ID: nht93-3.28

DATE: April 28, 1993

FROM: Frank Millar

TO: John Womack -- Chief Council, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 9/1/93 from John Womack to Frank Millar (A41; Std. 105)

TEXT:

I have posed the following questions to Mr. Duane Perrin of NHTSA and he has been kind enough to give me answers over the telephone. Since I would like to get the answers in writing, Mr. Perrin has suggested I contact your office.

1. Would you please, for the record, document the spelling of your name, your phone number, fax number, and your position at NHTSA?

2. What is the significance, if any, of SAE J201, "In service Brake Performance Test Procedure, Passenger-Car and Light Duty Truck", subtitled SAE Recommended Practice Reaffirmed May 1989", to manufacturers and consumers?

3. What is the significance, if any, of the NHTSA's standard S571.105 to manufacturers and consumers?

4. As I read in the NHTSA standard S571.105, Paragraph S5.2.1 says that the parking brake of a Toyota Camry with a standard (stick shift) transmission must hold the car stationary on a hill with a 30% grade in both forward and reverse directions for 5 minutes. Is my interpretation correct?

Affidavit

To the best of my knowledge, all of the answers to the above questions on all 3 pages are true and correct.

Signature: Date: Printed Name:

Signature Witness: Date Witness name:

Please initial each page and fax your answers as well as return the originals by mail. If this is impractical in any way, please let me know.

I appreciate your time spent answering these questions. Thank you very much.

ID: nht93-3.29

DATE: April 29, 1993

FROM: Bob Jones -- Director of Engineering, Independent Mobility Systems, Inc. (IMS)

TO: Mary Versailles -- Federal Transit Administration, U.S. Department of Transportation, NHTSA

COPYEE: C. Flanigan; G. Anesi; R. Dumas

TITLE: Re: Compliance to FMVSS 220 with a Raised Roof Minivan

ATTACHMT: Attached to letter dated 6-18-93 from John Womack (Signature by Ken Weinstein) to Bob Jones (A41; Std. 220)

TEXT: Although School Bus Rollover Protection does not apply to minivans, many states and/or municipalities are including this requirement in their bids for vehicles which are equipped to serve the handicapped.

We have tested and met the requirement with the OEM roof; however we are now faced with a new challenge as we are being asked to make available a raised roof model. We know how to build the roof, how to reinforce it with a cage, but what we don't know is how to do a FMVSS Bus Rollover Test.

I am enclosing a drawing of our prototype roof, including its steel cage support system and a photo copy of an installed roof. As you can see from the drawing, the raised roof starts at the 'A' Pillar with a plus 2.0 inches, builds up to 4.0 inches then 9.0 inches and finally at the 'D' Pillar it is plus 12.563 inches.

I have included excerpt pages from the FMVSS 220 Laboratory Test Procedure which, I believe, demonstrates our need for an interpretation as to how we should meet the legislation with this raised roof configuration.

Because we are less than 10,000 pounds GVW, our force plate will be 5 inches longer and 5 inches wider than the van roof. We must keep the force plate transverse axis level and make contact with the roof at not less than two points. The longitudinal axis of the force application plate may deviate from the level or horizontal position; however, deflection readings are to be taken as close to the four corners of the force application plate as possible and then extrapolated to provide corner readings.

When we evenly distribute the vertical force, we are going to get an unusual load path. The compression is going to be in the 41 inches to the rear of the 'B' Pillar. We would almost need a complete collapse of the roof before the load cylinders located at the front outboard positions on the plate register.

After reviewing the enclosed material, we would be most appreciative if you would offer us your interpretation of how we can satisfy this standard in a meaningful way.

I will be out of the country from May 4 to May 25. In my absence, you can address any questions or correspondence to Mr. Rocky Dumas at our New Mexico headquarters.

I thank you for your consideration and look forward to discussing the subject with you upon my return.

