Interpretation ID: nht93-9.18

DATE: December 16, 1993

FROM: Erika Z. Jones -- Mayer, Brown & Platt

TO: John Womack -- Acting Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached To Letter Dated 6/9/94 From John Womack To Erika Jones (A42; Std. 213; VSA 103(d)

TEXT: Dear Mr. Womack:

I am writing to obtain your opinion about the applicability to automotive child restraints of a California statute regarding flammability resistance of upholstered furniture, California Business and Professions Code, Division 8, Chapter 3, @ 19006 and 19161. The California law has been implemented in state regulations, Cal. Code Regs., title 4, @ 1370 et seq. The implementing regulations incorporate Technical Bulletin 117 of the State of California Bureau of Home Furnishings; which specifies the required performance requirements and test procedures. I have enclosed a "Flammability Information Package" prepared by the State of California which includes a copy of the statute, regulations and Technical Bulletin cited above.

Automobile child restraints are subject to Federal Motor Vehicle Safety Standard 213 (49 C.F.R. @ 571.213), which incorporates FMVSS 302, pertaining to the flammability of interior materials contained in motor vehicles and motor vehicle equipment. FMVSS 213 and FMVSS 302 specifically regulate the flammability resistance of these interior materials and, thus, pertain to the same aspect of performance as that addressed by the California law.

The National Traffic and Motor Vehicle Safety Act preempts any state statute or regulation that is not identical to the federal standard. (15 U.S.C. 1392(d). n1/ As the California

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flammability standard is not identical to the federal flammability requirements as contained in FMVSS 213 and FMVSS 302, it appears that the California standard is preempted by the NHTSA standards, insofar as the California law would be applied to automotive child restraints. Therefore, it appears that the California flammability requirements are not applicable to automotive child restraints certified to comply with FMVSS 213, and such restraints need not comply with the requirements of that statute.

n1/ The statute reads: "Whenever a Federal motor vehicle safety standard established under this title is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard."

Please confirm whether NHTSA concurs in our understanding of the applicability of the California flammability standard to automotive child restraints.

Sincerely,

enclosure