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Interpretation ID: 23668.rbm



    Mark S. Lore, President
    Ride-Away Handicap Equipment Corporation
    51 Wentworth Avenue
    Londonderry, NH 03053

    Dear Mr. Lore:

    In a letter dated October 9, 2001, you asked three questions regarding compliance with 49 CFR 595.7(e)(5). This section sets forth certain disclosure requirements related to vehicle modifications made for a person with a disability. Among the requirements set forth in this section is a statement of the load carrying capacity of the vehicle if it has been reduced by more than 100 kilograms (220 pounds). I regret the delay in responding.

    By way of background, the National Highway Traffic Safety Administration (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 agency's 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 and providing the vehicle gross vehicle weight rating (GVWR).

    NHTSA's regulations impose certain requirements on those who alter in certain ways a vehicle that has been previously certified by a manufacturer but not yet sold in good faith for purposes other than resale. Alterers are considered to be manufacturers and are responsible for ensuring that the vehicle meets all applicable federal safety standards when delivered to the first retail customer. Alterers must determine whether those modifications could affect the vehicle manufacturer's certification of compliance and, if so, must apply a label adjacent to the original manufacturer's certification label stating that the vehicle, as altered, conforms with all applicable standards.

    Those who modify a completed vehicle after the first retail sale are considered to be "modifiers." 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 federal motor vehicle safety standard. 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.

    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.

    An underlying premise of Part 595 is that the individual for whom the modifications were made is unlikely to realize that the vehicle, as modified, may no longer meet all applicable FMVSS and may have a different load carrying capacity than listed in the owner's manual or on a tire placard. These vehicle changes could have an effect on the overall performance of the vehicle. Accordingly, we determined that vehicle modifiers who decide to take advantage of the exemption set forth in 49 CFR Part 595 should provide the customer with certain safety information and place a permanent label on the vehicle. The language for the label is set out in 49 CFR 595.7(d), and a detailed breakdown of the required information is contained in 49 CFR 595.7(e). One of the required pieces of information is the vehicle's load carrying capacity when it has been reduced by 100 kilograms (220 pounds) or more.

    This requirement was intended to address circumstances in which the cargo carrying capacity has been reduced as a result of the modification. The term GVWR is defined in 49 CFR 571.3 as "the value specified by the manufacturer as the loaded weight of a single vehicle." The GVWR informs vehicle owners how heavily the vehicle may be safely loaded. It also affects the vehicle's loading and other test conditions for the performance tests to ascertain whether the vehicle complies with applicable safety standards.

    The only express regulatory limitation on the GVWR that manufacturers may assign to their vehicles is set forth in 49 CFR 567.4(g)(3), which provides that the assigned GVWR "shall not be less than the sum of the unloaded vehicle weight, rated cargo load, and 150 pounds times the vehicle's designated seating capacity." "Unloaded vehicle weight" is defined in 49 CFR 571.3 as "the weight of a vehicle with maximum capacity of all fluids necessary for operation of the vehicle, but without cargo, occupants, or accessories that are ordinarily removed from the vehicle when they are not in use." Although the term "rated cargo load" is not defined by regulation, generally it is the GVWR of the vehicle minus the combined weight of the occupied designated seating positions (150 pounds times the total number of designated seating positions) and the unloaded vehicle weight.

    Alterers must also determine whether their modifications affect the manufacturer's stated GVWR, gross axle weight rating (GAWR), and vehicle type. If such a change has been made, the alterer must specify the new GVWR, GAWR, or vehicle type in a manner consistent with the capability of the vehicle to comply with applicable standards and operate at higher weight rating and/or as a different type of vehicle. NHTSA expects both manufacturers and alterers to assign GVWR and GAWRs that reflect the manufacturer's or alterer's good-faith evaluation of how the vehicle's braking, load bearing items (including tires), suspension, steering, and drive train components will react to the vehicle's weight, size, cargo-carrying capacity and intended use.

    Although the term "load carrying capacity" was not specifically defined in the February 2001 final rule, the term was intended to convey the same meaning as vehicle capacity weight, as defined in FMVSS No. 110, Tire selection and rims. "Vehicle capacity weight" is defined in that standard as the rated cargo and luggage load plus 68 kilograms (150 pounds) times the vehicle's designated seating capacity. Simply stated, a vehicle's load carrying capacity is its GVWR minus its unloaded weight.

