Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51673 

year. You may use the RIN contained in 

the heading at the beginning of this 

document to find this action in the 

Unified Agenda. 

J. Privacy Act 

Please note that 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://dms.dot.gov. 

K. 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. 

List of Subjects in 49 CFR Parts 571 

Motor vehicle safety, Reporting and 

recordkeeping requirements, Tires. 

■ In consideration of the foregoing, Part 

571 is amended as follows: 

PART 571—FEDERAL MOTOR 

VEHICLE SAFETY STANDARDS 

■ 1. The authority citation for part 571 

continues to read as follows: 

Authority: 49 U.S.C. 322, 2011, 30115, 

30166 and 30177; delegation of authority at 

49 CFR 1.50. 

■ 2. Section 571.201 is amended by 

revising the definition of Seat belt 

mounting structure in S3, adding the 

definition of Interior rear quarter panel 

to S3 in alphabetical order, and revising 

S6.3(e) to read as follows: 

§ 571.201 Standard No. 201; Occupant 

protection in interior impact. 

* * * * * 

S3. Definitions. * * * 

Interior rear quarter panel means a 

vehicle interior component located 

between the rear edge of the side door 

frame, the front edge of the rearmost 

seat back, and the daylight opening. 

* * * * * 

Seat belt mounting structure means: 

(a) A vehicle body or frame 

component, including trim, that 

incorporates an upper seat belt 

anchorage conforming to the 

requirements of S4.2.1 and S4.3.2 of 49 

CFR 571.210, that is located rearward of 

the rearmost outboard designated 

seating position, and that extends above 

a horizontal plane 660 mm above the 

seating reference point (SgRP) of that 

seating position; and 

(b) A vehicle body or frame 

component, including trim, that 

incorporates an upper seat belt 

anchorage conforming to the 

requirements of S4.2.1 and S4.3.2 of 49 

CFR 571.210, that is located forward of 

the rearmost outboard designated 

seating position, and that extends above 

a horizontal plane 460 mm above the 

SgRP of that seating position located 

rearward of the anchorage. 

(c) The seat belt mounting structure is 

not a pillar, roll bar, brace or stiffener, 

side rail, seat, interior rear quarter 

panel, or part of the roof. 

* * * * * 

S6.3 * * * 

(e) Any target located on the seat belt 

mounting structures, door frames and 

other door frames before December 1, 

2005. 

* * * * * 

Dated: August 25, 2005. 

Jeffrey W. Runge, 

Administrator. 

[FR Doc. 05–17294 Filed 8–29–05; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 595 

[Docket No. NHTSA–2004–19092] 

RIN 2127–AJ07 

Make Inoperative Provisions; Vehicle 

Modifications To Accommodate People 

With Disabilities 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: To facilitate further the 

modification of vehicles to 

accommodate individuals with 

disabilities, this final rule expands the 

existing exemptions from the ‘‘make 

inoperative’’ provision of the Vehicle 

Safety Act. Responding to petitions for 

rulemaking from members of the 

mobility industry, this document 

expands the exemption to include 

exemptions from provisions of the 

advanced air bag requirements, the 

child restraint anchorage system 

requirements, and the upper interior 

head protection requirements. 

DATES: The effective date for this final 

rule is October 31, 2005. 

Petitions for reconsideration. Petitions 

for reconsideration of this final rule 

must received not later than October 17, 

2005. 

ADDRESSES: Petitions for reconsideration 

of the final rule must refer to the docket 

and notice number set forth above and 

be submitted to the Administrator, 

National Highway Traffic Safety 

Administration, 400 Seventh Street, 

SW., Washington, DC 20590, with a 

copy to Docket Management, Room PL–

401, 400 Seventh Street, SW., 

Washington, DC 20590. 

FOR FURTHER INFORMATION CONTACT: For 

non-legal issues, you may call Ms. Gayle 

Dalrymple, Office of Crash Avoidance 

Standards at (202) 366–5559. Her fax 

number is (202) 366–7002. For legal 

issues, you may call Ms. Dorothy 

Nakama, Office of Chief Counsel at (202) 

366–2992. Her fax number is (202) 366–

3820. You may send mail to both of 

these officials at the National Highway 

Traffic and Safety Administration, 400 

Seventh St., SW., Washington, DC 

20590. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The National Traffic and Motor 

Vehicle Safety Act requires vehicle 

manufacturers to certify that their 

vehicles comply with all applicable 

Federal motor vehicle safety standards 

(49 U.S.C. 30112 et seq.). The Act 

further prohibits manufacturers, 

distributors, dealers, and repair 

businesses from knowingly making 

inoperative any part or device or 

element of design installed in or on a 

motor vehicle that is in compliance with 

an applicable standard (49 U.S.C. 30122; 

‘‘make inoperative’’ provision). Any 

action that removes or disables safety 

equipment or features installed to 

comply with an applicable standard, or 

that degrades the performance of such 

equipment or features could lead to the 

assessment of civil penalties. Section 

30122 authorizes regulations to exempt 

a person from the make inoperative 

provision if the agency decides the 

exemption is consistent with motor 

vehicle safety and the purpose and 

policy of the Safety Act. 

To facilitate the modification of motor 

vehicles for persons with disabilities, 

NHTSA provides a limited exception 

from the make inoperative provision. 

While a vast majority of Americans can 

drive and ride in a motor vehicle as 

produced and certified by 

manufacturers, individuals with 

disabilities often require special 

modifications to accommodate their 

particular needs. Some of these 

modifications may require removal of 

51674 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

1Estimating the Number of Vehicles Adapted for 

Use by Persons with Disabilities, NHTSA Research 

Note, 1997. 2 42 U.S.C. 12101, et seq. 3 2002 National Transportation Availability and 

Use Survey, Bureau of Transportation Statistics. 

