Make Inoperative Exemptions; Vehicle Modifications To Accommodate People With Disabilities, Head Restraints |
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David L. Strickland
National Highway Traffic Safety Administration
August 4, 2011
[Federal Register Volume 76, Number 150 (Thursday, August 4, 2011)]
[Rules and Regulations]
[Pages 47078-47083]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19802]
[[Page 47078]]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 595
[Docket No. NHTSA-2011-0108]
RIN 2127-AK22
Make Inoperative Exemptions; Vehicle Modifications To Accommodate
People With Disabilities, Head Restraints
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This final rule updates and expands an existing exemption from
certain requirements of our head restraints standard that is available
in the context of vehicle modifications to accommodate people with
disabilities. The rule facilitates the mobility of drivers and
passengers with disabilities by updating the exemption to include the
corresponding portions of a new, upgraded version of the standard, the
right front passenger seating position, and an exemption for persons
with limited ability to support their head.
DATES: Effective Date: October 3, 2011.
Petitions for Reconsideration: Petitions for reconsideration of
this final rule must be received by the agency by September 19, 2011.
ADDRESSES: If you wish to petition for reconsideration of this rule,
you should refer in your petition to the docket number of this document
and submit your petition to: Administrator, National Highway Traffic
Safety Administration, 1200 New Jersey Avenue, SE., West Building,
Washington, DC 20590. The petition will be placed in the docket. Anyone
is able to search the electronic form of all documents 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 (Volume
65, Number 70; Pages 19477-78).
For access to the docket to read background documents or comments
received, go to http://www.regulations.gov and follow the online
instructions for accessing the docket. You may also visit DOT's Docket
Management Facility, 1200 New Jersey Avenue, SE., West Building Ground
Floor, Room W12-140, Washington, DC 20590-0001 for access to the
docket.
FOR FURTHER INFORMATION CONTACT: For technical issues: Ms. Gayle
Dalrymple, NHTSA Office of Crash Avoidance Standards, NVS-123,
telephone (202-366-5559), fax (202-493-2739).
For legal issues: Mr. Jesse Chang, 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: This final rule amends one of the ``make
inoperative exemptions'' found in 49 CFR part 595. Specifically, this
final rule amends Subpart C, ``Vehicle Modifications To Accommodate
People With Disabilities,'' to update and expand a reference in an
exemption relating to our head restraints standard, Federal Motor
Vehicle Safety Standard (FMVSS) No. 202. The notice of proposed
rulemaking (NPRM), on which this final rule is based, was published in
the Federal Register (74 FR 67156) on December 18, 2009 (Docket No.
NHTSA-2009-0065).
Regulatory 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 (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, ``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 Sec. 595.7(c). Modifications that
would take the vehicle out of 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 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).
Upgraded Head Restraint Standard and the Exemption in Part 595 Subpart
C
Before today's final rule, 49 CFR part 595 subpart C allowed two
exemptions from FMVSS No. 202. Under 49 CFR 595.7(c)(8), modifiers were
exempted from the entirety of FMVSS No. 202 in any situation where the
driver or the front right passenger is seated in a wheelchair and no
seat is supplied with the vehicle. Under 49 CFR 595.7(c)(9), modifiers
were only exempted from the driver seat (and not passenger seat) head
restraint height and width requirements found in paragraphs S4.3(b)(1)-
(2) in order to accommodate rearward visibility for drivers who cannot
easily turn their head due to a disability.
However, in 2004, this agency published a final rule that made two
changes to our head restraints standard which affect the make
inoperative exemptions in Sec. 595.7(c)(8)-(9). The 2004 final rule
established an upgraded head restraints standard, designated FMVSS No.
202a, to eventually replace FMVSS No. 202, while allowing a several
year period during which manufacturers could comply with either
standard.\1\ Additionally, the 2004 final
[[Page 47079]]
rule made certain changes to FMVSS No. 202 itself, which included
redesignating paragraphs S4.3(b)(1)-(2) (the height and width
requirements) as paragraphs S4.2(b)(1)-(2).
