ID: nht95-1.70

TYPE: INTERPRETATION-NHTSA

DATE: February 15, 1995

FROM: Lee Rabie -- President, Enerco, Inc.

TO: Office of the Chief Counsel, NHTSA

TITLE: Re: Vehicle Air Bag Restraint Systems

ATTACHMT: ATTACHED TO 4/8/95 LETTER FROM PHILIP R. RECHT TO LEE RABIE (A43; STD. 208); ALSO ATTACHED TO 1/19/90 LETTER FROM STEPHEN P. WOOD TO LINDA L. CONRAD (STD. 208); ALSO ATTACHED TO 3/4/93 LETTER FROM JOHN WOMACK TO ROBERT A. ERNST

TEXT: Dear Sirs

The purpose of this letter is to obtain information from you and your Agency regarding any legal requirements or regulations of the Federal government for recycling/remanufacturing of vehicle Air Bags.

First, let us introduce ourselves. Enerco, Inc. is an industrial electronics firm that manufactures a line of industrial electronic products. Enerco has been in the electronic design and manufacturing business for over twenty years. Please find enclose d some of our data sheets that show a few of the products we manufacture which are used by local, state and federal governments for traffic control.

For some time we have been interested in vehicle Air Bags and the possibility of recycling Air Bags. We are aware of the performance requirements for active and passive restraint systems for the protection of vehicle occupants in crashes as promulgated by the National Highway Traffic Safety Administration, Department of Transportation, in 49 CFR Ch. V, Section 571.208; Standard No. 208; Occupant Crash Protection). We know that recycling of the Bags is physically possible because we have developed a me thodology for doing so. However, we are concerned about any requirements of the laws and regulations which your Agency has oversight responsibility as they relate to the acceptance and performance of recycled Air Bags.

Air Bag systems are being required be installed in all cars sold in the United States. An Air Bag Restraint System is extensive and is comprised of the Air Bag and it's associated controls, sensors, computers, cables and indicators. The cost of the Bags themselves (2 Bags will be required for all cars) as purchased new from each manufacturer is very high. As the time period in which these systems have been required increases, and as the number of newer vehicles on the road increases, the number of Bag s which have actually been deployed in crashes is dramatically increasing.

As it stands now, after a vehicle crashes with deployment of an Air Bag, the Bag is removed form the vehicle and is replaced with a new Bag supplied by the manufacturers. The original Bag goes to waste. Additionally, disposing of the blown Air Bag is a lso a problem due to fact that other environmental health regulations prohibit (actual label on the side of the Bags) the placement of Bags in landfills. Therefore wrecking yards and repair shops have a problem of disposing the Bags.

In addition to the waste of reusable equipment and disposal problems there is another large expense problem. As indicated above the cost of a new Bag is very high. This is because the Bag is not recycled and usually the original manufacturers are the o nly source for the replacement Bags. The high replacement cost must be paid by the vehicle owner or his insurance company, even if the vehicle in which it deployed did not sustain major damage. All this points to the fact that there is a dramatic need in our society to have the choice of purchasing from a secondary source quality recycled Air Bags.

Our proposed recycling program would take the original blown Bags which were made and supplied by the original manufacture of the vehicle, and remanufacture them to the original standards. Blown Air Bags and the vehicles in which they have been blown ha ve been examined by us. The vehicles metal structure and steering wheel are designed to withstand the Air Bag deployment. The Bag has a valve to allow deflation without damaging of the Bag. This means that washing, cleaning, refolding, supplying of a new squib and new chemical charge and resealing of the flap that is made to open to allow Bag deployment, would be the focus of the recycling/remanufacturing process.

Enerco would appreciate any facts, information, discourse, thoughts or opinions from your department regarding our proposal to recycle/remanufacture Air Bags. This would include your opinion on whether the present law and regulations would allow recyclin g/remanufacture of the Air Bags (Bags only, not the sensors or computers) to the same MTBF standards using existing, proven technology.

Thank you for your consideration of this request. Your timely reply will be very much appreciated.

Brochures omitted.

ID: nht95-1.71

TYPE: INTERPRETATION-NHTSA

DATE: February 16, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Randall B. Clark

TITLE: None

ATTACHMT: ATTACHED TO 1/17/95 LETTER FROM RANDALL B. CLARK TO OFFICE OF VEHICLE SAFETY COMPLIANCE (OCC 10671)

TEXT: This is in response to your letter of January 17, 1995, to the Office of Vehicle Safety Compliance. You have asked for a clarification of the stop lamp requirements of Motor Vehicle Safety Standard No. 108, specifically S5.1.1.27(a), and Tables III and IV.

