2022-05293. Make Inoperative Exemptions; Vehicle Modifications To Accommodate People With Disabilities; Modifications by Rental Car Companies

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This final rule amends NHTSA's regulations regarding exemptions to the make inoperative prohibition to accommodate disabilities to include new exemptions relating to the Federal motor vehicle safety standards (FMVSS) for roof crush resistance, rear visibility, and air bags. The air bag provision permits rental car companies to make inoperative a knee bolster air bag, on a temporary basis, to permit the temporary installation of hand controls to accommodate persons with physical disabilities seeking to rent the vehicle. We have drafted this rule to facilitate the mobility of drivers and passengers with physical disabilities in a manner that balances safety and accessibility. This rulemaking responds to a petition for rulemaking from the National Mobility Equipment Dealers Association and from Bruno Independent Living Aids, Inc., and to an inquiry from Enterprise Holdings Co.

DATES:

This rule is effective March 15, 2022.

Petitions for Reconsideration: Petitions for reconsideration of this final rule must be received at the address below by April 29, 2022.

ADDRESSES:

If you wish to petition for reconsideration of this rule, submit your petition to the following address so that it is received by NHTSA by the date above: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, West Building, Washington, DC 20590. You should refer in your petition to the docket number of this document. The petition will be placed in the docket. Note that all submissions received will be posted without change to https://www.regulations.gov, including any personal information provided. Please see the Privacy Act heading below.

FOR FURTHER INFORMATION CONTACT:

Gunyoung Lee, NHTSA Office of Crash Avoidance Standards (phone: [phone]; fax: [phone]); Daniel Koblenz, NHTSA Office of Chief Counsel (phone: [phone]; fax [phone]); or David Jasinski (phone: [phone]; fax [phone]. The mailing address for these officials is: National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction

II. Background

III. FMVSS No. 216a (Roof Crush Resistance)

a. The Standard

b. NMEDA Petition for Rulemaking

c. NPRM

d. Comments on the NPRM

e. Agency Decision

IV. FMVSS No. 111 (Rear Visibility)

a. The Standard

b. Bruno Petition for Rulemaking

c. SNPRM

d. Comments on the NPRM

e. Agency Decision

V. FMVSS No. 208 (Occupant Crash Protection)

a. FAST Act

b. Enterprise Request for Interpretation

c. SNPRM

d. Response to Comments

e. Agency Decision

VI. Effective Date

VII. Rulemaking Analyses and Notices

I. Introduction

This final rule amends 49 CFR part 595, subpart C, “Make Inoperative Exemptions, Vehicle Modifications to Accommodate People With Disabilities,” in response to petitions from the National Mobility Equipment Dealers Association (NMEDA), Bruno Independent Living Aids, Inc. (Bruno), and a request from Enterprise Holdings Co. (Enterprise).

This final rule is preceded by two rulemaking proposals. First, NHTSA published a notice of proposed rulemaking (NPRM) on March 11, 2016 (81 FR 12852), relating to NMEDA's petition on the roof crush resistance standard. Second, the agency published a supplemental notice of proposed rulemaking (SNPRM) on December 28, 2020 (85 FR 84281) on Bruno's petition on the rear visibility standard. The SNPRM also responded to Enterprise's inquiry seeking to permit rental car companies the ability to temporarily make inoperative knee bolster air bags to facilitate installation of hand controls.^[1] NHTSA received no comments opposing adoption of the proposals.

II. 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 FMVSSs (49 U.S.C. 30112; 49 CFR part 567) at the time of manufacture. A vehicle manufacturer, distributor, dealer, rental company or repair business, except as indicated below, 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 (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 adopt 49 CFR part 595, “Make Inoperative Exemptions.”

The provisions at 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. A motor vehicle repair business that avails itself of the exemption provided by subpart C must register itself with NHTSA. The modifier is exempted from the make inoperative provision only to the extent that the modifications affect the vehicle's compliance with the FMVSSs specified in 49 CFR 595.7(c) and only to the extent specified in § 595.7(c). Modifications that would take the vehicle out of compliance with any other FMVSS, or with an FMVSS listed in § 595.7(c) but in a manner not specified in paragraph (c), are not exempted by the regulation.^[2]

III. FMVSS No. 216a (Roof Crush Resistance)

a. The Standard

FMVSS No. 216a, “Roof crush resistance; Upgraded standard,” requires that the vehicle roof meet two requirements when subjected to a test force applied by a large steel test plate first to one side of the roof, and then to the other side: The lower surface of the test plate must not move more than 127 millimeters (mm); and the load applied to a headform positioned on a test device in the corresponding front outboard seat must not exceed 222 Newtons. Vehicles with a gross vehicle weight rating (GVWR) of 2,722 kg (6,000 lb) or less must withstand a test force of up to 3 times the vehicle's unloaded weight. For vehicles with a GVWR greater than 2,722 kg (6,000 lb) and up to 4,536 kg (10,000 lb), the test force is up to 1.5 times the vehicle's unloaded wight. The standard applies, with some exceptions, to passenger cars, trucks, multipurpose passenger vehicles, and buses other than school buses.^[3]

The standard provides an alternative compliance option for vehicles built in two or more stages (other than vehicles built using a chassis cab) and vehicles with a GVWR greater than 2,722 kg (6,000 lb) with an altered roof.^[4] Manufacturers of these vehicles may certify to the roof crush requirements of FMVSS No. 220, “School bus rollover protection,” instead of the upgraded roof crush requirements in FMVSS No. 216a. (The FMVSS No. 220 requirements are explained below.) Vehicle modifiers,^[5] however, are (prior to this final rule) prohibited from making any vehicle modifications to vehicles meeting FMVSS No. 216a—such as raising the vehicle roof—unless the vehicle continues to comply with FMVSS No. 216a, due to the make inoperative prohibition. Part 595 does not, prior to today's final rule, provide an exemption from FMVSS No. 216a for modifiers that raise the roof on vehicles to accommodate people with disabilities.

b. NMEDA Petition for Rulemaking

NMEDA requested that NHTSA amend 49 CFR part 595 to provide an exemption from FMVSS No. 216a for modifiers that raise the vehicle roof to meet the special needs of occupants with disabilities. NMEDA requested that such modifications be permitted as long as the vehicle is not made inoperative with the requirements of FMVSS No. 220.

NMEDA explained that (presumably prior to the effective date of FMVSS No. 216a), raising the roof of a vehicle was an everyday manufacturing operation for hundreds of NMEDA members, most of which are modifiers of vehicles with a GVWR greater than 2,722 kg (6,000 lb), but not greater than 4,536 kg (10,000 lb). NMEDA explained that there is a need for modifiers to raise the roofs of vehicles after first sale to meet the mobility needs of consumers with disabilities. In many cases, a consumer will purchase a vehicle, usually over 2,722 kg (6,000 lb) GVWR and then approach a modifier to have a roof raised. Generally, customers ask to raise the roof 305 to 356 mm (12 to 14 inches) to suit their particular needs. In other cases, a public agency or independent transportation company will purchase a vehicle to have the roof raised to provide public transportation for persons needing accommodation.

NMEDA further argued that FMVSS No. 216a and the make inoperative prohibition make it impossible for such modifiers to raise the roof and ensure continued compliance with FMVSS No. 216a. It explained that, prior to the upgrade to FMVSS No. 216a, NMEDA had tested and provided consortium test and installation instruction to its members for a tubular structure, or roll cage, to comply with the requirements in FMVSS No. 220. Petitioner conducted this testing mainly because it believed that FMVSS No. 220 is a comparatively simpler test and the roll cage is less expensive to install. NMEDA indicated, however, that the modification procedure it developed is no longer performed; it would violate the make inoperative prohibition because it was intended to ensure compliance with FMVSS No. 220, not with FMVSS No. 216a. NMEDA also stated that it is not practical for it to design a FMVSS No. 216a-compliant roof to fit the various makes and models of vehicles that would be modified. The petitioner further explained that, while modifiers would have difficultly ensuring a modified roof continues to meet FMVSS No. 216a, they would be able to ensure that it meets FMVSS No. 220.^[6]

c. NPRM

NHTSA granted NMEDA's petition and, on March 11, 2016, published an NPRM (81 FR 12852) proposing to amend part 595 to add an exemption to the upgraded roof strength requirements of FMVSS No. 216a. We proposed to condition this exemption on the installation of a roof meeting the performance requirements of FMVSS No. 220.

