ID: nht95-6.29

TYPE: INTERPRETATION-NHTSA

DATE: August 30, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Paul Jackson Rice, Esquire -- Arent Fox

TITLE: NONE

ATTACHMT: ATTACHED TO 08/30/95 LETTER FROM PAUL JACKSON RICE TO JOHN WOMACK

TEXT: Dear Mr. Rice:

This responds to your letter of August 30, 1995, concerning a June 6, 1995 letter from this office to C. Rufus Pennington, III. You asked us to confirm that the agency did not take a position as to whether there are "designated seating positions" in the rear of the 1979 911 SC Porsche.

You are correct. As the letter clearly states, "NHTSA cannot make a determination as to whether a vehicle complied with applicable safety standards outside a compliance proceeding.

I hope this information has been helpful.

ID: nht95-4.7

TYPE: INTERPRETATION-NHTSA

DATE: August 30, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Paul Jackson Rice, Esquire -- Arent Fox

TITLE: NONE

ATTACHMT: ATTACHED TO 08/30/95 LETTER FROM PAUL JACKSON RICE TO JOHN WOMACK

TEXT: Dear Mr. Rice:

This responds to your letter of August 30, 1995, concerning a June 6, 1995 letter from this office to C. Rufus Pennington, III. You asked us to confirm that the agency did not take a position as to whether there are "designated seating positions" in the rear of the 1979 911 SC Porsche.

You are correct. As the letter clearly states, "NHTSA cannot make a determination as to whether a vehicle complied with applicable safety standards outside a compliance proceeding.

I hope this information has been helpful.

ID: jack

Paul Jackson Rice, Esquire
Arent Fox
1050 Connecticut Avenue, NW
Washington, DC 20036-5339

Dear Mr. Rice:

This responds to your letter of August 30, 1995, concerning a June 6, 1995 letter from this office to C. Rufus Pennington, III. You asked us to confirm that the agency did not take a position as to whether there are "designated seating positions" in the rear of the 1979 911 SC Porsche.

You are correct. As the letter clearly states, "NHTSA cannot make a determination as to whether a vehicle complied with applicable safety standards outside a compliance proceeding."

I hope this information has been helpful.

Sincerely,

John Womack Acting Chief Counsel

ref:208 d:8/30/95

ID: aiam0321

Dear Mr. Sumner: This is in reply to your letter of March 16, 1971, in which you as certain questions concerning a child booster seat that you plan to market. You describe the booster seat as a rectangle about 6 inches in height, tapering to 4 inches in the front, and state that it would be advertised for use by children under 50 pounds and would not be designed to fall into the category of child seating systems under Standard No. 213. You also state that your engineers feel a booster chair will 'definitely help more five, six and seven year old children to use seat belts simply because these children will be able to see out of a vehicle.'; While you state that the booster seat 'would not be designed to fal into the category of child seating systems under Standard No. 213,' it is not clear from your description of the device that this is actually the case. If you wish an opinion on this matter, we will provide one, but to do so we will need some additional information. Specifically, we will need to know if the booster seat is to be designed or advertised for use with the vehicle seat belts, and if so, how it will be so designed or advertised.; The questionsyou (sic) ask concerning the booster seat are: (1) Can w set a minimum of 50 or 60 pounds?(2)Exactly (sic) what is the maximum child weight covered under MVSS No. 213? and (3) What recommended weight can we advertise as a minimum for our booster seat?; The answers to these questions do not depend on whether the standar applies to your booster seat. If the device is a child seating system, Standard No. 213 does not specify the minimum or maximum heights or weights for children who may use it. Under the standard, it is up to the manufacturer to determine, based upon the design of each particular child seating system, the heights and weights of children for which he recommends the child seating system.; If the device is not a child seating system, the manufacturer is no required to recommend any heights or weights for children who can use it. Should he choose to do so, however, the heights and weights recommended must be consistent with the safe use of the device.; Sincerely, Lawrence R. Schneider, Acting Chief Counsel

