ID: 9457

Mr. Matt Gerrity
7624 Rohrer Dr.
Downers Grove, IL 60516

Dear Mr. Gerrity:

This responds to your letter, forward to us on December 9, 1993, by Representative Harris W. Fawell, regarding the removal of the air bag in your 1990 Coupe de Ville. Because you have a physical handicap, you had your vehicle modified by the installation of a hand control system over the steering wheel. You are concerned that, in the event the air bag should activate, the steering device would probably pop off causing serious injury. You also stated that dealers and other mechanics are reluctant to disconnect the air bag because of Federal law.

As discussed below, in certain limited situations, the National Highway Traffic Safety Administration (NHTSA) has exercised its discretion in enforcing our regulations to provide some allowance when making modifications to accommodate the special needs of persons with disabilities. While the disconnection of an air bag by a dealer or motor vehicle repair business would ordinarily be a violation of Federal law, this is to advise you that this agency would not institute enforcement proceedings against a dealer or repair business that disconnected the driver side air bag in your vehicle. If you show this letter to your dealer or mechanic, you should be able to get this work performed.

By way of background information, NHTSA is authorized to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and new items of motor vehicle equipment. Manufacturers are required by the National Traffic and Motor Vehicle Safety Act (Safety Act) to certify that their products conform to our safety standards before they can be offered for sale. Manufacturers, distributors, dealers and repair businesses modifying certified vehicles are affected by 108(a)(2)(A) of the Safety Act. It prohibits those businesses from knowingly rendering inoperative any elements of design installed on a vehicle in compliance with a safety standard.

Removal or disconnection of an air bag by any of the named commercial entities would violate the "render inoperative" prohibition, since air bags are installed to comply with Federal Motor Vehicle Safety Standard No. 208, Occupant Crash Protection. However, in certain situations where a vehicle must be modified to accommodate the needs of a particular disability, NHTSA has been willing to consider any violation of 108(a)(2)(A) a purely technical one justified by public need, and indicated that it would not institute enforcement proceedings. We will take this position for the specific factual situation cited above.

We caution, however, that only necessary modifications should be made. For example, S4.5.2 of Standard No. 208 requires a readiness indicator for an air bag system which is clearly visible from the driver's seating position. After the air bag is removed, this indicator would show that the air bag system is not operative. The readiness indicator should not be modified, so other drivers who may expect an air bag will be aware that the air bag is not functional.

I would also like to caution your dealer or mechanic to contact the vehicle manufacturer concerning the proper procedure for any air bag disconnection as this procedure could cause it to deploy and injure the mechanic. As a final caution, I note that the purpose of the "render inoperative" provision is to ensure, to the degree possible, that current and subsequent owners and users of a vehicle are not deprived of the maximum protection afforded by the vehicle as newly manufactured. Your letter states that you would have the air bag reconnected before selling the car. I urge you to have this work performed so that future users of the vehicle will have the protection the air bag affords.

I hope you find this information 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,

John Womack Acting Chief Counsel

cc: Representative Harris W. Fawell United States House of Representatives 2342 Rayburn House Office Building Washington, DC 20515-1313

ref:208 d:12/30/93

ID: nht93-9.29

DATE: December 30, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA; Signature by Kenneth N. Weinstein

TO: Matt Gerrity

COPYEE: Harris W. Fawell -- U.S. Representative

TITLE: None

ATTACHMT: Attached to letter dated 12/9/93 from Harris W. Fawell to Howard Smolkin (OCC 9457); Also attached to letter from Matt Gerrity to Howard Smoklin

TEXT:

This responds to your letter, forward to us on December 9, 1993, by Representative Harris W. Fawell, regarding the removal of the air bag in your 1990 Coupe de Ville. Because you have a physical handicap, you had your vehicle modified by the installation of a hand control system over the steering wheel. You are concerned that, in the event the air bag should activate, the steering device would probably pop off causing serious injury. You also stated that dealers and other mechanics are reluctant to disconnect the air bag because of Federal law.

As discussed below, in certain limited situations, the National Highway Traffic Safety Administration (NHTSA) has exercised its discretion in enforcing our regulations to provide some allowance when making modifications to accommodate the special needs of persons with disabilities. While the disconnection of an air bag by a dealer or motor vehicle repair business would ordinarily be a violation of Federal law, this is to advise you that this agency would not institute enforcement proceedings against a dealer or repair business that disconnected the driver side air bag in your vehicle. If you show this letter to your dealer or mechanic, you should be able to get this work performed.

By way of background information, NHTSA is authorized to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and new items of motor vehicle equipment. Manufacturers are required by the National Traffic and Motor Vehicle Safety Act (Safety Act) to certify that their products conform to our safety standards before they can be offered for sale. Manufacturers, distributors, dealers and repair businesses modifying certified vehicles are affected by S108(a)(2)(A) of the Safety Act. It prohibits those businesses from knowingly rendering inoperative any elements of design installed on a vehicle in compliance with a safety standard.

Removal or disconnection of an air bag by any of the named commercial entities would violate the "render inoperative" prohibition, since air bags are installed to comply with Federal Motor Vehicle Safety Standard No. 208, Occupant Crash Protection. However, in certain situations where a vehicle must be modified to accommodate the needs of a particular disability, NHTSA has been willing to consider any violation of S108(a)(2)(A) a purely technical one justified by public need, and indicated that it would not institute enforcement proceedings. We will take this position for the specific factual situation cited above.

We caution, however, that only necessary modifications should be made. For example, S4.5.2 of Standard No. 208 requires a readiness indicator for an air bag system which is clearly visible from the driver's seating position. After the air bag is removed, this indicator would show that the air bag system is not operative. The readiness indicator should not be modified, so other drivers who may expect an air bag will be aware that the air bag is not functional.

