ID: 19884.ztv

Mr. Ron Woodward, P.E.
Section Supervisor Optics & Adv. Eng.
Federal Mogul
2513 58^th Street
Hampton, VA 23661

Dear Mr. Woodward:

This is in reply to your letter of April 19, 1999, requesting an interpretation of Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices and Associated Equipment as it applies to a proposed horizontal alignment system for use with visual/optical aim headlamps.

Paragraph S7.8.2.1(c) of Standard No. 108 states that "A visually/optically aimable headlamp that has a lower beam shall not have a horizontal adjustment mechanism unless such mechanism meets the requirements of paragraph S7.8.5.2 of this standard." You reference previous interpretations of this office which state "that disabled horizontal adjusters are acceptable [i.e., are not horizontal aim mechanisms within the meaning of the phrase]," that "certain types of anti-tamper screws are not permitted" ("ones that can be driven in one direction"), but not all types of such screws, and "exposed screw heads were also rejected because pliers could be used to rotate the screw."

You have enclosed a drawing showing a horizontal alignment system that you propose to use. It "would be used during manufacturing to achieve proper mechanical alignment of the mounting surface and lamp optical system and is not meant to be adjustable after manufacture." The drawing you enclose shows both a plan and section view of your system. There is an "external shroud [which] prevents adjustment by wrenches and pliers." There is also a center section described as "center anti-tamper post [which] prevents entry of standard Torx driver bit, screw driver, & Allen wrench." You ask whether we would regard this as a horizontal adjustment mechanism as prohibited by S7.8.2.1(c).

Yes, we would regard this design as a horizontal aim mechanism within the meaning of S7.8.2.1(c)(and impermissible because it does not meet S7.8.5.2). Although the center anti-tamper post prevents entry of a standard Torx driver bit, non-standard Torx driver bits are readily available which would defeat your intent that the horizontal alignment not be adjustable after manufacture. Specifically, SK Drive Tamper-Proof Torx Bits are available through internet web sites, if not tool jobbers and mobile tool sales outlets, and these are intended to fit the center anti-tamper post and allow entry.

If you have any questions, you may phone Taylor Vinson of this Office (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108
d.6/28/99

ID: 19886.ztv

David H. Coburn, Esq.
Steptoe & Johnson LLP
1330 Connecticut Avenue, NW
Washington, DC 20036-1795

Re: Request for Clarification

Dear Mr. Coburn:

This is in reply to your letter of April 16, 1999, seeking a confirmation that a previous interpretation of Federal Motor Vehicle Safety Standard No. 108 remains valid.

The interpretation is one that we sent your client, Baran Advanced Technologies, Ltd., on September 7, 1993. In that letter, we informed Baran that we did not believe that a device which activates a vehicle's hazard warning system upon sensing a sudden release of the accelerator pedal would impair the effectiveness of the stop, tail, and turn signal lamps required by Standard No. 108, assuming that the device is not activated under normal stopping conditions, that it is automatically deactivated when the brake pedal is applied, that manual deactivation is not required, and that the device would be overriden by manual activation of the turn signal lamps.

Regrettably, I cannot confirm that this interpretation remains valid. Our earlier interpretation did not consider the effect of the device upon the hazard warning signal itself. Since 1993, we have come to the conclusion that use of required lighting equipment for other than its original purpose may compromise and reduce its safety effectiveness. As we said in 1996,

It is important that the integrity of the required signal lamps be maintained, and that auxiliary signal lamps not detract attention from the messages that the required signal lamps are sending. A vehicle signaling system must be as simple and as unambiguous as possible to others who share the roadway if traffic is to proceed in a safe and orderly fashion. (61 FR 65516)

See also our Statement of Policy published in the Federal Register on November 4, 1998 (63 FR 59482, copy enclosed).

We believe that a hazard warning system should not be used for the auxiliary purpose of indicating sudden accelerator release, a signal that bears no relationship to a hazard warning signal and one which could create confusion were the hazard warning signal used for an unrelated purpose. We believe that our 1993 interpretation was superseded by our subsequent policy statement, and therefore reverse it and conclude that S5.1.3 prohibits the system as described.