ID: aiam3464

Dear Ms. Anderson: This responds to your letter of September 9, 1981, concerning th Federal flammability requirements applicable to seat covers for child restraints. As explained below, if the seat cover is sold as an item of original equipment on a child restraint system, it must meet the flammability requirements of Safety Standard No. 213, *Child Restraint Systems*. If the seat cover is sold as an item of aftermarket equipment, it is not covered by the standard. However, we would urge you to consider voluntarily complying with the standard.; Standard No. 213, *Child Restraint Systems* (49 CFR 571.213), set performance requirements for child restraints as pieces of motor vehicle equipment. Section 5.7 of the standard provides that, 'Each material used in a child restraint system shall conform to the requirements of S4 of Safety Standard No. 302 (S571.302.)' Standard No. 302, *Flammability of Interior Materials*, provides that when tested under specified conditions, material may not have a burn rate of more than 4 inches per minute (copy enclosed). Thus, if your seat cover is sold as a component on a new child restraint, that child restraint must comply with the requirements of S5.7 of Standard No. 213. Under the National Traffic and Motor Vehicle Safety Act (the Act, 15 U.S.C. 1392 *et seq*., copy enclosed), manufacturers have the responsibility of certifying that they comply with all applicable standards. The agency does not grant prior approval or conduct tests to support a manufacturer's certification. Therefore, I am returning the sample of your seat cover.; Although Standard No. 213 only covers the manufacture of items o original equipment in child restraints, sale of your seat cover as an item of aftermarket equipment is indirectly affected by Section 108(a)(2)(A) of the Act. That section provides:; >>>No manufacturer, distributor, dealer or motor vehicle repai 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....<<<; Thus, none of the persons mentioned could not (sic) knowingly instal your seat cover on a used child restraint if it renders inoperative the restraint system's compliance with Standard No. 213. However, the prohibitions of the Act and the standard do not cover sale of your cover as an aftermarket device nor its installation solely by the vehicle or equipment owner.; Regardless of whether your seat cover must comply with Standard No 213, as a manufacturer of motor vehicle equipment you have defect responsibilities under sections 151 *et seq*. of the Act. Those sections provide that manufacturers of motor vehicles and motor vehicle equipment must notify owners of safety-related defects in their products and remedy those defects free of charge. If your covers are highly flammable, this could be regarded as a safety- related defect.; If you have any further questions, please let me know. Sincerely, Frank Berndt, Chief Counsel

ID: aiam5549

"Dear Ms. Gazich: This responds to your letter asking about how thi agency's regulations might apply to your product, the 'Smart Rider.' In your letter, you described the Smart Rider as a 'new automobile accessory for children.' It is a vinyl seat back protector that slips over one or both of the front seats and secured, we assume, with the two 3/4 inch elastic bands. The answer to your question is that there are no standards that apply directly to the Smart Rider, but there are Federal requirements that may affect it. I summarize below the relevant safety standards and laws you should consider. As you recognized in your letter, the Smart Rider is an accessory, a type of motor vehicle equipment under our regulations. As a manufacturer of motor vehicle equipment, you are subject to the requirements in sections 30118-30122 of Title 49 of the U.S. Code concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that the manufacturer or NHTSA determines that the product contains a safety related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge. NHTSA has not issued any standards for an accessory such as the Smart Rider. For that reason, you should not place any label on your packaging to the effect that it meets Federal standards. Although no standards apply directly to the Smart Rider, its installation may affect vehicle compliance with certain safety standards. NHTSA has issued a safety standard (Standard No. 201, Occupant protection in interior impact) that requires, among other things, that seat backs have a certain amount of cushioning to provide protection when struck by the head of rear seat passengers during a crash. Installation of your product on the back of front seats could have an impact on compliance with that standard. If the vinyl of the Smart Rider is stiff enough, it might distribute the impact of the occupant's head over a larger area of the seat back than the vehicle manufacturer intended. As a result, the foam in the seat back might not compress as deeply as the manufacturer intended, and the requisite amount of cushioning might not be achieved. We do not know how stiff the vinyl is, and this may not be a problem, but it is something of which you should be aware. Another standard that you might want to consider is Standard No. 302, Flammability of interior materials. That standard requires that seat backs not burn or transmit a flame front across their surface at a rate of more than 4 inches per minute. If the Smart Rider were installed as part of a new vehicle, it would be considered part of the seat back. Which legal requirements apply depend to some extent on how your product is marketed. If your product were installed by a vehicle manufacturer as original equipment, the vehicle manufacturer would have to certify that the vehicle with the Smart Rider installed complies with all FMVSS's, including Standards No. 201 and 302. In addition, although we recognize it would be unlikely that your product would be installed by a motor vehicle manufacturer, distributor, dealer or repair business, section 30122(b) of title 49 prohibits those commercial businesses from 'knowingly mak ing inoperative any part of a device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard . . .' For instance, compliance with Standard No. 201 might be degraded if the Smart Rider were mounted in front of rear seat passengers. Any violation of this 'make inoperative' prohibition would subject the installer to a potential civil penalty of up to $1,000 for each violation. The 'make inoperative' prohibition does not apply to modifications that vehicle owners make to their own vehicles. Thus, our standards would not apply in situations where individual vehicle owners install the Smart Rider in their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, NHTSA encourages vehicle owners not to degrade any safety device or system installed in their vehicles. In addition, individual States have the authority to regulate modifications that individual vehicle owners may make to their vehicles, so you might wish to consult State regulations to see whether the Smart Rider would be permitted. I want to emphasize that NHTSA has not made a determination regarding the safety of the Smart Rider. NHTSA has not done any testing of your product. I am merely informing you of the applicable law and identifying a few potential problem areas for your consideration. I hope this information is helpful. I am also enclosing a copy of a fact sheet titled 'Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment.' If you have any further questions about NHTSA's safety standards, please feel free to contact Mr. Atelsek of my staff at this address or by telephone at (202) 366-2992. Sincerely, John Womack Acting Chief Counsel Enclosure";

