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Make Inoperative Exemptions; Vehicle Modifications To Accommodate People With Disabilities, Side Impact Protection

American Government Special Collections Reference Desk

American Government

Make Inoperative Exemptions; Vehicle Modifications To Accommodate People With Disabilities, Side Impact Protection

Joseph S. Carra
National Highway Traffic Safety Administration
September 28, 2010

[Federal Register: September 28, 2010 (Volume 75, Number 187)]
[Proposed Rules]               
[Page 59674-59678]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se10-24]                         

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 595

[Docket No. NHTSA-2010-0133]
RIN 2127-AK77

 
Make Inoperative Exemptions; Vehicle Modifications To Accommodate 
People With Disabilities, Side Impact Protection

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This NPRM proposes to amend our regulations to correct and 
expand a reference in an exemption relating to the Federal motor 
vehicle safety standard for side impact protection. The expanded 
exemption would facilitate the mobility of physically disabled drivers 
and passengers. This document responds to a petition from Bruno 
Independent Living Aids.

DATES: You should submit your comments early enough to ensure that the 
Docket receives them not later than October 28, 2010.

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.
     Fax: 202-493-2251.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process,

[[Page 59675]]

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. Follow the online instructions for accessing the dockets.

FOR FURTHER INFORMATION CONTACT: Shelley Bolbrugge, NHTSA Office of 
Crash Avoidance Standards, NVS-123 (telephone 202-366-9146) (fax 202-
493-2739), or Deirdre Fujita, NHTSA Office of Chief Counsel, NCC-112 
(telephone 202-366-2992) (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: 

Background

    The National Traffic and Motor Vehicle Safety Act (49 U.S.C. 
Chapter 301) (``Safety Act'') and NHTSA's regulations require vehicle 
manufacturers to certify that their vehicles comply with all applicable 
Federal motor vehicle safety standards (FMVSSs) (see 49 U.S.C. 30112; 
49 CFR part 567). A vehicle manufacturer, distributor, dealer, 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)). The agency has 
used that authority to promulgate 49 CFR part 595, subpart C, ``Make 
Inoperative Exemptions, Vehicle Modifications to Accommodate People 
with Disabilities.''
    49 CFR part 595 subpart C sets forth exemptions from the make 
inoperative provision to permit, under limited circumstances, vehicle 
modifications that take the vehicles out of compliance with certain 
FMVSSs 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 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 49 CFR part 595 subpart C must register itself with NHTSA. 
The modifier is exempted from the make inoperative provision of the 
Safety Act, but only to the extent that the modifications affect the 
vehicle's compliance with the FMVSSs specified in 49 CFR 595.7(c) and 
only to the extent specified in 595.7(c). Modifications that would take 
the vehicle out of compliance with any other FMVSS, or with an FMVSS 
listed in 595.7(c) but in a manner not specified in that paragraph are 
not exempted by the regulation. 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 FMVSSs 
with which the vehicle no longer complies and indicating any reduction 
in the load carrying capacity of the vehicle of more than 100 kilograms 
(220 pounds).

Current Exemption in Part 595 Regarding Side Impact Protection

    Currently, 49 CFR part 595 subpart C sets forth an exemption from 
``S5 of 49 CFR 571.214 [FMVSS No. 214] for the designated seating 
position modified, in any cases in which the restraint system and/or 
seat at that position must be changed to accommodate a person with a 
disability.'' 49 CFR 595.7(c)(15).
    The reference to S5 of FMVSS No. 214 is outdated. S5 had referred 
to the dynamic performance requirements that vehicles must meet when 
subjected to a moving deformable barrier (MDB) test. The MDB test 
simulates an intersection collision with one vehicle being struck in 
the side by another vehicle. In 2007, NHTSA upgraded FMVSS No. 214 and 
reorganized the standard.\1\ The MDB test was redesignated as S7 and 
upgraded with the adoption of new technically-advanced test dummies 
representing a 5th percentile adult female and a 50th percentile adult 
male and enhanced injury criteria.
---------------------------------------------------------------------------

