Interpretation ID: nht95-1.79

TYPE: INTERPRETATION-NHTSA

DATE: February 27, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Mark Warlick -- Four Winds International Corporation

TITLE: None

ATTACHMT: ATTACHED TO 12/16/94 LETTER FROM MARK WARLICK TO PHILIP RECHT (OCC 10595)

TEXT: This responds to your letter asking how your company would certify compliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 302, Flammability of Interior Materials. You stated that your company manufactures motor homes and purchases interior mat erials from various vendors for these vehicles. These vendors provide you with letters stating that the materials comply with the FMVSS. You enclosed one such letter, which states that "We have tested the panel . . . . that was made with COR63-AX-40. We used the MVSS 302 flame test, and obtained a flame rating of 0.64 inches per minute." You ask whether this letter provides a sufficient basis for your company's certification of compliance with FMVSS No. 302.

Some background information would be helpful. As you know, since Standard 302 applies to motor homes and other vehicles, Four Winds, as the vehicle manufacturer, is required to certify compliance with the standard. In the event NHTSA were to find an ap parent noncompliance with Standard 302 when testing your vehicle to the requirements of the standard, Four Winds would be asked to show the basis for its certification that the vehicle complies with the standard. If in fact there is a noncompliance, Fou r Winds would be subject to civil penalties unless it can establish that it exercised "reasonable care" in the design and manufacture of the product (through actual testing, computer simulation, engineering analysis, or other means) to ensure compliance, and did not have reason to know that the vehicle or item of equipment did not in fact comply with the safety standards (49 U.S.C. 30112(b)(2)(A)). n1

n1 You should also note that, while the exercise of "reasonable care" may relieve a manufacturer of liability for civil penalties in connection with the manufacture and sale of noncomplying vehicles, 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 (i.e., "recall" the noncomplying vehicle or equipment).

With regard to your specific question, we cannot tell you at this time whether Four Winds's reliance on a letter from its vendor would constitute "reasonable care" on the part of your company in making its certification to Standard 302. NHTSA is unable t o judge what efforts constitute "reasonable care" outside of the course of a specific enforcement proceeding. What constitutes "reasonable care" in a particular case depends on many factors, including 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. In the situation you present, your vendor indicated that the burn rate of its material (0.64 inch per minute) is well within t he limits of Standard 302 (not more than four inches per minute). The difference between the actual performance of a material and the required performance is a factor NHTSA would consider in making a determination of whether a manufacturer exercised rea sonable care in making its certification. Another factor is whether the manufacturer should have determined whether the vendor's assurances were bona fide. Among other things, the expertise, reliability and experience of the vendor would be relevant fo r that issue.

I hope you find this information helpful. If you have any other questions, please contact Marvin Shaw of my staff at this address or by phone at (202) 366-2992.