4Under 49 CFR 595.7(c)(14). 

5 49 CFR 595.7(c)(7). 

6The ADA is a trade association representing 

dealers and manufacturers that modify and sell 

vehicles adapted for people with disabilities. 

federally required safety equipment. In 

these instances, if individuals with 

disabilities are to drive and ride in a 

motor vehicle in these instances, 

federally required safety features must 

be made inoperative. 

Recognizing the specialized 

transportation needs of individuals with 

disabilities, NHTSA established an 

exemption from the make inoperative 

provision. 49 CFR 595 Subpart C, 

‘‘Vehicle Modifications To 

Accommodate People With 

Disabilities,’’ permits repair businesses 

to modify certain types of federally 

required safety equipment and features 

under specified circumstances. This 

exemption from the make inoperative 

provision was established because the 

previous policy of considering and 

responding to requests on a case-by-case 

basis was not effective or efficient for 

the vehicle modifiers, the persons 

requiring the modifications, or the 

agency. (66 FR 12638; February 27, 

2001.) 

When establishing the exemption 

from the make inoperative provision, 

the agency considered that, as of 1997, 

approximately 383,000 vehicles had 

some type of adaptive equipment 

installed in them to accommodate a 

driver or passenger with a disability.1

We also recognized that the 

modification of vehicles to 

accommodate persons with disabilities 

would increase in frequency as the 

population ages and as a greater number 

of individuals with physical disabilities 

take advantage of opportunities 

presented by the Americans With 

Disabilities Act.2 Using 2002 data from 

the Bureau of Transportation Statistics, 

we estimate the number of personal 

motor vehicles modified for use by 

persons with disabilities existing in the 

U.S. in 2002 was about 1,123,000, with 

a 95 percent confidence interval from 

743,000 to 1,504,000. An estimated 75 

percent of modified vehicles were 

modified for the driver (including 

vehicles modified for both driver and 

passenger). The estimated proportion of 

the U.S. personal motor vehicle fleet 

that are modified for use by people with 

disabilities is 0.0051 (0.51 percent) with 

a confidence interval from 0.0034 to 

0.0067. We estimate that in 2002, 

814,000 households had one modified 

vehicle and another 155,000 households 

had two modified vehicles.3

The exemption from the make 

inoperative provision facilitates 

modifications by providing guidance to 

modifiers on the type of modifications 

that can be made without unduly 

decreasing the level of safety provided 

to the vehicle occupants and to others. 

Included in the exemption are the seat 

belt and passive restraint requirements 

for passenger cars, and light trucks, 

buses and multipurpose passenger 

vehicles, under Federal Motor Vehicle 

Safety Standard (FMVSS) No. 208, 

Occupant crash protection 4 and head 

impact protection requirements for 

certain target points under FMVSS No. 

201, Occupant protection in interior 

impacts.5

II. Notice of Proposed Rulemaking 

In response to petitions for 

rulemaking from Bruno Independent 

Living Aids (Bruno), the Adaptive 

Driving Alliance (ADA) 6 and the 

National Mobility Equipment Dealers 

Association (NMEDA), NHTSA 

published a notice of proposed 

rulemaking on September 17, 2004 (69 

FR 56018) (DOT Docket No. NHTSA–

2004–19092). The agency proposed to 

amend the exemption from the make 

inoperative provision under 49 CFR Part 

595, by adding the FMVSS No. 208 

advanced air bag requirements, a 

limited exemption for the FMVSS No. 

225 LATCH requirements, and a limited 

exemption for the FMVSS No. 201 

upper interior head protection 

requirements. Each of the proposed 

changes is summarized below. 

Advanced Air Bag Requirements 

After the exemption from the make 

inoperative provision was published on 

February 27, 2001, the agency published 

a final rule that added requirements to 

FMVSS No. 208 to reduce the risk of 

serious air bag-induced injuries, 

especially to small women and young 

children, and to improve the safety for 

all occupants by means that include 

advanced air bag technology. (65 FR 

30680; May 12, 2002.) The advanced air 

bag technology requirements are being 

phased in beginning September 1, 2003, 

with full compliance required 

September 1, 2006. Motor vehicles 

subject to the phase-in will be required 

to minimize air bag risks by 

automatically turning off the air bag in 

the presence of an occupant who is a 

young child or deploy the air bag in a 

manner less likely to cause serious or 

fatal injury to an out of position 

occupant. Among the technologies used 

to comply with these requirements are 

a variety of seat position, occupant 

weight, and pattern sensors 

incorporated into the seat structure. 

In its petition for rulemaking, Bruno 

requested that the advanced air bag 

requirements be included with the other 

FMVSS No. 208 requirements excluded 

from the make inoperative provision. 

Bruno stated that the installation of one 

of its mobility aid products, the Turning 

Automotive Seat (TAS) could be 

accomplished without making a 

conventional air bag inoperative, but 

would require deactivation of advanced 

air bag features. Bruno stated that 

maintaining the operation of seat 

position and occupant sensing devices 

used to comply with the advanced air 

bag requirements for numerous makes 

and models of motor vehicles is beyond 

its capability. 

ADA’s August 8, 2002 petition 

provided additional support for Bruno’s 

request. The ADA argued that it is no 

more feasible for modifiers to comply 

with the advanced air bag requirements 

than the ‘‘existing air bag requirements,’’

which are currently exempted. 

Petitioners argued that maintaining 

compliance with the advanced air bag 

requirements would require modifiers to 

reinstall, modify, or design complex 

components of the air bag system. 

