Interpretation ID: nht79-3.8

DATE: 10/04/79

FROM: FRANK BERNDT -- NHTSA; SIGNATURE BY STEPHEN P. WOOD

TO: Clanahanm, Tanner, Downing and Knowlton

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your letter of July 24 and your telephone conversation with Ms. Debra Weiner of my office in which you inquired about the Federal law applicable to the manufacture and use of auxiliary fuel tanks. You indicated that your client will be in the business of manufacturing auxiliary fuel tanks for use in passenger vehicles and on farm equipment. Most of the tanks will apparently be designed for mounting on the vehicles without connection to the vehicle fuel system, although some will be built with such connections.

Below is a discussion of questions numbered 1 and 6 in your letter, as well as a general discussion of the law applicable to the installation of both types of auxiliary tanks. Following is a brief discussion of the questions numbered 2-5 in your letter.

The National Traffic and Motor Vehicle Safety Act, as amended 1974, (the Act) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards applicable either to entire motor vehicles or to equipment for installation in motor vehicles. Agricultural equipment is not encompassed by the term "motor vehicle" because Congress clearly did not intend that such equipment be within the coverage of the Act. Therefore, none of the Federal motor vehicle safety standards are applicable to farm equipment and the rest of this letter will be concerned only with passenger vehicles.

Safety Standard No. 301-75, Fuel System Integrity, is a vehicle standard which applies to certain vehicles, including passenger cars, that use fuel with a boiling point above 32 degrees F. The standard applies to completed vehicles rather than to fuel tanks or other fuel system components and thus is inapplicable to the manufacture of auxiliary fuel tanks.

Despite the inapplicability of Safety Standard No. 301-75 to their manufacture, auxiliary fuel tanks of either type you have mentioned must be designed and manufactured for safety. As a manufacturer of auxiliary fuel tanks, your client would be subject to the defects responsibility provisions of the Act (section 151 et seq). Upon discovery of a safety-related defect by the Secretary of Transportation, the NHTSA Administrator, or the manufacturer himself, your client, as a manufacturer, would be required to notify vehicle owners, purchasers, and dealers and remedy the defect.

A person who installs an auxiliary fuel tank in a new vehicle prior to its first purchase in good faith for purposes other than resale would be a vehicle alterer under NHTSA regulations if that person modified the vehicle during the installation. As an alterer, your client would be required by 49 CFR 567.7 to affix an additional label to the vehicle stating that, as altered, the vehicle conforms to all applicable Federal motor vehicle safety standards -- including Safety Standard No. 301-75. Should a noncompliance or safety-related defect be discovered in such a vehicle, as a result of the modification, your client would be responsible for notifying vehicle owners and remedying the noncompliance or defect.

If your client connects auxiliary gasoline tanks to used passenger vehicles, he or she would not be required to attach an alterer's label. However, section 108(a)(2)(A) of the Act would apply. Section 108(a)(2)(A) provides in relevant part that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowlingly 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. . .

Thus, if your client added an auxiliary tank of either type mentioned in your letter to a used passenger vehicle manufactured in accordance with Safety Standard No. 301-75 and other standards, and in the process knowingly rendered inoperative the compliance of the fuel system or other systems, he or she would have violated section 108(a)(2)(A).

For example, if your client mounted a tank on the exterior of a vehicle, without connection to the fuel system, and one of the mounting bolts caused the existing fuel system to leak in an amount in excess of that permitted by Safety Standard No. 301-75, he would be in violation of section 108(a)(2)(A). Depending upon the way in which he attached the tank to the vehicle or to its fuel system your client could also violate section 108(a)(2)(A) with respect to other safety standards including, but not limited to, the Bumper Standard (49 C.F.R. 581), and Standard No. 108, Lamps, Reflective Devices, and Associated Equipment.

Questions 2, 3, and 4.

According to the Federal Highway Administration which administers the Federal Motor Carrier Safety Regulations, they apply only to motor carriers and not to passenger vehicles that are not involved in interstate commerce. If you have further questions you might wish to contact the Federal Highway Administration directly.

Question 5. Do 49 C.F.R. 171 et seq. which regulate the transportation of certain hazardous materials apply to the private carrying of such materials on passenger vehicles or farm equipment?

These regulations are administered by the Research and Special Programs Administration, which informs me that the Federal regulations applying to hazardous materials concern the transportation of hazardous materials in commerce. Thus far, the regulations have not been applied to the private carrying of hazardous materials, such as gasoline, in a passenger vehicle or farm machine. If you have further questions you might wish to contact the Research and Special Programs Administration.

In conclusion, please note that, in general, the National Highway Traffic Safety Administration discourages the use of auxiliary fuel tanks of any kind because of the grave dangers of fire and explosion posed by their improper manufacture or installation. In the near future this agency will be making a press release warning consumers of these hazards and discouraging them from using auxiliary fuel tanks.

I hope that you will find this response helpful and that you have not been inconvenienced by our delay in sending it to you.

SINCERELY,

CLANAHAN, TANNER, DOWNING AND KNOWLTON

July 24, 1979

Steven Wood, Esq. Office of Chief Counsel NHTSA

Re: Specifications for the Manufacture and Use of Auxiliary Fuel Tanks

Dear Mr. Wood:

This letter is an inquiry regarding the requirements and specifications of the Code of Federal Regulations for auxiliary fuel tanks. The fuel tanks with which we are concerned are those which could be mounted on passenger vehicles and farm equipment. Such vehicles would not be involved in interstate commerce.

I talked with Chuck Keiper in the Denver Office of the NHTSA and he recommended that I contact you concerning the following inquiries. Our questions concern both the applicability of the particular sections of the Code of Federal Regulations enumerated below and whether any other sections are applicable to the manufacture and use of the auxiliary fuel tanks described above. Would you please submit to us your opinions on the following:

1. Does the Federal Motor Vehicle Safety Standard #301 contained in 49 C.F.R. @571.301-75 apply to auxiliary fuel tanks not connected with the fuel system?

2. How do the regulations define "properly mounted fuel tank or tanks" as found in 49 C.F.R. @ 392.51?

3. What are the manufacturing specifications for such fuel tanks referred to in 49 C.F.R. @ 392.51?

4. Do 49 C.F.R. @ 393.65-.67, concerning the construction of liquid fuel tanks, apply to those auxiliary fuel tanks as specified above?

5. Do 49 C.F.R. @ 171 et seq. which regulate the transportation of certain hazardous materials apply to the private carrying of such materials on passenger vehicles or farm equipment?

6. Are there any other regulations of the National Highway Traffic Safety Administration or Department of Transportation which would apply to the manufacture and use of such auxiliary fuel tanks?

Mr. Keiper indicated that the NHTSA was considering new regulations regarding auxiliary fuel tanks. Any information concerning such regulations also would be helpful.

Our client is concerned with complying with the regulations as they now exist. Your response to the above inquiries should assist in this regard and will be appreciated. If there is any other information which would be helpful, please contact me at your convenience.

Chuck Reeves Law Clerk