Make Inoperative Exemptions; Vehicle Modifications To Accommodate People With Disabilities |
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James C. Owens
National Highway Traffic Safety Administration
28 December 2020
[Federal Register Volume 85, Number 248 (Monday, December 28, 2020)]
[Proposed Rules]
[Pages 84281-84292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28648]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 595
[Docket No. NHTSA-2016-0031]
RIN 2127-AL67
Make Inoperative Exemptions; Vehicle Modifications To Accommodate
People With Disabilities
AGENCY: National Highway Traffic Safety Administration (NHTSA), U.S.
Department of Transportation (DOT).
ACTION: Supplemental notice of proposed rulemaking (SNPRM).
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SUMMARY: In 2016, NHTSA published a notice of proposed rulemaking
(NPRM) to amend our regulations, ``Make Inoperative Exemptions, Vehicle
Modifications to Accommodate People With Disabilities,'' to include a
new exemption relating to the Federal motor vehicle safety standard
(FMVSS) for roof crush resistance. The exemptions facilitate the
mobility of drivers and passengers with physical disabilities. This
SNPRM expands the scope of NHTSA's 2016 NPRM in two ways. First, it
grants a petition from Bruno Independent Living Aids, Inc., and
proposes to include in part 595 an exemption relating to the rear
visibility requirements in FMVSS No. 111. Second, in response to an
inquiry from Enterprise Holdings Co. (Enterprise), this document
proposes to permit rental car companies to make inoperative a knee
bolster air bag, on a temporary basis, to permit the temporary
installation of hand controls to accommodate persons with physical
disabilities seeking to rent the vehicle.
DATES: Comments concerning this SNPRM should be submitted early enough
to ensure that the Docket receives them not later than January 27,
2021. In compliance with the Paperwork Reduction Act, NHTSA is also
seeking comment on a revised information collection. See the Paperwork
Reduction Act section under Regulatory Analyses
[[Page 84282]]
and Notices below. Comments concerning the revised information
collection requirements are due February 26, 2021 to NHTSA and to the
Office of Management and Budget (OMB) at the address listed in the
ADDRESSES section.
ADDRESSES: You may submit comments to the docket number identified in
the heading of this document by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Docket Management Facility: U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: 1200 New Jersey Avenue SE, West
Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays. To be sure someone is
there to help you, please call (202) 366-9332 before coming.
Fax: 202-493-2251.
Comments on the proposed information collection requirements should
be submitted to: Office of Management and Budget, Office of Information
and Regulatory Affairs, Washington, DC 20503, Attn: Desk office for
NHTSA. It is requested that comments sent to the OMB also be sent to
the NHTSA rulemaking docket identified at the heading of this document.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Public
Participation heading of the Supplementary Information section of this
document. Note that all comments received will be posted without change
to http://www.regulations.gov, including any personal information
provided. Please see the Privacy Act heading below.
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78).
For access to the docket to read background documents or comments
received, go to http://www.regulations.gov or the street address listed
above. To be sure someone is there to help you, please call (202) 366-
9332 before coming. Follow the online instructions for accessing the
dockets.
FOR FURTHER INFORMATION CONTACT: Gunyoung Lee, NHTSA Office of Crash
Avoidance Standards (phone: 202-366-6005; fax: 202-493-0073); Daniel
Koblenz, NHTSA Office of Chief Counsel (phone: 202-366-5329; fax 202-
366-3820); or David Jasinski (phone: 202-366-5552; fax 202-366-3820.
The mailing address for these officials is: National Highway Traffic
Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
I. Introduction
This SNPRM supplements an NPRM \1\ published on March 11, 2016,
proposing to amend 49 CFR part 595, subpart C to include a new
exemption relating to FMVSS No. 216, ``Roof crush resistance.'' This
SNPRM does not propose any substantive changes to that NPRM as it
relates to the proposed exemption for FMVSS No. 216. This SNPRM simply
proposes to expand the scope of the 2016 NPRM to include an additional
make inoperative exemption from certain sections of FMVSS No. 111,
``Rear visibility,'' and to create a new exemption for rental car
companies having to temporarily disable a knee bolster air bag to
install hand controls. The three rulemakings are related as they each
propose to amend part 595. The Agency has decided to propose these
changes as an SNPRM, rather than as separate individual NPRMs, for the
sake of administrative simplicity and the convenience of the reader.
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\1\ 81 FR 12852, Docket No. NHTSA-2016-0031.
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II. Statutory Background
The National Traffic and Motor Vehicle Safety Act (49 U.S.C.
Chapter 301) (``Safety Act'') and NHTSA's regulations require vehicle
and equipment manufacturers to certify that their vehicles or vehicle
equipment comply with all applicable FMVSS (see 49 U.S.C. 30112; 49 CFR
part 567). A vehicle manufacturer, distributor, dealer, rental company,
or repair business generally may not knowingly make inoperative any
part of a device or element of design installed in or on a motor
vehicle in compliance with an applicable FMVSS (see 49 U.S.C. 30122).
NHTSA has the authority to issue regulations that exempt regulated
entities from the ``make inoperative'' provision (49 U.S.C. 30122(c)),
if the Agency finds that the exemption would be consistent with motor
vehicle safety and with 49 U.S.C. 30101.\2\ The Agency has used that
authority to promulgate 49 CFR part 595, subpart C, ``Make Inoperative
Exemptions, Vehicle Modifications to Accommodate People with
Disabilities'' (hereafter, ``subpart C'').
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\2\ Section 30101, ``Purpose and Policy,'' of the Safety Act
states: ``The purpose of this chapter is to reduce traffic accidents
and deaths and injuries resulting from traffic accidents. Therefore
it is necessary--(1) to prescribe motor vehicle safety standards for
motor vehicles and motor vehicle equipment in interstate commerce;
and (2) to carry out needed safety research and development.''
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Subpart C sets forth exemptions to permit, under limited
circumstances, vehicle modifications that make certain systems
installed in compliance with an FMVSS inoperative when the vehicles are
modified to be used by persons with disabilities after the first retail
sale of the vehicle for purposes other than resale. The regulation was
promulgated to facilitate the modification of motor vehicles so that
persons with disabilities can drive or ride in them. The regulation
involves information and disclosure requirements and limits the extent
of modifications that may be made.
Under the regulation, a motor vehicle repair business \3\ that
modifies a vehicle to enable a person with a disability to operate or
ride as a passenger in the motor vehicle and that avails itself of the
exemption provided by subpart C must register with NHTSA. The modifier
is exempted from the make inoperative provision of the Safety Act, but
only to the extent that the modifications affect compliance with the
FMVSSs specified in 49 CFR 595.7(c) and only to the extent specified in
Sec. 595.7(c).\4\ The modifier must affix a permanent label to the
vehicle identifying itself as the modifier and the vehicle as no longer
complying with all FMVSS in effect at original manufacture, and must
provide and retain a document listing the affected FMVSSs, and
indicating any reduction in the load carrying capacity of the vehicle
of more than 100 kilograms (220 pounds).
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\3\ Section 595.4 of subpart C states: ``The term motor vehicle
repair business is defined in 49 U.S.C. 30122(a) as `a person
holding itself out to the public to repair for compensation a motor
vehicle or motor vehicle equipment.' This term includes businesses
that receive compensation for servicing vehicles without
malfunctioning or broken parts or systems by adding or removing
features or components to or from those vehicles or otherwise
customizing those vehicles.''
\4\ Modifications that would affect systems installed in
compliance with any other FMVSS, or with an FMVSS listed in Sec.
595.7(c) but in a manner not specified in that paragraph, are not
covered under Part 595, Subpart C.
