Mr. Michael Johnson Black Hills Transfer Inc.
P.O. Box 9472
Rapid City, SD 57709
Dear Mr. Johnson:
This responds to your email forwarded to us by U.S. Senator John Thune’s office, and to your September 4 and September 12, 2020 telephone conversations with Deirdre Fujita of my staff, asking whether a motor vehicle dealer may make certain modifications to your used 2019 passenger vans to convert them to cargo vans. You explain that the work would involve, among other things, removing all passenger seats, seat brackets, and seat belts rearward of the driver’s seat, installing a full partition behind the driver’s seat and right front passenger seat to separate a cargo area, and replacing the side curtain air bag on the driver’s side of the vehicle with a side curtain air bag specially designed for only the driver’s seating position. As discussed below, our answer is the vehicles may be modified as you describe, subject to certain conditions.
By way of background, the National Traffic and Motor Vehicle Safety Act (Safety Act, 49 U.S.C. Chapter 301) authorizes NHTSA to issue Federal motor vehicle safety standards (FMVSSs) for new motor vehicles and items of motor vehicle equipment. Among other things, § 30112 of the Safety Act prohibits any person from selling any new motor vehicle or motor vehicle equipment that does not meet all applicable FMVSSs. This requirement applies until the first purchase of the vehicle or equipment other than for resale (first retail sale). Following such first purchase of the vehicle or equipment, § 30122 of the Safety Act prohibits a manufacturer, distributor, dealer, rental company, or motor vehicle repair business from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable FMVSS. It is this latter provision, § 30122, that bears on the questions you ask.
You explain in your email and phone calls that you purchased two used passenger vans with the intent of converting them to carry cargo for your business. Both vehicles are equipped with side curtain air bags of different designs. You describe the driver’s side curtain as extending from the windshield into the cargo space, and that “[t]he passenger side already has separate airbags [sic] for the passenger’s front seat and the cargo space.” You would like to retain functioning side curtain air bags for the driver and right outboard passenger seats, but given the installation of the partition and creation of the new cargo area, you wish to replace the driver’s full length side curtain air bag (which you call the “long” side curtain air bag) with an air bag that protects only the driver’s seat (a “short” side curtain air bag). You would like to remove the curtain air bag from the cargo space on the right front outboard passenger side rearward of the partition, and retain just the original separate “short” side curtain air bag designed for the front right seat. You are in contact with a dealer who can modify the vehicle in this way, but the dealer requests a “letter of authorization” from NHTSA before it will modify the vehicles.
Section 30122 of the Safety Act limits the modification of vehicles by persons listed in § 30122. That section prohibits those persons, including dealers, from knowingly removing, disabling or otherwise “making inoperative” the performance of equipment or elements of design installed on a vehicle in compliance with an FMVSS. Removing safety equipment such as seat belts and a side curtain air bag, and not replacing them, is generally impermissible by dealers under § 30122, as those items were installed in the vehicles in compliance with applicable FMVSSs.1 However, modifications that change a vehicle from one type to another present a unique circumstance regarding § 30122.
The Safety Act does not prohibit persons from changing a used vehicle from one type to another, e.g., from a passenger van to a cargo van.2 In the situation involving modification of a used vehicle, NHTSA views the determinative standards for the make inoperative provision to be those that would have applied to the vehicle had the vehicle been originally manufactured as the vehicle type to which it has been converted.3 This means that your dealer may modify your used vans, provided that the modified vehicles will have working safety systems installed that would have met the applicable FMVSS for vehicles with partitions and no designated seating positions rearward of the partition, if the vehicles were new.
The FMVSSs directly affected by installation of the partition and reconfiguration of the side curtain air bags are FMVSS No. 214, “Side impact protection,” and FMVSS No. 226, “Ejection mitigation.” In a passenger van that might be converted to a cargo van, the manufacturer likely installed side curtain air bags at the driver’s seating position and at the right front outboard seating position to meet FMVSS No. 214’s pole test requirement (S9). It is technically feasible
2 While NHTSA does not have a definition for a “van,” passenger vans are considered “multipurpose passenger vehicles” (MPV) under NHTSA’s definitions (49 CFR § 571.3, Definitions). An MPV is defined as “a motor vehicle with motive power, except a low-speed vehicle or trailer, designed to carry 10 persons or less which is constructed either on a truck chassis or with special features for occasional off-road operation.” A cargo van (commonly understood as a van with no designated seating positions rearward of the driver’s position) could be considered an MPV, but could be a truck. “Truck” is defined as “a motor vehicle with motive power, except a trailer, designed primarily for the transportation of property or special purpose equipment.” (Id.) Under NHTSA’s self-certification framework, manufacturers certify their vehicles as meeting all FMVSSs applicable to the vehicle type, and, in doing so, classify their vehicles for purposes of determining the applicability of the FMVSSs. NHTSA may take issue with that classification if the agency believes the manufacturer has misclassified the vehicle, and thus failed to certify the compliance of the vehicle with applicable FMVSSs.
