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.

ID: nht95-1.8

TYPE: INTERPRETATION-NHTSA

DATE: January 4, 1995

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

TO: Dona B. Mann R.N., C.E.T.N. -- Fastrac Ideas, Inc.

TITLE: NONE

ATTACHMT: Attached to 11/14/94 letter from Dona B. Mann to NHTSA Chief Consul

TEXT: Dear Ms. Mann:

This responds to your letter of November 14, 1994, concerning the "Koze Kover" seat belt holder. Your letter explains that "(the) Koze Kover seat belt holder will hold the descending shoulder strap away from the jugular area of the neck. It is made from a tri-laminate material of polyester Kodel, 1/4 inch foam and urethane coated pack cloth. It is fastened by a hook and loop closure." You asked whether this product would be affected by any Federal Motor Vehicle Safety Standards issued by this agency.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the authority to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. The agency does not approve, certify or endorse any vehicles or equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet all applicable standards. The following represents our opinion based on the facts provided in your letter.

There is currently no Federal motor vehicle safety standard that would apply to your product. We do have a standard (Standard 209, Seat belt assemblies) that sets forth requirements for new seat belt assemblies. However, since your product would not be installed as part of a new seat belt assembly, the standard would not apply.

While no Federal motor vehicle safety standard applies to your product, your device is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements of 49 U.S.C. @@ 30118-30121 con cerning the recall and remedy of products with safety related defects. I have enclosed an information sheet that briefly describes those and other manufacturer responsibilities. In the event you or NHTSA determines that your product contains a safety-r elated defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

In addition, manufacturers, distributors, dealers, and motor vehicle repair businesses are subject to 49 U.S.C. section 30122, which prohibits them from installing the device if the installation "makes inoperative" compliance with any safety standard. I t appears unlikely from the nature of your product that it would be placed in vehicles by commercial businesses instead of consumers. However, if your product were to be installed by persons in those categories, they must ensure that its installation doe s not compromise the safety protection provided by the vehicle belt system. The prohibition of section 30122 does not apply to the actions of vehicle owners in adding to or otherwise modifying their vehicles or items of motor vehicle equipment.

Please note that the addition of any device to a vehicle's belt system raises possible safety concerns. With a device such as yours, the realigning of the shoulder belt could increase the likelihood that the wearer would twist toward the middle of the v ehicle, so that the person could be partially or completely unrestrained by the shoulder belt. In addition, if the device introduced excessive slack into the belt system, the occupant's head would be more likely to contact the vehicle interior. Finally , you should be aware that originally installed safety belts must meet the requirements of Standard No. 302, Flammability of Interior Materials. We encourage you to evaluate your product against the requirements of this standard to ascertain whether it would degrade the flammability performance of safety belts.

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

Sincerely, Philip R. Recht

ID: nht95-1.80

TYPE: INTERPRETATION-NHTSA

DATE: February 27, 1995

FROM: Bill Lieb -- Regional Sales Mgr., Restech

TO: Philip Recht, Office Of Chief Counsel, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO 4/10/95 LETTER FROM PHIL RECHT TO BILL LIEB (A43; STD. 108)

TEXT: Dear Mr. Recht,

I am a sales manager for Fel-Pro Chemical Products in Denver, CO. My company formulates epoxy adhesives for many different applications including the automotive industry.

We have formulated an adhesive that has been tested by a manufacturer of sealed beam automotive head lamps. The manufacturer was told by the current supplier of the adhesive that D.O.T. 'approval' is required prior to changing the adhesive used on the h ead lamps.

We have been referred to 'Motor Vehicle Safety Standard No. '108' for the appropriate test requirements on the adhesive. However this standard does not say anything about adhesives.

I then contacted Mr. Laubis in the Office of Vehicle Safety & Compliance, Enforcement Section. Mr. Laubis told me that D.O.T. does not test, approve, or specify any adhesives, but just verifies that the completed unit meets the prescribed standards, and passes the appropriate tests. Is this correct?

