ID: aiam5076

"Dear Mr. Stevens: This responds to your letter of October 2, 199 requesting information on standards applicable to an 'after market 3rd rear facing seat for the Ford Taurus and Mercury Sable station wagons 1986-1993.' During an October 20, 1992 phone conversation with Mary Versailles of my staff you explained that in most instances these seats are sold for installation in used vehicles, by either the owner or by a dealer or repair business. You also stated that the seat might be installed by a dealer prior to the vehicle's sale. Your three questions and the answer to each follows. Before I address the substance of your letter, I note that your letter requested that the product information enclosed with your letter be treated as confidential. Your request for confidentiality was denied in an October 27, 1992 letter signed by Kathleen DeMeter, our Assistant Chief Counsel for General Law. Accordingly, the product information enclosed with your letter has been placed in NHTSA's public docket, along with your letter and this reply. 1. Does the aftermarket 3rd rear facing station wagon system have to be tested in compliance with FMVSS 207, 209, & 210? The National Traffic and Motor Vehicle Safety Act (the Safety Act, 15 U.S.C. 1381 et seq.) authorizes this agency to issue Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) prohibits any person from manufacturing, introducing into commerce, selling, or importing any new motor vehicle or item of motor vehicle equipment unless the vehicle or equipment item is in conformity with all applicable safety standards. NHTSA, however, does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, the Safety Act establishes a 'self-certification' process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. NHTSA has exercised its authority to establish five safety standards which could be applicable to a 3rd rear facing vehicle seat: Standard No. 207, Seating Systems, Standard No. 208, Occupant Crash Protection, Standard No. 209, Seat Belt Assemblies, Standard No. 210, Seat Belt Assembly Anchorages, and Standard No. 302, Flammability of Interior Materials. Standard No. 209 sets forth strength, elongation, webbing width, durability, and other requirements for seat belt assemblies. This standard applies to all seat belt assemblies for use in motor vehicles, regardless of whether the belts are installed as original equipment in a motor vehicle or sold as replacements. Hence, any seat belts installed on the 3rd rear facing seat have to be certified as complying with Standard No. 209. The remaining four standards apply only to new vehicles. If the 3rd rear facing seat were installed before the vehicle's first purchase for purposes other than resale, the vehicle would have to be certified as complying with all applicable standards, including these four, with the 3rd rear facing seat installed. Standard No. 207 establishes strength and other performance requirements for vehicle seats. Standard No. 208 sets forth requirements for occupant protection at the various seating positions in vehicles. Standard No. 210 establishes strength and location requirements for seat belt anchorages. Finally, Standard No. 302 specifies burn resistance requirements for materials used in motor vehicles, specifically including seat cushions, seat backs, and seat belts. After a vehicle's first purchase for purposes other than resale, i.e., the first retail sale of the vehicle, the only provision in Federal law that affects a vehicle's continuing compliance with an applicable safety standard is set forth in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). 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. Any violation of this 'render inoperative' prohibition would subject the violator to a potential civil penalty of up to $1,000 for each violation. Please note that the 'render inoperative' prohibition does not require manufacturers, distributors, dealers, and repair businesses to certify that vehicles continue to comply with the safety standards after any aftermarket modifications are made. Instead, 'render inoperative' prohibits those entities from performing aftermarket modifications that they know or should know will result in the vehicle no longer complying with the safety standards. Please note also that the 'render inoperative' prohibition does not apply to modifications vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where individual vehicle owners install your company's 3rd seat in their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, individual States have the authority to regulate modifications that individual vehicle owners may make to their own vehicles. 2. The seat belt anchorages are Ford factory anchorages built into the car at the factory and designed for the Ford factory 3rd seat and seat belts. We will be using the same anchorages with aftermarket seat belts already in compliance. Is a test required for this system? As noted above, if these 3rd seats are installed in a vehicle prior to the vehicle's first sale for purposes other than resale, the vehicle must be certified as complying with all applicable safety standards with the 3rd seat installed. NHTSA's position on what steps manufacturers must take before certifying that their vehicles or equipment comply with applicable safety standards has been often stated and applies with equal force in your situation. The compliance test procedures set forth in the safety standards must be followed by this agency during our compliance testing. With respect to your company's 3rd seats, this means that NHTSA's compliance testing for the vehicle would be conducted using the test procedures set forth in the relevant safety standard or standards. Manufacturers certifying compliance with the safety standards are not required to follow exactly the compliance test procedures set forth in the applicable standard. In fact, manufacturers are not required to conduct any actual testing before certifying that their products comply with applicable safety standards. However, to avoid liability for civil penalties if the vehicle were determined not to comply with a safety standard, the Safety Act requires the certifying manufacturer to exercise 'due care' to assure compliance and in making its certification. It may be simplest for the manufacturer to establish that it exercised 'due care' if the manufacturer has conducted testing that strictly followed the compliance test procedures set forth in the standard. However, 'due care' might also be shown by using modified test procedures, engineering analyses, computer simulations, and the like. Thus, the entity that installs your company's 3rd seat in a vehicle prior to the vehicle's first sale will have to decide for itself, in the first instance, what information it needs to make its certification in the exercise of 'due care.' If the 3rd seat were installed after the first purchase of the vehicle in good faith for purposes other than resale, no certification would be required. Instead, any manufacturer, distributor, dealer, or repair shop that performed the installation would have to ensure that the installation did not 'render inoperative' compliance with any applicable safety standard. Actual testing is not required to avoid violating the 'render inoperative' prohibition. Instead, your company could carefully examine your product and the proposed installation instructions and compare those with the requirements of the safety standards, to determine if installing your product in accordance with your instructions would result in the vehicle no longer complying with the standards. 3. If testing is required, must they be specifically Static Tested or Dynamic Crash Tested? Testing is required only in agency compliance testing, as explained above. Agency testing must be conducted in accordance with the test procedures specified in the applicable standard. I note, however, that the dynamic crash testing requirement in Standard No. 208 applies only to the front outboard seating positions. For your information, I have enclosed a sheet for new manufacturers that identifies the basic requirements of our standards and regulations, as well as how to get copies of those standards and regulations. 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, Paul Jackson Rice Chief Counsel Enclosure";

