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Interpretation ID: 22944.rbm



    Mr. Jurgen Babirad
    FSSA Consultant
    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) recent 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.

    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, i.e., vehicles that are driven on the public roads and highways of 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). Many of these standards specify safety performance requirements for motor vehicles, while others do so for 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). While portions of several FMVSSs were subject to the exemption, FMVSS No. 301, Fuel System Integrity, and FMVSS No. 105, Hydraulic and Electric Brake Systems, were not. Additionally, the exception was limited to modifications made after the first retail sale of the vehicle.

    In your letter, you raised several questions related to the February 27 final rule that are detailed below.

      1) Is there a "grace period" in which vendors can still modify vans without regard to this new ruling?

    NHTSA has never provided a "grace period" during which businesses could modify vehicles in a manner that would negate compliance with applicable FMVSSs. Rather, the Part 595 exemption allows businesses to make such modifications subject to the terms of the exemption. The exemption took effect April 30, 2001. Prior to that time, NHTSA considered requests from businesses or individual vehicle owners on a case-by-case basis. NHTSA issued letters stating that it would not take enforcement action against the business if it made the modifications detailed in its correspondence to the agency.

    The final rule also imposed certain reporting requirements for businesses that avail themselves of the Part 595 exemption. Those requirements did not take effect until August 27, 2001. The separate effective date for the reporting requirements did not create a "grace period" from the prohibition against making required safety equipment inoperative.

      2) Can the air bag exemption (FMVSS No. 208, Occupant Crash Protection) be granted if another type vehicle could be done without interfering with the air bag system or its components?

    The Part 595 exemption does not require a different vehicle to be used in situations where modification could be done on that vehicle in a manner that does not negate compliance with a portion of a FMVSS that is included in the Part 595 exemption. However, if a vehicle has not yet been purchased, the purchaser should consider whether another vehicle may be more appropriate for the types of contemplated modifications.

      3) Is it reasonable to believe that moving the under-the-seat air bag module would affect the operation of the OEM system? Would moving the module (such as between the two front seating locations) require new crash testing to provide needed documentation that the system has been recertified in this configuration?

    It is certainly possible that moving an air bag module or sensor could affect the operation of the original system. While a modifier would need to assure itself that such a modification does not undermine compliance with a standard that is not subject to a Part 595 exemption, NHTSA has included certain relevant portions of FMVSS No. 208 in the Part 595 exemption.

      4) To our knowledge there is not a crash tested lowered floor Chevy G-1500 conversion type. Lowering the floor 4" would either require relocating the OEM tank, rerouting the fuel filler neck and hoses and or replacing the tank with an aftermarket model. General Motors does not offer a factory approved replacement fuel tank and fuel delivery system. Would any of these modification methods be compliant with FMVSS 301?

    As noted above, FMVSS No. 301 is not included in the Part 595 exemption. Accordingly, a modifier must assure that vehicle modifications do not negate compliance with the standard. However, it is not possible for NHTSA to answer your question "Would any of these modification methods be compliant with FMVSS No. 301?" NHTSA does not approve motor vehicles or motor vehicle equipment items, nor does the agency endorse any commercial products or vendors. Furthermore, we cannot provide specific information as to whether the types of potential modifications you have discussed would have the effect of taking the vehicle out of compliance with FMVSS No. 301. This responsibility lies with the modifier. If a lowered floor is desired, one way to provide assurance that modifications do not undermine compliance is to purchase a vehicle with a lowered floor that has been certified as complying with FMVSS No. 301. Another way 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 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. 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.

      5) Moving the anti-lock brake sensor may affect the braking system. FMVSS No. 105 was not granted permission to be made inoperative. Would moving the module from the OEM location require testing and recertification? What method of testing would satisfy the recertification requirement?

    As discussed in response to the previous question, any modification that may take a vehicle out of compliance with a particular safety standard must be done in a manner that does not take the vehicle out of compliance unless the affected portion of the standard is covered be the Part 595 exemption. If the exemption is not applicable, the modifier must assure itself that the vehicle has not been taken out of compliance. Since FMVSS No. 105 does not require destructive crash-testing, the modifier may choose to run the test protocol set forth in FMVSS No. 105. Alternatively, the modifier may be able to rely on the other alternatives provided in the response to the previous question.

    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 FMVSS No. 301 or FMVSS No. 105. Such responsibility lies with the modifier. As noted above, the critical factor is whether the vehicle, as modified, would pass NHTSA's compliance tests for those standards. Absent such vehicle specific test data, we urge vehicle modifiers to work closely with 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,

    Jacqueline Glassman
    Chief Counsel

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