Petitioners further argued that the 

advanced air bag requirements are just 

as incompatible with the one-of-a kind, 

custom-fitted nature of vehicle 

modifications to accommodate a 

specific individual’s disability as the 

current FMVSS No. 208 requirements in 

Part 595. 

In response to the petitions for 

rulemaking, NHTSA proposed to 

expand the make inoperative 

exemptions established at 49 CFR 

595.7(c)(14) by adding to it the 

following sections of FMVSS No. 208: 

S15, Rigid barrier test requirements 

using 5th percentile adult female 

dummies; 

S17, Offset frontal deformable barrier 

requirements using 5th percentile 

adult female test dummies; 

S19, Requirements to provide protection 

for infants in rear facing and 

convertible child restraints and car 

beds; 

S21, Requirements using 3-year-old 

child dummies; 

S23, Requirements using 6-year-old 

child dummies; 

S25, Requirements using an out-ofposition 5th percentile adult female at 

the driver position. 

In many instances, a vehicle 

modification requiring an exemption for 

the advanced air bag requirements 

would also rely on the current 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51675 

7 ‘‘LATCH’’ stands for ‘‘Lower Anchors and 

Tethers for Children,’’ a term that was developed 

by child restraint manufacturers and retailers to 

refer to the standardized child restraint anchorage 

system required by Federal Motor Vehicle Safety 

Standards No. 225, Child Restraint Anchorage 

Systems (49 CFR 571.225). This system has two 

lower anchorages and one tether anchorage. Each 

lower anchorage includes a rigid round rod or bar 

onto which the connector of a child restraint system 

can be snapped. The bars will be loated at the 

intersection of the vehicle seat cushion and seat 

back. The upper anchorage is a fixture to which the 

tether of a child restraint system can be hooked. 

exemption from the occupant crash 

protection requirements of S5, 

Occupant crash protection requirements 

for the 50th percentile adult male 

dummy, of FMVSS No. 208. NHTSA 

stated that it expected that 

modifications requiring an exemption 

from the advanced air bag requirements 

in conjunction with the exemption from 

S5, as well as those requiring only an 

exemption from the advanced air bag 

regulations, would affect a very small 

number of motor vehicles each year in 

comparison to the overall number of 

motor vehicles in the country. 

In the NPRM, the agency tentatively 

concluded that these modifications 

would be essential to enable individuals 

with a disability to use a motor vehicle. 

Additionally, seating positions modified 

under the proposed exemption would 

accommodate specific, individual needs 

making it less likely that these seating 

positions would be used by other 

occupants who would benefit either 

from the air bag itself, or from those 

features designed to minimize air bag 

risk. We recognize that in most cases, 

the decision to deactivate the air bag, or 

not, will be a product of the equipment, 

the vehicle and the method of 

installation. We strongly urge the 

vehicle manufacturers, equipment 

manufacturers, and modifiers to work 

together to determine whether the air 

bag actually needs to be deactivated for 

these different combinations. There may 

be seating, equipment and vehicle 

combinations in which air bag 

deactivation is not necessary. However, 

these situations should be studied 

carefully so that modification does not 

result in inadvertent air bag suppression 

or overly forceful deployment. 

LATCH Requirements 

Prior to establishing the exemption 

from the make inoperative provision 

(published on February 27, 2001), the 

agency established FMVSS No. 225, 

which requires motor vehicles to be 

equipped with a lower anchorage and 

tether anchorage (LATCH 7) system 

designed exclusively to secure child 

restraint systems. (64 FR 10786; March 

5, 1999; ‘‘LATCH rule’’.) 

FMVSS No. 225 requires vehicles 

with three or more forward-facing rear 

designated seating positions, 

manufactured on or after September 1, 

2002, to be equipped with: (1) A LATCH 

system at not fewer than two forwardfacing rear designated seating positions, 

with at least one system installed at a 

forward facing seating position in the 

second row in each vehicle that has 

three or more rows; and, (2) a tether 

anchorage at a third forward-facing rear 

designated seating position. Under S5(b) 

of FMVSS No. 225, a vehicle may be 

equipped with a built-in child restraint 

system conforming to the requirements 

of FMVSS No. 213, Child restraint 

systems, instead of one of the required 

tether anchorages or child restraint 

anchorage systems. These LATCH 

requirements provide a more uniform 

method of securing a child restraint 

system and reduce the likelihood that a 

child restraint will be installed 

incorrectly. 

In its petition for rulemaking, the 

ADA stated that compliance with 

LATCH requirements would possibly 

not be feasible for businesses modifying 

motor vehicles to accommodate 

disabled drivers and passengers. The 

ADA explained that: 

When, as part of modifying a vehicle for a 

disabled individual, an entire row of seats 

needs to be modified or removed (e.g. to 

allow wheelchair egress and ingress), then 

Part 595 must permit removal of the tethers 

and child restraint anchorages at those 

modified or removed locations. Otherwise, 

vehicle modifiers will be required to 

reengineer child restraint anchorages for 

installation at locations not contemplated by 

[the vehicle manufacturers]. 

Modifying a vehicle to accommodate 

a wheelchair could result in seating 

configurations that would take the 

vehicle out of compliance with FMVSS 

No. 225. If a vehicle with three rows of 

seating were to have LATCH systems in 

the second and third rows, removal of 

that second row to permit wheelchair 

access to the driver’s seat would remove 

the vehicle from compliance with 

FMVSS No. 225. Beyond this example, 

there are a myriad of van seating 

arrangements, desired wheelchair 

restraint positions, and vehicle entry/ 

exit applications that could remove a 

vehicle from compliance with FMVSS 

No. 225. 

