[Federal Register Volume 67, Number 107 (Tuesday, June 4, 2002)]
[Rules and Regulations]
[Pages 38423-38426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13968]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 595

[Docket No. NHTSA-01-8667]
RIN 2127-AI80


Exemption From the Make Inoperative Prohibition

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

ACTION: Denial of petitions for reconsideration.

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[[Page 38424]]

SUMMARY: On February 27, 2001, NHTSA issued a final rule establishing a 
limited exemption from a statutory provision that prohibits specified 
types of commercial entities from either removing safety equipment or 
features installed on motor vehicles pursuant to the Federal motor 
vehicle safety standards or altering the equipment or features so as to 
adversely affect their performance. The exemption allows repair 
businesses to modify certain types of Federally-required safety 
equipment and features when passenger motor vehicles are modified for 
use by persons with disabilities.
    NHTSA received two petitions for reconsideration of the final rule. 
The petitioners requested that the agency specify that obtaining a 
prescription from a certified driver rehabilitation specialist is a 
necessary pre-condition to making vehicle modifications under the 
exemption. The petitioners also requested that the agency remove 
several statements from the preamble of the final rule. The agency is 
denying both requests.

FOR FURTHER INFORMATION CONTACT: For technical and policy issues, you 
may contact Gayle Dalrymple, Office of Crash Avoidance Standards 
(Telephone: 202-366-5559) (Fax: 202-366-4329).
    For legal issues, you may contact Dion Casey, Office of Chief 
Counsel (Telephone: 202-366-2992) (Fax: 202-366-3820).
    You may send mail to these officials at the National Highway 
Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 
20590.

SUPPLEMENTARY INFORMATION:

I. Background

    On February 27, 2001, NHTSA issued a final rule establishing a 
limited exemption from a statutory prohibition against specified types 
of commercial entities from either removing safety equipment or 
features installed on motor vehicles pursuant to the Federal motor 
vehicle safety standards (FMVSS) or altering the equipment or features 
so as to adversely affect their performance. (66 FR 12638, Docket No. 
NHTSA-01-8667). The exemption allows repair businesses to alter or 
remove certain types of Federally-required safety equipment and 
features when they modify passenger motor vehicles for use by persons 
with disabilities. NHTSA established this exemption for the reasons 
explained below.
    Federal law requires vehicle manufacturers to certify that their 
vehicles comply with all applicable Federal Motor Vehicle Safety 
Standards (FMVSSs). (49 U.S.C. 30112). Vehicles must continue to comply 
until the first retail sale. Federal law also prohibits manufacturers, 
distributors, dealers, and repair businesses from knowingly making 
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 interpreted the term ``make inoperative'' to mean any 
action that removes or disables safety equipment or features installed 
to comply with an applicable FMVSS, or that degrades the performance of 
such equipment or features. Violations of this provision are punishable 
by civil penalties of up to $5,000 per violation.
    Individuals with disabilities often are unable to drive or ride in 
a passenger motor vehicle unless it has been specially modified to 
accommodate their particular disability. Some modifications, such as 
the installation of mechanical hand controls or a left foot 
accelerator, are relatively simple. Others, such as the installation of 
a joystick that controls steering, acceleration, and braking, can be 
complex. In some cases, it is necessary to alter or even remove 
Federally-required safety equipment to make those modifications. 
However, if a manufacturer, distributor, dealer, or repair business 
performed these modifications, they would violate the make inoperative 
provision.\1\
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    \1\ The make inoperative provision does not apply to vehicle 
owners.
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    NHTSA has the authority to issue regulations that exempt regulated 
entities from the make inoperative provision. (49 U.S.C. 30122(c)(1)). 
Such regulations may specify which equipment and features may be made 
inoperative, as well as the circumstances under which they may be made 
so. Before the February 27, 2001 final rule, NHTSA had issued only one 
such regulation.\2\ In all other instances, the agency had addressed 
the need to remove, disconnect, or otherwise alter mandatory safety 
equipment by issuing a separate letter to each individual requestor 
assuring that the agency would not seek enforcement action against the 
business modifying the vehicle. The vast majority of those instances 
involved persons seeking modifications to accommodate persons with 
disabilities.
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    \2\ That regulation permits the installation of retrofit air bag 
on-off switches under certain circumstances.
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    NHTSA believed that the policy of handling requests for permission 
to make modifications on an individual, case-by-case basis did not 
serve the best interests of the driving public, vehicle modifiers, or 
the agency. NHTSA estimated that close to 2,300 vehicles are modified 
for persons with disabilities each year, and that this number would 
increase as the population aged and greater numbers of persons with 
disabilities pursued employment, travel, and recreational opportunities 
presented by the passage of the Americans With Disabilities Act 
(ADA).\3\
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    \3\ 42 U.S.C. 12101, et seq.
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    NHTSA noted that agency resources for evaluating individual 
modification requests are limited. Thus, a person with a disability 
could wait a significant period of time before the agency issued a 
letter stating its intent not to enforce the make inoperative provision 
for the vehicle modifications affected. Moreover, the unwieldiness of 
the case-by-case approach caused many vehicle modifiers to bypass it. 
Consequently, as the agency noted, only a handful of the vehicles 
modified annually are covered by a letter from NHTSA granting 
permission to make federally-required safety equipment inoperative. 
Most are made without the benefit of any guidance about the 
opportunities for making modifications without sacrificing safety.
    As a result, NHTSA decided to replace the case-by-case approach 
with a rule exempting certain vehicle modifications from the make 
inoperative provision. The exemptions are listed in 49 CFR part 595, 
subpart C.