Your car "has the normal two stop lamps and has a spoiler with a stop lamp built into it." In addition, it "has a stop lamp mounted inside the back window which is not currently hooked up due to the fact that 'Subaru of America' thinks the procedure is a gainst the law." You would like a statement "that an automobile with four stop lamps is perfectly legal in the United States."

For the reasons given below, the legal situation is of sufficient complexity that we cannot provide a blanket statement of this nature. We shall begin with a possible explanation of Subaru's position. We assume that when you refer to Subaru of America you are referring to the manufacturer of your car. In producing and selling your car, Subaru was obliged to conform to Standard No. 108 (and all other applicable Federal motor vehicle safety standards), and to certify that it conformed to those standard s. The three provisions of Standard No. 108 that you reference above required Subaru to equip your car with a center highmounted stop lamp in conformance with the photometric performance and location requirements of Standard No. 108. Ordinarily, this w ould be the lamp inside the rear window. When a vehicle has a spoiler in the rear deck area as original equipment, a manufacturer will frequently locate its center stop lamp in the spoiler instead, since the spoiler might partially block a lamp located in the rear window and thereby create a noncompliance with Standard No. 108. We surmise that Subaru, to facilitate the production process, found it preferable to equip all cars with a window mounted lamp, and to disconnect it on vehicles where a lamp is in the spoiler. The spoiler lamp thereby became the conforming lamp required by S5.1.1.27.

In this circumstance, Standard No. 108 treats the window mounted lamp as a supplemental stop lamp. There are no requirements for a supplemental center stop lamp; however, under S5.1.3 of Standard No. 108, any supplemental lamp is permissible, provided t hat it does not impair the effectiveness of the lighting equipment required by Standard No. 108. The impairment decision is made by a vehicle manufacturer and is reflected in its certification of the vehicle. For whatever reason, Subaru chose to certif y your car with the window stop lamp disconnected.

We do not know whether this represented an affirmative determination by Subaru that the window mounted lamp would impair the effectiveness of other rear lighting equipment (such as overloading the stop lamp circuit and diminishing the light output of the other lamps). But dealers are reluctant to engage in any activity that might negatively affect a manufacturer's certification of compliance. This reluctance is based upon a statutory prohibition forbidding manufacturers, distributors, dealers, and mot or vehicle repair businesses against "making inoperative" equipment on a vehicle already in use, which was installed in accordance with a Federal motor vehicle safety standard. In our opinion letters, we have generally equated the "impairment" test for new vehicles with the "inoperative" test for those in use. In short, Subaru or its representative could believe that connecting the inoperative stop lamp might create a noncompliance that did not exist when the vehicle was certified, thereby putting the m in violation of the prohibition directed against modification of safety equipment on used vehicles.

Obviously, another manufacturer could leave the original window lamp connected and offer a spoiler one as well, its certification being a representation that one lamp meets all requirements and that the supplementary one does not create an impairment of any of the required rear lighting equipment. In this circumstance, four stop lamps would be "legal" under Federal law.

The prohibition against modifications does not extend to the vehicle owner. However, NHTSA discourages vehicle owners from making modifications that reduce the safety of their vehicles. Moreover, state law may restrict such modifications.

I hope that this clarifies the situation for you.

ID: nht95-1.72

TYPE: INTERPRETATION-NHTSA

DATE: February 17, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Dietmar K. Haenchen -- Manager, Vehicle Regulations, Volkswagen of America, Inc.

TITLE: None

ATTACHMT: ATTACHED TO 7/13/94 LETTER FROM DIETMAR K. HAENCHEN TO JOHN WOMACK

TEXT: This responds to your follow up request for an interpretation of marking requirements in 49 CFR part 541 Federal Motor Vehicle Theft Prevention Standard, for high theft vehicle lines' replacement parts. I apologize for the delay in our response. We rei terate our position in a July 1, 1994 letter to you, that Volkswagen is required to continue marking replacement parts of the Corrado line, in model year 1995 and thereafter. The reason for this position follows.

In your earlier request for an interpretation, you explained that the Volkswagen Corrado line, a high theft line, was parts marked (pursuant to 49 CFR part 541) in model years (MYs) 1990 through 1994. For MY 1995, NHTSA granted a part 543 exemption from parts marking for the Corrado line, based on the inclusion of an approved antitheft device as standard equipment on all models in the Corrado line. (58 FR 28434, May 13, 1993). However, you informed us in your letter that the Corrado will not be sold in the United States for MY 1995.

In a July 1, 1994 interpretation letter to you, we determined that since Volkswagen will not sell the exempted MY 1995 Corrado line with the antitheft device in the United States, the part 543 exemption would not apply, and Volkswagen must continue to ma rk the replacement parts for the Corrado line.