In the NPRM we stated that we tentatively agreed with the petitioner that there may be a need to accommodate persons with special mobility needs by raising the vehicle roof and that FMVSS No. 216a essentially prevents vehicle modifiers from doing so. Prior to the promulgation of FMVSS No. 216a, the vast majority of the vehicles being modified for this purpose did not have to comply with any roof crush requirements because they were vehicles with a GVWR between 2,722 kg (6,000 lb) and 4,536 kg (10,000 lb), to which FMVSS No. 216 (the pre-upgrade standard) did not apply. Thus, prior to the 2009 upgrade, modifiers could replace the roof on such vehicles without violating the make inoperative prohibition.

We explained that, while such vehicles now have requirements under FMVSS No. 216a, the need to accommodate persons with disabilities remains. A raised roof makes it easier for someone to enter the vehicle seated in a wheelchair or for a personal care attendant to tend to them or walk in and out of the entrance. Doors may be raised in conjunction with a roof to enable a person in a wheelchair to enter without having to bend over or have a personal care attendant tilt the wheelchair back. Larger wheelchairs or motorized wheelchairs may also require modifications to the roof height to improve ingress and egress of the occupant. These modifications to the roof could take the vehicle out of compliance with the requirements of FMVSS No. 216a.

Accordingly, we tentatively agreed with NMEDA that there is a need to provide an exemption in part 595 for modifications that involve raising the vehicle roof to accommodate persons with special mobility needs. We also tentatively agreed with NMEDA's suggestion that FMVSS No. 220 is a reasonable alternative to ensure a minimum level of roof strength to protect the occupants of vehicles modified in this manner.

Similar to the rationale we expressed in the 2009 final rule (74 FR 22348, May 12, 2009) for allowing alterers and multistage manufacturers the option of certifying to FMVSS No. 220 instead of FMVSS No. 216a, we explained that there are technical problems involved with ensuring that a vehicle that has its roof raised continues to meet the requirements of FMVSS No. 216a. For example, if a van is altered by replacing the roof with a taller roof surface and structure, this would change the location of the FMVSS No. 216a test plate with respect to the original roof surface and structure. If a vehicle was modified and the roof was raised to the heights suggested by NMEDA (305 to 356 mm), the 127 mm of test device travel specified in the requirements would likely be exceeded prior to the test device engaging the original vehicle's roof structure in the FMVSS No. 216a test. We further stated that it would be difficult for modifiers (generally small businesses) to raise the roof of a vehicle to these types of heights and ensure that the vehicle remains compliant with FMVSS No. 216a, given the small volume, variety of roof heights needed to accommodate different disabilities, and variety of vehicle models.

We further stated our tentative belief that providing modifiers an exemption from FMVSS No. 216a, as long as the modified vehicle meets FMVSS No. 220, strikes an appropriate balance between the need to modify these vehicles to accommodate persons with disabilities and the need to ensure that vehicle roofs are sufficiently strong. Providing the qualified exemption would enable modifiers to use a whole raised roof that is designed to be installed on the vehicle. Further, such a raised roof could be applied to vehicles of varying height and would still be able to absorb the load of the test plate in the FMVSS No. 220 test. As NMEDA stated, such a roof structure has been designed and is available to modifiers.^[7]

We also explained that we believed the requirements of FMVSS No. 220 offer a reasonable avenue for increasing safety in rollover crashes. We noted that, at the time of the 2009 upgrade, several states required “para-transit” vans and other buses, which are typically manufactured in multiple stages, to comply with the roof crush requirements of FMVSS No. 220. Further, we noted that our crash data showed that FMVSS No. 220 has been effective for protecting school buses during rollover crashes. We also stated that we believed the strength requirements for FMVSS Nos. 216a and 220 are comparable. FMVSS No. 216a requires the roof on vehicles with a GVWR greater than 2,722 kg (6,000 lb) to withstand a force of 1.5 times the vehicle's unloaded weight, applied sequentially to the front corners of the roof by an angled plate. The roof must withstand the force such that it does not crush to the point of allowing the lower surface of the test plate to travel more than 127 millimeters,^[8] and the load applied to a headform located at the corresponding front outboard seating position does not exceed 222 Newtons.^[9] The FMVSS No. 220 test uses a single horizontal plate over the whole roof of the vehicle to apply a load to the vehicle's roof. That standard requires the roof to withstand a force of 1.5 times the vehicle's unloaded weight prior to 130 mm of plate travel.

d. Comments on the NPRM

The agency received one comment to the NPRM from an individual who supported the proposal.

e. Agency Decision

NHTSA has decided to finalize the proposal and add an exemption from FMVSS No. 216a to part 595 for the reasons provided in the NPRM. We recognize the concerns raised by NMEDA regarding continued mobility for people with disabilities and have concluded that its request to allow modifiers the option of meeting the performance requirements of FMVSS No. 220 is reasonable. The agency continues to believe the requirements of FMVSS No. 220 have been effective for school buses, and these requirements are permitted as a compliance option in FMVSS No. 216a for alterers and multistage manufacturers who complete or add raised roofs to vehicles prior to first retail sale. In the context of the NMEDA's petition and its development of raised roof manufacturing guidelines for its members, we believe FMVSS No. 220 appropriately balances safety and practicability.

We note that in the 2009 roof crush upgrade rulemaking (in the context of the decision to specify FMVSS No. 220 as an alternative compliance option for certain multistage manufacturers and alterers), we expressed some concern that, while the requirements in FMVSS No. 220 have been effective for school buses, they might not be as effective for other vehicle types ( e.g., light vehicles) as FMVSS No. 216a because that test results in roof deformations that are consistent with the crush patterns in the real world for light vehicles. However, at the same time we acknowledged that requiring multistage manufacturers and alterers to meet FMVSS No. 216a would fail to consider the practicability problems and special issues those entities face. In those circumstances, NHTSA believed that the requirements of FMVSS No. 220 offered a reasonable balance between practicability and safety.

Similarly, while we believe that ensuring light vehicles' compliance with FMVSS No. 220 may not provide the same high level of safety as ensuring compliance with FMVSS No. 216a, we also believe that FMVSS No. 220 offers a reasonable avenue to balance the need to modify vehicles to accommodate persons with a disability and the need to increase safety in rollover crashes. We do encourage modifiers only to raise or alter the roof when there are no other options. For this reason, we encourage modifiers to contact the respective manufacturer or seek advice from groups like NMEDA to address questions or concerns related to the modification(s) that may compromise a safety system. It is the agency's position that a modification that deactivates any safety system or takes a vehicle out of compliance from any FMVSS that is exempted in part 595 should be pursued only when all other options have been reasonably exhausted given the circumstances.

Therefore, for the reasons provided here and in the NPRM, we are amending 49 CFR 595.7(c) to exempt vehicle modifications in which the roof is raised so long as the modified vehicle meets the roof crush requirements of FMVSS No. 220. We note that the final regulatory text incorporates some technical changes to the proposed regulatory text. The final regulatory text clarifies that the exemption only applies to modifications involving a raised roof. The final regulatory text also makes clear that the exemption applies to the entirety of FMVSS No. 216a, not just S5.2(b).

IV. FMVSS No. 111 (Rear Visibility)

a. The Standard

FMVSS No. 111 requires light vehicles to be equipped with a backup rear visibility system that, among other things, displays an image of the area directly behind the vehicle. The standard requires that each passenger car must display a rearview image to the driver that meets the requirements of FMVSS No. 111 S5.5.1 through S5.5.7, and that each multipurpose passenger vehicle, low-speed vehicle, truck, bus, and school bus with a GVWR of 4,536 kg (10,000 lb) or less must meet the requirements of S6.2.1 through S6.2.7. It is NHTSA's understanding that all manufacturers comply with the rearview image requirements using a backup camera system ( i.e., a rear-facing camera behind the vehicle that transmits a video image to a digital display in view of the driver).

