Interpretation ID: 08-003275 Well convertible top

Ms. Mary Well

California Suntops

3309 Ladrillo Aisle

Irvine, CA 92606

Dear Ms. Well:

This responds to your letter asking about the applicability of Federal motor vehicle safety standards to fabric used to manufacture convertible tops. You explain that your company will be manufacturing the fabric.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal Motor Vehicle Safety Standards (FMVSSs) that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301, National Traffic and Motor Vehicle Safety Act (Safety Act). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs. If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding, if necessary, to ensure that the manufacturer takes appropriate action. NHTSA also investigates safety-related defects in motor vehicles and motor vehicle equipment.

The Safety Act defines the term motor vehicle equipment in relevant part as follows: 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 a system, part, or component, or as an accessory or addition to a motor vehicle ..." (49 U.S.C. 30102). This definition includes a convertible top, since convertible tops are components manufactured and sold either as original equipment on new vehicles or as a replacement or improvement of the convertible top. Since a convertible top is an item of motor vehicle equipment, the manufacturer of the convertible top must ensure that the convertible tops comply with all applicable FMVSSs and contain no safety-related defects.

Keep in mind that there is no FMVSS that applies to the fabric only. However, as explained below, there are requirements that apply to convertible tops, and the characteristics of the fabric would affect the convertible tops compliance with those requirements.

Convertible Tops for New Vehicles

If the convertible top were added to a new vehicle, i.e., before the vehicle is sold for the first time to a consumer, then it must meet the requirements of FMVSS No. 302, Flammability of interior materials (49 CFR 571.302). FMVSS No. 302 applies to certain vehicle occupant compartment components, including convertible tops, on new completed motor vehicles. Persons selling new vehicles equipped with the convertible top made from your fabric must ensure that the vehicles, including the top with your fabric, conform to FMVSS No. 302. There are other FMVSSs that apply to convertible tops, such as aspects of FMVSS No. 201, Occupant protection in interior impact (49 CFR 571.201). The vehicle manufacturer using your fabric would have to certify compliance of the vehicle with FMVSS No. 302, No. 201, and with all other applicable FMVSS. The manufacturer might ask you for information that would assist it in making its certification, such as the burn rate of your fabric when subjected to FMVSS No. 302 test procedures. Nonetheless, the manufacturer would be responsible for ensuring that its reliance on your assurances were reasonable and that the assurances were bona fide. Also, our requirement that the vehicle must be free of safety related defects has a bearing on the materials used in the manufacture of the vehicle.

For Used Vehicles

If your fabric were used to manufacture convertible tops for use in used vehicles (i.e., vehicles previously purchased in good faith for purposes other than resale), the fabric need not meet FMVSS No. 302. FMVSS No. 302 only applies to new vehicles.

However, you should be aware of 30122 of the Safety Act. That section specifies: A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard ... The flammability resistance of the original vehicle is an element of design installed in a motor vehicle in compliance with FMVSS No. 302. Installation of an item that degraded the flammability resistance of a vehicle may subject the commercial entity to penalties for violating 30122.

Again, the Safety Act requires all vehicle and equipment manufacturers to ensure that their products contain no defects relating to motor vehicle safety. Accordingly, the manufacturer of the convertible tops would be obligated to recall and remedy convertible tops that are determined to contain a safety related defect, even if the convertible tops were installed by the vehicle owners themselves.

Other Considerations

State or local jurisdictions have their own traffic safety laws which could affect the flammability resistance of certain items. For information about those requirements, you should contact the State departments of motor vehicles. You also mentioned private tort liability. For information on that matter, we suggest you contact your private attorney or insurance carrier.

I hope this information is helpful. Enclosed is an information sheet describing generally your responsibilities under the Safety Act. If you have further questions, please contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

Enclosure

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d.11/20/08