Dick Keller, Product Development Manager
    Bruno Independent Living Aids
    1780 Executive Drive
    P.O. Box 84
    Oconomowoc, WI 53066


    Dear Mr. Keller:

    In a letter dated November 6, 2002, you asked us seven questions regarding compliance with 49 CFR 595.7(e)(5). This section sets forth certain disclosure requirements related to vehicle modifications specifically made for a person with a disability. Among the requirements set forth in the section is a statement of the load carrying capacity of the vehicle if it has been reduced by more than 100 kilograms (220 pounds).

    By way of background, the National Highway Traffic Safety Administration (NHTSA) administers a statute requiring that motor vehicles manufactured for sale in the United States or imported into the United States be manufactured so as to reduce the likelihood of motor vehicle crashes and of deaths and injuries when crashes do occur. That statute is the National Traffic and Motor Vehicle Safety Act of 1966 ("Vehicle Safety Act") (recodified at 49 U.S.C. 30101, et seq.).

    One of the agency's most important functions under that Act is to issue and enforce the Federal Motor Vehicle Safety Standards (FMVSSs). These standards specify safety performance requirements for motor vehicles and/or items of motor vehicle equipment. Manufacturers of motor vehicles must assure compliance with all applicable safety standards and permanently apply a label to each vehicle certifying that the vehicle complies with all applicable FMVSSs.

    The Vehicle Safety Act prohibits manufacturers, distributors, dealers, and motor vehicle repair businesses from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment that is in compliance with any applicable federal motor vehicle safety standard. NHTSA may exempt a person or business from the prohibition if it decides that an exemption is consistent with motor vehicle safety and the Vehicle Safety Act.

    On February 27, 2001, NHTSA published a final rule setting forth a limited exemption from the make inoperative prohibition for businesses or individuals who modify vehicles for persons with disabilities (66 Federal Register 12638; Docket No. NHTSA-01-8667). This exemption is codified in 49 CFR Part 595, subpart C. Only portions of some Federal motor vehicle safety standards are covered by the exemption.

    In adopting Part 595, NHTSA recognized that the individual for whom the modifications were made may not realize that the vehicle, as modified, may no longer meet all applicable FMVSS and may have a different load carrying capacity than listed in the owner's manual, on the certification label, or on a tire placard. These vehicle changes could have an effect on the overall performance of the vehicle. Accordingly, we determined that vehicle modifiers who decide to take advantage of the exemption set forth in 49 CFR Part 595 must provide the customer with certain safety information and place a permanent label on the vehicle. The language for the label is set out in 49 CFR 595.7(d), and a detailed breakdown of the required information is contained in 49 CFR 595.7(e). Among other things, vehicle modifiers must inform the purchaser if the vehicle's load carrying capacity is reduced by 100 kilograms (220 pounds) or more. The vehicle modifier may choose to include or exclude the weight of a wheelchair when determining how much the load carrying capacity has been reduced. However, the modifier is required to tell the owner of the vehicle whether the weight of the wheelchair has been included when determining the reduced load carrying capacity and when specifying what available load capacity remains.

    As discussed in the February 2001 final rule, the vehicle modifications contemplated by 49 CFR 595, subpart C are limited to modifications made for a specific customer. Accordingly, the modifier may wish to ask the customer for the weight of any wheelchair that they expect the vehicle to transport.

    You have asked seven questions about the meaning of the reduced load carrying capacity disclosure requirement of Part 595. Your questions and our answers follow:

    1. "If a personal motor vehicle has a class II or III towing hitch receiver and an exterior platform hoist is attached to the vehicle by that receiver, is that considered a vehicle modification when performed by a business?"

    The answer to your question depends on whether the platform is readily attachable to the vehicle. If the platform is readily attachable to the hitch, it will not be considered a motor vehicle modification. If, however, the platform is not readily attachable, it would be considered a modification. In sum, whether a platform attached to a class II or III towing hitch would be considered a modification will depend on the method and difficulty of attachment.

    1. "Is it a modification if it can be installed without tools, such as using a hitch pin?"

    A precise answer to this question depends on the nature of the object attached to a vehicle. As a general matter, however, an object attached without the use of tools would not be a modification. For example, if a platform is secured (without the use of any tools) to a towing hitch by use of a hitch pin, such platform, being readily removable, would not be a modification.

    1. "Is the tongue weight rating of the motor vehicle considered part of the load carrying capacity?"