ID: nht93-3.3

DATE: April 15, 1993

FROM: Howard M. Smolkin -- Acting Administrator, U.S. Department of Transportation, NHTSA

TO: David L. Boren -- United States Senator

COPYEE: Washington Office

TITLE: None

ATTACHMT: Attached to letter dated 3-30-93 from David L. Boren to Howard Smolkin

TEXT: Thank you for your recent letter on behalf of your constituent, Mr. Thomas D. Price of Norman, Oklahoma. Mr. Price is concerned that this agency has not tested his product as part of its research activities relative to heavy vehicle braking stability and control.

By way of background, the heavy vehicle stability and control research of the National Highway Traffic Safety Administration (NHTSA) was undertaken in response to a court case involving a NHTSA Regulation. In 1978, the Ninth Circuit Court of Appeals set aside the stopping distance test requirements of Federal Motor Vehicle Safety Standard No. 121 (FMVSS No. 121), which the agency had established in 1975. PACCAR, INC. V. NHTSA, 573 F.2d 632, (9th Cir. 1978). As a practical consequence, the stopping distance requirements had the effect of requiring antilock brake systems (ABS) on many heavy vehicles. The Court based its ruling, in part, on a determination that the agency had not established that reliable ABS systems were available which could meet these requirements. The court held that "more provative (sic) and convincing data evidencing the reliability and safety of vehicles that are equipped with antilock and in use must be available before the agency can enforce a standard requiring its installation." 573 F.2d at 643. This ruling effectively precluded the agency from establishing ABS requirements for heavy vehicles without first establishing such a record.

Throughout the early 1980's, the agency conducted an extensive series of tests of ABS systems at our Vehicle Research and Test Center in Ohio. We followed these tests with field tests of ABS systems, beginning in 1988. That work is nearly completed. The field tests were to evaluate the reliability, maintainability, and durability of current generation ABS systems on heavy vehicles.

In selecting the items to be tested, the agency chose the latest available versions of the types of ABS systems that had been at issue in the 1978 court decision. I note that, given our limited research budget, it is not possible for us to test every automotive safety-related piece of equipment that is introduced into the marketplace.

As we stated in our October 5, 1992, letter to Senator Nickles, who had written the agency on behalf of Mr. Price, the purpose of our research in this area is to determine the availability of reliable and practical hardware systems that enhance the stability and control of heavy vehicles while braking. A report on the tractor portion of this research, "An In-Service Evaluation of the Reliability, Maintainability, and Durability of Antilock Braking Systems (ABS) for Heavy Truck Tractors," was published in March of 1992. The report concluded that reliable and practical hardware is available to the heavy vehicle manufacturing and user industry. A report on the trailer portion of

this research is expected to be published in the late summer or early fall of this year.

As Mr. Price is aware, in June 1992, NHTSA published an Advance Notice of Proposed Rulemaking seeking information about the stability and control performance of heavy vehicles. This notice was issued, in part, in response to a provision of the Motor Carrier Act of 1991 which directed the Secretary of Transportation to initiate rulemaking about, among other things, ABS systems on new commercial vehicles.

NHTSA is reviewing the comments to that notice, including one submitted by Mr. Price, and we expect to make a decision soon about whether to proceed to a Notice of Proposed Rulemaking. Any such notice would provide an opportunity for public comment, and we would carefully consider all comments before issuing a final rule. We encourage Mr. Price to continue to follow this rulemaking and, if a notice of proposed rulemaking is published, to submit any comments that he might have on the proposed requirements.

We appreciate your continued interest in our programs.

ID: nht93-3.30

DATE: April 30, 1993

FROM: John Womack -- Acting Chief Counsel, U.S. Department of Transportation, NHTSA

TO: Cleo Betts -- Director of Engineering, Coachman Recreational Vehicle Co.

TITLE: None

ATTACHMT: Attached to letter dated 2-22-93 from Cleo Betts to Mary Versailles (OCC 8383)

TEXT: This responds to your letter of February 22, 1993, concerning free standing furniture in motor vehicles. Specifically, you asked whether a dinette table and its chairs must be secured to the floor in a motor home. You also asked whether the chairs would be considered designated seating positions.

