Federal Register, Volume 77 Issue 208 (Friday, October 26, 2012)

[Federal Register Volume 77, Number 208 (Friday, October 26, 2012)]
[Proposed Rules]
[Pages 65352-65356]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-26353]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 595

[Docket No. NHTSA-2012-0149]
RIN 2127-AL17

Make Inoperative Exemptions; Vehicle Modifications To Accommodate
People With Disabilities, Ejection Mitigation

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This NPRM proposes to amend NHTSA's regulation regarding,
``Make Inoperative Exemptions, Vehicle Modifications to Accommodate
People With Disabilities,'' to include a new exemption relating to the
Federal motor vehicle safety standard for ejection mitigation. The
regulation facilitates the mobility of physically disabled drivers and
passengers. This document responds to a petition from Bruno Independent
Living Aids.

DATES: You should submit your comments early enough to ensure that the
Docket receives them not later than December 26, 2012.

ADDRESSES: You may submit comments to the docket number identified in
the heading of this document by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Docket Management Facility: U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: 1200 New Jersey Avenue SE., West
Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.
Fax: 202-493-2251.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Public
Participation heading of the SUPPLEMENTARY INFORMATION section of this
document. Note that all comments received will be posted without change
to http://www.regulations.gov, including any personal information
provided. Please see the Privacy Act heading below.
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477 through 78).
For access to the docket to read background documents or comments
received, go to http://www.regulations.gov or the street address listed
above. Follow the online instructions for accessing the dockets.

FOR FURTHER INFORMATION CONTACT: Gayle Dalrymple, NHTSA Office of Crash
Avoidance Standards, NVS-123 (telephone 202-366-5559), or Deirdre
Fujita, NHTSA Office of Chief Counsel, NCC-112 (telephone 202-366-2992)
The mailing address for these officials is: National Highway Traffic
Safety Administration, 1200 New Jersey Avenue SE., Washington, DC
20590.

SUPPLEMENTARY INFORMATION:

Background

The National Traffic and Motor Vehicle Safety Act (49 U.S.C.
Chapter 301) (``Safety Act'') and NHTSA's regulations require vehicle
manufacturers to certify that their vehicles comply with all applicable
Federal motor vehicle safety standards (FMVSSs) (see 49 U.S.C. 30112;
49 CFR part 567) at the time of manufacture. A vehicle manufacturer,
distributor, dealer, or repair business, except as indicated below, may
not knowingly make inoperative any part of a device or element of
design installed in or on a motor vehicle in compliance with an
applicable FMVSS (see 49 U.S.C. 30122). NHTSA has the authority to
issue regulations that exempt regulated entities from the ``make
inoperative'' provision (49 U.S.C. 30122(c)). The agency has used that
authority to promulgate 49 CFR part 595 subpart C, ``Make Inoperative
Exemptions, Vehicle Modifications to Accommodate People with
Disabilities.''
49 CFR part 595 subpart C sets forth exemptions from the make
inoperative provision to permit, under limited circumstances, vehicle
modifications that take the vehicles out of compliance with certain
FMVSSs when the vehicles are modified to be used by persons with
disabilities after the first retail sale of the vehicle for purposes
other than resale. The regulation was promulgated to facilitate the
modification of motor vehicles so that persons with disabilities can
drive or ride in them. The regulation involves information and
disclosure requirements and limits the

[[Page 65353]]

extent of modifications that may be made.
Under the regulation, a motor vehicle repair business that modifies
a vehicle to enable a person with a disability to operate or ride as a
passenger in the motor vehicle and that avails itself of the exemption
provided by 49 CFR part 595 subpart C must register itself with NHTSA.
The modifier is exempted from the make inoperative provision of the
Safety Act, but only to the extent that the modifications affect the
vehicle's compliance with the FMVSSs specified in 49 CFR 595.7(c) and
only to the extent specified in 595.7(c). Modifications that would take
the vehicle out of compliance with any other FMVSS, or with an FMVSS
listed in 595.7(c) but in a manner not specified in that paragraph, are
not exempted by the regulation. The modifier must affix a permanent
label to the vehicle identifying itself as the modifier and the vehicle
as no longer complying with all FMVSS in effect at original
manufacture, and must provide and retain a document listing the FMVSSs
with which the vehicle no longer complies and indicating any reduction
in the load carrying capacity of the vehicle of more than 100 kilograms
(220 pounds).

