[Federal Register Volume 77, Number 66 (Thursday, April 5, 2012)]
[Rules and Regulations]
[Pages 20558-20571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8138]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2012-0039]
RIN 2127-AJ93


Federal Motor Vehicle Safety Standards; Platform Lifts for Motor 
Vehicles; Platform Lift Installations in Motor Vehicles

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document adopts amendments to the Federal motor vehicle 
safety standards on platform lift systems for motor vehicles. The 
purpose of these standards is to prevent injuries and fatalities during 
lift operation. NHTSA believes it is necessary to revise the lighting 
requirements for lift controls; the location requirements, performance 
requirements, and test specifications for threshold warning signals; 
the wheelchair retention device and inner roll stop tests; and the 
lighting requirements for public use lifts. This notice also discusses 
a November 3, 2005 interpretation clarifying specific procedures that 
are performed as part of the threshold warning signal test.

[[Page 20559]]


DATES: Effective date: This final rule is effective May 7, 2012.
    Compliance date: Mandatory compliance with this final rule is 
required beginning October 2, 2012. Optional compliance is permitted 
beginning April 5, 2012.
    Petitions for reconsideration: If you wish to petition for 
reconsideration of this rule, your petition must be received by May 21, 
2012.

ADDRESSES: If you submit a petition for reconsideration of this rule, 
you should refer in your petition to the docket number of this document 
and submit your petition to: Administrator, National Highway Traffic 
Safety Administration, 1200 New Jersey Avenue SE., West Building, 
Washington, DC 20590.
    The petition will be placed in the public docket. Anyone is able to 
search the electronic form of all documents received into any of our 
dockets by the name of the individual submitting the document (or 
signing the document, if submitted on behalf of an association, 
business, labor union, etc.). You may review DOT's complete Privacy Act 
Statement in the Federal Register published on April 11, 2000 (Volume 
65, Number 70; Pages 19477-78).

FOR FURTHER INFORMATION CONTACT: For technical issues, you may contact 
Mike Pyne, NVS-123, Office of Rulemaking, by telephone at (202) 366-
2720, by fax at (202) 366-2739, or by email to <a href="/cdn-cgi/l/email-protection#b3dedad8d69dc3caddd6f3d7dcc79dd4dcc5"><span class="__cf_email__" data-cfemail="d0bdb9bbb5fea0a9beb590b4bfa4feb7bfa6">[email protected]</span></a>. For 
legal issues, you may contact David Jasinski, Office of the Chief 
Counsel, NCC-112, by telephone at (202) 366-2992, by fax at (202) 366-
3820, or by email to <a href="/cdn-cgi/l/email-protection#9df9fcebf4f9b3f7fceef4f3eef6f4ddf9f2e9b3faf2eb"><span class="__cf_email__" data-cfemail="e78386918e83c98d86948e89948c8ea7838893c9808891">[email protected]</span></a>. You may send mail to both 
of these officials at National Highway Traffic Safety Administration, 
1200 New Jersey Avenue SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Summary of the NPRM
III. Comments and Analysis
    A. Use of Auxiliary Retention Devices for Interlock Procedure
    B. Barrier Impact Test
    C. Handrail Test Procedures
    D. Measurement Procedure for Platform Illumination
    E. Preemption
IV. Technical Corrections
    A. Definition of Motor Home
    B. Change to Application Section
    C. Height Range Measurements in Edge Guard Test
    D. Test Conditions for Inner Roll Stop Test
    E. Clarification of Wheelchair Retention and Inner Roll Stop 
Requirements
V. November 3, 2005 Interpretation
VI. Effective Date
VII. Rulemaking Analysis and Notices

I. Background

    On December 27, 2002, the agency published in the Federal Register 
a final rule establishing FMVSS No. 403, Platform lift systems for 
motor vehicles, and FMVSS No. 404, Platform lift installations in motor 
vehicles.\1\ We established these two standards to provide practicable, 
performance-based requirements and compliance procedures for the 
regulations promulgated by DOT under the Americans with Disabilities 
Act (ADA),\2\ and to ensure the safety of vehicles equipped with those 
lift systems. FMVSS Nos. 403 and 404 provide that only lift systems 
that comply with objective safety requirements may be sold and 
installed on new motor vehicles, and that vehicles with lift systems 
must comply with objective safety requirements in order to be sold.
---------------------------------------------------------------------------

    \1\ 67 FR 79416.
    \2\ Public Law 101-336, 42 U.S.C. 12101, et seq. The ADA 
directed the DOT to issue regulations to implement the 
transportation vehicle provisions that pertain to vehicles used by 
the public. Titles II and III of the ADA set specific requirements 
for vehicles purchased by municipalities for use in fixed route bus 
systems and vehicles purchased by private entities for use in public 
transportation to provide a level of accessibility and usability for 
individuals with disabilities. 42 U.S.C. 12204.0
---------------------------------------------------------------------------

    FMVSS No. 403 establishes requirements for platform lifts that are 
designed to carry passengers with limited mobility, including those who 
rely on wheelchairs, scooters, canes and other mobility aids, so that 
they can move into and out of motor vehicles. The standard requires 
that these lifts meet minimum platform dimensions and maximum size 
limits for platform protrusions and gaps between the platform and 
either the vehicle floor or the ground. The standard also requires 
handrails, a threshold warning signal, and retaining barriers and 
specifies performance tests.
    FMVSS No. 404 establishes requirements for vehicles that, as 
manufactured, are equipped with platform lifts. The lifts installed on 
those vehicles must be certified as meeting FMVSS No. 403, must be 
installed according to the lift manufacturer's instructions, and must 
continue to meet all of the applicable requirements of FMVSS No. 403 
after installation. The standard also requires that specific 
information be made available to lift users.
    Recognizing that the usage patterns of platform lifts used in 
public transit differ from those of platform lifts for individual 
(i.e., private) use, the agency established separate requirements for 
public use lifts and private use lifts. FMVSS No. 404, S4.1.1 requires 
that the lift on each lift-equipped bus, school bus and multipurpose 
passenger vehicle other than a motor home with a gross vehicle weight 
rating (GVWR) more than 4,536 kg (10,000 lb) must be certified as 
meeting all applicable public use lift requirements set forth in FMVSS 
No. 403. FMVSS No. 404, S4.1.2 requires the lift on each lift-equipped 
vehicle with a GVWR of 4,536 kg (10,000 lb) or less to be certified to 
either the public use or private use lift requirements set forth in 
FMVSS No. 403. Different requirements apply to vehicles with public use 
lifts than to vehicles with private use lifts because public use lifts 
generally are subject to more stress and cyclic loading and will be 
used by more numerous and varied populations.
    As required by the ADA, FMVSS Nos. 403 and 404 are consistent with 
the Architectural and Transportation Barriers Compliance Board (ATBCB) 
guidelines published on September 6, 1991.\3\ In order to provide 
manufacturers sufficient time to meet any new requirements established 
in FMVSS Nos. 403 and 404, the agency provided a two-year lead-time, 
which scheduled the standards to become effective on December 27, 2004.
---------------------------------------------------------------------------

    \3\ 56 FR 45530.
---------------------------------------------------------------------------

    On October 1, 2004, in response to petitions for reconsideration of 
its December 27, 2002 final rule, the agency published a final rule in 
the Federal Register revising FMVSS Nos. 403 and 404. Among the changes 
made by the October 1, 2004 final rule, the agency amended edge guard 
requirements and the wheelchair test device specifications.\4\
---------------------------------------------------------------------------

    \4\ 69 FR 58843.
---------------------------------------------------------------------------

    On December 23, 2004, the agency published an interim final rule in 
the Federal Register delaying the compliance date until April 1, 2005 
for FMVSS No. 403 and July 1, 2005 for FMVSS No. 404.\5\ On July 15, 
2005, the agency published in the Federal Register its disposition of 
petitions for reconsideration of its October 1, 2004 final rule and 
other submissions regarding that final rule.\6\ The July 15, 2005 
document did not address submissions received from the Blue Bird Body 
Company (Blue Bird), the School Bus Manufacturers Technical Council 
(SBMTC), which represents school bus manufacturers (including Blue 
Bird), and the Manufacturers Council of Small School Buses (MCSSB), an 
affiliate of the National Truck Equipment Association formed to 
represent the interest of small manufacturers. The

[[Page 20560]]

submissions, which were styled as petitions for reconsideration, 
requested changes in the required level of lighting on public use lift 
platforms. Since the agency did not address that issue of lighting 
levels in the October 2004 final rule, there was no agency action 
regarding lighting to be reconsidered. The agency stated in the notice 
that it would treat the submissions as petitions for rulemaking and 
respond in a separate notice.
---------------------------------------------------------------------------

    \5\ 69 FR 76865.
    \6\ 70 FR 40917.
---------------------------------------------------------------------------

    NHTSA received three additional petitions for rulemaking after July 
15, 2005, seeking revisions to FMVSS Nos. 403 and 404. Specifically, we 
received petitions from Maxon Lift Corporation (Maxon), Ricon 
Corporation (Ricon) and the Lift-U Division of Hogan Manufacturing, 
Inc. (Lift-U), all of which are platform lift manufacturers. The 
petitioners requested that the agency amend: (A) The control panel 
switch requirements in S6.7.6.2 of FMVSS No. 403 so that lift controls 
in locations remote from the driver's seating position are not subject 
to the illumination requirements in S5.3 of FMVSS No. 101; (B) the 
threshold warning signal requirements in S6.1.4 of FMVSS No. 403 to 
permit warning lights to be mounted in a location clearly visible in 
reference to the lift; (C) the threshold warning signal requirements in 
S6.1.4 and S6.1.6 of FMVSS No. 403 to clarify the units of measurement 
and minimum required luminance at the designated measurement point; (D) 
the threshold warning test in S7.4 of FMVSS No. 403 to include a 
performance test for warning systems using infrared and other sensor 
technologies; (E) the wheelchair test device specification in S7.1.2 of 
FMVSS No. 403 to include anti-tip devices; (F) the wheelchair retention 
device impact test specifications in S7.7 of FMVSS No. 403 to permit 
use of a loaded wheelchair test device; and (G) the requirements for 
platform lighting on public use lifts in S4.1.5 of FMVSS No. 404 to 
reduce the required illumination levels to those specified by the ADA 
and the Federal Transit Administration (FTA).