I am pleased to have this opportunity to explain our laws and regulations to you. NHTSA is authorized under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. S1381 ET SEQ.; Safety Act) to issue motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. NHTSA has not established any safety standards which would apply to the dinette table.

With respect to the dinette chairs, NHTSA has used this authority to establish Federal Motor Vehicle Safety Standard No. 207, SEATING SYSTEMS (49 CFR S571.207), which specifies strength requirements for occupant seats. An "occupant seat" is defined in S3 of Standard No. 207 as "a seat that provides at least one designated seating position." NHTSA has also exercised its authority under the Safety Act to establish Standard No. 208, OCCUPANT CRASH PROTECTION (49 CFR S571.208), which specifies performance requirements for the protection of vehicle occupants in crashes. These requirements are also directed toward the occupants of "designated seating positions."

The term "designated seating position" is defined at 49 CFR S571.3 as:

any plan view location capable of accommodating a person at least as large as a 5th percentile adult female, if the overall seat configuration and design is such that the position is likely to be used as a seating position while the vehicle is in motion, except for auxiliary seating accommodations such as temporary or folding jump seats.

Attached dinette seats in motor homes are "designated seating positions" under this definition and are therefore required to comply with the requirements of Standard No. 207. In addition, Standard No. 208 requires these seats to be equipped with seat belts. The type of seat belt required varies depending on the seating capacity and gross vehicle weight rating of the vehicle.

Your letter raises the question of whether seats that are not attached to the vehicle would be considered "auxiliary seating accommodations" and therefore not "designated seating positions." It is our opinion that attachment is not determinative. A manufacturer cannot escape the responsibilities of Standards Nos. 207 and 208 simply by not attaching the seat. We would look at all relevant factors in determining whether a particular seat is an auxiliary seating accommodation such as temporary or folding jump seat. I also note that 8S.4.4 of Standard No. 207 requires that seats not designated for occupancy

while the vehicle is in motion shall be conspicuously labeled to that effect.

I must emphasize, however, that the concept of free standing furniture in motor vehicles raises a potentially serious safety concern. Unattached items, including but not limited to furniture, could be very dangerous to vehicle occupants if these items are free to move inside the occupant compartment during sudden stops or in a crash. Manufacturers of motor vehicles are subject to the defect provisions of the Safety Act. If a vehicle manufacturer included unattached items that exposed occupants to an unreasonable risk of injury, it could constitute a safety related defect that could require the manufacturer to conduct a safety recall.

I have enclosed an information sheet that identifies relevant Federal statutes and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers, and explains how to obtain copies of these materials.

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: nht93-3.31

DATE: May 3, 1993

FROM: John Rhein -- Manager, Product Engineering, Fisher-Price, Inc.

TO: John Womack -- Chief Council, Chief Council's Office, NHTSA

COPYEE: D. Campbell; P. Mitchell; M. Weatherston

TITLE: None

ATTACHMT: Attached to letter dated 4/14/94 from John Womack to John Rhein (A42; Std. 213)

TEXT:

Please find this letter to be a request for an official interpretation of the Standard 213 Amendment Docket No. 74-09: Notice 26 (Child Restraint Registration).

It has been Fisher-Price's experience that registration cards of the new format are being returned but are sometimes illegible. Because the card does not specify "to print", consumers sometimes fill in the card in a manner which is illegible (please note examples provided). The inability to interpret the consumer information has created problems in our registration recording system.

Fisher-Price would like to amend the child restraint registration card to encourage the consumer to PRINT required information. Prior to doing so, we seek NHTSA's concurrence that the existing docket maintains sufficient latitude to allow specified changes.

Specifically, we would like to enlarge the consumer address space of the card, specify "(please print)" and use open box spaces as opposed to horizontal lines (please see example provided).

Please take our concerns into consideration and inform us whether the Register will allow specified amendments. We feel that these changes will greatly facilitate our registration program. We anxiously await your response. Thank you for your consideration.

