Interpretation ID: 18780.ztv

Mr. Henry S. Winokur
6613 Elgin Lane
Bethesda, MD 20817-5443

Dear Mr. Winokur:

This is in reply to your e-mail of September 22, 1998, to Rich Van Iderstine of this agency. You report having sent two prior e-mails to this Office with no response. I am not sure to whom they were addressed, but Taylor Vinson, the attorney who handles lighting matters, did not receive them. I am sorry that we have not been able to respond until now, but questions of Federal preemption are complicated and not easily resolved. Further, all opinions from this Office are coordinated with other Offices of the agency to ensure accuracy and consistency, and this process necessarily takes a little time.

You report that the State of Maryland regards modulating motorcycle headlamps as lights that flash, thereby violating state laws reserving use of flashing lights for emergency vehicles. You wish to see this situation corrected by the agency's application of the Federal preemption provision. Mr. Van Iderstine has provided you with copies of two interpretations which he believed indicate that Maryland's law is not valid. These letters are those of February 1, 1990, to Tracey Powell of the American Motorcyclist Association (AMA), and the letter of September 11, 1997, to Walter Jakobowski of Signal Dynamics Corporation.

We have reviewed the Maryland Vehicle Law. Section 22-218 Audible and visual signals on vehicles, states in pertinent part:

(c) oscillating, blinking, etc. lights on certain vehicles. A person may not drive . . . on any highway . . . any vehicle. . . that is equipped with or displays any light . . . designed to emit an oscillating, rotating, blinking, or other type of emission of light, unless designated and authorized by the [Maryland Motor Vehicle] Administrator as indicated in paragraphs (1) through (9) of this subsection.

Our review shows that the exceptions of paragraphs (1) through (9) deal with fire, police, ambulance, state, and service vehicles, and not with motorcycles driven by ordinary citizens.

On the other hand, S7.9.4 Motorcycle headlamp modulation, of Federal Motor Vehicle Safety Standard No. 108, 49 CFR 571.108 Lamps, Reflective Devices and Associated Equipment, specifies that a headlamp on a motorcycle may be wired to modulate, provided that it does so in accordance with the requirements prescribed in S7.9.4. I am enclosing a copy of S7.9.4 per your request to Mr. Vinson. We understand that a modulating headlamp is activated automatically when the ignition switch is turned on, and that a motorcycle operator cannot deactivate the modulation feature except by turning off the engine.

With respect to Federal preemption of state laws, 49 U.S.C. 30103(b)provides in pertinent part that:

b) PREEMPTION - (1) When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter.

This means that, under 49 U.S.C. 30103(b)(1), a State may have its own standard which allows a motorcycle headlamp to be wired to modulate in the same manner as prescribed under S7.9.4. However, since the Federal standard specifically allows a modulation of motorcycle headlamps, a State may not establish or continue in effect a standard prohibiting a headlamp that modulates in accordance with S7.9.4 of Federal Motor Vehicle Safety Standard No. 108. As our letter to AMA notes, we distinguish between a flashing lamp (one that goes from either the upper or lower beam to off) and a modulating lamp (one that goes from a higher to a lower intensity within either the upper or lower beam). However, the Maryland prohibition against lamps that oscillate or feature any "other type of emission of light" could be interpreted to include any lamp whose light is not steady-burning when the lamp is activated, whether or not it is intended to apply to a motorcycle's modulating headlamp.

Mr. Vinson has discussed the motorcycle headlamp modulation provisions of Standard No. 108 with Jon Acton of the Office of the Attorney General, Maryland, as well as your unsuccessful attempt to contact the Motor Vehicle Administrator. Mr. Acton seems willing to accommodate your request for a favorable interpretation of Maryland law, to indicate that it was not intended to prohibit a modulating headlamp on motorcycles. He surmises that you tried to communicate by e-mail, and remarked that such a message would be forwarded to him for reply, but that he had not received it. He invites you to communicate with him, either by letter (Office of Attorney General, Room 200, Motor Vehicle Administration, 6601 Ritchie Highway, N.E., Glen Burnie, MD 21062) or by e-mail:

(vaja2@mdot.state.md.us).

If you have further questions, you may refer them to Mr. Vinson (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
cc: Jon Acton