Interpretation ID: GF005279

Mr. Fred Anderson
President
BrakeQuip International, Inc.
1470 Amherst Road
Knoxville, TN 37909

Dear Mr. Anderson:

This responds to your letter of July 16 and subsequent phone conversation with George Feygin of my staff asking whether the National Highway Traffic Safety Administration (NHTSA) "recognizes and accepts other countries test standards." Specifically, you state that the Australian standard ADR7 and Canadian standard CMVSS106 were both adopted from the Federal Motor Vehicle Safety Standard No. 106, Brake Hoses (FMVSS No. 106), and are identical to that standard. Your product is certified to the Canadian and Australian standards. You ask whether your product has to be "re-tested in the U.S." before certifying compliance with FMVSS No. 106.

By way of background, NHTSA administers Federal requirements applicable to the manufacture and sale of new motor vehicles and certain items of motor vehicle equipment, including brake hoses.  NHTSA issues Federal motor vehicle safety standards applicable to new vehicles and equipment. Chapter 301 of Title 49 of the United States Code, "Motor Vehicle Safety" (Vehicle Safety Act) [1] , establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable Federal motor vehicle safety standards.

NHTSA tests vehicles and equipment for compliance with the Federal motor vehicle safety standards and investigates defects relating to motor vehicle safety. If a manufacturer or NHTSA determines that a noncompliance or safety-related defect exists, the manufacturer must notify owners and purchasers of its product and remedy the problem free of charge.

Each of this agency's safety standards specifies the test conditions and procedures that this agency will use to evaluate the performance of the vehicle or equipment being tested for compliance with the particular safety standard. NHTSA follows these specified test procedures and conditions when conducting its compliance testing.

Manufacturers are not required to test their products in the manner specified in the relevant safety standard, or even to test the product at all, as their basis for certifying that the product complies with all relevant standards. A manufacturer may choose any valid means of evaluating its products to determine whether the vehicle or equipment will comply with the safety standards when tested by the agency according to the procedures specified in the standard and to provide a basis for its certification of compliance.

If the agency has reason to believe that an apparent noncompliance exists in 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 will have to recall the product to bring it into compliance at no charge to the customer. In addition, the manufacturer will be subject to civil penalties unless it can establish that it had no reason to know despite exercising "reasonable care" in the design and manufacture of the product (through actual testing, computer simulation, engineering analysis, or other means) to ensure compliance, that the product did not in fact comply with the safety standards (49 U.S.C. 30112(b)(2)(A)). In addition, a manufacturer is prohibited from selling or making available for sale any vehicle or equipment that does not comply with all applicable Federal motor vehicle safety standards.

We cannot provide you with assurance that relying on testing conducted for Canadian and Australian standards would be sufficient to demonstrate "reasonable care." This agency has long said that it is unable to judge what efforts would constitute "reasonable care" in advance of the actual circumstances in which a noncompliance occurs. What constitutes "reasonable care" in a particular case depends on all relevant facts, 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.

I hope this information is helpful. If you need further assistance, please contact George Feygin of my staff at this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

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d.8/12/03