Interpretation ID: 20872nhf

Mr. Robert J. Carlson
Warranty Specialist
City of Everett Transportation Services
Motor Vehicle Division
3200 Cedar Street
Everett, WA 98201-4599

Dear Mr. Carlson:

This responds to your letter requesting guidance as to whether you may obtain authorization to relocate or exchange the original manufacturer's driver's seat in your Ford/El Dorado National ParaTransit Buses, and as to whether you may add a driver's side air bag on-off switch. I regret the delay in responding.

You explain that these Paratransit vans are used to transport people with disabilities, some of whom are seated in wheelchairs. You explain that your drivers must often assist the passengers with entering and exiting the van and with fastening their seatbelts. Your drivers generally exit to the right of the driver's seat due to concerns with roadside traffic. You explain that your drivers have experienced difficulty entering and exiting the vehicle because of the lack of room between the seat and engine component cover. Your drivers have complained of back, shoulder and arm pain. You also explain that an ergonomist has examined the vehicles and determined that the seats could cause work-related claims. You state that your drivers have threatened to take union and legal action against the City, Ford, and El Dorado National (the manufacturer of the paratransit buses). You have had three Ford seat bases and two seat back frames fail since March 1999. You believe that these seat base and seat back frame failures are caused by the frequent side to side movement of the drivers entering and exiting the vehicles. You explain that you did not experience these problems with your old paratransit buses which were equipped with heavy-duty air ride seats.

You explain that you have investigated the possibility of either moving the existing seat back four inches or installing heavy-duty air ride seats. You state that Ford Motor Company has told you that any change to the driver's seat will void the vehicle's certification to the Federal motor vehicle safety standards (FMVSS) and release Ford of any safety or product liability. Specifically, you ask whether you may replace the original manufacturer's seats or move the existing seats back several inches, or add a driver's side air bag on-off switch. Your question is addressed below.

We would like to begin by explaining that the National Highway Traffic Safety Administration (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. Thus, a dealer or repair business could relocate or exchange the original manufacturer's driver's seat so long as such action did not negatively affect the vehicle's compliance with the Federal motor vehicle safety standards.

The make inoperative prohibition does not apply to the actions of a vehicle owner in modifying his or her vehicle. Therefore, it does not apply to any of the modifications you may perform to the vehicles you own and use for paratransit. Thus, you may modify the vehicle regardless of the effect on compliance with FMVSSs. You may, however, wish to consult a private attorney concerning any state law implications associated with modifying your vehicles, including potential liability implications, and whether such modifications will void your warranty with Ford.

We note that the purpose of the "make inoperative" prohibition is to ensure that current and subsequent owners and users of the vehicle are not deprived of the maximum protection afforded by the vehicle as newly manufactured. Therefore, we encourage you not to unnecessarily compromise the safety of the vehicles you modify. Finally, if you sell the vehicles, we urge you to advise the purchaser that the vehicle has been modified and consider repositioning the seat and reinstalling any removed safety equipment if appropriate.

We are unsure why you would want to add a driver's side air bag on-off switch in the event that you relocated the driver seat rearward. Air bags create risks to persons who are too close to the air bag at the time of deployment. Relocation of the driver seat rearward would therefore appear to make it less likely, rather than more likely, that a person would be at risk from the air bag. It is possible, however, that relocation of the seat could adversely affect the air bag sensing system. Installing an air bag on-off switch would not resolve such a problem. We would urge you to consult with Ford about the potential consequences of relocating the seat and what actions could be taken to minimize any adverse safety consequences.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:VSA
d.7/7/00