Make Inoperative Exemptions; Vehicle Modifications To Accommodate People With Disabilities; Ejection Mitigation; Lamps, Reflective Devices, and Associated Equipment |
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David J. Friedman
National Highway Traffic Safety Administration
July 9, 2014
[Federal Register Volume 79, Number 131 (Wednesday, July 9, 2014)]
[Rules and Regulations]
[Pages 38792-38795]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-15901]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 595
[Docket No. NHTSA-2014-0069]
RIN 2127-AL17
Make Inoperative Exemptions; Vehicle Modifications To Accommodate
People With Disabilities; Ejection Mitigation; Lamps, Reflective
Devices, and Associated Equipment
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule, technical correction.
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SUMMARY: This final rule amends NHTSA regulations to include a new
exemption relating to the Federal motor vehicle safety standard for
ejection mitigation, and to correct a reference regarding the standard
for lamps, reflective devices and associated equipment. The exemptions
facilitate the mobility of physically disabled drivers and passengers.
DATES: Effective date: The date on which this final rule amends the CFR
is September 8, 2014.
Petitions for Reconsideration: Petitions for reconsideration of
this final rule must be received at the address below by August 25,
2014.
ADDRESSES: If you wish to petition for reconsideration of this rule,
submit your petition to the following address so that it is received by
NHTSA by the date above: Administrator, National Highway Traffic Safety
Administration, 1200 New Jersey Avenue SE., West Building, Washington,
DC 20590. You should refer in your petition to the docket number of
this document. The petition will be placed in the docket. Note that all
submissions received will be posted without change to http://www.regulations.gov, including any personal information provided.
Please see the Privacy Act heading below.
FOR FURTHER INFORMATION CONTACT: Christopher J. Wiacek, NHTSA Office of
Crash Avoidance Standards, NVS-123 (telephone 202-366-4801), or Deirdre
Fujita, NHTSA Office of Chief Counsel, NCC-112 (telephone 202-366-
2992). The mailing address for these officials is: National Highway
Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington,
DC 20590.
SUPPLEMENTARY INFORMATION: In response to a petition for rulemaking
from Bruno Independent Living Aids (Bruno), this final rule amends 49
CFR Part 595, Subpart C, ``Make Inoperative Exemptions, Vehicle
Modifications to Accommodate People With Disabilities,'' to include a
new exemption relating to FMVSS No. 226, ``Ejection mitigation.'' This
document also corrects a reference in the part to FMVSS No. 108,
``Lamps, reflective devices and associated equipment.'' The notice of
proposed rulemaking (NPRM) preceding this final rule was published on
October 26, 2012 (77 FR 65352).
Background
The National Traffic and Motor Vehicle Safety Act (49 U.S.C.
Chapter 301) (``Safety Act'') and NHTSA's regulations require vehicle
manufacturers to certify that their vehicles comply with all applicable
Federal motor vehicle safety standards (FMVSSs) (see 49 U.S.C. 30112;
49 CFR part 567) at the time of manufacture. A vehicle manufacturer,
distributor, dealer, or repair business, except as indicated below, may
not knowingly make inoperative any part of a device or element of
design installed in or on a motor vehicle in compliance with an
applicable FMVSS (see 49 U.S.C. 30122). NHTSA has the authority to
issue regulations that exempt regulated entities from the ``make
inoperative'' provision (49 U.S.C. 30122(c)). The agency has used that
authority to promulgate 49 CFR part 595, ``Make Inoperative
Exemptions.''
49 CFR part 595, subpart C, sets forth exemptions from the make
inoperative provision to permit, under limited circumstances, vehicle
modifications that take the vehicles out of compliance with certain
FMVSSs when the vehicles are modified to be used by persons with
disabilities after the first retail sale of the vehicle for purposes
other than resale. The regulation was promulgated to facilitate the
modification of motor vehicles so that persons with disabilities can
drive or ride in them. The regulation involves information and
disclosure requirements and limits the extent of modifications that may
be made. Details of the regulation are described in the October 26,
2012 NPRM.
FMVSS No. 226, ``Ejection Mitigation''
On January 19, 2011,\1\ the agency published a final rule
establishing FMVSS No. 226, ``Ejection Mitigation,'' to reduce the
partial and complete ejection of vehicle occupants through side windows
in crashes, particularly rollover crashes. The standard applies to
passenger cars, and to multipurpose passenger vehicles, trucks and
buses with a gross vehicle weight rating of 4,536 kg (10,000 pounds) or
less.\2\
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\1\ 76 FR 3212; response to petitions for reconsideration, 78 FR
55138 (September 9, 2013).
