Interpretation ID: 2879o
Morrison & Foerster
415 Madison Avenue
New York, NY 10017-1193
Dear Ms. Gelburd:
This is a response to your letter of January 12, 1988, asking for NHTSA's evaluation of your client's product intended for use with an add-on child restraint system to "cushion and insulate the child." The product, a sample of which was enclosed with your letter, is a fabric-covered rectangular seat-pad about 1/2 inch thick, surrounded at the top and both legs by a fabric-covered cushion. The product has a crotch-strap in the front, through which is inserted a belt that anchors on the legs of the rectangle. On the back of this product are two clips apparently to be used for anchoring the seat pad to the child restraint system. You asked generally whether this product will "contravene or compromise" Federal safety standards, particularly Standard 213, Child Restraint Systems (49 CFR 571.213). Additionally, you asked us to "determine whether the product complies with relevant statutes and regulations within (NHTSA's) jurisdiction."
Your client's product falls within NHTSA's jurisdiction if it is an item of "motor vehicle equipment" as that term is defined in 102(4) of the National Traffic and Motor Vehicle Safety Act (Vehicle Safety Act). Section 102(4) defines "motor vehicle equipment" as:
...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 any accessory, or addition to the motor vehicle.
In determining whether an item is an "accessory," the agency assesses two factors: first, whether the item has no ostensible purpose other than use with a motor vehicle; and second, whether the item is intended to be used principally by ordinary users of motor vehicles. Applying these criteria to your client's seat-pad, we conclude that the seat-pad has no purpose other than use with a child restraint system and that it is intended to be used principally by consumers. Thus, the seat-pad would be an "accessory," and, therefore, is "motor vehicle equipment" within the meaning of the Vehicle Safety Act. The Vehicle Safety Act gives this agency the authority to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. We have exercised this authority to establish Standard 213, which applies to all new child restraint systems sold in this country. However, Standard 213 does not apply to aftermarket items for child restraint systems, such as your client's seat-pad. Hence, your client is not required to certify that this product complies with that standard before selling the seat-pad.
Although Standard 213 does not directly apply to your client's product, there are several statutory provisions of which you should be aware. First, 108(a)(2)(A) of the Vehicle Safety Act states that:
No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or part, 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...
There is an element of design incorporated in a child restraint system that may be affected by installing Hasbro's seat-pad. Standard 213 sets flame-retardant performance requirements for materials used in a child restraint system. (See 49 CFR 571.213, S7, referencing 49 CFR 571.302, S4. For your information, I enclose a copy of 571.302.)
If installing this seat-pad would denigrate the flammability resistance attributes of the child restraint system, then a manufacturer, distributor, dealer, or repair business installing this product would "render inoperative" a design element installed in the child restraint system in compliance with a Federal motor vehicle safety standard. The person who committed such an act would have violated 108(a)(2)(A), and would be subject to a civil penalty of up to $1000 for each 108 violation on each child restraint system where this design element was "rendered inoperative."
Second, your client should know that it will be a motor vehicle equipment manufacturer if it offers this product for sale. As a manufacturer, your client will be subject to the requirements of 151-159 of the Vehicle Safety Act (15 U.S.C. 1411-1419), concerning the recall and remedy of products with defects related to motor vehicle safety. If your client or the agency determined that this seat-pad had a defect related to motor vehicle safety, your client would have to notify all product purchasers of the defect, and either:
1. repair the seat-pad so that the defect is removed; or
2. replace the seat-pad with an identical or reasonably equivalent product that does not have the defect.
Your client, as the manufacturer, would have to bear the full expense of the notice-and-recall campaign, irrespective of the option chosen, for any owner who purchased the product less than eight years before the notice-and-recall campaign. Except in the context of a defect proceeding, the agency does not determine the existence of safety-related defects. Therefore, we are unable to say whether your client's seat-pad might contain such a defect.
However, I wish to express my concern with one aspect of this product. The cushion that surrounds the seat pad is uninterrupted, and seems to have no provision for passing the child restraint system belt around or through the pad and cushion. If the installation of your seat-pad would impair the function of a belt installed to restrain the child, then any manufacturer, distributor, dealer, or motor vehicle repair business installing the seat-pad would render inoperative a Federally required element of design that applies to child restraint systems. That kind of action would violate 108(a)(2)(A) of the Vehicle Safety Act, and subject the offender to a civil penalty of $1000.00 for each violation.
Further, the seat pad has a crotch and lap belt assembly. I think it is possible that some parents may use the belt assembly on the seat-pad as a lap restraint for restraining a child's lower torso. Given that your client's seat-pad has a belt configuration similar to that which a user might expect to see in a child restraint with a crotch strap and lap belt assembly, parents may assume that the belt meets the performance requirements that apply to belts installed on child restraint systems. For example, a nonmetallic belt buckle (such as the buckle on the Hasbro sample) in a child restraint system must meet the temperature resistant specifications of the American Society for Testing and Materials "Standard Practice for Determination of Weight and Shape Changes in Plastic," D756-78. (49 CFR 571.213, S5.4.2.) There are load requirements for both the buckle assembly and the webbing in a lap belt restraint system. (49 CFR 571.213, S5.4.1.) There are several other performance requirements in Standards 209 and 213 applicable to belts, buckles, and materials used on belts installed in child restraint systems.
I am sure that your client will want to minimize the chances of a parent mistakenly using the seat-pad belt assembly as a torso restraint. Hasbro may choose to alert parents not to misuse the belt on the seat-pad. One possible means of alerting parents would be to affix a "warning label" to the product.
Please understand that this explanation is not an agency "recommendation". NHTSA does not offer its opinion as to the value or practicality of motor vehicles or equipment. When a potential motor vehicle or equipment manufacturer presents us with questions concerning a product, we use the information presented to explain how our statute and regulations may apply to such products. It is up to the manufacturer to assess the value and practicality of the product.
I hope you find this information helpful.
Sincerely,
Erika Z. Jones Chief Counsel
Enclosure ref:VSA#213 d:5/31/88