ID: 10595

Mr. Mark Warlick
Four Winds International Corporation
791 C.R. 15 P.O. Box 1486
Elkhart, IN 46515-1486

Dear Mr. Warlick:

This responds to your letter asking how your company would certify compliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 302, Flammability of Interior Materials. You stated that your company manufactures motor homes and purchases interior materials from various vendors for these vehicles. These vendors provide you with letters stating that the materials comply with the FMVSS. You enclosed one such letter, which states that "We have tested the panel ... that was made with COR63-AX-40. We used the MVSS 302 flame test, and obtained a flame rating of 0.64 inches per minute." You ask whether this letter provides a sufficient basis for your company's certification of compliance with FMVSS No. 302.

Some background information would be helpful. As you know, since Standard 302 applies to motor homes and other vehicles, Four Winds, as the vehicle manufacturer, is required to certify compliance with the standard. In the event NHTSA were to find an apparent noncompliance with Standard 302 when testing your vehicle to the requirements of the standard, Four Winds would be asked to show the basis for its certification that the vehicle complies with the standard. If in fact there is a noncompliance, Four Winds would be subject to civil penalties unless it can establish that it exercised "reasonable care" in the design and manufacture of the product (through actual testing, computer simulation, engineering analysis, or other means) to ensure compliance, and did not have reason to know that the vehicle or item of equipment did not in fact comply with the safety standards (49 U.S.C. 30112(b)(2)(A)).

With regard to your specific question, we cannot tell you at this time whether Four Winds' s reliance on a letter from its vendor would constitute "reasonable care" on the part of your company in making its certification to Standard 302. NHTSA is unable to judge what efforts constitute "reasonable care" outside of the course of a specific enforcement proceeding. What constitutes "reasonable care" in a particular case depends on many factors, including such things as the limitations of current technology, the availability of test equipment, the size of the manufacturer, and above all, the diligence exercised by the manufacturer. In the situation you present, your vendor indicated that the burn rate of its material (0.64 inch per minute) is well within the limits of Standard 302 (not more than four inches per minute). The difference between the actual performance of a material and the required performance is a factor NHTSA would consider in making a determination of whether a manufacturer exercised reasonable care in making its certification. Another factor is whether the manufacturer should have determined whether the vendor's assurances were bona fide. Among other things, the expertise, reliability and experience of the vendor would be relevant for that issue.

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

Sincerely,

Philip R. Recht Chief Counsel

ref: 302 d:2/27/95 You should also note that, while the exercise of "reasonable care" may relieve a manufacturer of liability for civil penalties in connection with the manufacture and sale of noncomplying vehicles, it does not relieve a manufacturer of the responsibility to notify purchasers of the noncompliance and remedy the noncompliance without charge to the purchasers (i.e., "recall" the noncomplying vehicle or equipment).