(Sample registration cards omitted.)

ID: nht93-3.32

DATE: May 4, 1993

FROM: St. F. Steiner -- Consultant, AET Network

TO: John Womack -- Chief Council, U.S. Department of Transportation, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 5-17-93 from John Womack (Signature by Stephen P. Wood) to St. F. Steiner (A41; Part 591)

TEXT: As an environmentally, concerned company, our goal is to become proactive before the new California 2010 Emissions State Law is to be effective and the President of the United States signs the new Environmental Protection Laws. We think it's time to aggressively contribute in the development of human responsibility and thus, build up an agreeable base for our children and future.

Because of this, our company is into environmental protection by way of contributing toward the reduction of gasoline pollution attributed to the transportation industry. In our efforts, our goal is to import electric automobiles from Europe for research and exploration. In order to do this, we need your assistance on the following U.S. laws and D.O.T. requirements for 3 and 4 wheelers with 1 to 5 passengers.

o Are there any safety standards and regulations for the above mentioned automobiles?

o Is there a minimum speed standard regulation for the above mentioned automobiles?

o Are there weight limitations for the above mentioned automobiles?

o What conversions would be required in order to meet U.S. specifications and standards? o Could these automobiles be permitted on highways?

Thank you for taking the time to review our needs. Your immediate response and assistance would be greatly appreciated in supporting our effort towards improving our environment. If you should inquire additional information about our electric automobiles please feel free to contact us.

ID: nht93-3.33

DATE: May 5, 1993

FROM: John Womack -- Acting Chief Counsel, U.S. Department of Transportation, NHTSA

TO: Patrick P. Radice -- Director of Operations, Electronics Division, Tridon

TITLE: None

ATTACHMT: Attached to letter dated 4-23-93 EST from Patrick P. Radice to NHTSA (OCC 8578)

TEXT: We have received your undated letter with respect to certification of aftermarket flashers.

You understand that manufacturers of aftermarket turn signal flashers and hazard warning signal flashers must certify that the flashers comply with the applicable requirements of Federal Motor Vehicle Safety Standard No. 108 prior to sale. However, when a vehicle is equipped with a combination turn signal/hazard warning signal flasher, you ask whether the manufacturer of the replacement flasher must certify compliance with requirements for both flashers, or can certify the flasher to "meet either the turn signal flasher or hazard warning signal flasher of FMVSS-108 but not both?"

Paragraph S5.8.1 (formerly S5.7.1) of Standard No. 108 requires that each item of lighting equipment manufactured to replace any item of lighting equipment on any vehicle to which Standard No. 108 applies shall be designed to conform to Standard No. 108. Therefore, a combination turn signal/hazard warning signal flasher that is manufactured to replace a combination turn signal/hazard warning signal flasher must be designed to conform to requirements applicable to both turn signal flashers and hazard warning signal flashers.

Paragraph S5.8.2 permits replacement lighting equipment to be labelled with the symbol DOT, constituting a certification of compliance to applicable Federal motor vehicle safety standards (although the manufacturer may certify by a label or tag affixed to the flasher or the container in which it is shipped). The "applicable Federal motor vehicle safety standards" for a combination turn signal/hazard warning signal flasher are those portions of Standard No. 108 that specify requirements for turn signal flashers and hazard warning signal flashers. The manufacturer's certification must therefore cover both.

I hope this explains the matter for you.

ID: nht93-3.34

DATE: May 5, 1993

FROM: John Womack -- Acting Chief Counsel, U.S. Department of Transportation, NHTSA

TO: Bob Dittert -- Trooper, Texas Department of Public Safety

TITLE: None

ATTACHMT: Attached to letter dated 1-14-93 from Bob Dittert to NHTSA (OCC 8240)

TEXT: This responds to your inquiry about how the Federal Motor Vehicle Safety Standards affect State laws applicable to the same aspect of performance. You were particularly interested in our requirements for window tinting. I am pleased to have this opportunity to explain our regulations to you. After providing background information, I will answer the specific questions raised in your letter.