FMVSS No. 226 ``Ejection Mitigation'' and Part 595

On January 19, 2011,\1\ the agency published a final rule which
established a new Federal Motor Vehicle Safety Standard No. 226,
``Ejection Mitigation,'' to reduce the partial and complete ejection of
vehicle occupants through side windows in crashes, particularly
rollover crashes. The standard applies to passenger cars, and to
multipurpose passenger vehicles, trucks and buses with a gross vehicle
weight rating of 4,536 kg (10,000 pounds) or less, except walk-in vans,
vehicles with modified roofs and convertibles. Also excluded from this
standard are law enforcement vehicles, correctional institution
vehicles, taxis and limousines, if they have a fixed security partition
separating the first and second or second and third rows and if they
are produced by more than one manufacturer or are altered (within the
meaning of 49 CFR 567.7).
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\1\ 76 FR 3212.
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To assess compliance with FMVSS No. 226, the agency adopted a test
in which an impactor is propelled from inside a test vehicle toward the
windows. The ejection mitigation safety system is required to prevent
the impactor from moving more than a specified distance beyond the
plane of a window. In the test, the countermeasure must retain the
linear travel of the impactor such that the impactor must not travel
100 millimeters (mm) beyond the location of the inside surface of the
vehicle glazing. This displacement limit serves to control the size of
any gaps forming between the countermeasure (e.g., the ejection
mitigation side curtain air bag) and the window opening, thus reducing
the potential for both partial and complete ejection of an occupant.
To ensure that the systems cover the entire opening of each window
for the duration of a rollover, each side window will be impacted at up
to four locations around its perimeter at two time intervals following
NHTSA's manual deployment of the countermeasure. The agency anticipated
that manufacturers will meet the standard by means of air bag
technology, and possibly supplement the technology with advanced
glazing. Vehicle manufacturers may newly install ejection mitigation
air bag curtains, or will more likely modify existing side impact air
bag curtains. The existing side impact air bag curtains will be made
larger so that they cover more of the window opening, made more robust
to remain inflated longer, and made to deploy in both side impacts and
in rollovers using sensors. In addition, after deployment the curtains
will be tethered near the base of the vehicle's pillars or otherwise
designed to keep the impactor within the boundaries established by the
performance test.
We estimated the new requirements will save 373 lives and prevent
476 serious injuries per year. The final rule adopted a phase-in of the
new requirements, starting September 1, 2013.
FMVSS No. 226 is a new regulation and currently, 49 CFR Part 595
does not provide for an exemption for vehicles that are modified to
accommodate people with disabilities.

Petition for Rulemaking

On May 17, 2011, Bruno Independent Living Aids (Bruno) submitted a
petition for rulemaking to amend Sec. 595.7 to include an exemption
from the requirements of FMVSS No. 226. Bruno manufactures a product
line it calls ``Turning Automotive Seating (TAS).'' A TAS seat replaces
the seat installed by the original equipment manufacturer (OEM). Bruno
states that the purpose of the TAS is--

To provide safe access to private motor vehicles for mobility-
impaired drivers or passengers, semi-ambulatory or transferring from
a wheelchair. The Bruno TAS replaces the OEM seat in a sedan,
minivan, van, pickup, or SUV. In its various configurations the
Bruno TAS seat pivots from the forward-facing driving position to
the side-facing entry position, extends outward and lowers to a
suitable transfer height, providing the driver and/or passengers a
convenient and safe entry into the vehicle. The transfer into the
seat takes place safely, while outside the vehicle, and the occupant
remains in the seat during the entry process, using the OEM
seatbelts while traveling in the vehicle. Exiting the vehicle is
accomplished by reversing the process. A further TAS option is a
mobility base, which converts the automotive seat into a wheelchair,
that eliminates a need for transferring from the seat altogether.

The petitioner believes that the TAS method of vehicle entry and
exit is safer than using a platform lift to enter a vehicle or entering
and exiting unassisted.
Bruno refers to a September 2010 notice of proposed rulemaking \2\
(NPRM) that was published in response to a previous petition from Bruno
to amend part 595.7(c)(15) to expand a reference in the exemption
relating to FMVSS No. 214 ``Side impact protection.'' In June 2011,\3\
the agency published a final rule in that rulemaking. The final rule
provided an exemption from FMVSS No. 214's moving deformable barrier
and pole tests as applied to a designated seating position that must be
modified by changing the restraint system and/or seat at that position
to accommodate a person with a disability.
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\2\ 75 FR 59674.
\3\ 76 FR 37025.
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Bruno states in its current petition that FMVSS No. 226 will
enhance the side air bag technology of FMVSS No. 214 and that these
enhanced side air bags present much of the same difficulties when
accommodating the transportation needs of mobility impaired persons as
those discussed in the rulemaking for FMVSS No. 214. Bruno states:
``Where the FMVSS 226 ejection mitigation system is an OEM seat
component (e.g., seat back), it cannot be replaced within [sic] the TAS
replacement seat due to the large variety of seat designs and ICU
interfaces encountered. Also, the OEM seat can rarely, if ever, be
structurally modified to fit the TAS mechanism.'' Thus, Bruno believes
that an exemption from FMVSS No. 226 is warranted.