ID: aiam3465

Dear Ms. Anderson: This responds to your letter of September 9, 1981, concerning th Federal flammability requirements applicable to seat covers for child restraints. As explained below, if the seat cover is sold as an item of original equipment on a child restraint system, it must meet the flammability requirements of Safety Standard No. 213, *Child Restraint Systems*. If the seat cover is sold as an item of aftermarket equipment, it is not covered by the standard. However, we would urge you to consider voluntarily complying with the standard.; Standard No. 213, *Child Restraint Systems* (49 CFR 571.213), set performance requirements for child restraints as pieces of motor vehicle equipment. Section 5.7 of the standard system shall conform to the requirements of S4 of Safety Standard No. 302 (S571.302).' Standard No. 302, *Flammability of Interior Materials*, provides that when tested under specified conditions, a material may not have a burn rate of more than 4 inches per minute (copy enclosed). Thus, if your seat cover is sold as a component on a new child restraint, that child restraint must comply with the requirements of S5.7 of Standard No. 213. Under the National Traffic and Motor Vehicle Safety Act (the Act, 15 U.S.C. 1392 *et seq*., copy enclosed), manufacturers have the responsibility of certifying that they comply with all applicable standards. The agency does not grant prior approval or conduct tests to support a manufacturer's certification. Therefore, I am returning the sample of your seat cover.; Although Standard No. 213 only covers the manufacture of items o original equipment in child restraints, sale of your seat cover as an item of aftermarket equipment is indirectly affected by Section 108(a)(2)(A) of the Act. That section provides:; >>>No manufacturer, distributor, dealer or motor vehicle repai 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....<<<; Thus, none of the persons mentioned could not (sic) knowingly instal your seat cover on a used child restraint if it renders inoperative the restraint system's compliance with Standard No. 213. However, the prohibitions of the Act and the standard do not cover sale of your cover as an aftermarket device nor its installation solely by the vehicle or equipment owner.; Regardless of whether your seat cover must comply with Standard No 213, as a manufacturer of motor vehicle equipment you have defect responsibilities under sections 151 *et seq*. of the Act. Those sections provide that manufacturers of motor vehicles and motor vehicle equipment must notify owners of safety-related defects in their products and remedy those defects free of charge. If your covers are highly flammable, this could be regarded as a safety- related defect.; If you have any further questions, please let me know. Sincerely, Frank Berndt, Chief Counsel

