Interpretation ID: nht78-4.31

DATE: 08/19/78

FROM: FRANK BERNDT -- ACTING CHIEF COUNSEL, NHTSA

TO: WILLIAM K. ROSENBERRY -- ATTORNEY AT LAW

TITLE: NONE

ATTACHMT: LETTER DATED JULY 14, 1976 TO GEORGE SHIFFLET, NHTSA, FROM WILLIAM K. ROSENBERRY IS ATTACHED.

TEXT: This is in reply to your letter of July 14, 1976, to George Shifflett of the Office of Standards Enforcement, on behalf of a client who intends to install a different type of seat, carpeting, and headliner in a pick-up truck, which would then be sold to the general public. You asked whether a fabric supplier must test each fabric lot for flammability before certification to Motor Vehicle Safety Standard No. 302 can be given, and whether your client (Illegible Word) reply on the warranty of a fabric manufacture that the fabric sold meets the requirements" of Standard No. 302.

You are correct in your understanding that the provisions of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seg) apply to your client. His basic responsibility is to ensure that the vehicles he modifies are in compliance with the Federal standards when delivered to dealers for sale to the public. (15 U.S.C. 1397 (a) (1) (A)) A temporary noncompliance during modifications is permissible if the vehicle is not used on the public roads while noncompliant (15 U.S.C. 1397 (a) (2) (A)). Standards which would appear to be affected by your client's modifications include: Standard No. 207 Seating Systems. No. 208 Occupant Crash Protection, No. 210 Seat Belt Assembly Anchorages and No. 302 Flammability of Inferior Materials.

As a person who alters a certified vehicle other than by the addition of readily detachable components, your client is also required to attach his own certification of compliance to each modified truck (49 CFR 567.7). Should a noncompliance be discovered as a result of an alterer's modification, the alterer would be liable for a civil penalty unless he could establish that he did not have actual knowledge of the noncompliance, and that he did not have reason to know in the

exercise of due care that the vehicle did not comply (15 U.S.C. 1397 (b) (2).

With respect to Standard No. 302, there is no requirement that a fabric supplier "test each fabric lot for flammability before certification." In point of fact, 49 CFR 571.302 Motor Vehicle Safety Standard No. 302 does not apply to suppliers but only to vehicle manufacturers (or alterers) and it is they who are required to certify compliance with Standard No. 302. Generally, at a minimum, a vehicle manufacturer will require by contract with the supplier that the fabric meets Standard No. 302. In the exercise of "due care" the manufacturer may wish to examine the basis for the supplier's assurance of compliance, and to require periodic testing of the fabric being supplied him. Since there is no requirement that each fabric lot be tested, such testing as is conducted should be sufficient to demonstrate in the event of a noncompliance that the vehicle manufacturer has exercised due care. As to whether your client may rely on the "warranty" of his supplier, it has been our experience that simple reliance is insufficient to establish a "due care" defense. That manufacturer should examine the supplier's test results to insure that the margin of compliance of the test fabric is great enough that production variables do not result in noncompliance. Some manufacturers even conduct their own tests independent of the supplier.

Your client would also be responsible for conducting a notification and remedy campaign (15 U.S.C. 1411 et seg) if a noncompliance or safety-related defect occurs in the truck as a result of the alterations.

I enclose copies of the Act, 49 CFR Part 567, and Standards Nos. 207, 208, 210, and 302 for your information.

Enclosures