Mr. Heinz-Gerd Weiler
Siemens Restraint Systems GmbH
Carl-Zeiss-Str. 9
D-63755 Alzenau
Germany

Dear Mr. Weiler:

This responds to your March 24, 2004, e-mail to Roger Saul, in which you seek clarification regarding the effective date for new or modified test requirements when various Federal motor vehicle safety standards (FMVSSs) are amended. You are concerned because your firm is involved in engineering and vehicle crash testing. Specifically, you ask whether, after a vehicle is already in production or the certification test program for such a vehicle is underway, it is necessary to repeat the relevant tests using the new test methods (or whether the original testing remains valid). If new testing is required, you ask at what point such testing must commence (e.g., within a specified time limit after the effective date of the changes or at the start of the next model year) in order for the vehicle to be sold in the U.S.

We would like to begin by explaining that the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA does not provide approval of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture (see 49 U.S.C. 30115 and 49 CFR Part 567, Certification). Each vehicle must be so certified.

Periodically, the agency may amend FMVSSs. In some instances, amendment of a standard may involve modification of existing test procedures. Each final rule amending a standard is published in the Federal Register and specifies an effective date for the changes to the standard. For motor vehicles or motor vehicle equipment produced on or after that effective date, manufacturers are required to certify compliance with the standard as modified, including any new testing requirements.

As further clarification, we note that each of this agency’s safety standards specifies the test conditions and procedures that NHTSA will use to evaluate the performance of the vehicle or equipment being tested for compliance with the particular safety standard. NHTSA follows the test procedures and conditions in effect at the time of vehicle certification 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 applicable 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 motor vehicle equipment, the manufacturer is asked to show the basis for its certification that the vehicle or equipment complies with the relevant safety standard(s). 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 standard(s) (49 U.S.C. 30115(a) and 30165). 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 you find this information useful. If you have further questions, please feel free to contact Eric Stas of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

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