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[[Page 84283]]
III. New Make Inoperative Exemption in Subpart C for Portions of FMVSS
No. 111, ``Rear Visibility''
a. Background on the FMVSS No. 111 Requirements
To satisfy a statutory mandate in the Cameron Gulbransen Kids
Transportation Safety Act of 2007 (the K.T. Safety Act), NHTSA
published a final rule \5\ on April 7, 2014 amending FMVSS No. 111, to
require, effectively, that all light vehicles be equipped with a backup
camera system that, among other things, displays a certain specified
field of view to the driver. The K.T. Safety Act directed NHTSA to
amend the FMVSS to expand the rearward field of view for all passenger
cars, trucks, multipurpose passenger vehicles, buses, and low-speed
vehicles with a gross vehicle weight rating (GVWR) of less than 4,536
kilograms (kg) (10,000 pounds). The rule, which became fully phased in
on May 1, 2018, requires that vehicles be equipped with a system that
provides the driver with an image of the area directly behind the
vehicle. The purpose of this requirement is to reduce the number of
back-over crashes involving pedestrians, particularly children and
other high-risk persons.
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\5\ 79 FR 19178, Docket No. NHTSA-2010-0162.
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The standard requires that each passenger car must display a
rearview image to the driver that meets the requirements of FMVSS No.
111 S5.5.1 through S5.5.7, and that each multipurpose passenger
vehicle, low-speed vehicle, truck, bus, and school bus with a GVWR of
4,536 kg or less must meet the requirements of S6.2.1 through S6.2.7.
Both sets of requirements state that the rearview image must have a
field of view that covers 5 feet from either side of the vehicle center
line to 20 feet longitudinally from the vehicle's rear bumper, and that
the rearview image be large enough that the driver will see objects in
the field of view. The standard also sets requirements for when the
rearview image must be displayed. NHTSA assesses compliance with these
requirements by placing cylindrical test objects along the perimeter of
the minimum field of view requirement, and assessing whether the test
cylinders are visible to the driver in the rearview image, and whether
the rearview image is displayed under the required circumstances.
Although the rear visibility requirements in FMVSS No. 111 are written
in a technology-neutral way that states only that a vehicle must
display a ``rearview image'' without reference to what technology is
used to display the image, it is NHTSA's understanding that all
manufacturers comply with the rearview image requirements using a
backup camera system (i.e., a rear-facing camera behind the vehicle
that transmits a video image to a digital display in view of the
driver).
During the rulemaking that established the FMVSS No. 111 rear
visibility requirements, the issue of temporary equipment obstructing a
backup camera system's field of view was raised in a comment by the
National Truck Equipment Association (NTEA) to the NPRM. In this
comment, NTEA noted that, because it was expected that manufacturers
would meet the new rear visibility requirements with a backup camera
system, it would be possible for the camera's field of view to be
obstructed by the installation of certain types of temporarily-attached
vehicle equipment, such as a salt or sand spreader, which can be
temporarily mounted to the trailer hitch of a pickup truck. NHTSA
responded to this comment in the final rule by stating that the rule
was not intended to apply ``to trailers and other temporary equipment
that can be installed by the vehicle owner.'' However, NHTSA did not
address the question of whether the installation of such equipment
would violate the make inoperative prohibition (49 U.S.C. 30122) if
done by an entity subject to Sec. 30122.
b. Bruno's Petition for Rulemaking
On April 17, 2018, NHTSA received a petition for rulemaking from
Bruno requesting NHTSA to amend subpart C so that it would include
paragraphs S5.5 and S6.2 of FMVSS No. 111.
Bruno states it is a manufacturer of several products that allow a
vehicle owner to transport unoccupied personal mobility devices (PMD)
such as wheelchairs, powered wheelchairs, and powered scooters intended
for use by vehicle occupants with mobility impairments. Bruno states
that there are two types of PMD transport devices that it manufactures.
The first type is what the petition describes as a platform lift that
can be attached to the exterior of the vehicle by means of a trailer
hitch. This first type of PMD transport device is fully supported by
the trailer receiver hitch without ground contact. The second type of
PMD transport device is supported in part by contact with the ground.
As such it is a ``trailer'' under NHTSA's definitions.\6\
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\6\ 49 CFR 571.3.
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Bruno states that most backup cameras that are installed pursuant
to FMVSS No. 111 are mounted at a low height along the horizontal
centerline of the vehicle, often near the vehicle's rear license plate
mounting. The placement of the backup camera in this location means
that it may be obstructed by a rear-mounted PMD transport device, or by
a PMD that is mounted onto the transport device. Since the PMD
transport devices may obstruct the rear view from the vehicle's
rearview video system, installation of the devices could arguably
violate the ``make inoperative'' prohibition (49 U.S.C. 30122). Bruno
argues in its petition that PMD transport devices are ``temporary
equipment,'' to which NHTSA said the final rule was not intended to
apply. However, the petitioner states that, to avoid potential
uncertainty regarding the manufacture, sale or installation of both
types of PMD transport device Bruno manufactures, Bruno requests that
subpart C be amended to cover the backup camera requirements (S5.5 and
S6.2) of FMVSS No. 111.
After filing the petition, Bruno submitted additional material in
which the petitioner contends that the final rule of FMVSS No. 111
specifically excluded trailers such as the Bruno Chariot (i.e., a
``trailer'' type of PMD transport device), even though the body of
current FMVSS No. 111 does not include explicit language for the
exclusion of trailers, and even though the preamble was referring to
trailers attached by the vehicle owner.
Response to Petition
NHTSA recognizes that the petitioner's request presents a trade-off
between the benefits of a camera system for rear visibility balanced
against enhanced mobility for people with disabilities. Comments are
requested on the proposed exemption. To achieve the maximum safety
benefit of the regulations, it is our desire to provide the narrowest
exemption possible to accommodate the needs of persons with physical
disabilities, while minimizing unintended safety consequences that
could occur by creating a pathway for unforeseen and unintended uses.
NHTSA has decided to grant the petition. The modifications
permitted under the proposed exemption would be temporary in that they
do not permanently affect the vehicle's design or structure, and would
not be widely available beyond the population of persons with
disabilities who wish to have a covered entity install a PMD transport
device on their vehicle. It is important to note that statements in the
preamble to the K.T. Act final rule cannot provide regulatory certainty
that PMD transport devices are excluded from the make inoperative
provision.
[[Page 84284]]
Further, unlike with the examples of salt and sand spreaders referenced
in the preamble, it is NHTSA's understanding that PMDs transport
devices are generally installed by dealers and motor vehicle repair
businesses that specialize in modifications to provide mobility
solutions to people with physical disabilities, both of which are
subject to the make inoperative prohibition.\7\ Accordingly, we believe
a regulatory exemption can provide the appropriate regulatory certainty
to allow for installation of PMD transport devices, even if not
necessary for other types of temporary equipment installed by the
vehicle owner.
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\7\ Note that ``dealer'' is defined in the Safety Act as a
seller of motor vehicles or motor vehicle equipment, which includes
retail outlets that sell PMD transport devices.
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Based on the above analysis NHTSA proposes to amend subpart C to
add a ``make inoperative'' exemption for S5.5.1, S5.5.2, S6.2.1, and
S6.2.2 of FMVSS No. 111, to allow for the temporary installation of a
PMD transport device that could obstruct the vehicle's backup camera
system. NHTSA seeks comment on this proposal.
In particular, NHTSA seeks comment on its decision to limit the
proposed exemption to the temporary installation of a PMD transport
device on a vehicle, which precludes entities from permanently
disabling the backup camera system, or from making the backup camera
system inoperative in contexts other than when attaching a PMD
transport device to the vehicle. NHTSA included these restrictions on
the proposed exemption so that the exemption would be as narrow as
possible while still addressing the mobility needs for persons with
disabilities.
