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Interpretation ID: tunick


    Lance Tunick, Esquire
    Vehicle Services Consulting, Inc.
    P.O. Box 23078
    Santa Fe, NM 87502-3078


    Dear Mr. Tunick:

    This responds to a message that you e-mailed to Coleman Sachs of my staff concerning a statement in an interpretation letter dated May 24, 2002 that we sent to Mr. Dick Keller of Bruno Independent Living Aids, Inc. of Oconomowoc, Wisconsin (Bruno). That letter addressed whether the replacement of a seat supplied on a motor vehicle as original equipment with a device developed by Bruno to facilitate the transfer of a mobility-impaired individual between a motor vehicle and a wheelchair would constitute an alteration that triggers the vehicle certification requirements in 49 CFR Part 567.

    In discussing this matter, we noted that if the device were installed after the vehicles first retail sale, the installation would not constitute an alteration, but the installer would be prohibited under 49 U.S.C. 30122(b) from knowingly making inoperative any device or element of design installed on the vehicle in compliance with an applicable Federal motor vehicle safety standard (FMVSS). We further noted that in a final rule issued on February 27, 2001 (at 66 FR 12628), the agency created an exemption from this prohibition for motor vehicle repair businesses that modify vehicles to enable persons with disabilities to operate or ride as passengers in those vehicles. We stated that by virtue of this exemption, if the seating transfer device developed by Bruno "were to be installed in a vehicle after a sales contract is entered for the delivery of that vehicle, but prior to the actual transfer of title . . . the installer would not be subject to the making inoperative prohibitions of 49 U.S.C. 30122(b)."

    Your message took issue with the latter statement. In particular, you contended that since the February 27, 2001 final rule, which is codified at 49 CFR Part 595, "only provides for an exemption from the making inoperative prohibition as regards FMVSS No. 207 when no driver seat is provided, then an installer of a seating system would be subject to the making inoperative prohibitions" (emphasis in original). Referencing 49 CFR 595.7(c)(13). You further noted, however, the agencys pronouncement, in its letter of August 21, 2001 to B&D Independence Co. Inc., that it would not pursue an enforcement action against the installer for a violation of the "making inoperative" prohibition if the installer follows procedures set forth in that letter.

    We have reviewed our May 24, 2002 letter to Bruno in light of the concerns you have raised, and agree that it incorrectly implies that an exemption from the "making inoperative" prohibition is available, without limitation, to a motor vehicle repair business that replaces a seat supplied on a motor vehicle as original equipment with a transfer device such as the one developed by Bruno. Our letter to B&D Independence Co. noted, in fact, that the final rule establishing the amendments to Part 595 "does not contain any exemptions from Standard No. 207 or Standard No. 210 allowing for the installation of six-way power seat bases" similar to the device that Bruno is marketing.

    Insofar as Standard No. 207 is concerned, the exemption from the "making inoperative" prohibition is only available under the Part 595 regulations "in any case in which a vehicle is modified to be driven by a person seated in a wheelchair and no other drivers seat is supplied with the vehicle, provided that a wheelchair securement device is installed at the drivers position." See 49 CFR 595.7(c)(13). Since the device marketed by Bruno would not result in "a wheelchair securement device [being] installed at the drivers position," so as to permit the "vehicle to be driven by a person seated in a wheelchair," no exemption from the making inoperative prohibition with respect to the requirements of Standard No. 207 is available under Part 595 to a motor vehicle repair business that installs such a device.

    Our May 24, 2002 letter to Bruno is clarified accordingly. Thank you for bringing this matter to our attention.

    Sincerely,

    Jacqueline Glassman
    Chief Counsel

    cc: Mr. Dick Keller

    Bruno Independent Living Aids, Inc.
    P.O. Box 84
    Oconomowoc, WI 53066

    ref:567
    d.1/16/03