The National Traffic and Motor Vehicle Safety Act authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards that establish specific levels of safety performance for new motor vehicles and new items of motor vehicle equipment. Standard 205, "Glazing Materials," issued under the Safety Act, has requirements that limit the amount of tinting that can be placed on windows in new vehicles. The standard currently imposes a minimum level of light transmittance of 70% in all areas requisite for driving visibility (which includes all windows on passenger cars). The primary purpose of this requirement is to ensure adequate visibility through the windows, thereby reducing the risk of a motor vehicle crash.

Under S108(a)(1)(A) of the Safety Act, no person shall manufacture or sell a new motor vehicle or new item of motor vehicle equipment that does not meet all applicable FMVSS's. NHTSA tests vehicles and equipment sold to consumers for compliance with the FMVSS's and investigates defects relating to motor vehicle safety. If a manufacturer or NHTSA determines that a noncompliance or safety-related defect exists, the manufacturer must notify purchasers of its product and remedy the problem free of charge. A manufacturer of a noncomplying product is also subject to a civil penalty of up to $1,000 for each noncomplying item it produces.

The prohibition in S108(a)(1)(A) against selling complying vehicles and items of equipment does not apply to a vehicle or item of equipment after its first sale to a consumer. However, S108(a)(2)(A) of the Act applies to modifications made to new and used vehicles by motor vehicle manufacturers, distributors, dealers and repair businesses. That section provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

Please note that the "render inoperative" provision of section 108(a)(2)(A) does not apply to actions by individual vehicle owners.

I would now like to apply this background to the particular questions raised in

your letter.

QUESTION ONE:

"Are the CFRs law and enforceable only by federal agents?"

NHTSA's regulations and safety standards are set forth in Title 49 of the Code of Federal Regulations (CFR). These regulations and standards apply without State ratification to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. NHTSA enforces these regulations and safety standards.

QUESTION TWO:

"Are the Federal Motor Vehicle Safety Standards law and only enforceable on new manufactured vehicles?"

The FMVSS's apply to new motor vehicles and new items of motor vehicle equipment, and not to used vehicles or equipment. NHTSA may bring enforcement actions against manufacturers of new vehicles and new items of equipment that do not comply with applicable FMVSS's. NHTSA also enforces the "render inoperative" provision of the Safety Act against commercial entities that modify new or used vehicles in a manner that violates the "render inoperative" provision. We also note that NHTSA can investigate safety defects in new or used vehicles or items of equipment.

QUESTION THREE:

"Are states allowed to enact legislation that allows less stringent standards than the CFRs?"

We understand you to ask this in the context of window tinting requirements, since elsewhere in your letter you ask whether a Texas law that allows light transmittance of 35 percent violates Federal law.

Your question relates to S103(d) of the Safety Act, which states:

Whenever a Federal motor vehicle safety standard ...

is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard.

Whether State law is preempted under S103(d) depends in part on the conduct that is regulated by that law. Federal safety standards regulate the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. State law would be preempted to the extent it established performance requirements applicable to the MANUFACTURE of vehicles or glazing that differ from those in Standard 205. State law would also be preempted if it purported to ALLOW THE MANUFACTURE OR SALE of glazing materials or new vehicles containing glazing material that did not meet the specifications of

Standard 205.

As stated above, Federal law also regulates modifications made to new and used vehicles by motor vehicle manufacturers, distributors, dealers and repair businesses (SlO8(a)(2)(A) of the Safety Act). The effect of S108(a)(2)(A) is to impose limits on the tinting practices of businesses listed in S108(a)(2)(A). These businesses may not install tinting on new or used vehicles that reduces the light transmittance of windows covered by Standard 205 to a level below the Federal requirement of 70 percent. A state law would be preempted if it purported to ALLOW MODIFICATIONS VIOLATING STANDARD 205 by these named businesses. Section 108(a)(2)(A) does not apply to actions by individual vehicle owners.