In your follow up letter, you wrote that the MY 1994 Corrado line has, as standard equipment, the antitheft device that was the subject of the part 543 exemption for MY 1995. You state that since the Corrado line with the approved antitheft device was s old in the United States, replacement parts for the Corrado line should not be subject to marking in MY 1995 and thereafter.

We do not agree with your position. 49 CFR @ 543.7(d) specifies that part 543 exemptions apply only to lines that: (1) are the subject of the grant; and (2) are equipped with the antitheft device on which the line's exemption was based. The MY 1994 Corr ado line does not meet the first condition, i.e., it is not the subject of a grant of an exemption from parts marking. The part 543 exemption for the Corrado line begins with MY 1995. (See 58 FR 28434). You have earlier written that no MY 1995 Corrado line with the exempted device, will be sold in the U.S. As stated in our July 1, 1994 letter, since no exempted line equipped with the antitheft device will be sold in the U.S., Volkswagen must continue to mark any Corrado replacement parts, subject to part 541, as long as the replacement parts are offered for sale in the U.S.

I hope that this information is helpful. If you have any further questions, please contact Dorothy Nakama of my staff at (202) 366-2992.

ID: nht95-1.73

TYPE: INTERPRETATION-NHTSA

DATE: February 17, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Brigitte Neifer -- Sekurit Saint-Gobain Deutschland GmbH & Do. KG

TITLE: None

ATTACHMT: ATTACHED TO 10/4/94 TELEFAX FROM BRIGITTE NEIFER TO DAN COLHEN (OCC 10413)

TEXT: Your telefax to Mr. Dan Cohen of the National Highway Traffic Safety Administration's (NHTSA's) Office of Vehicle Safety Standards has been forwarded to my office for reply. I apologize for the delay in our response.

You asked about two topics: the agency's plans for further rulemaking related to Docket 89-15, and NHTSA's regulations related to testing for compliance with an industry standard that is incorporated by reference into a Federal Motor Vehicle Safety Stand ard (FMVSS).

Issue One: Docket 89-15 You first asked whether NHTSA is planning any further rulemaking activity with respect to NHTSA Docket No. 89-15. Docket No. 89-15, which began January 22, 1992 (57 FR 2496), pertains to a notice of proposed rulemaking that addresses the light transmitt ance requirements for glazing materials used in motor vehicles. NHTSA has not reached a final decision on this proposed rulemaking. Any questions you may have about this rulemaking can be addressed to Mr. Patrick Boyd, Crash Avoidance Division, National Highway Traffic Safety Administration (NHTSA), 400 Seventh Street, S.W., Washington D.C. 20590. Mr. Boyd's telephone number is (202) 366-6346.

Issue Two: Establishing Compliance with FMVSS No. 205 You ask several questions about FMVSS No. 205, "Glazing Materials." You first ask for confirmation that the "5-year rhythm of renewal" was "an AAMVA [American Association of Motor Vehicle Administrators] procedure and not an official requirement." Your u nderstanding is correct. Moreover, this program, which was administered by AAMVA and which was never "officially" NHTSA's, has been discontinued. You can contact the AAMVA at 4600 Wilson Blvd., Arlington, VA 22205, telephone (703) 522-4200 for further information.

You also requested information about NHTSA's requirements related to compliance with FMVSS No. 205 and the material it incorporates (ANSI Z26.1, "Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways"). You state that you "intend to have [your] products regularly tested by independent laboratories" and ask whether "DOT inspectors in [the] USA will accept (cars equipped with) our glazings when accompanied only with a test report."

Some background information about NHTSA would be helpful in answering your question. Congress has authorized NHTSA to issue FMVSSs applicable to new motor vehicles and items of motor vehicle equipment. NHTSA, however, does not approve or endorse motor vehicles or motor vehicle equipment. Instead, the statute establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. Thus, there are no "DOT inspectors" that are charged with either accepting or rejecting vehicles or equipment certified as meeting the FMVSSs, prior to the first sale of the product.

NHTSA does test new vehicles and equipment for compliance with the FMVSSs by purchasing products on the market. Each of NHTSA's safety standards specifies the test conditions and procedures that this agency will use to evaluate the performance of the ve hicle or equipment being tested for compliance with the particular safety standard. NHTSA precisely follows each of the specified test procedures and conditions when conducting its compliance testing. n1 However, manufacturers are not required to test t heir products only in the manner specified in the relevant safety standard. A manufacturer may choose any means of evaluating its products to determine whether the vehicle or equipment will comply with the safety standards when tested by the agency acco rding to the procedures specified in the standard.

n1 Since FMVSS No. 205 incorporates ANSI's Z26.1 by reference, the test procedures and performance requirements set forth in ANSI Z26 are considered to be part of FMVSS No. 205.

