Interpretation ID: GF009666

Dick Keller, Director of Business Development
Bruno Independent Living Aids
1780 Executive Drive
P.O. Box 84
Oconomowoc, WI 53066

Dear Mr. Keller:

This is in response to your letter regarding Federal motor vehicle safety standard (FMVSS) No. 202; "Head restraints".That standard provides several compliance options until September 1, 2008. You ask whether a vehicle modifier; i.e., (an entity that modifies a motor vehicle after the first retail sale) would be permitted to substitute seats in vehicles certified to one compliance option with seats that would enable the vehicle to meet a different compliance option during this period.

By way of background, on December 14, 2004, the National Highway Traffic Safety Administration (NHTSA) issued a final rule upgrading our head restraint standard. See 69 FR 74848.The new standard becomes effective September 1, 2008. In the final rule, we explained that between the date of issuance and September 1, 2008, vehicle manufacturers may comply with the existing NHTSA standard, the upgraded NHTSA standard, or the current European regulations pertaining to head restraints.

In your letter, you explain that Bruno is a manufacturer of motor vehicle devices designed to assist mobility impaired persons. One of your products is "Turning Automotive Seating" (TAS). The TAS is designed to swivel in order to allow easier egress/ingress for mobility impaired persons. The TAS is installed in place of regular seats provided by vehicle manufacturers. You state that vehicles equipped with TAS meet the requirements of the existing FMVSS No. 202, but not the requirements of the upgraded standard or the applicable European regulations. With respect to vehicles manufactured before September 1, 2008, you ask whether replacing a seat in a vehicle certified to the upgraded standard or the applicable European regulations with a seat that enables vehicles to meet the existing FMVSS No. 202 would violate 49 U.S.C. 30122.

49 U.S.C. 30122 prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from "making inoperative, in whole or in part" any part of a device or element of design installed on or in a motor vehicle in compliance with an applicable motor vehicle safety standard.

With respect to FMVSSs providing several compliance options, it is our opinion that the "make inoperative provision" does not prohibit substitution of equipment in vehicles certified to one compliance option with equipment enabling vehicles to meet a different option. Thus, until September 1, 2008, the substitution of seats in vehicles certified to the upgraded or European requirements with seats enabling vehicles to meet the existing FMVSS No. 202 would not violate 30122 with respect to our standard on head restraints.

I hope you find this information helpful. If you have further questions, you may contact Mr. George Feygin of my staff at (202) 366-2992.

Sincerely,

Stephen P. Wood
Acting Chief Counsel

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