ID: aiam4624

"Dear Mr. Ginsburg: This responds to your letters asking whethe Federal Motor Vehicle Safety Standard (FMVSS) No. 302, Flammability of Interior Materials (49 CFR /571.302), applies to the 'interior window coverings' that you manufacture for 'pick up truck shells.' In your letters, you briefly explain that the 'shell,' which is sold as an aftermarket product, 'is placed directly over the bed of a truck.' The answer to your question is no, Standard No. 302 does not apply to your product. I regret the delay in responding to your letter. By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not grant approval of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with applicable requirements. The following represents our opinion based on our understanding of the facts provided in your letter. There are two factors which lead us to conclude that Standard No. 302 does not apply to your window coverings. First, you manufacture an aftermarket item of equipment--i.e., an accessory or addition to a motor vehicle sold to owners of used vehicles. Standard No. 302 regulates the flammability resistance of curtains and shades in new completed vehicles only. Second, even if the shell and its window coverings were installed on a new vehicle prior to the vehicle's first sale to a consumer, Standard No. 302 applies only to components in the 'occupant compartment air space' (S4), which the agency has indicated is the area in which persons are likely to use to ride. Assuming that we are correct in believing that people do not typically ride in the enclosed bed of the truck, we conclude that the area enclosed by the shell would not be an occupant compartment. This accords with the agency's February 15, 1983 letter to Mr. Nakaya in which NHTSA stated that, with regard to vans, the space to the rear of the rearmost seat was not part of the occupant compartment. Accordingly, since the window coverings in question are not located in the occupant compartment, we conclude that they are not subject to Standard No. 302. Nevertheless, there are two matters that you ought to consider when manufacturing your window coverings. First is the possibility of liability under State and common law if the coverings were to catch fire in a situation where a window covering meeting Standard No. 302's flammability resistance requirements would not have caught fire, or if the coverings burn much more rapidly than coverings meeting those requirements. Second is the possibility of a finding of a safety-related defect in your products. While Standard No. 302 does not directly apply to your product, you should be aware that the window coverings you manufacture are considered to be items of motor vehicle equipment. As the manufacturer of motor vehicle equipment, you are thereby subject to the provisions set forth in sections 151-159 of the Vehicle Safety Act concerning the recall and remedy of equipment with defects relating to motor vehicle safety. If you or this agency determined that your product had a defect relating to motor vehicle safety, you would have to notify all known purchasers of the defect and either repair your product so that the defect is removed, or replace the window coverings with an identical or reasonably equivalent product that does not contain a defect. Your letter did not indicate whether you also manufacture the truck shell to which you refer. If you are the shell manufacturer, and if your product contains glazing material, Standard No. 205 (49 CFR /571.205, Glazing Materials) directly applies to your product. Standard No. 205 is an equipment standard which sets performance requirements for glazing materials used in new and used motor vehicles and glazing materials sold as items of motor vehicle equipment, including glazing used in truck shells. The standard establishes both performance requirements, including those regulating the light transmittance and abrasion resistance of glazing, and labeling requirements applicable to the glazing used in your product. We note also that, since your description of the 'shell' was very brief, we were not certain whether the term 'shell' as you use it includes what our regulations refer to as a 'slide-in camper.' Under Standard No. 126, Truck-Camper Loading (49 CFR /571.126), a 'slide-in camper' is a structure having a roof, floor, and sides, designed for the purpose of providing shelter for persons and to be mounted on and removed from the cargo area of a truck by the user. (See, also, 49 CFR /575.103 for NHTSA's consumer information requirements for trucks that are capable of accommodating slide-in campers.) In light of the possibility that the structures to which you refer are slide-in campers, and that you might be the manufacturer of the campers, we would like to mention our regulations that apply to slide-in campers. Briefly, each slide-in camper must meet Standard No. 205 for any glazing materials used in the camper. In addition, Standard No. 126 requires each slide-in camper to be permanently labeled with information including its maximum loaded weight. This standard also requires each camper to be furnished with an owner's manual that includes information on total camper weight, proper matching of a truck and slide-in camper, appropriate methods of camper loading, and how to determine the camper's center of gravity (cg) and where the cg should be placed in the truck cargo area. All campers must also be certified in accordance with section 114 of the Vehicle Safety Act as conforming to all applicable Federal motor vehicle safety standards. Each camper manufacturer must submit certain information concerning its company pursuant to Part 566 of our regulations, Manufacturer Identification. However, Standard No. 302 does not apply to slide-in campers, even if the slide-in camper is installed on a new pickup truck. Finally, we must decline your request that we review 'California Health and Safety Code Standard No. 19' to inform you whether window coverings that meet the California standard can meet Standard No. 302. NHTSA determines whether a vehicle or item of motor vehicle equipment complies with an applicable safety standard by purchasing vehicles and equipment and testing them under strict conditions according to the procedures specified in the standards. Thus, we determine whether a product subject to our standards complies with those standards by assessing the actual performance of the product in our tests. Since your window coverings are not subject to Standard No. 302, they will not be part of our compliance testing. Further, even if the coverings were subject to Standard No. 302, we have already noted that it is the responsibility of the manufacturer of the motor vehicle or motor vehicle equipment--and not NHTSA--to ensure that its vehicles or equipment comply with applicable FMVSS's. I have enclosed copies of all of the safety standards and regulations mentioned above, and an information sheet explaining how you can obtain copies of NHTSA regulations for your future reference. I hope this information is helpful. Sincerely, Stephen P. Wood Acting Chief Counsel Enclosures";

ID: 9128_freshener

Mr. Robert V. Payne
Transcents, Inc.
11516 Gardenia Dr.
Pittsburgh, PA 15235




Dear Mr. Payne:

This responds to your letter and phone conversations with National Highway Traffic Safety Administration (NHTSA) staff regarding the applicability of Federal Motor Vehicle Safety Standard (FMVSS) No. 302, Flammability of interior materials, to an air freshener system manufactured by your company. As explained below, FMVSS No. 302 does not apply to your product.

