Interpretation ID: 16689b.nhf

Mr. George W. Hicks
Ingenium Services
3889 Mildred Avenue
Rochester Hills, MI 48309-4269

Dear Mr. Hicks:

This responds to your letter requesting permission from the National Highway Traffic Safety Administration (NHTSA) to modify a 1996 Braun Windstar II (Windstar) for a client who has progressive muscular dystrophy (MD). I apologize for the delay in my response. You explain that you need to replace the power seat base originally installed in the Windstar with the smaller power seat base from a 1989 Kneelcar your client drove for six years. You explain that the size of the Windstar's power seat base interferes with your client's ability to drive and requires her to exert considerable physical effort transferring to and from the driver's seat, which you state is problematic due to your client's physical condition. You explain that, with the smaller power seat base from the Kneelcar, your client will only have to exert minimal physical effort transferring to and from the driver's seat. Further, you explain that, due to its smaller size, the Kneelcar's power seat base does not interfere with your client's ability to drive.

While NHTSA cannot provide the specific relief you seek, since we are not authorized to grant waivers of safety standards under these circumstances, we can assure you that we will not institute enforcement proceedings against a commercial entity that modifies the seat base on a vehicle to accommodate the condition you described.

We would like to begin by explaining that NHTSA is authorized to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale. After the first sale of the vehicle, manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. In general, the "make inoperative" prohibition (49 U.S.C. 30122) requires businesses which modify motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable standard. Violations of this prohibition are punishable by civil penalties of up to $1,100 per violation.

There is no procedure by which businesses petition for and are granted permission from NHTSA to modify a motor vehicle. Businesses are permitted to modify vehicles without obtaining permission from NHTSA to do so, but are subject to the make inoperative provision of 49 U.S.C. 30122. In certain limited situations, we have exercised our discretion in enforcing our requirements to provide some allowances to a business which cannot conform to our requirements when making modifications to accommodate the special needs of persons with disabilities.

Removing the original power seat base and replacing it with the power seat base from the 1989 Kneelcar could affect compliance with four standards: Standard No. 207, Seating Systems, Standard No. 208, Occupant Crash Protection, Standard No. 209, Seat Belt Assemblies, and Standard No. 210, Seat Belt Assembly Anchorages. For example, Standard No. 208 requires vehicles to be equipped with specific manual and automatic restraint systems (e.g. seat belts and air bags) and to meet specified injury criteria during a test. Removing the original power seat base and replacing it with a smaller one could affect the vehicle's ability to meet the injury criteria specified in Standard No. 208. In situations such as yours where a vehicle must be modified to accommodate the needs of a particular disability, we have been willing to consider any violations of the "make inoperative" prohibition to be justified by public need. As I have already noted above, NHTSA will not institute enforcement proceedings against a business that replaces the original power seat base with the Kneelcar's power seat base to accommodate the condition you describe.

We caution, however, that only necessary modifications should be made. In addition, you should consult with the manufacturer to determine how to safely install and secure the power seat base to the Windstar. The manufacturer should be able to provide information on how the modification can be safely performed. Finally, if the vehicle is sold, we urge the owner to advise the purchaser that the vehicle has been modified and consider reinstalling the removed safety equipment if appropriate.

You may be interested in knowing that the agency is working on a proposal to regulate the aftermarket modification of vehicles for persons with disabilities by setting out exemptions from the make inoperative prohibition only for certain standards, including Standard 208, and under certain conditions. In place of the agency's current approach where each request for exemption from the make inoperative prohibition is reviewed case-by-case, this proposal would give clear guidance to modifiers about principles to follow when considering vehicle modifications to accommodate someone's disabilities. We intend to publish a notice of proposed rulemaking shortly.

I hope this information has been helpful. If you have any other questions or need some additional information in this area, please contact Nicole Fradette of my staff at this address or by phone at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
ref:VSA
d.5/113/98