Federal Register: February 27, 2001 (Volume 66, Number 39)
DOCID: FR Doc 01-4655
DEPARTMENT OF TRANSPORTATION
CFR Citation: 49 CFR Part 595
Docket ID: [Docket No. NHTSA-01-8667]
RIN ID: RIN 2127-AG40
NOTICE: Part III
DOCUMENT ACTION: Final rule.
Exemption From the Make Inoperative Prohibition
DATES: Effective Date: This rule is effective April 30, 2001.
Petitions: Petitions for reconsideration must be received by April 13, 2001.
NHTSA is taking action to facilitate the modification of motor vehicles so that persons with disabilities can drive or ride in them. The agency is accomplishing this by issuing a limited exemption from a statutory provision that prohibits specified types of commercial entities from either removing safety equipment or features installed on motor vehicles pursuant to the Federal motor vehicle safety standards or altering the equipment or features so as to adversely affect their performance. The exemption is limited in that it allows repair businesses to modify only certain types of Federallyrequired safety equipment and features, under specified circumstances.
Department of Transportation, National Highway Traffic Safety Administration,
Table of Contents
I. Background and overview
A. Reasons for this rulemaking
B. Notice of proposed rulemaking
C. Summary of public comments
II. Final rule
A. Summary of key differences between proposal and final rule
B. Limitations on exemptions
C. Applicability of exemption to modifications performed by repair businesses
D. Standards for which permission is granted to make safety features inoperative
1. FMVSS No. 101, controls and displays
2. FMVSS No. 108, lamps, reflective devices, and associated equipment
3. FMVSS No. 114, theft protection
4. FMVSS No. 118, poweroperated window, partition, and roof panel systems
5. FMVSS No. 123, motorcycle controls and displays
6. FMVSS No. 135, passenger car brake systems
7. FMVSS No. 201, occupant protection in interior impact
8. FMVSS No. 202, head restraints
9. FMVSS No. 203, impact protection for the driver from the
steering control system and FMVSS No. 204, steering control rearward displacement
10. FMVSS No. 207, seating systems
11. FMVSS No. 208, occupant crash protection
12. FMVSS No. 214, side impact protection
E. Standards for which permission is not granted to make safety features inoperative
1. Standards which could be compromised by vehicle modifications
a. FMVSS No. 102, transmission lever sequence, starter interlock, and transmission braking effect
b. FMVSS No. 103, windshield defrosting and defogging systems, and FMVSS No. 104, windshield wiping and washing systems
c. FMVSS No. 105, hydraulic brake systems, and FMVSS No. 121, air brake systems
d. FMVSS No. 111, rearview mirrors
e. FMVSS No. 113, hood latch systems
f. FMVSS No. 124, accelerator control systems
g. FMVSS No. 206, door locks and door retention components
h. FMVSS No. 209, seat belt assemblies
i. FMVSS No. 210, seat belt assembly anchorages
j. FMVSS No. 216, roof crush resistance
k. FMVSS No. 301, fuel system integrity and FMVSS No. 303, fuel system integrity of compressed natural gas vehicles
l. FMVSS No. 302, flammability of interior materials
2. Standards which are unaffected by vehicle modifications
F. Modifications not contemplated by the final rule
G. Gross vehicle weight ratings
H. Applicability of exemptions to commercial vehicles III. Prescriptions, labeling, and recordkeeping requirements
A. Prescriptions and professional evaluations
B. Labeling requirements and customer information IV. Regulatory analyses and notices
I. Background and Overview
A. Reasons for This Rulemaking
We initiated this rulemaking because although the intended effect of the Federal motor vehicle safety standards is to protect the safety of all Americans, the standards can inadvertently limit the mobility of those Americans with disabilities. The vast majority of Americans can drive and/or ride in motor vehicles as they are produced by the motor vehicle manufacturers in full compliance with the Federal motor vehicle safety standards. When they use these vehicles, they benefit from the safety features required by those standards.
However, individuals with disabilities are often unable to drive or ride in a passenger vehicle, such as a passenger car or van, unless it has been specially modified to accommodate their particular conditions. Some modifications, such as the installation of mechanical hand controls or a left foot accelerator, are relatively simple and inexpensive. Others, such as the installation of a joystick that controls steering, acceleration and braking or a lowering of the vehicle floor, can be complex and expensive. In some cases, it is necessary to alter or even remove federallyrequired safety equipment to make those special modifications. In those cases, it may not be possible to enable individuals with disabilities both to enjoy the opportunity to drive or ride in a motor vehicle as well as to receive the benefits from the full array of federallyrequired safety features.
The need to alter or remove federallyrequired safety equipment
poses a problem because there is a statutory provision prohibiting
making such features inoperative (49 U.S.C. section 30122).\1\ While that prohibition does not
apply to vehicle owners, it does apply to modifications made by the types of commercial entities that modify vehicles for persons with disabilities.
\1\ Federal law requires vehicle manufacturers to certify that their vehicles comply with all applicable Federal motor vehicle safety standards (FMVSS or standard) (49 U.S.C. section 30112). They must continue to comply until the time of their first retail sale. As noted above, when installing adaptive equipment in a motor vehicle, a modifier may need to remove items of equipment or features that were installed in compliance with the standards issued by NHTSA pursuant to our statutory authority (49 U.S.C. section 30111). At other times, the installer may need to modify or bypass the safety equipment or features so that the adaptive equipment can be used. In either instance, the vehicle modification renders the affected equipment or features, as originally certified,
inoperative. As noted above, such removal or alteration violates a statutory provision that prohibits certain entities from making such equipment and features inoperative. Specifically, manufacturers, distributors, dealers, and repair businesses may not knowingly make inoperative any part of a device or element of design installed in or on a motor vehicle that is in compliance with an applicable standard (49 U.S.C. section 30122). We have interpreted the term ``make inoperative'' to mean any action that removes or disables safety equipment or features installed to comply with an applicable standard, or that degrades the performance of such equipment or features. Violations of this provision are punishable by civil penalties of up to $5,000 per violation.
