Paul S. Rosenlund, Esq.
Duane Morris LLP
One Market, Spear Tower
San Francisco, CA 94105-1104
Dear Mr. Rosenlund:
This responds to your letter regarding your clients manufacture of bicycle racks for use on transit buses. You ask a number of questions about ensuring compliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment, with regard to a bicycle rack installed on the vehicles. We are happy to provide answers to your questions below.
By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act (Safety Act) to issue FMVSSs that set performance requirements for new motor vehicles and new items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs. If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding if necessary to ensure that the manufacturer takes appropriate action.
Question 1. We understand that vehicle manufacturers bear the sole legal obligation to certify vehicles as compliant with FMVSS 108 and other applicable safety standards, and that [F]ederal law does not require or make provisions for bicycle rack suppliers such as [our client] Sportworks to certify a bicycle rack or its component parts as being in compliance with [F]ederal standards. Please confirm our understanding to be correct.
Answer: While you are correct that manufacturers of new vehicles are responsible for certifying the compliance of the vehicle with all applicable FMVSSs, including FMVSS No. 108, there are certain obligations of which your client should be aware.
The first is S5.1.3 of FMVSS No. 108, which reads: No additional lamp, reflective device, or other motor vehicle equipment shall be installed that impairs the effectiveness of lighting equipment required by this standard. S5.1.3 has implications for a vehicle manufacturer or alterer installing the bicycle rack onto a new vehicle. That party would need to certify the vehicle as complying with FMVSS No. 108 with the bicycle rack installed, ensuring that the bicycle rack does not impair the effectiveness of required lighting equipment. The second is 49 U.S.C. 30122 which we will discuss below, particularly in answering question 5.
2. We understand that 49 U.S.C. 30122, which prohibits making federally mandated safety devices and elements inoperative, applies only to a vehicle manufacturer, dealer or repair business; this make inoperative prohibition does not pertain to the activities of vehicle owners, such as transit agencies which own and operate transit buses, who may make changes to their buses in their own repair and maintenance facilities, even if they cause a vehicle to no longer comply with NHTSA safety standards such modifications would be governed by applicable [S]tate laws. Please confirm our understanding to be correct.
Answer: As you point out in your letter, 30122 of the Safety Act has implications for your client. Section 30122 states, in pertinent part:
A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard prescribed under this chapter .
Your understanding is correct that the make inoperative provision of 30122 would not apply to a vehicle owner, such as a transit agency, that installs the bicycle rack in its own buses in its own repair and maintenance facility. However, please see our answer to question 5 for a more expansive discussion of 30122. In addition, there may be applicable Federal or State operational requirements relating to transit buses.
3. We understand that paragraph S7.8.5 of FMVSS 108 prohibits any styling ornament or other feature in front of the lens of a headlamp. In regard to all required lighting, we understand that paragraph S5.1.3 of FMVSS 108 prohibits motor vehicle equipment that impairs the effectiveness of lighting equipment required by this standard. Please confirm that these requirements pertain only to equipment such as a rack, and not to a bicycle or other item which may be placed in a rack. In this regard, we do understand that [S]tate laws may have other requirements that relate to bicycles or other temporary baggage wholly or partially obscuring any required lighting. Please confirm our understanding to be correct.
Answer: I would like to clarify several aspects of your statement. To begin, paragraph S7.8.5 only applies to the design of vehicle headlamps. The ornament or other feature described in that paragraph related to parts of the headlamp (e.g., wiper blades or translucent covers), not to additional vehicle equipment, such as a bicycle rack. Therefore, S7.8.5 would not be relevant to this discussion.
With regard to paragraph S5.1.3, as discussed in our answer to question 1, you are correct that a bicycle rack must not impair the effectiveness of required lighting equipment. In testing whether the vehicle complies with FMVSS No. 108, we would test the vehicle without a bicycle loaded on the rack, nor with any other cargo loaded into the vehicle. However, see our answer to question 5 regarding the make inoperative provision.
In addition, if the rack were installed such that a bicycle loaded onto the rack interfered with the functioning of a required lighting device, it is possible that such a situation could pose an unreasonable safety hazard. Under the Vehicle Safety Act, manufacturers are responsible for ensuring their vehicles and equipment are free of safety-related defects. If the design of the bicycle rack posed an unreasonable safety risk, we could investigate the problem as part of our defect authority.
Finally, you are correct in your understanding that the vehicle would be subject to State law requirements relating to items wholly or partially obscuring any required lighting. In addition, you should consider whether there are applicable Federal or State operational requirements relating to transit buses.