If NHTSA testing shows that an apparent noncompliance exists with a vehicle or item of equipment, the manufacturer is asked to show the basis for its certification that the vehicle or equipment complies with the relevant safety standard or standards. If in fact there is a noncompliance, in accordance with 49 U.S.C. 30118 and 30120, the manufacturer is required to notify owners and remedy the noncompliance at no cost to the owners. The manufacturer is also subject to civil penalties unless it can estab lish that it exercised "reasonable care" in the design and manufacturer of the product and in the evaluation (through actual testing, computer simulation, engineering analysis, or other means) to ensure compliance. n2

n2 While the exercise of "reasonable care" may relieve a manufacturer of liability for civil penalties for the manufacture and sale of noncomplying vehicles or equipment, it does not relieve a manufacturer of the responsibility to notify purchasers of the noncompliance and remedy the noncompliance free of charge.

Your use of independent test laboratories to evaluate the performance of your product could support an initial showing of "reasonable care." However, the agency is unable to determine what efforts constitute "reasonable care" outside of the course of a s pecific enforcement proceeding. What constitutes "reasonable care" in a particular case depends on many factors, including such things as the limitations of current technology, the availability of test equipment, the size of the manufacturer, and above all, the diligence exercised by the manufacturer.

I hope this information is helpful. Please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992 if you have any further questions or need additional information.

ID: nht95-1.74

TYPE: INTERPRETATION-NHTSA

DATE: February 17, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Larry W. Overbay -- Director, Automotive and Support Equipment Directorate, U.S. Department of the Army

TITLE: None

ATTACHMT: ATTACHED TO 10/4/94 LETTER FROM LARRY W. OVERBAY TO JOHN WOMACK (OCC 10407)

TEXT: This responds to your letter requesting information about Federal motor vehicle safety standard (FMVSS) No. 121, Air brake systems, and NHTSA Test Procedure TP 121-02. You stated that your organization recently tested a vehicle's compliance to the emerg ency stopping distance requirements in FMVSS No. 121 by disconnecting the service air signal line at the rear service air relay. You further stated that this action "essentially eliminated rear braking during all stops" making the vehicle totally relian t on the front brakes for stopping. According to your letter, the vehicle manufacturer contends that the manner in which you conducted the test is invalid since it was not done in accordance with NHTSA Test Procedure TP 121-02, which specifies rapid blee ding of the vehicle's air reservoirs.

In addition to general questions about FMVSS No. 121 and the NHTSA Test Procedure, you asked whether the removal of the service air signal line (a non-manifold line which is designed to carry compressed air) from the rear air brake relay valve is conside red by NHTSA to be a valid test of the emergency system requirements under the provisions in FMVSS No. 121. After providing background information that responds to your general questions about testing of motor vehicles, I will respond to your specific q uestion about test conditions applicable to the emergency stopping requirements.

Congress has authorized NHTSA to issue FMVSSs applicable to new motor vehicles and items of motor vehicle equipment. (Formerly, the National Traffic and Motor Vehicle Safety Act, which has been codified at 49 U.S.C. 30303) NHTSA, however, does not appro ve or endorse motor vehicles or motor vehicle equipment. Instead, the statute establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

Each of NHTSA's safety standards specifies performance requirements for the vehicle or equipment being tested for compliance with the particular safety standard.

In addition to the test conditions and procedures set forth in the FMVSSs themselves, NHTSA has provided instructions, known as "compliance test procedures," to the test facilities with which the agency enters into contracts to conduct compliance tests f or the agency. The compliance test procedures are intended to provide a standardized testing and data recording format among the various contractors that perform testing on behalf of the agency, so that the test results will reflect the performance char acteristics of the product being tested, not differences between various testing facilities.

The compliance test procedures must, of course, not be inconsistent with the procedures and conditions that are set forth in the relevant safety standard. However, the compliance test procedures do, on occasion, provide additional detail beyond what is s et forth in the relevant FMVSS. These more detailed test procedures and conditions are requirements only for the contractor test facility in conducting tests on behalf of the agency. The test procedures are subject to change and do not always directly reflect all of the requirements of the particular standard for which they are written. The agency has generally stated that the test procedures are not intended to limit the requirements of the applicable FMVSS(s) and that in some cases the test procedu res do not include all of the various FMVSS minimum performance requirements.