I would also like to caution your dealer or mechanic to contact the vehicle manufacturer concerning the proper procedure for any air bag disconnection as this procedure could cause it to deploy and injure the mechanic. As a final caution, I note that the purpose of the "render inoperative" provision is to ensure, to the degree possible, that current and subsequent owners and users of a vehicle are not deprived of the maximum protection afforded by the vehicle as newly manufactured. Your letter states that you would have the air bag reconnected before selling the car. I urge you to have this work performed so that future users of the vehicle will have the protection the air bag affords.

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

ID: aiam1528

Dear Mr. Craig: This is in reply to your letter of May 30, 1974, describing you pontoon boat trailer and asking if it is permissible to offer a '. . . clamp on light bar at the rear along with front side marker amber lighting for installation forward on the pontoon boat itself?' As you point out 'This would mean that the user would have to install the lighting each time a rig is put on the highway.'; Your proposed installation arrangement does not appear to be i conformance with paragraph S4.3.1 of Federal Motor Vehicle Safety Standard No. 108, which requires that lighting and reflective devices be *securely* mounted on a rigid part of the *vehicle*. If the cargo partially obscures the visibility of the required lighting devices on the trailer, State regulations would govern any additional, temporarily attached lighting devices on the cargo.; We trust this answers your question. Sincerely, Robert L. Carter, Associate Administrator, Motor Vehicl Programs;

ID: nht73-1.26

DATE: 04/23/73

FROM: AUTHOR UNAVAILABLE; E. T. Driver; NHTSA

TO: Hyster Company

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of March 1, 1973, to Mr. J. E. Leveath of this Office, concerning the lighting requirements for special purpose dollies and trailers as manufactured by your company.

The first vehicle in question, which you identify as a helper dolly and(Illegible Word) on page 2 of your letter, would be classified as a trailer converter dolly for purposes of determining conformance to the Federal Motor Vehicle Safety Standards (FMVSS). As such, the vehicle is excepted from the lighting requirements specificed in FMVSS No. 108 (copy enclosed). The vehicle would, however, be subject to the applicable lighting requirements of the Bureau of Motor Carrier Safety (BMCS) regulations when it is towed alone (without an attached(Illegible Word) in interstate commorce.

The second and third vehicles in question, as shown on pages 3 and 4 of your letter, would be classified as trailers for purpose of determining conformance to FMVSS No. 108. As such, the vehicles must be equipped with lighting devices as specified in the standard. If the vehicles are 80 or more inches in overall width, front clearance lamps, installed as specified in Table II of the standard, are required. An interpretation of the term "overall width" is provided on page S 108-5 of the standard.

The requirements of FMVSS No. 108 are applicable to each new vehicle (truck, bus, trailer, etc.) as manufactured and offered for sale. The possibility that one vehicle may be operated in combination with another in no way alters the specified requirements. Vehicles operating in combination on the public highway are subject to regulations of the individual States and to BMCS regulations (for vehicles engaged in interstate commerce). BMCS regulations permit deactivation of lamps which are obscured when vehicles are operated in combination, but temporary removal of such lamps is prohibited (see 49 CFR, Sections 390.1 through 390.7, 393.14, 393.15, 393.25 and 393.26).

Should you desire additional information concerning the requirements of FMVSS No. 106, please do not hesitate to contact me. For further information on the BMCS regulations, I would suggest that you contact Mr. W. R. Fiste, Chief, Regulations Division, Bureau of Motor Carrier Safety, Federal Highway Administration, 400 Seventh Street, S. W., Washington, D. C. 20590.

Sincerely,

MArch 1, 1973

Edward Leyseth National Traffic Safety Administration Department of Transportation

Dear Mr. Leyseth: We build heavy duty low bed trailers and related dollies and booster axles. I need some information concerning legal definitions of some of our vehicles and lighting equipment required by Federal Standard No. 108.

The first vehicle in question is a helper dolly, which is not a converter dolly because of load transfer and kingpin, but is similar in appearance and use (see page 2). What is the legal definition of this vehicle and what lighting equipment is required? What lighting is required by a converter dolly?

also build beam frame trailers designed for hauling large machinery, usually tracked, which straddle the frame to keep the load low and the trailer light (see page 3). Does this trailer require a front clearance light directly in front of the undercarriage? The trailer shown is a folding gooseneck type and is 5 ft. wide across the frame.

Next is a booster dolly, which is a hydraulically loaded trailing axle or axles articulated at the rear of the trailer. The frame comes to a point similar to tow type trailer tongue at the point of articulation (see page 4). What is the legal definition of this unit? Are front side marker and clearance lights required?

Also, can lights be temporarily removed when another vehicle in a combination prevents their visibility (e.g., the rear lights on a trailer are removed when a helper dolly is attached and replaced when the trailer is pulled alone)? Any information you could give me would be greatly appreciated.

Very truly yours,

HYSTER COMPANY --

Jim Glover,

Project Engineer

ID: nht90-1.17

TYPE: INTERPRETATION-NHTSA

DATE: JANUARY 16, 1990

FROM: SATOSHI NISHIBORI -- VICE PRESIDENT, INDUSTRY-GOVERNMENT AFFAIRS

TO: ROBERT F. HELLMUTH -- DIRECTOR, OFFICE OF VEHICLE SAFETY COMPLIANCE, NHTSA

TITLE: NEF-31 GEN/NCI 3092

ATTACHMT: ATTACHED TO LETTER DATED 3-15-90 TO SATOSHI NISHIBORI FROM STEPHEN P. WOOD; [A35 REDBOOK; STD. 120]

TEXT: This responds to your October 31, 1989, letter regarding the compliance of 1989 Nissan pickup trucks with FMVSS 120. In my December 19th letter to you, I confirmed an extension until January 16, 1990, to respond to your request.