\2\ Certain vehicles are excluded from the standard.
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To assess compliance with FMVSS No. 226, an impactor is propelled
from inside a test vehicle toward the windows. The ejection mitigation
safety system is required to prevent the impactor from moving more than
a specified distance beyond the plane of a window. In the test, the
countermeasure must retain the linear travel of the impactor such that
the impactor must not travel 100 millimeters beyond the location of the
inside surface of the vehicle glazing. This displacement limit serves
to control the size of any gaps forming between the countermeasure
(e.g., the ejection mitigation side curtain air bag) and the window
opening, thus reducing the potential for both partial and complete
ejection of an occupant.
The agency believes that vehicle manufacturers will meet the
standard by means of side curtain air bag technology, and possibly
supplement the technology with advanced glazing. Existing side impact
air bag curtains (installed pursuant to FMVSS No. 214, ``Side impact
protection'') will be made larger so that they cover more of the window
opening, made more robust to remain inflated longer, and made to deploy
in both side impacts and in rollovers using sensor technology.\3\
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\3\ NHTSA estimates the new FMVSS No. 226 requirements will save
373 lives and prevent 476 serious injuries per year. The final rule
adopted a phase-in of the new requirements, which started September
1, 2013.
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FMVSS No. 226 is a new regulation and currently, 49 CFR Part 595
does not provide for an exemption for vehicles that are modified to
accommodate people with disabilities.
NPRM
On October 26, 2012, NHTSA published an NPRM \4\ in the Federal
Register responding to a petition for rulemaking from Bruno requesting
NHTSA to amend Sec. 595.7 to include an exemption from the
requirements of FMVSS No. 226. The NPRM granted the petition and
proposed to amend the regulation.
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\4\ 77 FR 65352, October 26, 2012.
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Bruno manufactures a product line it calls ``Turning Automotive
Seating (TAS),'' which replaces the seat installed by the original
equipment manufacturer (OEM). In its petition, Bruno states that the
purpose of TAS is
[[Page 38793]]
``to provide safe access to private motor vehicles for mobility-
impaired drivers or passengers, semi-ambulatory or transferring from a
wheelchair. The Bruno TAS replaces the OEM seat in a sedan, minivan,
van, pickup, or SUV.'' A detailed description of the TAS system can be
found in the NPRM.
In its petition, Bruno referred to another NHTSA rulemaking (that
has since resulted in a final rule \5\) amending the part 595
regulation, pertaining to the moving deformable barrier (MDB) and pole
tests of FMVSS No. 214 (Sec. 595.7(c)(15)). The final rule provided an
exemption from the MDB and pole test requirements as applied to a
designated seating position that is modified by changing the restraint
system and/or seat at that position to accommodate a person with a
disability. Bruno states in its current petition that FMVSS No. 226
will enhance the side air bag technology of FMVSS No. 214, and that
these enhanced side air bags present much of the same difficulties when
accommodating the transportation needs of mobility impaired persons as
the difficulties discussed in the rulemaking for FMVSS No. 214.
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\5\ 76 FR 37025, June 24, 2011.
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In the October 26, 2012 NPRM, NHTSA proposed to amend Sec.
595.7(c) to add an exemption for FMVSS No. 226.\6\ However, we
indicated in the preamble that the agency did not fully agree with
Bruno's statements about the need for an exemption from ejection
mitigation requirements when the vehicle's OEM seat was replaced by a
TAS seat. In NHTSA's view, FMVSS No. 226 is not affected by torso air
bags or seat components, so the fact that the OEM seat would be
replaced did not seem germane. NHTSA did not understand why removing
the original seat and replacing it with a TAS seat would negatively
impact the performance of the curtain air bags certified as meeting
FMVSS No. 226.