If this information is correct, would it be possible for you to provide me with something in writing to confirm this information? As of today, it is my word against the word of the other adhesive vendor, who say's that D.O.T. 'approval' is required. I need something to give to the manufacturer to confirm the information that I have, and to let them know that they are not locked into an old material if they want to change.

Thank you very much for your help.

ID: nht95-1.81

TYPE: INTERPRETATION-NHTSA

DATE: February 28, 1995

FROM: Chong D. Lee -- President, TMR International, Inc.

TO: Mr. Philip Recht -- Office of the Chief Counsel, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO 4/10/95 LETTER FROM PHILIP RECHT TO CHONG D. LEE (A43; STD. 208)

TEXT: Dear Mr. Recht:

The purpose of this letter is to request the opinion and advice of the National Highway Traffic Safety Administration on the legality and potential legal risks of an automotive product intended to increase occupant safety.

Our company, TMR International, Inc., plans to import, for North American sale, an aftermarket driver's side airbag. The intent is to offer this product as a safety improvement for customers whose cars and trucks were manufactured without an airbag as o riginal equipment. The airbag comes in assembly with a steering wheel and is intended for installation as a unit in replacement of the vehicle's OEM steering wheel.

We are requesting the opinion of NHTSA as to; a) Whether such a product as described is legal for U.S. sale; b) Legal procedures, testing or submissions required to certify the product for U.S. sale; c) Applicable Federal law (e.g., FMVSS 208) d) Actions or registrations required to reduce legal risks; e) Any other information of which we should be aware.

Thank you for prompt attention. We look forward to bringing to market, as soon as possible, this important safety improvement product.

ID: nht95-1.82

TYPE: INTERPRETATION-NHTSA

DATE: March 1, 1995 EST

FROM: Marshall S. Reagle -- Sate-Lite Mfg. Co.

TO: Pat Boyd -- NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO 4/17/95 LETTER FROM PHILIP RECHT TO MARSHALL S. REAGLE (A43; STD. 108)

TEXT: Dear Pat:

As I stated in my telephone conversation on Monday, February 27, 1995, I would send you a confirming letter of my interpretation of FMVSS 108 and our discussion regarding retro-reflectors.

You stated that any retro-reflector would have to be made in intervals of 4 inches. The center or 0 degree would be at the two inch mark and the reflective reading would have to comply with S5.7.2.1 (b) and (c) of FMVSS 108.

Also, that regardless of size, 4, 8, or 12 inches in length, your testing requirements and standards are strictly for a 4 inches segment, (ie. you would mask off any area of a retro-reflector other than 4 inches and test the segment alone.) The width of the retro-reflector has not been established as with sheeting, therefore, as long as the photometric requirements are achieved, the width is a variable.

Below is a sketch of how NHTSA is asking the retro-reflector to function:

TOP VIEW

45 degrees L 30 degrees L 0 degrees 30 degrees R 45 degrees R

45L-30L, 30R-45R 30L-0-30RRED 75 MILLICANDELAS/LUX RED 300 MILLECANDILAS/LUX CLR 300 " " CLR 1250 " "

Please review this letter and sketch with legal counsel as soon as possible, we would like to begin work on this project immediately.

Thank you for your time and efforts in this. I appreciate all of your input.

ID: nht95-1.83

TYPE: INTERPRETATION-NHTSA

DATE: March 2, 1995

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

TO: Steve Anthony -- Product Manager, Structural Composites Industries

TITLE: None

ATTACHMT: ATTACHED TO 11/15/94 LETTER FROM STEVE ANTHONY TO MARVIN SHAW (OCC 10495)

TEXT: This responds to your inquiry about Federal Motor Vehicle Safety Standard (FMVSS) No. 304, Compressed Natural Gas (CNG) Fuel Container Integrity, which takes effect on March 27, 1995. I apologize for the delay in our response. You stated that you manuf acture CNG containers for OEMs. You further stated that some of your customers have requested that containers they purchase prior to FMVSS No. 304's effective date be labeled with a statement that they comply with FMVSS No. 304. Specifically, you asked whether your containers could be labeled with the statement "This CNG container meets the requirements of DOT FMVSS No. 304 effective March 27, 1995" or "DOT effective March 27, 1995." As explained below, prior to the effective date, you are prohibited from labeling a container with information that could appear to be a certification to the FMVSS.