However, the National Highway Traffic Safety Administration (NHTSA) may issue regulations that exempt persons from the ``make inoperative'' prohibition.\2\ Such regulations may specify which equipment and features may be made inoperative, as well as the circumstances under which they may be made so. To date, the agency has only issued one such regulation. That regulation permits the installation of retrofit air bag onoff switches under certain circumstances. In all other instances, we have addressed the need to remove, disconnect, or otherwise alter mandatory safety equipment by issuing a separate letter assuring the individual requestor that we will not seek enforcement action against the business modifying the vehicle. The vast majority of these instances involve persons seeking modifications to accommodate persons with disabilities.
\2\ 49 U.S.C. section 30122(c)(1).
Our policy of handling requests for permission to make
modifications on an individual, casebycase basis does not serve the
best interest of the driving public, the vehicle modifiers, or this
agency. The casebycase approach is illsuited to dealing effectively
with the volume of motor vehicles needing modification. We estimate
that, as of 1997, approximately 383,000 vehicles had some type of
adaptive equipment installed in them to accommodate a driver or
passenger with a disability.\3\ We estimate that approximately 2,295
vehicles are modified for persons with disabilities per year. We do not
know how many of these modifications involved making a federally
required safety feature inoperative. We do know that the modification
of motor vehicles for the benefit of persons with disabilities is a
growing phenomenon. The number of vehicles modified annually will
increase as the population ages and as greater numbers of individuals
with physical disabilities pursue employment, travel, and recreational
opportunities presented by the passage of the Americans With Disabilities Act (ADA).\4\
\3\ Estimating the Number of Vehicles Adapted for Use by Persons with Disabilities, NHTSA Research Note, December, 1997, Docket No. NHTSA0186672.
\4\ 42 U.S.C. section 12101, et seq.
Further, the unwieldiness of the casebycase approach causes many
vehicle modifiers to bypass it. The permission granted in the agency
letters is directed to specific owners of specific vehicles and cannot
be transferred to other owners or other vehicles. Thus, a business
performing modifications must obtain written permission for each
customer who needs a vehicle modified in a way that adversely affects
compliance with the standards. Because agency resources for evaluating
individual modification requests are limited, an individual with a
disability may wait a significant period of time before the agency can
issue a letter stating its intent to not enforce the statute for the
vehicle modifications affected. During that time period, the individual
may be without any means of independent transportation. Partially as a
result of the unwieldiness of this process, only a handful of the
vehicles modified annually are covered by a letter from NHTSA granting
permission to make a piece of federallyrequired safety equipment
inoperative.\5\ Most are made without permission and without the
benefit of any guidance about the opportunities for making modifications without sacrificing safety.
\5\ A discussion of the basis for the agency's belief that many modifiers make mandatory safety equipment inoperative without first seeking authorization from NHTSA can be found in the preamble to the NPRM. 63 FR 51547 (September 28, 1998), Docket No. NHTSA 9843321.
We believe that it is appropriate, therefore, to replace the case
bycase approach with an exemption that accommodates the needs of
persons with disabilities and promotes a constructive dialogue between
the modifiers and the agency. Congress anticipated the need for such an
exemption. The legislative history of the make inoperative provision
includes the statement that ``exemptions may be warranted for owners
with special medical problems, who require special controls * * *.''
\6\ In addition to eliminating the need for casebycase approvals, the
exemption will facilitate making needed vehicle modifications by
providing guidance to modifiers on the types of modifications we
believe can be made without unduly decreasing the level of safety provided to the vehicle occupants and to others.
\6\ H. Rep. 931191, pp 345 (1974).
B. Notice of Proposed Rulemaking
In developing the proposed exemption, we sought to balance mobility and safety. To that end, we conducted a comprehensive analysis of both our standards and the types of adaptive equipment currently available. We sought to distinguish between those instances in which there are methods of modification that make it possible, at reasonable cost, to accommodate persons with disabilities while avoiding making the original safety equipment or features inoperative from those instances in which it is not possible to do so. We determined that vehicle modifications fell into the following categories:
1. Modifications that did not affect the original federally required safety equipment or feature.
2. Modifications that involved the installation of adaptive equipment capable of being operated in lieu of the original equipment, which remained in place and fully operable separately, or in conjunction with the original equipment.
3. Modifications that resulted in making safety equipment inoperative even though other methods of making the modification were readily available that could have accommodated the needs of the disabled occupant at reasonable cost without making the original equipment inoperative.
4. Modifications that made the original equipment inoperative, but either did not appear to lead to a degradation of safety or all methods available to accommodate the needs of the disabled occupant rendered the original equipment or feature inoperative.
5. Modifications that made the original equipment inoperative and resulted in possible degradation of safety so severe that we did not believe an exemption was warranted, and other methods of modification that did not make the original equipment inoperative were either available or a compliant system is easily produced.
In proposing to waive the make inoperative provision for some portions of some safety standards, we determined that modifications in the first two categories listed above did not make the required safety features or equipment inoperative, while modifications in the third category did make the equipment inoperative but could be performed in a way that is consistent with modification performed under the first two categories. Modifications within the fourth and fifth categories could not reasonably be performed in a manner that would not render the original equipment inoperative.
Based on our assessment, we issued a notice of proposed rulemaking
(NPRM) on September 28, 1998 (63 FR 51547; Docket No. NHTSA9843321).
We proposed to exempt only those modifications in the fourth category. Modifications within this category did
not degrade safety sufficiently to prohibit the modification and were, in some cases, the only means of accommodating a particular disability. We did not consider exempting modifications within category five because we believed that the needed modification should not degrade the level of safety to such an extent as to place vehicle occupants in an inherently unsafe environment.
C. Summary of Public Comments on the NPRM
Thirtynine comments were submitted addressing details of the NPRM.
Only one organization representing persons with disabilities, Access to
Independence and Mobility (AIM), commented on the proposed rule. One
consumer safety group also commented, as did two vehicle manufacturers,
and several modifiers, alterers, and driver rehabilitation
specialists.\7\ Two individuals representing state interests also commented.
