New Flyer Industries Ltd
600 Pandora Avenue West
Canada R2C 3T4
Dear Mr. Jorheim:
This is in reply to your letter of January 23, 1996, asking for an interpretation of the requirements of U.S. Federal Motor Safety Standard No. 108 as it applies to intermediate side reflex reflectors on your 40-foot bus.
You are currently installing them "at or near the midpoint between front and rear marker lamps" in accordance with the standard, but some of your buses are delivered with an advertising frame on each side. The problem is that "[t]he left side reflector is unobstructed when the bus is delivered but once the owner places an advertisement in the frame the reflector is covered." You have asked whether you comply with Standard No. 108 by having the reflector location as is even though it will be covered with advertising after the bus is delivered to the purchaser.
Under 49 U.S.C. Sec. 30122, "a manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device . . . installed on . . . a motor vehicle in compliance with an applicable motor vehicle safety standard . . . ." Although your bus technically complies with Standard No. 108 when it is delivered to the owner, you would have manufactured the bus with the knowledge that the owner intends to create a noncompliance, and with the hardware installed to enable it to do so. In this situation, we would regard both the bus manufacturer and the owner as creators of a noncompliance with Standard No. 108. However,
the liability would be yours alone, because the persons prohibited by Sec. 30122 from making safety equipment inoperative do not include the owner. Further, when a noncompliance occurs attributable to the manufacturer, the manufacturer must notify and remedy according to statutory procedures.
You have suggested several options, and ask which, if any, would assure compliance with Standard No. 108 and provide a proper safety level for the bus. The first is to move the reflector to the rear of the ad frame, where it would be 5 to 6 feet from the midpoint of the vehicle. The second would be to add two reflectors, one to the front of the frame and the other to the rear, where each would still be 5 to 6 feet from the midpoint. The third would be to move the reflector above the frame at a height of 45 to 50 inches above the ground, where it would be near, but not at, the midpoint. This third option would comply with the requirements of the standard that intermediate reflex reflectors be located at or near the midpoint of the bus. The other two options would not comply.
We appreciate your willingness to explore options which will ensure the continued conformance of your product after the modifications performed on it by its purchaser.
If you have any questions, you may refer them to Taylor Vinson of this Office (202-366-5263).
Samuel J. Dubbin Chief Counsel