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Interpretation ID: NMEDA_questions

    Mr. Jacques Bolduc
    SRD Bolduc, Inc.
    20, 34th Ave O.
    Blainville, QC
    J7C 2X9
    Canada


    Dear Mr. Bolduc:

    This responds to your letter regarding Federal Motor Vehicle Safety Standard (FMVSS) Nos. 403, Platform lift systems for motor vehicles, and 404, Platform lift installations in motor vehicles. Your letter contained a series of questions compiled by you and the National Mobility Equipment Dealers Association regarding the applicability of FMVSS Nos. 403 and 404. I have addressed each of your questions below.

    1. Is there a specific manufacturing date for the vehicle?

      2. 49 CFR Part 567 requires vehicle manufacturers to affix a certification label to a motor vehicle. Section 567(g)(2) requires the certification label to include the month and year of manufacturer. As originally established, vehicle and lift manufacturers were required to comply with FMVSS Nos. 403 and 404 beginning December 27, 2004. We understand that your question reflects concern with the potential difficulty in determining whether a vehicle manufactured in December 2004 would be required to comply with FMVSS No. 404 given that the manufacture date does not provide the day of manufacture.

      On December 23, 2004, the agency published a final rule that extended the compliance date of FMVSS No. 403 until April 1, 2005, and compliance date of FMVSS No. 404 until July 1, 2005 (69 FR 76865). The new compliance dates are at the beginning of the months. Therefore, the manufacture date provided on the certification label provides sufficient information to determine whether a vehicle was manufactured on or after the FMVSS No. 404 compliance date.

    2. If a modifier has a client that refuses to use anything but a rotary lift what options are available?

      3. FMVSS No. 403 applies to all platform lifts designed to carry passengers into and out of motor vehicles. In instances in which different requirements and / or variations in test procedures are necessary for rotary lifts, the regulation provide the appropriate specifications; e.g. , S7.7.3. We are unaware of any technical impediments that would prevent the manufacture of rotary platform lifts, which comply with FMVSS No. 403.

    3. Follow-up to question 2. It is very unlikely that the rotary type lift can be made compliant, at least in the short term. If the lift user cannot use a more traditional type lift that is compliant to FMVSS 403, is there any way for him to legally have this type of non-compliant lift installed in his vehicle?

      4. As stated in our response to Question 2, we are not aware of any reason that would prevent the manufacture of compliant rotary platform lifts. Nevertheless, a vehicle owner may have a non-complaint lift (i.e. , a lift manufactured before the compliance date of FMVSS No. 403) installed on a vehicle so long as the installation is performed after the first retail sale of the vehicle and the vehicle was not originally certified as complying with FMVSS No. 404.

      See Letter to Deny Betrand, January 1, 2005 (copy enclosed); and Letter to Michelle Filippi, February 11, 2005 (copy enclosed).

    4. What about existing bids that are with government agencies that rely on the pre-FMVSS Nos. 403 and 404 prices.

      5. We cannot comment on the practices of other government agencies. FMVSS Nos. 403 and 404 were established on December 27, 2002 (67 FR 79416). This provided industry with a two-year lead time to make the necessary preparations for compliance. As stated above, NHTSA recently extended the compliance dates for these standards providing additional time for these preparations.

    5. Follow-up to question 4. Since the increase in cost for the compliant lift is still unknown, how could we have provided a quote to our customers last year?

      6. As stated above, industry was originally provided a two-year lead time prior to the effective dates of the standards.

    6. Manufacturers are sending out notices to buy up lifts that were manufactured prior to the compliance date so that they have an inventory of pre-FMVSS No. 403 lifts. Lift manufacturers have stated these lifts may be installed on vehicles without FMVSS Nos. 403 and 404 compliance concerns. Is this correct?

      7. As established in the December 2004 final rule, lifts manufactured prior to April 1, 2005 are not required to comply with FMVSS No. 403. Lifts manufactured prior to the compliance date may be held in inventory and sold without having to comply with FMVSS No. 403. Under FMVSS No. 404 however, all vehicles with a manufacture date of July 1, 2005 and later that are manufactured with a platform lift must comply with the vehicle standard. Vehicles subject to FMVSS No. 404 must be equipped with an FMVSS No. 403-compliant lift.

