Interpretation ID: nht87-2.70

TYPE: INTERPRETATION-NHTSA

DATE: 08/13/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Peter H. Ziemke

TITLE: FMVSS INTERPRETATION

TEXT:

Peter H. Ziemke, Esq. Pryor, Carney and Johnson P.O. Box 22003 Wellshire Station Denver, CO 80222-0003

Dear Mr. Ziemke:

This responds to your request for a determination of the applicability of the National Traffic and Motor Vehicle Safety Act of 1966, as amended (the Safety Act: 15 U.S.C. 1381 et seq.) to a client of your firm. This client performs several patented steps on flat fabric to produce a fabric containing honeycomb-shaped air cells. The processed fabric is then sold in bulk to fabricators licensed by your client. These fabricators manufacture the bulk fabric into custom-made window shades for use in mobile ho mes and recreational vehicles. Your client intends to advertise this product as suitable for use in motor vehicles and available in finished form through licensed fabricators.

You then posed four questions based on these facts. First, you asked whether the processed fabric your client sells to fabricators to be made into window shades for motor vehicles would be considered "motor vehicle equipment" under the Safety Act. Proces sed fabric by itself is not considered motor vehicle equipment.

As you noted in your letter, the term "motor vehicle equipment" is defined in section 102(4) of the Safety Act (15 U.S.C. 1391(4)) a follows:

"Motor vehicle equipment" means 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 such system, part, or component or as an accessory or addition to the motor vehicle ..."

The window shades for motor vehicles that are produced after further manufacturing operations are performed on the fabric sold by your client are motor vehicle equipment for the purposes of the Safety Act. That is because those window shades are both man ufactured and sold for replacement or improvement of the window shades in vehicles or as an addition to those vehicles that do not have window shades.

However, the processed fabric itself must have further manufacturing operations performed on it before it is sold as window shades for motor vehicles. We do not believe that the term "motor vehicle equipment' can fairly be read to include materials that are not products for use in or with motor vehicles, but can be made into such products if some further manufacturing operations are performed on the subject materials. If the term were read so broadly, all aluminum and steel would be considered motor veh icle equipment, since those materials can be made into motor vehicle parts, most upholstery would be motor vehicle equipment, since could be made into seat covers, and so forth. Such an overbroad reading would be inconsistent with the meaning and intent of the Safety Act. Accordingly, the processed fabric produced by your client is not motor vehicle equipment for the purposes of the Safety Act.

Second, you asked whether your client would be considered a "manufacturer" under the Safety Act by virtue of its production of the processed fabric. Section 102(5) of the Safety Act (15 U.S.C. 1391(5)) defines a "manufacturer" as "any person engaged in t he manufacturing or assembling of motor vehicles or motor vehicle equipment, including any person importing motor vehicles or motor vehicle equipment for resale." Since the processed fabric is not considered motor vehicle equipment, as explained above, y our client is not a "manufacturer" for purposes of the Safety Act. Conversely, since the window shades for use on motor vehicles are motor vehicle equipment, the licensed fabricators that convert the processed fabric into such window shades would be manu facturers for purposes of the Safety Act.

Your third and fourth questions were based on the assumption that the processed fabric would be considered motor vehicle equipment and your client would be considered a manufacturer. Even though these assumptions were not correct, I would like to answer these questions, so that your client will understand the responsibilities of the licensed fabricators that turn its processed fabric into window shades for motor vehicles. You asked whether a manufacturer of motor vehicle equipment would be required to c omply with the Safety Act and Federal Motor Vehicle Safety Standard No. 302 (49 CFR S57l.302) if the product is only advertised for sale to owners of vehicles for them to install themselves, or, alternatively, if the product is only advertised for sale t o customizers and automobile dealers.

All manufacturers of motor vehicle equipment are subject to the provisions set forth in sections 151-159 of the Safety Act (15 U.S.C. 1411-1419 concerning the recall and remedy of equipment with defects related to motor vehicle safety. If it were determi ned that these vehicle window shades had a defect related to motor vehicle safety, the shade manufacturer would have to notify all purchasers of the defect and either:

l. repair the shade so that the defect is removed: or

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

Whichever of these options were chosen, the manufacturer would have to bear the full expense of the remedy and could not charge the product owners for the remedy if the shades were first purchased less than 8 years before the notification campaign. These responsibilities apply to all equipment manufacturers, regardless of whether the shades were installed by vehicle owners or customizers and dealers.

With respect to Standard No. 302, it sets forth flammability requirements that must be met by shades in motor vehicles. Generally, however, the requirements set forth in Standard No. 302 apply to a vehicle only until its first purchase in good faith for purposes other than resale, and not to aftermarket shades added to a vehicle after its first purchase. Under this general rule, it would not violate Standard No. 302 to add aftermarket shades to vehicles after the first purchase in good faith for purpose s other than resale, even if the addition of the shades caused the vehicles to no longer comply with Standard No. 302.

This general rule is, however, limited by the application of 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 knowing ly 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 ..." The flammability resistance of the original vehicl e is an element of design installed in a motor vehicle in compliance with Standard No. 302. Thus, a manufacturer, distributor, dealer, or motor vehicle repair business that installed window shades which did not comply with the flammability resistance req uirements of Standard No. 302 would be rendering inoperative that element of design, and thereby violating section lOB(a)(2)(A) of the Safety Act. Section 109 of the Safety Act (l5 U.S.C. 1398 specifies a civil penalty of up to ,000 for each violation of section 108, and each vehicle in which noncomplying shades were installed would be considered a separate violation.