Because Federal safety standards regulate the manufacture and sale of new motor vehicles, state requirements applicable to the registration and inspection of motor vehicles after the first sale to a consumer are not preempted merely because they are not identical to the Federal safety standards, as long as they do not interfere with the achievement of the purposes of Federal law. Therefore, a state could permit the registration of a vehicle which had been altered by its owner by the addition of window tinting, even when the tinting reduces the light transmittance below the Federal standard. However, the state cannot legitimize conduct - the rendering inoperative of glazing by commercial businesses installing window tinting that is illegal under Federal law.

QUESTION 4:

"Concerning the installation of non-complying automotive equipment, i.e., sun screening, taillamp 'black out' lenses, neon license plate lamps, etc., is this allowed by the owner but prohibited installation by a commercial entity?"

You are correct that S108(a)(2)(A) of the Safety Act regulates the modifications of only the commercial entities listed in that section of the Act, and that the Safety Act does not prohibit an individual from modifying his or her vehicle such that it no longer complies with the FMVSS's. The States may have requirements governing the modification of a vehicle by individual owners.

I hope you find this information helpful. If you have any other questions, please contact Mr. Marvin Shaw of my staff at (202) 366-2992.

ID: nht93-3.35

DATE: May 6, 1993

FROM: John Womack -- Acting Chief Counsel, U.S. Department of Transportation, NHTSA

TO: Jose M. Gonzalez -- Engineering Manager, Kustom Fit

TITLE: None

ATTACHMT: Attached to letter dated 3-25-93 from Jose M. Gonzalez to NHTSA (OCC 8478)

TEXT: This responds to your letter of March 25, 1993, regarding testing for Standard No. 208, OCCUPANT CRASH PROTECTION. You are a manufacturer of seating products for the recreation vehicle industry. You propose to perform a baseline HYGE sled test using all OEM hardware and seats and then to perform a second test using OEM hardware and the seats you manufacture. You asked:

If the results of the test using our seats are equal or better than those obtained values with the OEM seats and hardware, does this test prove that our seats are safe to use instead of OEM? Can these results and procedures be acceptable as do diligent (sic) and can our seats then be certified for use in these vehicles regarding FMVSS 208?

Some background information may be helpful. The National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 ET SEQ.; the Safety Act) authorizes this agency to issue motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. We have exercised this authority to establish Standard No. 208, OCCUPANT CRASH PROTECTION (49 CFR S571.208), which specifies performance requirements for the protection of vehicle occupants in crashes. (I note that a number of other safety standards also include requirements relevant to seats, including Standard No. 207, SEATING SYSTEMS, Standard No. 209, SEAT BELT ASSEMBLIES, Standard No. 210, SEAT BELT ASSEMBLY ANCHORAGES, and Standard No. 302, FLAMMABILITY OF INTERIOR MATERIALS.) The Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. Standard No. 208, the subject of your inquiry, is applicable to vehicles and not to individual items of equipment (except for pressure devices and explosive devices used in air bags). Therefore, if one of your seats is installed in a vehicle during manufacture, the vehicle manufacturer is responsible for certifying that the completed vehicle complies with all applicable standards, including Standard No. 208. If the seat is added to a new, previously certified, motor vehicle prior to its first sale, the person who modifies the vehicle would be an alterer. An alterer is required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration.

Finally, if the seat is sold as aftermarket equipment to be installed in a used motor vehicle, the seat, as a piece of equipment, does not have to comply with any Federal standards. However, S108(a)(2)(A) of the Safety Act provides, in pertinent part:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or part, any device or element of design installed

on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard ....

Therefore, none of these entities could install one of your seats if it caused the vehicle to no longer comply with any of the safety standards.

In all of these situations, you, as the seat manufacturer, would have no certification responsibilities under Standard No. 208. Therefore, with respect to that standard, the remainder of the discussion in this letter is applicable to vehicle manufacturers (including alterers).

