[Federal Register Volume 76, Number 122 (Friday, June 24, 2011)]
[Rules and Regulations]
[Pages 37025-37028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15765]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 595

[Docket No. NHTSA-2011-0079]
RIN 2127-AK77


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: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends regulations concerning vehicle 
modifications which accommodate people with disabilities to update and 
expand a reference in an exemption relating to the Federal motor 
vehicle safety standard for side impact protection. The expanded 
exemption facilitates the mobility of drivers and passengers with 
disabilities.

DATES: Effective Date: August 23, 2011. As this final rule relieves the 
regulatory burdens on certain entities and involves Federal Motor 
Vehicle Safety Standard (FMVSS) requirements that have recently become 
effective, the agency believes that the above effective date is 
appropriate.
    Petitions for Reconsideration: Petitions for reconsideration of 
this final rule must be received by the agency by August 8, 2011.

ADDRESSES: If you wish to petition for reconsideration of this rule, 
you should refer in your petition to the docket number of this document 
and submit your petition to: Administrator, National Highway Traffic 
Safety Administration, 1200 New Jersey Avenue, SE., West Building, 
Washington, DC 20590. The petition will be placed in the docket. Anyone 
is able to search the electronic form of all documents received into 
any of our dockets by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review DOT's complete Privacy Act 
Statement in the Federal Register published on April 11, 2000 (Volume 
65, Number 70; Pages 19477-78).
    For access to the docket to read background documents or comments 
received, go to http://www.regulations.gov and follow the online 
instructions for accessing the docket. You may also visit DOT's Docket 
Management Facility, 1200 New Jersey Avenue, SE., West Building Ground 
Floor, Room W12-140, Washington, DC 20590-0001 for access to the 
docket.

FOR FURTHER INFORMATION CONTACT: Gayle Dalrymple, NHTSA Office of Crash 
Avoidance Standards, NVS-123, telephone (202-366-5559), fax (202-493-
2739), or Jesse Chang, NHTSA Office of Chief Counsel, NCC-112, 
telephone (202-366-2992), fax (202-366-3820). The mailing address for 
these officials is: National Highway Traffic Safety Administration, 
1200 New Jersey Avenue, SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: This final rule amends 49 CFR Part 595, 
Subpart C, ``Make Inoperative Exemptions, Vehicle Modifications to 
Accommodate People With Disabilities,'' to update and expand a 
reference in an exemption relating to FMVSS No. 214. The notice of 
proposed rulemaking (NPRM) on which this final rule is based was 
published on September 28, 2010 (75 FR 59674) (Docket No. NHTSA-2010-
0133).

Regulatory Background

    The National Traffic and Motor Vehicle Safety Act (49 U.S.C. 
Chapter 301) (``Safety Act'') and NHTSA's regulations require vehicle 
manufacturers to certify that their vehicles comply with all applicable 
Federal motor vehicle safety standards (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).

2007 Amendments to FMVSS 214 and Effects on Exemption in Part 595 
Subpart C

    Before today's final rule, 49 CFR Part 595 Subpart C set 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). However, 
the reference to S5 of FMVSS No. 214 became outdated as a result of a 
2007 amendment to Standard 214. Prior to 2007, S5 had referred to the 
dynamic performance requirements that vehicles must meet when subjected 
to a

[[Page 37026]]

moving deformable barrier (MDB) test.\1\ In 2007, NHTSA upgraded FMVSS 
No. 214 and reorganized the standard.\2\ The MDB test was redesignated 
from S5 to S7 and was 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.
---------------------------------------------------------------------------

    \1\ The MDB test simulates an intersection collision with one 
vehicle being struck in the side by another vehicle.
    \2\ 72 FR 51908, September 11, 2007; response to petitions for 
reconsideration, 73 FR 32473, June 9, 2003; 75 FR 12123, March 15, 
2010.
---------------------------------------------------------------------------

    In addition, the 2007 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 are 
meeting 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 on 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 Sec.  595.7. Bruno 
manufactures a product line called ``Turning Automotive Seating (TAS)'' 
which replaces the seat installed by the original equipment 
manufacturer (OEM). Bruno believes that their product affords disabled 
persons a safer method of vehicle entry and exit when compared to using 
a platform lift or entering and exiting unassisted. However, in their 
petition, Bruno expressed concern 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. For these reasons, Bruno 
sought in their petition to update Part 595 to maintain a similar 
exemption from the MDB test (to reflect the new designation under S7), 
and to expand Part 595 to allow an exemption from the new S9 vehicle-
to-pole test requirements.