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\6\ NHTSA proposed that the exemption would only be for the side
of the vehicle where a seat must be changed to accommodate a person
with a disability.
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Nonetheless, the agency did acknowledge in the NPRM that the side
impact sensing and electronic architecture system could be integrated
with that of the ejection mitigation rollover protection system. Thus,
NHTSA acknowledged the possibility that, in the process of modifying or
replacing a seat to accommodate a person with a disability, the FMVSS
No. 214 side impact air bag system could be deactivated, which could
tangentially deactivate the FMVSS No. 226 rollover ejection mitigation
system. Thus, NHTSA stated, for vehicles in which the seat is modified
or replaced, it may not be practical to exempt them from the side
impact requirements and not from ejection mitigation requirements. In
the NPRM, NHTSA sought comment on the need for the requested exemption,
and asked questions as to whether deactivating the side impact
protection system would also deactivate the ejection mitigation system,
and whether an exemption could only be for the ejection mitigation
countermeasure (curtains) on the side of the vehicle affected by the
modification, rather than for both sides.
Response to the NPRM
The agency received one comment on the NPRM. The comment was from
the National Mobility Equipment Dealers Association (NMEDA),\7\ which
supports the proposed FMVSS No. 226 exemption. NMEDA states that
aftermarket seats differ in dimension/geometry from the original
equipment seat and may be positioned differently in the vehicle. The
commenter states that a wider or higher aftermarket seat, or seat
placement, could hinder the deployment of the ejection mitigation side
curtain air bags. NMEDA also states that some modifiers move the
vehicle seat outward to provide more center row space for a wheelchair.
The commenter states that since relocating the seat in this way may
affect the proper deployment of the curtain air bag, some modifiers
deactivate the air bag on the affected side of the vehicle. NMEDA
states: ``Deactivation of side curtain airbags is often done by
removing the airbag and installing a Shunt that provides the proper
feedback to the 214 control module.'' (A shunt is a device that allows
electric current to pass around another point in the circuit by
creating a low resistance path.)
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\7\ NMEDA is an association representing vehicle repair
businesses (modifiers) and vehicle manufacturers that provide
mobility to consumers with disabilities.
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NMEDA also states that some modifications involve modifying the
occupant restraint system (seat belt) for a seating position, such as
when the original restraint system is integrated into the OEM seat and
the OEM seat is removed. The commenter states that modifiers have to
mount a new restraint system to the upper side roof rail of the
vehicle, which ``could affect the deployment of a 226 airbag [sic].''
Additionally, NMEDA states: ``Since the technical specifications of
the OEM 226 control modules are not available to modifiers, a modifier
would not know whether the deactivation of one side of the vehicle's
curtain airbags also deactivates the other side.''
Agency Decision
The agency has determined that there is merit to Bruno's request to
amend Sec. 595.7 to add an exemption from the ejection mitigation
requirements and thus has decided to adopt the proposed amendment.
NMEDA's comment indicates that it is common for modifiers to deactivate
or remove the side curtain air bag that is packaged in the headliner
roof rail to make modifications to the seat belt to accommodate a
disabled driver or passenger or to install a new seating system. To
date, the side curtain air bag is the primary OEM countermeasure
installed to meet FMVSS No. 226. Since the countermeasure would be
deactivated or removed, an exemption from FMVSS No. 226 is warranted to
facilitate transportation of people with disabilities. Further,
modifiers are permitted by Sec. 595.7 (see Sec. 595.7(c)(15)) to
deactivate or remove the OEM side curtain air bag installed in
compliance with FMVSS No. 214. If the side curtain air bag were
deactivated or removed from the vehicle, maintaining compliance with
FMVSS No. 226 would not be possible.
That said, we recognize that the requested amendment presents a
trade-off of substantial ejection mitigation protection in exchange for
continued mobility for people with disabilities. The agency is
concerned about the negative effect an exemption may have on the safety
benefits afforded to occupants.