Each of this agency's safety standards specifies the test conditions and procedures that this agency will use to evaluate the performance of the vehicle or equipment being tested for compliance with the particular safety standard. The National Highway Traffic Safety Administration (NHTSA) precisely follows each of the specified test procedures and conditions when conducting its compliance testing. However, a manufacturer is not required to test its products only in the manner specified in the relevant safety standard, or even to test the products at all. A manufacturer may choose any means of evaluating its products to determine whether the vehicle complies with the requirements of the safety standards, provided, however, that the manufacturer assures that the vehicle will comply with the safety standards when tested by the agency according to the procedures specified in the standard.

Under certain circumstances, particularly if the agency testing shows an apparent noncompliance exists in a vehicle, the manufacturer may be asked to show the basis for its certification that the vehicle complies with the relevant safety standard or standards. If in fact there is a noncompliance, the manufacturer is subject to civil penalties under the Safety Act unless it can establish that it exercised "due care" in the design and manufacture of the product and in the evaluation (through actual testing, computer simulation, engineering analyses, or other means) to ensure compliance, but nevertheless did not have reason to know that the vehicle did not in fact comply with the safety standards.

This agency has long said that it is unable to judge what efforts would constitute "due care" in advance of the actual circumstances in which a noncompliance occurs. What constitutes "due care" in a particular case depends on all relevant facts, 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. You should also note that, while the exercise of "due 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 responsibility to notify purchasers of the noncompliance and remedy the noncompliance without charge to the purchasers, if either the manufacturer or this agency determines that vehicles do not comply with all applicable safety standards.

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: nht93-3.36

DATE: May 6, 1993

FROM: John Womack -- Acting Chief Counsel, U.S. Department of Transportation, NHTSA

TO: L. Schmidt

TITLE: None

ATTACHMT: Attached to letter dated 11-20-92 from L. Schmidt to NHTSA (OCC 8091)

TEXT: Your letter requesting information about regulations that might affect substitution of a diesel engine for a "worn out" gasoline engine has been referred to my office for reply. I apologize for the delay in answering.

By way of background, NHTSA is authorized by the National Traffic and Motor Vehicle Safety Act (Safety Act) to issue Federal motor vehicle safety standards (FMVSS's) that set performance requirements for new motor vehicles and new items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with the FMVSS's. Instead, under the Safety Act, each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards.

We do not have any requirements that would apply to the conversion of a vehicle from gasoline to diesel if the conversion is made by you on your own vehicle. The Safety Act and our regulations generally do not apply to a vehicle after the vehicle is sold to a consumer for purposes other than resale. Although the Safety Act prohibits certain entities from tampering with or removing federally required safety systems, the prohibition does not apply to modifications by a vehicle owner to his or her own vehicle.

If the diesel engine were substituted for the gasoline engine by a vehicle manufacturer, distributor, dealer or repair business, the installer would not have to certify the vehicle as described above. Instead, S108(a)(2)(A) of the Safety Act requires any of these parties making the substitution to ensure that it did not knowingly render inoperative any device or system of design installed in compliance with any applicable safety standard, such as Standard 301, "Fuel System Integrity" (49 CFR S571.301, copy enclosed). The purpose of Standard 301 is to reduce deaths and injuries occurring from fires that result from fuel spillage during and after motor vehicle crashes.

The prohibition of S108(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 regardless of its effect on compliance with the FMVSS's. However, NHTSA encourages vehicle owners not to tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

You also asked if any law forbade diesel conversions in zones within your state in which emissions tests are required. We suggest you contact the Environmental Protection Agency for any questions concerning emissions and air quality. The general telephone number for the EPA is (202) 382-2090. You should also contact the state of Wisconsin for emissions testing regulations.

I hope this information is helpful. If you have any more questions about NHTSA's safety standards, please contact David Elias of my staff at this

address or by telephone at (202) 366-2992.

Attachment: 49 CFR S571.301, Fuel System Integrity. (Text omitted.)