NHTSA also seeks comment on its tentative decision to limit the
exemption to include only the ``field of view'' (S5.5.1 and S6.2.1) and
``size'' (S5.5.2 and S6.2.2) requirements, and not the other rearview
image requirements in S5.5 and S6.2, such as ``linger time.'' NHTSA did
not include these other requirements in the proposed exemption because
they would not be impacted by placing an object in front of the camera
that blocks its view.
IV. Make Inoperative Exemptions for Rental Companies
a. FAST Act
The Fixing America's Surface Transportation Act (FAST Act), Public
Law 114-94 (December 4, 2015), made rental companies subject to the
``make inoperative'' prohibition. The FAST Act also defined terms
related to rental companies. For example, a ``rental company'' is
defined as a person who is engaged in the business of renting covered
rental vehicles and uses for rental purposes a motor vehicle fleet of
35 or more covered rental vehicles, on average, during the calendar
year. A ``covered rental vehicle'' is defined as a vehicle that meets
three requirements: (1) It has a GVWR of 10,000 pounds or less; (2) it
is rented without a driver for an initial term of less than four
months; and (3) it is part of a motor vehicle fleet of 35 or more motor
vehicles that are used for rental purposes by a rental company.
Thus, beginning in December 2015, rental companies, as the term is
defined in the FAST Act, were subject to the make inoperative
prohibition for the first time. One effect of this FAST Act provision
was to subject rental companies to Sec. 30122 prohibitions for making
inoperative systems installed to comply with the FMVSS--even if doing
so to accommodate the installation of adaptive equipment for use by
persons with disabilities, and even if the modification were only
temporary.\8\
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\8\ Although the ``make inoperative'' prohibition does contain
an exception for temporarily taking vehicles or equipment out of
compliance, that limited exception only applies where the entity
taking the vehicles out of compliance does not believe the vehicle
or equipment will not be used when the device is inoperative.
Obviously, a rental company would intend a rental vehicle that has a
device or element temporarily ``made inoperative'' to accommodate a
disability to be used while the device or element is inoperative.
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b. Enterprise Request for Interpretation
In a letter dated August 12, 2019, Enterprise, through its counsel,
submitted a request for interpretation to NHTSA regarding the effect of
the ``make inoperative'' prohibition on its obligations under the
Americans with Disabilities Act of 1990 (ADA).\9\ Specifically,
Enterprise asked whether the ``make inoperative'' prohibition applies
to modifications by rental companies to temporarily disable knee
bolster air bags to accommodate the installation of hand controls for
drivers with physical disabilities. Following receipt of the letter,
NHTSA met with Enterprise to discuss its request further. Some of the
information provided by Enterprise has formed the basis for this
rulemaking.
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\9\ A copy of this letter has been included in the docket number
identified at the beginning of this document.
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In its letter, Enterprise stated that, to provide service to
customers with disabilities and ensure compliance with the ADA, rental
companies install adaptive equipment, such as hand controls, upon
request. Enterprise stated that, when installing adaptive equipment in
a motor vehicle, ``equipment or features that were installed in
compliance with NHTSA's safety standards may need to be modified. In
these cases, the vehicle modification may render the affected equipment
or features, as originally certified, `inoperative.' ''
Enterprise specifically addressed safety concerns with installing
hand controls in rental vehicles equipped with knee bolster air
bags.\10\ Hand controls consist of a metal bar that connects to the
accelerator and brake pedals of a vehicle to enable operation by a
person unable to control the pedals with their feet. Knee bolster air
bags are installed by manufacturers to prevent or reduce the severity
of leg injuries in the event of a frontal collision. Since knee bolster
air bags, like all air bags, deploy at high speeds with a great degree
of force, installed hand controls could either break apart, creating
and propelling dangerous metal fragments, or otherwise be propelled
into the driver at great forces--either of which would create a serious
safety risk.
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\10\ Enterprise did not provide an example other than the
situation posed by installation of hand controls and its effect on
knee bolster air bags.
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Enterprise stated that manufacturers of hand controls owned by
Enterprise specify that a driver's side knee bolster air bag must be
disabled (including removal in some instances) \11\ for safe operation
of the hand controls, both because the presence of a knee bolster air
bag may interfere with safe operation of the hand controls, and because
the presence of hand controls would interfere with the air bag should
it be deployed in the event of a crash.
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\11\ This document generally refers to the act of ``disabling''
the knee bolster air bag. For the purposes of the applicability of
the ``make inoperative'' prohibition and exemption discussed in this
document, the act of ``disabling'' the knee bolster air bag may also
include removing the air bag. In other words, removal is one means
of disabling the air bag.
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Enterprise noted that 49 CFR part 595, subpart C, includes
exemptions for certain entities from the ``make inoperative''
prohibition in certain circumstances to accommodate the modification of
vehicles for persons with disabilities. However, the subpart does not
include ``rental companies'' within the entities who could use those
exemptions in subpart C.
Pertaining specifically to knee bolster air bags, Enterprise noted
that they are not specifically required by FMVSS No. 208. However,
Enterprise observed that vehicle manufacturers are increasingly
[[Page 84285]]
making knee bolster air bags standard equipment on all models such that
it is becoming difficult for Enterprise to purchase new vehicles that
do not include knee bolster air bags. Further, Enterprise stated that
vehicles with knee bolster air bags are not crash tested with the knee
bolster air bags removed or disabled, meaning Enterprise cannot know
whether disabling knee bolster air bags affects compliance with FMVSS
No. 208.
Enterprise concluded that, based upon its ADA obligations to
provide hand controls for drivers requesting them and the increasing
trend of knee bolster air bags being standard equipment, Enterprise
expects to need to disable knee bolster air bags temporarily on rental
vehicles to continue to make vehicles available to rent by drivers with
physical disabilities. Enterprise requested NHTSA's opinion on the
applicability of the ``make inoperative'' prohibition to these
circumstances.
c. Applicability of ``Make Inoperative'' Prohibition to Enterprise
The question raised by Enterprise's letter is whether disabling the
knee bolster air bag would constitute a violation of the ``make
inoperative'' prohibition. NHTSA does not have sufficient information
to determine whether the knee bolster air bag is a part or element of
design installed ``in compliance with an applicable motor vehicle
safety standard,'' but notes that knee bolster air bags are installed
to reduce femur loading, and FMVSS No. 208 does provide specific
requirements for femur load.\12\ While NHTSA has made general inquiries
with vehicle manufacturers through their trade association about
whether knee bolster air bags are installed as part of an element of
design installed in compliance with the motor vehicle safety standards,
their association has not yet provided information to resolve this
question.
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\12\ See 49 CFR 571.208 S15.3.5.
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After considering the issue, NHTSA has determined that it cannot
affirmatively state that Sec. 30122 would not prohibit making
inoperative knee bolster air bags to install hand controls to enable
service to customers with physical disabilities. The Agency appreciates
the difficulties this issue poses to Enterprise and other rental
companies. As knee bolster air bags are already becoming standard
equipment across much of the light duty fleet, this situation could
result in rental companies facing the untenable position of being
forced to either: (1) Retain a number of older vehicles in its fleet
(without knee bolster air bags) and on its premises to rent to drivers
requesting hand controls; (2) cease the rental of vehicles to drivers
requesting hand controls; (3) disable the air bag and potentially
violate Sec. 30122; or (4) install hand controls on vehicles with knee
bolster air bags and create serious safety risks for their customers.
None of these results is acceptable to NHTSA. The first action would
prevent Enterprise from renting newer vehicles, which include newer
safety innovations, to drivers requiring the use of hand controls,
would be impracticable given the inability to guarantee availability of
sufficient vehicles at all relevant rental facilities, and would
eventually be impossible as those vehicle age out of their useful
service lives. The second action would eliminate a critical service for
people with disabilities and may have implications for compliance with
the Americans with Disabilities Act. The third action would potentially
violate the Safety Act. The fourth option would create an unreasonable
risk to the safety of rental customers with physical disabilities.
