Interpretation ID: nht87-1.97

TYPE: INTERPRETATION-NHTSA

DATE: 06/04/87

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: BRUCE W. SMITH -- PRESIDENT UNIT CORPORATION

TITLE: NONE

ATTACHMT: LETTER DATED 02/12/87 TO JONES; FROM BRUCE W. SMITH

TEXT: Dear Mr. Smith:

This responds to your letter, in which you sought this agency's "recommendation" on one of your new products. The product in question is a sun visor intended to be used on rear-facing toddler seats. I am pleased to have this opportunity to explain our statute and regulations to you.

This agency has promulgated the Federal motor vehicle safety standards under the authority granted by Congress in the National Traffic and Motor Vehicle Safety Act, as amended (15 U.S.C. 1381 et seq.). In the case of your sun visor, the only safety stan dard with which you would be concerned is Standard No. 213, Child Restraint Systems (49 CFR @571.213), a copy of which is enclosed for your information. Please note that the Safety Act specifies that all of our standards applicable to items of motor veh icle equipment, including Standard No. 213, do not apply to the child restraint system after its first purchase in good faith for purposes other than resale. The general rule then is that aftermarket accessories, such as your sun visor, may be added to child restraint systems without violating Standard No. 213.

This general rule is, however, limited by the provisions of section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section specifies: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperat ive ... 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 ..."

There are two elements of design incorporated in child restraints in compliance with Standard No. 213 that might be affected by adding your sun visor. First, all child restraints are required to incorporate resistance to flammability. Section S5.7 of St andard No. 213 specifies: "Each material used in a child restraint system shall conform to the requirements of S4 of FMVSS No. 302." I have also enclosed a copy of

2 Standard No. 302 for your information. Second, child restraints recommended for use by children weighing less than 20 pounds must comply with paragraph S5.2.3.2 of Standard No. 213. That section requires that each child restraint surface contactable by the child dummy's head during the crash test shall be covered with slow recovery energy absorbing materials with specified characteristics. This requirement ensures that children riding in these child restraints will not suffer unnecessary head injur ies during crashes. If the installation of your sun visor would impair either the flammability resistance or the head impact protection designed into a child restraint to which the visor is attached, any manufacturer, distributor, dealer, or repair busi ness installing the visor would be rendering inoperative a Federally required element of design, thereby violating section 108(a)(2)(A) of the Safety Act. Section 109 of the Safety Act (15 U.S.C. 1398) specifies a civil penalty of up to $ 1,000 for each violation of section 108, and each child restraint on which a Federally required element of design was rendered inoperative would be considered a separate violation of section 108.

Since child restraint owners are not among the parties listed in section 108(a)(2)(A), they are not required to avoid rendering inoperative elements of design provided under either the head impact protection requirements of Standard No. 213 or the flamma bility resistance requirements of Standard No. 302. Nevertheless, this agency would urge you to voluntarily ensure that your sun visor would not render any such elements inoperative.

Additionally, you should be aware that you will be a manufacturer of motor vehicle equipment if you manufacture the child restraint sun visor for sale. As such, you will be subject to the requirements of sections 151-159 of the Safety Act (15 U.S.C. 141 1-1419), concerning the recall and remedy of products with defects related to motor vehicle safety. If it were determined that your sun visor had a defect related to motor vehicle safety, you as the manufacturer would have to notify all purchasers of th e defect and either:

1. repair the visor so that the defect is removed; or

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

Whichever of these options were chosen, you as the manufacturer would have to hear the full expense of the notification and remedy. This means you could not charge owners of the visor for the remedy if the visor were first purchased less than eight year s before the notification campaign.

I would also like to make clear that this explanation is not an agency "recommendation". NHTSA does not offer its opinion as to the value or practicality of motor vehicles or equipment. When we are presented with questions from potential manufacturers of new vehicles or equipment, we only explain how our statute and regulations would apply to such products. It is up to the potential manufacturer to assess the value and practicality of the product.

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If you have any further questions or need more information on this subject, please feel free to contact Steve Kratzke of my staff at this address or by telephone at (202) 366-2992.

ENCLOSURES

Sincerely,