Interpretation ID: 23299.rbm

Ms. Rebecca D. Plank
Executive Director
National Mobility Equipment Dealers Association
11211 N. Nebraska Avenue, Suite A-5
Tampa, FL 33612

Dear Ms. Plank:

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 NHTSA's position on vehicle conversions that require a lowered floor. The Federal Motor Vehicle Safety Standard (FMVSS) most likely to be affected by a modification that lowers the vehicle floor is FMVSS No. 301, Fuel system integrity. Your question is in response to a magazine advertisement that claims NHTSA has recommended dealers purchase completed lowered floor vehicles when such a conversion is needed.

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 FMVSSs. These standards specify safety performance requirements for motor vehicles and/or items of motor vehicle equipment. Manufacturers of motor vehicles must self-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). This exemption is codified at 49 CFR Part 595. While portions of several FMVSSs were included in the exemption, FMVSS No. 301, Fuel System Integrity, was not. Additionally, the exception was limited to modifications made after the first retail sale of the vehicle.

FMVSS No. 301 is a vehicle standard that addresses a vehicle's fuel system integrity. How and if the standard applies to a particular business is dependent upon the product or services that the business provides. Producers of equipment that is used in a system designed to comply with a particular FMVSS are component suppliers and would not be directly subject to the requirements of the standard, ⁽¹⁾ although any manufacturer or alterer using the product would be. Final stage manufacturers or alterers of vehicles that modify a vehicle system that the previous-stage manufacturer had certified as compliant must certify that the vehicle, as finally manufactured or altered, complies with all applicable FMVSS, including FMVSS No. 301. 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.

Since NHTSA has not included FMVSS No. 301 as part of the exemption from the make inoperative provision, a business cannot modify a vehicle in a manner that negates compliance with that standard, even if it is a modifier rather than a manufacturer or alterer. Accordingly, vehicle modifiers must take care to ensure that they do not modify the vehicle fuel system in a manner that takes it out of compliance with FMVSS No. 301.

The surest way to provide such assurances would be to purchase vehicles where the floor has already been lowered by the vehicle manufacturer or alterer, who has certified compliance with FMVSS No. 301. However, this is not necessarily the only way to assure a vehicle with a dropped floor still complies with FMVSS No. 301. Another way to provide assurance that compliance has not been compromised is by modifying the vehicle pursuant to a specific protocol based on analysis of crash-testing in accordance with FMVSS No. 301. For example, we believe that your organization, 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 to its Quality Assurance Program (QAP) members. If the resulting protocol were carefully followed, a modifier may be able to satisfy itself that the vehicle has not been taken out of compliance. Finally, a modifier may be able to use engineering analysis alone to determine whether the vehicle modification would take a vehicle out of compliance with the standard. This last option is the most risky since there is no crash-test data to verify the soundness of the modifier's judgment.

NHTSA cannot provide information as to whether specific types of modifications would have the effect of taking the vehicle out of compliance with FMVSS No. 301. This is the responsibility of the modifier. As noted above, the critical factor is whether the vehicle, as modified, would pass a FMVSS No. 301 crash test. Absent such vehicle specific test data, we urge vehicle modifiers to work closely with the vehicle manufacturers to determine whether a potential modification would take a vehicle out of compliance.

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.2/22/02

¹ As a practical matter, component suppliers often assume some responsibility to the vehicle manufacturer for the compliance of their products to applicable FMVSSs. This is done through a contractual relationship between the supplier and the vehicle manufacturer that certifies compliance.