Interpretation ID: nht80-2.48

DATE: 06/09/80

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Honorable John P. Murtha, House of Representatives

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your recent request for information on behalf of your constituent, Mr. Steve Zufall. Mr. Zufall is interested in the specifications applicable to the manufacture of propane tanks to be used in the conversion of gasoline-powered vehicles. He asked how to obtain "numbers" to be listed on the tanks and mentioned the designation "4VA-240", which someone had discussed with him.

The enclosed discussion sets forth the implications under Federal law of converting gasoline-powered vehicles to use propane, as well as a general discussion of auxiliary fuel tanks. The applicable statutory authority is the National Traffic and Motor Vehicle Safety Act, as amended 1974 (15 U.S.C. 1381, et seq.). The discussion first looks at the Federal Motor Vehicle Safety Standard (FMVSS) applicable to fuel systems and then at the defect responsibilities that might be involved. Next, a brief mention is made of the possibility of product liability suits.

There are no requirements under the Federal motor vehicle safety regulations that specify "numbers" which must be stamped on propane gas tanks. The designation mentioned by Mr. Zufall, "4VA-240", is actually "4BA-240" and refers to specifications under the Bureau of Motor Carrier Safety regulations relating to fuel systems on commercial vehicles or to tanks used for shipment of propane gas in interstate commerce. These regulations would not apply, however, to tanks or fuel systems on private vehicles. For further information regarding these regulations, Mr. Zufall should contact Mr. W. R. Fiste of the Bureau of Motor Carrier Safety (202-426-0033).

ENC.

MOTOR VEHICLE SAFETY

The Federal Implications of Installing Auxiliary Fuel Tanks and Of Converting Fuel Systems to Use Alternate Fuels

Before getting into the legalities of these installations and conversions, I want to stress my concern about the danger which these practices may pose to the occupants of vehicles with are altered and even to occupants of other vehicles. These practices may seriously increase the risk of fire if these altered vehicles are involved in accidents. Even where there are no legal liabilities, this threat to safety may be present.

The Act authorizes the National Highway Traffic Safety Administration (NHTSA) to issue FMVSS's applicable either to entire vehicles or to equipment for installation in vehicles. The only standard relevant to this discussion, FMVSS 301-75, is a vehicle standard. It applies to vehicles which use fuel with a boiling point above 32 degrees I. and which are (1) passenger cars, or (2) multipurpose passenger vehicles, trucks, or buses with a gross vehicle weight rating (GVWR) of 10,000 pounds or less or (3) schoolbuses with a GVWR greater than 10,000 pounds. If the need were found, a standard could also be issued for fuel systems designed for installation in new or used vehicles.

Under section 108(a)(1)(A) and (A)(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. In addition, 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 CFR 567.7 and Preamble to 37 F.P. 22800, October 25, 1972). The only alterations that a person may make prior to the first sale of a vehicle without being considered a manufacturer subject to the recertification requirements are minor finishing operations or the addition, substitution or removal of readily attachable components such as mirrors, tires, or rim assemblies. (49 CFR 567.7).

Should a noncompliance be discovered in a recertified vehicle, 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). The civil penalty imposed could be up to $ 1000 for each violation of an applicable FMVSS. (Section 109 of the Act).

With respect to FMVSS 301, 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 or replacement tank added by an alterer must meet them also.

If the alterer converts the gasoline fuel system to a propane fuel system, the vehicle must still be recertified. However, FMVSS 301-75 would cease to be a factor since the standard would no longer apply to the vehicle. Propane has a boiling point below 32 degrees F. and FMVSS 301-75 applies only to vehicles using fuel with a higher boiling point. Finally, if the alterer converts a gasoline-powered vehicle so that it is both gasoline-powered and propane-powered, he must recertify the entire vehicle as complying with all applicable standards, including FMVSS 301-75.

After the first purchase of a vehicle for purposes other than resale, tampering with the vehicle is limited by section 108(a)(2)(A). That section 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 a tamperer adds an auxiliary gasoline tank to a vehicle manufactured in accordance with FMVSS 361-75, 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). (N.P. 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.

