
[Federal Register: December 18, 2009 (Volume 74, Number 242)]
[Proposed Rules]               
[Page 67156-67162]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de09-28]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 595

[Docket No. NHTSA-2009-0065]
RIN 2127-AK22

 
Make Inoperative Exemptions; Head Restraints

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

ACTION: Response to petition; Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: This notice of proposed rulemaking is being issued in response 
to a petition from Bruno Independent Living Aids to expand and update 
existing exemptions to the ``make inoperative'' prohibition with 
respect to the Federal motor vehicle safety standard on head 
restraints. These exemptions are included in a regulation that provides 
exemptions for the ``make inoperative'' provision for, among other 
things, vehicle modifications to accommodate people with disabilities. 
NHTSA is proposing two substantive changes to the regulation. The first 
is to expand the exemption from the minimum height requirements listed 
in the head restraint standard to include the right front passenger 
position in addition to the driver position. The second is to update 
the exemption to include relevant provisions of a new version of the 
head restraint standard. Additionally, this document proposes to update 
an existing reference in the exemption to reflect the current numbering 
in the Code of Federal Regulations. Finally, we are denying other 
requests to expand the exemption to certain other requirements of the 
head restraint standard.

DATES: You should submit our comments early enough to ensure that 
Docket Management receives them not later than February 16, 2010.

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.

[[Page 67157]]

     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 19477-78) or you may visit http://
DocketInfo.dot.gov.
    Docket: 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: For technical issues, you may contact 
Ms. Gayle Dalrymple, Office of Crash Avoidance Standards, NVS-123 (E-
mail: gayle.dalrymple@dot.gov) (Telephone: 202-366-2720) (Fax: 202-493-
2739).
    For legal issues, you may contact Mr. Ari Scott, Office of Chief 
Counsel, NCC-112 (E-mail: ari.scott@dot.gov) (Telephone: 202-366-2992) 
(Fax: 202-366-3820).
    You may send mail to these officials at National Highway Traffic 
Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 
20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    a. History of the Make Inoperative Exemptions
    b. Current Exemptions in Part 595 Regarding Head Restraints
    c. Petition for Rulemaking
II. Response to Petition
    a. Agency Analysis of the Safety Benefits of the TAS and Similar 
Systems
    b. Response to Requested for Changes to Part 595
    i. Proposal To Expand the Current Head Restraint Exemption to 
Right Front Passengers
    ii. Proposal To Update the Exemptions to Reflect Standard No. 
202a
    1. Proposal To Update Paragraph (c)(8)
    2. Proposal To Update the Paragraph (c)(9) Exemption to Include 
Head Restraint Height and Width Requirements for Drivers and Minimum 
Height Requirements for Right Front Passengers
    3. Reasons for Denying Bruno's Petition to Expand the Exemption 
for Vehicle Passenger Positions To Include Paragraphs S4.2.1(a) and 
S4.2.2 through S4.2.7
    iii. Correcting Reference to Paragraph S4.3 of Standard No. 202
III. Proposed Effective Date
IV. Rulemaking Analysis
V. Proposed Regulatory Text

I. Background

a. History of the Make Inoperative Exemptions

    Federal law requires vehicle manufacturers to certify that their 
vehicles comply with all applicable Federal motor vehicle safety 
standards (FMVSSs) (see 49 U.S.C. 30112). A vehicle manufacturer, 
distributor, dealer, or repair business generally 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 standard (see 49 
U.S.C. 30122). However, the National Highway Traffic Safety 
Administration (NHTSA) has the authority to issue regulations that 
exempt regulated entities from the make inoperative provision (see 49 
U.S.C. 30122(c)).
    On February 27, 2001, the agency issued a final rule (66 FR 12638) 
establishing exemptions from the make inoperative provisions for 
certain sections of several FMVSSs under certain limited circumstances 
when vehicles are modified to be used by persons with disabilities. 
This rulemaking was undertaken to facilitate the modification of motor 
vehicles so that persons with disabilities can drive or ride in them. 
Since the publication of the 2001 rule, NHTSA has made updates to the 
exemptions to keep pace with changes in the standards for which those 
exemptions were written. An example of such a change includes a final 
rule issued on August 31, 2005 (70 FR 51673) adding exemptions for the 
updated sections of FMVSS No. 201, Occupant Protection in Interior 
Impact, and FMVSS No. 208, Occupant Crash Protection, as well as 
establishing an exemption for FMVSS No. 225, Child Restraint Anchorage 
Systems.

