Interpretation ID: nht79-3.10

DATE: 08/27/79

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Mr. Scott Lyford, Esq.

TITLE: FMVSS INTERPRETATION

TEXT: This responds to the questions you raised with Ms. Debra Weiner of my office when you telephoned on June 4, 1979, on behalf of your clients who intend to manufacture auxiliary gasoline tanks, to sell the tanks as part of a universal kit with all parts necessary for installation, and in some instances to install the tanks in vehicles. You inquired as to the meaning of the word "integrity" as used in Federal Motor Vehicle Safety Standard (FMVSS) No. 301-75 (49 CFR 571.301-75) and the applicability of the standard to your clients' proposed activities. You also inquired as to the meaning of the phrase "render inoperative" as used in section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act, as amended in 1974 (the Act) and its applicability to your clients' proposed activities.

The National Traffic and Motor Vehicle Safety Act, as amended in 1974, (the Act) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal Motor Vehicle Safety Standards (FMVSS's) applicable either to entire vehicles or to equipment for installation in vehicles. FMVSS 301-75, Fuel System Integrity, is a vehicle standard that applies to vehicles which use fuel with a boiling point above 32 degrees F. and which are (1) passenger cars or (2) multi-purpose passenger vehicles, trucks or buses with a gross vehicle weight rating (GVWR) of 10,000 pounds or less, or (3) school buses with a GVWR greater than 10,000 pounds. The word "integrity" as used in FMVSS 301-75, refers to the fact that compliance with the standard requires that fuel spillage from a vehicle subjected to a fixed or moving barrier crash not exceed the limits established by FMVSS 301-75, S5.5 and S5.6.

Since FMVSS 301-75 is only a vehicle standard and does not specify performance standards for fuel tanks, it does not directly apply to your clients' proposed manufacturing activities. However, as will be discussed later, it does apply when an auxiliary fuel tank is installed in a vehicle by either the manufacturer of the tank or other persons specified in the Act.

Despite the lack of a specifically applicable safety standard auxiliary fuel tanks must be designed and manufactured for safety. The defect responsibility provisions of the Act (sections 151-153) authorize the Secretary of Transportation (or his delegate the NHTSA Administrator) to make determinations as to whether items of motor vehicle equipment contain defects which relate to motor vehicle safety. If he finds that a safety-related defect exists, he may compel the manufacturer of the equipment to remedy the defect and notify purchasers of the hazard. In addition, these provisions also require that a manufacturer who discovers a safety-related defect in his product notify the Secretary of Transportation (or NHTSA Administrator) and then provide notification and remedy to purchasers. Under section 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 $ 1,000 per violation.

Since auxiliary gasoline tanks are items of motor vehicle equipment, as defined in section 102(4) of the Act, your clients as manufacturers of such equipment would be required to provide notification and remedy should their auxiliary gasoline tanks prove to be defective in design, materials, manufacture, or performance. (See 49 CFR Part 597).

FMVSS 301-75 would apply to your client's installation of auxiliary fuel tanks in new motor vehicles. Under section 108(a)(1)(A) and (b)(1) of the Act, new motor vehicles must comply with the safety standards applicable to them until they are first purchased by someone, for purposes other than resale. The purchase is completed when the vehicle is delivered to the ultimate consumer. Any person who, prior to the first sale of a vehicle for purposes other than resale, alters that vehicle by making more than minor finishing operations, is required by 49 CFR 567.7 to recertify the entire vehicle as complying with all safety standards applicable to it. Should a noncompliance be discovered as a result of an alterer's modification, 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).

Under these provisions, your clients would be considered to be alterers if they installed an auxiliary fuel tank in a new vehicle prior to the vehicle's first purchase for purposes other than resale, and they would be required to recertify the vehicle as complying with applicable safety standards, including FMVSS 301-75. With respect to FMVSS 301-75, the effect of the alterer provisions is that not only must the original gasoline fuel system meet the performance requirements encompassed by the standard but that any auxiliary tank added by an alterer must meet them also.

It should also be noted that the defect responsibilities imposed by Section 151 et seq., mentioned earlier with respect to the defective design, composition, manufacture or performance of auxiliary tanks also apply to safety defects in the installation of such tanks in new vehicles. Installation defects include defects in the method and location of installation. Acting, as both manufacturers and installers of the tanks, your clients would be subject to responsibilities for safety defects stemming from both the production and installation of the tanks.

FMVSS 301-75 as well as the "render inoperative" provisions of section 108(a)(2)(A) of the Act would apply to your clients' activities in installing auxiliary gasoline tanks in used vehicles. After the first sale of a vehicle for purposes other than resale, tampering with the vehicle (referred to here as a used vehicle) is limited by section 108(a)(2)(A). 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 ....

The words "render inoperative," in the context of section 108(a)(2)(A), in essence prohibit certain listed entities and persons from knowingly removing, disconnecting or reducing performance of equipment or elements of design installed on a vehicle in accordance with applicable safety standards.

A listed person or entity found to have violated section 108(a)(2)(A) would be liable for a civil penalty of up to $ 1,000 for each violation.

Should your clients begin producing auxiliary gasoline tanks they would be encompassed by the term "manufacturer" as that term is used in section 108(a)(2)(A) and defined in section 102(5) of the Act. Therefore, if your clients added an auxiliary gasoline tank to a used vehicle manufactured in accordance with FMVSS 301-75 and in the process knowingly reduced the performance of the fuel system originally installed in the motor vehicle, they would be deemed in violation of section 108(a)(2)(A). Such reduction of performance could occur for example, if the 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, or 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.

I hope you will find this response helpful.