In your letter, you described your product as an air freshener system that is installed in the evaporator compartment of a buss ventilation system. You explained that the system automatically sprays a fragrance into the vehicles occupant compartment air space. In a phone conversation with Mr. Chris Calamita of my staff, you explained that your system is typically separated from a vehicles occupant compartment by a louvered vent cover. You asked whether FMVSS No. 302 would apply to your product, or to an aerosolized version of it, when installed in a vehicle.

FMVSS No. 302 applies to new motor vehicles, and specifies burn resistance requirements for particular components, listed in S4.1 of the standard, used in the vehicle occupant compartment. The components listed in S4.1 are:

Seat cushions, seat backs, seat belts, headlining, convertible tops, arm rests, all trim panels including door, front, rear, and side panels, compartment shelves, head restraints, floor coverings, sun visors, curtains, shades, wheel housing covers, engine compartment covers, mattress covers, and any other interior materials, including padding and crash-deployed elements, that are designed to absorb energy on contact by occupants in the event of a crash.

Air freshener systems are not listed in S4.1 of the standard. Also, it appears that your air freshener system is not incorporated into any component listed in S4.1. Thus, your product, including an aerosolized version, is not subject to the requirements of FMVSS No. 302.

Please note that there are other requirements that could affect your product. NHTSA has jurisdiction over defects relating to motor vehicle safety. If a manufacturer or NHTSA determines that a safety-related defect exists, the manufacturer must notify purchasers of its product and remedy the problem free of charge. (Note that this responsibility is borne by the vehicle manufacturer in cases in which your systems are installed on a new vehicle by or with the express authorization of that vehicle manufacturer.)In addition, there are other agencies in the U.S. Department of Transportation that might have requirements for your product. We suggest that you contact the Research and Special Projects Administration at (202) 366-4400 for information about pressure vessels, and the Federal Motor Carrier Safety Administration at (202) 493-0349 concerning requirements for large trucks and buses.

I hope you find this information helpful. If you have any further questions, please contact Mr. Calamita at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:302
d.2/11/05

ID: 006239

ID: nht93-4.29

DATE: June 9, 1993

FROM: William D. McIntosh -- Quality Assurance Manager, Perstorp Components

TO: Chief Council, NHTSA (via John Messera)

TITLE: None

ATTACHMT: Attached to letter dated 4/1/94 from John Womack to William D. McIntosh (42; STD. 302)

TEXT:

This letter is a request for a clarification on FMVSS 302 on an acoustical application in motor vehicles. Reference to the following typical diagram will be made throughout the text.

GRAPHICS OMITTED - SEE ORIGINAL

The composite assembly is an acoustical abatement product that is installed with layer C against vehicle sheet metal inside passenger vehicles. Layer B is always covering and adhering to layer C. The material is not visible to the occupants of the vehicle. It could be covered with carpet, trim, instrument panel etc. It resembles the B and C layers diagrammed in FMVSS 302.

Typical Flammability Results

Layer B SE Full Composite SE to B50 C Sliced at 1/2" SE/NBR to B200 - very dependant on cut quality.

- burning is restricted to C.

We recognize that FMVSS 302 says that test samples are to be cut to 1/2" thickness in preparation to perform the test. The standard goes on to say that the requirement concerning the transmission of a flame front shall not apply to a surface created by the cutting of a test specimen for the purposes of testing. Throughout the development of this product we have worked closely with our automotive customers to ensure that the installed product meets the 101 mm/min propagation criteria of the standard.

I have had discussions with two independent testing labs as well as Mr. John Messera of NHTSA. They agree that we appear to be meeting the spirit of the standard but we received varying comments on how to certify our material to the standard.

Mr. John Messera suggested that we put this question to the NHTSA legal department in the form of a request for a ruling. This letter is a request for such a ruling.

In subsequent conversation with John Messera, he indicated that our product was not listed in S4.1 of FMVSS 302 and as such was not covered by the standard.

If a previous ruling has been made to that effect I would like a copy of that as well.

ID: nht95-1.79

TYPE: INTERPRETATION-NHTSA

DATE: February 27, 1995

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

TO: Mark Warlick -- Four Winds International Corporation

TITLE: None

ATTACHMT: ATTACHED TO 12/16/94 LETTER FROM MARK WARLICK TO PHILIP RECHT (OCC 10595)

TEXT: This responds to your letter asking how your company would certify compliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 302, Flammability of Interior Materials. You stated that your company manufactures motor homes and purchases interior mat erials from various vendors for these vehicles. These vendors provide you with letters stating that the materials comply with the FMVSS. You enclosed one such letter, which states that "We have tested the panel . . . . that was made with COR63-AX-40. We used the MVSS 302 flame test, and obtained a flame rating of 0.64 inches per minute." You ask whether this letter provides a sufficient basis for your company's certification of compliance with FMVSS No. 302.