During the rulemaking that established the FMVSS No. 111 rear visibility requirements, the issue of temporary equipment obstructing a backup camera system's field of view was raised by a commenter. The commenter (the National Truck Equipment Association) noted that, because it was expected that manufacturers would meet the new rear visibility requirements with a backup camera system, it would be possible for the camera's field of view to be obstructed by the installation of certain types of temporarily-attached vehicle equipment, such as a salt or sand spreader, which can be temporarily mounted to the trailer hitch of a pickup truck. NHTSA responded to this comment in the final rule by stating that the rule was not intended to apply “to trailers and other temporary equipment that can be installed by the vehicle owner.” However, NHTSA did not address the question of whether the installation of such equipment would violate the make inoperative prohibition (49 U.S.C. 30122) if done by an entity subject to section 30122.

b. Bruno Petition for Rulemaking

Bruno requested that NHTSA amend subpart C so that it would include paragraphs S5.5 and S6.2 of FMVSS No. 111. Bruno is a manufacturer of several products that allow a vehicle owner to transport unoccupied personal mobility devices (PMD) such as wheelchairs, powered wheelchairs, and powered scooters intended for use by vehicle occupants with mobility impairments. Bruno stated that there are two types of PMD transport devices that it manufactures. The first type is what the petitioner describes as a platform lift that can be attached to the exterior of the vehicle by means of a trailer hitch. This type of PMD transport device is fully supported by the trailer receiver hitch without ground contact. The second type of PMD transport device is supported in part by contact with the ground. As such it is a “trailer” under NHTSA's definitions.^[10]

Bruno stated that most backup cameras that are installed pursuant to FMVSS No. 111 are mounted at a low height along the horizontal centerline of the vehicle, often near the vehicle's rear license plate mounting. The placement of the backup camera in this location means that it may be obstructed by a rear-mounted PMD transport device, or by a PMD that is mounted onto the transport device. Since the PMD transport devices may obstruct the rear view from the vehicle's rearview video system, installation of the devices could arguably violate the “make inoperative” prohibition (49 U.S.C. 30122). Bruno stated that, to avoid potential uncertainty regarding the manufacture, sale or installation of both types of PMD transport devices it manufactures, it requests that subpart C be amended to cover the backup camera requirements (S5.5 and S6.2) of FMVSS No. 111.

c. SNPRM

NHTSA granted Bruno's petition and proposed to add S5.5 and S6.2 of FMVSS No. 111 to the list of exemptions in part 595, subpart C, so that modifiers would know that NHTSA would not consider the temporary installation of a PMD transport device that blocks a vehicle's required backup camera to be a “make inoperative” violation. However, to maximize safety, we proposed to write the “make inoperative” exemption narrowly to apply only to the “field of view” and “size” requirements for backup cameras in FMVSS No. 111 (S5.5.1, S5.5.2, S6.2.1, and S6.2.2), and only to the temporary installation of a PMD transport device.^[11]

d. Comments on the SNPRM

NHTSA received eight comments on the proposed expansion of part 595 to the “field of view” and “size” requirements for backup cameras in FMVSS No. 111, all supportive of the proposal. These comments were from disability rights advocates, trade associations, individual commenters, and Bruno itself. The comments supported the proposed exemption due to the mobility benefits it would provide to persons who use PMDs. Commenters who discussed NHTSA's reasoning supported the agency's decision to draft the exemption narrowly, so that it would only apply to temporary (rather than permanent) disabling of the backup camera system, since doing so preserves the safety benefits of the backup camera system to the greatest extent possible.

e. Agency Decision

NHTSA has balanced the safety benefits of the camera system for rear visibility with the enhanced mobility for people with disabilities that this exemption would enable. We are adopting the make inoperative exemption for the field of view and size requirements for backup cameras in FMVSS No. 111 (S5.5.1, S5.5.2, S6.2.1, and S6.2.2) but only for temporary situations. The modifications permitted under the exemption do not permanently affect the vehicle's design or structure and will not be available beyond the population of persons with disabilities who wish to have a covered entity install a PMD transport device on their vehicle. NHTSA believes, and the commenters agree, that this exemption allowing only a temporary disabling of the backup camera system is narrowly focused and maintains the safety provided by the backup camera system in most circumstances, while recognizing the needs of persons with disabilities to transport PMDs.

We also emphasize that, while this final rule's exemption permits a temporary disengagement of the field of view and size requirements, we believe that modifiers should consider whether there are supplemental backup cameras that could be used with the PMD conveyances so that rear visibility could be maintained. We are not requiring the installation of such a system because the cost and complexity of wiring such a system into a vehicle could be significant enough to prevent some persons with disabilities from being able to install a PMD transport device.^[12] Installing such a system could also affect the compliance of the original backup camera system that drivers would resume relying on once a temporarily installed PMD transport device is removed. Nonetheless, NHTSA encourages modifiers to consider the feasibility of a supplemental backup camera to offset the blockage of the original equipment rear visibility system.

V. FMVSS No. 208 (Occupant Crash Protection)

a. FAST Act

The Fixing America's Surface Transportation Act (FAST Act), Public Law 114-94 (December 4, 2015), made rental companies subject to the “make inoperative” prohibition. The FAST Act also defined terms related to rental companies. For example, a “rental company” is defined as a person who is engaged in the business of renting covered rental vehicles and uses for rental purposes a motor vehicle fleet of 35 or more covered rental vehicles, on average, during the calendar year. A “covered rental vehicle” is defined as a vehicle that meets three requirements: (1) It has a GVWR of 10,000 pounds or less; (2) it is rented without a driver for an initial term of less than four months; and (3) it is part of a motor vehicle fleet of 35 or more motor vehicles that are used for rental purposes by a rental company.

Thus, beginning in December 2015, rental companies, as the term is defined in the FAST Act, were subject to the make inoperative prohibition for the first time. One effect of this FAST Act provision was to subject rental companies to § 30122 prohibitions for making inoperative systems installed to comply with the FMVSS—even if doing so to accommodate the installation of adaptive equipment for use by persons with disabilities, and even if the modification were only temporary.^[13]

b. Enterprise Request for Interpretation

In a letter dated August 12, 2019, Enterprise submitted a request for interpretation to NHTSA regarding the effect of the “make inoperative” prohibition on its obligations under the Americans with Disabilities Act of 1990 (ADA).^[14] Specifically, Enterprise asked whether the “make inoperative” prohibition applies to modifications by rental companies to temporarily disable knee bolster air bags to accommodate the installation of hand controls for drivers with physical disabilities. Following receipt of the letter, NHTSA met with Enterprise to discuss its request further.

In its letter, Enterprise stated that, to provide service to customers with disabilities and ensure compliance with the ADA, rental companies install adaptive equipment, such as hand controls, upon request. Enterprise stated that, when installing adaptive equipment in a motor vehicle, “equipment or features that were installed in compliance with NHTSA's safety standards may need to be modified. In these cases, the vehicle modification may render the affected equipment or features, as originally certified, `inoperative.' ”

Enterprise specifically addressed safety concerns with installing hand controls in rental vehicles equipped with knee bolster air bags.^[15] Hand controls consist of a metal bar that connects to the accelerator and brake pedals of a vehicle to enable operation by a person unable to control the pedals with their feet. Knee bolster air bags are installed by manufacturers to prevent or reduce the severity of leg injuries and generally help control occupant kinematics in the event of a frontal collision. Since knee bolster air bags, like all air bags, deploy at high speeds with a great degree of force, installed hand controls in the path of knee bolster air bag deployment could break apart, propelling components of the hand control into the driver with great forces—which would create a serious safety risk.

Enterprise stated that manufacturers of hand controls owned by Enterprise specify that a driver's side knee bolster air bag must be disabled (including removal in some instances) ^[16] for safe operation of the hand controls, both because the presence of a knee bolster air bag may interfere with safe operation of the hand controls, and because the presence of hand controls would interfere with the air bag should it be deployed in the event of a crash.

Enterprise noted that 49 CFR part 595, subpart C, includes exemptions for certain entities from the make inoperative prohibition in certain circumstances to accommodate the modification of vehicles for persons with disabilities. However, as the subpart pre-dated the FAST Act, the subpart does not include rental companies within the entities who could use those exemptions.

Pertaining specifically to knee bolster air bags, Enterprise noted that they are not specifically required by FMVSS No. 208. However, Enterprise observed that vehicle manufacturers are increasingly making knee bolster air bags standard equipment on all models such that it is becoming difficult for Enterprise to purchase new vehicles that do not include knee bolster air bags. Further, Enterprise stated that vehicles with knee bolster air bags are not crash tested with the knee bolster air bags removed or disabled, meaning Enterprise cannot know whether disabling knee bolster air bags affects compliance with FMVSS No. 208.

Enterprise concluded that, based upon its ADA obligations to provide hand controls for drivers requesting them and the increasing trend of knee bolster air bags being standard equipment, knee bolster air bags would have to be temporarily disabled on rental vehicles to continue to make vehicles available to rent by drivers with physical disabilities. Enterprise requested NHTSA's help in answering whether disabling the knee bolster air bag would constitute a violation of the make inoperative prohibition, and if it would, how Enterprise could provide hand controls to serve its customers.

c. SNPRM

NHTSA decided to issue the SNPRM to address the problem raised by Enterprise. NHTSA explained that it did not have sufficient information to determine whether the knee bolster air bag is a part or element of design installed “in compliance with an applicable motor vehicle safety standard,” but noted that knee bolster air bags are installed to reduce femur loading, and FMVSS No. 208 does provide specific requirements for femur load.^[17] NHTSA determined that, as knee bolster air bags are already becoming standard equipment across much of the light duty fleet, this situation could result in rental companies facing the untenable position of being forced to either: (1) Retain a number of older vehicles in its fleet (without knee bolster air bags) and on its premises to rent to drivers requesting hand controls; (2) cease the rental of vehicles to drivers requesting hand controls; (3) disable the air bag and potentially violate section 30122; or (4) install hand controls on vehicles with knee bolster air bags and create serious safety risks for their customers.