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\1\ 69 FR 74848. We note that the upgraded standard was
subsequently amended. FMVSS No. 202a is titled Head restraints;
Mandatory applicability begins on September 1, 2009. FMVSS No. 202
is titled Head restraints; Applicable at the manufacturers option
until September 1, 2009.
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Thus, before today's final rule, the make inoperative exemption in
Sec. 595.7(c)(8)-(9) did not provide for an exemption to the head
restraint requirements for vehicles manufactured and certified under
FMVSS No. 202a. Further, Sec. 595.7(c)(9) did not correctly refer to
the re-designated height and width requirements of FMVSS No. 202.
Petition for Rulemaking
On 2 January 2007 our agency received a petition for rulemaking
from Bruno Independent Living Aids, Inc. (Bruno) requesting that we
amend Part 595 to account for FMVSS No. 202a, including adding an
exemption for passengers' side head restraint systems. In submitting
its petition, Bruno wished to facilitate use of its product, called
Turning Automotive Seating (TAS), which provides access to motor
vehicles to people with disabilities. Bruno's description of its TAS
system in the petition is summarized below:
The device consists of a rotating, motorized seat, which
replaces the OEM seat in a motor vehicle.
The TAS pivots from the forward-facing driving position to
the side-facing entry position and extends outward and lowers to a
suitable transfer height, providing the driver and/or passenger easy
entry into the vehicle.
The transfer into the seat takes place while outside the
vehicle, and the occupant remains in the seat during the entry process,
using OEM seat belts while traveling in the vehicle. Exiting the
vehicle is accomplished by reversing the process.
Bruno also described another TAS option that has a mobility base.
This system converts the automotive seat into a wheelchair, eliminating
the need for transferring from the seat altogether. Bruno states that
TAS systems provide mobility-impaired persons with safer and easier
ways to enter and exit a vehicle.
In its petition, Bruno states that the TAS provides substantial
safety benefits. As a basis for this claim, Bruno cites a NHTSA
research report published in 1997.\2\ In this note, the agency stated
that between 1991 and 1995, 7,121 wheelchair users were killed or
injured due to any of the following reasons: (1) Improper or no
securement, (2) lift malfunction, (3) transferring to or from a motor
vehicle, (4) falling on or off the ramp, or (5) a collision between the
wheelchair and a motor vehicle.\3\ According to Bruno's petition, the
TAS will help prevent 74% of those injuries--which includes all
injuries except those occurring when a wheelchair is struck by a motor
vehicle. Bruno contends that this is possible because the TAS will
provide wheelchair users an easy and safe way to enter and exit these
vehicles.
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\2\ Wheelchair Users Injuries and Deaths Associated with Motor
Vehicle related Incidents, September 1997, available at http://www.nhtsa.dot.gov.
\3\ Id., Table 2.
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Bruno indicated in its petition that the TAS currently complies
with FMVSS No. 202. However, the clearance between the top of the head
restraint and the door opening can restrict the number of viable
vehicle applications. Bruno also stated that the increased head
restraint height required by the new FMVSS No. 202a will significantly
reduce the number of available vehicle applications.
To facilitate the installation of the TAS on vehicles, Bruno
requested that the make inoperative exemptions of 49 CFR part 595 (for
persons not riding in a wheelchair) be expanded and updated to cover
both driver and passenger side head restraints. Further, Bruno
requested that the make inoperative provisions that provide exemptions
to portions of FMVSS No. 202 be extended to cover the equivalent
portions of FMVSS No. 202a. Additionally, it requested that the
exemptions in Part 595 be expanded to cover several aspects of FMVSS
No. 202a that are not currently provided for in FMVSS No. 202.
Specifically, Bruno requested more broadly that Part 595 be updated to
include an exemption for 49 CFR 571.202a S4.2.1 through S4.2.7. These
paragraphs encompass requirements on minimum height, width, backsets,
gaps, energy absorption, height retention, backset retention,
displacement, and strength. Finally, Bruno also noted the error where
Sec. 595.7(c)(9) mistakenly refers to S4.3 of FMVSS No. 202, instead
of S4.2.