b. Current Exemptions in Part 595 Regarding Head Restraints

    Currently, there are two portions of part 595 that deal with the 
head restraint requirements in Standard No. 202, Head Restraints. These 
exemptions from the make inoperative provision to accommodate people 
with disabilities include 49 CFR 595.7(c)(8), which provides an 
exemption from all requirements of Standard No. 202 for vehicles 
modified to accommodate a driver or right front passenger seated in a 
wheelchair and no other seat is provided, as well as 49 CFR 
595.7(c)(9), which provides an exemption from the driver side head 
restraint height/width requirements for vehicles modified to 
accommodate drivers with a disability. There are currently no 
exemptions in Part 595 that pertain to the requirements in the upgraded 
FMVSS No. 202a.

c. Petition for Rulemaking

    On January 2, 2007 NHTSA received a petition for rulemaking from 
Bruno Independent Living Aids (Bruno) requesting that we amend part 595 
to add an exemption for passengers' side head restraint systems. In 
submitting its petition, Bruno wished to facilitate use of its product, 
called Turning Automotive Seating (TAS), which provides access to motor 
vehicles to people with disabilities. This device consists of a 
rotating, motorized seat, which replaces the OEM seat in a motor 
vehicle. The TAS pivots from the forward-facing driving position to the 
side-facing entry position and extends outward and lowers to a suitable 
transfer height, providing the driver and/or passenger easy entry into 
the vehicle. The transfer into the seat takes place while outside the 
vehicle, and the occupant remains in the seat during the entry process, 
using OEM seat belts while traveling in the vehicle. Exiting the 
vehicle is accomplished by reversing the process. Another TAS option is 
a mobility base, which converts the automotive seat into a wheelchair, 
eliminating the need for transferring from the seat altogether. Bruno 
states that TAS systems provide mobility-impaired persons with safer 
and easier ways to enter and exit a vehicle.
    In its petition, Bruno states that the TAS provides substantial 
safety benefits. As a basis for this claim, Bruno cites a NHTSA 
Research published in 1997.\1\ In this note, the agency stated that 
between 1991 and 1995, 7,121 people were killed or injured due to the

[[Page 67158]]

following reasons: improper or no securement, lift malfunction, 
transferring to or from a motor vehicle, falling on or off the ramp, 
and a collision between the wheelchair and a motor vehicle.\2\ 
According to Bruno's petition, the TAS will help prevent 74% of those 
injuries--which includes all injuries except those occurring when a 
wheelchair is struck by a motor vehicle. This is because the TAS will 
provide wheelchair users an easy and safe way to enter and exit these 
vehicles.
---------------------------------------------------------------------------

    \1\ Wheelchair Users Injuries and Deaths Associated with Motor 
Vehicle related Incidents, September 1997, available at http://
www.nhtsa.dot.gov.
    \2\ Id., Table 2.
---------------------------------------------------------------------------

    Bruno indicated that the TAS currently complies with FMVSS No. 202. 
However, the clearance between the top of the head restraint and the 
door opening can restrict the number of viable vehicle applications. 
Bruno also stated that the increased head restraint height required by 
the new FMVSS No. 202a will significantly reduce the number of 
available vehicle applications.
    To facilitate the installation of the TAS on vehicles, Bruno 
requested that the make inoperative exemptions of 49 CFR part 595 be 
expanded and updated to cover both driver and passenger side head 
restraints, for persons not in a wheelchair, to reflect the new FMVSS 
No. 202a. Bruno suggested that the expanded exemptions it requires be 
added to either or both of the current Part 595 exemptions addressing 
head restraints.
    In requesting that the exemptions be updated to reflect the new 
FMVSS No. 202a, Bruno requested that the make inoperative provisions 
that provide exemptions to portions of FMVSS No. 202 be extended to 
cover the equivalent portions of FMVSS No. 202a. Additionally, that 
company requested that the exemptions in part 595 be expanded to cover 
several aspects of FMVSS No. 202a that are not currently provided for 
FMVSS No. 202. Specifically, Bruno requested more broadly that Part 595 
be updated to include an exemption for 49 CFR 571.202a S4.2.1 through 
S4.2.7. These paragraphs encompass requirements on minimum height, 
width, backsets, gaps, energy absorption, height retention, backset 
retention, displacement, and strength.
    Finally, Bruno noted an error where Sec.  595.7(c)(9) mistakenly 
points to S4.3 of Standard No. 202, instead of S4.2. In the current 
version of FMVSS No. 202, paragraph S4.3 contains documents 
incorporated by reference, while paragraph S4.2 contains the 
requirements for head restraints at issue.