    The number of designated seating positions used to determine the load carrying capacity may not be the same as the number of designated seating positions that were in the vehicle when the vehicle manufacturer or alterer assigned the GVWR. In many instances, one or more seating positions may be removed in order to make the modifications needed to accommodate a particular disability. When calculating the load carrying capacity under 49 CFR 595, if an original designated seating position is replaced by a wheelchair retention device that will be used to secure an occupied wheelchair, that position replaces the original designated seating position, i.e., 150 pounds must be allocated for that seating position but the weight of the removed seat may be deducted. If the original designated seating position is not replaced by another seat or a wheelchair retention device, it need not be considered as a designated seating position when calculating the load carrying capacity, and the weight of the removed seats, or other equipment, need not be considered.

    The installation of a wheelchair retention device to restrain an unoccupied wheelchair as cargo does not qualify as a designated seating position, and a modifier would not be required to allocate a 150 pound capacity for that position. The vehicle modifier may include the weight of the wheelchair as part of the load carrying capacity. However, the modifier is required to tell the owner of the vehicle whether the weight of the wheelchair has been included when determining the reduced load carrying capacity and when specifying what available load capacity remains. Moreover, since wheelchair weights can vary by hundreds of pounds between manually operated and self-propelled models, a modifier must state the weight it used for any wheelchair included in its calculation of available load capacity. As discussed in the February 2001 final rule, the vehicle modifications contemplated by 49 CFR 595, subpart C are limited to modifications made for a specific customer. Accordingly, the customer should be able to provide the modifier with the weight of any wheelchairs that they expect the vehicle to transport.

    You have asked three questions about the effect of the reduced load carrying capacity disclosure requirement of Part 595 on vehicle modifiers or alterers. Specifically, you asked:

      1. If the modifier/alterer A adds 200 pounds, and modifier/alterer B adds 20 or more pounds - both doing that prior to final delivery, who, if anyone is responsible for notification to the consumer?

      2. Often times conversion companies specializing in non-handicap equipment (RV's, custom vans, 4 wheel drive units, etc.) add in excess of 220 lbs. Or an amount that when added with a modifier will exceed the 200 pounds threshold. What are the requirements in the case in where there may be 3 or more modifiers each adding weight less than 220 pounds, but from aggregate level the amount exceeds 220 pounds? Who is responsible in this case for notification to the consumer?

      3. Many times handicap equipment modifiers remove certain equipment and then add other equipment. The ruling in this provision would require that modifiers weigh each vehicle, and notify the consumer if the total added/deleted equipment exceeded 220 pounds. Is this the intention?

    As noted above, Part 595, subpart C applies only to modifications made to accommodate a person with disabilities after the first retail sale. If the modifications were made prior to the first retail sale, the entity making the modifications would be an "alterer" and required to ensure that the vehicle complies with all applicable FMVSS. We anticipate that, since the alterer's certification will specify the GVWR and GAWR as altered and since the label will be placed next to the original certification label, any subsequent modifier will be able to assess whether the modification to accommodate a person with disabilities has resulted in a total reduction in the load carrying capacity of more than 100 kg (220 lbs). The modifier will then be responsible for providing the required information to the consumer.

    Similarly, any "conversion compan[y] specializing in non-handicap equipment" that alters a vehicle prior to its first retail sale is, again, an "alterer" responsible for placing an alterer's certification next to the original certification label. To the extent the vehicle has been modified after the first retail sale in a way that adds weight but does not affect compliance (such that no prior modification was required by Part 595), we anticipate that the owner of the vehicle or a modifier familiar with the base vehicle may be aware of the modification and that the modifier may be able to assess the amount of additional weight and gauge the extent to which the final modifications may have exceeded the original GVWR or GAWR. We expect that the modifier relying on Part 595 exemption will be able to assess whether the load carrying capacity of the vehicle, as wholly modified, has been reduced by more than 100 kg (220 lbs.) and will have sufficient experience and knowledge to determine in good faith whether the consumer must be provided with the Part 595 required information.

    Part 595 was not intended to require the modifier to weigh each vehicle. It is intended, however, to ensure that if the consumer receives a vehicle that has a significantly reduced load carrying capacity, s/he will be aware of that fact so as not to overload the vehicle and experience tire, braking, suspension, stability, and/or steering problems. Any good faith method to determine the reduction in load carrying capacity may be used. Nonetheless, if the only means of determining whether the load carrying capacity has been significantly reduced (i.e., reduced by more than 220 lbs) is to weigh the vehicle, then we anticipate the modifier will do so.

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

    Sincerely,

    Jacqueline Glassman
    Chief Counsel

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    d.4/25/02