    \1\ 72 FR 51908, September 11, 2007; response to petitions for 
reconsideration, 73 FR 32473, June 9, 2003; 75 FR 12123, March 15, 
2010.
---------------------------------------------------------------------------

    In addition, the final rule added a new vehicle-to-pole test to the 
standard (see S9, 49 CFR 571.214). The pole test simulates a vehicle 
crashing sideways into narrow fixed objects, such as utility poles and 
trees. The pole test requires vehicle manufacturers to assure head and 
improved chest protection in side crashes for a wide range of occupant 
sizes and over a broad range of seating positions. Manufacturers will 
likely meet the upgraded requirements of the standard by vehicle 
modifications that include installing side air bags in vehicle seats 
and/or door panels and side roof rails. The phase-in of the upgraded 
MDB and pole test requirements began September 1, 2010.

Petition for Rulemaking

    On February 12, 2009, Bruno Independent Living Aids (Bruno) 
submitted a petition for rulemaking to expand the specified 
requirements of FMVSS No. 214 referenced in Sec.  595.7. Bruno 
manufactures a product line called ``Turning Automotive Seating 
(TAS).'' A TAS seat replaces the seat installed by the original 
equipment manufacturer (OEM). Bruno states that the purpose of the TAS 
is--

to provide safe access to private motor vehicles for mobility-
impaired drivers or passengers, semi-ambulatory or transferring from 
a wheelchair.
    The Bruno TAS replaces the OEM seat in a sedan, minivan, van, 
pickup, or SUV. In its various configurations the Bruno TAS seat 
pivots from the forward-facing driving position to the side-facing 
entry position, extends outward and lowers to a suitable transfer 
height, providing the driver and/or passengers a convenient and safe 
entry into the vehicle. The transfer into the seat takes place 
safely, while outside the vehicle, and the occupant remains in the 
seat during the entry process, using the OEM seatbelts while 
traveling in the vehicle. Exiting the vehicle is accomplished by 
reversing the process. A further TAS option is a mobility base, 
which converts the automotive seat into a wheelchair, that 
eliminates a need for transferring from the seat altogether.

    The petitioner believes that this method of vehicle entry and exit 
is safer than using a platform lift to enter a vehicle or entering and 
exiting unassisted. Bruno states in its petition that: ``* * * torso 
side air bags are commonly installed in the outboard side of the OEM 
seat backrest'' and would be removed when installing a TAS system 
requiring the exemption. Bruno seeks a part 595 exemption similar to 
the

[[Page 59676]]

existing exemption from the MDB test. Additionally, Bruno seeks to 
expand part 595 to allow an exemption from the new S9 Vehicle-To-Pole 
test requirements.

Response to Petition

    NHTSA has decided to grant Bruno's petition. We propose to amend 
Sec.  595.7(c)(15) to reference the upgraded MDB requirements and to 
expand the exemption to include the pole test requirements.

MDB Test Requirements

    The September 11, 2007 FMVSS No. 214 final rule redesignated the 
MDB requirements as S7. Because Sec.  595.7(c)(15)'s reference to S5 is 
no longer valid, today's NPRM would change that paragraph's reference 
from S5 to S7.
    We believe that there is a continuing need for the exemption from 
the MDB requirements. The original make inoperative exemption for the 
MDB requirements was granted because NHTSA was aware of drivers or 
passengers who needed to have a modifier change the restraint system or 
vehicle seat to accommodate a disability (66 FR 12637). At the time of 
the final rule we allowed the exemption because we determined that a 
change in the restraint system or seat location could affect the 
measurement of the injury criteria specified in the standard. The 
upgraded FMVSS No. 214 incorporates enhanced MDB requirements that 
could likewise be affected by an alteration of the restraint system 
and/or seat at the designated seating position being modified.
    The enhanced MDB requirements will improve head, chest, and pelvic 
protection in side crashes. Data from tests conducted pursuant to the 
September 2007 FMVSS No. 214 final rule showed that many vehicles will 
depend on side impact air bag technology to meet all of the injury 
criteria of the standard when tested with the 5th percentile female and 
50th percentile male dummies. If the side air bags in vehicles designed 
to the new requirements were removed, modifiers will take the vehicles 
out of compliance with the MDB test.
    The agency also tentatively believes that the compliance with the 
injury criteria for the MDB test could be affected even if vehicle 
seats with seat-mounted air bags are not removed but are instead 
changed in a less significant way to accommodate a person with a 
disability (e.g., an OEM seat is mounted on a 6-way power seat base). 
This is because there could be countermeasures that were designed to 
protect the occupant at the OEM seating position that may no longer be 
as protective at the position at which the seat is placed after the 
modification.