If you have any questions, you may call Taylor Vinson (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref.108
d.8/6/99

ID: 1988y

Mr. Dan Trexler
Specifications Engineer
Thomas Built Buses, Inc.
P.O. Box 2450
High Point, NC 27261

Dear Mr. Trexler:

This is in reply to your letter of May 8, l989, to the former Chief Counsel of this agency, Erika Jones. You have received requests "to install a master electrical disconnect switch on many buses." When the switch is turned to the "off" position "it renders inoperative the warning signals (to the driver) required by FMVSS l05, 121 and 217. It also inactivates the hazard warning flasher required by FMVSS l08." You ask whether installation of the switch would constitute a noncompliance, or a "safety related hazard." if it is accessible to the seated driver, or if remotely located in the battery or engine compartment, without ready access to the driver.

Although you have not explained the purpose of such a device, we understand that a battery disconnect switch of this nature is deemed desirable by many bus owners to prevent drains on the battery when the bus is at rest. When the switch is activated, the bus cannot be started and driven because electric power is not available. Under this circumstance we do not believe that the switch either creates a noncompliance with any of the standards listed, nor constitutes a safety related defect, regardless of its location. When the bus is in operation the warning systems of the standards are not affected. The possibility of inadvertent activation when the bus is in use does not constitute a defect in performance, construction, components, or materials such as to create a safety related defect. To forestall any possibility of inadvertent activation, however, you may find it preferable to locate the switch away from the driver.

We understand that a purpose of this switch is to reduce the likelihood of fire after accidents in which there has been fuel spillage. In this circumstance, it is likely that the bus would be positioned either in the roadway or adjacent to it. Safety would be enhanced if the hazard warning signal power source were separate from the batteries inactivated by the disconnect switch, so that these warning lamps could continue to operate.

Sincerely,

Stephen P. Wood Acting Chief Counsel / ref:VSA#l04#l08#l2l#2l7 d:8/30/89

ID: 19891.drn

Mr. Dennis Seavey
Plus Time New Hampshire
160 Dover Road, Suite One
Chichester, NH 93234

Dear Mr. Seavey:

This responds to your letter asking about our August 8, 1998, interpretation to Mr. Terry L. Voy, School Transportation Consultant for the Iowa Department of Education, concerning our school bus regulations.

In the letter to Mr. Voy, we explained that persons selling a new bus to a daycare facility must sell a "school bus" if the bus will be significantly used to transport school children to or from school or related events. As to whether a bus is "used significantly" for such use, we told Mr. Voy that regular use of a bus to pick up students from school five days a week would constitute "significant use" as a school bus. We also stated in that letter that "regular use on alternate days would be 'significant.'"

You ask about the latter statement, as to whether transporting school-aged children to and/or from a child care facility and school three days a week (Monday, Wednesday, and Friday) constitutes "significant use" as a school bus. You also ask if we would consider the bus to be "significantly" used for school transportation if it were used to take children to and/or from school on Tuesdays and Thursdays.

Our answer is that regular use of the vehicle to transport school children to or from school on Mondays, Wednesdays, and Fridays, or on Tuesdays and Thursdays, is "significant use" of the vehicle for school transportation. We would also consider transportation provided to or from school on any two days during a week to be regular use and therefore "significant."

As you are aware, the National Highway Traffic Safety Administration's (NHTSA) safety standards directly regulate the manufacture and sale of new motor vehicles, not their use. Each state has the authority to set its own standards regarding use of motor vehicles, including school buses. Please check with the appropriate New Hampshire officials to see if any State law regulates how New Hampshire school children must be transported between their school and after school programs. For information on New Hampshire's requirements, you may contact New Hampshire's State Director of Pupil Transportation:

Ms. Bethia LaMarca, Pupil Transportation Supervisor
New Hampshire Department of Safety
10 Hazen Drive
Concord, NH 03305
Telephone: (603) 271-1999

In closing, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. Further, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in increased liability in the event of a crash. Since such liability would be determined by State law, you may wish to consult with your attorney and insurance carrier for advice on this issue.

I hope this information is helpful. I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children" that describes the safety features of a school bus. I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses." 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
Enclosures
ref:VSA#571.3
d.5/20/99

ID: 1989y

Mr. Bradley J. Baker
President
Classic Manufacturing, Inc.
21900 U.S. 12
Sturgis, MI 49091

Dear Mr. Baker:

This is in reply to your letter to Taylor Vinson of this Office, with reference to a product your company manufactures, a "car dolly used to tow a vehicle behind motor homes." You question whether the dolly is a motor vehicle, and if so, whether identification lamps are necessary for it. I regret the delay in responding.