Some background information would be helpful. As you know, since Standard 302 applies to motor homes and other vehicles, Four Winds, as the vehicle manufacturer, is required to certify compliance with the standard. In the event NHTSA were to find an ap parent noncompliance with Standard 302 when testing your vehicle to the requirements of the standard, Four Winds would be asked to show the basis for its certification that the vehicle complies with the standard. If in fact there is a noncompliance, Fou r Winds would be subject to civil penalties unless it can establish that it exercised "reasonable care" in the design and manufacture of the product (through actual testing, computer simulation, engineering analysis, or other means) to ensure compliance, and did not have reason to know that the vehicle or item of equipment did not in fact comply with the safety standards (49 U.S.C. 30112(b)(2)(A)). n1

n1 You should also note that, while the exercise of "reasonable care" may relieve a manufacturer of liability for civil penalties in connection with the manufacture and sale of noncomplying vehicles, it does not relieve a manufacturer of the responsib ility to notify purchasers of the noncompliance and remedy the noncompliance without charge to the purchasers (i.e., "recall" the noncomplying vehicle or equipment).

With regard to your specific question, we cannot tell you at this time whether Four Winds's reliance on a letter from its vendor would constitute "reasonable care" on the part of your company in making its certification to Standard 302. NHTSA is unable t o judge what efforts constitute "reasonable care" outside of the course of a specific enforcement proceeding. What constitutes "reasonable care" in a particular case depends on many factors, including such things as the limitations of current technology , the availability of test equipment, the size of the manufacturer, and above all, the diligence exercised by the manufacturer. In the situation you present, your vendor indicated that the burn rate of its material (0.64 inch per minute) is well within t he limits of Standard 302 (not more than four inches per minute). The difference between the actual performance of a material and the required performance is a factor NHTSA would consider in making a determination of whether a manufacturer exercised rea sonable care in making its certification. Another factor is whether the manufacturer should have determined whether the vendor's assurances were bona fide. Among other things, the expertise, reliability and experience of the vendor would be relevant fo r that issue.

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

ID: aiam5299

"Dear Mr. Shapiro: This responds to your inquiry about th applicability of Standard No. 302, Flammability of Interior Materials to aftermarket products. You state that you are planning to market fabric window coverings such as drapes and fabric bedding such as bedspreads for use in recreational vehicles. In response to your request for confirmation that Standard No. 302 does not apply to aftermarket products, I am pleased to have this opportunity to explain our regulations to you. By way of background information, NHTSA is authorized to issue Federal Motor Vehicle Safety Standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA does not, however, approve or certify any vehicles or items of equipment. Instead, the Safety Act establishes a 'self-certification' process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. The agency periodically tests new vehicles and items of equipment for compliance with the standards. In response to your question, there are currently no Federal motor vehicle safety standards (FMVSS's) that directly apply to the products you wish to manufacture. Under the authority of the Safety Act, NHTSA has issued Standard No. 302, which specifies requirements for the flammability resistance of materials in the occupant compartment of new vehicles. However, Standard No. 302 would not apply to your products because that standard applies to new motor vehicles and not to aftermarket items of motor vehicle equipment. I note, however, that there are other Federal requirements that indirectly affect the manufacture and sale of your products. Under the Safety Act, your products are considered to be items of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements in 151-159 of the Safety Act concerning the recall and remedy of products with safety related defects. I have enclosed an information sheet that briefly describes those responsibilities. In the event that you or NHTSA determines that your products contain a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge. I note that even though Standard No. 302 would not apply to your product, the product's flammability characteristics could be relevant to whether it contained a safety related defect. Manufacturers, distributors, dealers, and motor vehicle repair businesses are subject to 108(a)(2)(A) of the Safety Act, which states: 'No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative ... 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 ....' This section would prohibit any manufacturer, distributor, dealer, or repair business from installing your product in used vehicles if the effect of such installation was to render inoperative the compliance of the vehicle with any safety standard, including Standard No. 302. The 'render inoperative' prohibition of 108(a)(2)(A) does not apply to the actions of vehicle owners in adding to or otherwise modifying their vehicles or items of motor vehicle equipment. Thus, if your products were placed in vehicles by the vehicle owners, your products would not need to meet any FMVSSs. Nevertheless, in the interest of safety, we suggest you consider conforming your product to a flammability resistance standard equivalent to Standard No. 302. I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992. Sincerely, John Womack Acting Chief Counsel Enclosure";