Nissan's responses to your questions regarding the 1989 Nissan truck are set forth in the Attachment. We wish to emphasize, however, that, based on our reading of FMVSS 120, it is not clear that the vehicles in question fail to comply with that stand ard. Nissan has followed a procedure whereby tire inflation pressures specified on FMVSS 120 tire/rim information labels are determined based on the tire's ability to support their share of the vehicle's gross axle weight rating (GAWR). The load carryi ng capacity of the tires at various pressures is determined by reference to data in tire industry standarization manuals; such as the Tire and Rim Association (TRA) Yearbook. Once a minimum pressure that is adequate to carry the GAWR is determined, Nissa n considers other factors, such as vehicle ride characteristics, to select the recommended pressure. This process results in the selection of a recommended pressure that will permit the tires to carry safely GAWR loads and will provide good vehicle ride characteristics. Nissan believes that the procedure it followed resulted in the recommendation of a tire pressure that is consistent with safe vehicle operation and is permitted under FMVSS 120.

Based on our reading of the Agency contractor's test report on this matter, it appears that the contractor has interpreted FMVSS 120 in a manner different from Nissan. However, we believe that our own reading of FMVSS 120 is consistent with the langu age used in that standard. In particular, based on our reading, we conclude that:

1. the tire label need not show the tire's maximum inflation pressure; and

2. the 1.1 adjustment factor in section 5.1.2 of the standard applies for tire selection purposes only. Nothing in FMVSS 120 requires that the relationships between tire inflation pressure and load, as specified by tire manufacturers in standardizat ion manuals or otherwise, must be universally adjusted by use of this factor. We read FMVSS 120 to require, in practical terms, that when a passenger car tire is to be used on a truck, a slightly larger capacity tire must be selected than would be the c ase if the tire were to be used on a similar size passenger car. Based on Agency statements in Federal Register notices regarding FMVSS 120, the standard apparently requires this difference in tire selection due to the greater potential for off-road use and heavy load operation (perhaps above the vehicle's rated load capacity) for trucks than for passenger cars, and not due to any inherent difference in load-pressure relationships for the vehicles.

It is our understanding that the Agency's test report concludes that the 1989 Nissan truck that was inspected by the Agency's contractor does not conform to S.5.3.5 of FMVSS 120. Section 5.3.5 specifies that the vehicle's tire/rim selection label mus t show the "cold inflation pressure for [the] tires". This provision does not specify how the "cold inflation pressure" is to be determined, or for which driving conditions the pressure must be appropriate. FMVSS 120, as originally proposed, specified t hat the label must show the "maximum cold inflation pressures of the tires with which the vehicle is equipped, as marked on the tires. . ." See 36 Federal Register 14273-4, August 3, 1971, emphasis added. In a subsequent proposal, the requirement was re vised to specify that the label must show the "maximum tire inflation pressure", deleting the reference to the tires actually on the vehicle at the time of sale. See 39 Federal Register 19505, 19507, June 3, 1974. This revision was made to recognize and continue to permit the practice of dealers changing tire sizes prior to delivery of trucks to the purchaser. 39 Federal Register 19505. The final rule establishing FMVSS 120 adopts the current language of

section 5.3.5 (as paragraph 5.3(c)), i.e., "cold inflation pressure", but the preamble does not explain the deletion of the term "maximum" with regard to the inflation pressure. See 41 Federal Register 3480, January 23 1976. Nevertheless, the change in wording suggests that the tire label must reflect some pressure other than the maximum pressure.

We believe that the context of section 5.3.5 may provide some additional guidance as to which pressure must appear on the label. Section 5.3.1 specifies that the information required under section 5.3.3 through 5.3.5 must appear either "after each GA WR" in the case of a certification label or must be "appropriate for each GVWR-GAWR combination", if a combined certification/120 label format is used. Thus, the "cold inflation pressure" selected should be consistent with the GAWR of the vehicle. This conclusion is supported by a subsequent NHTSA preamble, which states that the section 5.3.5 pressure need not be the maximum pressure, "but, the pressure specified by the tire manufacturer as sufficient to carry the load specified by the vehicle manufac turer as the tire's share of the assigned GAWR". 42 Federal Register 7143, February 7, 1977.

The 1989 Nissan truck inspected by the Agency is equipped with Firestone WR-12, P 195/75R14 M+S tires. The tires have a maximum load rating of 1400 pounds. The certification label on the vehicle specifies a cold inflation pressure of 34 psi for the rear tires and a GAWR of 2544 pounds for the rear axle. The key issue raised by NHTSA is whether the 34 psi pressure on the label is a pressure "specified by the tire manufacturer as sufficient to carry" half the GAWR, or 1272 pounds.

The regulations do not specify a procedure by which the tire manufacturer must articulate whether the tire, inflated to 34 psi, will support a 1272 pound load. For example, we believe this information could be obtained from tire industry standardizat ion manuals or from direct discussions between the vehicle and tire manufacturers.

Data in the 1989 Tire and Rim Association (TRA) yearbook show that the tires in question will support a load of 1279 pounds at 29 psi, with higher loads supportable at higher pressures. Therefore, the 1989 Nissan truck would appear to comply with sec tion 5.3.5. Moreover, the manufacturer of the tires used as original equipment on the vehicle has confirmed that the tires inflated to 34 psi, will carry 1383 pounds (which is more than half the GAWR) on this vehicle (see Enclosure 1).

However, NHTSA has apparently interpreted the required calculation procedure differently. As we understand the procedure used by NHTSA's contractor in its test report, it first calculated a "tire load limit" at 34 psi by interpolating between the loa d limits at 32 psi and at 35 psi, as specified in the TRA tables. Assuming that a linear interpolation is appropriate, the 34 psi maximum load would be 1381.67 pounds. NHTSA's contractor then proceeds to divide the interpolated load by 1.1, yielding 125 6.06 pounds. Since this figure is less than the tire's share of the GAWR (1272 pounds), the contractor concludes that a violation has occurred. Assuming that linear interpolation between the table values is appropriate and the contractor's procedure is correct, a pressure of 34.956 pounds would be required to support 1272 pounds.