The car dolly appears to be a vehicle drawn by mechanical power manufactured primarily for use on the public roads, and thus a "motor vehicle" subject to the jurisdiction of this agency. Specifically, it would be a "trailer", since it is a motor vehicle without motive power, designed for carrying property and for being drawn by another motor vehicle. Federal Motor Vehicle Safety Standard No. l08, Lamps, Reflective Devices, and Associated Equipment, requires identification lamps on all trailers whose overall width is 80 inches or more. Therefore, if the overall width of your dolly is less than 80 inches, it need not be equipped with identification lamps.

Sincerely,

Stephen P. Wood Acting Chief Counsel

/ Ref:l08 d:8/3l/89

ID: 23134.rbm

Ms. Wendy Cohen
Assistive Technology Specialist
The State Education Department
VESID, 109 S. Union St.
Rochester, NY 14607





Dear Ms. Cohen:

This responds to your correspondence regarding the National Highway Traffic Safety Administration's (NHTSA) final rule on vehicle modifications for individuals with disabilities. You ask whether the results of front, side and rear crash tests conducted on modified Grand Caravan vehicles with a 119 inch wheelbase are valid for a similarly modified Dodge Caravan with a 113 inch wheelbase. Your question is in connection with a vehicle modified to accommodate a person with a disability, and appears to raise issues regarding continued compliance with Federal Motor Vehicle Safety Standard No. 301, Fuel system integrity (FMVSS No. 301).

NHTSA is unable to answer your question. NHTSA does not approve motor vehicles or motor vehicle equipment items, nor does the agency endorse any commercial products or vendors. Furthermore, we cannot provide specific information as to whether the types of potential modifications you have discussed would have the effect of taking the vehicle out of compliance with FMVSS No. 301. This responsibility lies with the business that makes the modifications. As noted above, the critical factor is whether the vehicle, as modified, would pass a FMVSS No. 301 crash test. We do note that, even though no changes were made to the frame or materials of construction, differences in the location of the fuel tank and the fuel fill and supply lines can affect crash test results. Any such differences could prevent a vehicle manufacturer, alterer, or modifier from relying on existing test data, especially in the case of the side impact test, where the impact target zone is based on the driver's seating position. A vehicle with a shorter wheelbase is likely to have its fuel tank and fuel fill line closer to the side impact zone than a similar long-wheelbase vehicle. We urge vehicle modifiers to exercise reasonable care including working with the vehicle manufacturer to determine whether a potential modification would take the vehicle out of compliance.

By way of background, NHTSA administers a statute requiring that motor vehicles manufactured for sale in the United States or imported into the United States, i.e., vehicles that are driven on the public roads and highways of the United States, be manufactured so as to reduce the likelihood of motor vehicle crashes and of deaths and injuries when crashes do occur. The statute ("Vehicle Safety Act") is codified at 49 U.S.C. 30101, et seq.

One of the agency's most important functions under that Act is to issue and enforce the Federal Motor Vehicle Safety Standards (FMVSSs). These standards specify safety performance requirements for motor vehicles and/or items of motor vehicle equipment. Manufacturers of motor vehicles must certify compliance with all applicable safety standards and permanently apply a label to each vehicle stating that the vehicle complies with all applicable FMVSSs.

The Vehicle Safety Act also prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment that is in compliance with any applicable FMVSS (49 U.S.C. 30122). If NHTSA determines that a business has violated the make inoperative provision, it may assess a civil penalty in the amount of $5,000 per violation (not to exceed $15,000,000 in the aggregate). NHTSA may, through regulation, exempt a person or business from the prohibition if it decides that an exemption is consistent with motor vehicle safety and the Vehicle Safety Act.

On February 27, 2001, NHTSA published a final rule setting forth a limited exemption from the make inoperative prohibition for businesses or individuals who modify vehicles for persons with disabilities (66 Federal Register 12638; Docket No. NHTSA-01-8667). This exemption is codified at 49 CFR Part 595, which explains the extent of the exemption and provides parameters that repair businesses must stay within when performing modifications to a vehicle after first retail sale in order to take advantage of the exemption. Part 595 lists in section 595.7(c) the FMVSSs for which modifications are permitted to enable a person with a disability to operate, or ride as a passenger in, the motor vehicle even though the modification may make inoperative a part of a device or element of design installed in or on the motor vehicle in compliance with a FMVSS.