None of these results was acceptable to NHTSA. The first action would prevent Enterprise from providing for rent newer vehicles, which include newer safety innovations, to drivers requiring the use of hand controls, which NHTSA deemed unacceptable because all drivers should be afforded the protections of new safety technologies. Further, the action would be impracticable given the inability to guarantee availability of sufficient vehicles at all relevant rental facilities. The second action was unacceptable as it would eliminate a critical service for people with disabilities and may be contrary to the ADA. The third action would potentially violate the Safety Act. The fourth option would create an unreasonable risk to the safety of rental customers with physical disabilities.

NHTSA issued the December 2020 SNPRM after balancing NHTSA's primary interest in promoting motor vehicle safety with the interest (including the statutory interest implicit within the ADA) to provide access to mobility for persons with disabilities. NHTSA tentatively concluded that it should exercise its statutory authority to exempt rental companies from the make inoperative prohibition in certain circumstances, and with certain conditions, so that rental companies may rent vehicles to drivers requesting hand controls. The action would be consistent with NHTSA's decision to promulgate 49 CFR part 595, subpart C, to exempt motor vehicle repair businesses from the make inoperative prohibition to accommodate persons with disabilities. NHTSA proposed to add a new section to 49 CFR part 595 specifically for rental companies having to disable a knee bolster air bag to install hand controls.

d. Response to Comments

NHTSA received 42 comments on the SNPRM. Twenty-one comments directly addressed the issue of the proposed make inoperative exemption for rental companies.^[18] All were generally supportive of the rulemaking, with a few raising issues with specific aspects of the proposal.

To learn more about this area, NHTSA presented 11 questions in the SNPRM regarding the scope of an exemption to rental companies, and the logistics of granting those exemptions. In this section, NHTSA presents the questions, summarizes and responds to the comments, and indicates any changes made to the proposal in response to those comments.

1. Should rental companies be provided exemptions from the make inoperative prohibitions to make temporary vehicle modifications, permanent vehicle modifications, or both?

The wording of the proposed regulatory text allowed only temporary modifications by rental companies that would include the duration of the rental agreement and a reasonable period before and after modification, to allow the rental company to make and reverse the modification, respectively. If the vehicle would be rented to a second person requiring the same modification immediately after the termination of the first rental agreement, a rental company would not be required to reverse the modification and then immediately modify the vehicle again.

All commenters who addressed the issue supported allowing temporary modifications. Enterprise stated in its comment that it only anticipates making temporary modifications to vehicles. Enterprise stated that, while it was unlikely that the same vehicle would be rented to two people requiring the same modification consecutively, it supported the proposed allowance that, if a vehicle were to be rented to a second person requiring the same modification, the rental company would not be required to reverse the modification and then immediately modify the vehicle again.

The Paralyzed Veterans of America (PVA), National Automobile Dealers Association (NADA), and NMEDA supported only providing temporary modifications. The rental companies did not express a need for an exemption for permanent modifications. This final rule only pertains to temporary modifications by rental companies. Given that this rulemaking was initiated in response to a request for temporary relief from a rental company and that no information was provided on the need or merits of permanent modifications, NHTSA has determined that it is unnecessary for this rule to provide for permanent modifications. Accordingly, this final rule will only allow for temporary modifications to rental cars to accommodate customers with disabilities.

The City of Los Angeles supported temporary modifications only for the driver's seating position, not the passenger's seating position. NHTSA focused on the position that would need the hand controls, which presumably was only the driver's seating position. The scope of the exemption will not cover modifications other than those necessary to install hand controls.

An individual stated that the exemption should only be granted if it could be reasonably assured that the modification is an appropriate type for a person's specific disability, the equipment was manufactured and tested according to applicable standards, regulations, and guidelines, that all modifications are performed by factory trained and certified technicians, and that rental companies prohibit adding a second driver without a disability to the rental contract. NHTSA declines to adopt these suggestions. As to the first suggestion, NHTSA believes that requiring a rental company to verify a customer's need for a specific accommodation is more appropriately addressed by State and Federal civil and disability rights law. Second, the Safety Act already requires that all motor vehicle equipment comply with all applicable FMVSSs and that they be free of safety-related defects. Regarding the third suggestion, NHTSA declines to condition the availability of exemptions to accommodate persons with disabilities on the credentialing of technicians by third parties. (Nevertheless, NHTSA urges all rental companies modifying vehicles to follow manufacturer-recommended practices related to the disabling of knee bolster air bags to ensure the safety of both their customers and the employees who modify vehicles.) Finally, NHTSA declines to adopt a rule prohibiting adding a second driver to the rental contract, as such a requirement appears overly restrictive at this time.

2. Should NHTSA provide a make inoperative exemption for other installations of adaptive equipment by rental companies?

Commenters such as Enterprise, the American Car Rental Association (ACRA), PVA, the City of Los Angeles, and NMEDA suggested that NHTSA could grant similar exemptions for other accommodations. An individual expressed a concern with sitting too close to the air bags and suggested rental companies could disable air bags on a case-by-case basis with the customer acknowledging the risks of removing the air bag. NHTSA has not included any additional make inoperative exemptions in this final rule. If rental companies or others believe that further make inoperative exemptions are necessary, they may submit a petition for rulemaking.

3. If a temporary modification to install adaptive equipment causes the air bag malfunction telltale required by FMVSS No. 208 to illuminate, should the rental company be allowed to disable the telltale?

In its conversations with NHTSA prior to the NPRM, Enterprise stated that its procedure for disabling the knee bolster air bag would involve the installation of a shunt within the electrical circuitry of the air bag system. NHTSA believed that the installation of such a shunt would allow the air bag system, upon its diagnostic check at the time the vehicle is started, to conclude that there is no malfunction within the air bag system. Accordingly, NHTSA was concerned about potential safety implications if, after the diagnostic check, the air bag malfunction telltale would not illuminate even though the knee bolster air bag was disabled. Conversely, the illumination of the air bag malfunction telltale where the knee bolster air bag is disabled also raises concern. If the air bag malfunction telltale is illuminated for the duration of the rental to a driver with a disability, that driver would not have the benefit of the telltale illuminating the event of any other malfunction within the air bag system, including malfunctions affecting air bags that are installed pursuant to FMVSS No. 208.

Commenters were divided in their views. For example, Enterprise, ACRA, PVA, the Alliance for Automotive Innovation, the City of Los Angeles, and NMEDA believed that the telltale should not illuminate when using the shunt so that it could alert the driver of some other air bag system malfunction. Enterprise and Terry Sturgis both noted that the driver would already be aware of the disablement of the knee bolster air bag. In contrast, NADA and Eugene Blumkin supported illuminating the telltale when using the shunt.

The arguments presented by the commenters largely echoed the competing safety interests that were discussed in the SNPRM. After considering the comments, NHTSA has decided either illumination status is acceptable. If the air bag malfunction telltale illuminates because of disabling the knee bolster air bag, it is correctly warning about a problem with the air bag system. A telltale that does not illuminate due to a shunt is also acceptable as a related outcome to this final rule's permitting the modification to the knee bolster air bag. Further, an unilluminated telltale may be able to notify the occupants of malfunctions with other air bags in the vehicle. In both situations, the telltale must be restored to operating status when the knee bolster air bag system is returned to its pre-rental state. NHTSA suggests that rental companies inform their customers what it means if the telltale is illuminated in the vehicle.

4. Would a hand control (or any other adaptive equipment typically installed by rental companies) interfere with devices or elements of designs installed in compliance with any other FMVSS?

In response to this question, Enterprise stated its belief that the mere installation of adaptive equipment would not constitute a make inoperative violation. NADA did not address the legal question but stated its desire to limit the exemption to temporary hand control installation and knee bolster air bag deactivation. NMEDA suggested that some hand control designs may interfere with compliance with FMVSS No. 124, which pertains to accelerator control systems. However, NMEDA did not indicate what aspect of FMVSS No. 124 would be made inoperative by the installation of hand controls or whether such hand controls might be commonly used by rental companies.

Having considered the issue and the comments received, the agency is focusing this final rule on the application of FMVSS No. 208 (the disablement of the knee bolster air bag for the installation of hand controls). NHTSA believes that the wording of the exemption sufficiently addresses all make inoperative issues caused by the installation of the hand controls.