II. Response to Petition

    NHTSA has decided to partially grant Bruno's petition. 
Specifically, and as discussed below, we are proposing to extend the 
height exemption in paragraph (c)(9) to cover the head restraints for 
the right front passenger as well as the driver. Additionally, we are 
proposing to update the exemption to cover the relevant portions of 
FMVSS No. 202a addressing height and width, and to correct the 
reference to paragraph S4.3 noted by Bruno. We are denying Bruno's 
request to provide exemptions for portions of FMVSS No. 202a other than 
ones addressing the height/width of head restraints. We are also 
proposing to update the exemption in paragraph (c)(8) to cite FMVSS No. 
202a.

a. Agency Analysis of the Benefits of the TAS and Similar Systems

    As stated above, Bruno made several arguments as to why the TAS 
provides safety and other benefits for people with disabilities. 
Therefore, it argues, it is in the public interest to expand the make 
inoperative provision of part 595 to facilitate the installation of the 
TAS in vehicles. The agency believes that these potential benefits 
apply not only to the TAS, but to similar systems that allow people 
with disabilities to enter and exit a vehicle in a similar fashion. In 
particular, the agency generally agrees that the TAS, and similar 
systems, provide benefits for people with disabilities, who may have 
difficulty entering or exiting a motor vehicle. Among other things, 
these systems permit people to enter and exit vehicles in a sitting 
position, without the need to climb or descend the height differential 
between the floor of the vehicle and the ground. In this fashion, they 
provide benefits in allowing people with disabilities to retain their 
mobility.
    While there may be some degradation in whiplash protection if the 
minimum size requirements of Standard No. 202 and 202a are not adhered 
to, it is our tentative conclusion that the benefits for people with 
disabilities outweigh those potential drawbacks. Therefore, we are 
proposing several amendments to part 595 to facilitate the installation 
of these kinds of systems.

b. Response to Request for Changes to Part 595

i. Proposal To Expand the Current Head Restraint Exemption to Right 
Front Passengers
    Section 595.7(c)(9) provides an exemption with regard to the height 
and width of the head restraint, as stated in paragraphs S4.2(b)(1) and 
(2) of FMVSS No. 202. This provision was established at the time of the 
first make inoperative final rule because NHTSA was aware of drivers 
who had a limited range of motion in turning their heads, and a head 
restraint of the size required by FMVSS No. 202 could interfere with 
the driver's ability to look behind for a lane change or backing.\3\ We 
did not provide the exemption for passenger seating positions because 
we wished to keep the exemptions as narrow as possible, and we were not 
aware of any needs for changes to passengers' head restraints.
---------------------------------------------------------------------------

    \3\ Id.
---------------------------------------------------------------------------