ID: 1985-02.7

TYPE: INTERPRETATION-NHTSA

DATE: 04/01/85

FROM: AUTHOR UNAVAILABLE; Jeffrey R. Miller; NHTSA

TO: Mr. L.R. Cederbaum

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. L.R. Cederbaum Project Engineer Sagaz Industries, Inc. 16241 N.W. 48th Avenue Miami, FL 33014

Dear Mr. Cederbaum:

This responds to your letter to Steve Kratzke of my staff, seeking an interpretation of the requirements of Standard No. 302, Flammability of interior materials (49 CFR S571.302). Specifically, you asked if the flammability requirements set forth in section S4.3 for original equipment seat covers apply to "aftermarket" seat covers. The flammability requirements in Standard No. 302 must be met by aftermarket seat covers only if such seat covers are installed by manufacturers, dealers, distributors, or repair shops. Those aftermarket seat covers which are installed by the vehicle owner are not subject to the requirements of Standard No. 302.

Generally speaking, Standard No. 302 applies to motor vehicles prior to their first purchase in good faith for purposes other than resale, and not to aftermarket accessories for use with or in the vehicle, i.e., not to accessories added to a vehicle after such purchase. The general rule is that aftermarket seat covers may be added to vehicles, even if the addition of those seat covers causes the vehicle to no longer comply with the requirements of Standard No. 302, without violating the requirements of the Act.

This general rule is, however, limited by the application of the provisions of Section 108 (a)(2)(A) of the National Traffic and Motor Vehicle Safety Act, as amended (hereinafter "the Safety Act"; 15 U.S.C. 1397 (a)(2)(A)). That section specifies: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative ... 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 ..." The flammability resistance of the original seat covers is considered an element of design installed in a motor vehicle in compliance with Standard No. 302. Thus, a manufacturer, distributor, dealer, or motor vehicle repair business which installed a seat cover which did not comply with the flammability resistance requirements of Standard No. 302 would be rendering inoperative that element of design, and thereby violating section 108 (a)(2)(A) of the Safety Act. Section 109 of the Safety Act (15 U.S.C. 1398) specifies a civil penalty of up to ,000 for each violation of section 108, and each installation of a noncomplying seat cover would be considered a separate violation.

You should note that the prohibitions of Section 108 (a)(2)(A) do not apply to the vehicle owner rendering inoperative some element of design in his or her vehicle, and therefore aftermarket seat covers which are sold to and installed by owners need not satisfy the flammability resistance requirements of Standard No. 302.

There are two factors which ought to be considered by the manufacturers of seat covers which do not satisfy the flammability resistance requirements of Standard No. 302. First is the possibility of liability under State and seat covers which complied with the flammability requirements would not have caught fire, or if those seat covers burn much more rapidly than seat covers which comply with Standard No. 302. Second is the possibility of a finding of a safety-related defect in those seat covers. Should such seat covers readily catch fire or burn very rapidly in situations where seat covers which satisfied the flammability requirements would not, the seat covers might well be found to contain a safety-related defect. Sections 151-154 of the Safety Act (15 U.S.C. 1411-1414) require that, when an item of motor vehicle equipment contains a safety-related defect, the manufacturer of the item must recall and repair or replace the defective equipment without charge to the purchaser.

If you have any further questions or need more information on this subject, please contact Mr. Kratzke at this address or by telephone at (202) 426-2992.

Sincerely,

Original Signed By

Jeffrey R. Miller Chief Counsel

February 19, 1985

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION Office of Chief Counsel Room 5219 407 7th Street, S.W. Washington, D.C. 20590

ATTENTION Mr. Steve Kratzke Subject: Motor Vehicle Safety Standard No. 302 Par. S 4. Requirements

Dear Sir: This letter confirms our telephone conversation of February 19, 1985 in which the applicability of subparagraph S 4.1, which lists various components of the vehicle occupant compartment that shall meet the flammability requirement as described in S4.3(a) of MVSS No. 302.

It is my understanding from your statement this Standard No. 302 and its subsequent requirements do not apply to "after market automobile seatcovers."

I would appreciate letter confirmation of this fact.

Thank you for your service.

Very Truly, SAGAZ INDUSTRIES, INC.

L.R. Cederbaum, Project Engineer

LRC/tr

ID: nht87-2.70

TYPE: INTERPRETATION-NHTSA

DATE: 08/13/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Peter H. Ziemke

TITLE: FMVSS INTERPRETATION

TEXT:

Peter H. Ziemke, Esq. Pryor, Carney and Johnson P.O. Box 22003 Wellshire Station Denver, CO 80222-0003

Dear Mr. Ziemke:

This responds to your request for a determination of the applicability of the National Traffic and Motor Vehicle Safety Act of 1966, as amended (the Safety Act: 15 U.S.C. 1381 et seq.) to a client of your firm. This client performs several patented steps on flat fabric to produce a fabric containing honeycomb-shaped air cells. The processed fabric is then sold in bulk to fabricators licensed by your client. These fabricators manufacture the bulk fabric into custom-made window shades for use in mobile ho mes and recreational vehicles. Your client intends to advertise this product as suitable for use in motor vehicles and available in finished form through licensed fabricators.

