Interpretation ID: nht95-1.73

TYPE: INTERPRETATION-NHTSA

DATE: February 17, 1995

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

TO: Brigitte Neifer -- Sekurit Saint-Gobain Deutschland GmbH & Do. KG

TITLE: None

ATTACHMT: ATTACHED TO 10/4/94 TELEFAX FROM BRIGITTE NEIFER TO DAN COLHEN (OCC 10413)

TEXT: Your telefax to Mr. Dan Cohen of the National Highway Traffic Safety Administration's (NHTSA's) Office of Vehicle Safety Standards has been forwarded to my office for reply. I apologize for the delay in our response.

You asked about two topics: the agency's plans for further rulemaking related to Docket 89-15, and NHTSA's regulations related to testing for compliance with an industry standard that is incorporated by reference into a Federal Motor Vehicle Safety Stand ard (FMVSS).

Issue One: Docket 89-15 You first asked whether NHTSA is planning any further rulemaking activity with respect to NHTSA Docket No. 89-15. Docket No. 89-15, which began January 22, 1992 (57 FR 2496), pertains to a notice of proposed rulemaking that addresses the light transmitt ance requirements for glazing materials used in motor vehicles. NHTSA has not reached a final decision on this proposed rulemaking. Any questions you may have about this rulemaking can be addressed to Mr. Patrick Boyd, Crash Avoidance Division, National Highway Traffic Safety Administration (NHTSA), 400 Seventh Street, S.W., Washington D.C. 20590. Mr. Boyd's telephone number is (202) 366-6346.

Issue Two: Establishing Compliance with FMVSS No. 205 You ask several questions about FMVSS No. 205, "Glazing Materials." You first ask for confirmation that the "5-year rhythm of renewal" was "an AAMVA [American Association of Motor Vehicle Administrators] procedure and not an official requirement." Your u nderstanding is correct. Moreover, this program, which was administered by AAMVA and which was never "officially" NHTSA's, has been discontinued. You can contact the AAMVA at 4600 Wilson Blvd., Arlington, VA 22205, telephone (703) 522-4200 for further information.

You also requested information about NHTSA's requirements related to compliance with FMVSS No. 205 and the material it incorporates (ANSI Z26.1, "Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways"). You state that you "intend to have [your] products regularly tested by independent laboratories" and ask whether "DOT inspectors in [the] USA will accept (cars equipped with) our glazings when accompanied only with a test report."

Some background information about NHTSA would be helpful in answering your question. Congress has authorized NHTSA to issue FMVSSs applicable to new motor vehicles and items of motor vehicle equipment. NHTSA, however, does not approve or endorse motor vehicles or motor vehicle equipment. Instead, the statute establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. Thus, there are no "DOT inspectors" that are charged with either accepting or rejecting vehicles or equipment certified as meeting the FMVSSs, prior to the first sale of the product.

NHTSA does test new vehicles and equipment for compliance with the FMVSSs by purchasing products on the market. Each of NHTSA's safety standards specifies the test conditions and procedures that this agency will use to evaluate the performance of the ve hicle or equipment being tested for compliance with the particular safety standard. NHTSA precisely follows each of the specified test procedures and conditions when conducting its compliance testing. n1 However, manufacturers are not required to test t heir products only in the manner specified in the relevant safety standard. A manufacturer may choose any means of evaluating its products to determine whether the vehicle or equipment will comply with the safety standards when tested by the agency acco rding to the procedures specified in the standard.

n1 Since FMVSS No. 205 incorporates ANSI's Z26.1 by reference, the test procedures and performance requirements set forth in ANSI Z26 are considered to be part of FMVSS No. 205.

If NHTSA testing shows that an apparent noncompliance exists with 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, in accordance with 49 U.S.C. 30118 and 30120, the manufacturer is required to notify owners and remedy the noncompliance at no cost to the owners. The manufacturer is also subject to civil penalties unless it can estab lish that it exercised "reasonable care" in the design and manufacturer of the product and in the evaluation (through actual testing, computer simulation, engineering analysis, or other means) to ensure compliance. n2

n2 While the exercise of "reasonable care" may relieve a manufacturer of liability for civil penalties for the manufacture and sale of noncomplying vehicles or equipment, it does not relieve a manufacturer of the responsibility to notify purchasers of the noncompliance and remedy the noncompliance free of charge.

Your use of independent test laboratories to evaluate the performance of your product could support an initial showing of "reasonable care." However, the agency is unable to determine what efforts constitute "reasonable care" outside of the course of a s pecific 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.

I hope this information is helpful. Please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992 if you have any further questions or need additional information.