Interpretation ID: nht76-2.29

DATE: 01/07/76

FROM: AUTHOR UNAVAILABLE; R. B. Dyson; NHTSA

TO: Motorcycle Industry Council, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of December 30, 1975, asking whether Federal Motor Vehicle Safety Standard No. 108, which permits the manufacture of motor-driven cycles whose top speed is 30 mph, without turn signal lamps, preempts a State requirement that all motor vehicles be equipped with such lamps.

The answer to your question is yes. Even though a State as in your hypothetical may not have defined "motor vehicle," or its definition of a vehicle category differs from a definition in 49 CFR 571.3(b) (e.g. where a State defines a motor-driven cycle as a "bicycle"), it is preempted by Section 103(d) from establishing or maintaining in effect a safety standard that differs from a Federal standard covering the same aspect of performance. Accordingly, since @ 4.1.1.26 of 49 CFR 571.108, Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment excuses low speed motor-driven cycles from the requirement that they be equipped with turn signal lamps, a State cannot require them on identical vehicles.

I hope this answers your question.

YOURS TRULY,

MOTORCYCLE INDUSTRY COUNCIL,

December 30, 1975

Chief Counsel National Highway Traffic Safety Administration

The Motorcycle Industry Council, Inc., representing manufacturers and distributors of motorcycles and motorcycle parts and accessories requests an advisory opinion from counsel regarding certain issues that have surfaced at the state level subsequent to NATSA's motordriven cycle/moped ruling of October 1974.

Issue: Equipment requirements

When state law requires that "every licensed motor vehicle . . . shall be equipped with electric turn signal lamps . . ." without further defining "motor vehicle". There appears to be a conflict between the state statute and the federal regulation which exempts certain motor driven cycles from this requirement.

Question: Does Federal Regulation (49 CFR 571.108) exempting motordriven cycles of 5 hp or less whose speed attainable in one mile is 30 mph or less from the requirement to be equipped with turn signals, preempt in the case where equipment requirements (turn signals) are specified by the state for all licensed motor vehicles?

Melvin R. Stahl Vice President Government Relations

MOTOR VEHICLE DEPARTMENT

May 17, 1972

MEMORANDUM: KANSAS COUNTY TREASURERS, SHERIFFS' DEPARTMENTS AND KANSAS HIGHWAY PATROL

Re: ELECTRIC TURN SIGNAL LAMPS. K.S.A. 1971 Supp. 8-590a(b)

"After December 31, 1971, every licensed motor vehicle; also every licensed trailer, semitrailer and pole trailer shall be equipped with electric turn signal lamps meeting the requirements of K.S.A. 1970 Supp. 8-590(b): (Emphasis added)

K.S.A. 8-126(b), the registration section of the Motor Vehicle Code, defines a motor vehicle as "Every vehicle, as herein defined, which is self-propelled."

K.S.A. 8-501, the regulatory or enforcement section of the Motor Vehicle Code, defines a motor vehicle as "Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolly wires, but not operated upon rails."

K.S.A. 8-126(d), the registration section of the Motor Vehicle Code, defines a motorcycle as "Every motor vehicle designed to travel on not more than three (3) wheels in contact with the ground, except any such vehicle as may be included within the term "tractor" as herein defined.

K.S.A. 9-501, the regulatory or enforcement section of the Motor Vehicle Code, defines a motorcycle as "Every motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three (3) wheels in contact with the ground, but excluding a tractor."

Based upon the foregoing definitions from the registration section of the Motor Vehicle Code and the regulatory or enforcement section of the Motor Vehicle Code, it does appear that they are generally in harmony in the definition of a motorcycle as a motor vehicle.

The question then arises -- are the County Treasures of Kansas obligated to sell registration (license plates or tags) to those persons making application therefore, assuming the application is otherwise in proper form, if such person in fact does not have his motor vehicle (motorcycle) equipped with electric turn signal lamps?

It is our opinion that they are so obligated.

The Legislature of Kansas did not set forth any provision for refusing the sale of registration or license plates in the registration section of the Motor Vehicle Code for failing to have the motor vehicle (motorcycle) equipped with electric turn signal lamps. Such equipment is not a condition precedent to the sale of registration.

The next question for consideration -- Are the law enforcement officers of Kansas obligated to enforce the provision of K.S.A. 8-590a(b)?

It is our opinion that they are so obligated.

The 1971 Sessin of the Kansas Legislature clearly set forth their mandate in K.S.A. 8-590a(b) that "After December 31, 1971, every licensed motor vehicle . . . shall be equipped with electric turn signal lamps meeting the requirements of K.S.A. 1970 Supp. 8-590a(b).