NHTSA is addressing the situation by proposing to use its statutory
authority to exempt rental companies conditionally from the Safety
Act's ``make inoperative'' prohibition to allow the temporary disabling
of knee bolster air bags.
d. Need for a ``Make Inoperative'' Exemption for Rental Companies
NHTSA is issuing this SNPRM after considering the untenable
situation faced by prospective vehicle renters with physical
disabilities and rental car companies seeking to provide services to
people with physical disabilities, and balancing NHTSA's strong
interest in promoting motor vehicle safety with the interest (including
the statutory interest implicit within the ADA) to provide access to
mobility for persons with disabilities. NHTSA has tentatively concluded
that it should exercise its statutory authority to exempt rental
companies from the make inoperative prohibition in certain
circumstances, and with certain conditions, so that rental companies
may rent vehicles to drivers requesting hand controls. This action is
consistent with NHTSA's decision to promulgate 49 CFR part 595, subpart
C, to exempt motor vehicle repair businesses from the make inoperative
prohibition to accommodate persons with disabilities. While the balance
of safety and accessibility associated with granting an exemption to
the make inoperative prohibition to rental companies is identical to
the grant of exemption to motor vehicle repair businesses, some aspects
are quite different, as will be discussed next.
Therefore, NHTSA is proposing to add a new section to 49 CFR part
595 specifically for rental companies. While this section would be
largely similar to 49 CFR 595.7, NHTSA believes that rental companies
could not easily be added to section 595.7 for several reasons. First,
section 595.7 contemplates permanent modifications and NHTSA expects
that rental companies would modify vehicles only temporarily.
Therefore, the proposal specifically limits the exemption to the
duration of the rental agreement and a reasonable period before and
after the rental agreement (a period to perform and reverse the
necessary accommodations). Like in 49 CFR 595.7, NHTSA is proposing a
requirement that the vehicle have a label affixed indicating that it
has been modified such that a device or element of design installed
pursuant to the FMVSS may have been made inoperative. However, given
the expected temporary nature of the modifications, NHTSA is not
proposing that vehicles be permanently labeled. NHTSA also has not
proposed to require that rental companies register with NHTSA prior to
performing modifications. At this time, NHTSA is only considering
allowing rental companies to disable a knee bolster air bag and is not
including all of the exemptions applicable to motor vehicle repair
businesses in section 595.7(c). These issues are discussed in greater
detail later in this document.
NHTSA requests public comment on this SNPRM, including the need of
rental companies for relief from the make inoperative prohibition and
how the exemption could be narrowly granted.
As part of this discussion, NHTSA requests comment on whether
Enterprise's request may be mooted by the use of other models of hand
controls or other innovations of adaptive driving equipment suitable
for temporary installation. NHTSA has had discussions with the National
Mobility Equipment Dealers Association regarding this question and has
reached the tentative conclusion that, while there may be models of
hand controls on the market that do not require disablement of the knee
bolster air bag, those models require custom installations that would
not be feasible for a rental company business model. These entities
seek to make a temporary modification to their rental vehicles, so that
after the rental they may remove the hand controls and revert the
vehicle to its former state to rent to the next
[[Page 84286]]
customer. Further, it is likely that necessitating the replacement by
Enterprise and other rental companies of their adaptive equipment may
unnecessarily result in costs and other impacts on rental companies in
seeking to accommodate customers with physical disabilities.
e. Scope of an Exemption for Rental Companies
Although NHTSA is proposing a make inoperative exemption for rental
companies, NHTSA has questions regarding the scope of an exemption to
rental companies, and the logistics of granting those exemptions.
Specifically, NHTSA requests public comment on the following questions
in this preamble and on the discussion supporting them. In responding
to a question, we would appreciate commenters numbering their answers
in accordance with the following numbered questions:
1. Should rental companies be provided exemptions from the make
inoperative prohibitions to make temporary vehicle modifications,
permanent vehicle modifications, or both?
The wording of the proposed regulatory text would only allow
temporary modifications by rental companies that would include the
duration of the rental agreement and a reasonable period before and
after modification, to allow the rental company to make and reverse the
modification, respectively. If the vehicle would be rented to a second
person requiring the same modification immediately after the
termination of the first rental agreement, a rental company would not
be required to reverse the modification and then immediately modify the
vehicle again. (Based on information provided by Enterprise, rental
companies require flexibility in their fleet usage and, therefore, it
is unlikely that a vehicle would be rented to two people requiring the
same modification consecutively.) In any event, in light of this
information from Enterprise, is there a need to allow rental companies
to make permanent modifications to vehicles in order to accommodate
drivers with disabilities? Should they be permitted to permanently
modify vehicles as repair businesses are under Subpart C, provided they
meet all requirements of sections 595.6 and 595.7? NHTSA seeks comments
as to whether permanent modification may be necessary or helpful, and
may revisit this tentative conclusion in a final rule in response to
comments received.
2. Although Enterprise only asked NHTSA about the application of the
make inoperative prohibition to disabling knee bolster air bags to
accommodate installation of hand controls, should NHTSA provide a make
inoperative exemption for other installations of adaptive equipment by
rental companies?
This question pertains to the standards and modifications that
would be covered by a make inoperative exemption. Enterprise's letter
refers only to the disablement of knee bolster air bags to accommodate
installation of hand controls. To date, NHTSA has received no other
inquiries or requests for relief from the make inoperative prohibition
from any other rental company or related to any other accommodation.
Accordingly, this proposed rule only addresses the disablement of knee
bolster air bags to accommodate the installation of hand controls. If
NHTSA receives comments that warrant the granting of exemptions to the
make inoperative prohibition for additional accommodations, NHTSA will
consider including an exemption from those accommodations in a final
rule implementing this proposal.
3. If a temporary modification to install adaptive equipment causes a
malfunction telltale to illuminate, should the rental company be
allowed to disable the telltale?
This question pertains to the air bag malfunction telltale. One
aspect not directly addressed in Enterprise's letter is what effect the
modification would have on the air bag malfunction telltale, which is
required by FMVSS No. 208. In its conversations with NHTSA, Enterprise
stated that its procedure for disabling the knee bolster air bag would
involve the installation of a shunt within the electrical circuitry of
the air bag system. NHTSA believes that the installation of such a
shunt would allow the air bag system, upon its diagnostic check at the
time the vehicle is started, to conclude that there is no malfunction
within the air bag system. Accordingly, after the diagnostic check,
NHTSA believes that the air bag malfunction telltale would not
illuminate as a result of disabling the knee bolster air bag.
NHTSA requests comment on whether the disabling of the air bag in
this manner is desirable and should be permitted. There are competing
safety interests at issue when considering this question. If a shunt
were not installed, NHTSA believes that, for vehicles where the knee
bolster air bag is disabled, the air bag malfunction telltale would
illuminate after the diagnostic check. This would correctly provide the
operator of the vehicle with information that the air bag system is not
operational, and would provide additional assurance that the disabling
of the knee bolster air bag is reversed for later rentals. A subsequent
renter of the exempted vehicle, where the modification was
inadvertently not reversed, could see the telltale illuminated and
inform the rental company of the malfunction.
However, the illumination of the air bag malfunction telltale where
the knee bolster air bag is disabled may also have negative safety
consequences. If the air bag malfunction telltale is illuminated for
the duration of the rental to a driver with a disability, that driver
would not have the benefit of the telltale illuminating the event of
any other malfunction within the air bag system, including malfunctions
affecting air bags that are clearly installed as part of compliance
with FMVSS No. 208. NHTSA is also unaware of whether the activation of
a malfunction indicator light will result in a suppression of other air
bags that are not disabled by the rental company. The proposed
regulatory text does not make allowances for making inoperative the
telltale in the situation presented by Enterprise. However, NHTSA seeks
comment on how this issue should be addressed in a final rule.