5. Should rental companies need to request an exemption from NHTSA or should the exemption be provided automatically within the regulation?

NHTSA tentatively concluded in the NPRM that rental companies should not have to seek an exemption from NHTSA prior to disabling the knee bolster air bags to install hand controls. Rather, NHTSA proposed to grant the exemption to rental companies conditionally on their compliance with the proposed amendments to 49 CFR part 595.

All commenters who addressed this issue agreed that rental companies should not have to seek an exemption from NHTSA. In the SNPRM, NHTSA observed that a rental company may be required to make modifications quickly to provide accommodations when a customer requests a vehicle with hand controls. As a practical matter, NHTSA would not be able to evaluate and respond to requests for exemption quickly enough in situations where customers are waiting at the rental car counter. Accordingly, this final rule does not require that rental companies seek permission from NHTSA prior to making modifications to vehicles. This approach is consistent with other exemptions in § 595.7.

6. Should rental companies be required to notify NHTSA of modifications to vehicles?

As provided in 49 CFR 595.6, a motor vehicle repair business that modifies a vehicle pursuant to part 595 must, not later than 30 days after it modifies a vehicle pursuant to the “make inoperative” exemption in part 595, identify itself to NHTSA. In the SNPRM, NHTSA tentatively concluded that a similar requirement is not warranted for rental companies. First, there are far fewer rental companies than there are motor vehicle repair businesses, such that NHTSA is aware of the existence of large rental companies. Second, the modifier information furnished to NHTSA under 49 CFR 595.6 is used, in part, to populate a database available to the public of entities that perform modifications to motor vehicles to accommodate persons with disabilities.^[19] Regarding rental companies, they are modifying vehicles to accommodate customers with physical disabilities as part of their business operations, and as part of their efforts to comply with the ADA. Thus, a list of rental companies able to modify vehicles pursuant to 49 CFR part 595 would likely be a list of all rental companies. Such a list would be of limited utility to the public and would impose a paperwork burden on all rental companies.

Enterprise, the City of Los Angeles and NMEDA supported not requiring rental companies to identify themselves to NHTSA or notify NHTSA when making a vehicle modification. Conversely, an individual and NADA asserted that rental companies should have to identify themselves to NHTSA prior to making modifications pursuant to this make inoperative exemption. NMEDA suggested that NHTSA consider requiring rental companies to submit annual reports of modifications and other information pertinent to modifications such as the location, number of installations, types of controls installed, serial number, make/model of vehicles modified, and reports of any incidents.

NHTSA does not believe that the regular reporting of modifications made pursuant to the make inoperative exemption is needed. Safety-related incidents may be reported to NHTSA by anyone via an internet portal at https://www.nhtsa.gov/​report-a-safety-problem, or by contacting NHTSA's vehicle safety hotline. If NHTSA discovers a safety issue in the future that justifies regular reporting of vehicle modifications, NHTSA may consider a requirement in the future. However, at this time, NHTSA is not aware of any safety issue that would justify the burden and expense of regular reporting of vehicle modifications. Accordingly, NHTSA is not requiring any regular reporting to NHTSA of modifications.^[20]

7. Should rental companies be required to notify customers that the air bag in the vehicle they rented is disengaged to accommodate the installation of adaptive equipment?

The SNPRM proposed requiring that the rental company affix a temporary label, meant to remain affixed during the rental, indicating that the knee bolster air bag is disabled. This label would serve both to inform persons driving the vehicle of the status of the air bag and to remind the rental company to reactivate the air bag at the conclusion of the rental.

Commenters were generally supportive of this proposed labeling requirement. Enterprise, NADA and others agreed that a temporary label was a practicable means of notifying the driver that the vehicle has been modified. PVA, the City of Los Angeles, NMEDA, and Eugene Blumkin supported the requirement that rental companies notify customers that the knee bolster air bag has been disabled. Terry Sturgis suggested an inward facing windshield sticker or a tag on the key ring.

NHTSA is adopting the requirement, but declines to specify a location for the label. NHTSA is concerned that some States may have laws preventing the placing of such a label on the windshield, hanging from a rearview mirror or in a similarly view-obstructing location. NHTSA believes a label on the key ring would not be sufficient to satisfy the requirement that the label must be in the vehicle's passenger compartment.

In the SNPRM, NHTSA also proposed that renters of modified vehicles would have to be informed of the name and address of the rental company modifying the vehicle and again that the knee bolster air bag has been temporarily disabled. NHTSA believed that this notification could be accomplished simply by annotating the invoice or rental agreement at the rental counter, which would take a minimum amount of time, and that the costs to meet this requirement would be insignificant.

NADA, PVA, the City of Los Angeles, NMEDA, and Eugene Blumkin supported the requirement of separately notifying the renter of the modification, for example, by providing information in the rental agreement. Terry Sturgis suggested that notification directly to the customer may not be necessary because they would likely know about the modification already, having requested it. Enterprise and ACRA opposed the separate notification in the rental agreement. Both commenters found the second notification to be unnecessary and not practical. Both indicated that rental companies did not have systems in place to append such notifications at the time of the execution of the rental agreement. In contrast to NHTSA's estimate that the burden of this notification would be minimal, Enterprise and ACRA suggested that implementing such a system could cause substantial expense. Further, the commenters noted that, in some cases, the customer does not execute a rental agreement at the time of rental. Instead, renters sign a master rental agreement and then, after placing a reservation, can choose an eligible vehicle and leave.

NHTSA agrees with Enterprise, ACRA, and Terry Sturgis that this separate notification is unnecessary. The notification directly to the customer is duplicative of the notification that would be provided in the passenger compartment of the vehicle itself. Finally, NHTSA accepts that the annotation of rental agreements may be a greater burden than estimated in the SNPRM. Accordingly, this final rule does not include the requirement that a rental company provide a separate notification directly to the renter at the time the vehicle is rented.^[21]

8. Should rental companies be required to retain records of vehicles modified pursuant to this “make inoperative” exemption. If so, what information and for how long?

Motor vehicle repair businesses that permanently modify vehicles pursuant to the make inoperative exemption in 49 CFR part 595, subpart C, are required to retain, for five years, information provided to owners of vehicles that are modified. In the SNPRM, NHTSA proposed that this type of record retention should be required of rental companies as well. The information would facilitate enforcement by NHTSA in the event of potential violations of the terms of the make inoperative exemption, or if a safety problem arises in the vehicle at a later date that could possibly relate to the deactivation of the air bag. NHTSA stated that the costs associated with this record retention would be minimal since the record could be the rental agreement or invoice itself, which can be stored as part of their general record retention process, electronically or in paper format at their discretion.

NADA and Eugene Blumkin agreed with NHTSA's proposal that rental companies be subject to similar record retention requirements applying to motor vehicle repair businesses. NADA suggested that rental companies should have to keep records for each vehicle modified, including vehicle identification information, dates when modifications were made, dates restored, and how and when the company disposed of the vehicle. NMEDA suggested that rental companies be subject to record retention requirements as to customer, equipment, vehicle, technician, installation, and inspection information. The Disability Rights Education and Defense Fund and the Consortium for Citizens with Disabilities Transportation Task Force supported a five-year recordkeeping requirement.

Enterprise and ACRA suggested that rental companies may lack a system to provide and retain a copy of the notice that would be provided to renters. After reading Enterprise's and ACRA's comments, it was unclear to us whether they objected only to retaining the document proposed to be provided to the customer (but not adopted by this final rule), or whether Enterprise objected to the record retention requirement generally. NHTSA sought further clarification from Enterprise. In response, the commenter stated it could reasonably maintain records of a rental company location making the modification, the vehicle being modified, and the device or element of design that is made inoperative.

After considering the comments, NHTSA has decided to require a record consisting of the following be retained: (1) The name and address of the company making the modifications; (2) clear identification of the vehicle being modified; and (3) identification of the devices of elements of design modified. Further, (4) the record must be retained for five years. (Because this final rule does not include the requirement that a rental company provide a copy of the notice placed in the passenger compartment to the customer at the time of execution of the rental agreement, there is no requirement in this final rule that such a document be retained.)