If a tamperer removes the original gasoline tank and installs a replacement one, section 108(a)(2)(A) is violated unless the performance (as defined by FMVSS 301-75) of the replacement tank equals or exceeds the performance of the original tank. To determine the relative performance of the replacement tank, a number of issues would have to be examined, including the quality of the replacement tank, the connection of the tank with the filler pipe and fuel lines to the fuel pump, and the location of the tank with respect to surrounding vehicle structures. For example, if unlike the original tank, the replacement tank were sufficiently near surrounding vehicle structures so that those structures might be pushed against or into the replacement tank and cause a rupture in a collision, the performance of the fuel system would have been impermissibly reduced.

There is no liability under section 108(a)(2)(A) in connection with FMVSS 301-75 if the tamperer converts a used gasoline-powered vehicle into a propane-powered vehicle. Modifying safety systems of a vehicle being converted from one vehicle type to another would not violate section 108(a)(2)(A) so long as the modified systems complied with the FMVSS's that would have been applicable to the vehicle had it been originally manufactured as the vehicle type to which it is being converted. For example, in converting a 1978 gasoline-powered car to a propane-powered car, the converter would not be covered by FMVSS 301-75 since that standard did not apply to 1978 propane-powered cars.

The case of a tamperer who modifies a used gasoline-powered vehicle so that it has a dual gasoline/propane system would be essentially the same as that of the person who adds an auxiliary gasoline tank. If the tamperer knowingly reduces the performance of the gasoline system in adding the propane system, he or she has violated section 108(a)(2)(A).

As to safety defect responsibilities under sections 151 et seq. of the Act, persons who alter new vehicles by installing auxiliary or replacement gas tanks or by converting a gasoline fuel system to a propane fuel system as well persons who produce the equipment being installed are fully subject to those responsibilities. Sections 151 et seq. provide that manufacturers of motor vehicles and motor vehicle equipment must notify owners of vehicles and equipment with safety-related defects and remedy those defects free of charge. As explained earlier the term "manufacturer" includes persons who alter new vehicles by doing more than simply adding, substituting, or removing readily attachable components or performing minor finishing operations. Since alterations involving installation of auxiliary replacement gas tanks or conversion of gasoline systems to propane systems are more substantial, persons who make those alterations are manufacturers.

Thus the alterer who installs auxiliary or replacement tanks or makes propane conversions is responsible for safety defects in the installation of the tanks and propane systems. Installation defects include defects in the method and location of installation.

Under 49 CFR Part 579, the auxiliary and replacement tanks and the propane systems would all be treated as "replacements equipment." Part 579 places the responsibility for safety defects in the performance, construction components, or materials, of replacement equipment on the manufacturer of such equipment. Therefore, the manufacturer who produces auxiliary or replacement tanks or propane systems, as distinct from the alterer who installs such equipment, would be subject to these responsibilities for production defects. A person who both produces such equipment and installs it in new vehicles prior to their delivery to the ultimate consumer would be subject to responsibilities for safety defects stemming from both production and installation of the equipment.

Under section 108(a)(1)(D) and 109(a), 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.

Tamperers have no safety defect responsibilities for their tampering. As noted above, only manufacturers of motor vehicles or motor vehicle equipment are subject to sections 151 et seq. Since the term "manufacturer" is interpreted to refer to those who produce, assemble or import new vehicles or equipment and since tamperers, by definition, deal with used vehicles only, tamperers are not manufacturers.

Finally, there is the larger and more far reaching question of the liability of the alterers, tamperers, and manufacturers in tort. Whether or not these parties are liable under the Act for their actions, they may well be liable in tort. Both alterers and tamperers may be liable for the manner and location in which they install auxiliary or replacement gasoline tanks or propane systems in vehicles. Likewise, the manufacturers of these items of motor vehicle equipment may be liable for their design, materials, manufacture or performance. These persons may wish to consult a local lawyer on their liability in tort.

I hope that you will find this discussion helpful. If you have any further questions I will be happy to answer them.

Frank Berndt Chief Counsel