[Federal Register Volume 85, Number 248 (Monday, December 28, 2020)]
[Proposed Rules]
[Pages 84281-84292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28648]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 595

[Docket No. NHTSA-2016-0031]
RIN 2127-AL67


Make Inoperative Exemptions; Vehicle Modifications To Accommodate 
People With Disabilities

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

ACTION: Supplemental notice of proposed rulemaking (SNPRM).

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SUMMARY: In 2016, NHTSA published a notice of proposed rulemaking 
(NPRM) to amend our regulations, ``Make Inoperative Exemptions, Vehicle 
Modifications to Accommodate People With Disabilities,'' to include a 
new exemption relating to the Federal motor vehicle safety standard 
(FMVSS) for roof crush resistance. The exemptions facilitate the 
mobility of drivers and passengers with physical disabilities. This 
SNPRM expands the scope of NHTSA's 2016 NPRM in two ways. First, it 
grants a petition from Bruno Independent Living Aids, Inc., and 
proposes to include in part 595 an exemption relating to the rear 
visibility requirements in FMVSS No. 111. Second, in response to an 
inquiry from Enterprise Holdings Co. (Enterprise), this document 
proposes 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.

DATES: Comments concerning this SNPRM should be submitted early enough 
to ensure that the Docket receives them not later than January 27, 
2021. In compliance with the Paperwork Reduction Act, NHTSA is also 
seeking comment on a revised information collection. See the Paperwork 
Reduction Act section under Regulatory Analyses

[[Page 84282]]

and Notices below. Comments concerning the revised information 
collection requirements are due February 26, 2021 to NHTSA and to the 
Office of Management and Budget (OMB) at the address listed in the 
ADDRESSES section.

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. To be sure someone is 
there to help you, please call (202) 366-9332 before coming.
     Fax: 202-493-2251.
    Comments on the proposed information collection requirements should 
be submitted to: Office of Management and Budget, Office of Information 
and Regulatory Affairs, Washington, DC 20503, Attn: Desk office for 
NHTSA. It is requested that comments sent to the OMB also be sent to 
the NHTSA rulemaking docket identified at the heading of this document.
    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. To be sure someone is there to help you, please call (202) 366-
9332 before coming. Follow the online instructions for accessing the 
dockets.

FOR FURTHER INFORMATION CONTACT: Gunyoung Lee, NHTSA Office of Crash 
Avoidance Standards (phone: 202-366-6005; fax: 202-493-0073); Daniel 
Koblenz, NHTSA Office of Chief Counsel (phone: 202-366-5329; fax 202-
366-3820); or David Jasinski (phone: 202-366-5552; 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:

I. Introduction

    This SNPRM supplements an NPRM \1\ published on March 11, 2016, 
proposing to amend 49 CFR part 595, subpart C to include a new 
exemption relating to FMVSS No. 216, ``Roof crush resistance.'' This 
SNPRM does not propose any substantive changes to that NPRM as it 
relates to the proposed exemption for FMVSS No. 216. This SNPRM simply 
proposes to expand the scope of the 2016 NPRM to include an additional 
make inoperative exemption from certain sections of FMVSS No. 111, 
``Rear visibility,'' and to create a new exemption for rental car 
companies having to temporarily disable a knee bolster air bag to 
install hand controls. The three rulemakings are related as they each 
propose to amend part 595. The Agency has decided to propose these 
changes as an SNPRM, rather than as separate individual NPRMs, for the 
sake of administrative simplicity and the convenience of the reader.
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    \1\ 81 FR 12852, Docket No. NHTSA-2016-0031.
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II. Statutory Background

    The National Traffic and Motor Vehicle Safety Act (49 U.S.C. 
Chapter 301) (``Safety Act'') and NHTSA's regulations require vehicle 
and equipment manufacturers to certify that their vehicles or vehicle 
equipment comply with all applicable FMVSS (see 49 U.S.C. 30112; 49 CFR 
part 567). A vehicle manufacturer, distributor, dealer, rental company, 
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)), 
if the Agency finds that the exemption would be consistent with motor 
vehicle safety and with 49 U.S.C. 30101.\2\ The Agency has used that 
authority to promulgate 49 CFR part 595, subpart C, ``Make Inoperative 
Exemptions, Vehicle Modifications to Accommodate People with 
Disabilities'' (hereafter, ``subpart C'').
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    \2\ Section 30101, ``Purpose and Policy,'' of the Safety Act 
states: ``The purpose of this chapter is to reduce traffic accidents 
and deaths and injuries resulting from traffic accidents. Therefore 
it is necessary--(1) to prescribe motor vehicle safety standards for 
motor vehicles and motor vehicle equipment in interstate commerce; 
and (2) to carry out needed safety research and development.''
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    Subpart C sets forth exemptions to permit, under limited 
circumstances, vehicle modifications that make certain systems 
installed in compliance with an FMVSS inoperative 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 \3\ 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 subpart C must register with NHTSA. The modifier 
is exempted from the make inoperative provision of the Safety Act, but 
only to the extent that the modifications affect compliance with the 
FMVSSs specified in 49 CFR 595.7(c) and only to the extent specified in 
Sec.  595.7(c).\4\ 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 affected FMVSSs, and 
indicating any reduction in the load carrying capacity of the vehicle 
of more than 100 kilograms (220 pounds).
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    \3\ Section 595.4 of subpart C states: ``The term motor vehicle 
repair business is defined in 49 U.S.C. 30122(a) as `a person 
holding itself out to the public to repair for compensation a motor 
vehicle or motor vehicle equipment.' 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.''
    \4\ Modifications that would affect systems installed in 
compliance with any other FMVSS, or with an FMVSS listed in Sec.  
595.7(c) but in a manner not specified in that paragraph, are not 
covered under Part 595, Subpart C.

