Interpretation ID: 09-007987 bolduc feb25 11

Mr. Jacques Bolduc

Technical Advisor

National Mobility Equipment Dealers Association (NMEDA)

3327 W. Bearss Avenue

Tampa, FL 33618

Dear Mr. Bolduc:

This letter responds to your letter dated June 17, 2009 regarding phase-in compliance periods for new or amended Federal motor vehicle safety standards, as related to the make inoperative provision of the National Traffic and Motor Vehicle Safety Act (Safety Act). I sincerely apologize for the delay in this response.

You note that, in the case of many new or amended standards, there is a 100 percent compliance date for vehicles produced in a single stage and a later compliance date (usually one year later) for vehicles produced by alterers and final-stage manufacturers.[1] By way of example, you refer to the upgraded rear impact crash requirements of S6.2(b) of Federal Motor Vehicle Safety Standard (FMVSS) No. 301, Fuel System Integrity. The 100 percent compliance date for manufacturers of vehicles produced in a single stage was September 1, 2008. The compliance date for alterers and final stage manufacturers was September 1, 2009 (S8.2, FMVSS No. 301).

You ask about the example of a company that is both an alterer and a modifier of vehicles modified to accommodate disabled persons. You state that the company performs the same manufacturing process on vehicles. When the company performs the process before the first retail sale, the company is an alterer.[2] You note that, as an alterer, the company had until September 1, 2009 to meet the upgraded rear impact crash requirement of FMVSS

No. 301. On the other hand, had the company performed the process after the first retail sale, the company would be a modifier. (Modifier is not defined in the regulations issued by the

agency, but we would say in the context you present, the term generally refers to an entity adding, substituting, removing, repairing, or reworking components on a used vehicle.) There is no express provision in the upgraded FMVSS No. 301 that addresses modifiers.

You ask about FMVSS No. 301s phase-in period between September 1, 2008 and September 1, 2009. You ask whether NHTSA considers a modifier of a vehicle equivalent to an alterer for purposes of S8.2.1 of FMVSS No. 301.

Short Answer

Our response to your question is no. A modifier of a vehicle is not the same as an alterer. A modifier that is performing processes between the compliance date applicable to original manufacturers and the compliance date applicable to alterers on a vehicle certified by its original manufacturer as meeting the upgraded rear impact requirements of S6.2(b)) must ensure that its modification does not make inoperative the compliance of the vehicle with S6.2(b).

Background

The make inoperative provision of the Safety Act (49 USC 30122(b)) prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from knowingly making inoperative, in whole or in part, any part of a device or element of design installed on or in a motor vehicle in compliance with an applicable motor vehicle safety standard. An alterer is responsible for continued compliance with the FMVSSs and is required by 49 CFR

567.7 to affix a label, similar to the certification label affixed by the original manufacturer, certifying that the altered vehicle complies with all applicable FMVSSs affected by the alteration.

FMVSS No. 301 specifies requirements for the integrity of motor vehicle fuel systems and serves to reduce deaths and injuries resulting from fuel spillage during and after motor vehicle crashes. As provided by S6.2(a), vehicles manufactured before September 1, 2006 were required to meet the fuel spillage requirements when impacted from the rear by a barrier moving at 48 km/h (30 mph). As provided by S6.2(b), vehicles manufactured on or after September 1, 2006, are required to meet the fuel spillage requirements when impacted from the rear by a barrier moving at 80 km/h (50 mph).

The upgraded requirements of S6.2(b) were phased in, such that specified percentages of each manufacturers fleet manufactured on or after September 1, 2006 were required to meet the new requirements, with full compliance, with some exceptions, being required for vehicles manufactured on or after September 1, 2008. Special provision was made for vehicles produced by alterers and final-stage manufacturers (see S8.2 of FMVSS No. 301). Alterers and final-stage manufacturers had the option of a September 1, 2009 compliance date for their vehicles (S8.2). That is, vehicles produced by these manufacturers before September 1, 2009, were not required to comply with the upgraded requirements of S6.2(b). The vehicles they manufactured on or after September 1, 2009, must comply with the upgraded requirements.

