Interpretation ID: nht91-1.15

DATE: January 8, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Oliver M. Sprangers -- A. T. Kearney, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 8-20-90 from Harry B. Skinner to Olivier M. Sprangers (OCC 5444); Also attached to letter dated 6-27-90 from Olivier M. Sprangers to James T. Brooks

TEXT:

This responds to your letter to Mr. James Travis Brooks of the Federal Highway Administration, U.S. Department of Transportation. Because you had questions about one of this agency's regulations, I have been asked to respond to your letter.

Your letter concerns a product that was developed by your client. Although no description of the product was provided, you state that it was manufactured so that it "fits within" 49 CFR S571.125 Warning devices. Your first question asked for advice on any approval process or other procedures that must be followed before your client's product may be sold in the United States. As will be more fully explained below, this agency cannot "approve" your client's product.

Some background information on U. S. requirements in this area may be helpful. The National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.; the Safety Act) gives this agency the authority to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. We have exercised this authority to establish Standard No. 125, Warning Devices (49 CFR S571.125; copy enclosed). When the agency has issued an applicable safety standard, section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) provides that no person shall "manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States" any new motor vehicle or new item of motor vehicle equipment unless the vehicles or equipment are in conformity with the applicable standard. NHTSA has no authority under the Safety Act to approve, certify, or otherwise endorse any commercial product. Instead, section 114 of the Safety Act (15 U.S.C. 1403) establishes a self-certification process under which every manufacturer is required to certify that each of its products meet all applicable Federal safety standards. Therefore, your client, the manufacturer of the product, must certify that it conforms to Standard No. 125.

Section 108(b)(2) of the Safety Act (15 U.S.C. 1397(b)(2)) requires the manufacturer of the warning device to exercise "due care" in certifying that it conforms to Standard No. 125. To comply with these legal obligations, I suggest that you carefully examine the requirements of Standard No. 125 and determine if your client's product conforms with those requirements. As you will see, Standard No. 125 contains specific requirements related to a warning device's material, container, labeling, configuration, color, reflectivity, luminance, stability, and durability.

You should be aware that the Vehicle Safety Act establishes a civil penalty of $1,000 for each violation of a safety standard and a maximum penalty of $800,000 for a series of violations. In addition, the Act requires manufacturers to remedy their products if they fail to comply with any applicable safety standards.

Regarding other procedures that must be followed before your client's product may be sold in the United States, 49 CFR Part 566, Manufacturer Identification (a copy of which is enclosed) requires manufacturers of motor vehicle equipment to which a motor vehicle safety standard applies to submit to this agency identifying information and a description of the items they produce.

You next ask about the term "collapsible" in Standard No. 125. You state that, unlike the product offered by many manufacturers that fold into a long thin package, your client's product only folds to the extent that the support for the triangle may be turned and brought into the same flat surface as the triangle. Since this would result in a flat, triangular thin package, you ask whether this storage configuration would still be within the meaning of the term "collapsible."

Although the term "collapsibility" is used in S5.2.1(b) of Standard No. 125, the requirements for storing warning devices are set forth at S5.1.2. If your product complies with the requirements of S5.1.2, it is not required to meet any additional requirements to be "collapsible" for the purposes of Standard No. 125.

I hope this information is helpful. If you have further questions or need additional information on this subject, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.