    The term "tongue weight rating of the motor vehicle" is not defined or regulated by NHTSA. Nor does the agency require vehicle manufacturers to establish or disclose their trailer towing capabilities. Accordingly, while many manufacturers choose to recommend maximum trailer weight limits for their vehicles, others do not. The same applies to load limits or ratings for trailer hitches that may be installed on a variety of vehicles if they are used for towing. Thus, it is possible that a manufacturer has included the towing capability of a vehicle in calculating the load carrying capacity. Any questions related to the addition of a trailer to a vehicle's load carrying capacity should be directed to the vehicle manufacturer.

    1. "If the combined weight of the platform and the wheelchair does not exceed the tongue weight rating of the motor vehicle, does that reduce the load carrying capacity?"

    Regardless of whether the combined weight of the platform and the wheelchair exceeds the tongue weight rating of the hitch, the load carrying capacity is reduced by the portion of the weight of the wheelchair and the platform that has to be borne by the vehicle. Therefore, a modifier has to inform the purchaser if the load carrying capacity has been reduced by more than 220 pounds, regardless of the tongue weight rating of the hitch.

    1. "If the platform weighs 100 pounds and has a weight capacity of 350 pounds, does that reduce the load carrying capacity of the motor vehicle by more than 220 pounds?"

    As noted above, 595.7(e)(5) requires that modifiers indicate any reduction in load carrying capacity over 220 pounds and inform the purchaser whether the weight of the wheelchair has been included in the calculation. The load capacity of the platform would not be relevant in calculating the actual reduction in the vehicle load carrying capacity. In the particular situation described above, the load carrying capacity is only reduced by 100 pounds, if the weight of the wheel chair is not included.

    Since the vehicle modifications are custom-made to specific vehicles based on individual customers needs, a modifier will need to have knowledge as to the weight of the wheelchair to be used in conjunction with a platform that it is installing if it includes the weight of the wheelchair when calculating reduction of the load carrying capacity. If the modifier does not know the weight of the wheelchair, it should calculate the reduction in the load carrying capacity based on the weight of the platform alone. In both instances, the modifier is required to tell the owner of the vehicle whether the weight of the wheelchair has been included when determining the reduced load carrying capacity and when specifying what available load capacity remains.

    1. "If the platform weighs 100 pounds and the customers wheelchair weighs more than 120 pounds does that reduce the load carrying capacity by more than 220 pounds?"

    As noted above, 595.7(e)(5) requires that modifiers indicate any reduction in load carrying capacity over 220 pounds and inform the purchaser whether the weight of the wheelchair has been included in the calculation. In the scenario described above, the modifier is informed as to the actual wheelchair weight. Where such information is available, it would be appropriate (although not required) for the modifier to include this information in calculating the reduction in the load carrying capacity. In this instance, the load carrying capacity has been decreased by more than 220 pounds, when one takes the weight of the wheelchair into account. Accordingly, the modifier should notify the purchaser of the decrease in load carrying capacity, and that the weight of the wheelchair was included in the calculation of load carrying capacity.

    1. "If the platform weighs 100 pounds, and combined with additional motor vehicle modifications for the disabled person that decrease the load carrying capacity by more than 120 pounds, does that decrease the load carrying capacity by more than 220 pounds?"

    In the scenario you have described, the load carrying capacity has been decreased by more than 220 pounds. The fact that specific modifications are different in nature, or even performed by different modifiers is irrelevant. Accordingly, the modifier that makes the change that causes the load carrying capacity to decrease more than 220 pounds must notify the purchaser of the decrease in load carrying capacity.

    In the scenarios discussed in our answers to questions 4 thru 7, the necessity of reporting the reduction in load carrying capacity is determined by the method of attachment of the platform to the vehicle as described in our answers to questions 1 and 2 above. Please be aware that some of the modifications discussed above may present various additional problems. For example, platforms and other devices attached to the exterior of a vehicle may affect compliance with Standard No. 108, which deals with lamps and other reflective devices. Modifications that take a vehicle out of compliance with FMVSS No. 108 are not exempted under Part 595.

    Enclosed please find a copy of our new brochure devoted, in part, to hitch systems. Should you require any additional information or assistance, please contact George Feygin, of my staff, (202) 366-2992 or at the address given above.

    Sincerely,

    Jacqueline Glassman
    Chief Counsel

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