      Generally, FMVSSs apply to motor vehicles and motor vehicle equipment up to their first retail sale. See 49 CFR 30112. After the first retail sale of a vehicle, manufacturers, distributors, dealers, and repair businesses are prohibited from "making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. 49 U.S.C. 30122.

      If after first retail sale, a platform lift is added to a vehicle that was not originally required to comply with FMVSS No. 404, regardless of the vehicle manufacture date, a modifier is not required to bring that vehicle into compliance with FMVSS No. 404; i.e. , there is no requirement to equip the modified vehicle with an FMVSS No. 403-compliant lift.

      See Letter to Deny Betrand and Letter to Michelle Filippi, referenced above.

    7. S6.13.1 of FMVSS No. 403 requires platform lift manufacturers to specify the vehicles on which the lift is designed to be installed. Vehicles may be identified by listing the make, model, and year of the vehicles for which the lift is suitable, or by specifying the design elements that would make a vehicle an appropriate host for the particular lift, and for which the platform lift manufacturer has certified compliance. How are design elements to be determined?

      8. It is the responsibility of the lift manufacturer to determine the design elements that make a vehicle an appropriate host for a lift. If a lift manufacturer chooses to provide design elements as opposed to specifying a specific host vehicle, it must ensure that the design elements are sufficient to maintain a lifts compliance with all of the applicable requirements of FMVSS No. 403 when installed and provide the design element information in the installation instructions.

    8. Follow-up to question 7. In the event that the design elements specified by the lift manufacturer are too complex or specialized for an average installer to understand, how does the installer determine it has complied with FMVSS No. 404?

      9. In instances in which a vehicle must comply with FMVSS No. 404, it is the responsibility of the party installing the lift to ensure that the vehicle complies with the standard; the lift is FMVSS No. 403 compliant; and the lift is installed in accordance with the lift manufacturers instructions. If an installer has questions regarding the vehicle design requirements specified by the platform lift manufacturer, we suggest that the installer contact the lift manufacturer.

    9. Follow-up to question 7. If the installation of a platform lift on a vehicle specified by the platform lift manufacturer takes the vehicle out of compliance or makes inoperative a regulated safety feature (for example, the lift manufacturer may require that the vehicle structure be such that it must be altered in a manner that could affect crashworthiness), can we assume that the lift manufacturer is assuming compliance responsibility because it is instructing the installer to alter the vehicle?

      10. It is the responsibility of the business installing the lift to ensure that the installation does not take the vehicle out of compliance with any applicable FMVSS. It is the responsibility of the lift manufacturer to certify that its products comply with all applicable FMVSSs before the products can be offered for sale. If a lift is installed after the first retail sale of a vehicle, it is the responsibility of the installer, if that installer is a manufacturer, distributor, dealer, or repair business, to ensure that the installation does not take a vehicle out of compliance with any applicable FMVSS. See 49 U.S.C. 30122.

    10. What if a client wants to transfer their existing lift (built before 12/27), because they cannot afford a new lift, into a new and/or used vehicle (built after 12/27)? How does the modifier stay in compliance?

      11. Refer to the response to Question # 6.

    11. Follow-up to question 10. Situation:Several customers lease vans for two or three years with lifts that are used only occasionally. As these lifts are still in good shape at the end of the lease, the normal procedure has been to transfer the current customer owned (used) lift to the replacement lease van. Lifts are usually replaced every other lease.
      Questions:
      • Can a customer owned (used) non FMVSS No. 403-complaint lift be transferred to a customer owned van that is manufactured after the FMVSS No. 404 compliance date?
      • Can a customer owned (used) non FMVSS No. 403-compliant lift be transferred to a new replacement van built after the FMVSS No. 404 compliant date?
      • Can a new non FMVSS No. 403 compliant lift in inventory be installed in a customer owned van built after the FMVSS No. 404 compliant date?

      12. Again, please refer to the response to Question # 6. Also, see the response to Question #3.

    12. Can a repair business (modifier) disconnect a regulated feature that is malfunctioning and is the cause of user safety concerns, for example a continuously faulty switch that makes the deploy function inoperable?

      13. As previously explained, 49 U.S.C. 30122 prohibits vehicle manufacturers, distributors, dealers, and repair businesses from "making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. However, removal of a malfunctioning component would not violate the "make inoperative provision" because that element or design would already be inoperative.

