturers certifying to the upgraded roof crush resistance standard may

rely on documentation provided by initial manufacturers, see 76 Fed. Reg. at 15,904-06,

15,913-16, just as Congress envisioned, see 49 U.S.C. § 30115. Significantly, NHTSA

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 15

noted that most chassis-cabs would arrive with Type 1 or Type 2 (IVD) statements

regarding FMVSS No. 216a, and final-stage manufacturers would be able to conform

to the listed conditions because the attachment of cargo-carrying or load-bearing

equipment to bare frame rails has no obvious effect on roof strength in the cab. See 76

Fed. Reg. at 15,912-13. We know this to be true from years of practice and the

accumulation of agency expertise in administering the existing roof crush resistance

standard. See id. at 15,911; 75 Fed. Reg. at 17,593, 17,602-03. Indeed, manufacturers

of multi-stage vehicles with a GVWR of 6,000 pounds or less have been taking

advantage of pass-through certification to successfully comply with FMVSS No. 216

since 1991. See 75 Fed. Reg. at 17,599. And manufacturers who truly cannot take

advantage of pass-through certification are exempted in the final rule. See 74 Fed. Reg.

at 22,349. Thus, we see no compelling reason why the upgraded roof crush resistance

standard would render pass-through certification inherently unworkable.

An additional virtue of pass-through certification is that it does not come at a

prohibitive cost, quite unlike testing. We owe considerable deference to NHTSA’s well-

informed predictive judgment that the availability of pass-through certification means

final-stage manufacturers will not face substantially higher compliance costs as a

consequence of the upgraded standard. See Cellnet Commc’ns, Inc. v. F.C.C., 149 F.3d

429, 441 (6th Cir. 1998); see also Public Citizen, Inc. v. Nat’l Highway Traffic Safety

Admin., 374 F.3d 1251, 1260-61 (D.C. Cir. 2004) (deferring to a NHTSA prediction on

the basis that it was a policy judgment best left to the agency). Because this judgment

“is within the agency’s field of discretion and expertise,” we are required to treat it

favorably, even though a predictive judgment, by its nature, “cannot necessarily be

proved by the record.” Cellnet, 149 F.3d at 441 (“This deference has been explained as

deriving from the fact that such judgments tend to be infused with policy considerations

that are not appropriate for close judicial scrutiny.”). It goes some distance toward

convincing us that pass-through certification is a practicable solution to the compliance

problem NTEA complains of here.

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 16

NTEA pushes back against this conclusion with two arguments—neither of

which sways us. First, NTEA contends that pass-through certification is no solution at

all for final-stage manufacturers because it is “not viable” as a general matter. Its

allegedly fatal flaw is that self-interested initial manufacturers dictate the terms of

compliance; under the Safety Act’s certification scheme, initial manufacturers have

every incentive to draw up the most restrictive IVDs possible, thereby pushing much of

the burden of certification (and risk of liability for failing to comply with applicable

standards) onto final-stage manufacturers. See Nat’l Truck, 919 F.2d at 1155. Final-

stage manufacturers complain that they exceed the bounds of these IVDs the second they

go to work on a chassis-cab and cannot take advantage of pass-through certification as

a result. This problem might warrant additional discussion if it found any support in the

record. But whatever questions regarding pass-through certification may exist in theory

have been answered by NHTSA’s experience in practice. See 75 Fed. Reg. at 17, 599

(noting that final-stage manufacturers have been using the pass-through method to

certify compliance with various safety standards for decades). NTEA’s fears regarding

too-restrictive IVDs appear to us unfounded. In any event, final-stage manufacturers

remain free to tell dealers and customers that they will only work on chassis-cabs from

initial manufacturers who provide accommodating IVDs.

Second, NTEA cites two federal appellate court decisions setting aside safety

standards for failing to satisfy the practicability criterion and argues that their logic

compels a similar result here. The first is Paccar, Inc. v. National Highway Traffic

Safety Administration, 573 F.2d 632 (9th Cir. 1978), in which an association of final-

stage manufacturers successfully challenged a NHTSA standard regulating brake

systems. Id. at 634-35. The court held that manufacturers were “entitled to testing

criteria that they can rely upon with certainty” in demonstrating compliance with the

standard, meaning “formal and reasonably specific . . . criteria.” Id. at 644-45. The

second decision is one of our own, in which NTEA sought review of a NHTSA standard

regulating steering column displacement based on virtually identical practicability

concerns. See Nat’l Truck, 919 F.2d at 1149-50. We held that a valid safety standard

must provide a “realistic way for the final-stage manufacturers to comply with it and