II. Petitions for Reconsideration and NHTSA's Responses

    NHTSA received petitions for reconsideration of the final rule from 
the Association for Driver Rehabilitation Specialists (ADED) and 
Louisiana Tech University.

A. Prescriptions

    In the final rule, the agency noted that a trained professional 
often evaluates the driving capabilities of a person with a disability 
and then writes a prescription detailing needed vehicle modifications. 
NHTSA considered requiring

vehicle modifiers to keep a record of vehicle and equipment 
prescriptions to induce the modifiers to take care that 
modifications for persons with disabilities were completed in a 
manner that truly met the particular individual's needs without any 
unnecessary modifications and to discourage modifiers from 
circumventing the requirements of the various FMVSSs.

(66 FR at 12651).

    NHTSA reviewed the comments and decided not to require such

[[Page 38425]]

prescriptions as a condition of the exemption, stating:

[W]e conclude that it is unlikely that persons without disabilities 
will try to take advantage of the exemptions in today's final rule 
because they are so narrowly written and because of the expense of 
such modifications. Additionally, given the current practice in the 
industry not to require or rely on prescriptions for relatively 
simple and inexpensive modifications, we see no need to add an 
additional burden to an already time-consuming and expensive 
process.

(66 FR at 12652).

    Both ADED and Louisiana Tech requested that the agency reconsider 
its decision not to require prescriptions as a condition of the 
exemption. Louisiana Tech claimed that prescriptions are necessary for 
several reasons. First, prescriptions should be issued by ``certified 
driver rehabilitation specialists'' who are trained in both 
occupational therapy and traffic safety and are certified by the ADED. 
Second, while some adaptive equipment may be simple to install, there 
are many variables that affect an individual's ability to operate the 
equipment.\4\ Louisiana Tech stated, ``To view the provision of these 
devices only from the view of the physical functioning necessary for 
operation is short sighted and compromises the individual's and the 
public safety.'' Third, according to Louisiana Tech, allowing the 
disabled person or an equipment dealer to determine the types of 
modifications that are appropriate is a dangerous practice. Fourth, 
Louisiana Tech stated that the process is not necessarily expensive or 
time-consuming, since many individuals need relatively simple adaptive 
equipment and there are third party funding sources available.
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    \4\ ``For example,'' Louisiana Tech stated, ``a left foot 
accelerator is a `simple' device [sic] to install and operate. 
However, these devices are usually used by individuals with 
amputation or [who] have had head injuries or strokes. An assessment 
of these individuals is necessary to determine (1) if they can 
operate the vehicle safely using the device, and (2) if they have 
the reaction time, cognitive ability, [and] visual-perception skills 
necessary to perform the driving task safely.''
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    Both ADED and Louisiana Tech also requested that NHTSA require 
prescriptions for vehicle modifications be written by a ``certified 
driver rehabilitation specialist, or equivalent.'' The petitioners 
claimed that the training undergone by certified driver rehabilitation 
specialists is essential for conducting the clinical aspects of a 
driver assessment and determining a driver's potential for operating a 
motor vehicle safely.
    NHTSA understands the petitioners' concerns. However, NHTSA does 
not have the authority to require individuals with disabilities to 
obtain prescriptions before they have their vehicles modified. The 
agency does have the authority to condition a repair business's 
eligibility under the limited exemption to modify a vehicle upon its 
receipt and keeping on file of a prescription for the modifications to 
that vehicle. However, NHTSA decided not to exercise this authority for 
the reasons explained below.
    NHTSA does not have the qualifications, nor the authority, to judge 
who is qualified to conduct a driver evaluation and if there are 
circumstances under which no evaluation is needed. The basis for our 
considering a requirement for modifiers to collect prescriptions from 
clients before making modifications was to ensure that Federal motor 
vehicle safety standards would not be circumvented unnecessarily.
    The petitioners, on the other hand, want to ensure that drivers 
have the advantage of a physical and cognitive assessment before 
vehicle modifications are made so that the equipment is correct for 
their abilities and safe for them to operate. They are also concerned 
that only safe, able drivers are permitted to drive. NHTSA agrees that 
the petitioners' goals are laudable. However, those goals are beyond 
this agency's authority to regulate. Vehicle inspection and driver 
evaluation, training, and licensing are the regulatory purview of the 
States.
    While NHTSA can place conditions on exemptions from the make 
inoperative prohibition, the agency cannot directly require drivers to 