In an effort to balance the mobility needs of people who need
vehicle modifications to accommodate a disability with the performance
requirements of FMVSS No. 226, the exemption we have adopted is
limited. Vehicle manufacturing designs generally utilize one ejection
mitigation curtain air bag per side to protect the front and the rear
rows. If the side curtain air bag must be made inoperative on one side
of the vehicle to accommodate a disabled person, we are not convinced
that the side curtain air bag on the other side of the vehicle needs to
be made inoperative as well.
NHTSA believes it is necessary to maintain as much as possible the
integrity of the ejection mitigation safety system for the side of the
vehicle that is not altered. From NMEDA's comments, it appears possible
to isolate and only deactivate the altered side of the vehicle using a
shunt. Several major
[[Page 38794]]
manufacturers \8\ provide, on the internet, information related to
modifying vehicles for mobility purposes. We encourage modifiers to
contact the respective manufacturer or seek other information to obtain
the technical know-how to deactivate one side of the vehicle's curtain
air bags without deactivating the other side.
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\8\ http://www.fordmobilitymotoring.com, http://www.gmmobility.com, http://www.chryslerautomobility.com, and http://toyotamobility.com.
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Thus, we amend Sec. 595.7(c) to add Sec. 595.7(c)(17), and only
exempt from S4.2 and S5 of 49 CFR 571.226 the side of the vehicle where
a seat on that side of the vehicle must be changed to accommodate a
person with a disability. A modifier may not knowingly make inoperative
the side curtain air bag on the opposite side of the vehicle.
Technical Amendment
On December 4, 2007, the agency published a final rule (72 FR
68234) amending FMVSS No. 108, ``Lamps, reflective devices, and
associated equipment'' (49 CFR 571.108), by reorganizing the regulatory
text so that the standard provides a more straightforward and logical
presentation of the applicable regulatory requirements. The final rule
did not impose any new substantive requirements on manufacturers. The
effective date of the rule was December 1, 2012.
FMVSS No. 108 includes a requirement that a turn signal operating
unit installed on vehicles must be self-canceling by steering wheel
rotation and capable of cancellation by a manually operated control.
The requirement used to be in S5.1.1.5 of FMVSS No. 108, but after the
2007 final rule it is now in S9.1.1 of the standard.
Following the 2007 final rule, the agency did not revise Sec.
595.7 to reflect the reorganized text of the lighting standard in the
make inoperative exemption relating to FMVSS No. 108. Currently, Sec.
595.7(c)(2) references S5.1.1.5 of FMVSS No. 108, when the correct
paragraph reference is S9.1.1. Today's final rule corrects Sec.
595.7(c)(2) to reference S9.1.1 of FMVSS No. 108.
Effective Date
As this final rule relieves the regulatory burdens on certain
entities and involves FMVSS requirements that have already become
effective, the agency believes that a 60-day effective date is
appropriate.
Rulemaking Analyses and Notices
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563, and DOT Regulatory Policies and Procedures
The agency has considered the impact of this rulemaking action
under E.O. 12866, E.O. 13563, and the Department of Transportation's
regulatory policies and procedures. This rulemaking document was not
reviewed by the Office of Management and Budget under E.O. 12866,
``Regulatory Planning and Review.'' It is not considered to be
significant under E.O. 12866 or the Department's Regulatory Policies
and Procedures (44 FR 11034; February 26, 1979). NHTSA has determined
that the effects are so minor that a regulatory evaluation is not
needed to support the subject rulemaking. This rulemaking imposes no
costs on the vehicle modification industry. If anything, there could be
a cost savings due to the exemption.
Modifying a vehicle in a way that makes inoperative the performance
of ejection mitigation air bags will reduce the protections offered
occupants in a rollover. However, the number of vehicles potentially
modified is very small. This is essentially the trade-off that NHTSA is
faced with when increasing mobility for persons with disabilities: When
necessary vehicle modifications are made, some safety may unavoidably
be lost to gain personal mobility. The agency has made the exemption
adopted today as narrow as reasonably possible, to preserve ejection
mitigation protection as much as possible.
