Interpretation ID: nht90-3.57

TYPE: INTERPRETATION-NHTSA

DATE: 08/15/90

FROM: PAUL JACKSON RICE -- CHIEF COUNSEL, NHTSA

TO: NORMAN B. SCOTT, JR., SNUG SEAT, INC.

TITLE: NONE

ATTACHMT: Letter dated 6-15-90 to E. T. Jones from N. B. Scott, Jr.; (OCC 4904); also attached to copy of photograph

TEXT:

This responds to your letter seeking this agency's opinion on the procedures to be followed in testing a new car bed designed to transport "Low Birth Weight" (LBW) infants in a supine or prone position. Your letter and enclosed photograph indicate that you have tested the car bed with the six-month-old dummy specified in 49 CFR S572.25. While the dummy's torso fits in the car bed, the legs did not. You state that "(a) dynamic crash test showed the dummy staying in the shell and the shell maintaining it's integrity." You asked whether this testing would be "adequate relative to the present standard."

By way of introduction, the National Traffic and Motor Vehicle Safety Act (Safety Act) does not require a manufacturer to test its products only in the manner specified in the relevant safety standard, or even to test its products at all. A manufacturer may choose any means of evaluating its products to determine whether the vehicle or item of equipment complies with the requirements of the safety standards, provided, however that the manufacturer assures that the vehicle or equipment will comply with the safety standards when tested by the agency according to the procedures specified in the standard.

If agency testing shows an apparent noncompliance exists with a vehicle or item of equipment, the manufacturer is asked to show the basis for its certification that the vehicle or equipment 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 checks (through actual testing, computer simul ation, engineering analysis, or other means) to ensure compliance.

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, includi ng 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.

However, the agency can say that your company's decision to use the smallest test dummy included in Part 572 (the six month old test dummy) to conduct certification testing and to conduct the testing in accordance with the procedures specified in Standar d No. 213, Child Restraint Systems, appears reasonable. If that test dummy cannot be positioned entirely within the car bed, it also appears reasonable to position the

test dummy's head and torso completely within the car bed and allow the test dummy's feet and part of the legs to fall outside of the car bed. This is because S5.1.3.3 of Standard No. 213 requires all portions of the test dummy's head and torso to be ret ained within the confines of the car bed, so the head and torso must obviously begin within the car bed.

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 or equipment, it does not relieve a manufacturer of the responsib ility 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 or items of equipment do not comply with all applicable safety standards.

I hope this explanation is helpful. If you have some further questions or need further information on this subject, please contact Mary Versailles of my staff at our address, or telephone (202) 366-2992.