obtain prescriptions in order to ensure that unsafe drivers do not 
receive vehicle modifications and are therefore prevented from driving, 
or to ensure that drivers receive only modifications they are capable 
of using. Such actions are the responsibility of the individual States, 
because they regulate vehicle registration and driver licensing. NHTSA 
regulates motor vehicle manufacture and modification. In fact, NHTSA's 
authority over the modification of vehicles after the first retail sale 
is limited to those modifications, made by entities for hire, that 
affect the vehicle's certification to the Federal motor vehicle safety 
standards.
    NHTSA decided not to adopt a requirement under which modifiers 
would have to obtain prescriptions prior to making vehicle 
modifications and to keep those prescriptions on file with records of 
the modifications made because the agency concluded that such a 
requirement would be an unnecessary and time-consuming burden on the 
modifier and the consumer. NHTSA did not conclude that driver 
evaluations for modifications are unnecessary. NHTSA believes that 
driver evaluations are an essential part in the vehicle modification 
process. The agency simply concluded that a Federal requirement for 
vehicle modifiers to obtain and keep records of prescriptions for 
vehicle modifications is unnecessary. The agency believes that 
requiring prescriptions for vehicle modification is within the 
regulatory purview of the individual States, and encourages the States 
to promulgate regulations addressing this issue.
    NHTSA also concluded that the agency is not in a position to 
determine who is qualified to write prescriptions for vehicle 
modifications. The petitioners requested that NHTSA change the final 
rule to require that a prescription be written by a ``certified driver 
rehabilitation specialist or equivalent.'' A certified driver 
rehabilitation specialist (CDRS) is a person who has fulfilled the 
requirements for that title as administered by the Association for 
Driver Rehabilitation Specialists. The agency believes that currently 
there are fewer than 300 CDRSs in the Unites States, and there may be 
several States in which no CDRS practices.
    In addition, the agency cannot realistically determine whether a 
person has skills ``equivalent'' to a CDRS. The agency would have to 
review the credentials of each person making evaluations and determine 
if he or she were qualified to do so. Such an action is tantamount to 
licensing individuals to practice driver evaluation. NHTSA believes 
that the agency has neither the authority nor the qualifications to 
make such determinations.
    Accordingly, the agency is denying the petitioners' request for a 
Federal requirement that would make it necessary for individuals to 
obtain prescriptions for vehicle modifications and provide them to 
vehicle modifiers. Since NHTSA is denying the petitioners' request to 
require prescriptions, the petitioners' request that prescriptions be 
written only by a certified driver rehabilitation specialist is moot.

B. Preamble Language

    Both ADED and Louisiana Tech expressed concerns about the language 
that the agency used in the section of the preamble explaining the 
agency's decision not to require prescriptions. The specific language 
they objected to is detailed below. The petitioners requested that the 
agency remove these

[[Page 38426]]

statements from the preamble to the final rule.
    At 66 FR 12652, the agency summarized the comments of those opposed 
to mandatory prescriptions. These commentors said that requiring 
prescriptions would unnecessarily increase the burden on the disabled 
community, increasing costs and limiting access to needed vehicle 
modifications (particularly in rural areas). Also at 66 FR 12652, the 
agency stated, ``[G]iven the current practice in the industry not to 
require or rely on prescriptions for relatively simple and inexpensive 
modifications, we see no need to add an additional burden to an already 
time-consuming and expensive process.''
    ADED called these statements ``erroneous and irresponsible.'' The 
petitioner stated that this language ``is in direct conflict with the 
Rehab Act, which requires states to not limit access or delay services 
to their consumers.'' (Emphasis in original). ADED claimed that 
Vocational Rehabilitation coordinators are already viewing this 
language as detrimental to the driver evaluation process. ADED added 
that there are inadequate data to suggest that the evaluation process 
constitutes a delay to consumers.
    Louisiana Tech also objected to the second statement. The 
petitioner claimed that the evaluation process is not necessarily time-
consuming or expensive since many individuals have relatively simple 
adaptive needs, and there are third party funding sources available to 
offset the cost of evaluations.
    At 66 FR 12652, the agency referred to a comment made by the 
American Occupational Therapy Association:

    The American Occupational Therapy Association advocated that 
prescriptions be issued by either occupational therapists or 
certified driver rehabilitation specialists. It maintained that 
occupational therapists are adequately qualified to make driver 
evaluations based on their specialized training regardless of 
whether they are certified driver rehabilitation specialists.

