2010-24344. Make Inoperative Exemptions; Vehicle Modifications To Accommodate People With Disabilities, Side Impact Protection

AGENCY:

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

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

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

DATES:

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

ADDRESSES:

You may submit comments to the docket number identified in the heading of this document by any of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.
• Mail: Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
• Hand Delivery or Courier: 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
• Fax: [phone].

Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the SUPPLEMENTARY INFORMATION section of this document. Note that all comments received will be posted without change to http://www.regulations.gov,, including any personal information provided. Please see the Privacy Act heading below.

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

For access to the docket to read background documents or comments received, go to http://www.regulations.gov or the street address listed above. Follow the online instructions for accessing the dockets.

FOR FURTHER INFORMATION CONTACT:

Shelley Bolbrugge, NHTSA Office of Crash Avoidance Standards, NVS-123 (telephone [phone]) (fax [phone]), or Deirdre Fujita, NHTSA Office of Chief Counsel, NCC-112 (telephone [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:

Background

The National Traffic and Motor Vehicle Safety Act (49 U.S.C. Chapter 301) (“Safety Act”) and NHTSA's regulations require vehicle manufacturers to certify that their vehicles comply with all applicable Federal motor vehicle safety standards (FMVSSs) (see 49 U.S.C. 30112; 49 CFR part 567). A vehicle manufacturer, distributor, dealer, or repair business generally may not knowingly make inoperative any part of a device or element of design installed in or on a motor vehicle in compliance with an applicable FMVSS (see 49 U.S.C. 30122). NHTSA has the authority to issue regulations that exempt regulated entities from the “make inoperative” provision (49 U.S.C. 30122(c)). The agency has used that authority to promulgate 49 CFR part 595, subpart C, “Make Inoperative Exemptions, Vehicle Modifications to Accommodate People with Disabilities.”

49 CFR part 595 subpart C sets forth exemptions from the make inoperative provision to permit, under limited circumstances, vehicle modifications that take the vehicles out of compliance with certain FMVSSs when the vehicles are modified to be used by persons with disabilities after the first retail sale of the vehicle for purposes other than resale. The regulation was promulgated to facilitate the modification of motor vehicles so that persons with disabilities can drive or ride in them. The regulation involves information and disclosure requirements and limits the extent of modifications that may be made.

Under the regulation, a motor vehicle repair business that modifies a vehicle to enable a person with a disability to operate or ride as a passenger in the motor vehicle and that avails itself of the exemption provided by 49 CFR part 595 subpart C must register itself with NHTSA. The modifier is exempted from the make inoperative provision of the Safety Act, but only to the extent that the modifications affect the vehicle's compliance with the FMVSSs specified in 49 CFR 595.7(c) and only to the extent specified in 595.7(c). Modifications that would take the vehicle out of compliance with any other FMVSS, or with an FMVSS listed in 595.7(c) but in a manner not specified in that paragraph are not exempted by the regulation. The modifier must affix a permanent label to the vehicle identifying itself as the modifier and the vehicle as no longer complying with all FMVSS in effect at original manufacture, and must provide and retain a document listing the FMVSSs with which the vehicle no longer complies and indicating any reduction in the load carrying capacity of the vehicle of more than 100 kilograms (220 pounds).

Current Exemption in Part 595 Regarding Side Impact Protection

Currently, 49 CFR part 595 subpart C sets forth an exemption from “S5 of 49 CFR 571.214 [FMVSS No. 214] for the designated seating position modified, in any cases in which the restraint system and/or seat at that position must be changed to accommodate a person with a disability.” 49 CFR 595.7(c)(15).

The reference to S5 of FMVSS No. 214 is outdated. S5 had referred to the dynamic performance requirements that vehicles must meet when subjected to a moving deformable barrier (MDB) test. The MDB test simulates an intersection collision with one vehicle being struck in the side by another vehicle. In 2007, NHTSA upgraded FMVSS No. 214 and reorganized the standard.^[1] The MDB test was redesignated as S7 and upgraded with the adoption of new technically-advanced test dummies representing a 5th percentile adult female and a 50th percentile adult male and enhanced injury criteria.

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

Petition for Rulemaking

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

to provide safe access to private motor vehicles for mobility-impaired drivers or passengers, semi-ambulatory or transferring from a wheelchair.