    With the advent of new technology such as the TAS, head restraint 
height becomes a problem for passenger seating positions as well, due 
to the problem of clearance between the head restraint and door 
opening. We believe the requested exemption is a reasonable trade-off 
of some possible degradation in whiplash protection in exchange for 
facilitating vehicle entry and exit, and the value of mobility for 
people with disabilities. Therefore, we are proposing to expand the 
exemption in Sec.  595.7(c)(9) regarding height to include right front 
passengers.
    We note that, in its petition, Bruno stated that the ``remedy we 
seek is an amended 49 CFR part 595 Exemption in Sec.  595.7(c)(8)(i), 
(c)(8)(ii), and/or (c)(9) to accommodate both drivers and passengers, 
not in a wheelchair, in a vehicle modified for persons with a 
disability to drive or be transported'' [emphasis in original]. It 
appears that Bruno was requesting that the agency modify part 595 to 
accommodate the TAS either by amending the exemption in paragraph 
(c)(8), or that in paragraph (c)(9). In order to achieve the maximum 
safety benefit of the regulations, it is our desire to provide the 
narrowest exemption possible in order to accommodate the needs of 
disabled persons, without expanding its use to situations where the 
benefits of the exemption may be outweighed by the drawbacks of 
noncompliance with the safety standard.
    Currently, Sec.  595.7(c)(8) provides an exemption from the 
entirety of FMVSS No. 202 for vehicles modified to accommodate either a 
driver ((c)(8)(i)) or right front passenger ((c)(8)(ii)) in a vehicle 
in which no respective seat is supplied with the vehicle. This 
provision was written to allow for the situation in which the vehicle 
was modified to use a wheelchair as a vehicle seat and no other seat 
was provided. If there is no seat, there is no head restraint, and 
therefore FMVSS No. 202 would have been made inoperative. By contrast, 
Sec.  595.7(c)(9) provides, for driver head restraints, an exemption

[[Page 67159]]

from the minimum dimension requirements set forth in paragraph S4.3(b).
    Given the two alternatives of providing an exemption from the whole 
standard, or just giving an exemption from the requirements relating to 
the dimensions of the head restraint, we are not proposing modification 
of Sec.  595.7(c)(8) in order to accommodate systems such as the TAS.
    Section 595.7(c)(9) grants a more narrow exemption with regard to 
the size of the head restraint, as stated in paragraphs S4.2(b)(1) and 
(2) of FMVSS No. 202. Since expansion of this more narrow exemption 
would accommodate systems such as the TAS, we believe it is the more 
appropriate approach to take.
ii. Proposal To Update the Exemptions To Reflect Standard No. 202a
1. Proposal To Update Paragraph (c)(8)
    Currently, Sec.  595.7(c)(8) contains an exemption for vehicles 
where either the entire driver's seat or right front passenger's seat 
is removed so that the position may be occupied by a person seated in a 
wheelchair and no other seat is delivered with the vehicle. This 
exemption currently provides an exemption from Standard No. 202 in its 
entirety for those vehicles. For the reasons stated above, NHTSA is not 
proposing that paragraph (c)(8) be expanded to include passengers other 
than those whose only vehicle seat is a wheelchair. However, NHTSA is 
proposing to update the exemption in paragraph (c)(8) to include an 
exemption from Standard No. 202a as well. This will continue to allow 
vehicles to be modified such that wheelchairs can be used in lieu of 
other vehicle seats.
2. Proposal To Update the Paragraph (c)(9) Exemption To Include Head 
Restraint Height and Width Requirements for Drivers and Minimum Height 
Requirements for Right Front Passengers
    Section 595.7(c)(9) already contains a provision permitting an 
exemption for the driver's head restraint from Standard No. 202 
S4.2(b)(1) and (2), which set the minimum requirements for the height 
and width of a head restraint, as stated above. The portions of 
Standard No. 202a that correspond to S4.2(b)(1) and (2) of Standard No. 
202 are paragraph S4.2.1(b) and S4.2.2, respectively. For reasons of 
clarity, in the proposed changes to part 595, we are placing the 
exemptions from the height requirements of FMVSS No. 202a in paragraph 
(c)(9)(iii), and the exemption from the width requirement in FMVSS No. 