4. Would NHTSA need to provide a make inoperative exemption for
installation of hand controls? Alternatively stated, would the mere
installation of hand controls by a rental company potentially make
inoperative systems installed in compliance with an FMVSS, even if no
other modifications to the vehicle are made? For example, would a hand
control (or any other adaptive equipment typically installed by rental
companies) interfere with devices or elements of designs installed in
compliance with any FMVSS? If the mere installation of adaptive
equipment potentially violates the ``make inoperative'' prohibition,
NHTSA would consider broadening the scope of the exemption granted in a
final rule issued following this proposal.
f. Procedural Requirements for an Exemption for Rental Companies
NHTSA has questions related to procedural aspects of such an
exemption. These questions include:
5. Should rental companies need to request an exemption from NHTSA
or should the exemption be provided automatically within the
regulation?
NHTSA has tentatively concluded, as with motor vehicle repair
businesses,
[[Page 84287]]
rental companies should not have to seek an exemption from NHTSA in
order to disable knee bolster air bags temporarily to install hand
controls. Rather, NHTSA proposes to grant the exemption to rental
companies conditionally on their compliance with the proposed
amendments to 49 CFR part 595. Given that a rental company may be
required to make modifications quickly to provide accommodations when a
customer requests a vehicle with hand controls, NHTSA does not find
that seeking permission to obtain an exemption would be beneficial to
safety or to drivers requesting modifications, or practical to execute
in actual situations. Moreover, NHTSA would be limited in its ability
to evaluate the merits of a request for an exemption in an approval
system, and so it seems obtaining NHTSA approval would serve no useful
purpose.
6. If rental companies are granted exemption by the regulation
alone rather than on request to NHTSA, should rental companies be
required to notify NHTSA of modifications to vehicles? If so, how often
and what information should rental companies be required to provide?
As provided in 49 CFR 595.6, a motor vehicle repair business that
modifies a vehicle pursuant to part 595 must, not later than 30 days
after it modifies a vehicle pursuant to the ``make inoperative''
exemption in part 595, identify itself to NHTSA. NHTSA has tentatively
concluded that a similar requirement is not warranted for rental
companies. First, there are far fewer rental companies than there are
motor vehicle repair businesses, such that NHTSA is aware of the
existence of large rental companies. Second, the modifier information
furnished to NHTSA under 49 CFR 595.6 is used, in part, to populate a
database available to the public of entities that perform modifications
to motor vehicles to accommodate persons with disabilities.\13\ In the
instance of rental companies, they are modifying vehicles to
accommodate customers with physical disabilities as part of its
business operations, and as part of its efforts to comply with the ADA.
Thus, a list of rental companies able to modify vehicles pursuant to 49
CFR part 595 would likely be a list of all rental companies. Such a
list would be of limited utility to the public, but would impose a
paperwork burden on all rental companies. NHTSA tentatively concludes
that, consistent with the goals of the Paperwork Reduction Act, it is
not necessary for rental companies to identify themselves to NHTSA
prior to modifying vehicles pursuant to a ``make inoperative''
exemption. However, NHTSA seeks comment on how many rental companies
would be required to report themselves to NHTSA if such a reporting
requirement is included in a final rule.
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\13\ This list of entities is not intended as an endorsement of
any entity, but is solely provided for informational purposes.
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7. Should rental companies be required to notify customers that a
vehicle modified to accommodate the installation of adaptive equipment
may have had devices or designs installed in compliance with an
applicable FMVSS made inoperative?
NHTSA tentatively concludes the answer is yes, renters of vehicles
modified pursuant to this proposed make inoperative exemption would
have to be notified that the vehicle's safety device or element of
design was made inoperative, similar to the requirements for motor
vehicle repair businesses. NHTSA would require the name and address of
the rental company modifying the vehicle to be disclosed to the renter.
The notification would have to specifically identify that the knee
bolster air bag has been temporarily affected by the modification.
NHTSA believes, however, that this notification could be accomplished
simply by annotating the invoice or rental agreement at the rental
counter, which would take a minimum amount of time. The costs to meet
this requirement would be insignificant.
This notice proposes to require that the rental company affix a
temporary label, meant to remained affixed during the rental,
indicating that the knee bolster air bag is disabled. This label would
serve both to inform persons driving the vehicle of the status of the
air bag and to remind the rental company to reactivate the air bag at
the conclusion of the rental. Because this proposal does not apply to
permanent modifications, it would not be logical to include a permanent
label stating that the vehicle may not comply with all FMVSSs. Unlike a
provision in subpart C, this proposal does not include a requirement
that the physical location of the rental company modifying the vehicle
be on the label affixed to the vehicle. NHTSA believes that this
information is provided to renters in the rental agreement and is not
necessary to include on the label itself.
8. Should rental companies be required to retain records of
vehicles modified pursuant to this ``make inoperative'' exemption. If
so, what information and for how long?
Motor vehicle repair businesses who modify vehicles pursuant to the
``make inoperative'' exemption in 49 CFR part 595, subpart C, are
required to retain, for five years, information provided to owners of
vehicles that are modified. NHTSA tentatively concludes that this type
of record retention should be required of rental companies as well.
This would facilitate enforcement by NHTSA in the event of potential
violations of the terms of the make inoperative exemption in this
proposal, or if a safety problem arises in the vehicle at a later date
that could possibly relate to the deactivation of the air bag. NHTSA
believes the costs associated with this record retention would be
minimal since the record could be the rental agreement or invoice
itself, which can be stored as part of their general record retention
process, electronically or in paper format at their discretion. NHTSA
considers the costs of the proposed requirements in the section
discussing the applicability of the Paperwork Reduction Act. As with
the existing record retention requirement for motor vehicle repair
businesses that permanently modify vehicles for people with
disabilities, NHTSA is proposing a five-year recordkeeping requirement.
9. Should rental companies be required to notify subsequent renters
and/or purchasers of rental vehicles that have been modified pursuant
to this proposed ``make inoperative'' exemption that the vehicle was
previously modified?
While NHTSA is not proposing such a requirement, the Agency seeks
comment on whether such a requirement is warranted and if so, how such
a notification would be made. NHTSA notes that it does not have
authority over used vehicle sales transactions, and that State laws may
be better equipped to handle any general or specific retail disclosure
obligations. If the comments or other information available at the time
of the issuance of final rule implementing this proposal indicate that
such a requirement is warranted, it may be included in the final rule.
10. What procedures could or should NHTSA require of rental
companies to ensure the knee bolster air bag will be reenabled when the
rental vehicle is returned and the hand controls are disabled?
The make inoperative exemption that would be applicable to rental
companies by this proposal would only apply for the period during which
a covered rental vehicle is rented to a person with a disability and a
reasonable period before and after the rental agreement in order to
perform and subsequently reverse the modification to
[[Page 84288]]
accommodate a driver with physical disabilities. However, the proposal
does not include any specific requirements for rental companies for
reversing modifications to rental vehicles. NHTSA requests comments on
whether NHTSA should impose requirements related to reversing a vehicle
modification and if so, what those requirements should be.
11. To the extent car sharing companies (e.g., Zipcar) qualify as a
``rental company'' under 49 U.S.C. 30102, would all aspects of this
proposal be reasonably applied to ride sharing companies, or would
procedural requirements need to be different for them?
NHTSA believes that all aspects of this proposal would be equally
applicable to a car sharing company that qualifies as a ``rental
company'' under the definition in 49 U.S.C. 30102. However, NHTSA has
not conducted any outreach as to the application of this proposal to
car sharing companies. Therefore, any comments pertinent to the
application of this proposal would be helpful.
V. Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Requirements
NHTSA has considered the impact of this rulemaking action under
E.O. 12866, ``Regulatory Planning and Review,'' E.O. 13563, and the
Department of Transportation's regulatory requirements under 49 CFR
part 5. This rulemaking document was not reviewed by the Office of
Management and Budget under E.O. 12866. It is not considered to be
significant under E.O. 12866. NHTSA has determined that the effects are
so minor that a regulatory evaluation is not needed to support the
rulemaking.
Modifying a vehicle in a way that reduces the rear visibility of a
backup camera by installing a trailer or carrying device could reduce
crash avoidance features of the vehicle when the vehicle is reversing.
However, the number of vehicles potentially modified would be very few
in number. The Agency believes it has made the exemption narrow to
achieve the goal of increasing mobility of drivers and passengers with
physical disabilities while maintaining vehicle safety to the extent
possible. This rear visibility proposal does not contain new reporting
requirements or requests for information beyond what is already
required by 49 CFR part 595 subpart C. This rulemaking would impose
minor labeling, and insignificant recordkeeping, costs on rental
companies who choose to take advantage of the opportunity to install
temporary hand controls to accommodate the needs of customers with
physical disabilities, which we expect may be transferred to consumers.
The label and recordkeeping requirements are necessary to ensure
the modification that takes the vehicle out of compliance with the
FMVSS is temporary and that the vehicle will be restored to full
compliance when the rental is over. The proposed 5-year record
retention requirement would facilitate enforcement by NHTSA in the
event of potential violations of the terms of the make inoperative
exemption in this proposal, and to facilitate the investigation and
identification of vehicles in the event a subsequent safety problem
arises that could relate to the manner in which air bags were
deactivated. NHTSA believes that the costs associated with retaining
this record would be insignificant since the record could be the rental
invoice or agreement itself, which can be stored by rental companies in
the same manner that they store their invoices, including
electronically.
Rental companies choosing to deactivate knee bolster air bags to
facilitate installation of hand controls would incur costs associated
with the installation of a shunt and a pedal operating device for a
person with disability. However, the proposed rule is an enabling rule
and does not require a rental business to engage in this practice.
Thus, any costs associated with the installation of these devices are
solely related to a rental business that chooses to accommodate
consumers with disabilities for business or other reasons. Although the
proposed rule would not directly contribute to the potential costs, any
such potential costs would likely be transferred to consumers.
Modifying a vehicle to install a trailer or carrying device, or
temporary hand controls would not only increase business for entities
making these modifications, but also increase consumer choices
resulting from the perceived usefulness of the installed hardware. The
consumer demand for the equipment and service is evidence that the
perceived usefulness would be greater than the sum of its cost and any
perceived added safety risk (i.e., resulting from making the rearview
camera and/or air bag inoperative).
E.O. 13771 (Regulatory Reform)
NHTSA has reviewed this SNPRM for compliance with E.O. 13771
(``Reducing Regulation and Controlling Regulatory Costs'') which
requires Federal Agencies to offset the number and cost of new
regulations through the repeal, revocation, or revision of existing
regulations. As provided in OMB Memorandum M-17-21 (``Implementing E.O.
13771''), a ``regulatory action'' subject to E.O. 13771 is a
significant regulatory action as defined in section 3(f) of E.O. 12866
that has been finalized and that imposes total costs greater than zero.
As discussed above, this action is not a significant rule under
Executive Order 12866. Accordingly, it is not subject to the offset
requirements of 13771.
This SNPRM is expected to be a deregulatory action under E.O.
13771. It provides an exemption to dealers and repair businesses that
would permit them to facilitate transport of unoccupied personal
mobility devices (PMD) such as wheelchairs, powered wheelchairs, and
powered scooters intended for use by vehicle occupants with mobility
impairments. The SNPRM would permit these entities the ability to
attach platform lifts and trailers for carrying PMD and provide more
consumer choices, which may result in increased interest in and sales
of these devices. The second part of this SNPRM would benefit rental
companies by enabling them to modify vehicles for customers with
disabilities and allow for the rental of vehicles with hand controls.
The rental companies would benefit by enabling a temporary modification
that will allow them to satisfy demand for such vehicles. They would
not have to turn away customers seeking to rent a vehicle with hand
controls due to an absence of such a vehicle on their premises.
However, NHTSA is unable at this time to quantify the cost impacts due
to the lack of information about the demand for devices such as
petitioner Bruno's PMD transporters and, from rental companies, the
demand for hand controls on rental vehicles whose installation
necessitates deactivating the knee bolster air bag. NHTSA requests
comments on estimating the cost savings of this proposed rule.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an Agency is required to publish a notice
of proposed rulemaking or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
The Small Business Administration's regulations at 13 CFR part 121
define a small business, in part, as a business entity ``which operates
[[Page 84289]]
primarily within the United States.'' (13 CFR 121.105(a)). No
regulatory flexibility analysis is required if the head of an Agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the Regulatory
Flexibility Act to require Federal Agencies to provide a statement of
the factual basis for certifying that a rule will not have a
significant economic impact on a substantial number of small entities.
I certify that this proposed rule would not have a significant
economic impact on a substantial number of small entities. The entities
installing the trailers and PMD-carrying devices could be small
entities, and a substantial number of rental companies might also be
small entities as well. However, the impacts on them are not expected
to be significant. The proposed exemption would be deregulatory and
provide additional flexibility to these entities with minimal
requirements (there are some labeling and recordkeeping requirements),
but overall the Agency does not believe there would be a large number
of PMD installed, or a large number of rental car transactions affected
by this rulemaking. Therefore, the impacts on any small businesses
affected by this rulemaking would not be significant.
Executive Order 13132 (Federalism)
NHTSA has examined today's proposed rule pursuant to Executive
Order 13132 (64 FR 43255; Aug. 10, 1999) and concluded that no
additional consultation with States, local governments, or their
representatives is mandated beyond the rulemaking process. The Agency
has concluded that the proposed rule does not have sufficient
federalism implications to warrant consultation with State and local
officials or the preparation of a federalism summary impact statement.
The proposal does not have ``substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government.'' This proposed rule would not impose any
requirements on anyone. This proposal would lessen restrictions on
modifiers and rental companies.
NHTSA rules can have preemptive effect in two ways. First, the
National Traffic and Motor Vehicle Safety Act contains an express
preemption provision stating that a State (or a political subdivision
of a State) may prescribe or continue to enforce a standard that
applies to an aspect of performance of a motor vehicle or motor vehicle
equipment only if the standard is identical to the FMVSS governing the
same aspect of performance. See 49 U.S.C. 30103(b)(1). This provision
is not relevant to this rulemaking as it does not involve the
establishing, amending or revoking of a Federal motor vehicle safety
standard.
Second, the Supreme Court has recognized the possibility, in some
instances, of implied preemption of State requirements imposed on motor
vehicle manufacturers, including sanctions imposed by State tort law.
While NHTSA is unaware of any specific State law or action that would
prohibit the actions that this proposed rule would permit, some States
may have laws or enforcement postures relating to the disabling of air
bags. While NHTSA is generally favors enforcement of such laws (indeed
air bag disabling by manufacturers, dealers, motor vehicle repair
businesses and rental companies is generally prohibited through NHTSA's
make inoperative prohibition), the proposed exemption from this
provision for temporary disablement of knee bolster air bags could
preempt State laws that include broad prohibitions against disabling
air bags or air bag malfunction indicators. NHTSA requests comment from
States as to whether such laws or enforcement postures exist.
