Interpretation ID: 22915.rbm

Mr. Jurgen Babirad
Rehabilitation Technology Associates, Inc
P.O. Box 540
Kinderhook, NY 12106

Dear Mr. Babirad:

This responds to your correspondence regarding the National Highway Traffic Safety Administration's (NHTSA) final rule on vehicle modifications for individuals with disabilities. You ask about the applicability of that rule to a conversion that requires a lowered floor and the installation of a power transfer seat, mechanical hand controls, a steering spinner, an automatic wheelchair lift, and a power door opener. You are concerned that such a conversion may affect the vehicle's compliance with FMVSS No. 105, Hydraulic and electric brake systems, FMVSS No. 206, Door locks and door retention components, FMVSS No. 208, Occupant crash protection, and FMVSS No. 301, Fuel system integrity.

By way of background, NHTSA administers a statute requiring that motor vehicles manufactured for sale in the United States or imported into the United States be manufactured so as to reduce the likelihood of motor vehicle crashes and of deaths and injuries when crashes do occur. That statute is the National Traffic and Motor Vehicle Safety Act of 1966 ("Vehicle Safety Act") (49 U.S.C. '' 30101, et seq.).

One of the agency's most important functions under that Act is to issue and enforce the Federal Motor Vehicle Safety Standards (FMVSSs). These standards specify safety performance requirements for motor vehicles and/or items of motor vehicle equipment. Manufacturers of motor vehicles must certify compliance with all applicable safety standards and permanently apply a label to each vehicle stating that the vehicle complies with all applicable FMVSSs.

The Vehicle Safety Act also prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment that is in compliance with any applicable FMVSS (49 U.S.C. 30122). If NHTSA determines that a business has violated the make inoperative provision, it may assess a civil penalty in the amount of $5,000 per violation (not to exceed $15,000,000 in the aggregate). NHTSA may, through regulation, exempt a person or business from the prohibition if it decides that an exemption is consistent with motor vehicle safety and the Vehicle Safety Act.

On February 27, 2001, NHTSA published a final rule setting forth a limited exemption from the make inoperative prohibition for businesses or individuals who modify vehicles for persons with disabilities (66 Federal Register 12638; Docket No. NHTSA-01-8667). The exception, codified at 49 CFR Part 595, was limited to modifications made after the first retail sale of the vehicle. Accordingly, it does not apply to vehicle manufacturers or alterers. Vehicle modifiers, i.e., businesses that modify a vehicle after first retail sale, may not modify a vehicle in such a way as to negate the vehicle's compliance with any applicable FMVSSs for which there is no exemption, although the modifier is not required to certify compliance with all applicable standards.

While portions of several FMVSSs, including FMVSS No. 208, are included in the Part 595 exemption, FMVSS No. 105, FMVSS No. 206, and FMVSS No. 301 are not. I note however that, by its terms, FMVSS No. 206 does not apply to vehicle doors that are equipped with a wheelchair lift as long as the lift system has either an audible alarm or a visual alarm that can be seen by the driver of the vehicle.

Because there is no exemption related to fuel systems, or to hydraulic or electric brake systems, ⁽¹⁾ vehicle modifiers must take care to ensure that they do not modify the fuel and brake systems in a manner that takes the vehicle out of compliance with FMVSS No. 301 or FMVSS No. 105. The surest way to do so would be to purchase vehicles in which any needed changes were already made by the vehicle manufacturer or alterer, who has certified compliance with FMVSS No. 105 and FMVSS No. 301. Another way would be to modify the vehicle pursuant to a specific protocol based on analysis of compliance testing in accordance with those two standards. For example, we believe that the National Mobility Equipment Dealers Association (NMEDA) has successfully crash-tested a vehicle with a lowered floor and that it provides an explanation of how to make such a modification without compromising compliance with the FMVSS to its Quality Assurance Program (QAP) members. Although it might be possible for a modifier to use engineering analysis alone to determine whether a modification would take a vehicle out of compliance with the standards, this option is risky since there would be no compliance test data to verify the soundness of the modifier's judgment.

As noted above, portions of FMVSS No. 208 are included in the Part 595 exemption from the make inoperative provision. Specifically, those portions of FMVSS No. 208 that require an air bag (S4.1.5(a)(1), S4.1.5.1(a)(3), S4.2.6.2, and S5) or address seat belt adjustment (S7.1), seat belt latch assembly (S7.2), or seat belt comfort and convenience (S7.4) are included in the exemption as long as the affected seating position has a Type 2 or Type 2A seat belt that meets the requirements of 49 CFR 571.209 and 49 CFR 571.210.

NHTSA cannot provide information as to whether the types of potential modifications you have discussed would have the effect of taking the vehicle out of compliance with any of the safety standards addressed in this letter or whether they would fall within the exemption in 49 CFR Part 595. That responsibility lies with the modifier. Accordingly, we urge vehicle modifiers to work closely with the vehicle manufacturers to determine whether a potential modification would take a vehicle out of compliance and to ensure that a modification that is subject to the Part 595 exemption is done consistent with the exemption.

I hope the addresses your concerns. Please contact Rebecca MacPherson of my staff at this address or at (202) 366-2992 should you have any additional questions about this matter.

Sincerely,

John Womack
Acting Chief Counsel

ref:595
d.12/14/01

¹ Part 595 does include an exemption from the requirement in FMVSS No. 135 that the brake be pedal-operated.