With this background in mind, let me respond to your specific questions. As for your first question, the requirements in FMVSS No. 121 take precedence over the TP 121-02. As noted above, TP 121-02 contains instructions issued by NHTSA to provide inform ation to agency contractors about how to conduct compliance tests. In contrast, the law requires manufacturers to certify their vehicles to Standard No. 121.

As for your question about FMVSS No. 121's emergency stopping test requirements, those requirements are set forth in section S5.7.1. However, those requirements are not currently applicable to trucks and trailers, as the result of the U.S. Court of Appe als decision in PACCAR v. DOT, 573 F.2d 632, (9th Cir. 1978) cert. denied, 439 U.S. 862 (1978). (see S3 of 49 CFR 571.121). The agency retained the language in S5.7.1 so that those manufacturers that wish to construct their vehicles in accordance with the non-mandatory sections of the standard will have the necessary information to do so.

I hope this information has been helpful. If you have any other questions, please contact Marvin Shaw of my staff at this address or by phone at (202) 366-2992.

ID: nht95-1.75

TYPE: INTERPRETATION-NHTSA

DATE: February 24, 1995

FROM: David T. Holland -- President, Europa International, Inc.

TO: Mary Versailles -- Office of Chief Counsel, NHTSA

TITLE: Via fax # 202-366-3820 RE: Request for clarification of passive restraint phase-in requirements of FMVSS 208.

ATTACHMT: ATTACHED TO 4/3/95 LETTER FROM PHILIP R. RECHT TO DAVID T. HOLLAND (A43; STD. 208)

TEXT: Dear Ms. Versailles,

This letter is to follow up our recent phone conversation where-in you acknowledged that if Europa International, Inc. (R91-002) imports Canadian specification MPV's, such as the Chrysler Minivan, that meets the MPV passive restraint phase-in requirement s of FMVSS 208, Europa will be in compliance as it can count these vehicles toward the required percentage.

Please acknowledge this letter by signing below and faxing back or by a letter from your office.

Thank you for your assistance.

Acknowledged by:

Mary Versailles Office of Chief Counsel, NHTSA

ID: nht95-1.76

TYPE: INTERPRETATION-NHTSA

DATE: February 27, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Nick Smith -- Member, United States House of Representatives

TITLE: None

ATTACHMT: ATTACHED TO 1/17/95 LETTER FROM NICK SMITH TO REGINA SULLIVEN

TEXT: Thank you for your letter regarding the inquiry from your constituent, Dave Globig of Spring Arbor College, concerning Federal requirements for the transportation of school children. I appreciate this opportunity to clarify our regulations on this subje ct.

Mr. Globig's understanding is that Federal law "will not allow certification of any vans made after 1995 and, after 1997, will not allow any vans to be certified." You stated that Mr. Globig was concerned about purchasing expensive vehicles and finding o ut later that "they cannot be certified."

By way of background information, 49 U.S.C. section 30101 et seq. authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards (FMVSSs) for new motor vehicles, including school buses. Under that a uthority, NHTSA issued a comprehensive set of school bus safety standards that ensures that school buses are one of the safest forms of transportation. These standards require school buses to have safety features that include emergency exits, strengthen ed body panel joints, protective seating and special lamps and mirrors. Our regulations require manufacturers to self-certify the compliance of their vehicles. Our regulations also require each person selling a new school bus to sell only buses that ha ve been certified by the manufacturer as meeting these school bus safety standards.

Under our regulations, a motor vehicle, including a van, designed to carry 11 or more persons (including the driver) is classified as a "bus." A "school bus" is defined as a bus that is sold "for purposes that include carrying students to and from school or related events." The term "school" refers to preprimary, primary, and secondary school.

With regard to Mr. Globig's belief that after 1995, Federal law will not allow any vans to be certified, there is no such prohibition going in effect. NHTSA has no requirement that would prevent a manufacturer from certifying its van as meeting all appl icable FMVSSs, including the school bus standards, if the vehicle in fact complied with those standards.

There are two issues we would like to bring to Mr. Globig's attention. The first issue relates to which requirements apply to the use of school vehicles. The responsibility for complying with our school bus requirements rests with the manufacturer and s eller of a new bus. The school purchaser, on the other hand, has no obligation under our regulations to purchase and use a complying school bus, or any other type of vehicle. Since Federal law applies only to the manufacture and sale of a new vehicle, under our regulations, a school may use any vehicle it chooses to transport its students. NHTSA does not have the authority to prevent a school from using any of its vehicles.