    Both ADED and Louisiana Tech objected to this statement. Louisiana 
Tech stated that neither occupational therapists nor traffic safety 
professionals are adequately trained to perform driver assessments. 
ADED claimed that occupational therapists are not trained in adaptive 
driving technology application or on-road assessment, which are 
necessary to perform driver evaluations.
    At 66 FR 12652, the agency referred to comments made by Access 
Wheels, a vehicle modifier:

    Access Wheels, a modifier, commented that prescriptions are 
rarely used and then only to justify the payment of the modification 
costs by a third party. It stated also that the vast majority of 
modifications involve relative simple, and less expensive vehicle 
alterations, and thus are modifications for which professional 
evaluations of capabilities are unnecessary.

    ADED objected to the first sentence. The petitioner stated, 
``Prescriptions are commonplace in the field of modifications and 
driver rehabilitation'' and are used for both simple and complex drier 
adaptations.
    Both petitioners objected to the second sentence. Louisiana Tech 
claimed, ``While there may be some adaptive equipment that appears to 
be `simple' to operate, there are many variables that go into an 
individual's ability to either operate that equipment, perform the 
driving task or both.'' ADED stated, ``Some of the most difficult 
evaluations involve simple equipment, because issues revolve around the 
driver candidate's performance and skill set to use even simple 
devices.''
    Finally, ADED stated that the section of the preamble discussing 
prescriptions ``appears to recommend that prescriptions are not only 
not required, but unnecessary.'' ADED noted that this conflicts with a 
brochure written jointly by ADED, NHTSA, and the National Mobility 
Equipment Dealers Association (NMEDA) entitled ``Adapting Motor 
Vehicles for People With Disabilities.'' \5\ ADED stated that the 
brochure devotes a significant amount of text to the evaluation 
process.
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    \5\ DOT HS 809 014, December 1999.
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    A final rule, which consists of a preamble and regulatory text, is 
a historical document that itself cannot be changed. However, the 
regulatory text in a final rule can be amended in a subsequent final 
rule. Further, any misstatements and errors in the preamble of a final 
rule can be corrected in a subsequent notice.
    NHTSA notes that several of the statements to which the petitioners 
objected are not statements made by the agency, but statements in the 
comments of various respondents on the proposed rule. The agency is 
required to consider all comments, whether they represent the same or 
divergent points of view. To that end, in the final rule preamble, the 
agency summarized the comments of proponents and opponents of 
conditioning the exemption upon the obtaining of prescriptions. The 
agency specifically and correctly attributed those comments to the 
individuals or groups who made them.
    As to the statements made by NHTSA in the preamble to the final 
rule, the agency believes that the petitioners have misunderstood the 
agency's position on driver evaluation prior to the modification of a 
vehicle. NHTSA does believe that driver evaluation is a very important 
element to a successful vehicle modification for persons with 
disabilities, and that evaluations should be performed whenever 
possible. However, the agency believes that requiring persons with 
disabilities to obtain prescriptions before having their vehicle 
modified is within the regulatory purview of the States, which regulate 
driver evaluation, training, and licensing, and vehicle inspection. The 
agency does not wish to establish such a requirement indirectly by 
conditioning a vehicle modifier's ability to take advantage of the 
limited exemption upon the modifier's obtaining a prescription from the 
person requesting the modifications. The agency also believes it is not 
qualified to judge who should conduct a driver evaluation and whether 
there are circumstances under which no evaluation is needed.
    Finally, NHTSA addressed above the following statement made by the 
agency in the final rule preamble: ``[G]iven the current practice in 
the industry not to require or rely on prescriptions for relatively 
simple and inexpensive modifications, we see no need to add an 
additional burden to an already time-consuming and expensive process.'' 
As noted above, the agency did not conclude that prescriptions for 
modifications are not beneficial. The agency believes that driver 
evaluations are an essential part in the vehicle modification process. 
The agency simply concluded that, for NHTSA's purposes, a new Federal 
requirement for vehicle modifiers to obtain such prescriptions from 
persons seeking modifications and keep records of them would be an 
unnecessary and time consuming burden on the modifier and the consumer.
    For these reasons, the agency cannot remove these statements from 
the preamble of the final rule and is denying the petitioners' request 
to do so.

III. Conclusion

    For the reasons stated above, the agency is denying the petitions 
for reconsideration.

    Issued: May 29, 2002.
Jeffrey W. Runge,
Administrator.
[FR Doc. 02-13968 Filed 6-3-02; 8:45 am]
BILLING CODE 4910-59-P