Notice of Proposed Rulemaking
On December 18, 2009, NHTSA published in the Federal Register (74
FR 67156) an NPRM to amend Part 595. The agency proposed the exemptions
described in the following paragraphs in order to address two different
issues: (1) Amending Sec. 595.7(c)(8)-(9) to reflect the changes to
FMVSS No. 202 resulting from the 2004 final rule, and (2) the requested
expansion of the exemptions in order to accommodate accessibility
devices such as Bruno's TAS system.
In regards to the first issue, we proposed to extend the exemption
for the entirety of FMVSS No. 202, in situations where the driver or
the front right passenger is seated in a wheelchair and no seat is
supplied with the vehicle, to also cover the entirety of FMVSS No. 202a
under 49 CFR 595.7(c)(8).\4\ Additionally, we proposed to exempt driver
head restraints from the height and width requirements in S4.3 (for
vehicles manufactured before March 14, 2005 \5\) and S4.2 (for vehicles
manufactured after March 14, 2005) under 49 CFR Part 595.7(c)(9) in
order to reflect the re-designation of S4.3 as S4.2 in FMVSS No.
202.\6\ Finally, we proposed to extend the exemption for the height and
width requirements in FMVSS No. 202 for the driver head restraint to
cover the equivalent provisions of FMVSS No. 202a.
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\4\ 74 FR 67156.
\5\ March 14, 2005 was the effective date of the 2004 final
rule. We proposed to include the reference to S4.3 for vehicles
manufactured before March 14, 2005 because those vehicles would have
been certified to FMVSS No. 202 as written before it was amended by
the 2004 final rule.
\6\ 74 FR 67156.
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In making these proposals, our agency sought to preserve the
original exemptions to FMVSS No. 202. The agency recognized in the NPRM
that, after the 2004 final rule, modifiers may seek to apply the
exemptions in Sec. 595.7(c)(8)-(9) to vehicles certified under either
FMVSS No. 202 or the upgraded FMVSS No. 202a (depending on the date of
vehicle manufacture). Thus, the agency sought to extend the exemptions
that applied to FMVSS No. 202 to the equivalent portions of FMVSS No.
202a and correct the reference to S4.3 (which had been re-designated as
S4.2 by the 2004 final rule).
In regards to the second issue, we proposed to extend the exemption
from the height requirements (but not the width requirements) of FMVSS
No. 202a to cover the front passenger seat head restraint.\7\ We
recognized in the NPRM that this extension may create some additional
degradation of whiplash protection beyond the current exemptions.
However, the agency tentatively concluded that the benefits of safer
ingress and egress for persons with mobility needs would outweigh the
potential drawbacks. In spite of this tentative conclusion, the agency
sought to propose the narrowest appropriate exemption in order to
appropriately balance the mobility needs of people who must have
vehicle modifications to
[[Page 47080]]
accommodate a disability with the safety benefits of FMVSSs No. 202 and
202a.
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\7\ Id.
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Since the exemption sought by the petitioner seemed for the purpose
of ensuring that the head restraint on the TAS seat cleared the door
frame to provide easy access, we tentatively concluded that the
aforementioned exemption only to the height requirements of FMVSSs No.
202 and 202a would be appropriate. Specifically, we were not aware of
any rationale that would support extending the exemptions to include
the width requirement for the front passenger head restraint or any of
the other additional exemptions requested by Bruno.\8\ However, we
requested comment in the NPRM in regards to whether the additional
exemptions requested by Bruno would be relevant to facilitating the
mobility needs of persons with disabilities.
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\8\ The NPRM did not propose to include exemptions for
paragraphs S4.2.1(a) and S4.2.3 through S4.2.7.