Since the agency could not anticipate 

all of these potential combinations and 

provide modifiers specific instructions 

for each situation, NHTSA proposed in 

the NPRM an amendment that would 

establish flexibility in the modification 

configurations and still allow a child 

seat to be restrained safely. NHTSA 

proposed an exemption be added to 49 

CFR 595.7, to read as follows: 

(c)(16) 49 CFR 571.225 in any case in 

which an existing child restraint anchorage 

system, or built-in child restraint system 

relied upon for compliance with 571.225, 

must be removed to accommodate a person 

with a disability, provided the vehicle 

contains at least one tether anchorage which 

complies with 49 CFR 571.225 S6, S7 and S8 

in one of the rear passenger designated 

seating positions. If no rear designated 

seating position exists after the vehicle 

modification, a tether anchorage complying 

with the requirements described above must 

be located at a front passenger seat. Any 

tether anchorage attached to a seat that is 

relocated shall continue to comply with the 

requirements of 49 CFR 571.225 S6, S7 and 

S8. 

A child seat could still be installed in 

a modified vehicle through the use of 

the vehicle’s seat belt system and still 

have the advantage of the tether. 

The proposed exemption was based 

on the approach suggested by the ADA. 

The ADA suggested that if a vehicle 

complies with FMVSS No. 225 by 

having two LATCH systems and a tether 

anchorage in the second row of seating 

and no LATCH anchorages in the third 

row of seating, any modification 

resulting in the removal of the second 

row of seating would require the 

modifier to install complete LATCH 

systems in the third row of seating. 

Under the agency’s proposal, the 

modifier was only required to install a 

tether anchorage. NHTSA noted that if 

the proposal were made final, the tether 

anchorage(s) attached to any relocated 

seat would be required to remain 

compliant with 49 CFR 571.225 S6, S7 

and S8 upon relocation. NHTSA 

tentatively concluded that this 

requirement was within the capabilities 

of modifiers. 

FMVSS No. 225 requires that vehicles 

manufactured on or after September 1, 

2002, that do not have any forwardfacing rear designated seating positions 

must have a compliant tether anchorage 

at each front passenger designated 

seating position (S4.4(c)). In the 

September 17, 2004 NPRM, NHTSA 

stated that if a vehicle were to be 

modified such that only front 

designated seating positions remained, 

the agency expected that modifiers 

would be able to install conforming 

tether anchorages at the front forwardfacing passenger designated seating 

positions (if not already provided by the 

original vehicle manufacturer). 

NHTSA sought comment on whether 

modifiers should be required to add 

tether anchorages to designated seating 

positions that were not so equipped by 

the original vehicle manufacturer. 

51676 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

Upper Interior Head Protection 

Requirements 

On August 18, 1995, the agency 

issued a final rule amending FMVSS 

No. 201 to improve head protection in 

impacts with upper interior components 

of certain vehicles (60 FR 43031). The 

final rule significantly expanded the 

scope of FMVSS No. 201. Previously, 

the standard applied to the instrument 

panel, seat backs, interior compartment 

doors, arm rests and sun visors only. To 

determine compliance with the upper 

interior impact requirements, the final 

rule added procedures for a new invehicle component test in which a Free 

Motion Headform (FMH) is fired at 

certain target locations on the upper 

interior of a vehicle at an impact speed 

of up to and including 24 km/h (15 

mph). The resultant data must not 

exceed a Head Injury Criterion score of 

1000. 

The standard, as further amended on 

April 8, 1997 (67 FR 16718), provided 

manufacturers with four alternate 

phase-in schedules for complying with 

the upper interior impact requirements. 

Twice, the agency extended the effective 

date for manufacturers of vehicles built 

in two or more stages, which now must 

comply with the expanded FMVSS No. 

201 requirements on and after 

September 1, 2006 (68 FR 51706; August 

28, 2003). 

In the rulemaking that established the 

make inoperative exemption, NHTSA 

recognized that compliance with 

FMVSS No. 201 at some target points 

could be problematic for certain 

modifications, specifically the 

installation of a platform lift. Thus, 

currently, Part 595 includes an 

exemption to FMVSS No. 201 with 

respect to: 

(a) Targets located on the right 

siderail, the right B-pillar and the first 

right side ‘‘other’’ pillar adjacent to the 

stowed platform of a lift or ramp that 

stows vertically, inside the vehicle. 

(b) Targets located on the left siderail, 

the left B-pillar and the first left side 

‘‘other’’ pillar adjacent to the stowed 

platform of a lift or ramp that stows 

vertically, inside the vehicle. 

(c) Targets located on the rear header 

and the rearmost pillars adjacent to the 

stowed platform of a lift or ramp that 

stows vertically, inside the vehicle (49 

CFR 595.7(c)(7)). 

The ADA and NMEDA each 

submitted a separate petition for 

rulemaking requesting that NHTSA 

expand the exemption of FMVSS No. 

201 to include the provisions pertaining 

to upper interior head protection. The 

ADA requested that 49 CFR 595.7 be 

amended to include exemptions for 

requirements related to: (1) Targets 

located on any hand grip or vertical 

stanchion bar; and (2) all of S6 of 

571.201 in any case in which 

accommodating a person’s disability 

necessitates raising the roof or door, or 

lowering the floor of the vehicle. 

In the NPRM, the agency proposed to 

amend the exemption from the make 

inoperative provision by adding a 

limited exemption from the upper 

interior head protection requirements of 

FMVSS No. 201. This amendment 

would facilitate the raising of a vehicle 

roof and the lowering of a vehicle floor 

in order to accommodate individuals 

with disabilities. Also, in instances 

where a vehicle is not equipped with a 

grab bar, or the originally equipped grab 

bar is insufficient to accommodate an 

individual with a disability, the 

proposal would facilitate the installing 

of handles or stanchion bars. 