However, this final rule does modify one of the above record requirements. There was some ambiguity in the proposal regarding whether modifications were required to be made by the rental company or whether rental companies may contract with a motor vehicle repair business to perform the modifications. NHTSA did not intend in the SNPRM to limit a rental company's ability to choose whether to use its own employees to perform the modification or to contract with a motor vehicle repair business to perform the modification. This final rule makes this explicit by replacing the proposed requirement that the retained record contain the name and physical address of the rental company making the modification with a requirement that the rental company retain the name and physical address of the rental company and any entity that performed or reversed the modification on behalf of the rental company. In the clarification of its comments, Enterprise stated that its internal recordkeeping systems could not keep track of work provided by third parties. However, we believe that any invoices or any other record provided by such third parties to Enterprise or created by Enterprise (whether in paper or electronic form) can be reasonably maintained. To allow for the fact that relevant records may be created by more than one entity, NHTSA has changed the term “document” to the plural “documents” in order to remove any implication that the information required to be retained must all be contained within a single document.

As with the existing record retention requirement for motor vehicle repair businesses that permanently modify vehicles for people with disabilities, NHTSA is specifying a five-year recordkeeping requirement. In its clarification, Enterprise stated this its record retention policy requires records be retained for three years. We believe it is not unreasonable and would result in minimal added expense for records related to the rentals of modified vehicles be retained for five years. A five-year period better ensures that data will be available in case safety problems arise with the performance of the knee bolster air bags, hand controls, or related equipment in vehicles modified pursuant to this exemption. NHTSA is not requiring any regular reporting to the agency of modifications made pursuant to this exemption, so retaining the records for five years better guarantees the availability of data. A five-year period is also consistent with a similar requirement in part 595, subpart C, that has been workable.

NHTSA considers the costs of the recordkeeping requirements in a section below discussing the Paperwork Reduction Act.

9. Should rental companies be required to notify subsequent renters and/or purchasers of rental vehicles that the vehicle was previously modified?

In the SNPRM, NHTSA expressed its view that subsequent renters or purchasers of rental vehicles need not be notified of prior temporary modifications. Enterprise, ACRA, Terry Sturgis, and Eugene Blumkin agreed that rental companies should not be required to disclose prior temporary modifications that were reversed. In contrast, NADA suggested that rental companies should be required to notify purchasers of rental vehicles of prior modifications. NMEDA stated that notification to subsequent renters would be ethical, reasonable, and not overly burdensome. PVA suggested that subsequent purchasers may benefit from knowing that the vehicle could be modified to accommodate hand controls.

NHTSA concludes there is not a sufficient need for a NHTSA requirement that rental companies be required to notify subsequent renters or purchasers of rental vehicles that have been modified pursuant to this make inoperative exemption. As noted by ACRA, the installation and removal of hand controls and disabling and reenabling of the knee bolster air bag typically have no permanent effect on the vehicle. NHTSA agrees these are straightforward processes that are unlikely to compromise the safety performance of the vehicle once the vehicle is restored.

Further, NHTSA believes that State law may be better equipped to handle any general or specific retail disclosure obligations. Nothing in this rulemaking should be construed as affecting any notification obligation imposed by State or other Federal law. In response to PVA, NHTSA believes that it might make more sense if information that a vehicle is capable of being modified to accommodate hand controls were provided by the vehicle manufacturer rather than the rental company.

10. What procedures should NHTSA require of rental companies to ensure the knee bolster air bag will be reenabled when the rental vehicle is returned and the hand controls are disabled?

The proposed make inoperative exemption would only apply for the period during which a covered rental vehicle is rented to a person with a disability and a reasonable period before and after the rental agreement in order to perform and subsequently reverse the modification to accommodate a driver with physical disabilities. However, the proposal did not include any specific requirements for rental companies for reversing modifications to rental vehicles. NHTSA requested comments on whether NHTSA should impose requirements related to reversing a vehicle modification and if so, what those requirements should be.

ACRA stated that rental companies should have their own procedures for ensuring that the knee bolster air bag is replaced and reenabled. PVA and NADA agreed that rental companies should be required to reenable the knee bolster air bag, but did not suggest any specific procedure NHTSA could require to provide assurance that it would be done. An individual stated that rental companies should follow the procedures specified by vehicle and air bag manufacturers.

This final rule does not adopt procedures for reversing the modifications. Each rental company will have protocols and business practices best suited to ensure the air bag is restored. NHTSA believes that the notification in the passenger compartment and the presence of hand controls should be sufficient to ensure that the rental company reinstalls and reenables the knee bolster air bag prior to renting the vehicle to another customer. Nothing in this rulemaking precludes the use of other cues such as a special key ring. However, NHTSA does not believe at this time that mandating secondary cues is necessary to achieve the required reenabling of the air bag.

11. To the extent car sharing companies ( e.g., Zipcar) qualify as a “rental company” under 49 U.S.C. 30102, would all aspects of this proposal be reasonably applied to ride sharing companies, or would procedural requirements need to be different for them?

In the SNPRM, NHTSA stated that all aspects of this proposal would be equally applicable to a car sharing company that qualifies as a “rental company” under the definition in 49 U.S.C. 30102. Commenters who addressed this issue, such as ACRA, the Disability Right Education and Defense Fund, the Consortium for Citizens with Disabilities Transportation Task Force, PVA, and Eugene Blumkin agreed that car sharing companies who met the definition of a “rental company” should be held to the same standard. Terry Sturgis stated that procedural requirements for ride sharing companies may need to be different, but provided no specific suggestions.

NHTSA agrees with the commenters that car sharing companies who qualify as a “rental company” should be held to the same requirements as any other rental company. Having received no specific suggestion of any special procedural accommodations that might be required based on the process for car sharing, NHTSA is not providing any different accommodations for car sharing companies who may avail themselves of this make inoperative exemption.

e. Agency Decision

For the reasons discussed above and in the NPRM, we are amending subpart C to permit rental car companies to make inoperative a knee bolster air bag, on a temporary basis, to permit the temporary installation of hand controls to accommodate persons with physical disabilities seeking to rent the vehicle. The exemption extends only for the period during which the covered rental vehicle is rented to the person with a disability and must be reversed after the rental is over. The rental company must affix a label in the passenger compartment, in a visible location, informing the driver that the vehicle has had its knee bolster air bags temporarily disabled. Information about the modification must be kept by the rental company for five years. NHTSA has issued this final rule after balancing vehicle safety with the interest (including the statutory interest implicit within the ADA) to provide access to mobility for persons with disabilities.

VI. Effective Date

As this final rule relieves the regulatory burdens on various entities and facilitates the mobility of persons with disabilities, the agency finds that there is good cause for an immediate effective date.

VII. Rulemaking Analyses and Notices

Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 13563, and DOT Regulatory Policies and Procedures

We have considered the potential impact of this final rule under Executive Order 12866, Executive Order 13563, and DOT Order 2100.6A. This final rule is not significant and so was not reviewed by the Office of Management and Budget (OMB) under E.O. 12866 and is not of special note to the Department under DOT Order 2100.6A. This rulemaking imposes no costs on the vehicle modification or car rental industry. If anything, there could be a cost savings due to the exemptions. NHTSA has qualitatively assessed the benefits and costs of the rule.

FMVSS No. 216a: With respect to benefits, as noted above we believe that while ensuring compliance with FMVSS No. 220 may not provide the same level of safety as ensuring compliance with FMVSS No. 216a, we believe that, in light of the mobility needs of individuals with disabilities, in this particular case FMVSS No. 220 offers a reasonable avenue to balance the need to modify vehicles to accommodate persons with a disability and the need to increase safety in rollover crashes. We have made the exemption narrow and conditioned on maintaining the integrity of the roof. Further, this conditional exemption ensures a higher level of safety than prior to the roof crush upgrade, when FMVSS No. 216 did not apply to any vehicles over 6,000 lb.

With respect to costs, prior to this final rule modifiers needed to ensure that a vehicle on which the roof had been raised continued to meet FMVSS No. 216a. The final rule requires that modifiers instead ensure that the modified vehicle meets FMVSS No. 220. Because the FMVSS No. 220 test is, as NMEDA argued in its petition, less complicated than the FMVSS No. 216a test (and NMEDA has provided its members with information and instructions on how to install an FMVSS No. 220-compliant roll cage when raising a vehicle roof), the final rule will be less costly for modifiers to comply with than the current requirement.

The roof crush resistance rule does not contain new reporting requirements or requests for information beyond what is already required by 49 CFR part 595, subpart C.

FMVSS No. 111: Modifying a vehicle to install a trailer for PMD transport device not only increases business for entities making these modifications, but also increases consumer choices regarding the vehicles they can use to ride in. Because of this rule, a consumer may now ride in a vehicle that cannot fit a PMD because the PMD could be stowed on a carrier.

Modifying a vehicle in a way that reduces the rear visibility of a backup camera by installing a trailer or carrying a PMD could reduce crash avoidance features of the vehicle when the vehicle is reversing. However, few vehicles would be potentially modified and the agency has made the exemption temporary and not permanent. We have made the exemption as narrow as possible to achieve the goal of increasing mobility of drivers and passengers with physical disabilities while maintaining a level of vehicle safety.