Response to Petition

NHTSA proposes to amend Sec. 595.7(c) to add an exemption for
FMVSS No. 226. However, we request comments on the necessity of the
exemption.
In the June 2011 final rule amending 49 CFR 595.7(c) to update and
expand a reference in an exemption relating to FMVSS No. 214, we
stated:

[[Page 65354]]

Removing an OEM seat that has a side air bag and replacing it
with an aftermarket seat that does not would likely make inoperative
the system installed in compliance with FMVSS No. 214. Making some
other substantive modification of the OEM seat or restraint system
to accommodate a person with a disability could also affect the
measurement of the injury criteria specified in the standard. We
believe that an exemption from the make inoperative provision with
regard to the pole test in FMVSS No. 214 is needed to permit
modification of the vehicle's seating system to accommodate a person
with a disability. This is comparable to the position taken by NHTSA
with regard to the make inoperative exemption for frontal air bags
required by FMVSS No. 208. See 595.7(c)(14). Thus, we conclude today
that the inclusion of S9 of FMVSS No. 214 in Sec. 595.7(c)(15) is
needed.

Bruno states that FMVSS No. 226 will enhance side curtain and torso
air bags, and that ``these enhanced side curtain and torso air bags
present much the same difficulties when accommodating the
transportation needs of mobility impaired person as those discussed in
the cited [FMVSS No. 214] NPRM.''
We do not quite agree with the petitioner's statements. FMVSS No.
226 is likely to affect side curtain air bags but will not affect torso
air bags or seat components. Further, there are significant differences
between the requirements in FMVSS Nos. 214 and 226. The MDB and pole
tests specified in FMVSS No. 214 are full vehicle dynamic crash tests
conducted with instrumented 5th percentile adult female and 50th
percentile adult male dummies. To meet the performance requirement of
FMVSS No. 214, side air bags providing head and torso protection are
typically provided in the seat. The seating procedures for locating the
dummies in the vehicle are specified in the standard. By removing the
seat that contains an air bag to accommodate a person with a disability
or installing a seat at a different location when compared to the
original seat position, as Bruno does when installing the TAS seat, the
vehicle may no longer be compliant with the FMVSS No. 214 requirements.
In contrast, the performance requirements specified in FMVSS No.
226 are based on a component test of the ejection mitigation
countermeasure (which heretofore consists of curtain air bags that
deploy from the headliner and not the seat). The ejection mitigation
air curtain retains the impactor within the vehicle. Impact locations
would be determined based on the shape of the window opening and are
not dependent on the location of dummies and/or seat position.
Therefore, it is possible, and maybe likely, that removing the original
seat and replacing it with a seat to accommodate a person with a
disability will have no negative impact on the performance of the
curtain air bags in the context of FMVSS No. 226. If this were just a
matter affecting ``those vehicles manufactured in compliance with FMVSS
No. 226 where the ejection mitigation system is an OEM seat component''
as petitioner describes the order requested, we do not see an obvious
need for an exemption.
However, the agency does recognize the possibility that the side
impact sensing and electronic architecture system could be integrated
with that of the ejection mitigation rollover protection system.
Because of this integration, if a seat is modified or replaced to
accommodate a person with a disability and the FMVSS No. 214 side
impact air bag system is deactivated, tangentially the FMVSS No. 226
rollover ejection mitigation system could also be deactivated. For this
reason, even though the ejection mitigation side curtain air bags'
performance in a component test would not necessarily be compromised by
installing a new seat, the electronics that would deploy the restraint
in a rollover could be. Thus, for vehicles in which the seat is
modified or replaced, it may not be practical to exempt them from the
side impact requirements and not from ejection mitigation requirements.
We realize that FMVSS No. 226 requires side window coverage
extending over the first three rows of vehicles, which among other
things does help protect rear seat passengers from partial and full
ejection. Vehicle manufacturing designs generally utilize one ejection
mitigation curtain air bag per side to protect the front and the rear
rows. If the side curtain air bag must be made inoperative to
accommodate a disabled person in the driver's position or in a rear
passenger position (e.g., to install a TAS seat in the driver's
position or the rear seat position), ejection mitigation protection
provided by the curtain would be made inoperative for the other
occupants as well (even those not using a TAS seat). If a TAS seat were
installed at the driver's seat, exempting only the front window opening
from FMVSS No. 226 requirements would not be possible because the rear
seat on the same side where the front seat was modified makes use of
the same ejection mitigation curtain air bag.
We thus recognize that the petitioner's request presents a trade-
off of substantial ejection mitigation protection in exchange for
continued mobility for people with disabilities and some enhancement in
easier and possibly safer vehicle entry and exit. Comments are
requested on the proposed exemption. To achieve the maximum safety
benefit of the regulations, it is our desire to provide the narrowest
exemption possible to accommodate the needs of disabled persons,
without unreasonably expanding its use to situations where the benefits
of the exemption may be outweighed by the drawbacks of nonconformance
with the safety standard.
We seek comment on whether the requested exemption is needed. Would
deactivating the side impact protection system also deactivate the
ejection mitigation system on vehicles? If the ejection mitigation
window curtains are controlled by a sensor that is separate from the
FMVSS No. 214 side impact sensor system, is the requested exemption
needed? If the sensor systems are distinct, could the vehicle seating
system be removed or modified without negatively affecting the
performance of ejection mitigation curtains? Could the exemption be
only for the ejection mitigation countermeasure (curtains) on the side
of the vehicle affected by the modification, rather than for both
sides?