In the NPRM, the agency stated that 

it has already recognized the potential 

impact of the upper interior head 

protection requirements on 

manufacturers of vehicles manufactured 

in two or more stages and has provided 

additional lead time for compliance. 

The potential impacts of the upper 

interior head protection requirements 

on vehicle modifiers are analogous to 

those on manufacturers of vehicles 

manufactured in two or more stages. 

Part 595 Title 

The agency also proposed to amend 

the title of Part 595 from ‘‘Retrofit OnOff Switches for Air Bags,’’ to ‘‘Make 

Inoperative Provisions.’’ In the NPRM, 

NHTSA stated that this amendment 

would reflect the fact that 49 CFR Part 

595 addresses more matters than the 

retrofit of motor vehicles with on-off 

switches for air bags. 

III. Public Comments and Final Rule 

In response to the NPRM, NHTSA 

received comments from: the Adaptive 

Driving Alliance (ADA); the California 

Department of Vocational Rehabilitation 

(CDVR), the National Automobile 

Dealers Association (NADA); and the 

National Mobility Equipment Dealers 

Association (NMEDA). The commenters 

supported the proposed changes, as 

discussed below. 

Overview 

In supporting the NPRM, the NADA 

stated that the proposed exemptions 

‘‘would facilitate vehicle alterations and 

modifications designed to satisfy the 

needs of disabled customers.’’ The 

NMEDA provided specific comments 

regarding the proposed changes 

regarding the LATCH requirements. 

NMEDA stated that requiring a tether 

anchorage in the second row will 

provide a means to secure a child seat 

in the vehicle, and that NMEDA will be 

able to provide guidance to the 

modifiers for installation of a tether 

anchorage in the event that the existing 

seat does not have one installed at the 

original equipment manufacturer’s 

level. NMEDA further stated that 

considering the allowable area in which 

the tether anchorage may be installed, it 

did not foresee difficulty in locating or 

safely installing such an anchor. Since 

most of the ‘‘concerned vehicles’’ have 

a second row seat, NMEDA stated that 

it did not anticipate that the front row 

seat would have to be equipped with a 

tether anchorage. 

Specific Questions 

Although it supported the 

rulemaking, the ADA commented on the 

proposed changes affecting FMVSS No. 

208 and No. 225. Regarding FMVSS No. 

208, the ADA stated its belief that since 

S14 of FMVSS No. 208 ‘‘mandates 

compliance with the advanced air bag 

requirements,’’ S14 should be added to 

the list of sections set forth in 49 CFR 

595.7(c)(14). NHTSA agrees. We note 

that S14.5 of FMVSS No. 208 specifies 

differing requirements for meeting 

barrier test requirements using 50th 

percentile adult male dummies, 

depending on which S14 provision a 

vehicle is certified as meeting. Since 

some provisions mandate compliance, 

this final rule amends 49 CFR 

595.7(c)(14) to include S14 of FMVSS 

No. 208. 

The ADA also addressed the proposed 

inclusion in Part 595 of FMVSS No. 225 

requirements, questioning whether the 

final sentence proposed for 49 CFR 

595.7(c)(16): ‘‘Any tether anchorage 

attached to a seat that is relocated shall 

continue to comply with the 

requirements of 49 CFR 571.225 S6, S7 

and S8’’ is appropriate. The ADA 

commented that: 

Proposed (c)(16) would require that ‘‘* * * 

the vehicle contain at least one tether 

anchorage which complies with 49 CFR 

571.225 S6, S7 and S8 in one of the rear 

passenger designated seating positions. If no 

rear designated seating position exists after 

the vehicle modification, a tether anchorage 

complying with the requirements described 

above must be located at a front passenger 

seat.’’ It is thus not clear why the proposed 

final sentence of (c)(16) is necessary, given 

that relocating a seat could cause issues as 

regards maintaining the tether. 

NHTSA’s response is that the ADA’s 

comment appears to assume that after 

modification, only one tether anchorage 

will remain in the rear. Therefore, if a 

vehicle must have a compliant tether 

anchorage and there is only one tether 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51677 

anchorage present, the last sentence of 

the proposed regulatory language would 

be redundant. However, there may be 

other tether anchorages in the vehicle, 

in addition to the tether anchorage in 

the relocated seat, that comply with S6, 

S7, and S8 at rear seating positions. 

Without the last sentence, if there are 

other tether anchorages, the relocated 

tether(s) would not have to comply with 

the applicable provisions of FMVSS No. 

225. It is NHTSA’s position, (with 

which NMEDA agreed in its comments) 

that vehicle modifiers should have the 

technical capability to relocate a tether 

anchorage such that the relocated tether 

anchorage complies with S6, S7, and S8 

of FMVSS No. 225. Further, all tether 

anchorages should meet the 

requirements of FMVSS No. 225, since 

they will likely be used with the child 

restraint. For these reasons, in the final 

rule, the last sentence of 595.7(c)(16) is 

retained. 

Upper Interior Head Protection 

Requirements 

NHTSA received no public comments 

in response to the proposed exemption 

from the make inoperative provision by 

adding limited exemptions from the 

upper interior head protection 

requirements of FMVSS No. 201. 

Therefore, NHTSA adopts as final the 

language proposed at 595.7(c)(7)(iv) and 

(v). 