Civil Justice Reform
When promulgating a regulation, Agencies are required under
Executive Order 12988 to make every reasonable effort to ensure that
the regulation, as appropriate: (1) Specifies in clear language the
preemptive effect; (2) specifies in clear language the effect on
existing Federal law or regulation, including all provisions repealed,
circumscribed, displaced, impaired, or modified; (3) provides a clear
legal standard for affected conduct rather than a general standard,
while promoting simplification and burden reduction; (4) specifies in
clear language the retroactive effect; (5) specifies whether
administrative proceedings are to be required before parties may file
suit in court; (6) explicitly or implicitly defines key terms; and (7)
addresses other important issues affecting clarity and general
draftsmanship of regulations.
Pursuant to this Order, NHTSA notes as follows. The preemptive
effect of this proposed rule is discussed above. NHTSA notes further
that there is no requirement that individuals submit a petition for
reconsideration or pursue other administrative proceeding before they
may file suit in court.
National Technology Transfer and Advancement Act
Under the National Technology Transfer and Advancement Act of 1995
(NTTAA) (Pub. L. 104-113), ``all Federal agencies and departments shall
use technical standards that are developed or adopted by voluntary
consensus standards bodies, using such technical standards as a means
to carry out policy objectives or activities determined by the agencies
and departments.'' Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies, such as the Society of Automotive
Engineers (SAE). The NTTAA directs us to provide Congress, through OMB,
explanations when we decide not to use available and applicable
voluntary consensus standards. No voluntary standards exist regarding
these proposed exemptions for modification of vehicles to accommodate
persons with disabilities.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 requires Agencies to
prepare a written assessment of the costs, benefits and other effects
of proposed or final rules that include a Federal mandate likely to
result in the expenditure by State, local or tribal governments, in the
aggregate, or by the private sector, of more than $100 million annually
(adjusted for inflation with base year of 1995). This proposed
exemption would not result in expenditures by State, local or tribal
governments, in the aggregate, or by the private sector in excess of
$100 million annually.
National Environmental Policy Act
NHTSA has analyzed this rulemaking action for the purposes of the
National Environmental Policy Act. The Agency has determined that
implementation of this action would not have any significant impact on
the quality of the human environment.
Paperwork Reduction Act
Under procedures established by the Paperwork Reduction Act of 1995
(PRA), a person is not required to respond to a collection of
information by a Federal Agency unless the collection displays a valid
Office of Management and Budget (OMB) control number. The proposal
adding the backup camera requirements (S5.5 and S6.2) of FMVSS No. 111
to 49 CFR part 595 subpart C does not contain new reporting
requirements or requests for information beyond what is already
required by subpart C. The proposal
[[Page 84290]]
addressing rental companies would be a new Information Collection
Request (ICR), and has been forwarded to OMB for review. The ICR
describes the nature of the information collection and its expected
burden.
This SNPRM would make changes to an existing information collection
for exemptions from the make inoperative prohibition for modifiers and
related consumer disclosures under 49 CFR part 595, subpart C. In
compliance with the requirements of the PRA, NHTSA asks for public
comments on the following proposed revision of a currently approved
collection of information:
Title: Exemption from Make Inoperative Prohibition Modifier
Identification and Consumer Disclosure 49 CFR 595 Subpart C.
Type of Request: Revision of a currently approved collection.
OMB Control Number: 2127-0635
Affected Public: Businesses that modify vehicles, after first
retail sale, so that the vehicle may be used by persons with
disabilities.
Requested Expiration Date of Approval: Three years from the date of
approval.
Form Number: None.
Summary of the Collection of Information: Rental companies would be
added to the group of entities who, if they avail themselves of the
exemptions in 49 CFR subpart C, are required to keep a record, for each
applicable vehicle, listing which standards, or portions thereof, are
affected by the modification, and to provide a copy to the owner
(renter) of the vehicle modified (see 49 CFR 595.7 (b) and (e) as
published below). This SNPRM does not propose to extend the
registration requirement for modifiers to rental companies, so that
aspect of the collection is not proposed to be modified.
Description of the Need for the Information and Use of the
Information: This SNPRM proposes to extend to rental companies the
requirement that modifiers provide each customer whose vehicle
modification involves the use of the make inoperative exemptions with a
list of the exemptions used to modify that vehicle. (Practically
speaking, there would only be the one exemption discussed in this
SNPRM, for knee bolster air bags.) The simplest form of this document
is an annotated invoice or rental agreement. No specific, separate, or
special forms are required. A copy of this document must also be
retained for five years. This document will be used by the consumer (or
renter, in the case of rental vehicles) to understand the modifications
made to his/her vehicle and their effect on vehicle safety. It may be
used by NHTSA in the event of an inquiry about the safety of the
modified vehicles or compliance with the requirements that might be
adopted.
Description of the Likely Respondents (Including Estimated Number,
and Proposed Frequency of Response to the Collection of Information):
NHTSA estimates that rental companies would temporarily modify
approximately 4000 vehicles per year \14\ for persons with disabilities
under the exemption proposed in this SNPRM, all of which are proposed
to be subject to the notification requirement.
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\14\ This information is based upon an estimate provided by
Enterprise regarding the number of vehicle modifications it
anticipates making.
---------------------------------------------------------------------------
Estimate of the Total Annual Reporting and Recordkeeping Burden
Resulting from the Collection of Information: The burden for the record
required by proposed 49 CFR 595.8 for those vehicles will be an
additional 1,333 hours per year nationwide. NHTSA anticipates that the
least costly way for a rental company to comply with this portion of
the new rule would be to annotate the vehicle modification invoice to
describe the exemption, if any, involved with each item on the invoice.
The cost of preparing the invoice is not a portion of our burden
calculation, as that preparation would be done in the normal course of
business. The time needed to annotate the invoice, we estimate, is 20
minutes. This burden does not include the gathering of the information
required for the calculation. That information would be gathered in the
normal course of the vehicle modification.
The labor costs associated with this additional burden are
estimated to be $25.29 per hour for ``Automotive Service Technicians
and Mechanics,'' Occupation code 49-3023.\15\ This is based on the
assumption that the person making the modification to the vehicle will
be annotating the invoice, rather than a rental clerk assisting a
customer. Therefore, the estimated total labor costs associated with
this additional burden are $33,712 ($25.29 per hour wage x 1,333 hours
= $33,711.57).
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\15\ See May 2019 National Occupational Employment and Wage
Estimates by ownership, Federal, state, and local government
including the U.S. Postal Service, available at https://www.bls.gov/oes/current/999001.htm#49-0000 (accessed December 22, 2020).
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There will be no additional material cost associated with
compliance with this requirement since no additional materials need be
used above those used to prepare the invoice in the normal course of
business. We are assuming it is normal and customary in the course of
rental car business to prepare an invoice, to provide a copy of the
invoice to the vehicle owner, and to keep a copy of the invoice for
five years after the vehicle is rented.
Comments Are Invited On:
1. Will the document referenced in proposed 49 CFR 595.8 need to be
prepared for approximately 4000 temporarily modified vehicles per year?
2. Will the annotation of each invoice as to which exemptions were
used take an average of 20 minutes? If the exemption were only for the
knee bolster air bag, would a time less than 20 minutes be needed?
3. Is it normal in the course of the car rental business, to
provide a copy of the invoice to the vehicle owner, and to keep a copy
of the invoice for five years after the vehicle is delivered to the
owner in finished form?
Please submit any comments, identified by the docket number in the
heading of this document, by the methods described in the ADDRESSES
section of this document to NHTSA and OMB.
Plain Language
Executive Order 12866 requires each Agency to write all rules in
plain language. Application of the principles of plain language
includes consideration of the following questions:
Have we organized the material to suit the public's needs?
Are the requirements in the rule clearly stated?
Does the rule contain technical language or jargon that
isn't clear?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rule easier to understand?