Dates

We are providing a 60-day comment period. In view of the September
1, 2013 phase-in date for FMVSS No. 226, and because this rulemaking
would remove a restriction on the modification of vehicles for persons
with disabilities, if a final rule is issued NHTSA anticipates making
the amendment effective in less than 180 days following publication of
the rule.

Rulemaking Analyses and Notices

Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563, and DOT Regulatory Policies and Procedures

The agency has considered the impact of this rulemaking action
under E.O. 12866, E.O. 13563, and the Department of Transportation's
regulatory policies and procedures. This rulemaking document was not
reviewed by the Office of Management and Budget under E.O. 12866,
``Regulatory Planning and Review.'' It is not considered to be
significant under E.O. 12866 or the Department's Regulatory Policies
and Procedures (44 FR 11034; February 26, 1979). NHTSA has determined
that the effects are so minor that a regulatory evaluation is not
needed to support the subject rulemaking. This rulemaking would impose
no costs on the vehicle modification industry. If anything, there

[[Page 65355]]

could be a cost savings due to the proposed exemption.
Modifying a vehicle in a way that makes inoperative the performance
of ejection mitigation air bags would be detrimental for the occupants
of the vehicle in a rollover. However, the number of vehicles
potentially modified would be very few in number. This is essentially
the trade-off that NHTSA is faced with when increasing mobility for
persons with disabilities: when necessary vehicle modifications are
made, some safety may unavoidably be lost to gain personal mobility. We
have requested comments on how the agency may make the exemption as
narrow as reasonably possible.

Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of proposed rulemaking or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
The Small Business Administration's regulations at 13 CFR part 121
define a small business, in part, as a business entity ``which operates
primarily within the United States.'' (13 CFR 121.105(a)). No
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule will not have a
significant economic impact on a substantial number of small entities.
NHTSA has considered the effects of this proposed rule under the
Regulatory Flexibility Act. Most dealerships and repair businesses are
considered small entities, and a substantial number of these businesses
modify vehicles to accommodate individuals with disabilities. I certify
that this proposed rule would not have a significant economic impact on
a substantial number of small entities. While most dealers and repair
businesses would be considered small entities, the proposed exemption
would not impose any new requirements, but would instead provide
additional flexibility. Therefore, the impacts on any small businesses
affected by this rulemaking would not be substantial.

Executive Order 13132 (Federalism)

NHTSA has examined today's proposed rule pursuant to Executive
Order 13132 (64 FR 43255; Aug. 10, 1999) and concluded that no
additional consultation with States, local governments, or their
representatives is mandated beyond the rulemaking process. The agency
has concluded that the proposed rule does not have sufficient
federalism implications to warrant consultation with State and local
officials or the preparation of a federalism summary impact statement.
The proposal does not have ``substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government.'' This proposed rule would not impose any
requirements on anyone. This proposal would lessen a burden on
modifiers.
NHTSA rules can have preemptive effect in two ways. First, the
National Traffic and Motor Vehicle Safety Act contains an express
preemption provision:

When a motor vehicle safety standard is in effect under this
chapter, a State or a political subdivision of a State may prescribe
or continue in effect a standard applicable to the same aspect of
performance of a motor vehicle or motor vehicle equipment only if
the standard is identical to the standard prescribed under this
chapter.