Persons with disabilities often purchase vans or minivans to meet their particular needs. Crash testing is typically used by the original vehicle manufacturers to certify that these vehicles meet the requirements of FMVSS No. 204 (gross vehicle weight rating (GVWR) of 10,000 lb or less and unloaded vehicle weight of 4,000 lb or less), FMVSS No. 208 (GVWR of 8,500 lb or less and unloaded vehicle weight of 5,500 lb or less), FMVSS No. 212 (GVWR of 10,000 lb or less), FMVSS No. 214 (GVWR of 6,000 lb or less but does not apply to vehicles equipped with wheelchair lifts), FMVSS No. 219 (GVWR of 10,000 lb or less), and FMVSS No. 301 (GVWR of 10,000 lb or less). Part 595 provides an exemption that would allow a vehicle modifier to take a vehicle out of compliance with portions of FMVSS Nos. 204, 208, and 214 if the modifications are necessary to accommodate a person's disability. FMVSS No. 204 modifications are limited to those that affect the original steering shaft. If modifications to the steering shaft are not necessary, the vehicle must continue to meet the standard's requirements. Modifications with respect to FMVSS Nos. 208 and 214 are limited to those designated seating positions that are modified for use by a person with a disability.

The FMVSS most likely to be directly affected by a modification that lowers the vehicle's floor is FMVSS No. 301. This is because, at a minimum, the fuel lines from the engine to the fuel tank will usually need to be relocated; if large areas of the floor are lowered, the fuel tank itself may need to be relocated or replaced. FMVSS No. 301 requires that any spillage from the fuel system be within specified limits (on average, about one ounce per minute) when the vehicle is subjected to one of three test conditions: pulled forward into a fixed barrier at 30 mph, struck on the side by a 4,000 lb flat-faced, moving barrier traveling at 20 mph, or struck from the rear by the same moving barrier traveling at 30 mph. The vehicle will crush as it absorbs the crash energy in each test. The vehicle's fuel system is directly affected by the energy of the crash as that energy can cause the fuel tank to move. In addition, the fuel tank, lines, and other components may come into contact with other components in the same area of the vehicle. For example, in many cases where the agency's test vehicles have experienced spillage from the fuel tank, that spillage has been the result of the tank being pierced by another component of the vehicle.

Producers of equipment that is used in a system (e.g., fuel tank and lines) that is designed to comply with a particular FMVSS (e.g., FMVSS No. 301) are component suppliers and would not be directly subject to the requirements of the standard, ⁽¹⁾ although any manufacturer or alterer (see 49 CFR 567.7) using the product would be. A company that lowered the floor of an incomplete vehicle, or otherwise completed manufacturing operations on an incomplete vehicle, would be a final stage manufacturer. A company that lowered a vehicle floor on, or made other changes to, a completed vehicle prior to first retail sale would be an alterer. Both companies would have to certify that the vehicle, as finally manufactured or altered, complies with all applicable FMVSS, including FMVSS No. 301. A company modifying a vehicle after first retail sale, may not modify a vehicle in such a way as to take the vehicle out of compliance with any applicable FMVSSs for which there is no make inoperative exemption, although the modifier is not required to certify compliance with all applicable standards. However, any modifier that avails itself of the make inoperative exemptions provided in 49 CFR 595.7 must affix a permanent label to each affected vehicle that includes the statement "this motor vehicle has been modified in accordance with 49 CFR 595.6 and may no longer comply with all Federal Motor Vehicle Safety Standards in effect at the time of its original manufacture." Section 595.7 also requires the modifier to retain a copy of the document that must be provided to the vehicle owner. Section 595.7(e)(4) requires the document to include "a list of the FMVSS or portions thereof specified in paragraph (c) of this section with which the vehicle may no longer be in compliance."