Once a new vehicle has been sold, the use of that vehicle becomes subject to state law. Thus, Mr. Globig should contact state officials for information about any requirements Michigan might have concerning the use of vans as school vehicles. NHTSA stro ngly recommends that school children only be carried in vehicles meeting Federal school bus safety standards. We have enclosed for your information a copy of Highway Safety Program Guideline No. 17, Pupil Transportation Safety. This publication was issu ed under the authority of the Highway Safety Act of 1966, 23 U.S.C. @@ 401, et seq., which authorizes this agency to issue nonbinding guidelines to which states may refer in developing their own highway safety programs. Guideline 17, jointly issued by t his agency and the Federal Highway Administration, provides recommendations to the states on various operational aspects of their school bus and pupil transportation safety programs. The Guideline recommends, among other things, that any school vehicle designed to carry 11 or more persons should comply with all Federal safety standards applicable to school buses at the time the vehicle was manufactured.

The second issue concerns the meaning of "school" with respect to our school bus safety standards. The school bus safety requirements apply only to new buses used to transport preprimary, primary, or secondary school children. If Mr. Globig is asking a bout a college, such an institution is not considered a "school" as that term is used in our regulations. Therefore, new buses sold for transporting college students are not required to comply with the Federal school bus safety standards.

I hope this information is helpful to you in responding to your constituent. Should Mr. Globig have additional questions or need additional information, he should feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

ID: nht95-1.77

TYPE: INTERPRETATION-NHTSA

DATE: February 27, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Donald T. Hoy -- Senior Marketing Manager, Clean Air Partners

TITLE: None

ATTACHMT: ATTACHED TO 10/28/94 LETTER FROM DONALD T. HOY TO PHILIP R. RECHT (OCC 10469)

TEXT: This responds to your letter addressing this agency's regulations about converting school buses to run on a blended fuel combining diesel and compressed natural gas (CNG) or liquefied natural gas (LNG). You stated that your company manufactures a conver sion system that bolts on the original equipment manufacturer's diesel engine. While the diesel engine system remains intact and operates as designed during the dual fuel cycle, your conversion system serves to reduce the flow of diesel fuel to the engi ne and substitutes natural gas in its place. You further state that the system automatically reverts back to 100% diesel with no interruption in driveability if the supply of CNG is depleted.

You asked two questions about converting diesel powered school buses to dual fuel school buses that run on both conventional diesel fuel and alternative fuels such as CNG or LNG. You first ask whether there are any Federal regulations preventing the con version of a school bus from diesel to a dual fuel school bus. You then ask if there is any significance as to when the conversion system is installed on a school bus with regard to vehicle certification.

Before answering your specific questions, let me provide you with background information about the National Highway Traffic Safety Administration (NHTSA) and our regulations. NHTSA is authorized by Congress to issue Federal motor vehicle safety standard s (FMVSSs) that set performance requirements for new motor vehicles and items of equipment. NHTSA has used this authority to issue FMVSSs to ensure the fuel system integrity of vehicles powered by diesel fuels and those powered by CNG. Specifically, FM VSS No. 301 regulates the fuel system integrity of gasoline and diesel powered light vehicles with a gross vehicle weight rating (GVWR) under 10,000 pounds and all gasoline and diesel powered school buses regardless of GVWR. In addition, FMVSS No. 303 r egulates the fuel system integrity of CNG light vehicles and all school buses. Finally, FMVSS No. 304 regulates the integrity of CNG fuel containers. While FMVSS No. 301 has been in effect since the 1970s, the final rule establishing FMVSS No. 304 beco mes effective on September 1, 1995 and the final rule establishing FMVSS No. 303 becomes effective on March 27, 1995. The agency has not issued any FMVSS applicable to vehicles powered by LNG.

In response to your first question, no FMVSS or other NHTSA regulation prohibits the conversion of a diesel school bus to a dual fuel school bus. Nevertheless, FMVSS No. 301 requires each vehicle subject to the FMVSS, including each school bus, to have a limited amount of fuel leakage from the fuel system after being subjected to crash testing. Similarly, FMVSS No. 303 requires each vehicle subject to the FMVSS, including each school bus, to have a limited amount of pressure drop in the fuel system af ter being subjected to crash testing. Each school bus with a GVWR under 10,000 pounds is subjected to frontal, rear, and lateral barrier crash tests and each school bus with a GVWR of 10,000 pounds or more is subjected to a moving contoured barrier cras h test. With respect to a dual fuel vehicle, NHTSA explained in the final rule that "NHTSA has decided to require only one test on dual-fuel and bi-fuel vehicles that permits the amount of gaseous leakage specified in the CNG standard plus the amount of liquid leakage specified in Standard No. 301." (59 FR 19648, April 25, 1994.) In other words, after being subjected to the specified test crash or crashes, a dual fuel school bus may not leak more than the amount of fuel leakage permitted in FMVSS No. 3 01 plus the amount permitted in FMVSS No. 303.