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[[Page 84283]]

III. New Make Inoperative Exemption in Subpart C for Portions of FMVSS 
No. 111, ``Rear Visibility''

a. Background on the FMVSS No. 111 Requirements

    To satisfy a statutory mandate in the Cameron Gulbransen Kids 
Transportation Safety Act of 2007 (the K.T. Safety Act), NHTSA 
published a final rule \5\ on April 7, 2014 amending FMVSS No. 111, to 
require, effectively, that all light vehicles be equipped with a backup 
camera system that, among other things, displays a certain specified 
field of view to the driver. The K.T. Safety Act directed NHTSA to 
amend the FMVSS to expand the rearward field of view for all passenger 
cars, trucks, multipurpose passenger vehicles, buses, and low-speed 
vehicles with a gross vehicle weight rating (GVWR) of less than 4,536 
kilograms (kg) (10,000 pounds). The rule, which became fully phased in 
on May 1, 2018, requires that vehicles be equipped with a system that 
provides the driver with an image of the area directly behind the 
vehicle. The purpose of this requirement is to reduce the number of 
back-over crashes involving pedestrians, particularly children and 
other high-risk persons.
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    \5\ 79 FR 19178, Docket No. NHTSA-2010-0162.
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    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 or less must meet the requirements of S6.2.1 through S6.2.7. 
Both sets of requirements state that the rearview image must have a 
field of view that covers 5 feet from either side of the vehicle center 
line to 20 feet longitudinally from the vehicle's rear bumper, and that 
the rearview image be large enough that the driver will see objects in 
the field of view. The standard also sets requirements for when the 
rearview image must be displayed. NHTSA assesses compliance with these 
requirements by placing cylindrical test objects along the perimeter of 
the minimum field of view requirement, and assessing whether the test 
cylinders are visible to the driver in the rearview image, and whether 
the rearview image is displayed under the required circumstances. 
Although the rear visibility requirements in FMVSS No. 111 are written 
in a technology-neutral way that states only that a vehicle must 
display a ``rearview image'' without reference to what technology is 
used to display the image, 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 in a comment by the 
National Truck Equipment Association (NTEA) to the NPRM. In this 
comment, NTEA 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 Sec.  30122.

b. Bruno's Petition for Rulemaking

    On April 17, 2018, NHTSA received a petition for rulemaking from 
Bruno requesting NHTSA to amend subpart C so that it would include 
paragraphs S5.5 and S6.2 of FMVSS No. 111.
    Bruno states it 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 states 
that there are two types of PMD transport devices that it manufactures. 
The first type is what the petition describes as a platform lift that 
can be attached to the exterior of the vehicle by means of a trailer 
hitch. This first 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.\6\
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    \6\ 49 CFR 571.3.
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    Bruno states 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 
argues in its petition that PMD transport devices are ``temporary 
equipment,'' to which NHTSA said the final rule was not intended to 
apply. However, the petitioner states that, to avoid potential 
uncertainty regarding the manufacture, sale or installation of both 
types of PMD transport device Bruno manufactures, Bruno requests that 
subpart C be amended to cover the backup camera requirements (S5.5 and 
S6.2) of FMVSS No. 111.
    After filing the petition, Bruno submitted additional material in 
which the petitioner contends that the final rule of FMVSS No. 111 
specifically excluded trailers such as the Bruno Chariot (i.e., a 
``trailer'' type of PMD transport device), even though the body of 
current FMVSS No. 111 does not include explicit language for the 
exclusion of trailers, and even though the preamble was referring to 
trailers attached by the vehicle owner.
Response to Petition
    NHTSA recognizes that the petitioner's request presents a trade-off 
between the benefits of a camera system for rear visibility balanced 
against enhanced mobility for people with disabilities. 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 persons with physical 
disabilities, while minimizing unintended safety consequences that 
could occur by creating a pathway for unforeseen and unintended uses.
    NHTSA has decided to grant the petition. The modifications 
permitted under the proposed exemption would be temporary in that they 
do not permanently affect the vehicle's design or structure, and would 
not be widely available beyond the population of persons with 
disabilities who wish to have a covered entity install a PMD transport 
device on their vehicle. It is important to note that statements in the 
preamble to the K.T. Act final rule cannot provide regulatory certainty 
that PMD transport devices are excluded from the make inoperative 
provision.