NPRM and Response

    On September 28, 2010, NHTSA published an NPRM in the Federal 
Register. In that document, we proposed to amend Sec.  595.7(c)(15) to 
reference the upgraded MDB requirements and to expand the exemption to 
include the pole test requirements. In support of the NPRM, the agency 
expressed the belief that, due to the nature of the modifications, 
there exists a continuing need for exemption from the MDB requirements 
and that there is a need to exempt vehicles modified to accommodate 
disabled persons from the pole test requirements.
    We recognized in the NPRM that the proposed exemption 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.\3\ Thus, we requested 
comments on how the agency should proceed in order to achieve the 
maximum safety benefit with the narrowest exemption possible to 
accommodate the needs of disabled persons. However, the agency received 
no comments on the NPRM.
---------------------------------------------------------------------------

    \3\ 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.)
---------------------------------------------------------------------------

The Final Rule

    The agency remains concerned about the negative effect an exemption 
may have on the safety benefits afforded to disabled persons who 
require modifications to their vehicles. However, we are unaware at 
this time of any other reasonable alternatives that can appropriately 
balance the mobility needs of people who must have vehicle 
modifications to accommodate a disability with the MDB and pole test 
requirements of FMVSS No. 214. Thus, for the reasons provided in the 
NPRM, we amend Sec.  595.7(c)(15) to add references to both S7 and S9 
and to remove any reference to S5.

MDB Test Requirements

    Since Sec.  595.7(c)(15)'s reference to S5 is no longer valid, 
today's final rule updates that paragraph's reference from S5 to S7. We 
believe that there is a continuing need for the exemption from the MDB 
requirements. Since the upgraded FMVSS No. 214 incorporates enhanced 
MDB requirements, compliance with these requirements could continue to 
be affected by an alteration of the restraint system and/or the seat.
    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. Since many 
modifiers make alterations that include removing the side air bags in 
vehicles designed to the new requirements, the agency believes that 
these modifications could take the vehicles out of compliance with the 
MDB test.
    The agency also 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 
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. Thus, NHTSA believes 
that there is a continuing need to exempt modifiers from the MDB test 
requirements for the purpose of accommodating persons with 
disabilities.

Pole Test Requirements

    This final rule also expands Sec.  595.7(c)(15) to include S9 of 
FMVSS No. 214. This change exempts modifications that affect the 
vehicle's compliance with the pole test requirements of FMVSS No. 214 
in any case in which the restraint system and/or seat position must be 
changed to accommodate a person with a disability.
    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 
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). Thus, we conclude today 
that the inclusion of S9 of FMVSS No. 214 in Sec.  595.7(c)(15) is 
needed.

Rulemaking Analyses and Notices

Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    NHTSA has considered the impact of this rulemaking action under 
Executive

[[Page 37027]]

Order 12866, Executive Order 13563, and the Department of 
Transportation's regulatory policies and procedures. This rulemaking 
document was not reviewed by the Office of Management and Budget under 
E.O. 12866, ``Regulatory Planning and Review.'' It is not considered to 
be significant under E.O. 12866 or the Department's Regulatory Policies 
and Procedures (44 FR 11034; February 26, 1979). NHTSA has determined 
that the effects are minor and that a regulatory evaluation is not 
needed to support the subject rulemaking. Today's final rule imposes no 
costs on the vehicle modification industry. If there is any effect, it 
will be a cost savings due to the exemptions.

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of proposed rulemaking or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
No regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended the Regulatory 
Flexibility Act to require Federal agencies to provide a statement of 
the factual basis for certifying that a rule will not have a 
significant economic impact on a substantial number of small entities.
    NHTSA has considered the effects of this final rule under the 
Regulatory Flexibility Act. Many dealerships and repair businesses 
would be considered small entities, and some of these businesses modify 
vehicles to accommodate individuals with disabilities. I certify that 
this final rule does not have a significant economic impact on a 
substantial number of small entities. While many dealers and repair 
businesses are considered small entities, this exemption does not 
impose any new requirements, but instead provides additional 
flexibility. Therefore, the impacts on any small businesses affected by 
this rulemaking would not be substantial.