We believe that the procedure followed by the contractor is not specified in FMVSS 120. In particular, we object to the contractor's application of the 1.1 adjustment factor to intermediate tire loads and for purposes other than tire selection, since the standard does not specify these procedures.

The use of a 1.1 factor is specified in section 5.1.2 of the standard for tire selection purposes. That section provides that the sum of the load ratings of the tires fitted to an axle must be not less than the GAWR. Prior to calculating the sum, th e tire's load rating shall be reduced by dividing by 1.1 if the tire is listed in Appendix A of Standard 109 and is installed on a truck, bus, MPV, or trailer. However, no specific tires are listed in Appendix A of Standard 109. It is our understanding that prior to the early 1980s, that Appendix did list certain tire sizes for use on passenger cars. Therefore, section 5.1.2 may suggest that when passenger tires are used on trucks, the tire's load rating must be reduced by the 1.1 factor prior to det ermining whether the tires are adequate to support the GAWR. According to the 1977 preamble, the purpose of applying the 1.1 factor is "to account for the generally harsher treatment (impulse and surge loading in the case of MPV's off-road) to which the tires of a vehicle other than a passenger car are exposed that is not accounted for in passenger car tire rating". Supra. Thus, it appears that the purpose for the 1.1 factor is not to deal with a difference in the ability of a tire to support a given load at a particular pressure when the tire is used on a car as compared to use on a truck. Rather, the stated intent seems to be to deal with the greater off-road use (or possibly more frequent overload situations) to which vehicles other than passeng er cars are subjected. n1

n1 It is important to note that the 1989 Nissan truck meets the tire selection criteria of section 5.1.2. If the tires' maximum load rating (1400#) is divided by 1.1, and the adjusted sum (2545#) of the two tires' load ratings exceeds the GAWR (2544# ).

The use of the 1.1 factor for tire selection purposes only is also suggested by the language of section 5.3.3. That provision references section 5.1.2 (and, thereby, the 1.1 factor) in determining whether the tire size is appropriate for the GAWR. H owever, the absence of the parenthetical reference to section 5.1.2 in section 5.3.5 suggests that the application of the 1.1 factor is not required for determining whether the tire pressure on the label is appropriate for the GAWR.

To summarize, the language used in FMVSS 120 to describe the process to be used in determining the cold inflation pressure under section 5.3.5 is ambiguous at best, and contrary to the procedure used by NHTSA's contractor at worst. These deficiencies are exhibited with regard to the following determinations:

1. Whether the 1.1 adjustment factor is to be used for purposes other than tire selection;

2. Which tires are subject to the 1.1 factor (Appendix A, standard 109);

3. The source of information on the tire manufacturer's load limit for the tire, at various pressures; and

4. The procedure for interpolating information derived from the TRA tables.

Of these factors, we believe the first to be the most significant, but all contribute to the ambiguity of the standard.

It is our understanding that at least one other vehicle manufacturer has interpreted section 5.3.5 in a manner inconsistent with NHTSA's contractor. This suggests that a problem may exist with the wording of the standard and that more is involved than a single party's misreading of clear regulatory language. If the contractor's interpretation were the only acceptable interpretation, approximately 700,000 Nissan vehicles produced as far back as 1983 could be implicated (see Attachment).

Response 5 in the Attachment lists additional vehicle/tire combinations where Nissan's specified tire pressure differs from that determined under the contractor's procedure. Nissan is now conducting additional tests to verify that these tires will su pport higher test loads. We expect that the results of this testing will demonstrate that the tires used on Nissan's vehicles have

sufficient load capacity to support their share of the vehicles' GAWR at the recommended inflation pressures. The procedure being followed involves testing the tires to FMVSS 109 procedures, but increasing test loads by multiplying them by an overload f actor. The overload factor is calculated by multiplying the GAWR by 0.5 and dividing the product obtained by the tires' load rating at the pressure shown on the vehicle's tire label (calculated according to NHTSA's contractor's procedure, i.e., using th e 1.1 factor).

The results of this testing should be available by January 31st. However, one of the affected tires (7.00 x 14) is no longer in production; therefore, a special batch of those tires is being produced. The test results for this one tire size should b e available by mid-February.

Nissan wishes to work cooperatively with NHTSA to resolve this matter. However, we believe that the language of section 5.3.5 does not clearly provide a basis for finding the 1989 Nissan truck to be in noncompliance, or for conducting a notification a nd remedy campaign under the the Safety Act.

We request that NHTSA consider the issues raised above and the results of our ongoing testing, and that the Agency concur that the Nissan vehicles comply with FMVSS 120. We request the opportunity to meet with you after you have considered the matter s raised in this letter, so that we can answer any questions you may have and discuss a resolution of the matter.

If you have any questions regarding this matter, please contact Mr. Kazuo Iwasaki of my staff, at 202/466-5284.

Sincerely,

ENC.

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: nht90-4.50

TYPE: Interpretation-NHTSA

DATE: October 30, 1990

FROM: Marc J. Fink -- Dow, Lohnes & Albertson; Stephen C. Crampton -- Dow, Lohnes & Albertson

TO: Samuel K. Skinner -- Secretary, United States Department of Transportation

TITLE: Re Review of Arbitrary and Capricious Action by the National Highway Traffic Safety Administration

ATTACHMT: Attached to letter dated 1-3-91 to Stephen C. Crampton and Marc J. Fink from Jerry Ralph Curry (A37; Part 591; Sec 1397); Also attached to memo dated 10-31-90 from Toni Fargo to NHTSA

TEXT:

We are writing to ask you to reverse an arbitrary and capricious action by NHTSA and approve John A. Rosatti's proposed importation of his Porsche 959 as a "demonstration" vehicle. Mr. Rosatti's proposed uses for the car, as a promotional tool and addit ion to his automobile museum, are entirely consistent with the "demonstration" exemption, as codified by Congress and implemented by NHTSA. To assuage any concerns that the Porsche 959 will ever be driven on United States highways, Mr. Rosatti agrees to provide a written promise that the car will not be driven on any road or highway in the United States and that he will not sell the car to any United States resident. Mr. Rosatti also agrees to remove the engine from the car and take whatever other rea sonable actions may be required to satisfy NHTSA's concerns that the car not be driven on United States highways.