Other Issues 

The California Department of 

Vocational Rehabilitation (CDVR) 

sought to bring attention to issues 

involving side air bags and ‘‘transfer 

seat bases.’’ The CDVR explained that 

these seat bases move the original 

equipment manufacturers’ (OEM) seat 

back to allow a wheelchair user to move 

more easily from the wheelchair into the 

OEM seat. The OEM seat is then 

powered back into the driver’s position. 

The CDVR noted that some of the OEM 

seats have side air bags in the seat 

backs, but there appeared to be nothing 

in the NPRM requiring the OEM wiring 

to the seat backs to be retained to 

maintain the functioning of the airbag. 

Agency response: The ‘‘make 

inoperative’’ exemptions proposed in 

the NPRM did not include exemptions 

for the side air bags in the seat backs. 

Provisions relating to side air bags in 

seat backs is outside the scope of the 

rulemaking. 

Conclusion 

The comments supported the changes 

to Part 595. This final rule makes final 

the language (with the exception of 

adding an exception for S14 to 

S595.7(c)(14)) proposed in the NPRM of 

September 17, 2004. Further, since we 

received no comments on the proposed 

change to the title of Part 595, in this 

final rule, we are changing the title of 

Part 595 to: ‘‘Make Inoperative 

Provisions.’’

IV. Effective Date 

In the NPRM, NHTSA proposed an 

effective date of 60 days after the final 

rule is published. None of the public 

comments addressed the effective date 

issue. NHTSA notes that this final rule 

removes a restriction on the 

modification of vehicles for persons 

with disabilities. To further the interest 

of providing vehicle modifiers the 

flexibility required to accommodate 

these individuals, since good cause has 

been shown to do so, and since NHTSA 

has determined it would be in the 

public interest to do so, the changes in 

this final rule becomes effective 60 days 

after the publication in the Federal 

Register. 

V. Rulemaking Analyses and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

NHTSA has considered the impact of 

this final proposed rule under Executive 

Order 12866 and the Department of 

Transportation’s regulatory policies and 

procedures. This rulemaking document 

was not reviewed under E.O. 12866, 

‘‘Regulatory Planning and Review.’’

This action has been determined to be 

‘‘nonsignificant’’ under the Department 

of Transportation’s regulatory policies 

and procedures. NHTSA has determined 

that the impacts of this rule are so 

minimal that a full regulatory evaluation 

is not warranted. 

The agency believes that the 

expanded exemptions will not have any 

avoidable adverse safety effects on 

individuals with disabilities. The 

exemptions allow an individual with a 

disability to operate or ride in a motor 

vehicle, while maintaining the benefit of 

all of the compatible safety standards. 

Absent the modifications permitted by 

this rulemaking, individuals with 

disabilities might not be able to use the 

vehicles in question, resulting in less 

freedom of mobility. 

Furthermore, NHTSA does not expect 

many individuals without a disability to 

use seating positions specially modified 

for individuals with a disability. As 

previously noted above, the number of 

affected standards remains small and 

the number of vehicles that modified in 

accordance with this final rule is 

relatively small. 

B. Regulatory Flexibility Act 

We have considered the effects of this 

rulemaking action under the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.) 

Most motor vehicle modifiers affected 

by this final rule are considered small 

entities. I hereby certify that this final 

rule will not have a significant 

economic impact on a substantial 

number of small entities. The statement 

of the factual basis for this certification 

is that, as explained above, this final 

rule adds several occupant crash 

protection requirements, vehicle 

LATCH requirements, and upper 

interior head protection requirements to 

the current list of requirements 

exempted from the Make Inoperative 

Provision. While most modifiers are 

considered small entities, the final rule 

results in no significant economic 

impact on small entities since the final 

rule permits greater flexibility when 

modifying a vehicle to accommodate an 

individual with a disability. There may 

be slight economically beneficial effects 

of this final rule, because the affected 

small manufacturers would not have to 

ensure that they ‘‘make inoperative’’

compliance of a vehicle with provisions 

of the occupant crash protection 

requirements, vehicle LATCH 

requirements, and upper interior head 

protection requirements, when the 

vehicles are modified to accommodate 

an individual with a disability. 

C. Paperwork Reduction Act 

The collection of information burden 

under the labeling and recordkeeping 

requirements of 49 CFR 595.7, OMB 

clearance numbers 2127–0512 and 

2127–0635, respectively, will not 

increase as a result of this final rule. The 

agency anticipates that any vehicle 

modification using one of the 

exemptions will be made in conjunction 

with one or more modifications based 

on the current exemptions. A vehicle 

modifier using one of the exemptions 

permitted in this final rule will only be 

required to list the exemption along 

with the other exemptions on the 

required disclosure label to the 

consumer. The vehicle labeling and 

recordkeeping requirements vary not 

according to the number of exemptions 

per vehicle, but by the total number of 

vehicles modified. 

D. National Environmental Policy Act 

NHTSA has analyzed this final rule 

for the purposes of the National 

Environmental Policy Act and 

determined that it will not have any 

significant impact on the quality of the 

human environment. 

E. Executive Order 13132 (Federalism) 

Executive Order 13132 requires 

NHTSA to develop an accountable 

process to ensure ‘‘meaningful and 

51678 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

timely input by State and local officials 

in the development of regulatory 

policies that have federalism 

implications.’’ The phrase ‘‘policies that 

have federalism implications’’ is 

defined in the Executive Order to 

include regulations that 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.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with Federalism 

implications, that imposes substantial 

direct costs, and that is not required by 

statute, unless the Federal Government 

provides the funds necessary to pay the 

direct compliance costs incurred by 

State and local governments, or the 

agency consults with State and local 

officials early in the process of 

developing the proposed regulation. 