202a in paragraph (c)(9)(iv). Therefore, for the regulatory text to 
reflect the continuity of this exemption, we are proposing several 
changes. The first, reflected in Sec.  595.7(c)(9)(iii), is to include 
a reference to paragraph S4.2.1(b) of Standard No. 202a in Sec.  
595.7(c)(9). Similarly, we are including a reference to S4.2.2 of 
Standard No. 202a in Sec.  595.7(c)(9)(iv), to update the current 
exemption for the driver's head restraint to include the updated FMVSS. 
This will enable the current exemption to apply to Standard No. 202a in 
addition to Standard No. 202.
    With regard to the passenger seating position, and in accordance 
with the petition for rulemaking, NHTSA is proposing to expand the 
exemption in Sec.  595(c)(9) to include an exemption from the minimum 
height requirements of 49 CFR 571.202a, S4.2.1(b), for the right front 
passenger position. As stated above with regard to the proposed 
expansion of Part 595 to the right front passenger head restraint 
requirements of FMVSS No. 202, we believe that this will facilitate the 
use of motor vehicles by persons with disabilities. As this relates to 
the minimum height requirement, this exemption will also be included in 
Sec.  595.7(c)(9)(iii). Therefore, we are proposing to add regulatory 
text to Sec.  595.7(c)(9), which reads:
     For vehicles manufactured on and after March 14, 2005 and 
certified to FMVSS No. 202a, S4.2.1(b) of 49 CFR 571.202a, in any case 
in which the head restraint must be modified to accommodate a driver or 
a front outboard passenger with a disability.
     For vehicles manufactured on and after March 14, 2005 and 
certified to FMVSS No. 202a, S4.2.2 of 49 CFR 571.202a, in any case in 
which the head restraint must be modified to accommodate a driver with 
a disability.
3. Reasons for Denying Bruno's Petition To Expand the Exemption for 
Vehicle Passenger Positions To Include Paragraphs S4.2.1(a) and S4.2.2 
Through S4.2.7
    In its petition, Bruno requested that the exemption in 59 CFR 595.7 
be expanded to include an exemption for paragraphs S4.2.1 through 
S4.2.7 of FMVSS No. 202a for all vehicle passenger positions. NHTSA, 
however, is proposing to limit the scope of the exemption to paragraph 
S4.2.1(b) (minimum height requirement). The other requirements listed 
in the paragraphs referenced by Bruno include:
     A requirement that the front head restraints be able to 
attain a height of at least 800 mm in at least one position of 
adjustment (see paragraph S4.2.1(a)).
     Width requirements similar to those listed in the current 
version of FMVSS No. 202 (see paragraph S4.2.2).
     New requirements limiting the distance between the back of 
the occupant's head and the head restraint on front head restraints 
(see paragraph S4.2.3).
     Limits on the size of gaps and openings in front 
restraints (see paragraph S4.2.4).
     New energy absorption criteria (see paragraph S4.2.5).
     New height retention criteria (see paragraph S4.2.6).
     Certain height, strength, position retention, and energy 
absorption levels for voluntarily installed rear head restraints (see 
paragraph S4.2.7).
    Bruno's petition described the potential problems if the TAS must 
adhere to all provisions of Standard No. 202a. Essentially, the problem 
was that the head restraint, attached to the TAS, would be too large, 
when installed in some vehicles, to clear the door frame on its path to 
provide an easy-to-access seat for a mobility-impaired driver or 
passenger.
    Our reason for denying the petition for an exemption for the 
requirements in Standard No. 202a, other than S4.2.1(b), is that Bruno 
has not provided a rationale for expanding the exemption to cover those 
areas of Standard No. 202a. Furthermore, most of these requirements are 
not dimensional in nature, and should not affect the ability of systems 
such as the TAS to enter and exit the vehicle. While the requirement in 
paragraph S4.2.1(a) is dimensional, it is a requirement that the head 
restraint be able to reach a certain height in only one position of 
adjustment. Therefore, because the head restraint can be lowered from 
that height, it should not interfere with the ability of the TAS to 
enter or exit the vehicle. We also note that the requirement in S4.2.2 
is dimensional, and is discussed below.
    As Bruno stated in its petition:

    [S]ince the entire seat rotates and exits the vehicle while 
assisting the occupant's access, clearance between the top of the 
head restraint and the door opening can restrict the number of 
viable vehicle applications. In first row applications, the 
rearward-slanted A-pillar is often the controlling feature for seat 
head restraint clearance with a large radius joining the top of the 
door opening. The increased head restraint height of FMVSS 202a will 
significantly reduce the number of vehicle applications where people 
with disabilities will have safe vehicle access with a Bruno TAS 
seat. [emphasis added]

    Based on this statement, NHTSA understands the need for an 
exemption

[[Page 67160]]

for the head restraint height requirement in FMVSS No. 202a, S4.2.1(b). 
However, Bruno did not provide reasons that the other requirements of 
FMVSS No. 202a (i.e., those listed in paragraphs S4.2.1(a) and S4.2.2 
through S4.2.7) would impede installation of the TAS. Therefore, in 
keeping with our desire to keep the exemptions as narrow as possible, 
we are not proposing to provide exemptions for these other 
requirements.
    NHTSA notes that Bruno did not provide a rationale for why an 
exemption for the width requirement is needed for the passenger seat. 
However, because the A-pillar slopes forward as it heads toward the 
roof of the vehicle, it is possible that the width of the head 
restraint (as required by paragraph S4.2.2) may also cause the A-pillar 
to interfere with the TAS as it attempts to exit and enter the vehicle. 
Therefore, we request comment on whether an exemption from S4.2.2 of 
FMVSS No. 202a for the front outboard passenger seat should also be 
included in the final rule. Additionally, we request comments on 
whether any of the additional exemptions requested by Bruno may be 
relevant to facilitate mobility for persons with disabilities.
iii. Correcting Reference to Paragraph S4.3 of Standard No. 202
    As discussed above, paragraph (c)(9) of 49 CFR part 595 contains a 
make inoperative exemption for FMVSS No. 202, Head Restraints. The 
current exemption was added as part of the original rulemaking creating 
part 595 on February 27, 2001.\4\ This exemption currently reads: 
``S4.3(b)(1) and (2) of 49 CFR 571.202, in any case in which the 
driver's head restraint must be modified to accommodate a driver with a 
disability.''
---------------------------------------------------------------------------

    \4\ It should be noted that in the original rulemaking 
establishing Part 595, the exemption erroneously referred to 
paragraphs S3(b)(1) and S3(b)(2) of FMVSS No. 202, which do not 
exist. This was changed to S4.3(b)(1) and S4.3(b)(2) in a correction 
notice issued April 20, 2004 (69 FR 21069).
---------------------------------------------------------------------------

    The sections of FMVSS No. 202 (the version in place in 2001 when 
the make inoperative exemptions were put into place) to which the above 
section refers read: ``S4.3(b) It shall, when adjusted to its fully 
extended design position, conform to each of the following: (1) When 
measured parallel to torso line, the top of the head restraint shall 
not be less than 700 mm above the seating reference point; (2) When 
measured either 64 mm below the top of the head restraint or 635 mm 
above the seating reference point, the lateral width of the head 
restraint shall not be less than i. 254 mm for use with bench-type 
seats; and ii. 171 mm for use with individual seats;''
    Since the make inoperative exemption for FMVSS No. 202 was first 
put in place, NHTSA has changed and upgraded FMVSS No. 202. There are 
two parts to this change. First, on December 14, 2004, NHTSA published 
FMVSS No. 202a (69 FR 74883), which is an updated version of FMVSS No. 
202 and subject to a phase-in, becomes mandatory beginning on September 
1, 2009. Manufacturers also have the option to comply with FMVSS No. 
202 or FMVSS No. 202a during an interim period. Second, the current 
version of FMVSS No. 202 (which, at the manufacturer's option, is 
applicable to vehicles manufactured during this interim period) has 
been updated to allow manufacturers to comply with either the existing 
version of FMVSS No. 202, ECE 17, or FMVSS No. 202a. The December 14, 
2004 final rule also changed the paragraph numbering of FMVSS No. 202. 
The requirements that were formerly given in S4.3 are now located in 
S4.2. Because of these changes, it is necessary to update the make 
inoperative exemption to be consistent with the numbering in the 
current FMVSS No. 202. Therefore, NHTSA is proposing to correct Sec.  
595.7(c)(9) to account for this change.
    As Sec.  595 may be applied to vehicles certified under different 
versions of Standard No. 202 (depending on the vehicle's date of 
manufacture), NHTSA is proposing an amendment to split this part of the 
exemption into two parts. The proposed regulatory text for the portion 
of 49 CFR 595.7(c)(9) at issue is:
     For vehicles manufactured before March 14, 2005, 
S4.3(b)(1) and (2) of 49 CFR 571.202, in any case in which the driver's 
head restraint must be modified to accommodate a driver with a 
disability.
     For vehicles manufactured on or after March 14, 2005 and 
certified to FMVSS No. 202, S4.2(b)(1) and (2) of 49 CFR 571.202, in 
any case in which the head restraint must be modified to accommodate a 
driver with a disability.
    This text will have the same effect as the text in 595.7(c)(9) does 
currently. However, it will help to alleviate the confusion currently 
caused by the fact that the text references only paragraph S4.3, which 
now lists items incorporated by reference in the current version of the 
CFR. For vehicles manufactured before March 14, 2005, the reference 
will continue to point to S4.3, the proper paragraph of the CFR as it 
existed at the time the vehicle was certified. For vehicles 
manufactured after that date, the reference will point to paragraph 
S4.2, which is the correct citation of the CFR as it existed when those 
vehicles were certified.

