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125-006333drn

    Mr. Alex Angry
    Power Flare
    PF Distribution Center
    6489 Camden Avenue, Suite 108
    San Jose, CA 95120


    Dear Mr. Angry:

    This responds to your request for an interpretation concerning whether your battery-operated warning device, the "PowerFlare Electronic Beacon," must comply with the requirements of Federal Motor Vehicle Safety Standard No. 125, Warning devices, or any other National Highway Traffic Safety Administration (NHTSA) requirement. As explained below, because the PowerFlare Electronic Beacon 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 is subject to certain NHTSA requirements as the manufacturer of the equipment.

    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 S3. Application.)Since the PowerFlare Electronic Beacon is battery-powered, it has a "self-contained energy source."Therefore, Standard No. 125 does not apply to the PowerFlare Electronic Beacon.

    Even though not covered by Standard No. 125, the PowerFlare Electronic Beacon 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 is 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.

    Applying these two criteria to the PowerFlare Electronic Beacon, NHTSA concludes that although the device may have non-motor vehicle-related applications, a substantial portion of the expected use of the PowerFlare Electronic Beacon is related to motor vehicles. Your website, www.pfdistributioncenter.com, shows that the PowerFlare Electronic Beacon is marketed for use in conjunction with motor vehicles, to be deployed (in lieu of incendiary flares) on the side of the road in the event a vehicle is disabled. Product literature provided with your letter shows the PowerFlare Electronic Beacon marketed as an economical, "safe and environmentally-friendly" alternative to the incendiary flare. The literature notes that it can be used in situations where flares cannot be used, such as accident scenes where gasoline has spilled. 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 NHTSA and purchasers of the defective equipment and remedying the problem free of charge. (See 49 CFR Part 573, "Defect and Non-Compliance Responsibility and Reports.")

    You write that you intend the PowerFlare Electronic Beacon to be used with commercialbuses. 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. You should contact the FMCSA for an opinion as to whether that agencys requirements apply to your product. You may contact:

    Bob Proferes, Director
    Office of Bus and Truck Standards and Operations
    Federal Motor Carrier Safety Administration
    400 Seventh Street, SW, Room 8302
    Washington, DC 20590
    Telephone: (202) 366‑5307

    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. The States can provide information on whether they have any requirements for warning devices to be used with motor vehicles.

    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,

    Jacqueline Glassman
    Chief Counsel

    Enclosure
    ref:125#VSA
    d.10/1/04