Because there is no Part 595 exemption related to fuel systems, vehicle modifiers must take care to ensure that they do not modify the vehicle fuel system in a manner that takes it out of compliance with FMVSS No. 301. One way to provide such assurances would be to purchase vehicles where the floor has already been lowered by the vehicle manufacturer or alterer, who has certified compliance with FMVSS No. 301. Another possible way to provide assurance that compliance has not been compromised is by modifying the vehicle pursuant to a specific protocol based on analysis of crash-testing in accordance with FMVSS No. 301. For example, we believe that the National Mobility Equipment Dealers Association (NMEDA) has successfully crash-tested a vehicle with a lowered floor and that it provides an explanation of how to make such a modification to its Quality Assurance Program (QAP) members. Finally, a modifier may use engineering analysis alone to determine whether the vehicle modification would take a vehicle out of compliance with the standard. This last option is the most risky since there is no crash-test data to verify the soundness of the modifier's judgment.

I hope the addresses your concerns. Please contact Rebecca MacPherson of my staff at this address or at (202) 366-2992 should you have any additional questions about this matter.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:595
d.4/12/02





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¹ As a practical matter, component suppliers often assume some responsibility to the manufacturer for the compliance of vehicles equipped with their products to applicable FMVSSs. This is done through a contractual relationship between the supplier and the vehicle manufacturer that certifies compliance.

ID: 23189ogm

Mr. Mark Doody
Technical Manager
Timoney Group
Gibbstown
Navan, Co. Meath
Ireland





Dear Mr. Doody:

This responds to your recent electronic mail message requesting an interpretation of how Federal Motor Vehicle Safety Standard (FMVSS) No. 121, Air Brake Systems, applies to truck air brakes. Specifically, you ask whether it would be "legal" under the National Highway Traffic Safety Administration (NHTSA) standards for a 6 x 6 vehicle to have an emergency braking system using two "L-split" circuits. Your message describes the "L-split" as two circuits with each circuit braking one rear axle and one front wheel.

By way of background information, Congress has authorized NHTSA to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and items of motor vehicle equipment. NHTSA, however, does not approve or endorse motor vehicles or motor vehicle equipment. Instead, the statute establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

NHTSA has issued several standards applicable to brake systems. Standard No. 121 establishes performance and equipment requirements for braking systems on vehicles equipped with air brake systems, and applies to almost all new trucks, buses, and trailers equipped with air brake systems. I note that, under Standard No. 121, trucks equipped with air braked systems are effectively required to have a dual braking system that is commonly called a split braking system as the result of the requirements in S5.7.1 and S5.7.2. Section S5.7.1, which is referred to as "Emergency brake system performance," requires air braked trucks to comply with a performance requirement that sets forth the distances in which they must stop if there is a leakage failure in the brake system. Section S5.7.2 requires the emergency brake system to be operated by a service brake control.

Although the performance requirements of Standard No. 121 are usually met by use of a "split circuit" emergency braking system, the Standard does not explicitly require such a system or declare that any "split circuit" system have a particular configuration or design. What is required is that the emergency brake system meet all applicable performance requirements.

I hope this information is helpful. If you have any questions, please feel free to contact Otto Matheke at this address or by telephone at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:121

d.8/31/01

ID: 23197rbm-2

James T. Pitts, Esq.
Winston & Strawn
1400 L Street, NW
Washington, DC 20005-3502





Dear Mr. Pitts:

This letter responds to your recent correspondence where you ask the National Highway Traffic Safety Administration (NHTSA) for clarification of the provision in Federal Motor Vehicle Safety Standard No. 208 that excludes small volume manufacturers from the phase-in of the requirements for advanced air bags. ⁽¹⁾ As noted in your letter, FMVSS No. 208 currently excludes from the phase-in vehicles manufactured by a manufacturer that produces fewer than 5,000 vehicles worldwide annually. While not subject to the phase-in requirements, small volume manufacturers are required to meet the requirements for advanced air bags effective September 1, 2006.

You queried whether a wholly-owned subsidiary of a manufacturer could qualify as a small volume manufacturer under a corporate arrangement that effectively treats the subsidiary as a totally separate corporate entity. Your letter indicated that the parent company does not manufacture vehicles for the U.S. market. You particularly emphasized the arms length relationship between the parent and the subsidiary, as well as the separate manufacturing plants, separate relationships with suppliers and sub-contractors, and the fact that the parent-subsidiary relationship would be the result of the acquisition of an existing small volume manufacturer.

Based on a review of the proposed corporate structure, we believe that the subsidiary would probably qualify as a small volume manufacturer for purposes of the relevant provision of FMVSS No. 208, even though wholly owned by a much larger vehicle manufacturer. However, we believe that the determination of whether the subsidiary is a small volume manufacturer for FMVSS No. 208 is no longer pertinent.