Executive Order 13132 (Federalism)

    NHTSA has examined today's final rule pursuant to Executive Order 
13132 (64 FR 43255; Aug. 10, 1999) and concluded that no additional 
consultation with States, local governments, or their representatives 
is mandated beyond the rulemaking process. The agency has concluded 
that the final rule does not have sufficient federalism implications to 
warrant consultation with State and local officials or the preparation 
of a federalism summary impact statement. The final rule does not have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' Today's 
final rule does not impose any additional requirements. Instead, it 
lessens burdens on the exempted entities.
    NHTSA rules can have preemptive effect in two ways. First, the 
National Traffic and Motor Vehicle Safety Act contains an express 
preemption provision:

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

49 U.S.C. 30103(b)(1). It is this statutory command by Congress that 
preempts any non-identical State legislative and administrative law 
address the same aspect of performance. However, this provision is not 
relevant to this final rule as this rule does not involve the 
establishing, amending or revoking or a Federal motor vehicle safety 
standard.
    The express preemption provision described above is subject to a 
savings clause under which ``[c]ompliance with a motor vehicle safety 
standard prescribed under this chapter does not exempt a person from 
liability at common law.'' 49 U.S.C. 30103(e) Pursuant to this 
provision, State common law tort causes of action against motor vehicle 
manufacturers that might otherwise be preempted by the express 
preemption provision are generally preserved. However, the Supreme 
Court has recognized the possibility, in some instances, of implied 
preemption of State common law tort causes of action by virtue of 
NHTSA's rules--even if not expressly preempted.
    This second way that NHTSA rules can preempt is dependent upon the 
existence of an actual conflict between an FMVSS and the higher 
standard that would effectively be imposed on motor vehicle 
manufacturers if someone obtained a State common law tort judgment 
against the manufacturer--notwithstanding the manufacturer's compliance 
with the NHTSA standard. Because most NHTSA standards established by an 
FMVSS are minimum standards, a State common law tort cause of action 
that seeks to impose a higher standard on motor vehicle manufacturers 
will generally not be preempted. However, if and when such a conflict 
does exist--for example, when the standard at issue is both a minimum 
and a maximum standard--the State common law tort cause of action is 
impliedly preempted. See Geier v. American Honda Motor Co., 529 U.S. 
861 (2000).
    Pursuant to Executive Order 13132, NHTSA has considered whether 
this rule could or should preempt State common law causes of action. 
The agency's ability to announce its conclusion regarding the 
preemptive effect of one of its rules reduces the likelihood that 
preemption will be an issue in any subsequent tort litigation.
    To this end, the agency has examined the nature (e.g., the language 
and structure of the regulatory text) and objectives of today's rule 
and finds that this rule merely increases flexibility for certain 
exempted entities. As such, NHTSA does not intend that this rule 
preempt state tort law that would effectively impose a higher standard 
on motor vehicle manufacturers than that established by today's rule. 
Establishment of a higher standard by means of State tort law would not 
conflict with the exemption announced here. Without any conflict, there 
could not be any implied preemption of a State common law tort cause of 
action. Further, we are unaware of any State law or action that would 
prohibit the actions that this final rule would permit.

Civil Justice Reform

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

[[Page 37028]]

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

National Technology Transfer and Advancement Act

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

Unfunded Mandates Reform Act

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

National Environmental Policy Act

    NHTSA has analyzed today's final rule for the purposes of the 
National Environmental Policy Act. The agency has determined that 
implementation of today's final rule will not have any significant 
impact on the quality of the human environment.

Paperwork Reduction Act

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

Plain Language

    Executive Order 12866 requires each agency to write all rules in 
plain language. Application of the principles of plain language 
includes consideration of the following questions:
     Have we organized the material to suit the public's needs?
     Are the requirements in the rule clearly stated?
     Does the rule contain technical language or jargon that 
isn't clear?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rule easier to understand?
     Would more (but shorter) sections be better?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rule easier to 
understand?
    If you have any responses to these questions, please notify the 
agency in writing.

Regulation Identifier Number (RIN)

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

List of Subjects in 49 CFR Part 595

    Motor vehicle safety, Motor vehicles.

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

PART 595--MAKE INOPERATIVE EXEMPTIONS

0
1. The authority citation for part 595 continues to read as follows:

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


0
2. Amend Sec.  595.7 by revising paragraph (c)(15) to read as follows:


Sec.  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: June 16, 2011.
David L. Strickland,
Administrator.
[FR Doc. 2011-15765 Filed 6-23-11; 8:45 am]
BILLING CODE 4910-59-P