We find it necessary to appeal to you, Mr. Secretary, because we believe NHTSA's denial of Mr. Rosatti's request was arbitrary and capricious. Mr. Rosatti is considering a legal challenge to NHTSA's action, but would prefer to settle this matter without the unnecessary burden for both parties of a potentia lly protracted litigation.

We have the following objections to NHTSA's ruling: NHTSA's action is unrelated to its statutory mandate to "increase highway safety." NHTSA has failed to consider or discuss in any way Mr. Rosatti's proposed inclusion of the Porsche 959 in his automobi le museum. NHTSA has articulated an untenable interpretation of the "demonstration" exemption. Finally, and importantly, NHTSA's decision to allow another person to import a Porsche 959 for a museum while denying Mr. Rosatti's proposed importation for the same purpose is arbitrary and capricious.

John Rosatti has been in the automobile business for twenty five years; for the last fifteen years, he has owned and operated Plaza Motors of Brooklyn, Ltd.(1) Plaza Motors's grounds consist of buildings totalling approximately 75,000 square feet and co ver two city blocks. Plaza Motors holds Honda, Acura, and Oldsmobile dealerships, selling about 500 cars each month. Approximately 2000 to 3000 people come into Plaza Motors every week.

Dealers like Mr. Rosatti depend heavily upon promotional campaigns to attract buyers; indeed, Plaza Motors spends as much as $50,000 per month

on promotional activities. Mr. Rosatti's promotional plan for the Porsche 959 specifically involves his Acura dealership.(2) Acura cars are advertised as high-quality, exciting, and inexpensive alternatives to fancy European sports cars. Recent advert isements encourage car-buyers to trade in their expensive European cars for Acuras. In keeping with the Acura image, Mr. Rosatti intends to use his Porsche 959 to attract potential Acura buyers. As persons targeted for Acura sales are also likely to be interested in high-quality European sports cars, they will come to see a Porsche 959 on display. When they come, Mr. Rosatti will then have the opportunity to explain the benefits of his sporty, yet affordable, Acuras.

To implement his promotional plan, Mr. Rosatti envisions running numerous advertisements in newspapers and on the radio, enticing potential car-buyers to come and see the Porsche 959. Mr. Rosatti intends to place the Porsche 959, along with his Ferrari Testarossa, Lamborghini Contach, Specially built Porsche 935, and Mark IV Cobra, in a museum located on Plaza Motors's premises. Preliminary estimates are that such an automobile demonstration could attract as many as 1000 additional persons per month t o the dealerships. Completely in line with NHTSA regulations, John Rosatti intends to import the Porsche 959 as a commercial demonstration model.

NHTSA's new regulations, implementing the Imported Vehicle Safety Compliance Act of 1988, provide a "demonstration" exemption from restrictions on imports of motor vehicles that do not comply with NHTSA safety requirements.(3) " Mr. Rosatti's proposed us e of his Porsche 959 falls under the plain language of NHTSA's regulation and the statute. Indeed his proposed use is consistent with uses mentioned in the Supplementary Information accompanying the new rules.

The Supplementary Information accompanying NHTSA regulations states as follows:

Importation for this class of noncomplying motor vehicles (i.e., demonstration or display vehicles) has been permitted pursuant to the assumption that motor vehicle safety would not be affected by the temporary importation of noncomplying motor vehicles not generally used on the public roads, and whose appearance on them would be limited.(4)

NHTSA's Supplementary Information specifically sanctions automobile manufacturers' display of cars for commercial use.(5) Like manufacturers, Mr. Rosatti intends to display his car to promote sales. The Porsche 959 would, he believes, serve as a powerf ul attraction, drawing people to his automobile dealerships. Also like manufacturers, Mr. Rosatti will not drive the car. There is therefore no distinction between Mr. Rosatti's proposed use and the commercial display of a car by an automobile manufact urer. NHTSA's own rationale and regulations dictate that permission be given to Mr. Rosatti to import his car for demonstration purposes.

Mr. Rosatti also has a second interest in importing the Porsche 959, one that also accords entirely with the concept of a demonstration car. NHTSA's Supplementary Information manifests a concern that museums are not

to be deprived of interesting and valuable items in their collection, stating that museums can import cars under the 25-year exception.(6) Mr. Rosatti's Porsche 959 is both interesting and valuable to automobile enthusiasts. Although Mr. Rosatti's car i s less than 25 model-years old and thus would not fit within the 25-year exception, its importation for use in a car museum conforms to the language and policy of the demonstration exemption.

Mr. Rosatti's motivations for wanting to import his Porsche 959 are simple. Mr. Rosatti is interested in combining his passion for automobiles and pride in his accomplishments in the automobile business with his commercial enterprise. To Mr. Rosatti, th e Porsche 959 and his other collector automobiles represent his success in the automobile industry, an industry to which Mr. Rosatti has devoted his working life. The Porsche 959 is the greatest trophy in his collection of cars. Mr. Rosatti naturally w ants to show off his cars, both for their commercial value and appeal and because they represent his achievements in the automobile industry.(7)

NHTSA's mandate is to "increase highway safety,"(8) but NHTSA fails to explain how highway safety is threatened by Mr. Rosatti's proposed importation. Mr. Rosatti informed NHTSA in his letter-request that he will agree to any reasonable restriction rega rding his use of the Porsche 959 in the United States. Mr. Rosatti has stated that he is willing to remove the engine from the car and display it in a separate area of the museum, apart from the car body. Mr. Rosatti further has agreed to sign a writte n attestation that he will not drive the car nor sell it to a United States resident.(9) However, in its response to Mr. Rosatti's request, NHTSA refused to discuss the reasonableness of Mr. Rosatti's proposed self-imposed restrictions and failed to sug gest any alternative reasonable restrictions on Mr. Rosatti's use of the Porsche 959 in the United States. NHTSA's action is thus unrelated to NHTSA's mandate.