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

The petitioner believes that this method of vehicle entry and exit is safer than using a platform lift to enter a vehicle or entering and exiting unassisted. Bruno states in its petition that: “* * * torso side air bags are commonly installed in the outboard side of the OEM seat backrest” and would be removed when installing a TAS system requiring the exemption. Bruno seeks a part 595 exemption similar to the existing exemption from the MDB test. Additionally, Bruno seeks to expand part 595 to allow an exemption from the new S9 Vehicle-To-Pole test requirements.

Response to Petition

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

MDB Test Requirements

The September 11, 2007 FMVSS No. 214 final rule redesignated the MDB requirements as S7. Because § 595.7(c)(15)'s reference to S5 is no longer valid, today's NPRM would change that paragraph's reference from S5 to S7.

We believe that there is a continuing need for the exemption from the MDB requirements. The original make inoperative exemption for the MDB requirements was granted because NHTSA was aware of drivers or passengers who needed to have a modifier change the restraint system or vehicle seat to accommodate a disability (66 FR 12637). At the time of the final rule we allowed the exemption because we determined that a change in the restraint system or seat location could affect the measurement of the injury criteria specified in the standard. The upgraded FMVSS No. 214 incorporates enhanced MDB requirements that could likewise be affected by an alteration of the restraint system and/or seat at the designated seating position being modified.

The enhanced MDB requirements will improve head, chest, and pelvic protection in side crashes. Data from tests conducted pursuant to the September 2007 FMVSS No. 214 final rule showed that many vehicles will depend on side impact air bag technology to meet all of the injury criteria of the standard when tested with the 5th percentile female and 50th percentile male dummies. If the side air bags in vehicles designed to the new requirements were removed, modifiers will take the vehicles out of compliance with the MDB test.

The agency also tentatively believes that the compliance with the injury criteria for the MDB test could be affected even if vehicle seats with seat-mounted air bags are not removed but are instead changed in a less significant way to accommodate a person with a disability (e.g., an OEM seat is mounted on a 6-way power seat base). This is because there could be countermeasures that were designed to protect the occupant at the OEM seating position that may no longer be as protective at the position at which the seat is placed after the modification.

Pole Test Requirements

We propose to expand § 595.7(c)(15) to include an exemption for modifications that affect the vehicle's compliance with the pole test requirements of FMVSS No. 214 (set forth in S9 of the standard) in any case in which the restraint system and/or seat at that position must be changed to accommodate a person with a disability. The pole test applies to the driver and right front seat passenger seating positions. When NHTSA issued the final rule upgrading FMVSS No. 214, the agency believed that the upgraded requirements will “lead to the installation of new technologies, such as side curtain air bags and torso side air bags.” The countermeasure most likely to be used in the foreseeable future to meet the pole test requirements is side air bag technology incorporated in the vehicle's roof rail (side air bag curtain), door, and/or the vehicle seat.

In our NPRM preceding the make inoperative exemption final rule (63 FR 51547, September 28, 1998), NHTSA stated the following when addressing frontal air bag technology. The agency explained that, when a vehicle is modified to accommodate a person with a disability, typically the nature of the work that is done requires the air bag or some part of the crash sensing system connected to it to be removed. The make inoperative exemption was needed when the OEM-supplied seat had to be removed or work done to disengage or possibly affect the performance of the air bag system.

These same considerations apply to the side air bag systems. Removing an OEM seat that has a side air bag and replacing it with an aftermarket seat that does not would likely make inoperative the system installed in compliance with FMVSS No. 214. Making some other substantive modification of the OEM seat or restraint system to accommodate a person with a disability could also affect the measurement of the injury criteria specified in the standard. We tentatively believe that an exemption from the make inoperative provision with regard to the pole test in FMVSS No. 214 is needed to permit modification of the vehicle's seating system to accommodate a person with a disability. This is comparable to the position taken by NHTSA with regard to the make inoperative exemption for frontal air bags required by FMVSS No. 208. See 595.7(c)(14).