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Comment
The agency received one comment on the 2009 NPRM. This comment was
submitted by Bruno. Bruno stated that a more expansive exemption is
required in order to accommodate the functions of a type of TAS system
called the Carony Transportation System (Carony). In its comment, Bruno
described the Carony system as a TAS seat that has the ability to
detach from the vehicle and convert into a wheelchair. Intended to
function as a typical wheelchair outside of the vehicle, the seat
portion of the wheelchair detaches from the wheelbase and can reattach
to the TAS carriage and be repositioned into the vehicle. Bruno
contends that this type of seating device can be used to facilitate the
positioning needs of the person with a disability (such as high level
quadriplegia, cerebral palsy, or hydrocephalus) through the inclusion
of positioning belts, posture vests, body supports, lumbar supports,
and specialized head positioning devices devised by therapists.
In subsequent conversations with a NHTSA staff member, Bruno
further clarified that it is seeking the additional exemptions from
FMVSS No. 202a in order to accommodate the needs of persons that have
limited or no muscle tone in the neck and do not have the ability to
support the head.\9\ Bruno asserts that such needs generally arise for
persons who use the Carony system and that their needs can require the
complete replacement of the head restraint in order to provide head
support.
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\9\ See Docket No. NHTSA-2009-0065-0003.
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The Final Rule
Based on consideration of the available information, including
Bruno's petition and comment, this agency decided to issue this final
rule adopting the exemptions as proposed by the NPRM and also further
expanding the exemptions to enable modification or replacement of the
head restraint of the front passenger seat of a vehicle in order to
support or position the passenger's head or neck to accommodate a
disability.
Specifically, this final rule amends Sec. 595.7(c)(8)-(9) to: (1)
Expand the exemption from all head restraint requirements in situations
where a wheelchair is used in place of a vehicle seat, (2) correctly
refer to the re-designated S4.2 in FMVSS No. 202, (3) extend the height
and width exemptions from the driver head restraint requirements in
FMVSS No. 202 to include FMVSS No. 202a, and (4) extend the height
exemption for the driver head restraint to cover the passenger head
restraint in FMVSS 202a. Further, this final rule also extends the
exemption to cover S4.2.1 through S4.2.7 of FMVSS No. 202a (and the
corresponding provisions of FMVSS No. 202) in order to accommodate the
neck positioning needs of persons with disabilities.
The agency remains concerned about the potential for degradation in
head and neck whiplash protection and the negative effect that an
exemption may have on the safety benefits afforded to disabled persons
who require modifications to their vehicles. However, we are unaware at
this time of any other reasonable alternatives that can appropriately
balance the mobility needs of people who must have vehicle
modifications to accommodate a disability with the head restraint
requirements of FMVSS No. 202 and FMVSS No. 202a.
Updating Sec. 595.7(c)(8) To Include FMVSS No. 202a
Today's final rule adopts the proposal in the NPRM to update Sec.
595.7(c)(8) to include an exemption for the entirety of FMVSS No. 202
and FMVSS No. 202a in situations where a person with a disability
requires the use of a wheelchair in place of a vehicle seat in order to
drive or ride in a motor vehicle. As stated in the NPRM, the original
purpose of this exemption was to enable wheelchair users to make
modifications to the motor vehicle so as to use the wheelchair in place
of the vehicle seat. In this situation, FMVSS No. 202 would be made
inoperative because the vehicle seat--along with the head restraint--
has been completely removed. The agency believes that this issue
continues with FMVSS No. 202a which requires more stringent
requirements for head restraints. For these reasons, the agency expands
the coverage of the exemption in Sec. 595.7(c)(8) to include FMVSS No.
202a through today's final rule.
Updating and Extending the Height and Width Exemptions in Sec.
595.7(c)(9)
Today's final rule also adopts the proposals in the NPRM to update
and expand the exemptions from the height and width requirements for
head restraints in FMVSSs No. 202 and 202a. As discussed in the NPRM,
the original exemption in Sec. 595.7(c)(9) was established in order to
accommodate drivers with a limited range of motion turning their heads.