Mr. Rosatti hand-delivered his request upon NHTSA on May 25, 1990. It took four months for NHTSA to respond to Mr. Rosatti's request and, despite the fact that the New York State Board of Education chartered his museum, NHTSA failed to refer to Mr. Rosa tti's proposed museum in its September 20, 1990 response. We are enclosing (as Attachment C) a copy of Mr. Rosatti's May 25, 1990 request, our letter of September 18, 1990, with the enclosed letter from the New York Education Department and the vote ado pting the charter, and NHTSA's September 20, 1990 response to Mr. Rosatti's request.(10) NHTSA's belated response and failure to address a major argument in favor importing Mr. Rosatti's Porsche 959 is arbitrary and capricious.(11)

Further, NHTSA's interpretation of the "demonstration" exemption is untenable. NHTSA asserts that demonstration does not encompass "static display" and thus differs from the "show" exemption in earlier regulations. The term demonstration, however, come s from the Latin demonstrare 'to show'.(12) Also, the definition of demonstration includes "display." On its face, therefore, the term demonstration encompasses display in a museum. Indeed, there is absolutely no evidence that Congress or NHTSA intend ed to effect a major change in the exemption through a mere exchange of synonyms. NHTSA states in its letter that the Imported Vehicle

Safety Compliance Act of 1988 changed the law in an attempt to reduce the "number of nonconforming vehicles . . . imported into the United States without sufficient assurances or evidence that they were being brought into compliance with all applicable F ederal safety standards." However, the Act was not directed primarily toward "show" or "demonstration" cars, but toward imports that are to be brought into conformance with NHTSA standards. As NHTSA's Supplementary Information to the current regulatio ns confirms, "(t)his is the category of motor vehicle that is most affected by the 1988 amendments."(14)

NHTSA's interpretation would render the "demonstration" exemption duplicative and irrelevant, and clearly Congress did not intend that. In its letter, NHTSA states the following:

(W)ith respect to the new regulation, we have interpreted the word "demonstration" only in the context of allowing importation of nonconforming vehicles by registered importers who wish to prove, or demonstrate, that the vehicle is capable of conformance modification under one of the provisions of 1397 (c) (3) (A) (i).

Nothing in the Act or NHTSA regulations suggests such an interpretation. If a registered importer can prove that its vehicle is capable of modification under 49 C.F.R. S 1397 (c) (3) (a) (i) (1989), then the vehicle is exempt under that section and the " demonstration" exemption is duplicative. If, on the other hand, NHTSA is suggesting that the demonstration exemption is actually a procedural rule of proof for persons seeking exemption under 49 C.F.R. S 1397 (c) (3) (a) (i) , then that interpretation l ikewise conflicts with the Act. The Act explicitly provides procedures for importing a car under Section 1397 (c) (3) (a) (i): the importer furnishes a bond and complies with "such terms and conditions as it appears to the Secretary (of the Treasury) to be appropriate."(15) Indeed, the Act goes on to provide a calculation for the bond, procedures for persons whose registration has been revoked, a requirement that the importer maintain custody of the car, a label requirement, and a requirement that eac h registered importer maintain evidence that it has resources to complete the modification.(16)

Not only is NHTSA's interpretation of the exemption contrary to law, but its application to John Rosatti is arbitrary. Recently, NHTSA granted a "demonstration" exemption to Otis Chandler allowing importation of a Porsche 959.(17) NHTSA allowed Mr. Cha ndler to include his Porsche 959 in his automobile museum collection in Oxnard, California. Yet, John Rosatti's application for prior approval to use the same car in the same circumstances yields a different result. As mentioned before, the New York St ate Board of Regents has granted a charter for Mr. Rosatti's car museum. Mr. Rosatti has provided NHTSA with proposed promotional materials for his museum and has named the other cars that will form the initial museum collection: a Ferrari Testarossa, L amborghini Contach, specially built Porsche 935, and Mark IV Cobra. NHTSA has failed to explain why Mr. Rosatti's proposed importation is different from Mr. Chandler's.

Mr. Rosatti is not asking for special treatment. Mr. Rosatti asks only that the proposed importation of his Porsche 959 be fairly considered and that he be treated like other Porsche 959 importers. Mr. Rosatti has

offered proof of his intention never to drive the Porsche 959 in the United States and, indeed, welcomes any necessary further inquiry into his proposed use of the Porsche 959. Mr. Rosatti has agreed to remove the engine from the car and to provide a wr itten promise that the car never will be driven in the United States. New York State has chartered Mr. Rosatti's automobile museum. In light of these facts, uncontroverted by NHTSA, Mr. Rosatti's proposed use of the Porsche 959 falls within the meaning and the policy of the "demonstration" exemption. We therefore respectfully request that you reverse NHTSA's determination on the issue and approve Mr. Rosatti's proposed importation.

Footnotes: (1) Copies of recent newspaper advertisements for Plaza are appended to this letter as Attachment A.

(2) Advertising proposals for the Acura/Porsche 959 advertising campaign are appended to this letter as Attachment B.

(3) The Imported Vehicle Safety Compliance Act of 1988, 102 Stat. 2818, 2824 (to be codified at 15 U.S.C. 1397 (j)), provides that "(t) he Secretary may exempt any motor vehicle or item of motor vehicle equipment... upon such terms and conditions as the Secretary may find necessary solely for the purpose of ... demonstrations." The NHTSA regulation implementing this provision of the statute, 49 C.F.R. 591.5 (j) (1989), states as follows: No person shall import a motor vehicle or item of motor vehicle equipment into the United States unless, at the time it is offered for importation, its importer files a declaration, in duplicate, which declares...(t) he vehicle or equipment item does not conform with all applicable Federal motor vehicle safety, bumper, and theft prevention standards, but it (sic) being imported solely for the purpose of ...demonstrations.