III. Proposed Effective Date

    Because this proposal would remove a restriction on the 
modification of vehicles for persons with disabilities, NHTSA 
anticipates making this amendment effective 30 days after the 
publication of a final rule under the Administrative Procedure Act, 5 
U.S.C. 553(d).

IV. Rulemaking Analysis

Executive Order 12866 and DOT Regulatory Policies and Procedures

    NHTSA has considered the impact of this rulemaking action under 
E.O. 12866 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.'' NHTSA has analyzed this proposal and determined that 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 also determined that the effects are so minor that a separate 
regulatory evaluation is not needed to support the subject rulemaking. 
For this particular proposal, no costs will be imposed by the agency's 
actions. The cost of doing business for the vehicle modification 
industry will not be changed by the subject proposal, and if anything, 
there could be a cost savings due to the proposed exemptions.
    Modifying a vehicle in a way that degrades the performance of head 
restraints could produce some negative safety effects for the occupants 
of the vehicle. However, the number of vehicles potentially modified 
would be very few in number, and the agency believes any disbenefits 
would be minimal. 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.

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

[[Page 67161]]

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, a Preliminary Regulatory Flexibility 
Analysis is not required.

Executive Order 13132 (Federalism)

    NHTSA has examined today's NPRM pursuant to Executive Order 13132 
(64 FR 43255, August 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 rule does not have federalism implications because the rule 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.''
    As this proposal is only to provide an exemption from a Federal 
requirement, we do not foresee that it will have any preemptive effect 
on State laws. We are unaware of any State law that would prohibit the 
actions permitted by this rule under Federal law.

Executive Order 12988 (Civil Justice Reform)

    When promulgating a regulation, Executive Order 12988 specifically 
requires that the agency must 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 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 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 any new reporting requirements or requests 
for information.

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.

V. Proposed Regulatory Text

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 as follows:

[[Page 67162]]

PART 595--MAKE INOPERATIVE EXEMPTIONS

    1. The authority citation for part 595 continues to read as 
follows:

    Authority:  49 U.S.C. 322, 30111, 30115, 30117, 30122 and 30166; 
delegation of authority at 49 CFR 1.50.

    2. Amend Sec.  595.7 by revising paragraphs (c)(8) and (c)(9) to 
read as follows:


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

* * * * *
    (c) * * *
    (8) 49 CFR 571.202 and 571.202a, in any case in which:
    (i) A motor vehicle is modified to be operated by a driver seated 
in a wheelchair and no other seat is supplied with the vehicle for the 
driver;
    (ii) A motor vehicle is modified to transport a right front 
passenger seated in a wheelchair and no other right front passenger 
seat is supplied with the vehicle; or (9) (i) For vehicles manufactured 
before March 14, 2005, S4.3(b)(1) and (2) of 49 CFR 571.202, in any 
case in which the driver's head restraint must be modified to 
accommodate a driver with a disability.
    (ii) For vehicles manufactured on or after March 14, 2005 and 
certified to FMVSS No. 202, S4.2(b)(1) and (2) of 49 CFR 571.202, in 
any case in which the head restraint must be modified to accommodate a 
driver with a disability.
    (iii) For vehicles manufactured on and after March 14, 2005 and 
certified to FMVSS No. 202a, S4.2.1(b) of 49 CFR 571.202a, in any case 
in which the head restraint must be modified to accommodate a driver or 
a front outboard passenger with a disability.
    (iv) For vehicles manufactured on and after March 14, 2005 and 
certified to FMVSS No. 202a, S4.2.2 of 49 CFR 571.202a, in any case in 
which the head restraint must be modified to accommodate a driver with 
a disability.
* * * * *

    Issued: December 10, 2009.
Stephen R. Kratzke,
Associate Administrator for Rulemaking.
[FR Doc. E9-29889 Filed 12-17-09; 8:45 am]