49 U.S.C. 30103(b)(1). This provision is not relevant to this
rulemaking as it does not involve the establishing, amending or
revoking or a Federal motor vehicle safety standard.
Second, the Supreme Court has recognized the possibility, in some
instances, of implied preemption of State requirements imposed on motor
vehicle manufacturers, including sanctions imposed by State tort law.
We are unaware of any State law or action that would prohibit the
actions that this proposed rule would permit.

Civil Justice Reform

When promulgating a regulation, agencies are required under
Executive Order 12988 to make every reasonable effort to ensure that
the regulation, as appropriate: (1) Specifies in clear language the
preemptive effect; (2) specifies in clear language the effect on
existing Federal law or regulation, including all provisions repealed,
circumscribed, displaced, impaired, or modified; (3) provides a clear
legal standard for affected conduct rather than a general standard,
while promoting simplification and burden reduction; (4) specifies in
clear language the retroactive effect; (5) specifies whether
administrative proceedings are to be required before parties may file
suit in court; (6) explicitly or implicitly defines key terms; and (7)
addresses other important issues affecting clarity and general
draftsmanship of regulations.
Pursuant to this Order, NHTSA notes as follows. The preemptive
effect of this proposed rule is discussed above. NHTSA notes further
that there is no requirement that individuals submit a petition for
reconsideration or pursue other administrative proceeding before they
may file suit in court.

National Technology Transfer and Advancement Act

Under the National Technology Transfer and Advancement Act of 1995
(NTTAA) (Pub. L. 104-113), ``all Federal agencies and departments shall
use technical standards that are developed or adopted by voluntary
consensus standards bodies, using such technical standards as a means
to carry out policy objectives or activities determined by the agencies
and departments.'' Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies, such as the Society of Automotive
Engineers (SAE). The NTTAA directs us to provide Congress, through OMB,
explanations when we decide not to use available and applicable
voluntary consensus standards. No voluntary standards exist regarding
this proposed exemption for modification of vehicles to accommodate
persons with disabilities.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 requires agencies to
prepare a written assessment of the costs, benefits and other effects
of proposed or final rules that include a Federal mandate likely to
result in the expenditure by State, local or tribal governments, in the
aggregate, or by the private sector, of more than $100 million annually
(adjusted for inflation with base year of 1995). This proposed
exemption would not result in expenditures by State, local or tribal
governments, in the aggregate, or by the private sector in excess of
$100 million annually.

National Environmental Policy Act

NHTSA has analyzed this rulemaking action for the purposes of the
National Environmental Policy Act. The agency has determined that
implementation of this action would not have any

[[Page 65356]]

significant impact on the quality of the human environment.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA), a person is not
required to respond to a collection of information by a Federal agency
unless the collection displays a valid OMB control number. This
proposal does not contain new reporting requirements or requests for
information beyond what is already required by 49 CFR part 595 subpart
C. An entity taking advantage of the exemption would simply list FMVSS
No. 226 in the document described in 49 CFR 595.7(b).

Plain Language

Executive Order 12866 requires each agency to write all rules in
plain language. Application of the principles of plain language
includes consideration of the following questions:
Have we organized the material to suit the public's needs?
Are the requirements in the rule clearly stated?
Does the rule contain technical language or jargon that
isn't clear?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rule easier to understand?
Would more (but shorter) sections be better?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rule easier to
understand?
If you have any responses to these questions, please include them
in your comments on this proposal.

Regulation Identifier Number (RIN)

The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN contained in the heading at the beginning of this document
to find this action in the Unified Agenda.

List of Subjects in 49 CFR Part 595

Motor vehicle safety, Motor vehicles.

In consideration of the foregoing, we propose to amend 49 CFR part
595 to read as follows:

PART 595--MAKE INOPERATIVE EXEMPTIONS

1. The authority citation for Part 595 would be revised to read as
follows:

Authority: 49 U.S.C. 322, 30111, 30115, 30117, 30122 and 30166;
delegation of authority at 49 CFR 1.95.

2. Amend Sec. 595.7 by adding paragraph (c)(17) to read as
follows:

Sec. 595.7 Requirements for vehicle modifications to accommodate
people with disabilities.

* * * * *
(c) * * *
(17) S4.2 and S5 of 49 CFR 571.226, on the side of the vehicle
where a seat on that side of the vehicle must be changed to accommodate
a person with a disability.
* * * * *

Issued on: October 23, 2012.
Christopher J. Bonanti,
Associate Administrator for Rulemaking.
[FR Doc. 2012-26353 Filed 10-25-12; 8:45 am]
BILLING CODE 4910-59-P