Interpretation ID: nht88-3.11

TYPE: INTERPRETATION-NHTSA

DATE: 08/19/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: THOMAS H. JAHNKE -- OASIS INDUSTRIES, INC.

TITLE: NONE

ATTACHMT: LETTER DATED 12/10/87 TO CHIEF COUNCIL--NHTSA FROM THOMAS H. JAHNKE, OCC-1387

TEXT: Dear Mr. Jahnke:

This responds to your letter concerning the application of our regulations and Federal motor vehicle safety standards to your company's planned manufacture of "hardtops" for convertible passenger cars. I regret the delay in responding to your letter. Y ou asked whether any Federal safety standards apply to convertible hardtops; from telephone conversations between your associate Mr. Scaravilli and Ms. Fujita of my staff, we understand that these hardtops are manufactured for sale as aftermarket items o f equipment and that they are designed to be readily removable by the user of the hardtop. Importantly, we assume that the addition of the hardtop to a new vehicle does not change the vehicle from a convertible to a different vehicle type. (The agency has defined a convertible as "a vehicle whose A-pillar (or windshield peripheral support) is not joined at the top with the B-pillar or other rear roof support rearward of the B-pillar by a fixed rigid structural member." Please note that the following i nformation is premised on our assumption that the addition of your hardtop to a convertible does not provide the fixed, rigid structural member in the described location--i.e., we assume that if your hardtop were installed on a new convertible, the vehic le's classification would not be changed to a non-convertible. Indeed, our response would be different if installation of your hardtops on a new convertible changed the classification of the vehicle.)

The answer to your question is yes, there are Federal requirements that apply to your manufacture and sale of the hardtops.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the authority under the National Traffic and Motor Vehicle Safety Act (copy enclosed) to establish Federal motor vehicle safety standards for new motor vehic les and items of motor vehicle equipment. NHTSA, however, does not approve motor vehicles or motor vehicle equipment. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that it s products meet all applicable safety standards. This process requires each manufacturer to determine in the exercise of

due care that its products meet all applicable Federal requirements. The agency periodically tests vehicles and equipment items for compliance with the standards, and also investigates other alleged safety-related defects. If you or the agency dete rmines that a noncompliance or safety-related defect exists, you are obligated to notify purchasers of your product and remedy the problem without charge. Manufacturers who fail to provide notification of or remedy for a defect or noncompliance may be s ubject to a civil penalty of up to $1,000 per violation. (A general information sheet describing manufacturers' responsibilities under the Safety Act is enclosed.)

The Safety Act defines the term "motor vehicle equipment" as 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 im provement of such system, part, or component or as any accessory or addition to the motor vehicle ..." (@102(4)) This definition includes the product your company wishes to manufacture since the hardtops are components manufactured and sold either as a r eplacement or improvement of the convertible top or as an addition to vehicles that have no hardtops. Since your product is considered an item of motor vehicle equipment, Oasis as the manufacturer of the equipment must ensure that the hardtops comply wi th all applicable Federal motor vehicle safety standards and contain no safety-related defects.

There are two Federal safety standards that have a direct bearing on the manufacture of your company's hardtops. Safety Standard No. 205, Glazing Materials, sets performance requirements for glazing materials for use in new or used motor vehicles. Glaz ing incorporated in any Oasis hardtop must therefore conform to the applicable specifications set forth in Standard No. 205. The standard establishes both performance requirements, including those regulating the light transmittance and abrasion resistan ce of glazing, and labeling requirements applicable to the glazing used in your product.

The second safety standard having a bearing on your product is No. 302, Flammability of Interior Materials, which establishes flammability requirements for new motor vehicles. The standard specifies that certain components, including convertible tops, of a vehicle which must meet the flammability requirements in order for that vehicle to comply with the standard. However, the effect of Standard No. 302 on your product depends on the circumstances surrounding the installation of the hardtop.

The requirements of Standard No. 302 apply to a vehicle only until its first purchase in good faith for purposes other than resale, and not to aftermarket convertible tops added to a vehicle after the vehicle's first purchase. (This discussion treats th e aforementioned glazing issue as a separate matter and hereinafter assumes that any glazing used in the hardtop conforms to applicable requirements of Standard No. 205.) You are permitted to sell aftermarket convertible tops that do not meet the flammab ility requirements, even if the addition of the hardtop to a vehicle caused the vehicle to no longer comply with Standard No. 302.

However, @108(a)(2)(A) of the Vehicle Safety Act specifies: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly 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 vehicle 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 could not install a convertible hardtop that does not meet the flammability requirements of Standard No. 302 in a new or used motor vehicle since to do so would render inoperative that element of design, and thus violate @108(a)(2)(A) of the Act. Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of @108.

To summarize the above discussion, Oasis hardtops using glazing must meet applicable requirements of Standard No. 205. Standard No. 302's application to the hardtops depends on the circumstances surrounding installation of the product in new and used mo tor vehicles. If the hardtop meets applicable Federal standards except for Standard No. 302, the hardtop cannot be installed in vehicles by any commercial business listed in @108(a)(2)(A) of the Safety Act. However, those convertible hardtops may legall y be installed in vehicles by the owners of the vehicles. Oasis would still have the responsibility under the Vehicle Safety Act to recall and remedy its products which are determined to contain a defect relating to motor vehicle safety, even if the har dtops were installed by vehicle owners themselves. I note also that NHTSA discourages owners from installing any item of equipment that would degrade the safety performance of their vehicles.

I have enclosed copies of Standard No. 205 and No. 302 for your convenience. In addition, I am enclosing a copy of 49 CFR Part 566, Manufacturer Identification, which applies to all manufacturers of motor vehicles and motor vehicle equipment (except tir es) to which a motor vehicle safety standard applies. This rule requires your company to submit its name, address, and a brief description of the items of equipment it manufacturers to this agency within 30 days after it begins manufacture.

I hope this information is helpful. Please contact my office if we can be of further assistance.

ENCLOSURES

Sincerely,