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 17

thereby meet their duty to certify the safety of the vehicle.” Id. at 1155. Because the

displacement standard did not provide a non-testing certification option for all final-

stage manufacturers, we set aside the standard as impracticable as applied to those

“final-stage manufacturers that cannot pass through the certification of the initial

manufacturer.” Id. at 1158. NTEA claims that these decisions taken together require

NHTSA to provide some alternative method for final-stage manufacturers to demonstrate

compliance with FMVSS No. 216a.

But this claim does not stand up to scrutiny. NTEA fails to note that Paccar

contains nary a word about pass-through certification, a fact that renders it largely

inapposite. For our purposes, Paccar simply establishes that NHTSA must provide a

reasonably definite method for manufacturers to certify compliance. See 573 F.2d at

644-45. And pass-through certification fits the bill. While our decision in the prior case

between these parties is arguably on-point, it is not the silver bullet NTEA makes it out

to be. There, we actually upheld the standard at issue as it applied to manufacturers able

to pass through the certification of the initial manufacturer, a group that included final-

stage manufacturers of vehicles built on chassis-cabs. See Nat’l Truck, 919 F.2d at 1158.

Having accepted the basic premise that pass-through certification is workable, see id.,

it is significant that the method has been made available to all final-stage manufacturers

subject to the upgraded roof crush resistance standard. In the end, these two decisions

are little more than reminders that NHTSA must carefully consider the unique problems

facing final-stage manufacturers and must ultimately provide them with a formal and

definite method to demonstrate compliance with any new safety standard. We are

satisfied that NHTSA has done both here.

For alterers, it is a different story entirely. Alterers cannot even nominally avail

themselves of pass-through certification because they modify already-completed single-

stage vehicles that do not arrive from the manufacturer with an IVD attached. However,

for the very same reason that pass-through certification is not an option, alterers do not

need any non-testing option at all. Alterers do their work on vehicles already certified

under the Safety Act. See 49 C.F.R. § 567.3. Single-stage manufacturers are required

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 18

to take the greater step of certifying compliance with applicable standards, see 49 U.S.C.

§ 30115(a), which is precisely why they do not take the lesser step of issuing an IVD.

Alterers need not certify independently so long as they do not make the kind of changes

that affect roof strength, see 76 Fed. Reg. at 15,905 & n.11, and most alterers work on

the rear of a vehicle, away from the cab. Even those that attach aftermarket parts to the

cab rarely do so in a manner that compromises the strength of the roof pillars or roof

materials. As with final-stage manufacturers and pass-through certification, the current

regime reflects a status quo in which alterers have been successfully complying with

existing FMVSS No. 216 for years. See id. at 15,905-06. Thus, we have no reason to

doubt that the upgraded standard offers alterers a similarly fair shot at demonstrating

compliance.

In sum, we conclude that FMVSS No. 216a is “practicable” within the meaning

of the Safety Act because it provides final-stage manufacturers and alterers with

reasonable means of demonstrating compliance. To conclude otherwise would disregard

Congress’s instruction to put a thumb on the scale for safety in considering the

substantive limitations of the Act. See Public Citizen, Inc. v. Mineta, 340 F.3d 39, 58

(2d Cir. 2003). After all, Congress intended for manufacturers to adjust to the regulatory

demands of the industry rather than the other way around. Cf. Chrysler, 472 F.2d at 671

(describing the Safety Act as technology-forcing legislation). Where there are seemingly

definite and formal means for manufacturers to demonstrate compliance, as here, we

ought not “second-guess the ‘practicability’ determination of an agency charged with the

responsibility of studying and developing safety standards through an involved

fact-finding process.” Nat’l Truck, 919 F.2d at 1159 (Guy, J., dissenting).

B.

That brings us to the two remaining substantive criteria. The Safety Act specifies

that all safety standards must “meet the need for motor vehicle safety” and must be

stated in “objective terms.” 49 U.S.C. § 30111(a). NTEA says that FMVSS No. 216a

comes up short in both respects, at least as applied to final-stage manufacturers and

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 19

alterers. In addressing NTEA’s claims, our discussion focuses on the record and thus

tends to overlap with our procedural review at the margins.

