Search Interpretations

Interpretation ID: itemco.jeg



    Mr. Maury Solel
    Marketing Manager
    Itemco Industries, Inc.
    57 Cedar Court
    Closter, NJ 07624


    Dear Mr. Solel:

    This responds to your letter asking about the implications of "supplying to the automotive aftermarket a generic air bag." I apologize for the delay in responding. You ask whether the requirements of Standard No. 208 apply to such air bags. Based on a telephone conversation between you and Edward Glancy of my staff, we understand that you contemplate supplying replacement air bag modules for vehicles whose air bags have deployed in crashes. Your question is addressed below.

    By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized under Title 49, Chapter 301 of the U.S. Code (Motor Vehicle Safety) to issue Federal motor vehicle safety standards (FMVSSs) that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. The FMVSSs apply in different ways. Some apply only to new motor vehicles ("vehicle standards"), others apply to new items of motor vehicle equipment ("equipment standards"), while others apply to both new vehicles and new equipment.

    One of the standards established by NHTSA, Standard No. 208, Occupant Crash Protection (49 CFR 571.208), requires air bags to be installed in cars and light trucks. This standard sets forth a number of performance requirements related to air bags. With one exception, Standard No. 208 is a vehicle standard. Manufacturers of new vehicles are required to certify that their vehicles comply with Standard No. 208. The exception is paragraph S9, which is also an equipment standard. This paragraph specifies requirements for pressure vessels and explosive devices for use in air bag systems. Therefore, manufacturers of pressure vessels and explosive devices must certify that they comply with the requirements of S9 of Standard No. 208. You could not sell a replacement air bag module with these components unless the new components were certified as meeting the requirements of S9.

    At this time, there are no other Federal motor vehicle safety standards that apply to air bags as items of motor vehicle equipment.

    However, a manufacturer of a replacement air bag module would be a motor vehicle equipment manufacturer and would be subject to the notification and remedy requirements for products with defects related to motor vehicle safety (49 U.S.C. 30118-30121). A "defect" includes "any defect in performance, construction, a component, or material of a motor vehicle or motor vehicle equipment." "Motor vehicle safety" is defined as "the performance of a motor vehicle or motor vehicle equipment in a way that protects the public against unreasonable risk of accidents occurring because of the design, construction, or performance of a motor vehicle or motor vehicle equipment performance." 49 U.S.C. 30102.

    If the manufacturer or NHTSA determined that the product had a defect related to motor vehicle safety, the manufacturer would have to notify all product purchasers of the defect, and either:

    1. Repair the product so that the defect is removed; or

    2. Replace the product with an identical or reasonably equivalent product that does not have the defect.

    The manufacturer would have to bear the full expense of the recall campaign, irrespective of the option chosen, for any owner who purchased the product less than 10 years before the determination that the defect existed.

    There is also a statutory provision that limits how certain entities may modify motor vehicles. Manufacturers, distributors, dealers and motor vehicle repair businesses are prohibited from knowingly making inoperative any part of a 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 (49 U.S.C. 30122). This provision would generally prohibit one of these entities from removing a functional air bag that was installed in compliance with Standard No. 208.

    Your letter raises the issue of whether, when a deployed air bag is replaced, Federal law requires use of a replacement air bag that will enable the vehicle to comply with Standard No. 208. The answer to this question is no. Our statute does not require a manufacturer, distributor, dealer, or repair business to return a vehicle to compliance with a standard if a device or element of design has been "made inoperative" by another agent, such as a crash. Thus, Federal law does not require that deployed air bags be replaced or regulate the manner in which such air bags are replaced. However, as explained above, replacement bags must be free of safety-related defects. In addition, some States may have requirements applicable to such replacements.

    Furthermore, we emphasize our concern that in order for a replacement air bag to provide protection to vehicle occupants, it is essential that the replacement be properly completed. The repair should be performed according to the procedures specified by the vehicle manufacturer. This may require replacement of system components in addition to the air bag inflator module such as crash sensors, wiring and other electronic components as specified by the manufacturer. Moreover, since air bags are designed for specific vehicles, taking into consideration such factors as the seats, steering column crush stroke force resistance, location of the air bag, location and nature of knee bolsters, and compartment acceleration responses in frontal crashes, we strongly believe that only air bags which are designed for the vehicle in question should be used. Finally, after the air bags are replaced, it is important that the air bag readiness indicator be in good working order to alert the occupants of any future malfunction of the air bag system.

    I also note that, during the past several years, this agency and the industry have focused a great deal of attention on ensuring that air bags are designed to create less risk of serious air bag-induced injuries for persons who are close to the air bag at time of deployment. Among other things, manufacturers have reduced the power of many of their air bags and have used innovative fold patterns to reduce the aggressivity of air bags. The fold patterns may be unique to a specific vehicle model. We would suggest that you carefully consider this issue in designing your product.

    Enclosed for your information is an information sheet titled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment."

    Finally, you may wish to consult a private attorney concerning the state law implications of supplying replacement air bag modules, including possible tort liability implications.

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

    Sincerely,

    John Womack
    Acting Chief Counsel

    Enclosure
    ref:208
    d.4/11/01