Would more (but shorter) sections be better?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rule easier to
understand?
If you have any responses to these questions, please include them
in your comments on this proposal.
Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN contained in the heading at the beginning of this document
to find this action in the Unified Agenda.
[[Page 84291]]
VI. Public Participation
How long do I have to submit comments?
We are providing a 60-day comment period.
How do I prepare and submit comments?
Your comments must be written in English.
To ensure that your comments are correctly filed in the
Docket, please include the Docket Number shown at the beginning of this
document in your comments.
Your comments must not be more than 15 pages long. (49 CFR
553.21). We established this limit to encourage you to write your
primary comments in a concise fashion. However, you may attach
necessary additional documents to your comments. There is no limit on
the length of the attachments.
If you are submitting comments electronically as a PDF
(Adobe) File, NHTSA asks that the documents be submitted using the
Optical Character Recognition (OCR) process, thus allowing NHTSA to
search and copy certain portions of your submissions. Comments may be
submitted to the docket electronically by logging onto the Docket
Management System website at http://www.regulations.gov. Follow the
online instructions for submitting comments.
You may also submit two copies of your comments, including
the attachments, to Docket Management at the address given above under
ADDRESSES.
Please note that pursuant to the Data Quality Act, in order for
substantive data to be relied upon and used by the Agency, it must meet
the information quality standards set forth in the OMB and DOT Data
Quality Act guidelines. Accordingly, we encourage you to consult the
guidelines in preparing your comments. OMB's guidelines may be accessed
at http://www.whitehouse.gov/omb/fedreg/reproducible.html. DOT's
guidelines may be accessed at http://www.bts.gov/programs/statistical_policy_and_research/data_quality_guidelines.
How can I be sure that my comments were received?
If you wish Docket Management to notify you upon its receipt of
your comments, enclose a self-addressed, stamped postcard in the
envelope containing your comments. Upon receiving your comments, Docket
Management will return the postcard by mail.
How do I submit confidential business information?
If you wish to submit any information under a claim of
confidentiality, you should submit three copies of your complete
submission, including the information you claim to be confidential
business information, to the Chief Counsel, NHTSA, at the address given
above under FOR FURTHER INFORMATION CONTACT. In addition, you should
submit two copies, from which you have deleted the claimed confidential
business information, to Docket Management at the address given above
under ADDRESSES. When you send a comment containing information claimed
to be confidential business information, you should include a cover
letter setting forth the information specified in our confidential
business information regulation. (49 CFR part 512). To facilitate
social distancing during COVID-19, NHTSA is temporarily accepting
confidential business information electronically. Please see https://www.nhtsa.gov/coronavirus/submission-confidential-business-information
for details.
Will the Agency consider late comments?
We will consider all comments that Docket Management receives
before the close of business on the comment closing date indicated
above under DATES. To the extent possible, we will also consider
comments that Docket Management receives after that date. If Docket
Management receives a comment too late for us to consider in developing
the follow on final rule, we will consider that comment as an informal
suggestion for future rulemaking action.
How can I read the comments submitted by other people?
You may read the comments received by Docket Management at the
address given above under ADDRESSES. The hours of the Docket are
indicated above in the same location. You may also see the comments on
the internet. To read the comments on the internet, go to http://www.regulations.gov. Follow the online instructions for accessing the
dockets.
Please note that, even after the comment closing date, we will
continue to file relevant information in the Docket as it becomes
available. Further, some people may submit late comments. Accordingly,
we recommend that you periodically check the Docket for new material.
List of Subjects in 49 CFR Part 595
Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, NHTSA proposes to amend 49 CFR
part 595 to read as follows:
PART 595--MAKE INOPERATIVE EXEMPTIONS
0
1. The authority citation for Part 595 would be revised to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, 30122 and 30166;
delegation of authority at 49 CFR 1.95.
0
2. Revise Sec. 595.3 to read as follows:
Sec. 595.3 Applicability.
This part applies to dealers, motor vehicle repair businesses, and
rental companies.
0
3. Amend Sec. 595.4 by adding in alphabetical order, the definitions
``covered rental vehicle'' and ``rental company,'' to read as follows:
Sec. 595.4 Definitions.
* * * * *
The term covered rental vehicle is defined as it is in 49 U.S.C.
30102(a).
* * * * *
The term rental company is defined as it is in 49 U.S.C. 30102(a).
0
4. Amend Sec. 595.7 by adding paragraph (c)(19) to read as follows:
Sec. 595.7 Requirements for vehicle modifications to accommodate
people with disabilities.
* * * * *
(c) * * *
(19) S5.5.1, S5.5.2, S6.2.1, and S6.2.2 of 49 CFR 571.111, in any
case in which a personal mobility device transporter is temporarily
installed on a vehicle by way of a trailer hitch to carry a personal
mobility device (e.g., a wheelchair, powered wheelchair, or powered
scooter) used by the driver or a passenger with a disability.
* * * * *
0
5. Add Sec. 595.8 to read as follows:
Sec. 595.8 Modifications by rental companies.
(a) A rental company that modifies a motor vehicle temporarily in
order to rent a covered rental vehicle to a person with a disability to
operate, or ride as a passenger in, the motor vehicle is exempted from
the ``make inoperative'' prohibition in 49 U.S.C. 30122 to the extent
that those modifications make inoperative any part of a device or
element of design installed on or in the motor vehicle in compliance
with the Federal motor vehicle safety standards or portions thereof
specified in paragraph (d) of this section. Modifications that would
make inoperative devices or elements of design installed in compliance
with any other Federal motor vehicle safety
[[Page 84292]]
standards, or portions thereof, are not covered by this exemption.
(b) The exemption described in paragraph (a) extends only for the
period during which the covered rental vehicle is rented to a person
with a disability and a reasonable period before and after the rental
agreement in order to perform and reverse the modification described in
paragraph (d) of this section.
(c) Any rental company that temporarily modifies a motor vehicle to
enable a person with a disability to operate, or ride as a passenger
in, the motor vehicle in such a manner as to make inoperative any part
of a device or element of design installed on or in the motor vehicle
in compliance with a Federal motor vehicle safety standard or portion
thereof specified in paragraph (d) of this section must affix to the
motor vehicle a label of the type and in the manner described in
paragraph (e) of this section and must provide and retain a document of
the type and in the manner described in paragraph (f) of this section.
(d)(1) 49 CFR 571.208, in the case of the disablement of a knee
bolster air bag to allow the installation of hand controls.
(2) [Reserved]
(e) The label required by paragraph (c) of this section shall:
(1) Be affixed within the passenger compartment of the vehicle.;
(2) Be affixed in a location visible to the driver in a manner that
does not obstruct the driver's view while operating the vehicle;
(3) Contain the statement ``WARNING--To accommodate installation of
hand controls, this rental vehicle has had its knee bolster air bags
temporarily disabled,'' and,
(4) Be removed when the modifications described in paragraph (d)
are reversed.
(f) The document required by paragraph (c) of this section shall:
(1) Be provided in original or photocopied paper form, or in
electronic form to the renter of the covered rental vehicle at the time
of execution of the rental agreement;
(2) Contain the name and physical address of the rental company
making the modifications;
(3) Be kept in original or photocopied paper form, or retained
electronically, by the rental company for a period of not less than
five years after the conclusion of the rental agreement for which the
modification is made;
(4) Be clearly identifiable as to the vehicle that has been
modified; and
(5) Identify the devices or elements of design installed on or in a
motor vehicle in compliance with a Federal motor vehicle safety
standard made inoperative by the rental company.
Issued in Washington, DC, under authority delegated in 49 CFR
1.95.
James C. Owens,
Deputy Administrator.
[FR Doc. 2020-28648 Filed 12-23-20; 8:45 am]
BILLING CODE 4910-59-P