Interpretation ID: 22405.drn
- visibility up to one mile (2 kilometers) in darkness, with 360 radial visibility
- effective in fog and smoke
- available in red, blue, amber and white
- fluoro-colored base is easy to see in daylight
- does not impair night vision
William D. Cowan, CEO
Eflare Corporation
3731 West Warner Avenue
Santa Ana, CA 92704
Dear Mr. Cowan:
This responds to your request for an interpretation on whether your battery-operated LED-based warning device, the "Eflare 2000," must meet Standard No. 125, Warning devices, or any other National Highway Traffic Safety Administration (NHTSA) requirement. As explained below, because the Eflare 2000 has a self-contained energy source, Standard No. 125 does not apply to this product. However, since your product is "motor vehicle equipment," your company, Eflare Corporation, is subject to NHTSA's requirements as the manufacturer of the equipment.
You write that you expect the "Eflare 2000" to be carried in all types of vehicles, and that "[t]hey will be used to warn approaching traffic when vehicles are disabled and stopped in or by the side of the road." Your website at www.eflarecorp.com provides the following information. The "Eflare 2000" was designed to meet "professional" demands for a device to replace pyrotechnic road flares and supplement road safety reflective triangles. To deploy the device, one has to insert batteries, turn the device on, and set it on the side of the road. The website describes the "Eflare 2000" as a "highly visible flashing light," with the following features:
NHTSA is authorized to issue Federal motor vehicle safety standards (FMVSSs) for new motor vehicles and new items of motor vehicle equipment. Unlike the practice in many countries, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet applicable standards.
Effective October 31, 1994, NHTSA amended Standard No. l25 so that the standard applies only to warning devices that are designed to be carried in buses and trucks that have a gross vehicle weight rating (GVWR) greater than 10,000 pounds. (See 59 FR 49586; September 29, 1994, copy enclosed.) Moreover, Standard No. 125 specifically applies to "devices, without self- contained energy sources." (See S1. Scope.) Since the Eflare 2000 is battery-powered, it has a "self-contained energy source." Therefore, Standard No. 125 does not apply to the Eflare 2000.
Please note, however, that even if not covered by Standard No. 125, we have determined that the Eflare 2000 is "motor vehicle equipment," and is subject to various provisions of 49 U.S.C. Chapter 301, "Motor Vehicle Safety." "Motor vehicle equipment" is defined at 49 U.S.C. Section 30102(a)(7) as:
(A) any system, part, or component of a motor vehicle as originally manufactured;
(B) any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to a motor vehicle; or
(C) any device or an article or apparel (except medicine or eyeglasses prescribed by a licensed practitioner) that is not a system, part, or component of a motor vehicle and is manufactured, sold, delivered, offered, or intended to be used only to safeguard motor vehicles and highway users against risk of accident, injury or death.
In determining whether an item of equipment is considered an "accessory ... to the motor vehicle," NHTSA analyzes two criteria. The first criterion is whether a substantial portion of the expected uses of a product are related to the operation or maintenance of motor vehicles. NHTSA determines expected uses by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is purchased or otherwise acquired, and principally used, by ordinary users of motor vehicles (e.g., items normally used by professional vehicle repair and maintenance personnel would not qualify).
Applying these two criteria to the Eflare 2000, NHTSA concludes that although the device may have non-motor vehicle-related applications, a substantial portion of the expected use of the Eflare 2000 is related to motor vehicles. Your website shows that the Eflare 2000 is marketed for use primarily in conjunction with motor vehicles, to be deployed on the side of the road in the event a vehicle is disabled. Further, you are marketing the product to ordinary motor vehicle owners and drivers for their purchase. For these reasons, we conclude that your product is an item of motor vehicle equipment.
Manufacturers of motor vehicles and motor vehicle equipment must ensure that their products are free of safety-related defects. If you or NHTSA should determine that your product contains a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge. (This responsibility would be borne by the vehicle manufacturer in cases in which the Eflare 2000 devices are installed on a new vehicle by or with the express authorization of that vehicle manufacturer.)
You should also note that the Federal Motor Carrier Safety Administration (FMCSA), another agency of the U.S. Department of Transportation, has jurisdiction over interstate motor carriers operating in the United States. FMCSA was established on January 1, 2000, and was formerly a part of the Federal Highway Administration (FHWA). You should contact the FMCSA for an opinion as to whether that agency's requirements apply to your product. You may contact:
John McGowan, Director
Office of Bus and Truck Standards and Operations
Federal Motor Carrier Safety Administration
400 Seventh Street, SW, Room 3107
Washington, DC 20590
Telephone: (202) 366-4012
In addition, the states regulate the use of vehicles and items of motor vehicle equipment. Some states may regulate the warning devices that operators of vehicles may or must use when a vehicle is stopped. Each state in which you sell your product can provide information on whether there are any requirements in that state for warning devices to be used with motor vehicles.
Lastly, we have the following comments clarifying several of your statements. You write that "in explaining the regulatory situation to our U.S. customers," you wish to state the following about the Eflare 2000:
1. Have been designed to ensure that they do not conflict with the standards and regulations of the U.S. Department of Transportation.
2. May be used in the U.S. as warning devices for vehicles with gross vehicle weight ratings under 10,000 pounds, when the vehicle is disabled or stopped.
3. May be used in the U.S. as supplementary warning devices for trucks and buses over gross vehicle weight ratings of 10,000 pounds, provided they are used with triangles, fusees, or liquid-burning flares as required in DOT Safety Standard No. 125.
We are concerned that these statements and others in your literature give the impression that the product meets NHTSA standards. As previously explained, even though the Eflare 2000 falls within our statutory definition of "motor vehicle equipment," none of the FMVSSs apply to it. In your marketing efforts, you must avoid implying that your product is subject to or meets Standard No. 125 or any other Federal motor vehicle safety standard (FMVSS) or NHTSA regulation. Further, you must avoid any impression that NHTSA has approved your product.
Regarding the second and third statements, as noted above, simply because Standard No. 125 does not apply to your product does not mean that the product "[m]ay be used in the U.S. as a warning device." We urge you to check with the FMCSA and review the laws of the various states to determine whether use of your product would be permitted.
I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.
Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:125#VSA102(4)
d.1/12/01