\7\ Four trade associations, the Association for Driver Rehabilitation Specialists (ADED), the American Occupational Therapy Association (AOTA), the National Automobile Dealers Association (NADA), and the National Mobility Equipment Dealers Association (NMEDA), filed comments on behalf of their members who are occupational therapists and driver rehabilitation specialists in the first two instances, and alterers and modifiers in the second two instances.
In general, the comments to the notice were very supportive of our efforts. However, some commenters, primarily Advocates for Highway and Auto Safety (Advocates), vehicle alterers and AIM, raised concerns that the rule, as proposed, would unduly decrease the level of safety provided to persons with disabilities. The primary concern voiced by these entities was that the agency was not proposing to implement a rule that ensured significant, ongoing monitoring of vehicle modifications. Other commenters, including modifiers and driver rehabilitation specialists, urged that exemptions be provided for some standards which we had not included in the proposed list of exemptions.
Expressing concerns regarding the safety of vehicle modifications, the University of Virginia Automobile Safety Laboratory urged that on going studies be performed to identify vehicle modifications that constitute an unreasonable risk to safety. However, the commenter went on to say that it recognized that real world injury data would likely never be available to accurately determine the level of risk involved in vehicle modifications and to fully support NHTSA's proposal to issue limited exemptions.
While the majority of modifiers saw no need to impose any paperwork or labeling requirements on modifiers, Advocates, some alterers, and the State of Connecticut argued that paperwork and/or labels were needed to assure that only necessary modifications were performed or that vehicle owners or subsequent purchasers were aware of the modifications that were performed and that there could be some degradation of overall safety. A lively debate arose among commenters concerning the need for persons with disabilities to have a written prescription detailing the types of modifications needed. These comments were submitted primarily by members of the Association for Driver Rehabilitation Specialists (ADED) on one side of the issue and occupational therapists who are not members of ADED, some modifiers and the State of Connecticut on the other side of the issue.
II. Final Rule
Based on our review of the comments, we are today issuing a final
rule that exempts certain vehicle modifications from the make
inoperative provisions. The exemptions are listed in the regulatory
text and will become Subpart C of Part 595 of Title 49 of the Code of
Federal Regulations (CFR). This preamble explains our response to the
comments and our decision to issue the final rule. While it provides
important explanations of the agency's rationale in making its
decision, the preamble is not part of the regulation. It should,
however, be read carefully since it provides important information on
why we decided to grant exemptions for some, but not all, standards;
what types of modifications require an exemption; who may rely on the exemptions; and what standards may be affected by vehicle
modifications, regardless of whether there is an exemption for that modification.
The exemptions adopted in this final rule generally only apply to a
portion of each included standard and may have other conditions, such
as the installation of wheelchair tiedown devices, placed upon it. The
following chart details the standards with respect to which
modifications are exempted, as well as those standards for which
modifiers need to be aware that certain modifications may expose them to civil penalties.
FMVSS not covered by the make inoption exemption
FMVSS covered by the make
inoperative exemption Modification could Modification would affect vehicle not affect compliance compliance 101, Controls and displays, 102, Transmission 106, Brake hoses. except for S5.2(a), S5.3.1, lever sequence,
S5.3.2 and S5.3.5. starter
108, Lamps, reflective devices, 103, Windshield 109, New pneumatic and associated equipment, defrosting and tires. S220.127.116.11 only, when the defogging systems.
modified motor vehicle does not
have a steering wheel and it is
not feasible to retain the turn
signal selfcanceling device
installed by the vehicle
114, Theft protection, S4.4 and 104, Windshield 110, Tire S4.5 only, when the original wiping and selection and keylocking system must be washing system. rims. modified.
118, Poweroperated window, 105, Hydraulic 116, Motor vehicle partition, and roof panel brake systems. brake fluids. systems, S4(a) only, when the
medical condition of the person
for whom the vehicle is
modified requires a remote
ignition to start the vehicle.
123, Motorcycle controls and 111, Rearview 117, Retreaded displays, S5.1 and S5.2.1. mirrors. pneumatic tires. 135, Passenger car brake 113, Hood latch 119, New pneumatic systems, S5.3.1 only, when the systems. tires for vehicle modification requires vehicles other removal of the vehicle than passenger manufacturer installed foot cars. pedal.
201, Occupant protection in 121, Air brake 120, Tire interior impact, only with systems. selection and respect to targets on the side rims for vehicles rail, Bpillar and first other than ``other'' pillar adjacent to passenger cars. the stowed platform of a lift
or ramp, or the rear header and
rearmost pillars adjacent to
the stowed platform of a lift
202, Head restraints, when the 124, Accelerator 122, Motorcycle motor vehicle is modified to be control systems. brake systems. driven by an individual in a
wheelchair and no other seat is
provided for the driver or the
front passenger sits in a
wheelchair and no other front
passenger seat is provided, and
S4.3(b)(1) and S4.3(b)(2) only,
when the driver's head
restraint must be modified to
accommodate a driver with a
203, Impact protection for the 206, Door locks 125, Warning driver from the steering and door devices. control system, S5.1 only, when retention
the modification requires a components.
structural change to or removal
of the original steering shaft,
and S5.2 only, when an item of
adaptive equipment must be
mounted on the steering wheel.
204, Steering control rearward 209, Seat belt 129, Nonpneumatic displacement only, when the assemblies. tires for modification requires a passenger cars. structural change to or removal
of the original steering shaft.
207, Seating systems, S4.1 only, 210, Seat belt 131, School bus when the motor vehicle is assembly pedestrian safety modified to be driven by an anchorages. devices. individual in a wheelchair and
no other seat is provided for
the driver and a wheelchair
securement device is installed
in the driver position.
208, Occupant crash protection, 216, Roof crush 205, Glazing S18.104.22.168(a)(1), S22.214.171.124(a)(3), resistance. materials. S126.96.36.199, S5, S7.1, S7.2, and
S7.4 only, when Type 2 or type
2A seat belts meeting the
requirements of FMVSS Nos. 209
and 210 are installed in the
affected seating position.
214, Side impact protection, S5 301, fuel system 212, Windshield only, when the affected seating integrity. mounting and/or restraint system must be
modified to accommodate a
person with a disability.