[[Page 84284]]

Further, unlike with the examples of salt and sand spreaders referenced 
in the preamble, 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.\7\ Accordingly, we believe 
a regulatory exemption can provide the appropriate regulatory certainty 
to allow for installation of PMD transport devices, even if not 
necessary for other types of temporary equipment installed by the 
vehicle owner.
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    \7\ Note that ``dealer'' is defined in the Safety Act as a 
seller of motor vehicles or motor vehicle equipment, which includes 
retail outlets that sell PMD transport devices.
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    Based on the above analysis NHTSA proposes to amend subpart C to 
add a ``make inoperative'' exemption for S5.5.1, S5.5.2, S6.2.1, and 
S6.2.2 of FMVSS No. 111, to allow for the temporary installation of a 
PMD transport device that could obstruct the vehicle's backup camera 
system. NHTSA seeks comment on this proposal.
    In particular, NHTSA seeks comment on its decision to limit the 
proposed exemption to the temporary installation of a PMD transport 
device on a vehicle, which precludes entities from permanently 
disabling the backup camera system, or from making the backup camera 
system inoperative in contexts other than when attaching a PMD 
transport device to the vehicle. NHTSA included these restrictions on 
the proposed exemption so that the exemption would be as narrow as 
possible while still addressing the mobility needs for persons with 
disabilities.
    NHTSA also seeks comment on its tentative decision to limit the 
exemption to include only the ``field of view'' (S5.5.1 and S6.2.1) and 
``size'' (S5.5.2 and S6.2.2) requirements, and not the other rearview 
image requirements in S5.5 and S6.2, such as ``linger time.'' NHTSA did 
not include these other requirements in the proposed exemption because 
they would not be impacted by placing an object in front of the camera 
that blocks its view.

IV. Make Inoperative Exemptions for Rental Companies

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 Sec.  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.\8\
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    \8\ 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.
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b. Enterprise Request for Interpretation

    In a letter dated August 12, 2019, Enterprise, through its counsel, 
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).\9\ 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. Some of the 
information provided by Enterprise has formed the basis for this 
rulemaking.
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    \9\ A copy of this letter has been included in the docket number 
identified at the beginning of this document.
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    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.\10\ 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 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 could either break apart, creating 
and propelling dangerous metal fragments, or otherwise be propelled 
into the driver at great forces--either of which would create a serious 
safety risk.
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    \10\ Enterprise did not provide an example other than the 
situation posed by installation of hand controls and its effect on 
knee bolster air bags.
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    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) \11\ 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.
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    \11\ 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.
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    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, the subpart does not 
include ``rental companies'' within the entities who could use those 
exemptions in subpart C.
    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

[[Page 84285]]

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, Enterprise 
expects to need to disable knee bolster air bags temporarily on rental 
vehicles to continue to make vehicles available to rent by drivers with 
physical disabilities. Enterprise requested NHTSA's opinion on the 
applicability of the ``make inoperative'' prohibition to these 
circumstances.

c. Applicability of ``Make Inoperative'' Prohibition to Enterprise

    The question raised by Enterprise's letter is whether disabling the 
knee bolster air bag would constitute a violation of the ``make 
inoperative'' prohibition. NHTSA does 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 notes that knee bolster air bags are installed 
to reduce femur loading, and FMVSS No. 208 does provide specific 
requirements for femur load.\12\ While NHTSA has 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, 
their association has not yet provided information to resolve this 
question.
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    \12\ See 49 CFR 571.208 S15.3.5.
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    After considering the issue, NHTSA has determined that it cannot 
affirmatively state that Sec.  30122 would not prohibit making 
inoperative knee bolster air bags to install hand controls to enable 
service to customers with physical disabilities. The Agency appreciates 
the difficulties this issue poses to Enterprise and other rental 
companies. 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 Sec.  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 is acceptable to NHTSA. The first action would 
prevent Enterprise from renting newer vehicles, which include newer 
safety innovations, to drivers requiring the use of hand controls, 
would be impracticable given the inability to guarantee availability of 
sufficient vehicles at all relevant rental facilities, and would 
eventually be impossible as those vehicle age out of their useful 
service lives. The second action would eliminate a critical service for 
people with disabilities and may have implications for compliance with 
the Americans with Disabilities Act. 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 is addressing the situation by proposing to use its statutory 
authority to exempt rental companies conditionally from the Safety 
Act's ``make inoperative'' prohibition to allow the temporary disabling 
of knee bolster air bags.

d. Need for a ``Make Inoperative'' Exemption for Rental Companies

    NHTSA is issuing this SNPRM after considering the untenable 
situation faced by prospective vehicle renters with physical 
disabilities and rental car companies seeking to provide services to 
people with physical disabilities, and balancing NHTSA's strong 
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 has 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. This action is 
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. While the balance 
of safety and accessibility associated with granting an exemption to 
the make inoperative prohibition to rental companies is identical to 
the grant of exemption to motor vehicle repair businesses, some aspects 
are quite different, as will be discussed next.
    Therefore, NHTSA is proposing to add a new section to 49 CFR part 
595 specifically for rental companies. While this section would be 
largely similar to 49 CFR 595.7, NHTSA believes that rental companies 
could not easily be added to section 595.7 for several reasons. First, 
section 595.7 contemplates permanent modifications and NHTSA expects 
that rental companies would modify vehicles only temporarily. 
Therefore, the proposal specifically limits the exemption to the 
duration of the rental agreement and a reasonable period before and 
after the rental agreement (a period to perform and reverse the 
necessary accommodations). Like in 49 CFR 595.7, NHTSA is proposing a 
requirement that the vehicle have a label affixed indicating that it 
has been modified such that a device or element of design installed 
pursuant to the FMVSS may have been made inoperative. However, given 
the expected temporary nature of the modifications, NHTSA is not 
proposing that vehicles be permanently labeled. NHTSA also has not 
proposed to require that rental companies register with NHTSA prior to 
performing modifications. At this time, NHTSA is only considering 
allowing rental companies to disable a knee bolster air bag and is not 
including all of the exemptions applicable to motor vehicle repair 
businesses in section 595.7(c). These issues are discussed in greater 
detail later in this document.
    NHTSA requests public comment on this SNPRM, including the need of 
rental companies for relief from the make inoperative prohibition and 
how the exemption could be narrowly granted.
    As part of this discussion, NHTSA requests comment on whether 
Enterprise's request may be mooted by the use of other models of hand 
controls or other innovations of adaptive driving equipment suitable 
for temporary installation. NHTSA has had discussions with the National 
Mobility Equipment Dealers Association regarding this question and has 
reached the tentative conclusion that, while there may be models of 
hand controls on the market that do not require disablement of the knee 
bolster air bag, those models require custom installations that would 
not be feasible for a rental company business model. These entities 
seek to make a temporary modification to their rental vehicles, so that 
after the rental they may remove the hand controls and revert the 
vehicle to its former state to rent to the next

