Interpretation ID: nht79-3.6

DATE: 08/27/79

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Mr. Bruce Willhite

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to the questions you raised with Ms. Debra Weiner of my office on June 29, 1979, about your intention to start a business that will sell and install auxiliary diesel fuel tanks in passenger cars. You noted that you would like to install the tanks in used vehicles and possibility in new ones. Specifically, you asked what Federal law applies to your proposed activities and whether these activities would violate any Federal law.

The National Traffic and Motor Vehicle Safety Act of 1966, as amended, (the Act) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal Motor Vehicle Safety Standards (FMVSS's) applicable either to vehicles or to equipment for installation in vehicles. FMVSS 301-75, Fuel System Integrity, (see enclosed copy) is a vehicle standard which applies to vehicles, including passenger cars, which use fuel with a boiling point above 32 degrees F. (this includes both gasoline and diesel fuel).

Under section 108(a)(1)(A) and (b)(1) of the Act, new motor vehicles must comply with the FMVSS's applicable to them until they are first purchased by someone for purposes other than resale. That purchase is completed when the vehicle is delivered to the ultimate consumer. The NHTSA regulations include two measures designed to ensure compliance with applicable FMVSS's until this delivery. First, manufacturers of new vehicles are required to affix to each vehicle they produce a label which certifies the vehicle's compliance with all applicable FMVSS's. Second, any person who prior to the first sale, alters a certified vehicle in a manner that significantly affects either its configuration or purpose is considered to be not only an alterer but also a manufacturer and therefore, must recertify the entire vehicle as complying with all applicable FMVSS's. (49 Code of Federal Regulations (C.F.R.) 567.7).

Should a noncompliance due to an alterer's modification be discovered in a recertified vehicle, the alterer would be liable for a civil penalty unless he or she could establish that he or she did not have actual knowledge of the noncompliance, and that he or she did not have reason to know in the exercise of due care that the vehicle did not comply. (Section 108(b)(2) of the Act.) The civil penalty imposed could be up to $ 1000 for each violation of an applicable FMVSS. (Section 109 of the Act.)

Since the installation of an auxiliary fuel tank significantly affects the configuration of an automobile, the legal provisions summarized above would apply to you as an installer of auxiliary fuel tanks in new cars (i.e., cars not yet purchased for purposes other than resale and delivered to that purchaser). Thus, upon installing an auxiliary fuel tank in a new vehicle you would be required to affix a label to the vehicle stating that the vehicle as altered conforms to all applicable FMVSS's including FMVSS 301-75 in effect on a date not later than the date on which the alterations were completed (49 C.F.R. Part 567.7). This means that not only must the original gasoline fuel system meet the performance requirements encompassed by FMVSS 301-75 but that the system as supplemented by the auxiliary tank added by you to a new car must meet them also.

As an installer of auxiliary fuel tanks in new vehicles, you will also be subject to the provisions of sections 151 et seq. of the Act (see enclosure). If you or this agency finds that there is a safety defect in the manner in which you have installed auxiliary tanks in new vehicles, you would be required to notify purchasers and remedy the defect. Under sections 108(a)(1)(D) and 109(a) of the Act, any person who fails to provide notification of or remedy for a safety defect is liable for a civil penalty of up to $ 1000 per violation.

As a dealer in and installer of auxiliary fuel tanks in used vehicles, you would be subject to section 108(a)(2)(A) of the Act. Section 108(a)(2)(A) in essence prohibits the entities and persons listed below from knowingly removing, disconnecting or reducing performance of equipment or elements of design installed on a vehicle in accordance with applicable FMVSS's. There is no prohibition against an individual person modifying his or her own vehicle. Specifically, the section provides:

No manufacturer, distributor, dealer or motor vehicle repair business shall knowingly render inoperative, in whole or part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard . . .

A person or entity found to have violated this section would be liable for a civil penalty of up to $ 1000 for each violation. (Section 109 of the Act.)

If one of the persons or entities listed above adds an auxiliary gasoline tank to a vehicle manufactured in accordance with FMVSS 301-75, and in the process knowingly reduces the performance of the fuel system originally installed in the motor vehicle, he or she has violated section 108(a)(2)(A). (H.R. No. 1191, 93d Cong., 2d Sess. 34 (1974)). Such reduction of performance could occur, for example, if gasoline from the original system (a fuel system includes the filler pipe, tank, gasoline lines, fuel pump, carburetor, and engine) could be leaked through a rupture in the auxiliary tank and fuel lines, and if the design, materials, construction, installation or location of the auxiliary tank and fuel lines made them more susceptible to rupture than the original fuel system.

In closing, I would like to point out that, in addition to the Federal law discussed above, there may be State products liability laws applicable to your proposed activities. As an installer of auxiliary fuel tanks, you could be liable for the manner and location in which the tanks are installed. Therefore, you may wish to consult a local lawyer before starting your new business.

I hope that you will find this response helpful.