The agency reasoned that this accommodation was necessary in order to
facilitate the ability of these drivers to look backwards when
conducting lane change or backing maneuvers. As there is a continuing
need to accommodate drivers in this manner, we adopt the proposal in
the NPRM to extend the height and width exemptions from FMVSS No. 202
to cover the equivalent provision for FMVSS No. 202a.
However, we decline to extend the exemption to cover the width
requirements of FMVSS No. 202a for the front passenger seat as Bruno
requested in its petition and comments to the NPRM. As the agency
desires to grant the narrowest exemption possible to balance both the
needs of persons with disabilities and the safety concerns, we decline
to extend the width exemption to the front passenger because front
passengers are not required to look backwards in the same manner as
drivers. In the NPRM, this agency requested comment on whether or not
there exists any other reason to expand the width exemption to the
front passenger seat. Since this agency did not receive any comments
that provided a rationale for extending the width requirement exemption
to the front passenger seat, this final rule adopts the proposal from
the NPRM which does not extend the width exemption from FMVSS No. 202a
to cover the front passenger seat.
However, the advent of new products such as the TAS system by Bruno
prompted this agency to tentatively conclude in the NPRM that an
extension of the exemption from the height requirement of FMVSS No.
202a to cover the front passenger seat is necessary to accommodate
persons who require a chair such as the TAS system
[[Page 47081]]
in order to ride in a motor vehicle. Users of the TAS system and
similar systems require an exemption to the height requirement in FMVSS
No. 202a because a compliant head restraint may be too tall and can
prevent the seat portion of the TAS system from clearing the A-pillar
of a motor vehicle. Since users of these systems may be drivers or
passengers in a motor vehicle, this exemption is required for the front
passenger seat as well as the driver seat. As we stated in the NPRM,
such seating systems allow persons with disabilities to enter the
vehicle in a sitting position, without the need to perform the
sometimes dangerous act of ascending or descending into the vehicle.
Since this exemption may degrade the whiplash protection afforded to
users of the TAS system and other similar systems, we adopt in today's
final rule the proposal in the NPRM which extends only the exemption
from the height requirements of FMVSS No. 202a to the front passenger
seat.
Updating Sec. 595.7(c)(9) To Correctly Refer to S4.2 in FMVSS No. 202
Today's final rule also adopts the proposal in the NPRM to update
Sec. 595.7(c)(9) to refer to S4.2 in FMVSS No. 202. As discussed in
the NPRM, the agency found that Sec. 595.7(c)(9) did not reflect the
2004 final rule's re-designation of the height and width requirements
for the head restraints in FMVSS No. 202 from S4.3 to S4.2. As there is
a continuing need to exempt driver seats from the height and width
requirements of FMVSS No. 202 for the reasons discussed in previous
paragraphs, today's final rule updates Sec. 595.7(c)(9) to correctly
refer to S4.2 instead of S4.3. However, for vehicles manufactured
before the effective date of the 2004 final rule (March 14, 2005),
Sec. 595.7(c)(9) will continue to refer to S4.3.
Expanding the Exemption To Account for Persons Who Require Head
Positioning Devices
In the NPRM, the agency contemplated denying Bruno's request for
exemptions from S4.2.1 through S4.2.7 of FMVSS No. 202a beyond the
aforementioned exemptions, but sought public comment on this issue.
Today's final rule grants these exemptions (and their equivalent
exemptions in FMVSS No. 202) for the limited circumstance in which the
head restraint of the front passenger seat must be modified or
completely replaced in order to position or support the head of a
person with limited or no ability to support his or her head due to a
disability.
After explaining that the agency was not aware of any rationale
that would support Bruno's request for additional exemptions, the NPRM
requested comment on whether any of the additional exemptions requested
by Bruno would be relevant in facilitating mobility for persons with
disabilities. In its comments, Bruno stated that it offers a type of
TAS system seat called the Carony which functions as a ``typical
wheelchair outside the vehicle'' and unlatches from the wheeled base in
order to be transferred into the motor vehicle. Bruno further stated in
its comments (and clarified through its subsequent conversations) that
this system facilitates special positioning needs for their clients
with high level quadriplegia, cerebral palsy, or hydrocephalus and can
require specialized alterations or replacement head restraints as
medically necessary.