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 proposed rulemaking 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. Most dealerships and repair businesses are
considered small entities, and a substantial number of these businesses
modify vehicles to accommodate individuals with disabilities. I certify
that this rule will not have a significant economic impact on a
substantial number of small entities. While most dealers and repair
businesses are considered small entities, the exemption will not impose
any new requirements, but will instead provide additional flexibility.
Therefore, the impacts on any small businesses affected by this
rulemaking will not be substantial.
Executive Order 13132 (Federalism)
NHTSA has examined today's final rule pursuant to Executive Order
13132 (64 FR 43255; Aug. 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 final rule 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.'' This
rule will not impose any requirements on anyone and instead lessens a
requirement for modifiers.
NHTSA rules can have preemptive effect in two ways. First, the
National Traffic and Motor Vehicle Safety Act contains an express
preemption provision stating that when a motor vehicle safety standard
is in effect under 49 U.S.C. chap. 301, 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 Chapter 301. 49 U.S.C. 30103(b)(1). This
provision is not relevant to this rulemaking as it does not involve the
establishing, amending or revoking of a Federal motor vehicle safety
standard.
Second, the Supreme Court has recognized the possibility, in some
[[Page 38795]]
instances, of implied preemption of State requirements imposed on motor
vehicle manufacturers, including sanctions imposed by State tort law.
We are unaware of any State law or action that would prohibit the
actions that this final rule permits.
Civil Justice Reform
When promulgating a regulation, agencies are required under
Executive Order 12988 to make every reasonable effort to ensure that
the regulation, as appropriate: (1) Specifies in clear language the
preemptive effect; (2) specifies in clear language the effect on
existing Federal law or regulation, including all provisions repealed,
circumscribed, displaced, impaired, or modified; (3) provides a clear
legal standard for affected conduct rather than a general standard,
while promoting simplification and burden reduction; (4) specifies in
clear language the retroactive effect; (5) specifies whether
administrative proceedings are to be required before parties may file
suit in court; (6) explicitly or implicitly defines key terms; and (7)
addresses other important issues affecting clarity and general
draftsmanship of regulations.
Pursuant to this Order, NHTSA notes as follows. The preemptive
effect of this rule 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.
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.'' 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. No voluntary standards exist regarding
this exemption for modification of vehicles to accommodate persons with
disabilities.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 requires 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). This exemption does
not result in expenditures by State, local or tribal governments, in
the aggregate, or by the private sector in excess of $100 million
annually.
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.
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. This final
rule does not contain new reporting requirements or requests for
information beyond what is already required by 49 CFR Part 595, Subpart
C. An entity taking advantage of the exemption will simply list FMVSS
No. 226 in the document described in 49 CFR 595.7(b).
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
isn't 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 the rule easier to
understand?
If you have any responses to these questions, please include them
in your comments on this rule.
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.
Privacy Act
Anyone is able to search the electronic form of all submissions to
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).
List of Subjects in 49 CFR Part 595
Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, NHTSA amends 49 CFR part 595 to
read as follows:
PART 595--MAKE INOPERATIVE EXEMPTIONS
0
1. The authority citation for part 595 is revised to read as follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, 30122 and 30166;
delegation of authority at 49 CFR 1.95.
0
2. Amend Sec. 595.7 by revising paragraph (c)(2) and adding paragraph
(c)(17) to read as follows:
Sec. 595.7 Requirements for vehicle modifications to accommodate
people with disabilities.
* * * * *
(c) * * *
(2) S9.1.1 of 49 CFR 571.108, in the case of a motor vehicle that
is modified to be driven without a steering wheel or for which it is
not feasible to retain the turn signal canceling device installed by
the vehicle manufacturer.
* * * * *
(17) S4.2 and S5 of 49 CFR 571.226, on the side of the vehicle
where a seat on that side of the vehicle must be changed to accommodate
a person with a disability.
* * * * *
Dated: June 19, 2014.
David J. Friedman,
Acting Administrator.
[FR Doc. 2014-15901 Filed 7-8-14; 8:45 am]
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