Interpretation ID: 003788_noggin_nest

Ms. Liz Franqui
The Boppy Company
560 Golden Ridge Rd., Suite 150
Golden, CO 80401

Dear Ms. Franqui:

This responds to your letter about a product you market called the Noggin Nest. According to your letter, the Noggin Nest is placed behind a babys head "to prevent Flat Head Syndrome." You currently market the product for use in a stroller, car seat [sic], bouncer or swing and would like to market the product for use in motor vehicle child restraint systems. You ask what regulations apply to the Noggin Nest and whether the product can be used in a child restraint without hindering the restraints performance in a crash.

By way of background, the National Highway Traffic Safety Administration (NHTSA) has the authority to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. Section 30102(a)(7) of our statute (40 U.S.C. Chapter 301; "the Safety Act") defines the term "motor vehicle equipment," in pertinent part, as:

(A) any system, part, or component of a motor vehicle as originally manufactured; (B) [or] any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as any accessory or addition to a motor vehicle. [Emphasis added.]

NHTSA has two criteria in determining whether a device is an "accessory." The first criterion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. The second is whether the product is purchased or otherwise acquired, and principally used, by ordinary users of motor vehicles. We believe that the Noggin Nest would meet both of these criteria when you start marketing it for use in child restraint systems. A substantial portion of the expected use of the product would be with respect to use with child restraints. The product would be purchased and principally used by ordinary users of motor vehicles.

NHTSA does not approve or certify any vehicles or items of equipment. Instead, Congress has established a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

There currently are no Federal motor vehicle safety standards (FMVSSs) that directly apply to the Noggin Nest. Our standard for "child restraint systems," FMVSS No. 213, applies to "any device except Type I or Type II seat belts, designed for use in a motor vehicle or aircraft to restrain, seat, or position children who weigh 65 pounds or less." The standard does not apply to accessory items, such as a pad that is used with a child restraint system.

While no FMVSS applies to the Noggin Nest, as a manufacturer of motor vehicle equipment, you are subject to the requirements of 49 U.S.C. 30118-30121 concerning the recall and remedy of products with safety-related defects. I have enclosed an information sheet that briefly describes those and other manufacturer responsibilities. In the event you or NHTSA determines that your product contains a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

In addition, while it is unlikely that the Noggin Nest would be installed by a motor vehicle manufacturer, distributor, dealer or repair business, 49 U.S.C. 30122 prohibits those businesses from installing the device if the installation "makes inoperative" compliance with any safety standard. Our FMVSSs require specific levels of performance for materials used in the occupant compartment of motor vehicles.

You state in your letter that you want to ensure that the Noggin Nest would not affect compliance with FMVSS No. 213 or otherwise interfere with the performance of the child restraint system and ask for guidance in this area. NHTSA is unable to ascertain whether and to what degree your product would affect the performance of a child restraint. However, we make the following observations for your information. The photographs you enclosed show that the product has slots through which the child restraints belts are routed. Depending on their design, some slots could restrict the belts' ability to perform in a crash. Further, padding inserted between the child restraint and the child passenger could compress in a crash and introduce slack into the belt system. In addition, FMVSS No. 213 specifies flammability resistance requirements for child restraints. Any person listed in 30122 who installs a Noggin Nest must not make inoperative the flammability resistance of the child restraint system.

The prohibition of 30122 does not apply to individual owners who install equipment in their own vehicles. Thus, individual owners may install any item of motor vehicle equipment regardless of its effect on compliance with Federal motor vehicle safety standards. However, NHTSA encourages vehicle owners not to degrade the safety of their vehicles or motor vehicle equipment.

State or local jurisdictions might have their own requirements for products such as the Noggin Nest. For information about those requirements, you should contact the Department of Motor Vehicles in any state in which the equipment will be sold or used.

If you have any other questions, please contact Deirdre Fujita of my staff at this address or by phone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:213
d.7/19/04