[[Page 84286]]

customer. Further, it is likely that necessitating the replacement by 
Enterprise and other rental companies of their adaptive equipment may 
unnecessarily result in costs and other impacts on rental companies in 
seeking to accommodate customers with physical disabilities.

e. Scope of an Exemption for Rental Companies

    Although NHTSA is proposing a make inoperative exemption for rental 
companies, NHTSA has questions regarding the scope of an exemption to 
rental companies, and the logistics of granting those exemptions. 
Specifically, NHTSA requests public comment on the following questions 
in this preamble and on the discussion supporting them. In responding 
to a question, we would appreciate commenters numbering their answers 
in accordance with the following numbered questions:
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 would only allow 
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. (Based on information provided by Enterprise, rental 
companies require flexibility in their fleet usage and, therefore, it 
is unlikely that a vehicle would be rented to two people requiring the 
same modification consecutively.) In any event, in light of this 
information from Enterprise, is there a need to allow rental companies 
to make permanent modifications to vehicles in order to accommodate 
drivers with disabilities? Should they be permitted to permanently 
modify vehicles as repair businesses are under Subpart C, provided they 
meet all requirements of sections 595.6 and 595.7? NHTSA seeks comments 
as to whether permanent modification may be necessary or helpful, and 
may revisit this tentative conclusion in a final rule in response to 
comments received.
2. Although Enterprise only asked NHTSA about the application of the 
make inoperative prohibition to disabling knee bolster air bags to 
accommodate installation of hand controls, should NHTSA provide a make 
inoperative exemption for other installations of adaptive equipment by 
rental companies?
    This question pertains to the standards and modifications that 
would be covered by a make inoperative exemption. Enterprise's letter 
refers only to the disablement of knee bolster air bags to accommodate 
installation of hand controls. To date, NHTSA has received no other 
inquiries or requests for relief from the make inoperative prohibition 
from any other rental company or related to any other accommodation. 
Accordingly, this proposed rule only addresses the disablement of knee 
bolster air bags to accommodate the installation of hand controls. If 
NHTSA receives comments that warrant the granting of exemptions to the 
make inoperative prohibition for additional accommodations, NHTSA will 
consider including an exemption from those accommodations in a final 
rule implementing this proposal.
3. If a temporary modification to install adaptive equipment causes a 
malfunction telltale to illuminate, should the rental company be 
allowed to disable the telltale?
    This question pertains to the air bag malfunction telltale. One 
aspect not directly addressed in Enterprise's letter is what effect the 
modification would have on the air bag malfunction telltale, which is 
required by FMVSS No. 208. In its conversations with NHTSA, 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 believes 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, after the diagnostic check, 
NHTSA believes that the air bag malfunction telltale would not 
illuminate as a result of disabling the knee bolster air bag.
    NHTSA requests comment on whether the disabling of the air bag in 
this manner is desirable and should be permitted. There are competing 
safety interests at issue when considering this question. If a shunt 
were not installed, NHTSA believes that, for vehicles where the knee 
bolster air bag is disabled, the air bag malfunction telltale would 
illuminate after the diagnostic check. This would correctly provide the 
operator of the vehicle with information that the air bag system is not 
operational, and would provide additional assurance that the disabling 
of the knee bolster air bag is reversed for later rentals. A subsequent 
renter of the exempted vehicle, where the modification was 
inadvertently not reversed, could see the telltale illuminated and 
inform the rental company of the malfunction.
    However, the illumination of the air bag malfunction telltale where 
the knee bolster air bag is disabled may also have negative safety 
consequences. 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 clearly installed as part of compliance 
with FMVSS No. 208. NHTSA is also unaware of whether the activation of 
a malfunction indicator light will result in a suppression of other air 
bags that are not disabled by the rental company. The proposed 
regulatory text does not make allowances for making inoperative the 
telltale in the situation presented by Enterprise. However, NHTSA seeks 
comment on how this issue should be addressed in a final rule.
4. Would NHTSA need to provide a make inoperative exemption for 
installation of hand controls? Alternatively stated, would the mere 
installation of hand controls by a rental company potentially make 
inoperative systems installed in compliance with an FMVSS, even if no 
other modifications to the vehicle are made? For example, 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 FMVSS? If the mere installation of adaptive 
equipment potentially violates the ``make inoperative'' prohibition, 
NHTSA would consider broadening the scope of the exemption granted in a 
final rule issued following this proposal.

f. Procedural Requirements for an Exemption for Rental Companies

    NHTSA has questions related to procedural aspects of such an 
exemption. These questions include:
    5. Should rental companies need to request an exemption from NHTSA 
or should the exemption be provided automatically within the 
regulation?
    NHTSA has tentatively concluded, as with motor vehicle repair 
businesses,

