Interpretation ID: 24237.rbm

Robert Brown, President
Sensible Solutions, LLC
7301 Brookside Drive
Frederick, MD 21702

Dear Mr. Brown:

This responds to your letter asking about the National Highway Traffic Safety Administration's (NHTSAs) limited exemption concerning vehicles modified for persons with disabilities (49 CFR Part 595, subpart C) and its policy regarding the installation of air bag on-off switches (49 CFR Part 595, subpart B).

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. We refer to that statute as the Vehicle Safety Act. It is codified at 49 U.S.C. 30101, et seq.

One of the agencys functions under the Vehicle Safety Act is to issue and enforce 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 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. NHTSA may assess a civil penalty to enforce this provision. NHTSA may also, 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.

The agency has issued two regulations exempting persons or businesses from the make inoperative prohibition. First, on November 21, 1997, NHTSA published a final rule allowing motor vehicle repair businesses to install retrofit air bag on-off switches in the vehicles of individuals who had written authorization from NHTSA to have such a switch installed. The authorization process requires individuals to submit an authorization request in which they have certified that they fall within one of the prescribed risk categories. Based upon a review of the authorization request, NHTSA can send a letter authorizing the installation of an air bag on-off switch. Based on that NHTSA letter, a motor vehicle repair business can install an air bag on-off switch as long as the switch meets the conditions specified in 49 CFR 595, subpart B.

Second, 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 in 49 CFR Part 595, subpart C. Only portions of some Federal motor vehicle safety standards are covered by the exemption. Specifically, the exemption only applies to modifications that have the effect of rendering mandatory safety equipment or features inoperative and that cannot otherwise be done in a manner that would not render the mandatory equipment or features inoperative. Additionally, the exemption does not apply to those modifications where the risk to safety is so great that an exemption is not justified. Further, the exemption does not apply to any modification that does not have the effect of making safety equipment or an element of vehicle design inoperative. In such instances no exemption is needed. An example of such a modification would be the installation of a mechanical hand control with little or no cutting of the knee bolster and no modification of the steering wheel other than the attachment of a rim-mounted steering control device. Likewise, the attachment of a pedal extender or seat belt extender should not have the effect of making any required safety equipment or vehicle design element inoperative.

One of the Federal safety standards to which the subpart C exemption applies is FMVSS No. 208, Occupant crash protection. Briefly stated, an air bag can be disconnected or removed if 1) a retrofit air bag on-off switch, alone, cannot accommodate the individual's disability and 2) the modified seating position is provided with Type 2 or Type 2A safety belts that meet the requirements of FMVSS No. 209, Seat belt assemblies, and FMVSS No. 210, Seat belt assembly anchorages.

You have asked whether individuals whose disabilities can be accommodated through the installation of retrofit air bag on-off switches in conjunction with pedal extenders, seatbelt extenders or hand controls are released from the requirement that they first receive NHTSA authorization to have an air bag on-off switch installed. The make inoperative exemption for FMVSS No. 208 can only be used to install an air bag on-off switch or disconnect an air bag if the switch installation or air bag deactivation is not the end goal of the modification affecting the air bag.

For example, when an individual's disability requires the use of a reduced diameter steering wheel, the original wheel must be removed. While the driver-side air bag is removed as part of the modification, its removal is not the intended goal of the modification. Another example is the installation of a six-way power seat base in a vehicle that has an air bag deployment sensor located under the seat. In the course of this modification, the sensor must be moved. If the modifier believes the sensor cannot be moved without making the air bag system inoperative, the portion of the Part 595, subpart C exemption addressing FMVSS No. 208 is available to the modifier, and the air bag can be disconnected.

An example of when the exemption could not be used would be the installation of a left-foot accelerator in which no other vehicle modifications were required. This installation would not, in and of itself, require the removal of the air bag or the installation of an air bag on-off switch. Accordingly, no exemption related to FMVSS No. 208 would be provided under Part 595, subpart C.

We stated in the preamble to the February 2001 final rule that if an air bag on-off switch will partially address an individual's disability but more extensive modifications are also required to accommodate the disability, there is no additional requirement for prior authorization for an on-off switch. This is because the modifier is already relying on the exemption in 49 CFR Part 595, subpart C to make the needed modifications. However, the additional modifications must be those affecting the vehicles compliance with the safety standards specified in Part 595, subpart C.^[1]

Modifications not covered by the limited exemption of 49 CFR Part 595, subpart C, continue to require prior agency authorization for the installation of an air bag on-off switch. Accordingly, with the exception of work performed for an individual with achondroplasia or atlantoaxial instability, if a vehicle modifier limits the modification on a particular vehicle to the installation of pedal extenders, seat belt extenders, or other minor modifications, with no other changes to the vehicle, it cannot rely on the exemption given in Part 595, subpart C to install an air bag on-off switch.

I hope this information is helpful. Should you require any additional information or assistance, please contact Rebecca MacPherson of my staff at (202) 366-2992 or at the address given above.

Sincerely,
Jacqueline Glassman
Chief Counsel
ref:595
d.7/2/02

^[1] Exceptions are for when the individual disability was achondroplasia (drivers only) or atlantoaxial instability (passengers only). No prior authorization was required even when the only modification needed to address the disability was the installation of an air bag on-off switch. The reason these two conditions were exempted from the normal process is because these are the only two conditions that have been identified as always necessitating deactivation of the air bag. This determination was made by a panel of physicians at a national medical conference on evaluating the air bag risk. The report from this conference may be viewed at the NHTSA web site at http://www.nhtsa.dot.gov.