ID: aiam4735

"Dear Ms. Avis: This responds to your letter to this agency askin about Federal regulations that apply to 'an accessory seat pad' for booster seats and child restraint systems. I regret the delay in responding. Your letter describes your product as a fabric seat cushion which is intended to provide comfort and head support to a child when the child is sleeping in the restraint system. You state that the cushion would be 'held in place' on the seat with 'the strap system inherent to the booster seat along with the weight of the child on the seat.' There is currently no Federal motor vehicle safety standard that is directly applicable to the product you wish to manufacture and sell. Our standard for child restraint systems (Standard No. 213) applies only to new systems and not to aftermarket components of a child restraint system, such as an aftermarket seat-pad. However, there are other Federal laws that indirectly affect your manufacture and sale of the seat-pad. Under the National Traffic and Motor Vehicle Safety Act, your product is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. I have enclosed an information sheet that briefly describes those responsibilities. In the event that you or NHTSA determines that your seat-pads contain a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge. If your product would be installed by commercial businesses instead of child seat owners, those businesses would have to do so in a manner consistent with section 108(a)(2)(A) of the Act. The provision 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 ...' Thus, this provision prohibits manufacturers, distributors, dealers or motor vehicle repair businesses (i.e., any person holding him or herself out to the public as in the business of repairing motor vehicles or motor vehicle equipment for compensation) from installing your seat-pad if the addition of your product would negatively affect the compliance of a child restraint with Standard 213 and if the installing business were aware of that effect. There are elements of design incorporated in a child restraint system pursuant to Standard 213 that may be affected by installation of a seat-pad. For example, Standard 213 sets flame-retardant performance requirements for materials used in a child restraint system. (See paragraph S5.7 of Standard 213, referencing Standard 302, Flammability of Interior Materials (copy enclosed).) Installation of rapidly burning materials could vitiate the compliance of the child restraint with FMVSS No. 213. Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of 108. In addition, Standard 213 sets crash protection requirements for all new child restraint systems. It is unclear from your letter whether the seat-pad has provision for passing the belt systems of a child restraint around or through the pad and cushion. If the installation of your seat-pad would impair the function of a belt installed to restrain the child, then any manufacturer, distributor, dealer, or motor vehicle repair business installing the seat-pad would likely be regarded as having knowingly rendered inoperative a Federally required element of design in child restraint systems, in violation of 108(a)(2)(A). The prohibitions of 108(a)(2)(A) do not apply to the actions of a vehicle owner in adding to or otherwise modifying his or her vehicle or motor vehicle equipment. Nevertheless, this agency urges you to voluntarily ensure that your seat-pad would not render inoperative the crash protection and flammability resistance of any child restraint. I hope this information is helpful. Please contact us if you have further questions. Sincerely, Stephen P. Wood Acting Chief Counsel Enclosure";

ID: aiam5364

"Dear Dr. Sackoff: This responds to your letter to this agency wit reference to Federal Motor Vehicle Safety Standard No. 109, New Pneumatic Tires. Your specific question addressed S4.2.2.4, Tire strength, which states: 'Each tire shall meet the requirements for minimum breaking energy specified in Table I when tested in accordance with S5.3.' You asked for an interpretation of the term 'breaking,' whether it means a blowout of the tire or the breaking of the tire caused by the plunger used in the test specified in the standard. The breaking energy test is a measure of the resistance of the tire to bruise or damage due to impact of the tire with road hazards. This agency tests such resistance in accordance with the procedures of S5.3, Tire strength, of the standard. In that test, a cylindrical steel plunger is forced perpendicularly into the tire rib at the rate of 2 inches per minute at five test points equally spaced around the circumference of the tire. The inch-pounds of force required to push the plunger into the tire is continuously monitored. As the plunger pushes into the tire, the resistance to the plunger force increases. That resistance requires ever-increasing force applied to the plunger to continue pushing it into the tire. Ultimately, one of two things will happen: 1. The plunger will push all the way to the rim, or 2. The tire cords, plies, innerliner, or other components of the tire will stretch, separate, crack or break so that the resistance pressure of the tire diminishes. The 'breaking' of the tire at that point does not require an actual blow-out although, obviously, a blow-out would constitute a 'breaking.' The plunger force is measured just prior to contact with the rim as in 1 above or just prior to the force reduction described in 2 above. The measured force is then combined with the penetration of the plunger into the tire as specified in S5.3.2.3 and S5.3.2.4 of the standard. The breaking energy value of the tire is then determined by computing the average of the values obtained at the five test locations on the tire. Table I, Appendix A of the standard specifies the minimum breaking energy of tires based on tire type, size, composition, and inflation pressure. I hope this information is helpful to you. Should you have any further questions or need any additional information, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992. Sincerely, John Womack Acting Chief Counsel";

ID: aiam5174

"Dear Mr. Gonzalez: 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 571.208), 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, 108(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. Sincerely, John Womack Acting Chief Counsel";