You then posed four questions based on these facts. First, you asked whether the processed fabric your client sells to fabricators to be made into window shades for motor vehicles would be considered "motor vehicle equipment" under the Safety Act. Proces sed fabric by itself is not considered motor vehicle equipment.

As you noted in your letter, the term "motor vehicle equipment" is defined in section 102(4) of the Safety Act (15 U.S.C. 1391(4)) a follows:

"Motor vehicle equipment" means any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as an accessory or addition to the motor vehicle ..."

The window shades for motor vehicles that are produced after further manufacturing operations are performed on the fabric sold by your client are motor vehicle equipment for the purposes of the Safety Act. That is because those window shades are both man ufactured and sold for replacement or improvement of the window shades in vehicles or as an addition to those vehicles that do not have window shades.

However, the processed fabric itself must have further manufacturing operations performed on it before it is sold as window shades for motor vehicles. We do not believe that the term "motor vehicle equipment' can fairly be read to include materials that are not products for use in or with motor vehicles, but can be made into such products if some further manufacturing operations are performed on the subject materials. If the term were read so broadly, all aluminum and steel would be considered motor veh icle equipment, since those materials can be made into motor vehicle parts, most upholstery would be motor vehicle equipment, since could be made into seat covers, and so forth. Such an overbroad reading would be inconsistent with the meaning and intent of the Safety Act. Accordingly, the processed fabric produced by your client is not motor vehicle equipment for the purposes of the Safety Act.

Second, you asked whether your client would be considered a "manufacturer" under the Safety Act by virtue of its production of the processed fabric. Section 102(5) of the Safety Act (15 U.S.C. 1391(5)) defines a "manufacturer" as "any person engaged in t he manufacturing or assembling of motor vehicles or motor vehicle equipment, including any person importing motor vehicles or motor vehicle equipment for resale." Since the processed fabric is not considered motor vehicle equipment, as explained above, y our client is not a "manufacturer" for purposes of the Safety Act. Conversely, since the window shades for use on motor vehicles are motor vehicle equipment, the licensed fabricators that convert the processed fabric into such window shades would be manu facturers for purposes of the Safety Act.

Your third and fourth questions were based on the assumption that the processed fabric would be considered motor vehicle equipment and your client would be considered a manufacturer. Even though these assumptions were not correct, I would like to answer these questions, so that your client will understand the responsibilities of the licensed fabricators that turn its processed fabric into window shades for motor vehicles. You asked whether a manufacturer of motor vehicle equipment would be required to c omply with the Safety Act and Federal Motor Vehicle Safety Standard No. 302 (49 CFR S57l.302) if the product is only advertised for sale to owners of vehicles for them to install themselves, or, alternatively, if the product is only advertised for sale t o customizers and automobile dealers.

All manufacturers of motor vehicle equipment are subject to the provisions set forth in sections 151-159 of the Safety Act (15 U.S.C. 1411-1419 concerning the recall and remedy of equipment with defects related to motor vehicle safety. If it were determi ned that these vehicle window shades had a defect related to motor vehicle safety, the shade manufacturer would have to notify all purchasers of the defect and either:

l. repair the shade so that the defect is removed: or

2. replace the shade with an identical or reasonably equivalent product that does not have a defect.

Whichever of these options were chosen, the manufacturer would have to bear the full expense of the remedy and could not charge the product owners for the remedy if the shades were first purchased less than 8 years before the notification campaign. These responsibilities apply to all equipment manufacturers, regardless of whether the shades were installed by vehicle owners or customizers and dealers.

With respect to Standard No. 302, it sets forth flammability requirements that must be met by shades in motor vehicles. Generally, however, the requirements set forth in Standard No. 302 apply to a vehicle only until its first purchase in good faith for purposes other than resale, and not to aftermarket shades added to a vehicle after its first purchase. Under this general rule, it would not violate Standard No. 302 to add aftermarket shades to vehicles after the first purchase in good faith for purpose s other than resale, even if the addition of the shades caused the vehicles to no longer comply with Standard No. 302.

This general rule is, however, limited by the application of the provisions of section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section specifies: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowing ly render inoperative ... 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 ..." The flammability resistance of the original vehicl e is an element of design installed in a motor vehicle in compliance with Standard No. 302. Thus, a manufacturer, distributor, dealer, or motor vehicle repair business that installed window shades which did not comply with the flammability resistance req uirements of Standard No. 302 would be rendering inoperative that element of design, and thereby violating section lOB(a)(2)(A) of the Safety Act. Section 109 of the Safety Act (l5 U.S.C. 1398 specifies a civil penalty of up to ,000 for each violation of section 108, and each vehicle in which noncomplying shades were installed would be considered a separate violation.