(4) 54 Fed. Reg. 40,069, 40,076 (Sept. 23, 1989).

(5) The Supplementary Information interprets "demonstration" cars as including "nonconforming products for display at automobile shows to gauge public reaction to new styling or engineering features." Id.

(6) Id.

(7) To further exhibit his car, if permitted Mr. Rosatti would transport it to automobile shows, in particular, monthly Porsche-club shows at the Jacob Javits Center.

(8) See 23 U.S.C. 401 (1988); 49 U.S.C. 105(c) (1) (1988).

(9) Indeed, the value of the car as a collector's item would be seriously diminished if it were to be driven on roads surrounding Mr. Rosatti's dealership in New York City.

(10) We are also enclosing (as Attachment D) a letter, dated September 27, 1990, from another NHTSA official, offering "(o) ne last thought on a matter that may not be covered (in the September 20, 1990 letter, regarding)...importation for museum purpose s." This letter, written by a

NHTSA official outside the NHTSA Chief Counsel's office, states without analysis that museums may only import cars over 25 years old. This conclusory museums may only import cars over 25 years old. This conclusory statement hardly constitutes an adequa te response by NHTSA to Mr. Rosatti's proposed museum. This is especially so in light of the fact that NHTSA recently allowed another automobile-museum owner to import a car less than 25 years old. See infra p. 7.

(11) See 5 U.S.C. 555 (e) (1988) (agency required to give prompt notice of and grounds for denial of an informal request).

(12) Webster's Ninth New Collegiate Dictionary at 338 (1988). As NHTSA apparently adopted Webster's definition of show, there is no reason not to adopt its authority on the meaning of demonstration. In its letter, NHTSA states that it defines show as " to cause to be seen," Attachment C at 14; Webster's first definition of show is "to cause or permit to be seen." Webster's Ninth New Collegiate Dictionary at 1091.

(13) Id. at 338.

(14) 54 Fed. Reg. 40,069, 40,073 (Sept. 23, 1989).

(15) 102 Stat. 2818 (to be codified at 15 U.S.C. 1397 (c) (2)).

(16) Id. at 2818-22 (to be codified at 15 U.S.C. 1397 (c) (2) (B) to 1397 (d) (2)).

(17) Attachment E to this letter is a copy of Colman, The Vigil, Excellence Magazine, October, 1990, at 60, chronicling Mr. Chandler's importation of a Porsche 959.

ID: aiam2805

Dear Mr. Milby: This responds to your February 9, 1978, letter asking how to measur the head form contact area in Standard No. 222, *School Bus Passenger Seating and Crash Protection*.; In your first paragraph, you indicate that the National Highway Traffi Safety Administration (NHTSA) has allowed the knee form contact area measurement to be undertaken on or within a line 1 1/2 inches from the edge of the leg protection zone to ensure that the knee form will contact the entire surface. You ask that a similar line be established for the head protection zone contact areas.; As you know, the head form contact area requirements apply to mor areas than do the knee form contact area requirements. The knee form contact area requirements apply only to seat backs and the backs of restraining barriers. The head form contact area, on the other hand, includes anything falling within a specified zone which might include the sides or tops of seats. Therefore, it is impossible to create fictional lines around the outer edges of objects that fall within the head protection zone for purposes of testing the compliance of those objects with the requirements. The agency notes further that it never stated that it would test knee form contact area on or inside a line 1 1/2 inches from the edge of a seat back or restraining barrier. The agency did state that it would test in a manner that 'provides opportunity for the knee form to contact with the seat back or restraining barrier to the fullest extent possible.' That interpretation can also be applied to the head form contact area requirements.; Sincerely, Joseph J. Levin, Jr., Chief Counsel

ID: nht95-2.9

TYPE: INTERPRETATION-NHTSA

DATE: March 21, 1995

FROM: Charles Tucker

TO: Gayle D. Dairymple, Safety Standard Engineer, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO 5/1/95 LETTER FROM JOHN WOMACK TO CHARLES TUCKER (A43; Std. 208; VSA 108(a)(2)(A))

TEXT: Dear Ms. Gayle D. Dairymple,

I asked the company that is making the modifications to my van, Fitzpatrick Enterprises, and they said I need to get a letter from you stating they are allowed to replace the factory installed steering wheel with the smaller ASTECH steering wheel with out an air bag. The EGB II with the ASTECH steering wheel is the only way I will be able to drive.

Steve Manson, from Fitzpatrick Enterprises, Columbus, Ohio, asked me to write you and ask for permission to have my van modified with a smaller ASTECH steering wheel which does not have an airbag. Because my Range-Of-Motion (ROM) is limited from Mult iple Sclerosis, the smaller steering wheel improves my ability to drive safely.

Because RSC is doing the modification and the RSC policy is that, "all vehicles they modify must have an air bag", I will have to pay for the small steering wheel without an airbag. Fitzpatrick needs your written permission to install the steering wh eel that is best and safest for me, but doesn't come with an air bag. With the standard size steering wheel that came on the van, I have to move my arm too much for me to steer, and although "it's" a perfectly good steering wheel, it's too awkward for m e and isn't safe for me to drive with anymore.

The people in Ohio connected with my case, who can verify my need for a smaller steering wheel, and who have evaluated me, and have stated and written to me, that I will be a safe driver with the ASTECH steering wheel are: 1. Bob Farrell - at RSC ins pected my van and made recommendations, 2. Terrie Jones - at RSC is my counselor, 3. Dan Cox - at OSU did the clinical evaluation and the driver evaluation, 4. Dr. Kotil Rammohan & Dr. Joanne Lynn - at OSU Hospital are my doctors. A complete list wit h more names and addresses on page two.