NTEA’s first contention—that “NHTSA did not establish a safety need” for

extending the scope of the roof crush resistance standard to include vehicles with a

GVWR up to 10,000 pounds—is contradicted by the record. As we discussed earlier,

NHTSA identified a general “rollover problem” in which roof crush plays a substantial

role. See 70 Fed. Reg. at 49,226-29 (noting that roof crush during rollovers contributes

to more than one thousand serious and fatal injuries every year). In addition, NHTSA

found that heavier trucks not subject to existing FMVSS No. 216, multi-stage and altered

vehicles among them, were a conspicuous part of the problem. Id. at 49,233. Finally,

NHTSA produced evidence showing that its proposed changes would “prevent

135 fatalities and 1,065 nonfatal injuries annually.” 74 Fed. Reg. at 22,349; see also

70 Fed. Reg. at 49,233 (estimating that applying the standard to vehicles with a GVWR

between 6,001 pounds and 10,000 pounds would prevent at least 129 of those fatalities

and serious injuries). This evidence strikes us as sufficient alone to prove that FMVSS

No. 216a meets a safety “need.”

We also think it worth noting that NHTSA promulgated FMVSS No. 216a

pursuant to a specific congressional mandate. See 49 U.S.C. § 30128(a); see also id.

§ 30128(d) (directing NHTSA to initiate a rulemaking proceeding to “upgrade [FMVSS]

No. 216 relating to roof strength for driver and passenger sides”). Nothing suggests that

the mandate was conditioned upon a finding that heavier vehicles experience rollovers

at a greater rate than vehicles subject to the existing standard. As Congress made clear,

the occupants of heavier vehicles, including multi-stage and altered vehicles, are equally

entitled to the safety benefits secured by an upgraded standard. See 76 Fed. Reg. at

15,919. Thus, the “need” requirement in the Safety Act cannot be said to prohibit

NHTSA from acting as it did in this instance.

Likewise, NTEA’s second contention—that NHTSA failed to provide an

“objective method” by which final-stage manufacturers and alterers can demonstrate

compliance with the upgraded standard—is unavailing. There is no question that the

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 20

dynamic test prescribed in FMVSS No. 216a is set forth in sufficiently objective terms.

See 49 C.F.R. § 571.216a, S5.1. And this test forms the basis for certifying that any

particular vehicle complies with the upgraded standard. Pass-through certification is

only available to a final-stage manufacturer working on a multi-stage vehicle because

the initial manufacturer properly tested the chassis-cab prior to delivering it. We thus

conclude that FMVSS No. 216a is “objective” within the meaning of the Safety Act.

V.

The final question for review differs in nature from the prior two. We must

decide whether pass-through certification, as incorporated in FMVSS No. 216a,

constitutes an improper delegation of NHTSA’s statutory duties. Specifically, NTEA

argues that initial manufacturers are exercising agency powers when they write IVDs

without oversight because the terms of these IVDs dictate whether final-stage

manufacturers can meet their duty to certify compliance with applicable safety standards.

We are not convinced.

Under U.S. Telecom Association v. F.C.C., 359 F.3d 554 (D.C. Cir. 2004),

agency “subdelegations [of statutory powers] to outside parties are assumed to be

improper absent an affirmative showing of congressional authorization.” Id. at 565.

From this premise, NTEA concludes that NHTSA has used pass-through certification

as a way to avoid promulgating a safety standard that is practicable and objective. But

NTEA misunderstands the improper delegation doctrine on several levels. Most

fundamentally, NTEA fails to specify any particular power, conferred on NHTSA by

Congress, that the agency has turned around and actively delegated to initial

manufacturers. NHTSA quite clearly promulgated FMVSS No. 216a. In addition,

unregulated IVDs do not impermissibly reallocate the statutory division of responsibility

for certifying compliance. Congress in fact explicitly endorsed the pass-through

certification regime in 2000. See 49 U.S.C. § 30115(b)(1). Allowing initial

manufacturers to write their own IVDs is not the same thing as allowing them to pass off

their risk of liability onto helpless final-stage manufacturers. Thus, we conclude that

NHTSA has not improperly delegated its statutory duties.

No. 09-3812 Nat’l Truck Equip. Ass’n v. NHTSA Page 21

VI.

For the foregoing reasons, we reject NTEA’s challenges to FMVSS No. 216a and

deny the petition for review.