NHTSA may also not issue a regulation 

with federalism implications and that 

preempts State law unless the agency 

consults with State and local officials 

early in the process of developing the 

proposed regulation. 

The agency has analyzed this 

rulemaking action in accordance with 

the principles and criteria contained in 

Executive Order 13132 and has 

determined that it will not have 

sufficient federalism implications to 

warrant consultation with State and 

local officials or the preparation of a 

federalism summary impact statement. 

The final rule will have no substantial 

effects on the States, or on the current 

Federal-State relationship, or on the 

current distribution of power and 

responsibilities among the various local 

officials. 

F. Executive Order 12988 (Civil Justice 

Reform) 

Pursuant to Executive Order 12988 

‘‘Civil Justice Reform,’’ we have 

considered whether this final rule 

would have any retroactive effect. 

NHTSA concludes that this final rule 

will not have any retroactive effect. 

Under 49 U.S.C. 30103, whenever a 

Federal motor vehicle safety standard is 

in effect, a State may not adopt or 

maintain a safety standard applicable to 

the same aspect of performance which 

is not identical to the Federal standard, 

except to the extent that the State 

requirement imposes a higher level of 

performance and applies only to 

vehicles procured for the State’s use. 49 

U.S.C. 30161 sets forth a procedure for 

judicial review of final rules 

establishing, amending, or revoking 

Federal motor vehicle safety standards. 

That section does not require 

submission of a petition for 

reconsideration or other administrative 

proceedings before parties may file suit 

in court. 

G. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104–

113, section 12(d) (15 U.S.C. 272) 

directs us to use voluntary consensus 

standards in regulatory activities unless 

doing so would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures, and business practices) that 

are developed or adopted by voluntary 

consensus standards bodies, such as the 

Society of Automotive Engineers (SAE). 

The NTTAA directs us to provide 

Congress, through OMB, explanations 

when we decide not to use available and 

applicable voluntary consensus 

standards. We have sought for but did 

not find any voluntary consensus 

standard bearing on this rulemaking. 

H. 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 in any one year 

(adjusted for inflation with base year of 

1995). Before promulgating a rule for 

which a written statement is needed, 

section 205 of the UMRA generally 

requires NHTSA 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 NHTSA to adopt an alternative 

other than the least costly, most costeffective, or least burdensome 

alternative if the agency publishes with 

the final rule an explanation why that 

alternative was not adopted. 

This final rule will not impose any 

unfunded mandates under the 

Unfunded Mandates Reform Act of 

1995. This final rule will not result in 

the expenditure by State, local or tribal 

governments, in the aggregate, or by the 

private sector of more than $100 million 

annually. Accordingly, this final rule is 

not subject to the requirements of 

sections 202 and 205 of the UMRA. 

I. Plain Language 

Executive Order 12866 requires each 

agency to write all rules in plain 

language. Application of the principles 

of plain language includes consideration 

of the following questions: 

—Have we organized the material to suit 

the public’s needs? 

—Are the requirements in the rule 

clearly stated? 

—Does the rule contain technical 

language or jargon that is not clear? 

—Would a different format (grouping 

and order of sections, use of headings, 

paragraphing) make the rule easier to 

understand? 

—Would more (but shorter sections be 

better? 

—Could we improve clarity by adding 

tables, lists, or diagrams? 

—What else could we do to make this 

rulemaking easier to understand? 

If you have any responses to these 

questions, please address them to the 

persons listed in the FOR FURTHER

INFORMATION CONTACT: section at the 

beginning of this document. 

J. Regulation 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. 

List of Subjects in 49 CFR Part 595 

Motor vehicle safety, Motor vehicles. 

■ In consideration of the foregoing, 

NHTSA is amending 49 CFR part 595 as 

follows: 

■ 1. The heading to Part 595 is revised 

to read as follows: 

PART 595—MAKE INOPERATIVE 

EXEMPTIONS 

■ 2. The authority citation for Part 595 

continues to read as follows: 

Authority: 49 U.S.C. 322, 30111, 30115, 

30117, 30122 and 30166; delegation of 

authority at 49 CFR 1.50. 

■ 3. Section 595.7 is amended by adding 

paragraphs (c)(7)(iv) and (v), by revising 

paragraph (c)(14) and by adding 

paragraph (c)(16) to read as follows: 

§ 595.7 Requirements for vehicle 

modifications to accommodate people with 

disabilities. 

* * * * * 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51679 

(c) * * * 

* * * * * 

(7) * * * 

(iv) Targets located on any hand grip 

or vertical stanchion bar. 

(v) All of S6 of 571.201 in any case 

in which the disability necessitates 

raising the roof or door, or lowering the 

floor of the vehicle. 

* * * * * 

(14) S4.1.5(a)(1), S4.1.5.1(a)(3), 

S4.2.6.2, S5, S7.1, S7.2, S7.4, S14, S15, 

S16, S17, S18, S19, S20, S21, S22, S23, 

S24, S25, S26 and S27 of 49 CFR 

571.208 for the designated seating 

position modified, provided Type 2 or 

Type 2A seat belts meeting the 

requirements of 49 CFR 571.209 and 

571.210 are installed at that position. 

* * * * * 

(16) 49 CFR 571.225 in any case in 

which an existing child restraint 

anchorage system, or built-in child 

restraint system relied upon for 

compliance with 571.225 must be 

removed to accommodate a person with 

a disability, provided the vehicle 

contains at least one tether anchorage 

which complies with 49 CFR 571.225 

S6, S7 and S8 in one of the rear 

passenger designated seating positions. 