[[Page 84287]]

rental companies should not have to seek an exemption from NHTSA in 
order to disable knee bolster air bags temporarily to install hand 
controls. Rather, NHTSA proposes to grant the exemption to rental 
companies conditionally on their compliance with the proposed 
amendments to 49 CFR part 595. Given that a rental company may be 
required to make modifications quickly to provide accommodations when a 
customer requests a vehicle with hand controls, NHTSA does not find 
that seeking permission to obtain an exemption would be beneficial to 
safety or to drivers requesting modifications, or practical to execute 
in actual situations. Moreover, NHTSA would be limited in its ability 
to evaluate the merits of a request for an exemption in an approval 
system, and so it seems obtaining NHTSA approval would serve no useful 
purpose.
    6. If rental companies are granted exemption by the regulation 
alone rather than on request to NHTSA, should rental companies be 
required to notify NHTSA of modifications to vehicles? If so, how often 
and what information should rental companies be required to provide?
    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. NHTSA has 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.\13\ In the 
instance of rental companies, they are modifying vehicles to 
accommodate customers with physical disabilities as part of its 
business operations, and as part of its 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, but would impose a 
paperwork burden on all rental companies. NHTSA tentatively concludes 
that, consistent with the goals of the Paperwork Reduction Act, it is 
not necessary for rental companies to identify themselves to NHTSA 
prior to modifying vehicles pursuant to a ``make inoperative'' 
exemption. However, NHTSA seeks comment on how many rental companies 
would be required to report themselves to NHTSA if such a reporting 
requirement is included in a final rule.
---------------------------------------------------------------------------

    \13\ This list of entities is not intended as an endorsement of 
any entity, but is solely provided for informational purposes.
---------------------------------------------------------------------------

    7. Should rental companies be required to notify customers that a 
vehicle modified to accommodate the installation of adaptive equipment 
may have had devices or designs installed in compliance with an 
applicable FMVSS made inoperative?
    NHTSA tentatively concludes the answer is yes, renters of vehicles 
modified pursuant to this proposed make inoperative exemption would 
have to be notified that the vehicle's safety device or element of 
design was made inoperative, similar to the requirements for motor 
vehicle repair businesses. NHTSA would require the name and address of 
the rental company modifying the vehicle to be disclosed to the renter. 
The notification would have to specifically identify that the knee 
bolster air bag has been temporarily affected by the modification. 
NHTSA believes, however, 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. The costs to meet 
this requirement would be insignificant.
    This notice proposes to require that the rental company affix a 
temporary label, meant to remained 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. Because this proposal does not apply to 
permanent modifications, it would not be logical to include a permanent 
label stating that the vehicle may not comply with all FMVSSs. Unlike a 
provision in subpart C, this proposal does not include a requirement 
that the physical location of the rental company modifying the vehicle 
be on the label affixed to the vehicle. NHTSA believes that this 
information is provided to renters in the rental agreement and is not 
necessary to include on the label itself.
    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 who 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. NHTSA tentatively concludes that this type 
of record retention should be required of rental companies as well. 
This would facilitate enforcement by NHTSA in the event of potential 
violations of the terms of the make inoperative exemption in this 
proposal, 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 
believes 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. NHTSA 
considers the costs of the proposed requirements in the section 
discussing the applicability of the Paperwork Reduction Act. As with 
the existing record retention requirement for motor vehicle repair 
businesses that permanently modify vehicles for people with 
disabilities, NHTSA is proposing a five-year recordkeeping requirement.
    9. Should rental companies be required to notify subsequent renters 
and/or purchasers of rental vehicles that have been modified pursuant 
to this proposed ``make inoperative'' exemption that the vehicle was 
previously modified?
    While NHTSA is not proposing such a requirement, the Agency seeks 
comment on whether such a requirement is warranted and if so, how such 
a notification would be made. NHTSA notes that it does not have 
authority over used vehicle sales transactions, and that State laws may 
be better equipped to handle any general or specific retail disclosure 
obligations. If the comments or other information available at the time 
of the issuance of final rule implementing this proposal indicate that 
such a requirement is warranted, it may be included in the final rule.
    10. What procedures could or 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 make inoperative exemption that would be applicable to rental 
companies by this proposal 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

[[Page 84288]]

accommodate a driver with physical disabilities. However, the proposal 
does not include any specific requirements for rental companies for 
reversing modifications to rental vehicles. NHTSA requests comments on 
whether NHTSA should impose requirements related to reversing a vehicle 
modification and if so, what those requirements should be.
    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?
    NHTSA believes 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. However, NHTSA has 
not conducted any outreach as to the application of this proposal to 
car sharing companies. Therefore, any comments pertinent to the 
application of this proposal would be helpful.

V. Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Requirements

    NHTSA has considered the impact of this rulemaking action under 
E.O. 12866, ``Regulatory Planning and Review,'' E.O. 13563, and the 
Department of Transportation's regulatory requirements under 49 CFR 
part 5. This rulemaking document was not reviewed by the Office of 
Management and Budget under E.O. 12866. It is not considered to be 
significant under E.O. 12866. NHTSA has determined that the effects are 
so minor that a regulatory evaluation is not needed to support the 
rulemaking.
    Modifying a vehicle in a way that reduces the rear visibility of a 
backup camera by installing a trailer or carrying device could reduce 
crash avoidance features of the vehicle when the vehicle is reversing. 
However, the number of vehicles potentially modified would be very few 
in number. The Agency believes it has made the exemption narrow to 
achieve the goal of increasing mobility of drivers and passengers with 
physical disabilities while maintaining vehicle safety to the extent 
possible. This rear visibility proposal does not contain new reporting 
requirements or requests for information beyond what is already 
required by 49 CFR part 595 subpart C. This rulemaking would impose 
minor labeling, and insignificant recordkeeping, costs on rental 
companies who choose to take advantage of the opportunity to install 
temporary hand controls to accommodate the needs of customers with 
physical disabilities, which we expect may be transferred to consumers.
    The label and recordkeeping requirements are necessary to ensure 
the modification that takes the vehicle out of compliance with the 
FMVSS is temporary and that the vehicle will be restored to full 
compliance when the rental is over. The proposed 5-year record 
retention requirement would facilitate enforcement by NHTSA in the 
event of potential violations of the terms of the make inoperative 
exemption in this proposal, and to facilitate the investigation and 
identification of vehicles in the event a subsequent safety problem 
arises that could relate to the manner in which air bags were 
deactivated. NHTSA believes that the costs associated with retaining 
this record would be insignificant 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.
    Rental companies choosing to deactivate knee bolster air bags to 
facilitate installation of hand controls would incur costs associated 
with the installation of a shunt and a pedal operating device for a 
person with disability. However, the proposed rule is an enabling rule 
and does not require a rental business to engage in this practice. 
Thus, any costs associated with the installation of these devices are 
solely related to a rental business that chooses to accommodate 
consumers with disabilities for business or other reasons. Although the 
proposed rule would not directly contribute to the potential costs, any 
such potential costs would likely be transferred to consumers. 
Modifying a vehicle to install a trailer or carrying device, or 
temporary hand controls would not only increase business for entities 
making these modifications, but also increase consumer choices 
resulting from the perceived usefulness of the installed hardware. The 
consumer demand for the equipment and service is evidence that the 
perceived usefulness would be greater than the sum of its cost and any 
perceived added safety risk (i.e., resulting from making the rearview 
camera and/or air bag inoperative).

E.O. 13771 (Regulatory Reform)

    NHTSA has reviewed this SNPRM for compliance with E.O. 13771 
(``Reducing Regulation and Controlling Regulatory Costs'') which 
requires Federal Agencies to offset the number and cost of new 
regulations through the repeal, revocation, or revision of existing 
regulations. As provided in OMB Memorandum M-17-21 (``Implementing E.O. 
13771''), a ``regulatory action'' subject to E.O. 13771 is a 
significant regulatory action as defined in section 3(f) of E.O. 12866 
that has been finalized and that imposes total costs greater than zero. 
As discussed above, this action is not a significant rule under 
Executive Order 12866. Accordingly, it is not subject to the offset 
requirements of 13771.
    This SNPRM is expected to be a deregulatory action under E.O. 
13771. It provides an exemption to dealers and repair businesses that 
would permit them to facilitate transport of unoccupied personal 
mobility devices (PMD) such as wheelchairs, powered wheelchairs, and 
powered scooters intended for use by vehicle occupants with mobility 
impairments. The SNPRM would permit these entities the ability to 
attach platform lifts and trailers for carrying PMD and provide more 
consumer choices, which may result in increased interest in and sales 
of these devices. The second part of this SNPRM would benefit rental 
companies by enabling them to modify vehicles for customers with 
disabilities and allow for the rental of vehicles with hand controls. 
The rental companies would benefit by enabling a temporary modification 
that will allow them to satisfy demand for such vehicles. They would 
not have to turn away customers seeking to rent a vehicle with hand 
controls due to an absence of such a vehicle on their premises. 
However, NHTSA is unable at this time to quantify the cost impacts due 
to the lack of information about the demand for devices such as 
petitioner Bruno's PMD transporters and, from rental companies, the 
demand for hand controls on rental vehicles whose installation 
necessitates deactivating the knee bolster air bag. NHTSA requests 
comments on estimating the cost savings of this proposed rule.

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

[[Page 84289]]

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.
    I certify that this proposed rule would not have a significant 
economic impact on a substantial number of small entities. The entities 
installing the trailers and PMD-carrying devices could be small 
entities, and a substantial number of rental companies might also be 
small entities as well. However, the impacts on them are not expected 
to be significant. The proposed exemption would be deregulatory and 
provide additional 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 installed, or a large number of rental car transactions affected 
by this rulemaking. Therefore, the impacts on any small businesses 
affected by this rulemaking would not be significant.

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 restrictions on 
modifiers and rental companies.
    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 to this rulemaking as it does not involve the 
establishing, amending or revoking of 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. 
While NHTSA is unaware of any specific State law or action that would 
prohibit the actions that this proposed rule would permit, some States 
may have laws or enforcement postures relating to the disabling of air 
bags. While NHTSA is generally favors enforcement of such laws (indeed 
air bag disabling by manufacturers, dealers, motor vehicle repair 
businesses and rental companies is generally prohibited through NHTSA's 
make inoperative prohibition), the proposed exemption from this 
provision for temporary disablement of knee bolster air bags could 
preempt State laws that include broad prohibitions against disabling 
air bags or air bag malfunction indicators. NHTSA requests comment from 
States as to whether such laws or enforcement postures exist.