II. Summary of the NPRM

    In a notice of proposed rulemaking (NPRM) published on December 20, 
2007,\7\ NHTSA proposed to amend the text of FMVSS Nos. 403 and 404. 
That NPRM addressed the six pending petitions for rulemaking. The NPRM 
also proposed additional changes to FMVSS Nos. 403 and 404 based upon 
NHTSA's experience during compliance testing.
---------------------------------------------------------------------------

    \7\ 72 FR 72326 (Docket No. NHTSA-2007-0052).
---------------------------------------------------------------------------

    First, in response to the petition from Maxon, NHTSA proposed an 
amendment to make it clear that the illumination requirements of FMVSS 
No. 101 do not apply to controls that are located outside the vicinity 
of the driver. Under the proposed amendments, controls within the 
vicinity of the driver, as defined in S5.3.4(a) of FMVSS No. 101, would 
be required to comply with the FMVSS No. 101 illumination requirements. 
The purpose of the FMVSSS No. 101 requirement is to prevent illuminated 
controls from distracting a driver who has adapted to dark ambient 
roadway conditions. That concern is not present for controls outside 
the vicinity of the driver. The proposed amendment also specified that 
lift controls outside the vicinity of the driver have a means for 
illuminating characters to make them visible under both daylight and 
nighttime conditions.
    In response to the petition from Maxon, NHTSA proposed an amendment 
to the threshold warning signal location in S6.1.4 of FMVSS No. 403. 
The present language requires that the visual warning signal be 
installed such that it does not require more than a <plus-minus> 15 
degree side-to-side head rotation as viewed by a passenger in a 
wheelchair backing onto the platform from the interior of the vehicle. 
The agency acknowledged that the requirement created ambiguity because 
it did not specify whether the measurement was a line-of-sight 
measurement or whether peripheral vision may be used. Consequently, 
NHTSA proposed defining the requirement so that visual warning must be 
visible from a point 914 mm (3 ft) above the center of the threshold 
warning area.
    In response to the petition from Ricon, NHTSA proposed an amendment 
to clarify the units of measurement and minimum required luminance of 
the visible threshold warning signal. The visual warning is required to 
be a flashing red beacon with a minimum intensity of 20 candela, and 
the intensity measurement is taken away from the source. Ricon stated 
that it had confirmed that ``candela'' is a measurement of output at 
the source, and, to measure luminous intensity at a specified distance 
from a source, the measurement should be specified in ``lux'' or 
``foot-candles.'' In response, NHTSA proposed removing the requirement 
that the visible intensity be measured away from the source and 
replaced it with a more general visibility requirement.
    In response to the petition from Lift-U, NHTSA proposed revising 
S7.4 to include a performance test for threshold warning systems using 
infrared and other technologies. Lift-U acknowledged that the current 
test is effective for testing technologies that sense weight. However, 
Lift-U stated that the substantive requirement in S6.1 does not specify 
the use of a warning device that senses weight. NHTSA proposed amending 
S7.4 to include the option of performing the current threshold warning 
test with an occupant in the wheelchair test device.
    In response to the petition from Ricon, NHTSA proposed amending the 
wheelchair retention impact test specifications in S7.7 to permit the 
addition of a 50 kg (110 pound) weight to the wheelchair test device 
during the test. Ricon contended, and NHTSA's test data confirmed, that 
the center of gravity of an unloaded wheelchair changes significantly 
upon impact with an outer barrier. That change, when combined with 
continued forward motion of the drive wheels, caused the test device to 
flip backwards, resulting in failure of the test. NHTSA proposed 
allowing the addition of the weight because this failure is due to the 
test procedure rather than any inadequacy in the wheelchair retention 
device.
    The petition from Ricon and the recent testing also caused NHTSA to 
propose amending the wheelchair retention test specifications in S7.7 
and the inner roll stop test specifications in S7.8 to provide for the 
turning off the wheelchair drive motor after the initial impact by the 
test device. The agency stated that it could be difficult to design 
wheelchair retention devices and inner roll stops that protect 
wheelchair passengers from all possible situations without interfering 
with the normal operation of the lift. The agency also stated its 
belief that it was sufficient to ensure that the strength and 
configuration of wheelchair retention devices and inner roll stops are 
designed so that wheelchairs will not plow through or roll over them. 
In a typical real world situation, persons occupying wheelchairs would 
not be operating them at high rates of speed on the platform, and would 
turn off the drive power upon impact with a barrier. The agency 
proposed amendments to the test specifications in S7.7 and S7.8 because 
maintaining power after the initial impact may result in testing 
inconsistencies due to differences in the drive wheel torque and stall 
rates of some test devices. Turning off the power would also stabilize 
the wheelchair test device after impact and prevent damage

[[Page 20561]]

to the wheelchair test device and the lift.
    As a consequence of this amendment, NHTSA also proposed amending 
S6.4.7 to eliminate the requirement that the wheelchair test device 
remain upright with all of its wheels in contact with the platform 
surface following impact. Instead, NHTSA proposed to revise S6.4.7 to 
provide that a wheelchair retention device passes the impact test if, 
after impact, the wheelchair test device remains supported by the 
platform surface with none of the axles of its wheels extending beyond 
the plane that is perpendicular to the platform reference plane (Figure 
1) which passes through the edge of the platform surface that is 
traversed when entering or exiting the platform from the ground level 
loading position. The proposed test criteria references axles rather 
than wheels to prevent the occurrence of another type of test failure 
during rearward testing, i.e., one in which the large wheels of the 
wheelchair test device may rest on the platform and touch the outer 
barrier with the tires extending beyond the plane after impact. A 
similar amendment was proposed to the inner roll stop test.
    In response to petitions from Blue Bird, the SBMTC, and the MCSSB, 
the agency proposed reducing the platform illumination requirements for 
public lifts in S4.1.5 of FMVSS No. 404. NHTSA proposed reducing the 
illumination requirements to those specified by the ADA and the FTA. 
NHTSA intended that its current requirements not produce an additional 
burden on public use manufacturers. However, NHTSA was convinced by the 
petitioners' arguments that the agency was placing additional burdens 
on manufacturers by requiring that they comply with both the ADA 
requirements and the more rigorous requirements in FMVSS No. 404. 
Furthermore, NHTSA noted the intervening enactment of the National 
Technology Transfer and Advancement Act,\8\ which requires Federal 
agencies to use available technical standards that are developed or 
adopted by a voluntary consensus standards body, in lieu of government-
unique standards, except where use of those voluntary consensus 
standards is inconsistent with law or otherwise impractical.
---------------------------------------------------------------------------

    \8\ Public Law 104-113.
---------------------------------------------------------------------------

    NHTSA also proposed four technical changes. First, NHTSA proposed 
amending S7 of FMVSS No. 403 to require the performance of the handrail 
test in S7.12 on a lift/vehicle combination rather than on a test jig. 
The handrail requirements in S6.4.9.8 require 38 mm (1.5 in) of 
clearance between each handrail and any portion of the vehicle, 
throughout the range of passenger operation. It is not possible to 
determine that clearance if the test is conducted on a jig.
    NHTSA also proposed a correction to Figure 2 of FMVSS No. 403. 
Currently, the height of the measurement point from which the intensity 
of the threshold audible warning is measured is identified as 919 mm. 
The proposed amendment would replace that distance with the correct 
measurement point of 914 mm (3 feet).
    NHTSA also proposed an amendment to clarify the control panel 
switch requirements of S6.7.4. Currently, there is an ambiguity 
regarding what must happen when two or more switches are actuated 
simultaneously. The proposed amendment would require that, if one or 
more functions are actuated while an initial function is actuated, the 
platform must either continue in the direction dictated by the original 
function or stop.
    NHTSA proposed amending the interlock requirements and test 
procedures in S6.10.2.4, S6.10.2.5, S6.10.2.6, S6.10.2.7, S7.5, and 
S7.6 of FMVSS No. 403. The purpose of the proposed amendments was to 
eliminate confusion, discovered as a result of compliance testing and 
communications from a lift manufacturer. The proposed amendments would 
revise and renumber S7.5.2 and S7.5.3 to make clear that those 
provisions constitute a single test procedure that is applicable to 
both the requirements of S6.10.2.5 and S6.10.2.6. The proposed 
amendments would also change the test procedure set forth in those 
provisions to ensure that an outer barrier is fully deployed by the 
time the platform is 75 mm (3 in) above the ground. NHTSA also proposed 
a similar amendment to the inner roll stop test procedure set forth in 
S7.6.2 and S7.6.3.
    Finally, NHTSA included discussion of a November 3, 2005 
interpretation. That interpretation is repeated in Section V below to 
ensure wide-spread dissemination.