If no rear designated seating position 

exists after the vehicle modification, a 

tether anchorage complying with the 

requirements described above must be 

located at a front passenger seat. Any 

tether anchorage attached to a seat that 

is relocated shall continue to comply 

with the requirements of 49 CFR 

571.225 S6, S7 and S8. 

* * * * * 

Issued on: August 25, 2005. 

Jeffrey W. Runge, 

Administrator. 

[FR Doc. 05–17244 Filed 8–30–05; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Transportation Security Administration 

49 CFR Part 1540 

RIN 1652–ZA05 

Prohibited Items; Allowing Scissors for 

Ostomates 

AGENCY: Transportation Security 

Administration (TSA), DHS. 

ACTION: Interpretive rule. 

SUMMARY: This document amends the 

Transportation Security 

Administration’s (TSA) interpretive rule 

that provides guidance to the public on 

the types of property that TSA considers 

weapons, explosives, and incendiaries 

prohibited in airport sterile areas, in the 

cabins of aircraft, or in passengers’

checked baggage. This document also 

amends TSA’s guidance on the types of 

items permitted in sterile areas, the 

cabins of aircraft, and in passengers’

checked baggage. This document adds 

as permitted items certain small scissors 

that persons with ostomies need. 

DATES: Effective August 29, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Sandra Cammoroto, Office of the Chief 

Operating Officer, TSA–18, 

Transportation Security Administration, 

601 South 12th Street, Arlington, VA 

22202–4220; telephone (571) 227–1823. 

SUPPLEMENTARY INFORMATION: 

Availability of Documents 

You can get an electronic copy using 

the Internet by—

(1) Searching the Department of 

Transportation’s electronic Docket 

Management System (DMS) Web page 

(http://dms.dot.gov/search); 

(2) Accessing the Government 

Printing Office’s Web page at http:// 

www.access.gpo.gov/su_docs/aces/ 

aces140.html; or 

(3) Visiting TSA’s Law and Policy 

Web page at http://www.tsa.gov and 

accessing the link for ‘‘Law and Policy’’

at the top of the page. 

In addition, copies are available by 

writing or calling the individual in the 

FOR FURTHER INFORMATION CONTACT

section. Make sure to identify the docket 

number of this rulemaking. 

Statutory and Regulatory Background 

TSA is an agency in the Department 

of Homeland Security (DHS), operating 

under the direction of the Assistant 

Secretary for Homeland Security 

(Transportation Security 

Administration). TSA is responsible for 

security in all modes of transportation, 

including aviation. See 49 U.S.C. 114(d). 

Under TSA’s regulation on acceptance 

and screening of individuals and 

accessible property, 49 CFR 1540.111, 

an individual (other than a law 

enforcement or other authorized 

individual)—

‘‘* * * may not have a weapon, explosive, 

or incendiary, on or about the individual’s 

person or accessible property—

(1) When performance has begun of the 

inspection of the individual’s person or 

accessible property before entering a sterile 

area, or before boarding an aircraft for which 

screening is conducted under § 1544.201 or 

§ 1546.201 of this chapter; 

(2) When the individual is entering or in 

a sterile area; or 

(3) When the individual is attempting to 

board or onboard an aircraft for which 

screening is conducted under § 1544.201 or 

§ 1546.201 of this chapter.’’

On February 14, 2003, TSA published 

an interpretive rule that provided 

guidance to the public on the types of 

property TSA considers to be weapons, 

explosives, and incendiaries prohibited 

on an individual’s person or accessible 

property, items permitted on an 

individual’s person or accessible 

property, and items prohibited in 

checked baggage (68 FR 7444). On 

March 3, 2003, TSA subsequently 

published technical corrections to the 

interpretive rule at 68 FR 9902. 

On December 17, 2004, the President 

signed into law the Intelligence Reform 

and Terrorism Prevention Act of 2004 

(IRTPA) (Pub. L. 108–458). Section 4025 

of IRTPA in part requires TSA to add 

butane lighters to its list of prohibited 

items and to make any other 

modifications to the prohibited items 

list that TSA considers appropriate. 

Accordingly, on March 1, 2005, TSA 

published an amendment to the 

interpretive rule (70 FR 9877) adding all 

lighters to the list of prohibited items. 

TSA now is modifying the interpretive 

rule to provide an exception for certain 

scissors used by ostomates. 

Small Ostomy Scissors Are Now 

Permitted 

Under the interpretive rule, TSA 

presently considers all metal scissors 

with pointed tips to be weapons. 

Therefore, individuals are prohibited 

from carrying these types of scissors in 

an airport sterile area or in the cabin of 

an aircraft. Metal scissors with blunt 

tips and plastic scissors are permitted. 

TSA is modifying the interpretive rule 

to exempt from the prohibited items list 

ostomy scissors. An ostomate is a 

person who has undergone a surgical 

procedure known as ostomy, which 

involves creating an opening in the 

person’s abdomen. The opening is 

called a stoma. Human waste passes 

through the stoma into a collection 

pouch. An ostomy appliance consists of 

a positioning plate (or wafer or flange) 

that attaches to the collection pouch 

surrounding the stoma. Because no two 

stomas are alike, few ostomates can use 

manufactured pre-cut wafers. The 

ostomate, by using a chart provided 

with the collection pouch, must use 

pointed scissors to cut out the 

appropriate size of the cut-to-fit 

positioning plate. Round or dull scissors 

will not easily penetrate or cut through 

the positioning plate’s heavy rubber or 

neoprene material. The adhesive 

backing that attaches the plate to the 

skin around the stoma increases the 

solidity of the material. 

The collection pouch must be 

changed, and the stoma cleaned, each 

time the pouch fills up. The schedule