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 
these proposed exemptions 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 procedures established by 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 
Office of Management and Budget (OMB) control number. The proposal 
adding the backup camera requirements (S5.5 and S6.2) of FMVSS No. 111 
to 49 CFR part 595 subpart C does not contain new reporting 
requirements or requests for information beyond what is already 
required by subpart C. The proposal

[[Page 84290]]

addressing rental companies would be a new Information Collection 
Request (ICR), and has been forwarded to OMB for review. The ICR 
describes the nature of the information collection and its expected 
burden.
    This SNPRM would make changes to an existing information collection 
for exemptions from the make inoperative prohibition for modifiers and 
related consumer disclosures under 49 CFR part 595, subpart C. In 
compliance with the requirements of the PRA, NHTSA asks for public 
comments on the following proposed revision of a currently approved 
collection of information:
    Title: Exemption from Make Inoperative Prohibition Modifier 
Identification and Consumer Disclosure 49 CFR 595 Subpart C.
    Type of Request: Revision of a currently approved collection.
    OMB Control Number: 2127-0635
    Affected Public: Businesses that modify vehicles, after first 
retail sale, so that the vehicle may be used by persons with 
disabilities.
    Requested Expiration Date of Approval: Three years from the date of 
approval.
    Form Number: None.
    Summary of the Collection of Information: Rental companies would be 
added to the group of entities who, if they avail themselves of the 
exemptions in 49 CFR subpart C, are required to keep a record, for each 
applicable vehicle, listing which standards, or portions thereof, are 
affected by the modification, and to provide a copy to the owner 
(renter) of the vehicle modified (see 49 CFR 595.7 (b) and (e) as 
published below). This SNPRM does not propose to extend the 
registration requirement for modifiers to rental companies, so that 
aspect of the collection is not proposed to be modified.
    Description of the Need for the Information and Use of the 
Information: This SNPRM proposes to extend to rental companies the 
requirement that modifiers provide each customer whose vehicle 
modification involves the use of the make inoperative exemptions with a 
list of the exemptions used to modify that vehicle. (Practically 
speaking, there would only be the one exemption discussed in this 
SNPRM, for knee bolster air bags.) The simplest form of this document 
is an annotated invoice or rental agreement. No specific, separate, or 
special forms are required. A copy of this document must also be 
retained for five years. This document will be used by the consumer (or 
renter, in the case of rental vehicles) to understand the modifications 
made to his/her vehicle and their effect on vehicle safety. It may be 
used by NHTSA in the event of an inquiry about the safety of the 
modified vehicles or compliance with the requirements that might be 
adopted.
    Description of the Likely Respondents (Including Estimated Number, 
and Proposed Frequency of Response to the Collection of Information): 
NHTSA estimates that rental companies would temporarily modify 
approximately 4000 vehicles per year \14\ for persons with disabilities 
under the exemption proposed in this SNPRM, all of which are proposed 
to be subject to the notification requirement.
---------------------------------------------------------------------------

    \14\ This information is based upon an estimate provided by 
Enterprise regarding the number of vehicle modifications it 
anticipates making.
---------------------------------------------------------------------------

    Estimate of the Total Annual Reporting and Recordkeeping Burden 
Resulting from the Collection of Information: The burden for the record 
required by proposed 49 CFR 595.8 for those vehicles will be an 
additional 1,333 hours per year nationwide. NHTSA anticipates that the 
least costly way for a rental company to comply with this portion of 
the new rule would be to annotate the vehicle modification invoice to 
describe the exemption, if any, involved with each item on the invoice. 
The cost of preparing the invoice is not a portion of our burden 
calculation, as that preparation would be done in the normal course of 
business. The time needed to annotate the invoice, we estimate, is 20 
minutes. This burden does not include the gathering of the information 
required for the calculation. That information would be gathered in the 
normal course of the vehicle modification.
    The labor costs associated with this additional burden are 
estimated to be $25.29 per hour for ``Automotive Service Technicians 
and Mechanics,'' Occupation code 49-3023.\15\ This is based on the 
assumption that the person making the modification to the vehicle will 
be annotating the invoice, rather than a rental clerk assisting a 
customer. Therefore, the estimated total labor costs associated with 
this additional burden are $33,712 ($25.29 per hour wage x 1,333 hours 
= $33,711.57).
---------------------------------------------------------------------------

    \15\ See May 2019 National Occupational Employment and Wage 
Estimates by ownership, Federal, state, and local government 
including the U.S. Postal Service, available at https://www.bls.gov/oes/current/999001.htm#49-0000 (accessed December 22, 2020).
---------------------------------------------------------------------------

    There will be no additional material cost associated with 
compliance with this requirement since no additional materials need be 
used above those used to prepare the invoice in the normal course of 
business. We are assuming it is normal and customary in the course of 
rental car business to prepare an invoice, to provide a copy of the 
invoice to the vehicle owner, and to keep a copy of the invoice for 
five years after the vehicle is rented.
    Comments Are Invited On:
    1. Will the document referenced in proposed 49 CFR 595.8 need to be 
prepared for approximately 4000 temporarily modified vehicles per year?
    2. Will the annotation of each invoice as to which exemptions were 
used take an average of 20 minutes? If the exemption were only for the 
knee bolster air bag, would a time less than 20 minutes be needed?
    3. Is it normal in the course of the car rental business, to 
provide a copy of the invoice to the vehicle owner, and to keep a copy 
of the invoice for five years after the vehicle is delivered to the 
owner in finished form?
    Please submit any comments, identified by the docket number in the 
heading of this document, by the methods described in the ADDRESSES 
section of this document to NHTSA and OMB.

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.