In response to your second question, vehicle fuel system conversions are addressed in certain NHTSA provisions, whose application depends on when the work is done and who does the conversion. Under the statute and NHTSA's regulations, the first consumer purchase is the critical event by which certain responsibilities are specified. If your conversion system were installed as original equipment on a new vehicle, the vehicle manufacturer would be required by our certification regulations to certify that the entire vehicle (with your product installed) satisfies the requirements of all applicable FMVSS's, including the CNG fuel system standard once that FMVSS takes effect. If your conversion system were added to a new, previously-certified vehicle (e.g ., a new completed school bus), the person who adds the system would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration. This means that if you convert a school bus prior to the first consumer purchase, then you would be responsible for certifying that the school bus as manufactured conforms to all applicable FMVSS, including FMVSS No. 301 and, once FMVSS No. 303 and 304 take effect, those standards as well.

If you convert a bus after the first consumer purchase, you would not have any certification responsibilities under NHTSA's regulations. However, an installer that is a vehicle manufacturer, distributor, dealer or repair business would have to ensure th at it did not knowingly make inoperative, in whole or in part, the compliance of the vehicle with any applicable safety standard. Since all school buses are currently required to comply with FMVSS No. 301, any aspect of the conversion to a dual fuel sch ool bus must not make the diesel school bus more vulnerable to diesel fuel leakage or otherwise impair the school bus' fuel system integrity. After the September 1, 1995 effective date for FMVSS No. 303, any aspect of your conversion to a CNG/diesel sch ool bus to a dual fuel school bus must not make the school bus more vulnerable to fuel leakage.

The "make inoperative" provision does not apply to individual vehicle owners who alter their own vehicles. Thus, under our requirements, individual owners may install any item of motor vehicle equipment regardless of its effect on compliance with the FM VSS's. However, NHTSA encourages vehicle owners not to degrade the safety of their vehicles.

In addition, manufacturers of motor vehicles and items of motor vehicle equipment are subject to the statutory requirements concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that NHTSA or the manufac turer of the container or vehicle determines that the product contains a safety-related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

With regard to additional requirements for vehicle conversions, you should also note that the Federal Highway Administration (FHWA) of this Department has operational and equipment requirements for commercial vehicles used in interstate commerce. For in formation about possible FHWA requirements affecting your conversions, you can contact that agency's Chief Counsel's office at (202) 366-0650.

I hope you find this information helpful. If you have any other questions, please contact Marvin Shaw at this address or by phone at (202) 366-2992.

ID: nht95-1.78

TYPE: INTERPRETATION-NHTSA

DATE: February 27, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Glyn Thomas -- Thomas Tire

TITLE: None

ATTACHMT: ATTACHED TO 6/13/81 LETTER FROM FRANK BERNDT TO ROY LITTLE FIELD (STD. 119) AND 12/19/94 LETTER FROM GLYN THOMAS TO WALTER MYERS (OCC 10621)

TEXT: This responds to your letter of December 19, 1994, and your telephone conversation with Walter Myers of my staff on that date, in which you requested a waiver enabling you to import into the United States truck tire casings without the DOT symbol on the sidewalls but with more than 2/32 inch tread depth for the purpose of retreading. You stated that casings with less than 2/32 inch tread depth are usually not of sufficient quality to be retreaded.

By way of background information, Chapter 301 of Title 49, United States Code (U.S.C.) authorizes this agency to issue Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles and new items of motor vehicle equipment. The statute requires that all newly manufactured motor vehicles and items of motor vehicle equipment comply with all FMVSSs applicable to that product on the date of manufacture. Generally speaking, upon the sale of that vehicle or item of equipment to the first re tail purchaser, the use of that vehicle or item of equipment becomes a matter of state regulation.

However, 49 U.S.C. @ 30112(a) provides:

[A] person may not . . . . import into the United States, any motor vehicle or motor vehicle equipment manufactured on or after the date and applicable motor vehicle safety standard . . . . takes effect unless the vehicle or equipment complies with the s tandard . . . .

In your telephone conversation, you asked about importing used passenger car tires from Canada into the United States. The effect of section 30112(a) with regard to passenger car tires is to require that such tires which are manufactured after the effec tive date of FMVSS No. 109, New pneumatic tires (January 1, 1968), must be certified as complying with the requirements of that standard, whether the tire is now new or used. That certification is exhibited by molding the letters "DOT" into or onto the sidewall of the tire. To be legally imported into the United States, therefore, used passenger car tires must either display the DOT symbol on the sidewall of the tire or be accompanied by proof that the tire was manufactured before January 1, 1968.