4. Sportworks on occasion supplies only the pivot plate assembly and/or bumper mounting brackets for its racks to OEM bus manufacturers for installation on new vehicles, with the understanding that the ultimate purchasers of these buses transit agencies will install racks in the configurations they select. In such circumstances, we understand that the OEM bus manufacturer may certify the bus as compliant with all applicable [F]ederal standards and that the owners selection, installation and use of the rack will be subject to [S]tate laws rather than to the FMVSS. Please confirm our understanding to be correct.
Answer: Your understanding is correct that the bus manufacturer must certify that the buses, with the installed private plate assemblies or mounting brackets installed, are compliant with FMVSS No. 108. However, please see our answer to question 5 for a more expansive discussion of issues raised by this question.
5. Finally, we understand from prior interpretive rulings that NHTSA considers a bicycle rack to be equipment such that if it is installed by a vehicle manufacturer, dealer or repair business, the complete vehicle, including the rack, must comply with the FMVSS, and if part of the rack installed by a vehicle manufacturer, dealer or repair business makes inoperative any required lamps or reflectors on the body of the vehicle, it would be necessary for the vehicle manufacturer, dealer or repair business to install auxiliary lamps or reflectors to replace the function of those made inoperative. Likewise, we understand from prior interpretive rulings that if a vehicle manufacturer, dealer or repair business sells a vehicle that complies with FMVSS 108 when delivered to the owner, but with hardware installed that the seller knows will be used to create a noncompliance, you would consider the vehicle manufacturer, dealer or repair business to have created the noncompliance. Please confirm our understanding to be correct.
Answer: It is correct that the new vehicle must be certified by its manufacturer as complying with all applicable FMVSSs with the bicycle rack installed. The vehicle must be certified with any system, part or component of a motor vehicle as originally manufactured. (See definition of motor vehicle equipment, 49 U.S.C. 30102(a)(7)(A)).
With regard to your questions about the make inoperative provision of 49 U.S.C. 30122, you are correct that NHTSA has addressed the scenario you describe (see March 26, 1996 letter to Chris Jorheim of New Flyer Industries, copy enclosed). Mr. Jorheim asked about a manufacturer delivering a new bus to the end user with an advertising frame on the bus side. A required left side reflector would be unobstructed when the bus was delivered but once the owner placed an advertisement in the frame the reflector would have been covered. NHTSA determined that in this situation, the manufacturer produced a bus with the knowledge that the owner intended to create a noncompliance, and provided the hardware installed to enable the owner to do so. The agency determined that in this situation, both the bus manufacturer and the owner were creators of a noncompliance with FMVSS No. 108. However, since the owner is not subject to the provisions of 30122, the agency determined that the liability would be the manufacturers alone.
This analysis extends to the situation you describe as well. If the bus manufacturer installing Sportworks bicycle rack knew that the rack could not be used without creating a noncompliance with FMVSS No. 108 through, e.g., obstruction of the vehicles headlamps by the bicycles carried on the rack, both the bus manufacturer and the end user will be held to have created the noncompliance. Since the end user may not be subject to 30122, the bus manufacturer could alone be liable for making inoperative the vehicle safety system.
Finally, you are correct that one option to rectify a potential noncompliance with FMVSS No. 108 is to install auxiliary lamps or reflectors to replace the function of those made inoperative. This provision is contained in paragraph S18.104.22.168 of FMVSS No. 108, which states: If any required lamp or reflective device is obstructed by motor vehicle equipment (e.g., mirrors, snow plows, wrecker booms, backhoes, winches, etc.), and cannot meet requirements of S5.3.2, the vehicle must be equipped with an additional lamp or device of the same type which meet all applicable requirements of this standard, including S5.3.2.
If you have any further questions, please contact Ari Scott of my staff at (202) 366-2992.
Anthony M. Cooke
 Please note that because FMVSS No. 108 applies to original and replacement lamps, reflective devices, and associated equipment, manufacturers of replacement equipment also have responsibilities to certify compliance with the standard.
 It is also correct that NHTSA has not issued an FMVSS specifically applying to bicycle racks. Therefore, Sportworks would not certify its bicycle racks as meeting any specific standard.
 A bicycle rack installed on a new vehicle is considered an item of motor vehicle equipment. See also May 25, 1990 letter to Susan Birenbaum, Esq., available at http://isearch.nhtsa.gov.
 Available at http://isearch.nhtsa.gov.