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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).
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) (
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).
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
In addition, the 2007 rule added a new vehicle-to-pole test to the standard (
On February 12, 2009, Bruno Independent Living Aids (Bruno) submitted a petition for rulemaking to expand the specified requirements of FMVSS No. 214 referenced in § 595.7. Bruno manufactures a product line called “Turning Automotive Seating (TAS)” 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.
On September 28, 2010, NHTSA published an NPRM in the
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.
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 § 595.7(c)(15) to add references to both S7 and S9 and to remove any reference to S5.
Since § 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 (
This final rule also expands § 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 § 595.7(c)(15) is needed.
NHTSA has considered the impact of this rulemaking action under Executive
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
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.
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.
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
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 (
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 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.
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 (
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.
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.
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.
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.
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.
Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, we amend 49 CFR part 595 as follows:
49 U.S.C. 322, 30111, 30115, 30117, 30122 and 30166; delegation of authority at 49 CFR 1.50.
(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.