302, Flammability 213, Child of interior restraint materials. systems. 303, Fuel system 217, emergency integrity of exits and window compressed retention and natural gas release. vehicles.
218, Motorcycle helmets. 219, Windshield zone intrusion. 220, School bus rollover protection. 221, School bus body joint strength. 222, School bus passenger seating and crash protection. 223, Rear impact guards. 224, Rear impact protection. 225, Child restraint anchorage systems*. 304, Compressed natural gas fuel container integrity. * FMVSS No. 225, Child restraint anchorage systems, was issued after the publication of the NPRM proposing exemptions to the make inoperative provisions for vehicles modified to accommodate persons with disabilities. Accordingly, NHTSA has not determined whether such systems may need to be removed or modified in order to accommodate an individual with a disability. Should such a need arise, it can be addressed in a future rulemaking.
A. Summary of Key Differences Between Proposal and Final Rule
The final rule largely adopts the proposed rule except for four changes. We will require a permanently affixed label that states the vehicle may no longer comply with all Federal Motor Vehicle Safety Standards. Also, we are allowing limited exemptions for modifications affecting FMVSS Nos. 123, 201 and 114.
B. Limitations on Exemptions
In the NPRM, we proposed to issue exemptions for modifications
affecting some, but not all, Federal motor vehicle safety standards.
The number of exemptions was restricted for several reasons. First, the
needed vehicle modifications have no impact on the safety features
installed in compliance with many standards; thus, there is no need in
those cases for an exemption from the make inoperative provision.
Second, we decided that if, after modifications are made, the original
equipment remains fully functional and readily usable by drivers or
passengers other than the individual with a disability, we would not
consider the modifications as making the safety equipment inoperative
even though the adaptive equipment itself may not be able to meet the requirements of the affected safety standard.\8\ We also
determined that we would not consider a modification to violate the make inoperative provision when the original safety equipment is removed or modified so that it could not be used as designed, but the new system retains the original equipment's performance and function relative to the affected standard. Finally, we looked at all other types of modifications that could potentially void a vehicle certification and assessed the likely loss in safety that could result from a modification that fell outside of the categories described above. In most instances, we determined that the modifications would not result in a significant loss of safety. However, in some instances, we determined that the possible degradation of safety was too great to make it appropriate to grant an exemption.
\8\ When the modified system completely bypasses or alters the original equipment such that it cannot be used in conformance with the applicable standard, the modification will be considered a violation of the make inoperative provision even though the original equipment remains in the vehicle. (See NHTSA letter of
interpretation to Senne, Kelsey & Associates, Inc., dated March 26, 1999. The agency determined that the installation of an electronic gas and brake control constituted a violation of the make
inoperative provision because it did not allow for the return of the throttle to an idle position in the event of a severance or disconnection in the accelerator control system in contravention of FMVSS No. 124.)
Advocates was particularly vocal in expressing the belief that the
NPRM did not do enough to promote the safety of persons with
disabilities. As an initial matter, it challenged whether there was a
need for an exemption and whether issuing an exemption would serve the interests of motor vehicle safety, stating
NHTSA has no reliable information on the nature and extent to which vehicle modifications falling within the ambit of the FMVSS have adhered to or significantly departed from the level of safety that should be ensured for disabled vehicle occupants. Despite agency assertions that equivalent levels of safety should be provided when possible, it has no information in the record verifying that vehicle modifications to date have provided that equivalent safety.
Advocates maintained that granting a blanket exemption from a
number of the safety standards to all persons engaged in the business
of altering or modifying vehicles for use by the disabled drivers does
nothing to assure disabled occupants that their vehicles will be
altered properly and safely, that modifiers will make only those
changes permitted by the exemption and will certify their work, or that
future purchasers will be informed that the safety equipment has been
rendered inoperable. That organization noted that the agency
acknowledged in the NPRM that a substantial number of vehicle modifiers
``do not possess sufficient knowledge of the standards to judge whether
a particular modification may affect a vehicle's compliance with the
standards. Advocates stated that it could not understand how the
proposed exemption would resolve problems posed by this lack of
knowledge, stop modifiers' from performing modifications that
negatively impact safety and provide adequate safety for the disabled.
While acknowledging that a listing of the standards or the portions of
the standard that are subject to exemption provide some clarity, it argued that
* * * nothing in the proposed rule provides any assurance that the list will be read, understood, and correctly applied by modifiers, that modifications will be limited to only those portions of the standard that are exempt, that the modifications will be properly performed, or that the disabled driver will know what specific items of equipment were modified, in what way, and the extent to which these modifications may affect operating safety and vehicle crashworthiness.
While Advocates expressed support for vehicle modifications, including safety equipment, that are necessary to meet the mobility needs of disabled persons, it also said that the agency should adopt a stronger regulatory presence in this burgeoning area of motor vehicle safety. That organization maintained that providing a blanket exemption with no oversight fails to ensure an appropriate balance between mobility and safety, and invites abusive practices and inadequate and unsafe modifications.
Finally, Advocates claimed that the agency is proposing a broad exemption, with corollary proposals to eliminate any form of reporting or even of vehicle labeling advising of modifications, and that the proposed change in basic agency policy relinquishes fundamental oversight responsibilities at a time when effective oversight of vehicle modifications is becoming more pervasive and more important. Advocates then averred that NHTSA must maintain agency supervision and oversight of the issue, collect essential data on vehicle modifications for the disabled, and provide consumer safety information for the disabled and future purchasers of vehicles altered to accommodate the disabled.
Vantage Minivans, a manufacturer of minivans designed for persons with disabilities, stated that consumers deserve to drive a vehicle that meets certain safety standards. It argued that if modifications are required to make a vehicle wheelchair accessible, the consumer should know that there are no other options available other than those necessary to take the vehicle out of compliance. It said also that if there were a viable option available that would enable to modifier to leave the original safety features intact, that option should be preferred or required. After acknowledging that the companies that modify vehicles for the disabled are often very small and do not have the financial resources to crash test for every conceivable configuration of adaptive equipment, Vantage went on to state that, for modifications involving hand controls, steering modifications and seat belt modifications, an exemption for modifications affecting compliance with the relevant FMVSSs may be in order, provided another viable alternative is not available that would not take the vehicle out of compliance.