Based on this information, we believe that the additional
exemptions to S4.2.1 through S4.2.7 requested by Bruno are necessary in
order to accommodate the mobility needs of these individuals because
these modifications to the head restraint can involve replacing the
entire head restraint unit. In addition, NHTSA anticipates that similar
exemptions will be required for persons seeking to accommodate similar
medical needs for vehicles certified under FMVSS No. 202. Thus, in
addition to paragraphs S4.2.1 through S4.2.7 of FMVSS No. 202a, this
final rule adds exemption from the entirety of paragraph S4.2 (or
paragraph S4.3 for vehicles manufactured before March 14, 2005) of
FMVSS No. 202 in situations in which the head restraint must be removed
or modified to position or support a passenger's head or neck due to a
disability. However, in order to ensure that this exemption does not
cover situations beyond the mobility needs of these individuals, this
final rule establishes these exemptions for the front passenger seat
only and only for situations where the head restraint must be modified
or replaced in order to support or position the passenger's head or
neck due to a disability.
As this final rule relieves the regulatory burdens on certain
entities, the agency believes that an effective date 60 days after
publication in the Federal Register is appropriate.
Rulemaking Analyses and Notices
Executive Order 12866, Executive Order 13563, and DOT Regulatory
Policies and Procedures
NHTSA has considered the impact of this rulemaking action under
Executive Order 12866, Executive Order 13563, and the Department of
Transportation's regulatory policies and procedures. This 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 minor and that a regulatory evaluation is not
needed to support the subject rulemaking. Today's final rule imposes no
costs on the vehicle modification industry. If there is any effect, it
will be a cost savings due to the exemptions.
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).
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 final rule under the
Regulatory Flexibility Act. Many dealerships and repair businesses
would be considered small entities, and some of these businesses modify
vehicles to accommodate individuals with disabilities. I certify that
this final rule does not have a significant economic impact on a
substantial number of small entities. While many dealers and repair
businesses are considered small entities, this exemption does not
impose any new requirements, but instead provides 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 final 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
[[Page 47082]]
mandated beyond the rulemaking process. The agency has concluded that
the final 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 final rule 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.'' Today's
final rule does not impose any additional requirements. Instead, it
lessens burdens on the exempted entities.
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). It is this statutory command by Congress that
preempts any non-identical State legislative and administrative law
address the same aspect of performance. However, this provision is not
relevant to this final rule as this rule does not involve the
establishing, amending or revoking of a Federal motor vehicle safety
standard.
The express preemption provision described above is subject to a
savings clause under which ``[c]ompliance with a motor vehicle safety
standard prescribed under this chapter does not exempt a person from
liability at common law.'' 49 U.S.C. 30103(e) Pursuant to this
provision, State common law tort causes of action against motor vehicle
manufacturers that might otherwise be preempted by the express
preemption provision are generally preserved. However, the Supreme
Court has recognized the possibility, in some instances, of implied
preemption of State common law tort causes of action by virtue of
NHTSA's rules--even if not expressly preempted.
This second way that NHTSA rules can preempt is dependent upon the
existence of an actual conflict between an FMVSS and the higher
standard that would effectively be imposed on motor vehicle
manufacturers if someone obtained a State common law tort judgment
against the manufacturer--notwithstanding the manufacturer's compliance
with the NHTSA standard. Because most NHTSA standards established by an
FMVSS are minimum standards, a State common law tort cause of action
that seeks to impose a higher standard on motor vehicle manufacturers
will generally not be preempted. However, if and when such a conflict
does exist--for example, when the standard at issue is both a minimum
and a maximum standard--the State common law tort cause of action is
impliedly preempted. See Geier v. American Honda Motor Co., 529 U.S.