In the preamble to the final rule establishing FMVSS No. 304, NHTSA stated that

a manufacturer may not certify a container as meeting the equipment standard until the standard goes into effect. Under the Vehicle Safety Act, a certification is a statement that a vehicle or item of equipment meets all applicable Federal Motor Vehicle Safety Standards that are then in effect. Therefore, until a standard is effective, manufacturers may not certify compliance with it (59 FR 49010, 49020 September 26, 1994).

Based on this discussion, you acknowledge that it would be impermissible for a manufacturer to include the symbol DOT on CNG containers manufactured prior to March 27, 1995. Nevertheless, you wish to specify information on the container that the contain er will comply with the soon to be effective FMVSS.

As discussed in our September 1994 notice, a manufacturer may not certify a container as meeting the equipment standard until the standard goes into effect. Any label on a product about meeting a standard tends to create the appearance of a certification . It is therefore our opinion that, along with not using the symbol DOT, any such statement on a container label must affirmatively indicate that (1) no standard applies to the container, and (2) the statement is not a certification.

With these considerations in mind, your suggestion to include the statement "This CNG container meets the requirements of DOT FMVSS No. 304 effective March 27, 1995" would not be permissible because it might be read as constituting a certification. More over, the symbol DOT may not be included in your statement because its inclusion might be misinterpreted as implying that the container has been certified to an FMVSS that is in effect, since use of the DOT symbol is the usual method by which certificati ons are made.

You may, however, label a container with the following statement: "This CNG container would comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) 304, that takes effect on March 27, 1995. However, since this container was manufac tured before the effective date of FMVSS 304, it cannot be certified to comply with that standard. No FMVSS applies to the container."

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: nht95-1.84

TYPE: INTERPRETATION-NHTSA

DATE: March 2, 1995

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

TO: Steve Brooks -- General Manager, IAD West Coast, Inc.

TITLE: None

ATTACHMT: ATTACHED TO 11/1/94 LETTER FROM STEVE BROOKS TO JOHN WOMACK (OCC 10473)

TEXT: This replies to your letter of November 1, 1994, to John Womack, former Acting Chief Counsel. IAD West Coast ("IAD") is converting a Subaru panel van from internal combustion to electric drive. The vehicle is currently a prototype but "will be modified in the state of California, to OEM build standards." You have asked for help "with the definition of crash testing for front and side impact for the vehicle for current and future production, also with the requirement for dual air bags if necessary."

Because we did not understand what you meant by "definition", Taylor Vinson of this office spoke with you on January 24, 1995. He learned that IAD is engineering the prototype for production by another company, and that your question related to the exte nt of crash testing that is required before production. He then explained to you that there is no legal requirement that prototype vehicles be crashed, but that production vehicles must conform with the performance requirements of standards with crash d emonstration procedures, and that the manufacturer's certification of compliance may be based upon good faith surrogates to crash testing such as computer simulation, engineering studies, and mathematical calculations. The Department of Transportation, however, tests in the manner specified in a standard, and if there is a test failure, will ask the manufacturer to supply the data upon which it based its certification.

Your letter also asks about "the requirement for dual air bags if necessary in the future." Manufacturers of light trucks will be required to install dual air bags in not less than 80% of vehicles produced between September 1, 1997, and September 1, 1998 , and in 100% of production from September 1, 1998, on.

Finally, you have asked whether we have information on approach and departure angles. These are not part of the FMVSS, and are established by the manufacturer in designing a vehicle.

I hope that this answers your questions.