We agree that these commenters have expressed legitimate concerns. We have decided to issue a final rule establishing limited exemptions because we believe this is the best way at this time to promote the mobility of persons with disabilities while ensuring some level of safety for those persons. We also strongly recommend that equipment manufacturers, vehicle modifiers, and driver evaluators work together to ensure that the installed equipment is appropriate for both the particular vehicle and the driver, considering factors such as vehicle geometry and driver size before selecting the equipment to be installed.
We disagree with Advocates' characterization of the exemptions as
broadbased. The exemptions should be viewed in the context of all
standards issued by NHTSA. The exemptions have been tailored to allow
for the least amount of degradation possible. The majority of
modifications subject to an exemption will not result in any
degradation of safety. This is because many of the exemptions are
designed to address design criteria within the applicable standards
that have no impact on vehicle performance. For example, FMVSS No. 135
requires the brake be operated by a foot control, even though this
requirement was included in the standard to achieve harmonization
rather than because of a need based on engineering principles.
Modifications affecting some standards, like FMVSS No. 201, could
result in a degradation of safety, but cannot be accommodated any other
way. FMVSS 201 requires that test results of impacts with certain
targets on specific areas of the vehicle fall below a certain level.
When a lift is installed in a vehicle, the stowed platform blocks some
target points. Requiring compliance with FMVSS 201 would prevent an
individual who must use a wheelchair from driving or riding in a vehicle,
because he or she would not be able to enter. In order to diminish any degradation in safety, we have limited the exemptions to those portions of the standard that are directly affected by the vehicle modification and have, in most instances, placed other requirements on the modifier to address legitimate safety concerns.
As pointed out by the University of Virginia, we do not have firm statistics on the effect of current vehicle modifications on vehicle safety. Current methods of obtaining motor vehicle safety statistics are based on total vehicle populations within classes of vehicles (e.g., passenger cars, light trucks). We will likely never have sufficient data to verify that modified vehicles are providing a level of safety comparable to that of nonmodified vehicles. Merely identifying dangerously modified vehicles is like finding the proverbial needle in a haystack. Drawing a statistically significant correlation between such vehicles and the overall fleet that comprises our databases would be even more difficult. However, we do not believe the lack of data justifies inaction on our part.
If we do not issue a regulation providing some measure of relief to persons with disabilities, there are two likely outcomes: modifications will continue to be performed with no agency oversight, and a significant number of persons with disabilities will be unable to drive or ride in personal vehicles.
We have analyzed both available methods of making necessary modifications and our standards to determine where exemptions may be needed in order to provide reasonable accommodation of the needs of persons with disabilities. In instances in which we believe the cost of a modification that does not affect compliance with the FVMSSs is reasonable enough to be viable, we have decided against issuing an exemption. Likewise, we are not issuing exemptions for standards that address a severe risk of injury or death when alternative modification methods are available or should be easily developed. This may mean that the manufacturers of some adaptive equipment will need to either retool their products or stop selling them. Thus, far from being a ``blanket exemption,'' today's rule affects only those areas where we believe there is a minimal reduction in safety, if any.
We have decided against requiring the type of agency oversight that Advocates appears to support; i.e., approval of each modification, because such oversight has proved unworkable in the past. We receive relatively few requests to grant an exemption for the modification of specific vehicles. As discussed in the NPRM, the number of vehicles modified significantly exceeds the number of exemption requests received by this agency. Additionally, NHTSA simply does not have the staff available to review every vehicle modification request for persons with disabilities in a reasonable amount of time. Thus, today's rule more effectively analyzes the level of risk involved than the casebycase determinations that are currently provided. Likewise, we have decided against requiring modifiers to submit detailed records of all modifications to NHTSA. Such submissions would serve no value unless they were scrutinized by agency staff who would make independent determinations as to the appropriateness of the modifications. As is the case with premodification submissions, we simply do not have the staff to conduct such a review. We do note that nothing in today's rule restricts our ability to bring enforcement actions against entities that make modifications that go beyond or are inconsistent with these exemptions pursuant to our statutory authority under 49 U.S.C. 30122.
We also acknowledge that today's rule does not, in and of itself, guarantee that vehicle modifications will only be performed subject to the exemptions. Today's rule will provide responsible modifiers the ability to make needed modifications without fear of running afoul of the law. It also alerts these modifiers that they need to exercise special care in performing certain modifications. In some instances, these modifiers will be required to stop performing certain modifications that they may have believed were safe. We believe this rule, in conjunction with the existing industry standards and our consumer information brochure, will significantly reduce the likelihood that vehicle modifications will be made in a manner that places the vehicle occupants at undue risk.
We have decided against adopting the position advocated by Vantage
that would require all modifications be performed in conformance with
all applicable safety standards unless no other method exists for
performing the modification. Certainly we agree that all modifications
should be performed in a manner that minimizes the impact on vehicle
conformance with all safety standards. However, such a requirement
would be unenforceable, since it is inherently unobjective. Instead, we
believe that the criteria we have employed in determining whether an
exemption is appropriate adequately ensures that modifications that are
likely to have an impact on motor vehicle safety are only exempted when
they cannot be done in a manner that does not void the vehicle's compliance with the standards.
C. Applicability of Exemption to Modifications Performed by Repair Businesses
In the NPRM, we proposed that the exemptions to the make inoperative provision would be available to dealers and repair businesses. Under our statutory authority, we can also issue exemptions to manufacturers and distributors.
Volvo commented that the exemptions should also apply to vehicle manufacturers since the logic presented in the NPRM appears to apply to manufacturers as well as modifiers. Independent Mobility Systems voiced a concern that vehicle alterers, who have the duty to certify, may believe the exemptions apply to them. The National Automobile Dealers Association (NADA) urged NHTSA to clarify that a ``first purchase of a vehicle in good faith for purposes other than retail'' occurs when a contract for sale is entered into between a new vehicle dealer and a purchaser. NADA argued that such a definition would ensure that only a small percentage of disabilityrelated modifications will constitute ``alterations'' under NHTSA's regulations, thereby minimizing the number of modifications that will be eligible for the ``make inoperative'' exemption.