With respect to tires for motor vehicles other than passenger cars, FMVSS No. 119, New pneumatic tires for vehicles other than passenger cars, became effective March 1, 1975. That standard also requires display of the DOT symbol as the manufacturer's ce rtification that the tire complies with all applicable FMVSSs. Accordingly, in order for such tires to be imported into the United States, they also must either display the DOT symbol on the tire sidewall or be accompanied by proof that the tires were m anufactured prior to March 1, 1975.

Used tires for use on motor vehicles other than passenger cars which have less than 2/32 inch of tread depth and which are imported solely for retreading may be imported without the DOT symbol on the sidewall. I have enclosed a copy of a letter to Mr. R oy Littlefield, which explains in detail the requirements of this narrow exception to the requirement that used tires have a DOT symbol on the sidewall to be legally imported. In determining that these tires are not motor vehicle equipment, NHTSA found persuasive that those tires cannot legally be used on the public highways, and require remanufacturing before they can be operated on the highways.

Although this agency has statutory authority to grant exceptions to compliance with the FMVSSs in certain specific categories of situations, NHTSA does not have the authority to waive requirements such as the one at issue here. Therefore, any used tire i mported into the United States must either display the DOT symbol, be accompanied by proof that they were manufactured prior to the effective date of applicable FMVSSs, or in the case of tires for motor vehicles other than passenger cars, have less than 2/32 inch tread depth and be imported solely for retreading.

I hope the information provided above is helpful to you. Should you have any further questions, please feel free to contact Mr. Myers at this address or at (202) 366-2992.

ID: nht95-1.79

TYPE: INTERPRETATION-NHTSA

DATE: February 27, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Mark Warlick -- Four Winds International Corporation

TITLE: None

ATTACHMT: ATTACHED TO 12/16/94 LETTER FROM MARK WARLICK TO PHILIP RECHT (OCC 10595)

TEXT: This responds to your letter asking how your company would certify compliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 302, Flammability of Interior Materials. You stated that your company manufactures motor homes and purchases interior mat erials from various vendors for these vehicles. These vendors provide you with letters stating that the materials comply with the FMVSS. You enclosed one such letter, which states that "We have tested the panel . . . . that was made with COR63-AX-40. We used the MVSS 302 flame test, and obtained a flame rating of 0.64 inches per minute." You ask whether this letter provides a sufficient basis for your company's certification of compliance with FMVSS No. 302.

Some background information would be helpful. As you know, since Standard 302 applies to motor homes and other vehicles, Four Winds, as the vehicle manufacturer, is required to certify compliance with the standard. In the event NHTSA were to find an ap parent noncompliance with Standard 302 when testing your vehicle to the requirements of the standard, Four Winds would be asked to show the basis for its certification that the vehicle complies with the standard. If in fact there is a noncompliance, Fou r Winds would be subject to civil penalties unless it can establish that it exercised "reasonable care" in the design and manufacture of the product (through actual testing, computer simulation, engineering analysis, or other means) to ensure compliance, and did not have reason to know that the vehicle or item of equipment did not in fact comply with the safety standards (49 U.S.C. 30112(b)(2)(A)). n1

n1 You should also note that, while the exercise of "reasonable care" may relieve a manufacturer of liability for civil penalties in connection with the manufacture and sale of noncomplying vehicles, it does not relieve a manufacturer of the responsib ility to notify purchasers of the noncompliance and remedy the noncompliance without charge to the purchasers (i.e., "recall" the noncomplying vehicle or equipment).

With regard to your specific question, we cannot tell you at this time whether Four Winds's reliance on a letter from its vendor would constitute "reasonable care" on the part of your company in making its certification to Standard 302. NHTSA is unable t o judge what efforts constitute "reasonable care" outside of the course of a specific enforcement proceeding. What constitutes "reasonable care" in a particular case depends on many factors, including such things as the limitations of current technology , the availability of test equipment, the size of the manufacturer, and above all, the diligence exercised by the manufacturer. In the situation you present, your vendor indicated that the burn rate of its material (0.64 inch per minute) is well within t he limits of Standard 302 (not more than four inches per minute). The difference between the actual performance of a material and the required performance is a factor NHTSA would consider in making a determination of whether a manufacturer exercised rea sonable care in making its certification. Another factor is whether the manufacturer should have determined whether the vendor's assurances were bona fide. Among other things, the expertise, reliability and experience of the vendor would be relevant fo r that issue.

I hope you find this information helpful. If you have any other questions, please contact Marvin Shaw of my staff at this address or by phone at (202) 366-2992.