III. Comments and Analysis

    NHTSA received five comments in response to the NPRM from the 
following parties: Maxon Lift Corporation (Maxon); the American 
Association of Justice (AAJ); the National Truck Equipment Association 
(NTEA); \9\ Blue Bird Body Company (Blue Bird); and Lift-U Division of 
Hogan Manufacturing, Inc. (Lift-U). Maxon addressed the handrail test 
procedure and the outer barrier interlock test procedure. The AAJ's 
comment solely addressed the issue of preemption of State tort law. The 
NTEA and Blue Bird addressed the platform illumination test procedure. 
Lift-U's comment addressed the barrier impact test. We address these 
comments in detail below.
---------------------------------------------------------------------------

    \9\ NTEA's comments were on behalf of two of its affiliate 
divisions--the MCSSB and the Mid-Size Bus Manufacturers Association 
(MSBMA).
---------------------------------------------------------------------------

    We received no comments on several topics for which amendments were 
proposed in the December 2007 NPRM. We received no comments on the 
following proposed amendments: Limiting the FMVSS No. 101 control 
illumination requirement to lift controls located near the driver; 
modifying location and intensity requirements for the threshold warning 
beacon; including the option of using a 5th percentile female for the 
threshold warning test procedure to allow for the possibility of lift 
systems using infrared sensors; and continuing to exclude the anti-tip 
devices from the specification for the standard test wheelchair 
specified in paragraph S7.1.2 of FMVSS No. 403. Except as discussed 
below, we have included the proposed amendments in the regulatory text 
without further discussion for the reasons set forth in the December 
2007 NPRM.

A. Use of Auxiliary Retention Devices for Interlock Procedure

    Maxon commented on the proposed technical change that would amend 
the test procedure for outer barrier interlock testing. In the December 
2007 NPRM, NHTSA proposed revising the test procedure to ensure that 
the outer barrier by fully deployed by the time the platform is 75 mm 
(3 in) off the ground. The proposed language would provide for the 
platform to be moved up until the platform is 75 mm (3 in) above the 
ground. Thereafter, the front wheel of the wheelchair test device is 
placed on the edge of the outer barrier and the platform is moved up 
until it stops. If the interlocks are working correctly, the wheel of 
the wheelchair test device will prevent the outer barrier from 
deploying, the wheelchair test device wheel will not move vertically 
upward more than 13 mm (0.5 in), and the platform will stop 
automatically before the upper surface is greater than 75 mm (3 in) 
above the ground.
    Maxon expressed concern involving the potential use of auxiliary 
wheelchair retention devices such as belts. Maxon states that that 
these devices are designed to disable lift operation when they are 
unfastened. Accordingly, Maxon contends, it would be necessary to 
fasten such devices prior to

[[Page 20562]]

conducting the outer barrier interlock test in S7.5. Maxon requested 
clarification as to whether belt-type retention devices can and should 
be fastened prior to testing.
    Agency's Response: We are clarifying the proposed language as a 
result of Maxon's comment. We recognize that auxiliary retention 
devices such as a belt can disable lift operation when they are not 
fastened, and we agree with Maxon that the failure to fasten such a 
belt would render the test moot. To remedy the ambiguity, we are adding 
language to S7.5.1.1, as proposed, to clarify that other retention 
devices are configured so that they do not prevent lift operation.

B. Barrier Impact Test

    Lift-U commented on proposed changes to the barrier impact test. In 
the December 2007 NPRM, the agency proposed several changes to the 
barrier impact test, including a change to the test procedure so that 
the wheelchair test device's power is cut off after initial impact with 
the barrier. The agency stated that turning off power during the 
wheelchair retention and inner roll stop impact tests would stabilize 
the wheelchair test device after impact and thereby help prevent 
technical failures and related damage to the wheelchair test device or 
the lift.
    Lift-U contended in its comment that the power to the drive wheels 
should be maintained after impact to test the effectiveness of the 
wheelchair retention device. Lift-U stated that the wheelchair 
retention device is, arguably, the most important safety device on the 
lift platform system because it is the only means of preventing a 
wheelchair and passenger from rolling off the edge of the platform. 
Lift-U stated that an effective test method must demonstrate that the 
retention device cannot be defeated.
    Lift-U also disagreed with some of the agency's assertions in the 
December 2007 NPRM in support of the proposed change. NHTSA stated 
that, in typical real world situations, occupied wheelchairs will not 
be moving at high rates of speed on the platform. Lift-U contended that 
the agency's reasoning is flawed because the test itself is an implicit 
acknowledgement that it is possible for occupants to lose control of 
their mobility device on a platform. Lift-U further stated that the 
agency's assumption that occupants would terminate drive power upon 
impact with a barrier assumes that the occupant is able to do so.
    Lift-U stated that the proposed test procedure must be evaluated 
against the stated test objective. In its comment, Lift-U noted the 
agency's two objectives--preventing the test device from plowing 
through or rolling over the top of the barrier.
    Lift-U questioned what is meant by the term ``initial impact.'' 
Lift-U stated that, if it is defined as ``initial contact,'' then the 
release of power to the wheelchair test device would subject the 
barrier to an inconsequential impact. Lift-U also stated that the 
moment of ``initial impact'' could be the moment the barrier reaches 
its maximum deflection due to the impact, thereby demonstrating that 
the barrier is sufficient to absorb the impact.
    However, even if this more rigorous interpretation is intended, 
Lift-U contended that this part of the test cannot demonstrate whether 
the barrier is effective at preventing a wheelchair from rolling over 
the top. Lift-U stated that height and rigidity are the two aspects of 
barrier design that would determine its effectiveness, and that even a 
tall barrier would be susceptible to a wheelchair rolling over it if 
the barrier is not sufficiently rigid, while a rigid barrier could be 
defeated if its height were insufficient to prevent being over-topped 
by a wheelchair. In either case, Lift-U contends that the adequacy of 
the barrier can be determined only when the wheelchair has had the 
opportunity to climb over it after the initial impact.
    Lift-U questioned the agency's assertion that continued application 
of wheelchair drive power leads to technical failures that are 
unrelated to the barrier's safety. Lift-U also questioned the agency's 
statement that it could be difficult to design retention devices and 
inner roll stops that protect wheelchair passengers in all situations 
without interfering with normal lift operation. Lift-U concluded that 
the present regulatory language provides a means to test all aspects of 
a barrier's design and thereby demonstrates its adequacy.
    Finally, Lift-U supported other proposed changes to the barrier 
impact test. Specifically, Lift-U supported the option of adding a 
weight to the wheelchair test device and the change in the compliance 
criteria.
    Agency's Response: NHTSA is not making any substantive changes to 
the proposal based upon Lift-U's comment. However, we are clarifying 
the regulatory text to ensure that the term ``initial impact'' is not 
misunderstood. We recognize the merit in Lift-U's argument in favor of 
retaining the present test, in which the power to the wheelchair test 
device is not turned off until all wheelchair motion stops (except for 
the drive wheels). Nevertheless, we believe that a test in which the 
power to the wheelchair test device is turned off after initial impact 
is more practicable while also meeting the safety purpose of the 
standard.
    Our experience to date with the present test procedure has 
demonstrated that the behavior of the wheelchair test device is often 
unstable and erratic if drive power continues to be applied after 
impact. We have observed that the wheelchair test device can bounce 
violently on the platform, repeatedly ram into the barriers and other 
components of the lift, flip over backwards or sideways, or fall off 
the platform completely. Some of this behavior may reflect possible 
outcomes of actual lift use, as Lift-U has stated (e.g., a 
malfunctioning wheelchair). However, the test is so inconsistent as to 
be impracticable for compliance testing. Furthermore, the test is often 
damaging to the wheelchair test device.
    Regarding the meaning of the term ``initial impact,'' we agree with 
Lift-U that turning off drive power immediately at the moment of 
initial contact with the barrier would be an insufficient test of the 
barrier's integrity. Allowing the entire impact to be sustained by the 
barrier before turning off drive power to the wheelchair test device 
(that is, releasing the joystick controller) involves a more 
substantial infliction of force against that barrier. When the 
wheelchair test device strikes the barrier, slack and elasticity allow 
the wheelchair test device to deflect the barrier until the striking 
force is counteracted. The barrier will deflect and bend before 
developing enough force to stop and begin to reverse the wheelchair 
test device's motion.
    We believe ``initial impact'' includes all of the transfer of 
energy from the wheelchair test device to the barrier that takes place 
during this process. Our intention is that power to the wheelchair test 
device should be released only after the full impact cycle described 
above is completed. The proposed change merely eliminates additional 
impacts which may occur as a result of the wheelchair test device 
bouncing repeatedly off the barrier. We believe those subsequent 
impacts are unnecessary and that withstanding the first full impact is 
both a rigorous demonstration of barrier integrity and an adequate test 
of compliance with the requirement. To clarify our intent, we are 
changing the text of S7.7.2.4 to make clear that the complete initial 
impact of the wheelchair test device is absorbed by the barrier. 
Because identical language is also used in the procedure for the inner 
barrier impact test, we are making an identical change to S7.8.3.