Accordingly, there is a difference in the application of Standard No. 302 to the window shade manufacturers, depending on who installs those shades in vehicles. As explained above, if the finished shades do not afford at least as good a level of flammabi lity resistance as is specified in Standard No. 302, the shades cannot legally be installed in vehicles by any manufacturer, distributor, dealer, or motor vehicle repair business. However, shades which provide lesser flammability resistance than is speci fied in Standard No. 302 may legally be installed in vehicles by the owners of those vehicles. To repeat, the shade manufacturer would still be obligated to recall and remedy shades that are determined to contain a defect related to motor vehicle safety, even if those shades were installed by vehicle owners themselves.

Sincerely,

Erika Z. Jones Chief Counsel

May 22, 1987 Erika Z. Jones, Esq. National Highway Traffic Safety Administration Office of Chief Counsel 400 Seventh Street, S.W., Room 5219 Washington. D. C. 20590

Re: Request for Formal Determination of Applicability of National Highway Traffic Safety Act to Hunter Douglas, Inc.

Dear Ms. Jones :

On December 19, 1986, I spoke with Steven Oesch, Esq. of your office regarding the applicability of the National Highway Traffic Safety Act ( "the Act") to certain activities of my client, Hunter Douglas, Inc. After some discussion with Mr. Oesch, he sug gested that I apply for a formal determination from your office of the applicability of the Act to my client. Please consider this letter my formal request, on behalf of Hunter Douglas, Inc., for a determination of whether the Act governs the following a ctivities of my client.

This law firm represents the window fashions division of Hunter Douglas, Inc., a Delaware corporation. The window fashions division is located at 601 Alter Street, Broomfield, Colorado 80020. Hunter Douglas is the owner of certain technologies for the ma nufacture of a window covering product known as a honeycomb fabric pleated shade. The flat fabric is purchased by Hunter Douglas from outside sources and, through several patented processing steps performed by Hunter Douglas, the finished product is a fa bric window shade containing honeycomb-shaped air cells . The processed fabric is then sold in bulk to fabricators who manufacture window shades to customers " specifications. One of the intended applications for this product is custom-made window shades for mobile homes and recreational vehicles. Hunter Douglas requests a formal determination of whether its involvement in this product brings it within the scope of the Act as a "manufacturer" of motor vehicle equipment. " subject to Federal Safety Stand ard 302 and the accompanying recordkeeping and certification requirements of the Act.

Erika Z. Jones, Esq.

May 22, 1987

Page 2

As stated above, Hunter Douglas, Inc. is not the manufacturer of the finished product; rather, it simply manufacturers one of the component parts of a product and promotes it for use in, among other things, motor homes and recreational vehicles. The fabr ic shade has been manufactured from flame retardant material and has passed the standard NFPA 701 " fire tests for flame-resistant textiles and films" and also meets Safety Standard 302.

Hunter Douglas, Inc. intends to advertise this product, available in finished form through licensed fabricators, for sale to owners of recreational vehicles and motor homes and also to businesses specializing in customizing recreational vehicles and moto r homes for the owners of the vehicles. It is our understanding that Federal Safety Standard 302 is a "dealer standard ": That vehicle manufacturers and dealers are the entitles required to conform to Federal Safety Standard 302 and not replacement equip ment manufacturers who manufacture equipment for sale to individual vehicle owners and to customizers.

Based upon the above facts, please provide me with a formal determination of the following:

1. Is the product manufactured by Hunter Douglas, Inc.--materials used by other non-affiliated manufacturers to construct window shades which Hunter Douglas, Inc. advertises as suitable for automotive use - "motor vehicle equipment" within the meaning of 15 U.S.C. S 1391(4)1?

2. Is Hunter Douglas, Inc. - manufacturer of a material sold to other non-affiliated manufacturers for the manufacture of window shades, advertised by Hunter Douglas, Inc. as suitable for use in motor vehicles - a "manufacturer" within the meaning of 15 U.S.C. S 1391(5)?

3. If the answers to nos. 1 and 2 above are affirmative, is Hunter Douglas, Inc. required to comply with the Act and Federal Safety Standard No. 302 If the product Is only advertised for sale to private owners of motor vehicles?

4. If the answers to nos. 1 and 2 above are affirmative, is Hunter Douglas, Inc. required to comply with the Act and Federal Safety Standard No. 302 If the product is only advertised for sale to customizers or automobile dealers?

If you need any additional Information about this product, its intended uses, Hunter Douglas ' contractual arrangements with its fabricators

Erika Z. Jones, Esq. May 22, 1987 Page 3

or any other information, please contact me at your convenience and I will collect the information you need from Hunter Douglas, Inc. and transmit it to you as quickly as possible. Thank you.

Sincerely yours,

PRYOR, CARNEY AND JOHNSON

A Professional Corporation

Peter H. Ziemke

PHZ/pre

cc: Steven Oesch, Esq. Hunter Douglas, Inc., Window Fashions Division