The rear visibility rule does not contain new reporting requirements or requests for information beyond what is already required by 49 CFR part 595, subpart C.

FMVSS No. 208: Rental companies choosing to deactivate knee bolster air bags to facilitate installation of hand controls will not incur costs beyond those of their own choosing. This rulemaking will have minor labeling and recordkeeping costs on rental companies that install temporary hand controls and disable the knee bolster air bag; the increased revenue due to increase rentals of vehicles modified with hand controls will likely offset the minor labeling and recordkeeping requirements.

The labeling and recordkeeping costs are necessary to ensure that the renter knows the knee bolster air bag is nonfunctional and to assist in having the knee bolster air bag restored when the rental is over. The 5-year record retention requirement facilitates enforcement by NHTSA in the event of potential violations of the terms of the make inoperative exemption in this rule, and facilitates the investigation and identification of vehicles in the event a subsequent safety problem arises relative to the deactivation of the air bags. NHTSA believes that the costs associated with retaining this record are minimized since the record could be the rental invoice or agreement itself, which can be stored by rental companies in the same manner that they store their invoices, including electronically.

Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of proposed rulemaking or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

NHTSA has considered the effects of this rule under the Regulatory Flexibility Act. I certify that this rule will not have a significant economic impact on a substantial number of small entities.

FMVSS No. 216a: Most dealerships and repair businesses are considered small entities, and some proportion of these modify vehicles to accommodate individuals with disabilities. However, NHTSA expects that the number of such modifications that are made every year is not so large as to involve a substantial number of small entities. We also note that it should be more practicable for modifiers to comply with the make inoperative provision after this final rule than in the absence of the final rule. Therefore, the impacts on any small businesses affected by this rulemaking will not be substantial.

FMVSS No. 111: The entities installing the trailers and PMD transport devices could be small entities. However, the impacts on them are not expected to be significant. The exemption provides flexibility to these entities with minimal requirements (there are some labeling and recordkeeping requirements), but overall the agency does not believe there would be a large number of PMD transporters installed. Therefore, the impacts on any small businesses affected by this rulemaking would not be significant.

FMVSS No. 208: A substantial number of rental companies could be small entities, but NHTSA does not believe the impacts on them will be significant. The exemption provides additional flexibility to install hand controls with minimal requirements (there are some labeling and recordkeeping requirements), but overall NHTSA does not believe there will be a large number of rental car transactions affected by this rulemaking. This final rule's impact on small businesses will not be significant.

Executive Order 13132 (Federalism)

NHTSA has examined this final rule pursuant to Executive Order 13132 (64 FR 43255; Aug. 10, 1999) and concludes that no additional consultation with States, local governments, or their representatives is mandated beyond the rulemaking process. The agency has concluded that the 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 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.”

NHTSA rules can have preemptive effect in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision stating that a State (or a political subdivision of a State) may prescribe or continue to enforce a standard that applies to an aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the FMVSS governing the same aspect of performance. See 49 U.S.C. 30103(b)(1). This provision is not relevant because this final rule does not involve establishing, amending, or revoking a Federal motor vehicle safety standard. Second, the Supreme Court has recognized the possibility, in some instances, of implied preemption of State requirements imposed on motor vehicle manufacturers, including sanctions imposed by State tort law.

NHTSA is aware of a State law that might be seen as differing from this rule.^[22] However, the agency does not see a preemption issue. This rule strikes a balance between safety and accessibility appropriate to NHTSA's make inoperative exemptions, 49 CFR part 595, subpart C. NHTSA has struck this balance by setting the performance requirements that must be met so as not to violate section 30122. States can decide if that balance speaks to their safety goals. The agency requested comments on any specific State law or action that would prohibit the disabling of a knee bolster air bag. No comments were received. In sum, NHTSA does not anticipate that this final rule will preempt any State law.

Civil Justice Reform

When promulgating a regulation, agencies are required under Executive Order 12988 to make every reasonable effort to ensure that the regulation, as appropriate: (1) Specifies in clear language the preemptive effect; (2) specifies in clear language the effect on existing Federal law or regulation, including all provisions repealed, circumscribed, displaced, impaired, or modified; (3) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction; (4) specifies in clear language the retroactive effect; (5) specifies whether administrative proceedings are to be required before parties may file suit in court; (6) explicitly or implicitly defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship of regulations.

Pursuant to this order, NHTSA notes as follows. The preemptive effect of this 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 SAE International. 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 final rule does not result in expenditures by State, local or tribal governments, in the aggregate, or by the private sector in excess of $100 million annually.

National Environmental Policy Act

NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment.

Paperwork Reduction Act (PRA)

Under the PRA (44 U.S.C. 3501 et seq. ), a Federal agency must receive approval from OMB before it collects certain information from the public and a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This rulemaking creates new information collection requirements and is expected to increase the number of respondents under a previously approved Information Collection Request (ICR). The information collection requirements found in 49 CFR part 595, subpart C, were covered by a previously approved ICR that expired on August 31, 2021, titled “Exemption for the Make Inoperative Prohibition to Accommodate People with Disabilities” (OMB Control No. 2127-0635). NHTSA has initiated the process of reinstating the previously approved ICR in a request for comment published in the Federal Register on January 12, 2022 (87 FR 1829). To continue the process to request reinstatement of the previously approved information collection with modification to include the new reporting requirements for rental companies, NHTSA will be publishing a separate notice announcing that NHTSA is submitting the request to OMB for review approval, providing a 30-day comment period, and directing that comments be submitted to OMB.

The aspects of this final rule pertaining to roof crush and rear visibility would not result in any additional information collection burdens beyond what is already required by subpart C. NHTSA expects that the vehicles modified under these new exemptions would already be modified under existing exemptions in subpart C.

In the December 2020 SNPRM, NHTSA noted that the portion of this final rule pertaining to rental vehicles would include new reporting requirements or requests for information beyond what was already required by subpart C. The primary source of this recordkeeping burden was the proposed requirement that rental companies provide to a renter of a modified vehicle the information regarding the modifications and containing a copy of the label that must be placed in the vehicle. NHTSA presumed that this information would be included in the invoice provided to a renter and would result in an additional 1,333 burden-hours expended annually by rental companies to comply. However, as discussed earlier in this document, NHTSA has not included in this final rule the requirement that rental companies provide renters with this information separately from the label that must be placed in the occupant compartment.

The other information collection burden associated with the portion of the final rule pertaining to rental vehicles is the requirement that the rental company retain, for each applicable vehicle, a document listing the modifications made to the vehicle. In the December 2020 SNPRM, NHTSA concluded that there was no additional cost or time burden associated with compliance with this requirement because NHTSA believed it was normal and customary in the ordinary course of business to prepare and retain such documents. NHTSA has made changes to this final rule to ensure that this is the case. First, NHTSA has not included the proposed requirement that the renter be provided with a copy of the label that must be placed in the vehicle in response to comments. Commenters such as Enterprise and ACRA identified this requirement as potentially burdensome and not something kept in the ordinary course of business. Second, NHTSA has clarified that third parties may modify vehicles in accordance with this exemption. The records or receipts provided by these third parties to rental companies may be sufficient to satisfy the recordkeeping requirements.

Based on the foregoing, NHTSA believes that there will be no additional burdens beyond the ordinary course of business associated with collections of information subject to the Paperwork Reduction Act as part of this final rule.

A discussion of the new information collection requirements will be included in the 30-day notice announcing NHTSA's submission to OMB of a request for reinstatement of its previously approved collection for part 595.

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 send them to the NHTSA officials listed in the FOR FURTHER INFORMATION CONTACT section at the beginning of this document.

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.

Privacy Act

Anyone is able to search the electronic form of all submissions to any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

List of Subjects in 49 CFR Part 595

• Motor vehicle safety
• Motor vehicles

In consideration of the foregoing, NHTSA amends 49 CFR part 595 to read as follows:

PART 595—MAKE INOPERATIVE EXEMPTIONS

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

Authority: 49 U.S.C. 322, 30111, 30115, 30117, 30122 and 30166; delegation of authority at 49 CFR 1.95.

2. Revise § 595.3 to read as follows:

§ 595.3

Applicability.

This part applies to dealers, motor vehicle repair businesses, and rental companies.

3. Revise § 595.4 to read as follows:

§ 595.4

Definitions.

Covered rental vehicle is defined as it is in 49 U.S.C. 30102(a).

Dealer, defined in 49 U.S.C. 30102(a), is used in accordance with its statutory meaning.

Motor vehicle repair business is defined as it is in 49 U.S.C. 30122(a). 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.