However, we recognize that the petitioner's request presents a trade-off of substantial side impact protection in exchange for continued mobility for people with disabilities and some enhancement in easier and possibly safer vehicle entry and exit.^[2] Comments are requested on the proposed exemption. To achieve the maximum safety benefit of the regulations, it is our desire to provide the narrowest exemption possible to accommodate the needs of disabled persons, without unreasonably expanding its use to situations where the benefits of the exemption may be outweighed by the drawbacks of nonconformance with the safety standard. We seek comment on whether an exemption is needed to make inoperative side curtain and torso air bags that are not located in the seat, i.e., side air bags that are found, for example, in door panels, pillars, or roof headliners. Could the vehicle seating system be removed or modified without negatively affecting the crash sensing system for door-mounted side air bags or roof-mounted window curtains? NHTSA would like to know if keeping air bags and activation systems that are not contained in the OEM seating systems would be compatible with adaptive seating currently in use. Would these modifications affect another designated seating position? What types of modifications would be necessary?

Dates

We are limiting the comment period to 30 days because the upgraded FMVSS No. 214 requirements have begun phasing in September 1, 2010. NHTSA would like to consider the comments and complete this response to the petition as quickly as possible.

In view of the September 1, 2010 phase-in date for the FMVSS No. 214 amendments, and because this rulemaking would remove a restriction on the modification of vehicles for persons with disabilities, if a final rule is issued NHTSA anticipates making the amendment effective in less than 180 days following publication of the rule.

Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

NHTSA has considered the impact of this rulemaking action under E.O. 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” It is not considered to be significant under E.O. 12866 or the Department's Regulatory Policies and Procedures (44 FR 11034; February 26, 1979). NHTSA has determined that the effects are so minor that a regulatory evaluation is not needed to support the subject rulemaking. This rulemaking would impose no costs on the vehicle modification industry. If anything, there could be a cost savings due to the proposed exemptions.

Modifying a vehicle in a way that makes inoperative the performance of side impact air bags could be detrimental for the occupants of the vehicle in a side crash. However, the number of vehicles potentially modified would be very few in number. This is essentially the trade-off that NHTSA is faced with when increasing mobility for persons with disabilities: When necessary vehicle modifications are made, some safety may unavoidably be lost to gain personal mobility. We have requested comments on how the agency may make the exemption as narrow as reasonably possible.

Regulatory Flexibility Act

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

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

Executive Order 13132 (Federalism)

NHTSA has examined today's proposed rule pursuant to Executive Order 13132 (64 FR 43255; Aug. 10, 1999) and concluded that no additional consultation with States, local governments, or their representatives is mandated beyond the rulemaking process. The agency has concluded that the proposed rule does not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The proposal does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed rule would not impose any requirements on anyone. This proposal would lessen a burden on modifiers.

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

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

49 U.S.C. 30103(b)(1). This provision is not relevant to this rulemaking as it does not involve the establishing, amending or revoking or a Federal motor vehicle safety standard.

Second, the Supreme Court has recognized the possibility, in some instances, of implied preemption of State requirements imposed on motor vehicle manufacturers, including sanctions imposed by State tort law. We are unaware of any State law or action that would prohibit the actions that this proposed rule would permit.

Civil Justice Reform

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

Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this proposed rule is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.

National Technology Transfer and Advancement Act

Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.” Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards. No voluntary standards exist regarding this proposed exemption for modification of vehicles to accommodate persons with disabilities.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). This proposed exemption would not result in expenditures by State, local or tribal governments, in the aggregate, or by the private sector in excess of $100 million annually.

National Environmental Policy Act

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

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This proposal does not contain new reporting requirements or requests for information beyond what is already required by 49 CFR Part 595 Subpart C.

Plain Language

Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

• Have we organized the material to suit the public's needs?
• Are the requirements in the rule clearly stated?
• Does the rule contain technical language or jargon that isn't clear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rule easier to understand?

If you have any responses to these questions, please include them in your comments on this proposal.

Regulation Identifier Number (RIN)

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

List of Subjects in 49 CFR Part 595

• Motor vehicle safety
• Motor vehicles

In consideration of the foregoing, we propose to amend 49 CFR part 595 to read as follows:

PART 595—MAKE INOPERATIVE EXEMPTIONS

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

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

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

§ 595.7

Requirements for vehicle modifications to accommodate people with disabilities.

* * * * *

(c)

* * * * *

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

* * * * *

Issued on: September 23, 2010.

Joseph S. Carra,

Acting Associate Administrator for Rulemaking.

Footnotes

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

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