K.S.A. 8-590(b) clearly sets forth the requirements for electric turn signals and K.S.A. 8-590(b) sets forth that the "Preceding section [is] supplemental to [the] uniform act. Thus, there can be no mistake in determining legislative intent.

The question then arises -- May a State Legislature pass a law which interferes with or is contrary to the laws of Congress?

We are of the opinion that they cannot.

The Supremacy Clause of the United States Constitution was challenged as early as 1824 in Gibbons v. Ogden, 9 Wheat 1. At page 210 and 211, Chief Justice Marshall said that:

". . . in exercising the power of regulating their own purely internal affairs, whether "of trading or police, the states may sometimes enact laws, the validity of which depends on their interfering with, and being contrary to, an act of congress passed in pursuance of the constitution, the court will enter upon the inquiry, whether the laws of New York, as expounded by the highest tribunal of that state, have, in their application to this case, come into collision with an act of congress, and deprived a citizen of a right to which that act entitles him. Should this collision exist, it will be immaterial, whether those laws were passed in virtue of a concurrent power 'to regulate commerce with foreign nations and among the several states,' or, in virtue of a power to regulate their domestic trade and police. In one case and the other, the acts of New York must yield to the law of congress; and the decision sustaining the privileges they confer, against a right given by a law of the Union, must be erroneous. This opinion has been frequently expressed in this court, and is founded, as well on the nature of the government, however, it has been contended, that if a law passed by a state, in the exercise of its acknowledged sovereignty comes into conflict with a law passed by congress in pursuance of the constitution, they affect the subject, and each other, like equal opposing powers. But the framers of our constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it.

The nullity of any act, *inconsistent with the constitution, is produced by the declaration, that the constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the state legislatures as do not transcend their powers, interfere with, or are contrary to, the laws of congress, made in pursuance of the constitution, or some treaty made under the authority of the United States. In every such case, the act of congress, or the treaty, is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it." This decision in the Gibbons Case supra has been followed in many other cases before the United States Supreme Court among those cases are Hines v. Davidowitz, 312 U.S. 52, Florida Lime and Avocado Growers Inc. v. Paul, 373 U.S. 132, and Perez v. Campbell, 402 U.S. 637.

Finally, congress in its wisdom has delegated to the Secretary of Transportation the duty and obligation of establishing certain Federal Motor Vehicle Safety Standards of which the foregoing statute relating to electric turn devices is one.

However, Congress had indicated to the states that such standard should be effective on December 31, 1972 (or January 1, 1973). Following this congressional mandate the Kansas Legislature enacted into law K.S.A. 8-590a(b) to be effective after December 31, 1971.

The final question than -- Does K.S.A. 8-590a(b) passed by the 1971 Session of the Kansas Legislature interfere with, or is it contrary to the laws of Congress?

We are of the opinion it is not.

December 31, 1972 was the final date -- not the commencement date -- that states would enact a law relating to turn signal devices on motorcycles.

Further, K.S.A. 8-590a(b) does not interfere with the marketing of the manufacturers products. The manufacturers remain free to market their products -- (there is no such restriction in K.S.A. 8-590a(b)) -- the purchaser may register his vehicle -- (there is no such restriction on registration) -- and thereupon, the burden, if any, is upon the owner to have his vehicle equipped with the proper electric turn signal devices.

Paragraph 571.20 Federal Motor Vehicle Safety Standards issued on May 13, 1971, provided in part as follows:

"It is the position of this agency, therefore, that under the Act and the regulatory scheme that has been established by its authority a State may not regulate motor vehicle or motor vehicle equipment, with respect to aspects of performance covered by Federal standards, by requiring prior State approval before sale or otherwise restricting the manufacture, sale or movement with the State of products that conform to the standards. This interpretation does not preclude State enforcement of standards by other reasonable procedures that do not impose undue burdens on the manufacturers, including submission of products for approval within reasonable time limits, as long as manufacturers are free to market their products while the procedures are being followed, as they are under the Federal scheme. (36 F.R. 10744--June 2, 1971)" (emphasis added)

In conclusion, it is our opinion that the manufacturer and dealer may sell motorcycles until December 31, 1972 without having electric turn signal devices; that the purchaser may register such vehicle so purchased; but during the course of operation of a motorcycle on the streets and highways in Kansas such operator of a motorcycle without the electric turn signal devices would be amenable to the regulatory and enforcement section of the motor vehicle code K.S.A. 8-501 et seq.

VERN MILLER, Attorney General State of Kansas

ELTON D. LOBBAN, Superintendent Motor Vehicle Department State of Kansas