Discussion

In your letter, you wish to equate alterers with modifiers. We cannot do so. S8.2 of FMVSS No. 301 provides special accommodation for alterers, a term defined in 49 CFR  567.3. S8.2 provides no special accommodation for modifiers.

We believe that there are sound reasons for not equating alterers to modifiers for purposes of S8.2 and 49 CFR 571.8(b). There are legally significant differences between alterers and modifiers that justify the need to treat them differently. As discussed above, an alterer has an affirmative certification obligation. An alterer that performs a manufacturing process on a vehicle must certify the vehicles continued compliance with applicable FMVSSs. This certification must be placed near the original manufacturers certification label. In contrast, a modifier has no certification obligation. The modifiers sole obligation is to ensure that it does not violate the make inoperative provision of 49 USC  30122(b).

Because of their certification responsibilities, alterers and final-stage manufacturers are provided additional time to meet a new or upgraded standard. Incomplete vehicle manufacturers often do not provide final-stage manufacturers with information necessary to certify their vehicles until shortly before, and in some cases, after the effective date of the standard in question. See 70 FR 7418. If a vehicle manufacturer waits until the last possible moment to certify vehicles, alterers and final-stage manufacturers will not be able to conduct any engineering analysis to determine if the alterations and manufacturing processes affect compliance. See 70 FR 7425. The additional time provides more time for engineering analysis of the vehicles to be produced by alterers and final-stage manufacturers.

Since a modifier has no certification obligation, the need for more time to meet a new or amended standard does not apply to modifiers. NHTSA views with disfavor vehicle modifications, performed after first retail sale, that take a vehicle out of compliance with the FMVSSs, except as permitted under 49 CFR Part 595. See 70 FR 7427. It does not seem reasonable to permit modifiers, during that one-year period between the full phase-in of a standard or a requirement and the compliance date for alterers, to make inoperative a device or element of design that has been installed to meet the upgraded FMVSS No. 301 requirements. Doing so would permit anyone, as a modifier, to make inoperative a device or element of design installed to meet the new or upgraded standard until the compliance date for alterers and final-stage manufacturers is reached. This would, in effect, annul the compliance date of the standard as applied to vehicles manufactured in one stage for a year, which would be contrary to sound public policy.[3]

Previous Interpretation

You also refer to an April 7, 2006 interpretation letter to Mr. Dick Keller, Director of Business Development for Bruno Independent Living Aids. In that letter, we concluded that, if an FMVSS offers multiple compliance options for manufacturers, it would not violate the make inoperative provision for a modifier to substitute equipment in vehicles certified to one compliance option with equipment enabling vehicles to meet a different option.

We do not believe that letter is applicable to the issue you raise. The standard at issue in the letter to Mr. Keller, FMVSS No. 202, Head Restraints, offered manufacturers three options for compliance with head restraint requirements prior to September 1, 2008, the effective date of a new standard: (1) Complying with the existing NHTSA standard, (2) complying with the upgraded NHTSA standard, or (3) complying with the then current European regulations. Bruno wished to replace seats on vehicles manufactured before September 1, 2008 that complied with the applicable European regulations with seats that met the existing NHTSA standard but not the European regulation. We concluded that the make inoperative provision did not prevent the substitution of seats.

In the case of the upgraded rear impact crash requirements of FMVSS No. 301, the standard did not offer manufacturers multiple options for compliance for vehicles manufactured on or after September 1, 2008. Because the manufacturer of the vehicles did not have multiple compliance options with FMVSS No. 301, a modifier that modifies a vehicle in a manner such that it would not comply with the upgraded standard would violate the make inoperative provision of 49 USC 30122(b).

If you have any further questions, please feel free to contact David Jasinski of my office at (202) 366-2992.

Sincerely yours,

O. Kevin Vincent

Chief Counsel

Ref: FMVSS No.301

7/29/2011