      A modifier removing a defective component would have to ensure that the removal would not make inoperative any other aspect of the lift. Further, we would encourage the proper repair or replacement of a malfunctioning component as opposed to its removal.

    13. Follow up to question 12. If it appears that the malfunction discussed in question 12 is a design defect, can a modifier make that feature inoperative, or otherwise modify the lift manufacturers design so as to ensure the safety of the lift user?

      14. As stated in our response to Question # 12, removal of a malfunctioning component would not make inoperative an element or design installed on the lift in compliance with the standard because that element would already be inoperative. A modifier removing a defective component would have to ensure that the removal would not make inoperative any other aspect of the lift. Again, we would encourage the proper repair or replacement of a malfunctioning component as opposed to its removal.

      Further, if a modifier believes that a platform lift has a design defect, he or she should contact our Office of Defects Investigation at 1-888-DASH-2-DOT (1-888-327-4236).

    14. Follow up to question 12. If a customer who has an FMVSS No. 403-compliant lift has a service problem down the road and is unable or unwilling to pay for the repair of one of the interlocks and demands the modifier get the lift working without the interlock, can this be done? What is the liability from the modifier's standpoint?

      15. There is no affirmative duty for a repair business to repair a platform lift so that it is brought into compliance with FMVSS No. 403 in instances in which the platform lift was not in compliance with FMVSS No. 403 prior to initiation of the repair work.

      Potential liability questions should be addressed to a private attorney who is familiar with tort law.

    15. Follow up to question 12. If a customer disconnects an interlock and later brings the lift in for service, can the modifier repair the lift without being required to bring the lift back into compliance?

      16. Refer to the response to Question # 14 above.

    16. Can a business recondition an old lift (manufactured before 12/27) that he took as a trade-in and install it in a vehicle manufactured after 12/27?

      17. FMVSS No. 403 applies to lifts manufactured on and after April 1, 2005. A lift manufactured prior to that date would not need to comply with the standard. Regarding the installation of a reconditioned non FMVSS No. 403-compliant lift, please refer to the response to Questions # 3 and # 6.

    17. Whose responsibility is it to supply the interlock and platform lighting for the lift? Currently, both are available from the lift manufacturers but only as options. Do these systems need to be supplied with the lift?

      18. On October 1, 2004, FMVSS No. 403 was amended with respect to the interlock and lighting requirements (69 FR 58843). As originally established a platform lift was required to be equipped with all of the necessary interlocks. In the October 2004 final rule we recognized that in many cases the vehicle sensors and switches needed by an interlock system may already be part of an existing vehicle system. S6.10.2 of FMVSS No. 403 now permits a platform lift manufacturer to provide less than a full interlock system intended to work in conjunction with a vehicles existing components, as long as when the platform lift is installed according to the installation instructions, the interlock requirements of S6.10.2.1 through S6.10.2.7 are met.

      The October 2004 final rule also amended the platform lift lighting requirements. The requirement to provide lighting for a public use lift is now the responsibility of the vehicle manufacturer under S4.1.5 of FMVSS No. 404.

    18. If the vehicle being equipped with a lift does not have an owners manual, are we to understand that the lift manufacturers manual does not have to be given to the vehicle owner?

      19. S6.12 of FMVSS No. 403 requires that platform lift manufacturers provide inserts for a vehicle owners manual to provide specific information about the platform lift. S4.2 of FMVSS No. 404 requires that if a vehicle is equipped with an owners manual, the owners manual must contain the inserts. The inserts provide information that is critical to the safe operation of a platform lift. If a vehicle were not accompanied by an owners manual we would still expect the final lift customer to be provided a document with the information required in S6.12.1 through S6.12.4.

    19. The 403 compliant lift has several new features, some of which a customer may not want. Must a lift be installed with all of the elements provided made operational (i.e. , threshold warning device, lights, interlock, etc. )?

      20. If a vehicle is required to comply with FMVSS No. 404, any lift installed on that vehicle must comply with FMVSS No. 403 and the platform lift as installed must continue to comply with all the applicable requirements of FMVSS No. 403. See S4.1.4 of FMVSS No. 404.