861 (2000).
Pursuant to Executive Order 13132, NHTSA has considered whether
this rule could or should preempt State common law causes of action.
The agency's ability to announce its conclusion regarding the
preemptive effect of one of its rules reduces the likelihood that
preemption will be an issue in any subsequent tort litigation.
To this end, the agency has examined the nature (e.g., the language
and structure of the regulatory text) and objectives of today's rule
and finds that this rule merely increases flexibility for certain
exempted entities. As such, NHTSA does not intend that this rule
preempt state tort law that would effectively impose a higher standard
on motor vehicle manufacturers than that established by today's rule.
Establishment of a higher standard by means of State tort law would not
conflict with the exemption announced here. Without any conflict, there
could not be any implied preemption of a State common law tort cause of
action. Further, we are unaware of any State law or action that would
prohibit the actions that this final 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 today's final 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 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 1995). This exemption will
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 today's final rule for the purposes of the
National Environmental Policy Act. The agency has determined that
implementation of today's final rule will 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. Today's
final rule does not contain new reporting requirements or
[[Page 47083]]
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 notify the
agency in writing.
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 amend 49 CFR part 595 to read
as follows:
PART 595--MAKE INOPERATIVE EXEMPTIONS
0
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.
0
2. Amend Sec. 595.7 by revising paragraphs (c)(8) and (c)(9) to read
as follows:
Sec. 595.7 Requirements for vehicle modifications to accommodate
people with disabilities.
* * * * *
(c) * * *
(8) 49 CFR 571.202 and 571.202a, in any case in which:
(i) A motor vehicle is modified to be operated by a driver seated
in a wheelchair and no other seat is supplied with the vehicle for the
driver;
(ii) A motor vehicle is modified to transport a right front
passenger seated in a wheelchair and no other right front passenger
seat is supplied with the vehicle; or
(9)(i) For vehicles manufactured before March 14, 2005, S4.3(b)(1)
and (2) of 49 CFR 571.202, in any case in which the driver's head
restraint must be modified to accommodate a driver with a disability.
(ii) For vehicles manufactured on or after March 14, 2005 and
certified to FMVSS No. 202, S4.2(b)(1) and (2) of 49 CFR 571.202, in
any case in which the head restraint must be modified to accommodate a
driver with a disability.
(iii) For vehicles manufactured on or after March 14, 2005 and
certified to FMVSS No. 202a, S4.2.1(b) of 49 CFR 571.202a, in any case
in which the head restraint must be modified to accommodate a driver or
a front outboard passenger with a disability.
(iv) For vehicles manufactured on or after March 14, 2005 and
certified to FMVSS No. 202a, S4.2.2 of 49 CFR 571.202a, in any case in
which the head restraint must be modified to accommodate a driver with
a disability.
(v) For vehicles manufactured before March 14, 2005 and certified
to FMVSS No. 202, S4.3 of 49 CFR 571.202, in any case in which the head
restraint of the front passenger seat of a vehicle must be modified or
replaced by a device to support or position the passenger's head or
neck due to a disability.
(vi) For vehicles manufactured on or after March 14, 2005 and
certified to FMVSS No. 202, S4.2 of 49 CFR 571.202, in any case in
which the head restraint of the front passenger seat of a vehicle must
be modified or replaced by a device to support or position the
passenger's head or neck due to a disability.
(vii) For vehicles manufactured on or after March 14, 2005 and
certified to FMVSS No. 202a, S4.2.1, S4.2.2, S4.2.3, S4.2.4, S4.2.5,
S4.2.6, and S4.2.7 of 49 CFR 571.202a, in any case in which the head
restraint of the front passenger seat of a vehicle must be modified or
replaced by a device to support or position the passenger's head or
neck due to a disability.
* * * * *
Issued on: July 29, 2011.
David L. Strickland,
Administrator.
[FR Doc. 2011-19802 Filed 8-3-11; 8:45 am]
BILLING CODE 4910-59-P