[[Page 20563]]

Otherwise, we are proceeding with the change in the barrier impact test 
procedure as proposed in the December 2007 NPRM.

C. Handrail Test Procedures

    Among the technical changes proposed in the December 2007 NPRM were 
amendments to the handrail test procedures in FMVSS No. 403. S6.4.9 
details the handrail requirements for public and private use lifts. 
S6.4.9.8 of that standard provides that, when tested in accordance with 
S7.12.1, there must be at least 38 mm (1.5 in) of clearance between 
each handrail and any portion of the vehicle, throughout the range of 
passenger operation. In order to measure this clearance, the lift must 
be mounted on a vehicle during the test. The proposed amendments would 
require the handrail test in S7.12 to be performed on a lift/vehicle 
combination rather than on a test jig.
    Maxon commented that NHTSA should not make the proposed change for 
three reasons. First, Maxon noted that measurement of handrail 
displacement on a lift mounted on a test fixture is already difficult 
and it would be made more difficult by mounting the lift on a vehicle. 
Maxon stated that the added movement could make the accuracy of the 
measurement questionable. Second, Maxon observed that S7.12.1 does not 
require measurement throughout the range of passenger operation, which 
does not ensure that clearance is maintained at all lift positions. 
Third, Maxon noted that S7.12.1 and S7.12.2 do not specify a direction 
for the applied test load. As a consequence, Maxon contends, a 
manufacturer could test only in the most favorable direction and test 
only one vehicle. Maxon concluded that the proposed change would 
increase the testing burden without providing any increase in safety to 
passengers because the test would not ensure that lifts have adequate 
handrail clearance in all applications.
    Agency's Response: We have not made any changes to the proposed 
handrail test procedures based on Maxon's comments. It appears from 
Maxon's comments that the commenter has misinterpreted the handrail 
test requirement and the general applicability of FMVSS No. 403. 
Regarding the use of an actual vehicle rather than a test fixture, we 
believe that the purpose of the test is to reflect real world use and 
clearances. Although some FMVSS No. 403 test procedures can be 
performed on a test fixture without any compromise in the validity of 
the test or its applicability to actual use of the lift, in many cases 
a handrail test performed on a test fixture would not simulate actual 
handrail clearance and could fail to ensure the safety of lift users 
under actual operating conditions.
    Regarding measurement accuracy, we note that Maxon did not provide 
any information to substantiate their assertion that handrail tests 
conducted on a lift/vehicle combination are inadequate compared to 
tests conducted on a test fixture. Thus, we do not have any basis for 
determining that handrail displacement tests on a lift/vehicle 
combination are impractical.
    Maxon's other concerns are based on a misunderstanding of how NHTSA 
conducts compliance testing. Although Maxon states that measurement of 
handrail displacement is required only in one lift position, we observe 
that S6.4.9.8 states that the required handrail clearance must be 
maintained throughout the range of passenger operation. Maxon's 
statement that a lift manufacturer could test handrail deflection only 
in a single direction is similarly incorrect. Paragraphs S6.4.9.7 and 
S6.4.9.9 both state that the required force is applied at any point and 
in any direction on the handrail. NHTSA's regulations state, at 49 CFR 
571.4, that the term ``any'' indicates that a requirement must be met 
at all points within a range of possible points. In this case, the use 
of the word ``any'' in S6.4.9.7 and S6.4.9.9 means that a handrail can 
be tested and must comply with the standard in every possible direction 
in which it deflects when subjected to the specified force.

D. Measurement Procedure for Platform Illumination

    Both Blue Bird and the NTEA submitted comments related to the 
proposed test procedure for platform illumination in FMVSS No. 404. The 
platform illumination requirement applies to public-use lifts and is 
intended to facilitate lift use in darkness. S4.1.5 currently requires 
that public use lifts have a light or set of lights that provides at 
least 54 lm/m\2\ (5 lm/ft\2\) of luminance on all portions of the 
surface of the platform, throughout the range of passenger operation.
    In the December 2007 NPRM, the agency proposed to reduce the 
required light intensity from 54 lm/m\2\ (5 lm/ft\2\) to 22 lm/m\2\ (2 
lm/ft\2\). This reduction would bring the FMVSS No. 404 requirement 
into accord with ADA and FTA light intensity requirements.
    In response to comments received by the agency regarding the lack 
of a test procedure to demonstrate compliance with the lighting 
requirement, NHTSA proposed amendments to S4.1.5 to set forth how 
platform illumination is to be measured. Specifically, the agency 
proposed the following procedures for platform illumination 
measurement:
    <bullet> Illumination measurements would be recorded with the 
vehicle engine shut off.
    <bullet> The vehicle and lift would be in an environment in which 
there is no ambient light.
    <bullet> The sensor portion of the light meter would be within 50 
mm (2 in) of the surface being measured.
    <bullet> The measurement would be made with a light meter that has 
a range comparable to a minimum of 0 to 100 Lux, in increments 
comparable to 1 Lux or less, an accuracy of <plus-minus> 5% of the 
actual reading and a sampling rate of at least 2 Hz.
Vehicle Battery Condition
    Both Blue Bird and the NTEA observed that, because the proposed 
test would be conducted with the vehicle's engine shut off, the light 
illumination level would be affected by the vehicle battery condition. 
The NTEA asked if NHTSA agreed that the test should be conducted with 
the vehicle's battery fully charged with a voltage of approximately 12 
volts DC. Blue Bird suggested adding a paragraph to FMVSS No. 404 that 
would specify the battery condition at the time of testing. Blue Bird's 
suggested regulatory language would require that the battery be in a 
fully charged condition as defined by the battery manufacturer or, if 
such information cannot be obtained, industry-accepted third party 
sources be consulted, and would include measurements of the voltage, 
temperature, and specific gravity of the battery.
    Agency's Response: We agree that the state of charge of a vehicle 
battery could affect illumination testing under our proposed test 
procedure. We proposed that the test be conducted when the engine is 
not running, which we believe is appropriate because lifts often must 
be operated with the engine turned off. The proposed test procedure 
simulates a more rigorous condition than if the engine were running.
    We have considered specifying a minimum voltage for the vehicle 
battery for the platform illumination test. However, FMVSS No. 404 does 
not directly concern the operation of the vehicle's electrical system. 
Furthermore, the specification of a minimum battery voltage could be 
design-restrictive and would neglect differences between vehicles. For 
example, some lift-equipped vehicles could have an auxiliary battery, 
which may or may not provide extra power for lift lighting. In such a 
case, it could be unclear which

[[Page 20564]]