3 See, e.g., August 17, 1979 letter to Mike Champagne, https://isearch.nhtsa.gov/aiam/aiam3072.html, April 21, 1993 letter to Jeffrey Kester, https://isearch.nhtsa.gov/files/8439.html (“we have not interpreted Section  as forbidding modifications that result in the inapplicability of one or more of the FMVSS with which a vehicle originally complied”); May 21, 2003 letter to Teresa Stillwell, https://isearch.nhtsa.gov/files/001646drn.html.
Please note that the Safety Act was amended in 2015 to include “rental companies” in the entities subject to the “make inoperative” provision.
for the pole test to be met by installing the short side curtain air bag at the driver’s seating position in place of the long air bag, and by retaining just the short side curtain air bag at the right front outboard seating position, which are modifications planned by your dealer. If the short side curtain air bags at the driver’s seating position and at the right front outboard seating position would deploy in a manner meeting the pole test requirement, the modification would not constitute a § 30122 violation as regards FMVSS No. 214.
FMVSS No. 226 has requirements for vehicles with a fixed partition behind which there are no designated seating positions (S126.96.36.199(c)). For such a vehicle, it is technically possible to meet FMVSS No. 226 with just a short side curtain air bag at the driver’s position and a short side curtain air bag at the right front outboard seating positions. Under S188.8.131.52(c), no ejection mitigation side curtain air bag is required rearward of the partition for such a vehicle.
Accordingly, this means--with regard to FMVSS No. 226 S184.108.40.206(c)--it is possible for your dealer to modify the side curtain air bags as you describe without violating § 30122, assuming the short air bags would continue to deploy in a rollover as contemplated by the standard, and in the manner meeting the ejection mitigation requirements for the seats forward of the partition.
We note that it may not necessarily be a simple matter of stripping the van, installing different side curtain air bags, and reinstalling a cut headliner and original side pillar trims. For example, the replacement short curtain air bag would need to fit the structure of the vans being modified and matched to the crash sensing system. The original manufacturer of your vehicles should be able to inform the dealer which additional components and modifications, if any, may be needed to avoid making inoperative the front row side curtain air bags.
Please keep in mind that the dealer also must not knowingly make inoperative devices or elements of design required by other FMVSS provisions not included in the above discussion. Thus, for example, the modification must not make inoperative the side curtain air bag monitoring system required by S4.2.2 of FMVSS No. 226, which informs the driver of the readiness of the side curtain air bag system.
As for removing the rear seats and accompanying belts, removing vehicle seats on a passenger van to convert it to a cargo van is not prohibited by § 30122. While FMVSS No. 2084 requires rear designated seating positions to have seat belts, if the designated seating position were removed, there would be no designated seating position to equip with the seat belt.5 Accordingly, your dealer’s removal of the rear seats and seat belts to convert the passenger van to a cargo van would not, by itself, violate § 30122.
In sum, your dealer may modify your vans as you describe, provided that the short air bags would deploy as specified by FMVSS No. 214 and 226, and that the work does not make inoperative devices or elements of design required by other provisions of the applicable FMVSS, such as the readiness indicator required by S4.2.2 of FMVSS No. 226.
5 See, e.g., December 22, 1995 letter to Fred Prizker, https://isearch.nhtsa.gov/files/11210.html. Removal of rear seat belts as part of converting a passenger van to a cargo van by removing the rear seat does not violate the make inoperative provision.
We trust this letter provides the information you need. Please contact us if you have further questions.
JONATHAN CHARLES MORRISON
Digitally signed by JONATHAN CHARLES MORRISON
Date: 2020.10.23 19:11:26
Jonathan C. Morrison Chief Counsel
Ref: FMVSS 226