      The agency recognizes that the installation of a compliant lift onto a vehicle that is not required to comply with FMVSS No. 404 may require removal or alteration of elements installed on the lift for purposes of compliance with FMVSS No. 403; e.g. , removal or alteration of the threshold warning system or interlock system. Because the vehicle is not required to be equipped with an FMVSS No. 403 compliant lift, we would not consider alterations to the lift in this situation as making the lift inoperative with FMVSS No. 403 within the meaning of 49 U.S.C. 30122.

    20. Can the end user-owner disconnect the threshold warning device once the FMVSS No. 403/404 compliant lift/vehicle is home in their driveway?

      21. The "make inoperative" provision previously discussed does not apply to modifications a vehicle owner makes to his or her own vehicle. Our standards do not prevent a vehicle owner from disconnecting the threshold warning device on their own vehicle. However, State law may prevent such a modification.

    21. Do I have to buy a wheelchair lift-vehicle interlock with the 403 compliant lift?

      22. As previously stated, S6.10.2 through S6.10.2.7 establish the interlock requirements. Lift manufacturers may either provide all the interlocks necessary to meet the requirements or provide less than a full interlock system intended to work in conjunction with a vehicles existing components, as long as when the platform lift is installed according to the installation instructions, the interlock requirements are met.

    22. Does a 403 compliant lift have to include a wheelchair lift-vehicle interlock?

      23. Refer to the response to Question # 21.

    23. When wiring the lift-vehicle interlock, must I use the "lift stowed" signal from the lift as an input to verify if the lift is stowed or deployed?

      24. S4.1.3 of FMVSS No. 404 requires that platform lifts must be installed in accordance with the installation instructions or procedures provided pursuant to S6.13 of Standard 403. Additionally, S6.13.2 of FMVSS No. 403 requires platform lift manufacturers to provide procedures for operational checks that must be performed to verify that a lift is fully operational. If the installation instructions or the operational checks specify the use of a "lift stowed" signal, then that signal must be relied upon for compliance under FMVSS No. 404.

    24. What determines if I can use a Public Use or Private Use lift in my vehicle?

      25. S4.1.1 of FMVSS No. 404 requires that lift-equipped buses, school buses, and multipurpose passenger vehicles, other than motor homes, with a gross vehicle weight rating (GVWR) greater than 4,536 kg (10,000 lb) be equipped with a public use lift certified as meeting public use lift requirements of FMVSS No. 403.

    25. Can a private use lift, as defined under FMVSS No. 403, be equipped with platform lighting?

      26. S4.1.5 of FMVSS No. 404 establishes platform lighting requirements for vehicles equipped with a public use lift. Vehicles equipped with private use lifts are not required to be equipped with platform lighting. However, nothing in FMVSS Nos. 403 and 404 prevents a private use lift from being equipped with platform lighting.

    26. If the customer wants an FMVSS No. 403-compliant, public use lift installed on a vehicle not required to be equipped with a public use lift, must the platform lighting be provided?

      27. If a public use lift, as defined in FMVSS No. 403, is installed on a vehicle that must comply with FMVSS No. 404 then platform lighting must be provided. S4.1.5 of FMVSS No. 404 requires that a public use lift, as installed, have a light or lighting system that provides the required level of illumination.

    27. How does an OEM/dealer/customer determine whether a vehicle was manufactured before the FMVSS No. 404 compliance date?

      28. 49 CFR Part 567 requires vehicle manufacturers to affix a certification label to a motor vehicle. Section 567(g)(2) requires the certification label to include the month and year of manufacture.

    28. On an FMVSS No. 403-compliant Private Use lift installation, do I have to use the "park brake" as an input for the lift-vehicle interlock?

      29. S6.10.2 through S6.10.2.7 specify the interlock requirements for all FMVSS No. 403-compliant lifts. An interlock must prevent operation of a platform lift from a stowed position unless the vehicle transmission is placed in park or the transmission is placed in neutral and the parking brake is actuated or the vehicle service brakes are actuated by means other than the operator depressing the vehicles service brake pedal (see S6.10.2.2).

    I hope you find this information useful. If you have any additional questions please contact Mr. Chris Calamita of my staff at (202) 366-2992.

    Sincerely,

    Jacqueline Glassman
    Chief Counsel

    Enclosures
    ref:403#404
    d.2/11/05