In our response to petitions for reconsideration of the advanced air bag final rule, published December 18, 2001 (66 FR 65376), we changed the provision so that vehicles that are manufactured by an original vehicle manufacturer that produces or assembles fewer than 5,000 vehicles annually for sale in the United States are not subject to the phase-in requirements. Again, we note that small manufacturers have always been required to meet the advanced air bag requirements after the phase-in ends on September 1, 2006. A complete explanation of the change is provided in our response to the petitions.

I hope this adequately resolves your concerns. Should you have any additional questions, please contact Rebecca MacPherson of my staff at this address or by phone at (202)366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:208
d.3/1/02





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¹ The advanced air bag requirements were published as a final rule on May 12, 2000 (65 Fed. Reg. 30680).

ID: 23257.ztv

Mr. Larry Hughson
Vehicle Services Division
2835 N. Kerby Avenue
Portland, OR 97227





Dear Mr. Hughson:

This is in reply to your e-mail of June 18, 2001, to the National Highway Traffic Safety Administration's Region 10 asking for an interpretation of Federal Motor Vehicle Safety Standard No. 108.

You have been informed by a member of the public that Portland's police cars do not comply with Standard No. 108. You cite that portion of S5.5.4 of Standard No. 108 which states that "the high-mounted stop lamp on each vehicle shall be activated only upon application of the service brakes." You state that S5.5.10 does not list the center high-mounted stop lamp, backup lamps, stop lamps, and headlamps (for purposes other than signaling) as lamps that are allowed to flash. You also cite S5.5.10(d) which, in effect, requires these lamps to be steady burning when in use. You ask if there is an alternate standard that applies to police vehicles, or whether police cars are exempt from this requirement.

We surmise from your letter that the police vehicles are equipped with a system that flashes headlamps, stop lamps, the center high-mounted stop lamp, and backup lamps for emergency purposes.

You did not relate whether this lighting system is installed as original equipment or after the vehicles are delivered to the police. I will first address its installation as original equipment. I enclose a copy of a letter that we sent Col. W. Gerald Massengill of the Virginia State Patrol on July 3, 2001, which we believe is applicable to the questions you raise. In brief, the system you describe on Portland's vehicles does not comply with Standard No. 108. However, we traditionally defer to the judgment of a State as to the installation and use of emergency lighting devices on its vehicles. The drivers that operate police vehicles will be instructed to use the warning system only under certain circumstances, such as to alert motorists of the presence of stopped vehicles in the roadway ahead. In all other circumstances, the headlamps, stop lamps

and backup lamps will operate consistent with the requirements of Standard No. 108. The noncompliances are temporary in nature and are necessary for the mission of the police. We believe, then, that the emergency system you describe is permissible as original equipment because of the circumstances which are unique to law enforcement.

If the system is added after the vehicles are delivered to the police department, please note that Federal law (49 U.S.C. 30122), does not prohibit a vehicle owner from adding equipment that may create a noncompliance with a Federal motor vehicle safety standard. Thus, installation of the warning system by a city-owned and operated garage is not prohibited under Federal law if installed only on city-owned vehicles. If the installation of the warning system is by a motor vehicle repair business, other than one that is city-owned, we would also consider that permissible for the same reasons as we would allow the system as original equipment.

If you have any questions, you may phone Taylor Vinson of this Office (202-366-5263)..

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
Ref:108
d.7/30/01

ID: 23277.ztv

Mr. John J. Sobotik
Assistant General Counsel
Wisconsin Department of Transportation
4802 Sheboygan Avenue, Rm. 1158
P.O. Box 7910
Madison, WI 53707-7910

Re: State Motor Vehicle Safety Standards                      Stop Lamp Colors





Dear Mr. Sobotik:

This is in reply to your letter of June 4, 2001, asking whether legislation recently introduced in Wisconsin would violate Federal law. The legislation would be similar to that adopted in 1999 by Minnesota.

Specifically, Minnesota Statutes 1998, section 169.64, subdivision 4 was amended to add a new paragraph (c) which reads: "A motorcycle may display a blue light of up to one inch diameter as part of the motorcycle's rear brake light." Wisconsin 2001 Assembly Bill 102 would amend 347.14(2) of the statutes to include the sentence "The stop lamp for a motorcycle may emit, in addition to red or amber light, a blue light that is located in the center of the lamp and that comprises less than 10% of the surface of the lamp."