We do not believe that vehicle manufacturers, including alterers,
should be allowed to take advantage of the exemptions in today's rule. The need for an exemption arises from two sources:
We do not believe manufacturers need an exemption for either reason
because they do not custom fit their vehicles. Instead, they produce a
vehicle that possesses many, but not all, of the attributes needed by
the end user of the vehicle.\9\ All final fitting for a driver [[Page 12644]]
with a disability is done by a modifier. Thus, the manufacturer produces several vehicles of the same configuration and has the ability to test that configuration in order to certify compliance. However, we recognize NADA's concern that there are instances in which the final fitting is arguably performed prior to the vehicle's first retail sale. This would have the effect of making the business performing the work an alterer rather than a modifier. Unlike modifiers, who cannot make mandatory safety equipment inoperative without a waiver or exemption, an alterer cannot make any changes to a vehicle other that the addition of readily attachable components without certifying that vehicle, as altered complies with all safety standards that are potentially affected by the alteration. As an alterer, the business would be unable to use the exemptions provided today. The precipitating event that determines whether the work performed is an alteration or a modification is the ``first purchase of a vehicle in good faith for purposes other than retail.''
\9\ We note that this is the practice in the disability community. We are aware of other types of specialized manufacturing where the end user may order a specific vehicle that is then built by a finalstage manufacturer. In these instances, there may be cases where the final stage manufacturer is only manufacturing one or two vehicles of a specific configuration. Issues related to those manufacturers are being addressed in a rulemaking on the
certification responsibilities of vehicles built in two or more stages.
Individuals purchasing vehicles that need to be modified to accommodate a disability may enter into extensive negotiations with a dealership whereby the dealership procures the vehicle and arranges to have a business that specializes in such modifications perform the actual work. Vehicle title may or may not be passed to the end user before the modifications are made, depending on who is paying for the modifications. Often a state or the Federal government picks up the cost of some or all of the modified vehicle. They may wish to be assured that the required modifications are completed in a satisfactory manner before they submit payment for the vehicle. In such an instance, the business performing the modifications could be placed in the position of an alterer for reasons beyond its control. Thus, we believe that it is appropriate to define a ``first purchase of a vehicle in good faith for purposes other than retail'' as something other than the transfer of title. On the other hand, we believe that more is required than general inquiries about the availability of a suitable vehicle, since there is no firm commitment to purchase a vehicle at that time.
We have decided to define ``first purchase of a vehicle in good
faith for purposes other than retail'' for purposes of this rule as the
point at which the seller and the end user enter into a sales contract
that identifies a specific vehicle to be delivered. This definition
will reduce the risk of a business being deemed an alterer because it
is unable to transfer title at the time the modifications are made,
while ensuring that businesses do not use the exemptions to produce
``showroom'' vehicles that have been significantly altered but have not been fitted for a particular customer.\10\
\10\ We are limiting this definition to this rule because of the unique payment arrangements that are common for vehicles modified for persons with disabilities. We have maintained in other contexts (e.g., the alteration of a hardtop sedan into a convertible) that if the work performed affects the vehicle's mandatory safety features, a label certifying compliance as to the affected portion of the vehicle is required.
We are also aware of instances in which vehicle manufacturers modify vehicles for a specific customer after the vehicle has been certified as a compliant vehicle. Several vehicle manufacturers have expressed concern in the context of the exemptions for retrofit air bag onoff switches that they cannot install a retrofit onoff switch because they are not a dealer or repair business. Similar concerns exist in this rulemaking as well. 49 CFR part 595 controls both retrofit switches and modifications to vehicles for persons with disabilities. ``Motor vehicle repair business'' is defined in 49 U.S.C. section 30122(a) as ``a person holding itself out to the public to repair for compensation a motor vehicle or motor vehicle equipment.'' Part 595 clarifies that 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. 49 CFR 595.4. Thus, a modifier would be a motor vehicle repair business within the context of Part 595.
However, a manufacturer or dealer could also be a motor vehicle
repair business depending on the type of service provided in a
particular circumstance. For instance, if an individual takes his or
her vehicle into the dealership for repairs, the dealership is acting
as a motor vehicle repair business, rather than as a ``dealer.'' In
some instances, vehicle manufacturers will send technicians to work on
a problem that is particularly difficult to resolve. A manufacturer
could also have a vehicle transported to a centralized facility to
perform a particularly difficult repair. In both instances, the vehicle
manufacturer is operating as a motor vehicle repair business rather
than as a manufacturer of the vehicle. We believe that the same
situation should exist for exemptions under Part 595, if the business
is not operating in its primary capacity as a dealer or manufacturer.
If a dealer or manufacturer adds or removes features to or from a
vehicle, or otherwise customizes a vehicle after the first purchase of
a vehicle in good faith for purposes other than retail, then the dealer
or manufacturer may utilize the exemptions detailed in Part 595.
Because a dealer can also be a motor vehicle repair business,
referencing dealers in the regulatory text is redundant. Accordingly, the term has been removed.
D. Standards for Which Permission Is Granted To Make Safety Features Inoperative
1. FMVSS No. 101, Controls and Displays
The purpose of FMVSS No. 101 is to ensure the accessibility and
visibility of motor vehicle controls and displays to reduce the
diversion of the driver's attention from driving and mistakes in
selecting controls. In the NPRM, we proposed exempting all of the
standard except the following: S5.2(a),\11\ which governs the symbols
and abbreviations used for certain controls; S5.3.1, which requires
illumination of certain controls when the headlights are on; S5.3.2,
which governs the color of telltales; and S5.3.5, which requires cabin
lighting forward of the driver's H point to be able to be adjustable or turned off.
\11\ The NPRM incorrectly stated that an exemption was contemplated for S5.1(a). There is no such paragraph in FMVSS No. 101. The correct reference is S5.2(a).