battery voltage would be applicable to the FMVSS No. 404 test. 
Furthermore, we do not believe regulation of the specific gravity of a 
battery is warranted because compliance tests are conducted on new 
vehicles. Consequently, the batteries of vehicles that are tested would 
be relatively new and unaffected by dilution, sulfation, or other 
factors that could degrade the electrolyte in older batteries.
    We believe that a performance-based approach for the illumination 
test will be simpler and less design-restrictive. Accordingly, we are 
altering the proposed test procedure to require that the lift-equipped 
vehicle must be operated prior to testing. Specifically, we are 
requiring that the engine be run for a minimum of 20 minutes by idling 
or driving the test vehicle with the vehicle's HVAC system turned off. 
Thereafter, the engine would be turned off and the test conducted. We 
believe 20 minutes is an appropriate amount of time to charge the 
battery and, if necessary, to warm it to conduct a consistent test. We 
believe that this performance-based test, rather than the minimum 
battery voltage proposed by the commenters, ensures sufficient battery 
voltage in a way that closely reflects real-world use of a platform 
lift system mounted on a vehicle.
Illumination Levels
    The NTEA's comment supported adopting the ADA requirements for 
platform illumination levels. However, the NTEA noted that, to fully 
comply with ADA requirements, vehicle manufacturers have added more 
lighting in the vehicle doorway to achieve the lighting required on the 
ground beyond the deployed lift. The NTEA states that this additional 
lighting could be problematic because the intensity and positioning of 
lamps have the potential to obscure a lift operator's vision and could 
create a burn hazard.
    Agency's Response: We have not made any change to our proposal 
based on this comment. We have no authority to alter the ADA 
requirement for lighting the ground beyond a deployed platform lift. 
The December 2007 NPRM concerned only illumination of the platform 
itself, and lighting the ground beyond a platform lift is beyond the 
scope of what was proposed in the December 2007 NPRM. The NTEA's 
comment acknowledges that this is not an issue specific to NHTSA.
Measurement of Illumination
    Blue Bird requested that the light meter sample rate not be 
specified in the platform illumination test procedure and that the 
sensor measurement range not be specified. With respect to light meter 
sample rate, Blue Bird stated that specifying a light meter sample rate 
could be interpreted to prohibit the use of analog light meters. Blue 
Bird also requested that the measurement range for the light meter not 
be specified because it is not unusual for parts of a platform lift 
surface to be illuminated in excess of 100 Lux, and a technician 
conducting measurements would be able to judge an appropriate 
measurement range.
    Agency's Response: Regarding the light meter measurement range, we 
note that the 0 to 100 Lux measurement range set forth in the proposal 
is a minimum range. Thus, any meter with a full-scale range equal to or 
greater than that is acceptable. In cases with the illumination level 
exceeds 100 Lux, there is no limitation on using a device with a 
greater range (or using a higher scale setting on a device with 
selectable ranges). We also note that the capability of taking 
illumination readings above 100 Lux is superfluous because compliance 
with S4.1.5 is established far below 100 Lux.
    Nevertheless, we have reevaluated those specifications and believe 
that they do not need to be included in the regulatory text. 
Accordingly, we are deleting those specifications from the proposed 
S4.1.5 test procedure, and manufacturers will be able to certify their 
platform lighting system using any analog or digital light meter. 
However, we give notice that, for NHTSA's compliance testing, we intend 
to use a light meter that meets the specifications set forth in the 
December 2007 NPRM, and we will be amending the FMVSS No. 404 Test 
Procedure, NHTSA TP-404, accordingly.

E. Preemption

    In the view of AAJ, NHTSA's discussion in the December 2007 NPRM of 
the 2000 Supreme Court case, Geier v. American Honda Motor Co., 529 
U.S. 861, and the agency's assessment of the possibility of preemption 
represented a ``sudden decision to claim [implied] preemption'' of 
State tort law.
    Agency's Response: The discussion in that notice was similar to the 
discussions in other agency notices of that period. As this agency has 
previously explained, AAJ generally misinterpreted those 
discussions.\10\
---------------------------------------------------------------------------

    \10\ 75 FR 33515, 33524-5; June 14, 2010.
---------------------------------------------------------------------------

IV. Technical Corrections

    The amendments in Section IV were not proposed in the December 2007 
NPRM. The agency has determined that good cause exists for the 
following technical corrections to be issued without publishing advance 
notice of the amendments or providing opportunity for public comment. 
The amendments discussed in Section IV correct obvious errors in 
regulatory text created by NHTSA's FMVSS Nos. 403 and 404 rulemakings. 
In one case, the technical correction reverses an earlier inadvertent 
change to regulatory text that was made without any discussion in the 
preamble.

A. Definition of Motor Home

    In the December 2002 final rule establishing FMVSS Nos. 403 and 
404, NHTSA added a definition for ``motor home'' to 49 CFR 571.3 that 
applies to all FMVSSs. In that final rule, the agency categorized a 
motor home as a ``multi-purpose vehicle.'' However, NHTSA intended to 
categorize a ``motor home'' as a ``multipurpose passenger vehicle.'' 
The term ``multipurpose passenger vehicle'' is defined in section 
571.3, whereas the term ``multi-purpose vehicle'' is not defined. We 
are correcting this obvious error in this final rule.

B. Change to Application Section

    In the October 2004 final rule responding to petitions for 
reconsideration, NHTSA amended the ``Application'' section (S3) of 
FMVSS Nos. 403 and 404. The agency made changes to the ``Application'' 
section to make clear that FMVSS Nos. 403 and 404 do not apply to 
systems involving specialized medical transport. In the December 2004 
interim final rule, NHTSA again amended the ``Application'' section to 
delay the compliance dates for FMVSS Nos. 403 and 404. In the December 
2004 interim final rule, the agency inadvertently deleted the changes 
made in the October 2004 final rule. The changes to the ``Application'' 
sections in the December 2004 interim final rule were intended solely 
to delay the effective date. The agency did not discuss changing or 
intend to change the types of platform lifts or vehicles to which FMVSS 
Nos. 403 and 404 apply. This final rule corrects this inadvertent 
change in the applicability of FMVSS Nos. 403 and 404.

C. Height Range Measurements in Edge Guard Test

    We are changing the phrase ``less than'' to ``more than'' in two 
places in the edge guard test in S7.7.4 of FMVSS No. 403. The 
procedures set forth in paragraphs S7.7.4.3 and S7.7.4.6 specify a 
range of heights at which the edge guard test requirements are 
applicable. The requirements are supposed to apply

[[Page 20565]]

in a height range extending from 90 mm (3.5 in) above ground to 38 mm 
(1.5 in) below vehicle floor level. However, the regulatory text sets 
forth the upper limit as ``less than'' 38 mm (1.5 in) below floor 
level. In order for the test to be correct, the upper limit should be 
specified as ``more than'' 38 mm (1.5 in) below floor level--meaning 
that the platform must be lower in height than 38 mm (1.5 in) below the 
vehicle floor. Otherwise, the test would only be conducted in two 
places, as there is unlikely to be any height that is both less than 38 
mm (1.5 in) below floor level and 90 mm (3.5 in) above the ground. If 
that was NHTSA's intent, there would have been no need for the test to 
be conducted at a range of heights. In order to conduct this test as 
NHTSA intended, it is necessary that the platform be no higher than 38 
mm (1.5 in) below the vehicle floor to ensure deployment of an inner 
barrier or roll-stop. This final rule amends paragraphs S7.7.4.3 and 
S7.7.4.6 of FMVSS No. 403 to correct this obvious error.

D. Test Conditions for Inner Roll Stop Test

    There was an error in the proposed regulatory text of paragraph S7 
in the December 2007 NPRM. Paragraph S7 sets forth which of the test 
procedures must be performed on a platform lift installed on a vehicle 
and which may be performed with the lift mounted on a fixture or test 
jig. The proposed language of paragraph S7 regrouped the handrail test 
procedure of S7.12 with those tests that must be performed on a 
vehicle/lift combination. In the proposed regulatory text, we 
erroneously included the inner roll stop test procedure of S7.8 in both 
groups of tests. The inner roll stop test procedure must be performed 
on a lift/vehicle combination as the current regulatory text states. We 
have corrected this inadvertent error in this final rule.

E. Clarification of Wheelchair Retention and Inner Roll Stop 
Requirements

    In the December 2007 NPRM, the agency proposed amending S6.4.7 to 
delete the requirement that the wheelchair test device remain upright 
with all its wheels in contact with the platform surface following 
impact. Instead, NHTSA proposed to revise S6.4.7 to provide that a 
wheelchair retention device passes the impact test if, after impact, 
the wheelchair test device remains supported by the platform surface 
with none of the axles of its wheels extending beyond the plane 
perpendicular to the platform reference plane (Figure 1) which passes 
through the edge of the platform surface that is transverse when 
entering or exiting the platform from the ground level loading 
position. We have modified the language to clarify that such a plane 
would be tangent to the edge of the platform surface. We have made a 
similar change to the proposed amendment to S6.4.8.3 using the same 
language in relation to the inner roll stop requirement.

V. November 3, 2005 Interpretation

    On November 3, 2005, we issued an interpretation letter related to 
S7.4 of FMVSS No. 403, addressed to Maxon. The November 2005 
interpretation clarified specific procedures that are performed as part 
of the threshold warning signal test. Although the agency has decided 
against revising the language of S7.4, we include a discussion of the 
matter in this document to ensure wide-spread dissemination of the 
interpretation.
    In asking about the threshold warning requirements, the incoming 
letter suggested that there was an apparent inconsistency between the 
requirement and the associated test procedure.
    The agency responded, explaining, as follows, that the specified 
test procedure for the threshold warning system is consistent with that 
requirement:

    As part of FMVSS No. 403, the agency established a threshold 
warning signal requirement for platform lifts in part to minimize 
the risk of a lift user backing off a vehicle before a lift is 
properly positioned. S6.1 of FMVSS No. 403 requires an appropriate 
threshold warning signal to be activated when any portion of a 
passenger's body or mobility aid occupies the platform threshold 
area defined in S4 of that standard, and the platform is more than 
25 mm (1 inch) below the vehicle floor reference plane. A platform 
lift must meet this requirement when tested in accordance with S7.4 
of the standard.
    In your letter you stated that it is possible to design a 
threshold warning system that ``will pass a test that is performed 
as described in S7.4 and not completely fulfill the requirements of 
S6.1.3''. You described a threshold warning system designed with an 
optical sensor at the interior boundary of the platform threshold 
area. You stated that such a system would activate the warning 
signal only when a passenger is crossing the boundary of the 
threshold at the same time as the platform is lower than 25 mm from 
the vehicle floor. You further stated that such a system would not 
activate a signal if a passenger were completely within the 
threshold area when the platform reached the specified distance from 
the vehicle floor. Your letter indicated that you believe that such 
a system would ``pass'' the test procedure, but not comply fully 
with the requirement.
    A system as you described would not comply with the requirements 
of S6.1.3 when tested as specified in S7.4. As stated above, S6.1 
requires the appropriate warning signal to activate when tested in 
accordance with S7.4. S7.4.2 specifies that, with the platform lift 
at the vehicle floor loading position:
    [P]lace one front wheel of the unloaded wheelchair test device 
[specified in S7.1.2] on any portion of the threshold area defined 
in S4. Move the platform down until the alarm is actuated. Remove 
the test wheelchair wheel from the threshold area to deactivate the 
alarm. Measure the vertical distance between the platform and the 
threshold area and determine whether that distance is greater than 
25 mm (1 in).
    Thus, S7.4.2 specifies placing the front wheel of the test 
device on any portion of the threshold area. As explained in 49 CFR 
571.4, the use of the term ``any'' in connection with a range of 
values or set of items means generally, ``the totality of the items 
or values, any one of which may be selected by the [agency] for 
testing''. Accordingly, the procedure specified in S7.4.2 includes 
placement of the front wheel that could result in the entire test 
device being within the threshold area prior to the platform being 
lowered. This also includes placement that results in a portion of 
the test device being on the platform.
    Given the discussion above, a system such as you described would 
not comply when tested under S7.4.2. As such, there is no 
discrepancy between the requirement of S6.1.3 and the test procedure 
specified in S7.4.

VI. Compliance Date

    The amendments made by this final rule are mandatory for purposes 
of compliance 180 days after publication of this final rule. Optional 
compliance is permitted immediately upon publication of the final rule. 
We believe these dates are appropriate given that the amendments are 
for the purpose of clarifying the requirements of the standard and 
providing further flexibility in compliance.

VII. Rulemaking Analyses and Notices

Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    NHTSA has considered the impacts of this rulemaking action under 
Executive Order 12866, Executive Order 13563, and the Department of 
Transportation's regulatory policies and procedures. This action was 
not reviewed by the Office of Management and Budget under E.O. 12866. 
The agency has considered the impact of this action under the 
Department of Transportation's regulatory policies and procedures (44 
FR 11034; February 26, 1979), and has determined that it is not 
``significant'' under them. This rulemaking document was not reviewed 
under E.O. 12866.
    This document makes amendments to FMVSS Nos. 403 and 404 to clarify 
the requirements of the standard and to

[[Page 20566]]

provide further flexibility in compliance. The impacts of the 
amendments are so minimal that a full regulatory evaluation is not 
required. Readers who are interested in the overall costs and benefits 
of the platform lift requirements are referred to the agency's Final 
Economic Assessment for the December 2002 final rule (Docket No. NHTSA-
2002-13917-3). The amendments made by this document will not change the 
costs and benefits in a quantifiable manner.

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
The Small Business Administration's regulations at 13 CFR Part 121 
define a small business, in part, as a business entity ``which operates 
primarily within the United States.'' (13 CFR 121.105(a)). No 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended the Regulatory 
Flexibility Act to require Federal agencies to provide a statement of 
the factual basis for certifying that a rule will not have a 
significant economic impact on a substantial number of small entities.
    NHTSA has considered the effects of this final rule under the 
Regulatory Flexibility Act. I certify that this final rule will not 
have a significant economic impact on a substantial number of small 
entities. The final rule does not impose new requirements but instead 
amends FMVSS Nos. 403 and 404 to clarify the requirements of the 
standards and to provide further flexibility in compliance.

Executive Order 13132 (Federalism)

    NHTSA has examined today's rule pursuant to Executive Order 13132 
(64 FR 43255, August 10, 1999) and concluded that no additional 
consultation with States, local governments or their representatives is 
mandated beyond the rulemaking process. The agency has concluded that 
the rulemaking does not have sufficient federalism implications to 
warrant consultation with State and local officials or the preparation 
of a federalism summary impact statement. The rule does not have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.''
    NHTSA rules can preempt in two ways. First, the National Traffic 
and Motor Vehicle Safety Act contains an express preemption provision:

    When a motor vehicle safety standard is in effect under this 
chapter, a State or a political subdivision of a State may prescribe 
or continue in effect a standard applicable to the same aspect of 
performance of a motor vehicle or motor vehicle equipment only if 
the standard is identical to the standard prescribed under this 
chapter. 49 U.S.C. 30103(b)(1).

It is this statutory command by Congress that preempts any non-
identical State legislative and administrative law addressing the same 
aspect of performance.
    The express preemption provision described above is subject to a 
savings clause under which ``[c]ompliance with a motor vehicle safety 
standard prescribed under this chapter does not exempt a person from 
liability at common law.'' 49 U.S.C. 30103(e). Pursuant to this 
provision, State common law tort causes of action against motor vehicle 
manufacturers that might otherwise be preempted by the express 
preemption provision are generally preserved.
    However, the Supreme Court has recognized the possibility, in some 
instances, of implied preemption of such State common law tort causes 
of action by virtue of NHTSA's rules, even if not expressly preempted. 
This second way that NHTSA rules can preempt is dependent upon there 
being an actual conflict between an FMVSS and the higher standard that 
would effectively be imposed on motor vehicle manufacturers if someone 
obtained a State common law tort judgment against the manufacturer, 
notwithstanding the manufacturer's compliance with the NHTSA standard. 
Because most NHTSA standards established by an FMVSS are minimum 
standards, a State common law tort cause of action that seeks to impose 
a higher standard on motor vehicle manufacturers will generally not be 
preempted. However, if and when such a conflict does exist--for 
example, when the standard at issue is both a minimum and a maximum 
standard--the State common law tort cause of action is impliedly 
preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).
    Pursuant to Executive Order 13132 and 12988, NHTSA has considered 
whether this rule could or should preempt State common law causes of 
action. The agency's ability to announce its conclusion regarding the 
preemptive effect of one of its rules reduces the likelihood that 
preemption will be an issue in any subsequent tort litigation. To this 
end, the agency has examined the nature (e.g., the language and 
structure of the regulatory text) and objectives of today's rule and 
finds that this rule, like many NHTSA rules, prescribes only a minimum 
safety standard. As such, NHTSA does not intend that this rule preempt 
State tort law that would effectively impose a higher standard on motor 
vehicle manufacturers than that established by today's rule. 
Establishment of a higher standard by means of State tort law would not 
conflict with the minimum standard adopted here. Without any conflict, 
there could not be any implied preemption of a State common law tort 
cause of action.

Executive Order 12988 (Civil Justice Reform)

    With respect to the review of the promulgation of a new regulation, 
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR 
4729, February 7, 1996) requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect; (2) clearly specifies the effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct, while promoting simplification and burden reduction; 
(4) clearly specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. This document is consistent with that requirement.
    Pursuant to this Order, NHTSA notes as follows. The issue of 
preemption is discussed above. NHTSA notes further that there is no 
requirement that individuals submit a petition for reconsideration or 
pursue other administrative proceeding before they may file suit in 
court.

Protection of Children From Environmental Health and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health and Safety Risks'' (62 FR 19855, April 23, 1997), applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an

[[Page 20567]]

environmental, health, or safety risk that the agency has reason to 
believe may have a disproportionate effect on children. If the 
regulatory action meets both criteria, the agency must evaluate the 
environmental health or safety effects of the planned rule on children, 
and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the agency.
    Although this final rule is part of a rulemaking expected to have a 
positive safety impact on children, it is not an economically 
significant regulatory action under Executive Order 12866. 
Consequently, no further analysis is required under Executive Order 
13045.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), a person is not 
required to respond to a collection of information by a Federal agency 
unless the collection displays a valid OMB control number. There is no 
information collection requirement associated with this final rule.