IN CONCLUSION, I AM ASKING YOU FOR A LETTER THAT STATES:

FITZPATRICK ENTERPRISES IS ALLOWED TO MODIFY MY VAN, WITHOUT PUTTING IN AN AIRBAG.

Please call me if there is any other information about my [Illegible Words] you need and I can supply you with. I will be very happy to do whatever I can as it [Illegible Words] years since I've had a vehicle I can drive.

Attachment Ohio Rehabilitation Services Commission:

Jim Mc Pherson, Zanesville Office Manager

Terrie Jones, Counselor

Rehabilitation Services Commission

Bureau of Vocational Rehabilitation

601 Underwood Street, Suite D

Zanesville, OH 43701-43715

Telephone: (614) 453-0673

Fax: 452-8449

Bob Farrell - 708-256-2417

The Ohio State University Hospitals:

Dan Cox, B. S.

Program Manager / Driver Rehab Services

Ohio State University Hospitals

410 West 10th Avenue

Columbus, OH 43210-1228

Telephone: (614) 293-3833

The Van Equipment Assessment from OSU - 02/26/94

1.) EGB II with a EGB Ortho Tri Pin. 2.) Astech Steering Wheel with Air Bag. 3.) Spinner Knob placed at 3:00 o'clock. 4.) Upper Chest Support. 5.) Replace carpet with non-skid resistance surface in driving and cargo areas. 6.) 10 Hours of Behind-The-Wheel training to start with. 7.) A Clear Windshield. 8.) Client will have an Invacare 9000 Electric Wheelchair.

The company doing the Modifications is: Fitzpatrick Enterprises, Columbus, Ohio Telephone No: 800-545-1102 Ask for Steve Manson Fax: 614-497-1863 1993

My van: Ford E-150 Van

Ohio License Plate No: MPC790

Serial No: 1FDEE14N1PHA21756

ID: nht90-2.64

TYPE: INTERPRETATION-NHTSA

DATE: 05/31/90

FROM: STEPHEN P. WOOD -- ACTING CHIEF COUNSEL NHTSA

TO: THEO BOSE -- WEBASTO HEATER, INC.

TITLE: NONE

ATTACHMT: LETTER FROM THEO BOSE -- WEBASTO HEATER INC DATED 07/19/89 TO FEDERAL HIGHWAY ADMINISTRATION ON CLARIFICATION OF TITLE 49 393.77[12]

TEXT: You wrote to the Federal Highway Administration (FHWA) asking about requirements for "diesel fuel burning coolant heaters and air heaters" that you import for installation in trucks, buses and school buses. According to the installation instructions for the heaters, they are connected either to the fuel tank of the vehicle or to a separate fuel tank. The FHWA forwarded us your letter with regard to Federal Motor Vehicle Safety Standard (FMVSS) No. 301, Fuel System Integrity, since the National Highway Traffic Safety Administration (NHTSA) is responsible for this standard. I regret the delay in responding.

By way of background, NHTSA is authorized to issue FMVSS's applying to the manufacture of new motor vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance wit h our FMVSS's. Instead, under the National Traffic and Motor Vehicle Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards . This process requires each manufacturer to determine in the exercise of due care that its products meet all applicable requirements. (A general information sheet describing manufacturers' responsibilities under the Safety Act is enclosed.)

The Safety Act defines the term "manufacturer" as "any person engaged in the manufacturing or assembling of motor vehicles or motor vehicle equipment, including any person importing motor vehicles or motor vehicle equipment for resale." (@ 102(5); emphas is added.) As a manufacturer of motor vehicle equipment, you are responsible for compliance with the Safety Act and applicable regulations.

There is currently no FMVSS that directly applies to the heating unit you describe. Standard No. 301 (copy enclosed) applies only to completed new motor vehicles, and not to components of fuel systems. (The standard applies to trucks and buses with a g ross vehicle weight rating of 10,000

pounds or less, and to school buses.) However, Federal law may affect the installation of your product, depending on who installs the heating unit and when the work is performed.

If the heating unit were installed as original equipment on a new vehicle, the vehicle manufacturer is required by our certification regulations to certify that the entire vehicle (with your product installed) satisfies the requirements of all applicable FMVSS's. If the heater 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. These certification requirements apply to the vehicle manufacturer and alterer regardless of whether the heater is connected to the vehicle's fuel system. Of course, if the heater is connected to the vehicle's fuel system, th e vehicle's compliance with Standard No. 301 should be carefully scrutinized. (I have enclosed a copy of our certification regulation (49 CFR Part 567) for your information.)

If the heater were installed on a used vehicle by a vehicle manufacturer, distributor, dealer or repair business, the installer would not be subject to the certification requirements outlined above. Instead, the installer would have to ensure that it di d not knowingly render inoperative the compliance of the vehicle with any applicable safety standards, including Standard No. 301. This is required by @ 108 (a) (2)(A) of the Safety Act. If the modification of the vehicle entailed connecting the heater to the vehicle's fuel system, compliance with Standard No. 301 would of course be especially germane to whether the modification had rendered inoperative the vehicle's compliance.

The prohibition of @ 108(a)(2)(A) 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 Feder al motor vehicle safety standards. However, NHTSA encourages vehicle owners not to tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

In addition to the foregoing, you should be aware that manufacturers of motor vehicle equipment are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safe ty. If you or NHTSA determines that a safety-related defect exists, you must notify purchasers of your product and remedy the problem free of charge. (Note that this responsibility is borne by the vehicle manufacturer in cases in which the heater is in stalled on a new vehicle by or with the express authorization of that vehicle manufacturer.) Any manufacturer which fails to provide notification of or remedy for a defect may be subject to a civil penalty of up to $ 1,000 per violation.

I hope this information is helpful. Please contact my office if you have further questions.

ENCLOSURES