Pole Test Requirements

    We propose to expand Sec.  595.7(c)(15) to include an exemption for 
modifications that affect the vehicle's compliance with the pole test 
requirements of FMVSS No. 214 (set forth in S9 of the standard) in any 
case in which the restraint system and/or seat at that position must be 
changed to accommodate a person with a disability. The pole test 
applies to the driver and right front seat passenger seating positions. 
When NHTSA issued the final rule upgrading FMVSS No. 214, the agency 
believed that the upgraded requirements will ``lead to the installation 
of new technologies, such as side curtain air bags and torso side air 
bags.'' The countermeasure most likely to be used in the foreseeable 
future to meet the pole test requirements is side air bag technology 
incorporated in the vehicle's roof rail (side air bag curtain), door, 
and/or the vehicle seat.
    In our NPRM preceding the make inoperative exemption final rule (63 
FR 51547, September 28, 1998), NHTSA stated the following when 
addressing frontal air bag technology. The agency explained that, when 
a vehicle is modified to accommodate a person with a disability, 
typically the nature of the work that is done requires the air bag or 
some part of the crash sensing system connected to it to be removed. 
The make inoperative exemption was needed when the OEM-supplied seat 
had to be removed or work done to disengage or possibly affect the 
performance of the air bag system.
    These same considerations apply to the side air bag systems. 
Removing an OEM seat that has a side air bag and replacing it with an 
aftermarket seat that does not would likely make inoperative the system 
installed in compliance with FMVSS No. 214. Making some other 
substantive modification of the OEM seat or restraint system to 
accommodate a person with a disability could also affect the 
measurement of the injury criteria specified in the standard. We 
tentatively believe that an exemption from the make inoperative 
provision with regard to the pole test in FMVSS No. 214 is needed to 
permit modification of the vehicle's seating system to accommodate a 
person with a disability. This is comparable to the position taken by 
NHTSA with regard to the make inoperative exemption for frontal air 
bags required by FMVSS No. 208. See 595.7(c)(14).
    However, we recognize that the petitioner's request presents a 
trade-off of substantial side impact protection in exchange for 
continued mobility for people with disabilities and some enhancement in 
easier and possibly safer vehicle entry and exit.\2\ 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 disabled persons, 
without unreasonably expanding its use to situations where the benefits 
of the exemption may be outweighed by the drawbacks of nonconformance 
with the safety standard. We seek comment on whether an exemption is 
needed to make inoperative side curtain and torso air bags that are not 
located in the seat, i.e., side air bags that are found, for example, 
in door panels, pillars, or roof headliners. Could the vehicle seating 
system be removed or modified without negatively affecting the crash 
sensing system for door-mounted side air bags or roof-mounted window 
curtains? NHTSA would like to know if keeping air bags and activation 
systems that are not contained in the OEM seating systems would be 
compatible with adaptive seating currently in use. Would these 
modifications affect another designated seating position? What types of 
modifications would be necessary?
---------------------------------------------------------------------------

    \2\ NHTSA estimated in the FMVSS No. 214 rulemaking that side 
head and torso air bags result in a 24 percent reduction in fatality 
risk for nearside occupants and an estimated 14 percent reduction in 
fatality risk by torso bags alone. See Docket No. NHTSA-29134, 
NHTSA's Final Regulatory Impact Analysis.)
---------------------------------------------------------------------------

Dates

    We are limiting the comment period to 30 days because the upgraded 
FMVSS No. 214 requirements have begun phasing in September 1, 2010. 
NHTSA would like to consider the comments and complete this response to 
the petition as quickly as possible.
    In view of the September 1, 2010 phase-in date for the FMVSS No. 
214 amendments, and because this rulemaking would remove a restriction 
on the modification of vehicles for persons with disabilities, if a 
final rule is issued NHTSA anticipates making the amendment effective 
in less than 180 days following publication of the rule.

Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    NHTSA has considered the impact of this rulemaking action under 
E.O. 12866 and the Department of Transportation's regulatory policies 
and procedures. This

[[Page 59677]]

rulemaking document was not reviewed by the Office of Management and 
Budget under E.O. 12866, ``Regulatory Planning and Review.'' It is not 
considered to be significant under E.O. 12866 or the Department's 
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979). 
NHTSA has determined that the effects are so minor that a regulatory 
evaluation is not needed to support the subject rulemaking. This 
rulemaking would impose no costs on the vehicle modification industry. 
If anything, there could be a cost savings due to the proposed 
exemptions.
    Modifying a vehicle in a way that makes inoperative the performance 
of side impact air bags could be detrimental for the occupants of the 
vehicle in a side crash. However, the number of vehicles potentially 
modified would be very few in number. This is essentially the trade-off 
that NHTSA is faced with when increasing mobility for persons with 
disabilities: When necessary vehicle modifications are made, some 
safety may unavoidably be lost to gain personal mobility. We have 
requested comments on how the agency may make the exemption as narrow 
as reasonably possible.

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 
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.
    NHTSA has considered the effects of this proposed rule under the 
Regulatory Flexibility Act. Most dealerships and repair businesses are 
considered small entities, and a substantial number of these businesses 
modify vehicles to accommodate individuals with disabilities. I certify 
that this proposed rule would not have a significant economic impact on 
a substantial number of small entities. While most dealers and repair 
businesses would be considered small entities, the proposed exemption 
would not impose any new requirements, but would instead provide 
additional flexibility. Therefore, the impacts on any small businesses 
affected by this rulemaking would not be substantial.

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 a burden on 
modifiers.
    NHTSA rules can have preemptive effect in two ways. First, the 
National Traffic and Motor Vehicle Safety Act contains an express 
preemption provision:

    When a motor vehicle safety standard is in effect under this 
chapter, a State or a political subdivision of a State may prescribe 
or continue in effect a standard applicable to the same aspect of 
performance of a motor vehicle or motor vehicle equipment only if 
the standard is identical to the standard prescribed under this 
chapter.

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 or 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. 
We are unaware of any State law or action that would prohibit the 
actions that this proposed rule would permit.

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 
this proposed exemption 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

[[Page 59678]]

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 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 OMB control number. This 
proposal does not contain new reporting requirements or requests for 
information beyond what is already required by 49 CFR Part 595 Subpart 
C.

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.

List of Subjects in 49 CFR Part 595

    Motor vehicle safety, Motor vehicles.
    In consideration of the foregoing, we propose to amend 49 CFR part 
595 to read as follows:

PART 595--MAKE INOPERATIVE EXEMPTIONS

    1. The authority citation for part 595 continues to read as 
follows:

    Authority:  49 U.S.C. 322, 30111, 30115, 30117, 30122 and 30166; 
delegation of authority at 49 CFR 1.50.

    2. Amend Sec.  595.7 by revising paragraph (c)(15) to read as 
follows:


Sec.  595.7  Requirements for vehicle modifications to accommodate 
people with disabilities.

* * * * *
    (c)
* * * * *
    (15) S7 and S9 of 49 CFR 571.214, for the designated seating 
position modified, in any cases in which the restraint system and/or 
seat at that position must be changed to accommodate a person with a 
disability.
* * * * *

    Issued on: September 23, 2010.
Joseph S. Carra,
Acting Associate Administrator for Rulemaking.
[FR Doc. 2010-24344 Filed 9-27-10; 8:45 am]
BILLING CODE 4910-59-P

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