Interpretation ID: nht91-7.39

DATE: December 10, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA; Signature by K. Weinstein)

TO: Frank Vestergaard -- M-CO Denmark

TITLE: None

ATTACHMT: Attached to letter dated 10-16-91 from Frank Vestergaard to NHTSA (OCC 6641)

TEXT:

This responds to your letter requesting information regarding legal requirements with which your company must comply before selling your item of motor vehicle equipment, the "Warn-Mill," that warns of the presence of halted vehicles. As explained below, your device must conform with the requirements of Federal Motor Vehicle Safety Standard No. 125, Warning Devices (49 CFR S571.125), if it is to be imported into the United States.

In your letter, you stated that the "Warn-Mill" is intended to warn of the presence of halted vehicles, and is intended as a supplement to the "statutory warning triangle." Although no size dimensions were provided, you provided a description of the "Warn-Mill" as a "strong reflecting white triangle, surrounded by red frame, mounted at a magnet foot to be placed at the roof of a halted vehicle." I am pleased to have this opportunity to explain our law and regulations to you.

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. This agency has exercised this authority to establish Standard No. 125. S3 of Standard No. 125 states that the standard "applies to devices, without self-contained energy sources, that are designed to be carried in motor vehicles, and used to warn approaching traffic of the presence of a stopped vehicle, except for devices designed to be permanently affixed to the vehicle."

It appears that the "Warn-Mill" would be subject to the requirements of Standard No. 125. The "Warn-Mill" has no self-contained energy source and is designed to be carried in motor vehicles. You state that it is to be used to warn of the presence of a stopped vehicle. The "Warn-Mill" is not designed to be permanently affixed to the vehicle because your letter states that it is designed to fall off the vehicle if the vehicle is driven with the "Warn-Mill" still attached.

I note from your letter that your company intends the "Warn-Mill" as a supplement to the "statutory warning triangle." This agency does not recognize such supplements. Since the "Warn Mill" fulfills the applicability criteria of Standard No. 125, it is a "warning device," within the meaning of the standard, and it must comply with all applicable requirements of that standard. From the enclosed copy of Standard No. 125, you will see that some of the specific requirements with which the "Warn-Mill" must conform include minimum size, durability,

material, container, labeling, configuration, color, reflectivity, luminance, and stability. Based upon the information provided in your letter, it does not appear that the "Warn Mill" complies with the stability requirements in S5.6, because the stability testing is done by placing the warning device on a horizontal brushed concrete surface.

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 all applicable standards and are covered by a certification issued under section 114 of the Safety Act. Unlike jurisdictions in which the vehicles and items of equipment to be offered for sale must be delivered to a governmental entity for testing and approval before they can be sold, the Safety Act gives this agency no authority to approve, endorse, or offer assurances of compliance to 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 meets all applicable Federal safety standards. The manufacturer's certification need not be based on actual tests in accordance with the standard. United States law only requires that the manufacturer's certification be made with the exercise of "due care" on the part of the manufacturer. It is up to the individual manufacturer in the first instance to determine what test results, engineering analyses, computer simulations, or other information it needs to certify compliance with the applicable safety standards. Once the manufacturer has made this determination and certified its product in accordance with the applicable standard, it is free to offer the product for sale in the United States. The agency periodically tests vehicles and items of equipment that have been certified by the manufacturer to ensure that they do, in fact, comply with the safety standards. NHTSA also investigates alleged defects related to motor vehicle safety.

Please also note that the 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 notify purchasers and remedy any items of motor vehicle equipment, such as warning devices, that do not conform with any applicable safety standards.

You should also be aware of two other provisions of our regulations. One is 49 CFR S551.45, Service of process on foreign manufacturers and importers, which requires manufacturers and importers of motor vehicle equipment, before offering such items for importation into the United States, to designate an agent in the United States upon whom service of all legal notices may be made. The other is 49 CFR Part 566, Manufacturer Identification, which requires manufacturers of motor vehicle equipment to submit to this agency identifying information and a description of the items of motor vehicle equipment produced. I am, for your information, enclosing copies of both of these regulatory provisions.

I have also enclosed an information sheet for new manufacturers of motor vehicles and motor vehicle equipment that briefly summarizes our laws and regulations and explains how to get copies of those laws and regulations. If you have any further questions or need additional information on this subject, please feel free to write to me.

Attachments

Copy of 49 CFR Ch. V (10-1-90 Edition) pertaining to Sections:

571.125: Standard No. 125: Warning devices and Accelerator control systems; 551.45: Service of process on foreign manufacturers and importers; 552: Petitions for rulemaking, defect, and noncompliance orders; 566: Manufacturer identification; and 567: Certification

Copy of the NHTSA information sheet dated September, 1985 entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment.

Copy of the NHTSA information sheet dated September, 1985 entitled Where to Obtain Motor Vehicle Safety Standards and Requlations

(Text of attachments omitted.)