[[Page 84291]]

VI. Public Participation

How long do I have to submit comments?

    We are providing a 60-day comment period.

How do I prepare and submit comments?

     Your comments must be written in English.
     To ensure that your comments are correctly filed in the 
Docket, please include the Docket Number shown at the beginning of this 
document in your comments.
     Your comments must not be more than 15 pages long. (49 CFR 
553.21). We established this limit to encourage you to write your 
primary comments in a concise fashion. However, you may attach 
necessary additional documents to your comments. There is no limit on 
the length of the attachments.
     If you are submitting comments electronically as a PDF 
(Adobe) File, NHTSA asks that the documents be submitted using the 
Optical Character Recognition (OCR) process, thus allowing NHTSA to 
search and copy certain portions of your submissions. Comments may be 
submitted to the docket electronically by logging onto the Docket 
Management System website at http://www.regulations.gov. Follow the 
online instructions for submitting comments.
     You may also submit two copies of your comments, including 
the attachments, to Docket Management at the address given above under 
ADDRESSES.
    Please note that pursuant to the Data Quality Act, in order for 
substantive data to be relied upon and used by the Agency, it must meet 
the information quality standards set forth in the OMB and DOT Data 
Quality Act guidelines. Accordingly, we encourage you to consult the 
guidelines in preparing your comments. OMB's guidelines may be accessed 
at http://www.whitehouse.gov/omb/fedreg/reproducible.html. DOT's 
guidelines may be accessed at http://www.bts.gov/programs/statistical_policy_and_research/data_quality_guidelines.

How can I be sure that my comments were received?

    If you wish Docket Management to notify you upon its receipt of 
your comments, enclose a self-addressed, stamped postcard in the 
envelope containing your comments. Upon receiving your comments, Docket 
Management will return the postcard by mail.

How do I submit confidential business information?

    If you wish to submit any information under a claim of 
confidentiality, you should submit three copies of your complete 
submission, including the information you claim to be confidential 
business information, to the Chief Counsel, NHTSA, at the address given 
above under FOR FURTHER INFORMATION CONTACT. In addition, you should 
submit two copies, from which you have deleted the claimed confidential 
business information, to Docket Management at the address given above 
under ADDRESSES. When you send a comment containing information claimed 
to be confidential business information, you should include a cover 
letter setting forth the information specified in our confidential 
business information regulation. (49 CFR part 512). To facilitate 
social distancing during COVID-19, NHTSA is temporarily accepting 
confidential business information electronically. Please see https://www.nhtsa.gov/coronavirus/submission-confidential-business-information 
for details.

Will the Agency consider late comments?

    We will consider all comments that Docket Management receives 
before the close of business on the comment closing date indicated 
above under DATES. To the extent possible, we will also consider 
comments that Docket Management receives after that date. If Docket 
Management receives a comment too late for us to consider in developing 
the follow on final rule, we will consider that comment as an informal 
suggestion for future rulemaking action.

How can I read the comments submitted by other people?

    You may read the comments received by Docket Management at the 
address given above under ADDRESSES. The hours of the Docket are 
indicated above in the same location. You may also see the comments on 
the internet. To read the comments on the internet, go to http://www.regulations.gov. Follow the online instructions for accessing the 
dockets.
    Please note that, even after the comment closing date, we will 
continue to file relevant information in the Docket as it becomes 
available. Further, some people may submit late comments. Accordingly, 
we recommend that you periodically check the Docket for new material.

List of Subjects in 49 CFR Part 595

    Motor vehicle safety, Motor vehicles.

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

PART 595--MAKE INOPERATIVE EXEMPTIONS

0
1. The authority citation for Part 595 would be revised to read as 
follows:

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

0
2. Revise Sec.  595.3 to read as follows:


Sec.  595.3   Applicability.

    This part applies to dealers, motor vehicle repair businesses, and 
rental companies.
0
3. Amend Sec.  595.4 by adding in alphabetical order, the definitions 
``covered rental vehicle'' and ``rental company,'' to read as follows:


Sec.  595.4   Definitions.

* * * * *
    The term covered rental vehicle is defined as it is in 49 U.S.C. 
30102(a).
* * * * *
    The term rental company is defined as it is in 49 U.S.C. 30102(a).
0
4. Amend Sec.  595.7 by adding paragraph (c)(19) to read as follows:


Sec.  595.7   Requirements for vehicle modifications to accommodate 
people with disabilities.

* * * * *
    (c) * * *
    (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 the driver or a passenger with a disability.
* * * * *
0
5. Add Sec.  595.8 to read as follows:


Sec.  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

[[Page 84292]]

standards, or portions thereof, are not covered by this exemption.
    (b) The exemption described in paragraph (a) 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 provide and retain a document 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 bags 
temporarily disabled,'' and,
    (4) Be removed when the modifications described in paragraph (d) 
are reversed.
    (f) The document required by paragraph (c) of this section shall:
    (1) Be provided in original or photocopied paper form, or in 
electronic form to the renter of the covered rental vehicle at the time 
of execution of the rental agreement;
    (2) Contain the name and physical address of the rental company 
making the modifications;
    (3) 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;
    (4) Be clearly identifiable as to the vehicle that has been 
modified; and
    (5) 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.

    Issued in Washington, DC, under authority delegated in 49 CFR 
1.95.
James C. Owens,
Deputy Administrator.
[FR Doc. 2020-28648 Filed 12-23-20; 8:45 am]
BILLING CODE 4910-59-P