Interpretation ID: 23833.ztv

Mr. Lee M. Calkins
Quality Manager
Canfield Equipment Service, Inc.
22077 Mound Road
Warren, MI 48091

Dear Mr. Calkins:

This is in reply to your letter of December 14, 2001, asking for interpretations of 49 U.S.C. 30122 and 49 CFR 571.108, in connection with equipping a law enforcement vehicle with "blackout lighting."

You reported that "police agencies request that vehicles be equipped with manually operated switches to disable brake/turn and backup lights either singly or combined along with disabling one headlamp with a similar switch." You stated that "(t)his is to protect an officer who is undercover on stakeout or following a suspect." You have enclosed a warning by Federal Signal Corporation dated December 5, 2001, which states that "disabling the brake lights on a vehicle . . . violates the Federal Motor Vehicle Safety Standards."

You have asked the following questions:

"1. Please define 'make inoperative.'"

We have not formally defined "make inoperative," but have applied the phrase to specific fact situations in numerous interpretation letters. We shall answer your question by applying it to certain situations that have arisen under 49 CFR 571.108, Federal Motor Vehicle Safety Standard No. 108. 49 U.S.C. 30122(b) states that "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 . . . in compliance with an applicable motor vehicle safety standard." The phrase "make inoperative" includes the disabling of a device or element of design so that it does not perform its function, such as, with reference to Standard No. 108, disconnection of a lighting device. We have also construed "make inoperative" to encompass any modification of a lamp that might create a noncompliance with the original equipment requirements of Standard No. 108, such as transforming a steady-burning lamp into one that flashes. The phrase also encompasses any modification to an item of vehicle equipment other than a lamp which affects the performance of an item of required lighting equipment, such as alterations to the vehicle body which affect the visibility of lamps at angles specified in Standard No. 108 that the lamps must meet when installed on vehicles.

"2. Please define 'emergency lighting devices.'"

We have not formally defined "emergency lighting devices" either. We understand them to be lighting equipment that is not original equipment required by Standard No. 108, such as strobe lights or flashing red lights. This is in accord with the interpretations you mention in which we considered that flashing lamps were emergency lighting devices. Flashing lights are used on municipal vehicles in motion to indicate to other motorists that the vehicle is proceeding on an emergency mission which has priority over that of other traffic. Flashing lights are used on municipal vehicles at rest to indicate the presence of a potential hazard on or at the side of the road.

"3. Would the addition of these functions [for "blackout lighting"] place the vehicle into non-conformance?"

Yes. There is a specific requirement in S5.5.4 that the stop lamps be activated upon application of the service brakes. In addition, S5.5.7 requires the tail lamps (and other lamps) to be illuminated when the headlamps are activated. Activation of other lighting equipment is covered in appropriate SAE Standards incorporated by reference in Standard No. 108. Thus, alteration of a vehicle to equip it with a switch that would allow disabling of any lighting function would, in our view, create a noncompliance with Standard No. 108.

"4. If non-conformance occurs, would the temporary nature of it allow the non-conformance to be treated as stated in the reply to Mr. [Larry] Hughson [dated July 30, 2001]?"

No. We see a clear distinction between the performance of lamps so that they flash and disabling them so that they do not perform. Although not clearly described in the Hughson letter, we surmised that police vehicles were equipped with a system that flashed the headlamps, stop lamps, and backup lamps. The clear purpose of this temporary alteration of performance is to increase the conspicuity of police vehicles so that they may proceed appropriately under the circumstances. There is the opposite intent in the system you describe; lighting equipment would be switched off and no visual cue other than reflex reflectors would be furnished to other motorists either when the vehicle was at rest or in motion. We would not extend the Hughson interpretation to "blackout lighting."

"5. Would having an OEM offer these options be acceptable? Or, would the States have to perform these modifications after purchase?

We do not believe that a vehicle manufacturer could certify compliance of a vehicle with Standard No. 108, as required by 49 U.S.C. 30115, with the switches you describe installed as original equipment. The manufacturer of the switches could not install them without violating Section 30122. Under 49 U.S.C. 30165(a), such a person violating Section 30122 is liable for a civil penalty of up to $5,000 per violation, up to a maximum of $15,000,000 for any related series of violations.

The prohibition of Section 30122 does not extend to any person other than a "manufacturer, distributor, dealer, or motor vehicle repair business." This means that a purchaser such as a State or municipality could perform these modifications after purchase if the modifications were performed by an employee of the State or municipality, without violating Section 30122. We note that Federal Signal Corporation's Safety Warning is addressed to "users" of equipment that can disable stop lamps, indicating that the equipment was not installed by the manufacturer of the vehicle or equipment.

"6. If the interpretation does not allow for these functions in their present form, what suggestions would you make that could allow for these functions in the market place (e.g.) headlamp switch reset or other device?"

We understand the rationale behind disabling a headlamp, in order to alter the appearance of a surveillance vehicle, and disabling other lamps so that they will not alert a suspect in the event of inadvertent activation. However, the failure of these lamps to perform their intended functions does raise safety issues. Moreover, faced with the need to respond instantly to changed circumstances, such as the need to pursue a suspect, the driver may fail to throw the switches to restore the lighting equipment to its normal use. We do not have any suggestions.

I hope that this answers your questions.

Sincerely,

Jacqueline Glassman
Chief Counsel

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