Only the Texas Transportation Institute (TTI) commented on the
proposed exemption. TTI argued against an exemption to S5.2(a),
positing that the lack of an exemption will require modifiers to use
the symbols required by FMVSS No. 101, giving uniformity to secondary
control keypads, an area that currently is not uniform. We have decided
against providing an exemption to S5.2(a) because we agree that
uniformity is desirable and compliance with the standard is easily accomplished.
2. FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment
FMVSS No. 108 is designed to ensure that roadways are adequately
illuminated, drivers can signal their intentions to others, and
vehicles are conspicuous. We had proposed to include S188.8.131.52, which
requires a turn signal be selfcanceling when the steering wheel rotates within the exemption. The exemption would be
limited to vehicles where the steering wheel has been removed and the original turn lever cannot be retained. The agency also sought comment on whether there are cases in which the original turn signal actuating device and function is not retained, and if so, if they had a self canceling feature (particularly a selfcanceling feature that is not controlled by steering wheel rotation).
We received several responses to our questions. According to one commenter, some horizontal systems remove the OEM turn signal lever. TTI noted that in other instances, a user is unable to operate the OEM turn signals and a redundant circuit is used. These systems may leave the OEM equipment intact but use a timed circuit to cancel the signal. TTI went on to maintain that these provisions can and should be required for all modifications. However, MossRehab, a driving school for people with disabilities, commented that floormounted hand controls generally have turn signal operation incorporated into the controls unit. These signals are not selfcanceling. MossRehab went on to state that it finds manual signals to be preferable to the timed selfcanceling signals.
Based on the comments, we have decided to issue the exemption as proposed. If some systems work better without a selfcanceling feature, we are disinclined to prohibit that technology.
3. FMVSS No. 114, Theft Protection
We originally did not propose to allow an exemption for FMVSS No. 114 because we did not believe that any vehicle modifications would have the effect of rendering equipment installed in compliance with this standard inoperative. The standard is intended to reduce the incidence of crashes from the unauthorized operation of a vehicle and from the rollaway of vehicles with automatic transmissions that result from children playing with the gear shifts of parked vehicles.
TTI and the California Department of Rehabilitation urged us to include this standard within the exemption. According to TTI, an exemption should be added for FMVSS No. 114 since the ignition key switch is routinely replaced by a pushbutton or keypad. Many severely disabled drivers cannot use a conventional ignition key. Additionally, the steering column housing the ignition is often removed. Theft is unlikely given the formidable appearance of adaptive equipment. The California Department of Rehabilitation expressed a different concern. It argued that FMVSS No. 114 should be included because anyone who knew how to bypass a steering wheel lock function that was not key operable would know enough about the system to bypass it in any case.
Previous interpretations by our Office of the Chief Counsel
regarding the use of a device other than a traditional key to meet the
requirements of this standard have stated that a push button code can
be a key.\12\ Thus, an exemption would not be needed to address TTI's
concern. However, we believe that the concern raised by the California
Department of Rehabilitation is valid. Given the complexity of the
modified systems, it is unlikely that someone unfamiliar with the
system would know how to operate it. We are including S4.4 and S4.5 of
the standard within the exemption because the requirements specifying
the number of keylocking combinations is both unrealistic and unnecessary given the low number of vehicles involved.
\12\ See letter dated May 22, 1992 to Stephen E. Selander, General Motors, and letter dated January 30, 1997 to corporation requesting confidential treatment of portions of the letter, including the name of the requestor. Confidential treatment was granted and those portions of the letter have been redacted. 4. FMVSS No. 118, PowerOperated Window, Partition, and Roof Panel Systems
Standard No. 118 specifies requirements for the operation of power operated windows, partitions, and roof panels to help prevent injury or death from a window, partition, or panel closing on vehicle occupants, particularly children. The agency proposed to include S4(a) of the standard when a remote ignition device is necessary to accommodate an individual's disability. The exempted paragraph requires that ignition key be in the ``start,'' ``on,'' or ``accessory'' position in order to close the vehicle's power windows, partitions, or roof panels.
We received no comments on this proposal and it is being adopted in this rule as originally proposed.
5. FMVSS No. 123, Motorcycle Controls and Displays
FMVSS No. 123 specifies requirements for the location, operation, identification, and illumination of motorcycle controls and displays, as well as requirements for motorcycle stands and footrests. Because we believed there are no common vehicle modifications that should affect this standard, it was not discussed in the NPRM. ADED commented that modifications to motorcycle controls should be addressed so that such modifications are done in the safest manner possible.
We are now aware that some individuals with disabilities have their motorcycles modified so that they can ride on them. Such modifications could affect the placement of controls. S5.1 and S5.2.1 contain requirements that certain controls (engine stop, brake, clutch, etc) be activated by a hand or foot on a particular side of the body. The purpose of the requirements contained in these sections is to ensure safety of motorcycle operation through uniformity of controls location and operation. These requirements may be inconsistent with a particular person's disability. In those instances, the needed modification could not be performed in a manner consistent with the requirements of the standard. Uniformity of control location and operation is not a safety issue for persons with disabilities since their vehicles have been custom modified, therefore there would be no degradation of safety if controls are switched from one side to the other, or from the foot to the hand, as long as vehicle functions are not degraded. Accordingly, we have decided to allow exemption from S5.1 and S5.2.1 of FMVSS 123, when changes to motorcycle controls are necessary to allow a person with disabilities to operate his or her motorcycle.
6. FMVSS No. 135, Passenger Car Brake Systems
Standard No. 135 specifies requirements for the service brake and associated parking brake systems to ensure safe braking performance under normal and emergency braking conditions. S5.3.1 of the standard requires a foot control to operate the brakes. Believing that this foot control may need to be removed to accommodate some physical conditions, we proposed to provide an exemption from that paragraph. We sought comment on whether there are brake modifications that incapacitate the original brake controls and would affect the vehicle's compliance in any of the required performance tests. We were particularly interested in learning whether the use of a joy stick prevented an ablebodied driver from using the original brake pedal and whether either a joy stick or a power assist affects the vehicle's braking potential during the specified performance tests.