Accordingly, there is a difference in the application of Standard No. 302 to the window shade manufacturers, depending on who installs those shades in vehicles. As explained above, if the finished shades do not afford at least as good a level of flammabi lity resistance as is specified in Standard No. 302, the shades cannot legally be installed in vehicles by any manufacturer, distributor, dealer, or motor vehicle repair business. However, shades which provide lesser flammability resistance than is speci fied in Standard No. 302 may legally be installed in vehicles by the owners of those vehicles. To repeat, the shade manufacturer would still be obligated to recall and remedy shades that are determined to contain a defect related to motor vehicle safety, even if those shades were installed by vehicle owners themselves.

Sincerely,

Erika Z. Jones Chief Counsel

May 22, 1987 Erika Z. Jones, Esq. National Highway Traffic Safety Administration Office of Chief Counsel 400 Seventh Street, S.W., Room 5219 Washington. D. C. 20590

Re: Request for Formal Determination of Applicability of National Highway Traffic Safety Act to Hunter Douglas, Inc.

Dear Ms. Jones :

On December 19, 1986, I spoke with Steven Oesch, Esq. of your office regarding the applicability of the National Highway Traffic Safety Act ( "the Act") to certain activities of my client, Hunter Douglas, Inc. After some discussion with Mr. Oesch, he sug gested that I apply for a formal determination from your office of the applicability of the Act to my client. Please consider this letter my formal request, on behalf of Hunter Douglas, Inc., for a determination of whether the Act governs the following a ctivities of my client.

This law firm represents the window fashions division of Hunter Douglas, Inc., a Delaware corporation. The window fashions division is located at 601 Alter Street, Broomfield, Colorado 80020. Hunter Douglas is the owner of certain technologies for the ma nufacture of a window covering product known as a honeycomb fabric pleated shade. The flat fabric is purchased by Hunter Douglas from outside sources and, through several patented processing steps performed by Hunter Douglas, the finished product is a fa bric window shade containing honeycomb-shaped air cells . The processed fabric is then sold in bulk to fabricators who manufacture window shades to customers " specifications. One of the intended applications for this product is custom-made window shades for mobile homes and recreational vehicles. Hunter Douglas requests a formal determination of whether its involvement in this product brings it within the scope of the Act as a "manufacturer" of motor vehicle equipment. " subject to Federal Safety Stand ard 302 and the accompanying recordkeeping and certification requirements of the Act.

Erika Z. Jones, Esq.

May 22, 1987

Page 2

As stated above, Hunter Douglas, Inc. is not the manufacturer of the finished product; rather, it simply manufacturers one of the component parts of a product and promotes it for use in, among other things, motor homes and recreational vehicles. The fabr ic shade has been manufactured from flame retardant material and has passed the standard NFPA 701 " fire tests for flame-resistant textiles and films" and also meets Safety Standard 302.

Hunter Douglas, Inc. intends to advertise this product, available in finished form through licensed fabricators, for sale to owners of recreational vehicles and motor homes and also to businesses specializing in customizing recreational vehicles and moto r homes for the owners of the vehicles. It is our understanding that Federal Safety Standard 302 is a "dealer standard ": That vehicle manufacturers and dealers are the entitles required to conform to Federal Safety Standard 302 and not replacement equip ment manufacturers who manufacture equipment for sale to individual vehicle owners and to customizers.

Based upon the above facts, please provide me with a formal determination of the following:

1. Is the product manufactured by Hunter Douglas, Inc.--materials used by other non-affiliated manufacturers to construct window shades which Hunter Douglas, Inc. advertises as suitable for automotive use - "motor vehicle equipment" within the meaning of 15 U.S.C. S 1391(4)1?

2. Is Hunter Douglas, Inc. - manufacturer of a material sold to other non-affiliated manufacturers for the manufacture of window shades, advertised by Hunter Douglas, Inc. as suitable for use in motor vehicles - a "manufacturer" within the meaning of 15 U.S.C. S 1391(5)?

3. If the answers to nos. 1 and 2 above are affirmative, is Hunter Douglas, Inc. required to comply with the Act and Federal Safety Standard No. 302 If the product Is only advertised for sale to private owners of motor vehicles?

4. If the answers to nos. 1 and 2 above are affirmative, is Hunter Douglas, Inc. required to comply with the Act and Federal Safety Standard No. 302 If the product is only advertised for sale to customizers or automobile dealers?

If you need any additional Information about this product, its intended uses, Hunter Douglas ' contractual arrangements with its fabricators

Erika Z. Jones, Esq. May 22, 1987 Page 3

or any other information, please contact me at your convenience and I will collect the information you need from Hunter Douglas, Inc. and transmit it to you as quickly as possible. Thank you.

Sincerely yours,

PRYOR, CARNEY AND JOHNSON

A Professional Corporation

Peter H. Ziemke

PHZ/pre

cc: Steven Oesch, Esq. Hunter Douglas, Inc., Window Fashions Division