Interpretation ID: nht91-6.31

DATE: October 21, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Frank Kenney -- Sporting Tailors Manufacturing Co.

TITLE: None

ATTACHMT: Attached to letter dated 6-29-90 from Paul Jackson Rice to Ed McCarron (Std. 302); Also attached to copy of 49 CFR 571.302, pages 517-519, Flammability of interior materials; Also attached to letter dated 8-12-91 from Frank Kenney to NHTSA Office of the Chief Counsel (OCC 6356)

TEXT:

This responds to your letter concerning the applicability of Federal motor vehicle safety standard No. 302, Flammability of Interior Materials, (49 CFR 571.302, copy enclosed) to your product, a roll bar top or "Bikini Top" for use on vehicles such as Jeep Wranglers. You explained that the material would consist of three layers: a vinyl top layer, a flame retardant middle layer, and a brushed nylon tricot black backing as the lower layer. In addition, a binding fabric strip would be sewn around the edges of the roll bar top to lend stability and a finished appearance. You also explained that you may supply a tote bag in which the bikini top could be stored. Your questions are addressed below.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has no authority to certify or approve motor vehicles or items of motor vehicle equipment for compliance with the Federal motor vehicle safety standards. Instead, the National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1381 et seq.) establishes a "self-certification" process under which each manufacturer is responsible for certifying that each of its products complies with all applicable safety standards. This agency periodically tests vehicles and items of motor vehicle equipment for compliance with the safety standards, and also investigates alleged defects related to motor vehicle safety.

The Safety Act also gives this agency authority to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. The agency has exercised this authority to establish Standard No. 302. That standard sets forth flammability resistance requirements applicable to all new motor vehicles.

If your bikini top is added to a new vehicle, i.e., before the vehicle is sold for the first time to a consumer, then it must comply with Standard No. 302. That standard applies to certain vehicle occupant compartment components, including convertible tops, on new motor vehicles. Your bikini top would be considered a convertible top. Persons selling new vehicles equipped with your convertible top would need to ensure that the vehicles, including your top, conform to Standard No. 302.

Standard No. 302 does not directly apply to aftermarket items of motor vehicle equipment, i.e., accessories or additions to motor vehicles sold to owners of used vehicles. Nevertheless, section 108(a)(2)(A) of the Safety Act could affect the use of a product such as yours sold in the

aftermarket. That section prohibits manufacturers, distributors, dealers, or repair shops from knowingly "rendering inoperative" devices or elements of design that were installed in a motor vehicle to comply with the Federal motor vehicle safety standards. NHTSA does not consider it to be a violation of the "render inoperative" prohibition when a dealer adds a convertible top which enables a vehicle to continue to meet Standard No. 302 and the other safety standards.

The prohibitions of section 108(a)(2)(A) do not apply to the actions of a vehicle owner in adding to or otherwise modifying his or her vehicle. Thus, a vehicle owner would not violate the Safety Act by installing your bikini top, even if doing so would negatively affect the safety features of his or her vehicle.

You should be aware that, as the manufacturer of an aftermarket item 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. In the event that you or NHTSA determines that your product contains a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge. I note that, whether or not Standard No. 302 applies to your convertible top, the product's flammability characteristics could be relevant to whether it contained a safety related defect.

I will now address you specific questions about Standard No. 302, on the assumption that the standard applies to your product. After explaining your belief that the main part of the material complies with Standard No. 302, you asked whether the binding fabric strip sewn all around the edges of the roll would also have to be made flame retardant. As explained below, the binding fabric strip would have to comply with Standard No. 302.

Under sections S4.1 and S4.2, any portion of a convertible top which is within 1/2 inch of the occupant compartment air space must meet the standard's flammability requirements. It is our opinion that the binding fabric strip sewn around the edges of your convertible top would be part of the convertible top and thus subject to this provision. I note that it is the agency's longstanding interpretation that a component "incorporated into" a component that is listed in section S4.1 of Standard No. 302 is subject to the standard. A June 29, 1990 interpretation to Mr. Ed McCarron (copy enclosed) explains this policy in the context of a mattress. In particular, that interpretation addressed whether a fabric "corner reinforcement" that is stitched on the outside of the mattress cover was subject to Standard No. 302. In answering in the affirmative, the interpretation explained that the corner reinforcement is incorporated into the mattress cover through the stitching process. By analogy, your "stitched binding strip" would be incorporated into your convertible top and thus subject to Standard No. 302.

The interpretation letter to Mr. McCarron further explained the testing procedures related to composite materials. Any components that do not

adhere to other materials at every point of contact would be tested separately under S4.2.1. Any components that adhere to other material at every point of contact would be tested as a composite with the other material.

The sample enclosed with your letter indicates that the binding fabric strip does not adhere to the main part of the bikini top at every point of contact. Instead, the binding strip is folded over the edge of the main part of the bikini top and held in place by single stitching. Therefore, it would be tested separately from the main part of the bikini top.

You also asked whether a tote bag used to store the roll bar top would be required to comply with Standard No. 302. The answer to that question is no. The list of components subject to Standard No. 302 set forth in S4.1 does not include a tote bag or similar item.

Finally, you stated that you understand that you must conform to 49 CFR Part 566, Manufacturer Identification, and asked whether there would be anything else that would apply to your product. No NHTSA requirements other than those discussed above would apply to your product.

I hope this information is helpful. If you have any further questions, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

Enclosure

Letter dated 6-29-90 from Paul Jackson Rice to Ed McCarron of Western Star Trucks Inc. (Text omitted)

Enclosure

Copy of 49 CFR 571.302: Standard No. 302, Flammability of Interior Materials (Text omitted)