Interpretation ID: aiam5174
CA 90280;
"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";