Your initial analysis is that Wisconsin could not adopt this legislation, but you are unsure of this conclusion because of uncertainty whether the U.S. Department of Transportation has challenged the Minnesota law. Accordingly, you have asked four questions:

If Wisconsin adopts a law permitting the use of blue color on all or part of a motorcycle stop lamp, is the state prescribing a standard that is not identical to the federal standard for motorcycle stop lamps?

The answer is yes. Table III of Federal Motor Vehicle Safety Standard No. 108 (49 CFR 571.108) allows only red as a color for motorcycle stop lamps. A state standard permitting a stop lamp to emit either blue or amber light would not be identical to the Federal standard for motorcycle stop lamps, and hence would not be permitted under 49 U.S.C. 30103(b)(1). Assembly Bill 102 indicates that Wisconsin law may already permit amber as a color for motorcycle stop lamps.

Would permitting the use of blue color on all or part of a motorcycle stop lamp constitute the establishment of a standard higher than the otherwise applicable federal standard?

No. Permitting the use of blue color (or amber) would establish a state standard that is not identical to the Federal standard covering the same aspect of performance as the federal standard. Even if the use of blue (or amber) was regarded as establishing a higher standard of performance than the use of red, the exception in 49 U.S.C. 30103(b)(1) that a state may enact a standard of higher performance than the otherwise applicable Federal standard is not an exception of general application but one that applies only to vehicles a state or one of its political subdivisions obtains for its own use.

If adopting a law permitting the use of a blue color on all or part of a motorcycle stop lamp is considered by NHTSA to be the establishment of a standard that is not identical to or higher than the federal standard, what actions could theoretically be taken by NHTSA in response to Wisconsin adopting such a law?

Because 49 U.S.C. 30103(b)(1) allows a state to prescribe a state standard applicable to the same aspect of performance as a Federal standard only if the standard is identical to the Federal standard, the Department of the Transportation could seek to enjoin Wisconsin from giving effect to a law permitting the use of a blue color on a motorcycle stop lamp, or from continuing in effect a law permitting the use of amber for a motorcycle stop lamp.

What repercussions could befall individuals or entities that buy or sell motorcycles bearing stop lamps that have been altered to have a blue center?

We understand that a lighting accessory is available that consists of a clear blue circle which can be inserted in the middle of a red lens through which a blue light is emitted when the tail or stop lamp is activated. A motorcycle dealer must ensure that a motorcycle continues to meet all applicable Federal motor vehicle safety standards at the time the motorcycle is sold to its first purchaser for purposes other than resale. Thus, a dealer selling a new motorcycle whose stop lamp has been altered to have a blue center would be considered under Federal law to be violating Standard No. 108. The dealer must also ensure that replacement lighting equipment that it sells is designed to conform to Standard No. 108. We are authorized to impose a civil penalty of up to $5,000 per violation, up to $15,000,000 for any related series of violations, such as would occur with sales of noncomplying vehicles or replacement equipment. However, sale of an accessory that alters lamp color is not prohibited, even if its installation in a stop lamp would create a noncompliance with Standard No. 108. There are no Federal restrictions that apply to the sale of a motorcycle subsequent to its first purchase, even if it were originally equipped with a noncomplying stop lamp.

As for modifications of vehicles and equipment originally manufactured to conform, after their first sale for purposes other than resale, 49 U.S.C. 30122 prohibits dealers (and manufacturers, distributors, and motor vehicle repair businesses as well) from making inoperative any device or element of design installed in accordance with a Federal motor vehicle safety standard. However, the statute does not prohibit a motorcycle owner from such alterations. Thus, an owner would not violate Federal law either by installing a stop lamp altered to have a blue center, or by inserting a blue center in the original stop lamp. The validity of owner modifications affecting compliance with the Federal motor vehicle safety standards is determinable under state law. Under your hypothetical scenario, there would be no violation of a state law permitting a stop lamp with a blue center. However, as noted earlier, we would view the sale of such a stop lamp as a violation of Federal law.

In closing, let me note that this Office was not aware of the 1999 Minnesota amendment until you brought it to our attention.

If you have any further questions, you may refer them to Taylor Vinson of this Office (202-366-5263).

Sincerely,

John Womack
Acting Chief Counsel

ref:108
d.9/28/01