Rental company is defined as it is in 49 U.S.C. 30102(a).

4. Amend § 595.7 by adding paragraphs (c)(18) and (19) to read as follows:

§ 595.7

Requirements for vehicle modifications to accommodate people with disabilities.

* * * * *

(c) * * *

(18) 49 CFR 571.216a, in any case in which:

(i) The disability necessitates raising the roof; and,

(ii) The vehicle, after modification, meets 49 CFR 571.220.

(19) S5.5.1, S5.5.2, S6.2.1, and S6.2.2 of 49 CFR 571.111, in any case in which a personal mobility device transporter is temporarily installed on a vehicle by way of a trailer hitch to carry a personal mobility device ( e.g., a wheelchair, powered wheelchair, or powered scooter) used by a driver or a passenger with a disability.

* * * * *

5. Add § 595.8 to read as follows:

§ 595.8

Modifications by rental companies.

(a) A rental company that modifies a motor vehicle temporarily in order to rent a covered rental vehicle to a person with a disability to operate, or ride as a passenger in, the motor vehicle is exempted from the “make inoperative” prohibition in 49 U.S.C. 30122 to the extent that those modifications make inoperative any part of a device or element of design installed on or in the motor vehicle in compliance with the Federal motor vehicle safety standards or portions thereof specified in paragraph (d) of this section. Modifications that would make inoperative devices or elements of design installed in compliance with any other Federal motor vehicle safety standards, or portions thereof, are not covered by the exemption in this paragraph (a).

(b) The exemption described in paragraph (a) of this section extends only for the period during which the covered rental vehicle is rented to a person with a disability and a reasonable period before and after the rental agreement in order to perform and reverse the modification described in paragraph (d) of this section.

(c) Any rental company that temporarily modifies a motor vehicle to enable a person with a disability to operate, or ride as a passenger in, the motor vehicle in such a manner as to make inoperative any part of a device or element of design installed on or in the motor vehicle in compliance with a Federal motor vehicle safety standard or portion thereof specified in paragraph (d) of this section must affix to the motor vehicle a label of the type and in the manner described in paragraph (e) of this section and must retain documents of the type and in the manner described in paragraph (f) of this section.

(d)(1) 49 CFR 571.208, in the case of the disablement of a knee bolster air bag to allow the installation of hand controls.

(2) [Reserved]

(e) The label required by paragraph (c) of this section shall:

(1) Be affixed within the passenger compartment of the vehicle;

(2) Be affixed in a location visible to the driver in a manner that does not obstruct the driver's view while operating the vehicle;

(3) Contain the statement “WARNING—To accommodate installation of hand controls, this rental vehicle has had its knee bolster air bag temporarily disabled;” and,

(4) Be removed when the modifications described in paragraph (d) of this section are reversed.

(f) The retained documents required by paragraph (c) of this section shall:

(1) Contain the name and physical address of the rental company and any entity making or reversing the temporary modifications on behalf of the rental company;

(2) Be kept in original or photocopied paper form, or retained electronically, by the rental company for a period of not less than five years after the conclusion of the rental agreement for which the modification is made;

(3) Be clearly identifiable as to the vehicle that has been modified; and

(4) Identify the devices or elements of design installed on or in a motor vehicle in compliance with a Federal motor vehicle safety standard made inoperative by the rental company.

Authority: 49 U.S.C. 322, 30111, 30115, 30117, 30122 and 30166; delegation of authority at 49 CFR 1.95.

Steven S. Cliff,

Deputy Administrator.

Footnotes

1.  NHTSA decided to combine the rulemakings into RIN 2127-AL67 for the convenience of readers and to simplify administrative procedures.

2.  The modifier must also 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 (kg) (220 pounds (lb)).

3.  This upgraded roof crush standard was adopted May 12, 2009 (74 FR 22348).

4.  S3.1(b).

5.  The term “vehicle modifier” refers to entities that make changes to a vehicle after the first purchase other than for resale. The terms “alterer” and “multistage manufacturer” refer to entities that makes changes to vehicles prior to the vehicle being sold to the end user ( i.e., prior to first purchase other than for resale). See 49 CFR parts 567 and 568.

6.  NMEDA also appeared to suggest that while roof suppliers could (in theory) design, build, and provide vehicle modifiers with roofs capable of meeting FMVSS No. 216a, this is not likely to happen because the business of its members alone is not sufficient incentive for a roof supplier to design and certify a roof that meets FMVSS No. 216a.

7.  NMEDA developed raised roof manufacturing guidelines which provide their members with roof structure designs and installation considerations such that the modified vehicle would meet the minimum load requirements in FMVSS No. 220. See NMEDA, Raised Roof Manufacturing Guidelines—Ford E series GM/Chevrolet Savana/Express Model years 2008-2009-2010, Revision 2, January 19, 2010.

8.  S5.1(a).

9.  S5.1(b).

10.  49 CFR 571.3.

11.  We noted in the SNPRM that NHTSA issued an interpretation letter explicitly stating that NHTSA would not consider an owner installing a PMD transport device that obstructs the backup camera to be a “make inoperative” violation. Letter to Richard A. Keller, III (May 3, 2019), available at https://isearch.nhtsa.gov/​files/​571.111%20--%20Camera%20Obstruction%20--%20Keller%20--%2018-0661.htm. However, it is NHTSA's understanding that PMDs transport devices are generally installed by dealers and motor vehicle repair businesses that specialize in modifications to provide mobility solutions to people with physical disabilities, both of which are subject to the make inoperative prohibition.

12.  This point was raised by Bruno in its comment, where Bruno states that requiring that a vehicle remain compliant with FMVSS No. 111 could significantly increase the cost of PMD transport devices, by as much as 25%-30%.

13.  Although the make inoperative prohibition does contain an exception for temporarily taking vehicles or equipment out of compliance, that limited exception only applies where the entity taking the vehicles out of compliance does not believe the vehicle or equipment will not be used when the device is inoperative. Obviously, a rental company would intend a rental vehicle that has a device or element temporarily “made inoperative” to accommodate a disability to be used while the device or element is inoperative.

14.  A copy of this letter has been included in the docket number identified at the beginning of this document.

15.  Enterprise did not provide an example other than the situation posed by installation of hand controls and its effect on knee bolster air bags.

16.  This document generally refers to the act of “disabling” the knee bolster air bag. For the purposes of the applicability of the “make inoperative” prohibition and exemption discussed in this document, the act of “disabling” the knee bolster air bag may also include removing the air bag. In other words, removal is one means of disabling the air bag.

17.   See 49 CFR 571.208, S15.3.5. NHTSA noted that it had made general inquiries with vehicle manufacturers through their trade association about whether knee bolster air bags are installed as part of an element of design installed in compliance with the motor vehicle safety standards, but their association did not provided information to resolve this question.

18.  A number of comments addressed broad issues not discussed in the rulemaking. For example, two anonymous commenters raised issues related to the safety of deaf drivers. An individual raised the issue of the availability of left foot drive rental cars. Another expressed a desire for vehicles that are accessible with ramps and low steps for people who are mobility impaired. An individual suggested that induction loops for car rentals be mandated so people with hearing loss can receive effective communication when they rent a car. An individual supported the rulemaking, but believed that additional steps should be taken such as adaptive equipment for deaf and the hard of hearing, and that people with disabilities should be able to rent a car for a spontaneous trip if they desire to do so without waiting for a modification to be completed. An anonymous commenter stated that more must be done because it costs five times more to rent an accessible vehicle than a generic vehicle. Another stated that NHTSA should work with automobile manufacturers to make modifications more financially accessible. These comments provided helpful information to NHTSA regarding issues related to accessibility. To the extent the comments are beyond the scope of this rulemaking, they are not further discussed in this document.

19.  This list of entities is not intended as an endorsement of any entity but is solely provided for informational purposes.

20.  However, records of modifications that are kept by rental companies may be subject to disclosure to NHTSA in the context of a specific investigation or enforcement action.

21.  It is unclear to us, however, how a master agreement would apply to when the customer is renting a vehicle that has been modified under the exemption. Prior to the customer arriving, the rental company would be required to modify a specific vehicle by disabling or removing the knee bolster air bag, installing hand controls and placing the consumer notification information in the passenger compartment. NHTSA believes that such a modified vehicle would be removed from any general circulation until the customer requesting the modification arrives to rent the vehicle.

22.   See, e.g., N.J. Admin. 16:53-1.3(f) (“Roof modifications shall meet the requirements of the roof crush resistance standard set forth in Federal Motor Vehicle Safety Standard No. 216 (49 CFR 571.216), incorporated herein by reference, as amended and supplemented.”).