National Technology Transfer and Advancement Act

    Under the National Technology Transfer and Advancement Act of 1995 
(NTTAA) (Pub. L. 104-113), ``all Federal agencies and departments shall 
use technical standards that are developed or adopted by voluntary 
consensus standards bodies, using such technical standards as a means 
to carry out policy objectives or activities determined by the agencies 
and departments.''
    As discussed in the preamble to the December 2002 final rule, the 
equipment standard was drafted to include or exceed all existing 
government (FTA, ADA) and voluntary industry (e.g., SAE) standards.\11\ 
Readers who are interested in the source of the requirements in FMVSS 
No. 403 are referred to that document. The agency included a table 
showing the source of each requirement in FMVSS No. 403.
---------------------------------------------------------------------------

    \11\ 67 FR 79416, 79438; December 27, 2002.
---------------------------------------------------------------------------

    This document is not imposing new requirements, but is instead 
amending FMVSS Nos. 403 and 404 to clarify the requirements of the 
standards and to provide further flexibility in compliance. As 
discussed in the December 2007 NPRM, the proposal to amend S4.1.5 of 
FMVSS No. 404 to reduce the required platform illumination levels to 
those specified by the ADA and FTA is consistent with the NTTAA.\12\
---------------------------------------------------------------------------

    \12\ 72 FR 72326, 72333; December 20, 2007.
---------------------------------------------------------------------------

Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires Federal agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of more 
than $100 million annually (adjusted for inflation with base year of 
1995). Before promulgating a NHTSA rule for which a written statement 
is needed, section 205 of the UMRA generally requires the agency to 
identify and consider a reasonable number of regulatory alternatives 
and adopt the least costly, most cost-effective, or least burdensome 
alternative that achieves the objectives of the rule. The provisions of 
section 205 do not apply when they are inconsistent with applicable 
law. Moreover, section 205 allows the agency to adopt an alternative 
other than the least costly, most cost-effective, or least burdensome 
alternative if the agency publishes with the final rule an explanation 
of why that alternative was not adopted.
    This final rule will not result in any expenditure by State, local, 
or tribal governments or the private sector. Thus, this final rule is 
not subject to the requirements of sections 202 and 205 of the UMRA.

National Environmental Policy Act

    NHTSA has analyzed this rulemaking action for the purposes of the 
National Environmental Policy Act. The agency has determined that 
implementation of this action will not have any significant impact on 
the quality of the human environment.

Regulatory Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. You may 
use the RIN contained in the heading at the beginning of this document 
to find this action in the Unified Agenda.

Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://www.regulations.gov.

List of Subjects in 49 CFR Part 571

    Motor vehicle safety, Reporting and recordkeeping requirements, 
Tires.

    In consideration of the foregoing, NHTSA hereby amends 49 CFR part 
571 as follows:

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
1. The authority citation for part 571 of Title 49 continues to read as 
follows:

    Authority:  49 U.S.C. 322, 30111, 30115, 30117, and 30166; 
delegation of authority at 49 CFR 1.50.


0
2. Section 571.3 is amended by revising the definition of ``motor 
home'' in paragraph (b) to read as follows:


Sec.  571.3  Definitions.

* * * * *
    Motor home means a multipurpose passenger vehicle with motive power 
that is designed to provide temporary residential accommodations, as 
evidenced by the presence of at least four of the following facilities: 
Cooking; refrigeration or ice box; self-contained toilet; heating and/
or air conditioning; a potable water supply system including a faucet 
and a sink; and a separate 110-125 volt electrical power supply and/or 
propane.
* * * * *

0
3. Section 571.403 is amended by revising paragraphs S3, S6.1.4, 
S6.1.6, S6.4.7.1, S6.4.8.3(a), S6.7.4, S6.7.6.2, S6.10.2.4, S6.10.2.5, 
S6.10.2.6, S6.10.2.7, S7, S7.4.2, S7.5, S7.5.1, S7.6, S7.6.1, S7.6.2, 
S7.6.3, S7.7.2.4, S7.7.2.5, S7.7.4.3, S7.7.4.6, S7.8.3, and Figure 2; 
by removing paragraphs S7.5.2 and S7.5.3; and by adding new paragraphs 
S7.5.1.1 and S7.5.1.2 to read as follows:


Sec.  571.403  Standard No. 403; Platform lift systems for motor 
vehicles.

* * * * *
    S3 Application. This standard applies to platform lifts 
manufactured on and after April 1, 2005, that are designed to carry 
standing passengers, who may be aided by canes or walkers, as well as 
persons seated in wheelchairs, scooters, and other mobility aids, into 
and out of motor vehicles.
* * * * *
    S6.1.4 The visual warning required by S6.1.2 and S6.1.3 must be a 
flashing red beacon as defined in SAE Recommended Practice J578 (1995) 
(incorporated by reference, see Sec.  571.5), must have a minimum 
intensity of 20

[[Page 20568]]

candela, a frequency from 1 to 2 Hz, and must be located within the 
interior of the vehicle such that it is visible from a point 914 mm (3 
ft) above the center of the threshold area (see Figure 2) wherever the 
lift is installed and with any configuration of the vehicle interior.
* * * * *
    S6.1.6 The intensity of the audible warning and visibility of the 
visual warning required by S6.1.2 and S6.1.3 is measured/observed at a 
location 914 mm (3 ft) above the center of the platform threshold area. 
(See Figure 2).
* * * * *
    S6.4.7.1 Impact I. Except for platform lifts designed so that 
platform loading takes place wholly over the vehicle floor, the lift 
must have a means of retaining the test device specified in S7.1.2. 
After impact, the test device must remain supported by the platform 
surface with none of the axles of its wheels extending beyond a plane 
that is perpendicular to the platform reference plane (Figure 1) and 
that is tangent to the edge of the platform that is traversed when 
entering or exiting the platform from the ground level loading position 
throughout its range of passenger operation, except as provided in 
S6.4.7.4. The lift is tested in accordance with S7.7 to determine 
compliance with this section.
* * * * *
    S6.4.8.3 * * *
    (a) The front wheels of the test device specified in S7.1.2 from 
extending beyond a plane that is perpendicular to the platform 
reference plane (Figure 1) and that is tangent to the edge of the 
platform where the roll stop is located when the lift is at ground 
level loading position; and
* * * * *
    S6.7.4 Except for the POWER function described in S6.7.2.1, the 
control system specified in S6.7.2 must prevent the simultaneous 
performance of more than one function. If an initial function is 
actuated, then one or more other functions are actuated while the 
initial function remains actuated, the platform must either continue in 
the direction dictated by the initial function or stop. Verification of 
this requirement is made throughout the lift operations specified in 
S7.9.3 through S7.9.8.
* * * * *
    S6.7.6.2 Public use lifts. Public-use lift controls located within 
the portion of the passenger compartment specified in S5.3.4(a) of 
Standard No. 101 (Sec.  571.101) must have characters that are 
illuminated in accordance with S5.3 of Standard No. 101 when the 
vehicle's headlights are illuminated. Public-use lift controls located 
outside the portion of the passenger compartment specified in S5.3.4(a) 
of Standard No. 101 (Sec.  571.101) must have means for illuminating 
the characters to make them visible under daylight and nighttime 
conditions.
* * * * *
    S6.10.2.4 Movement of the platform up or down, throughout the range 
of passenger operation, unless the inner roll stop required to comply 
with S6.4.8 is deployed. When the platform reaches a level where the 
inner roll stop is designed to fully deploy, the platform must stop 
unless the inner roll stop has fully deployed. Verification with this 
requirement is made by performing the test procedure specified in 
S7.6.1.
    S6.10.2.5 Movement of the platform up or down, throughout the range 
of passenger operation, when the highest point of the platform surface 
at the outer most platform edge is above a horizontal plane 75 mm (3 
in) above the ground level loading position, unless the wheelchair 
retention device required to comply with S6.4.7 is deployed throughout 
the range of passenger operations. Verification of compliance is made 
using the test procedure specified in S7.5.1.
    S6.10.2.6 In the case of a platform lift that is equipped with an 
outer barrier, vertical deployment of the outer barrier when it is 
occupied by portions of the passenger's body or mobility aid throughout 
the lift operation. When the platform stops, the vertical change in 
distance of the horizontal plane (passing through the point of contact 
between the wheelchair test device wheel(s) and the upper surface of 
the outer barrier) must not be greater than 13 mm (0.5 in). 
Verification of compliance with this requirement is made using the test 
procedure specified in S7.5.1.
    S6.10.2.7 Vertical deployment of the inner roll stop required to 
comply with S6.4.8 when it is occupied by portions of a passenger's 
body or mobility aid throughout the lift operations. When the platform 
stops, the vertical change in distance of the horizontal plane (passing 
through the point of contact between the wheelchair test device 
wheel(s) and the upper surface of the inner roll stop or platform edge) 
must not be greater than 13 mm (0.5 in). Verification of compliance 
with this requirement is made using the test procedure specified in 
S7.6.1.
* * * * *
    S7 Test conditions and procedures. Each platform lift must be 
capable of meeting all of the tests specified in this standard, both 
separately, and in the sequence specified in this section. The tests 
specified in S7.4, S7.7.4 and S7.8 through S7.12 are performed on a 
single lift and vehicle combination. The tests specified in S7.2, S7.3, 
S7.5, S7.6, S7.7.1, S7.13, and S7.14 may be performed with the lift 
installed on a test jig rather than on a vehicle. Tests of requirements 
in S6.1 through S6.11 may be performed on a single lift and vehicle 
combination, except for the requirements of S6.5.3. Attachment hardware 
may be replaced if damaged by removal and reinstallation of the lift 
between a test jig and vehicle.
* * * * *
    S7.4.2 During the threshold warning test, the wheelchair test 
device may be occupied by a human representative of a 5th percentile 
female meeting the requirements of FMVSS 208, S29.1(f) and S29.2. If 
present, the human subject is seated in the wheelchair test device with 
his or her feet supported by the wheelchair foot rests which are 
adjusted properly for length and in the down position (not elevated). 
The manufacturer shall select the option by the time it certifies the 
lift and may not thereafter select a different test option for the 
lift. Maneuver the lift platform to the vehicle floor level loading 
position. Using the wheelchair test device specified in S7.1.2, place 
one front wheel of the wheelchair test device on any portion of the 
threshold area defined in S4. Move the platform down until the alarm is 
actuated. Remove the test wheelchair wheel from the threshold area to 
deactivate the alarm. Measure the vertical distance between the 
platform and the threshold area and determine whether that distance is 
greater than 25 mm (1 in).
* * * * *
    S7.5 Outer barrier non-deployment interlock and occupied outer 
barrier interlock test.
    S7.5.1 Determine compliance with both S6.10.2.5 and S6.10.2.6 by 
using the following single test procedure.
    S7.5.1.1 Place the test jig or vehicle on which the lift is 
installed on a flat, level, horizontal surface. Maneuver the platform 
to the ground level loading position. Using the lift control, move the 
lift upward until the point where the outer barrier fully deploys. Stop 
the platform at that point and measure the vertical distance between 
the highest point on the platform surface at the outer most edge and 
the ground to determine whether the distance is greater than 75 mm (3 
in). Reposition the platform in the ground level loading position. 
Locate the wheelchair test device specified in S7.1.2 on the platform. 
If other wheelchair retention devices (e.g., a belt retention device) 
prevent the front wheel of the