We received numerous comments about this proposed exemption. As an
initial matter, it does not appear that either joy sticks or power
assists have an effect on a vehicle's braking potential during the performance tests specified
in the standard or under real world driving conditions. According to the National Mobility Equipment Dealers Association (NMEDA), power assist braking systems work in conjunction with the OEM system. TTI commented that no powered gas/brake controls (i.e., joysticks) prevent the use of OEM brake pedals or accelerators although they may introduce delays or lags. In a welldesigned system, these delays are 0.1 seconds or less.
Significant disagreement arose over whether it was ever necessary to remove the brake foot pedal to accommodate a disability. Several commenters stated that they had never seen the brake pedal removed and that a removable guard be placed over or in front of the pedal if needed. The California Department of Rehabilitation argued that pedals should not be removed or blocked by adaptive equipment because non disabled individuals need to be able to drive vehicle if necessary. TTI stated that while there may be instances in which the foot pedal needs to be removed, such an extreme modification should not be the subject of a generic exemption but should be addressed by the agency on a case bycase basis.
Other commenters, notably NMEDA and AIM, argued that an exemption from S5.3.1 is appropriate as some conditions, such as cerebral palsy, can lead to spasms that may require the removal of the OEM foot pedals. NMEDA also stated that some technology cannot separate braking functions from steering functions, such that the OEM equipment becomes redundant. NMEDA also noted that concerns with spasms can generally be accommodated by placing a guard over the pedal.
A commenter representing the Connecticut Department of Motor Vehicles noted that any exemption to this standard should not include the requirement for an emergency braking system if a single hydraulic component fails. He noted that this function is often inadvertently eliminated in current modifications.
As proposed and adopted, the exemption to FMVSS No. 135 is limited to S5.3.1, which requires a foot control. No other portions of the standard are subject to an exemption and modifiers need to assure that all other portions of the standard, including that requiring emergency braking, are adhered to. We have decided to issue an exemption for the foot control even though the commenters stated that a pedal guard would generally resolve any potential problems. We have decided to provide an exemption for two reasons. First of all, neither FMVSS No. 105 or FMVSS No. 121 requires braking via a foot pedal. The requirement for such a pedal in FMVSS No. 135 is overly restrictive. Second, we are aware of instances where the installation of a pedal guard will not accommodate a disability. This occurs when the individual needing the accommodation is positioned in the vehicle in such a way that there is inadequate leg room. In this instance, the pedal can interfere with the individual's ability to fit in the vehicle. Since foot pedals are only rarely removed now, we do not believe that this exemption will lead to widespread removal of pedals.
7. FMVSS No. 201, Occupant Protection in Interior Impact
Standard No. 201 specifies requirements to afford protection to vehicle occupants when they strike the interior of the vehicle. While we are aware that some modifications could affect the vehicle's compliance with the standard, we did not propose extending an exemption to the standard. However, we did seek comment on whether the changes in upper interior component padding would impinge on a large, wheelchair seated driver's line of sight.
In general, several commenters, including TTI, DaimlerChrysler,
Ahnafield and Todd Vans, stated that there would be no need to provide
an exemption as a result of increased padding installed by the original
manufacturer because dropped floors will place the driver's line of
sight at the same level as an individual seated in the original vehicle seat.\13\
\13\ Two commenters, ToddVans and Ahnafield, objected to the practice of modifiers raising vehicles off the frame rather than lowering the floor. These concerns were not limited to FMVSS No. 201, although this was the context in which the concerns were raised. Rather, their concerns were with the change in the center of gravity and driver maneuverability. Raising vehicles off the frame does not directly implicate any safety standards. Typically vehicles are only raised off the frame a couple of inches. While this could raise the vehicle's center of gravity slightly, there is no indication that this has a negative effect on vehicle handling or that these vehicles are substantially more likely to roll over. Additionally, vehicles with dropped floors can also be more difficult to handle than the unmodified vehicle, depending on how the modification is performed. Dropping vehicle floors can also have negative consequences on the vehicle structural integrity and the fuel system. Thus, we are unable to state with any confidence that one system of modification is preferable to the other.
NMEDA urged us to apply the exemption to wheelchair lifts and ramps that are stowed inside the vehicle while the vehicle is in use. According to this commenter, vehicles equipped with interiormounted wheelchair lifts or ramps cannot reasonably comply with the standard because of the rigid surface of the lifts or ramps that are not susceptible to padding. Placing a padded barrier between the lift or ramp and the occupant would be unwieldy and likely would not be used. While lifts or ramps that stow under the vehicle would not implicate FMVSS No. 201, they are generally three times as expensive as systems that are stowed inside the vehicle. Thus, NMEDA requested an exemption from the standard when the lift or ramp is stowed aft of the vehicle's Bpillar.
We believe NMEDA's concerns are valid and are accommodating those concerns in this rule. The exemption applies to vehicles that have lifts or ramps that stow inside the vehicle and block the test targets called for in the standard. The exemption applies to the following:
To reduce the frequency and severity of neck injuries in rearend and other collisions, Standard No. 202 requires all vehicles to be equipped with a head restraint at each front outboard seating position that meets specific size and performance requirements. In the NPRM, we proposed to include the standard in the exemption when the vehicle is modified for a wheelchairseated driver or front seat passenger, and no other seat for the affected seating position is provided, or when the head restraint must be altered to accommodate a driver's impairment. The agency solicited comment on whether any wheelchair head rests were likely to meet the requirements of the standard.
All commenters addressing this standard agreed that neither swing
away head rests or attachable head rests could meet the standard.
Accordingly, we included the standard as part of the exemption as proposed in the NPRM.
9. FMVSS No. 203, Impact Protection for the Driver From the Steering Control System, and FMVSS No. 204, Steering Control Rearward Displacement
FMVSS No. 203 serves to reduce the likelih
FOR FURTHER INFORMATION CONTACT
For non-legal issues, you may contact Gayle Dalrymple, Office of Crash Avoidance Standards, NPS20. Telephone: (202) 3665559. Fax: (202) 3664329.
For legal issues, you may contact Rebecca MacPherson, Office of Chief Counsel, NCC20. Telephone: (202) 3662992. Fax: (202) 3663820.
You may send mail to these officials at the National Highway Traffic Safety Administration, 400 Seventh St., SW., Washington, DC 20590.