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Interpretation ID: Roberts.1.wpd

    Mr. Mark Roberts
    Engineering Manager
    B&R Manufacturing Inc.
    4600 Wyland Drive
    Elkhart, IN 46516


    Dear Mr. Roberts:

    This responds to your letter asking whether it would be permissible for a member of the transit bus industry to replace a required passenger-side, flat unit magnification mirror installed on new buses having a gross vehicle weight rating (GVWR) of more than 4,536 kg (10,000 pounds) with a 40" to 60"-radius convex mirror. As discussed in a conversation with Eric Stas of my staff, your company manufactures the aftermarket mirrors in question, and you seek confirmation of "What is [a] legal and an illegal mirror once the buses are in revenue service?"

    We would like to begin by explaining that the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards (FMVSSs) that set performance requirements for new motor vehicles and items of motor vehicle equipment. Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale.

    One of the safety standards we have issued is FMVSS No. 111, "Rearview Mirrors" (49 CFR 571.111). FMVSS No. 111 sets different requirements for buses depending on the GVWR. Buses, other than school buses, with a GVWR of more than 4,536 kg must meet the requirements of S7.1, which requires outside mirrors of unit magnification, each with not less than 323 cm2 of reflective surface, installed with stable supports on both sides of the vehicle. Vehicle manufacturers must install mirrors that comply with S7.1 in order to certify new buses covered under the standard.

    After the first sale of the vehicle, manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. 49 U.S.C. 30122. In general, the "make inoperative" prohibition requires businesses which modify motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable standard. 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). 49 U.S.C. 30165(a)(1). Thus, a manufacturer of new transit buses or other commercial entity repairing or modifying such buses could not replace a mirror complying with FMVSS No. 111 with another mirror that does not comply with the standard. However, it would be permissible to install your convex mirror on the passenger side of the bus as a supplement to a unit magnification mirror that meets all applicable requirements of FMVSS No. 111.

    The "make inoperative" provision does not apply to the actions of a vehicle owner in modifying his or her own vehicle. Consequently, NHTSA regulations do not prevent transit bus companies from making changes to their own used buses in their own garages or repair and maintenance facilities, even if they cause a vehicle to no longer comply with NHTSA safety standards. However, we urge vehicle owners not to degrade the safety of any system or device on their vehicles, including those required by FMVSS No. 111.

    Further, I note that the Departments Federal Motor Carrier Safety Administration (FMCSA) has jurisdiction over interstate motor carriers operating in the United States. Under FMCSA regulations, there is a provision related to "rear-vision mirrors" at 49 CFR 393.80, which provides in relevant part:

    Every bus, truck, and truck tractor shall be equipped with two rear-vision mirrors, one at each side, firmly attached to the outside of the motor vehicle, and so located as to reflect to the driver a view of the highway to the rear, along both sides of the vehicle. All such regulated rear-vision mirrors and their replacements shall meet, as a minimum, the requirements of FMVSS No. 111 (49 CFR 571.111) in force at the time the vehicle was manufactured.

    49 CFR 393.80(a). Thus, for vehicles covered under FMCSA regulations, there is an ongoing requirement for rear-vision mirrors that meet the requirements of FMVSS No. 111. You or transit bus owners should contact Larry Minor of the FMCSA at (202) 366-4009 for further information about this regulation and the vehicles to which it applies.

    In addition, States have the authority to regulate the use and licensing of vehicles operating within their jurisdictions. Therefore, you or transit bus owners should check with the Department of Motor Vehicles in any State in which the equipment will be sold or used regarding any such requirements.

    I hope you find this information useful. If you have further questions, please feel free to contact Eric Stas of my staff at this address or by telephone at (202) 366-2992.

    Sincerely,

    Jacqueline Glassman
    Chief Counsel

    ref:111
    d.9/5/03