[[Page 20569]]

wheelchair test device from accessing the outer barrier when on the 
platform, the wheelchair test device may be placed on the ground facing 
the entrance to the lift, with other retention devices configured so 
that they do not prevent lift operation (e.g., with any belt retention 
device fastened or buckled).
    S7.5.1.2 Place one front wheel of the wheelchair test device on any 
portion of the outer barrier. If the platform is too small to maneuver 
one front wheel on the outer barrier, two front wheels may be placed on 
the outer barrier. Note the distance between a horizontal plane 
(passing through the point of contact between the wheelchair test 
device wheel(s) and the upper surface of the outer barrier) and the 
ground. Using the lift control, move the platform up until it stops. 
Measure the vertical distance between the highest point of the platform 
surface at the outer most edge and the ground to determine compliance 
with S6.10.2.5. Measure the vertical change in distance of the 
horizontal plane (passing through the point of contact between the 
wheelchair test device wheel(s) and the upper surface of the outer 
barrier) to determine compliance with S6.10.2.6.
    S7.6 Inner roll stop non-deployment interlock and occupied inner 
roll stop interlock test.
    S7.6.1 Determine compliance with both S6.10.2.4 and S6.10.2.7 by 
using the single test procedure in S7.6.2 and S7.6.3.
    S7.6.2 Maneuver the platform to the vehicle floor level loading 
position, and position the wheelchair test device specified in S7.1.2 
on the platform with the front of the wheelchair test device facing the 
vehicle. Using the lift control, move the platform down until the inner 
roll stop fully deploys. Stop the lift and note that location.
    S7.6.3 Reposition the platform at the vehicle floor level loading 
position. Place one front wheel of the wheelchair test device on the 
inner roll stop. If the platform is too small to maneuver one front 
wheel on the inner roll stop, two front wheels may be placed on the 
inner roll stop. Note the vertical distance between a horizontal plane 
(passing through the point of contact between the wheelchair test 
device wheel(s) and the upper surface of the inner roll stop) and the 
ground. Using the lift control, move the platform down until it stops. 
Compare the location of the platform relative to the location noted in 
S7.6.2 to determine compliance with S6.10.2.4. Measure the vertical 
change in distance of the horizontal plane (passing through the point 
of contact between the wheelchair test device wheel(s) and the upper 
surface of the inner roll stop) to determine compliance with S6.10.2.7.
* * * * *
    S7.7.2.4 An optional 50 kg (110 pounds) of weight may be centered, 
evenly distributed, and secured in the seat of the wheelchair test 
device to assist in stabilizing the wheelchair test device during 
testing. The manufacturer shall select the option by the time it 
certifies the lift and may not thereafter select a different test 
option for the lift. Accelerate the test device onto the platform under 
its own power such that the test device impacts the wheelchair 
retention device at each speed and direction combination specified in 
S7.7.2.5. Terminate power to the wheelchair test device by means of the 
wheelchair controller after completion of the initial impact of any 
portion of the wheelchair test device with the wheelchair retention 
device. Note the position of the wheelchair test device following each 
impact to determine compliance with S6.4.7. If necessary, after each 
impact, adjust or replace the footrests to restore them to their 
original condition.
    S7.7.2.5 The test device is operated at the following speeds, in 
the following directions--
    (a) At a speed of not less than 2.0 m/s (4.4 mph) and not more than 
2.1 m/s (4.7 mph) in the forward direction.
    (b) At a speed of not less than 1.75 m/s (3.9 mph) and not more 
than 1.85 m/s (4.1 mph) in the rearward direction.
* * * * *
    S7.7.4.3 Adjust the control of the test device to a setting that 
provides maximum acceleration and steer the test device from side-to-
side and corner-to-corner of the lift platform, attempting to steer the 
test device off the platform. After each attempt, when the wheelchair 
test device stalls due to contact with a barrier, release the control 
to Neutral and realign the test device to the starting position. Repeat 
this sequence at any level that is more than 90 mm <plus-minus>10 mm 
(3.5 in <plus-minus>0.4 in) above the ground level loading position and 
more than 38 mm <plus-minus>10 mm (1.5 in <plus-minus>0.4 in) below the 
vehicle floor level loading position. Repeat this sequence at 38 mm 
<plus-minus>10 mm (1.5 in <plus-minus>0.4 in) below the vehicle floor 
level loading position.
* * * * *
    S7.7.4.6 Adjust the control of the test device to a setting that 
provides maximum acceleration and steer the test device from side-to-
side and corner-to-corner of the lift platform, attempting to steer the 
test device off the platform. After each attempt, when the wheelchair 
test device stalls due to contact with a barrier, release the control 
to Neutral and realign the test device to the starting position. Repeat 
this sequence at any level that is more than 90 mm <plus-minus>10 mm 
(3.5 in <plus-minus>0.4 in) above the ground level loading position and 
more than 38 mm <plus-minus>10 mm (1.5 in <plus-minus>0.4 in) below the 
vehicle floor loading position. Repeat this sequence at 38 mm <plus-
minus>10 mm (1.5 in <plus-minus>0.4 in) below the vehicle floor level 
loading position.
* * * * *
    S7.8.3 An optional 50 kg (110 pounds) of weight may be centered, 
evenly distributed, and secured in the seat of the wheelchair test 
device to assist in stabilizing the wheelchair test device during 
testing. The manufacturer shall select the option by the time it 
certifies the lift and may not thereafter select a different test 
option for the lift. Accelerate the test device onto the platform such 
that it impacts the inner roll stop at a speed of not less than 1.5 m/s 
(3.4 mph) and not more than 1.6 m/s (3.6 mph). Terminate power to the 
wheelchair test device by means of the wheelchair controller after 
completion of the initial impact of any portion of the wheelchair test 
device with the inner roll stop. Determine compliance with S6.4.8.3(a).
* * * * *
BILLING CODE 4910-59-P

[[Page 20570]]

[GRAPHIC] [TIFF OMITTED] TR05AP12.001


[[Page 20571]]


* * * * *

0
4. Section 571.404 is amended by revising paragraphs S3 and S4.1.5 to 
read as follows:


Sec.  571.404  Standard No. 404; Platform lift installations in motor 
vehicles.

* * * * *
    S3 Application. This standard applies to motor vehicles 
manufactured on and after July 1, 2005, that are equipped with a 
platform lift designed to carry standing passengers who may be aided by 
canes or walkers, as well as persons seated in wheelchairs, scooters, 
and other mobility aids, into and out of the vehicle.
* * * * *
    S4.1.5 Platform Lighting on public use lifts. Public-use lifts must 
be provided with a light or set of lights that provide at least 22 lm/
m\2\ or 22 Lux (2 lm/ft\2\ or 2 foot-candles) of illumination on all 
portions of the surface of the platform when the platform is at the 
vehicle floor level. Additionally, a light or set of lights must 
provide at least 11 lm/m\2\ or 11 Lux (1 lm/ft\2\ or 1 foot-candle) of 
illumination on all portions of the surface of the platform and all 
portions of the surface of the passenger-unloading ramp at ground 
level. In preparation for taking illumination measurements, operate the 
vehicle engine by idling or driving the test vehicle, with the 
vehicle's HVAC system turned off, for a minimum of 20 minutes, after 
which the engine is turned off. Illumination measurements are then 
recorded no later than 10 minutes after the time the engine is turned 
off, with the vehicle in a location where there is no apparent ambient 
light, and with the sensing element of the measuring device within 50 
mm (2 inches) of the platform surface being measured.
* * * * *

    Issued on: March 28, 2012.
David L. Strickland,
Administrator.
[FR Doc. 2012-8138 Filed 4-4-12; 8:45 am]
BILLING CODE 4910-59-C


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>