Interpretation ID: nht93-5.40

TYPE: Interpretation-NHTSA

DATE: July 30, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Wayne Ferguson -- Research Manager, Transportation Research Council, Department of Transportation, Commonwealth of Virginia

TITLE: None

ATTACHMT: Attached to letter dated 4/23/93 from Wayne S. Ferguson to NHTSA Chief Counsel (OCC 8602)

TEXT:

Thank you for your letter of April 23, 1993, enclosing a copy of a joint resolution of the Virginia General Assembly, to study the use of deceleration lights on trucks in the Commonwealth, with the goal of allowing use of these lamps. The Transportation Research Council has been asked to evaluate potential legal problems regarding state regulation of deceleration lights, especially as they may relate to Federal preemption in the area of vehicle safety equipment.

You would like to know whether "the current federal regulations and standards dealing with various vehicle safety devices pre-empt Virginia's proposal to permit deceleration lights on trucks in the Commonwealth?" If the answer is affirmative, you request advice on "the proper course of action to obtain federal approval of the use of deceleration lights." The answer to these questions is dependent upon the preemption provisions of the National Traffic and Motor Vehicle Act (Act) (15 U.S.C. 1381 et seq.) and the characteristics of any specific warning system.

The Act does not permit a State to impose a safety requirement upon a motor vehicle that differs from a Federal motor vehicle safety standard in any area of performance that is covered by the Federal standard (15 U.S.C. 1392(d)). The applicable Federal standard in this instance is 49 CFR 571.108, Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices and Associated Equipment. We understand that a deceleration warning system is intended to inform a following driver that the vehicle ahead is slowing. Such a system can consist of one or more lamps, red or amber in color, and either flashing or steady-burning in use. Further, such a system can be original motor vehicle equipment or aftermarket equipment.

The Federal requirements of Standard No. 108 apply to original equipment in all instances. Two provisions are important with respect to supplementary lighting equipment such as a deceleration warning system. Under S5.5.10(d), unless otherwise provided by S5.5.10, all original motor vehicle lighting equipment, whether or not required by Standard No. 108, must be steady burning in use. It is for this reason that we informed The Flxible Corporation on December 8, 1986, that we had interpreted Standard No. 108 as applying to all lighting equipment on non-emergency vehicles and not just the equipment required by Standard No. 108. Thus, the amber-lamp deceleration warning system that Flxible had been asked to install on transit buses was acceptable to NHTSA in a steady-burning mode but not a flashing one.

Similarly, we advised Norman H. Dankert on June 3, 1990, and Bob Abernethy on September 7, 1990, that if a deceleration warning system is one that does not consist of additional lamps but one that operates through the tail or stop lamp system, it must also be steady burning.

The second relevant provision is that of S5.1.3; original lighting equipment of a supplementary nature must not impair the effectiveness of the lighting equipment required by the standard. We also informed Flxible that simultaneous use of flashing (amber) and steady-burning (red) lamps have the potential for creating confusion in vehicles to the rear of the bus and impairing the effectiveness of the required stop lamps within the meaning of S5.1.3. On the other hand, the simultaneous use of the Flxible amber and red rear lamps in a steady burning mode would not be precluded by this section.

In summary, we conclude that Virginia could permit the use of a red or amber original equipment deceleration warning system operating in a steady burning mode through either original equipment lamps or supplementary ones.

A system that is not permissible as original equipment would also not be permissible as an aftermarket system. Although the preemption provisions and the Federal motor vehicle safety standards apply to new motor vehicles and new motor vehicle equipment, the Act also provides, for both new and used vehicles, that no manufacturer, distributor, dealer, or motor vehicle repair business may "knowingly rendering inoperative, in whole or in part, any device or element of design installed ... in compliance" with Standard No. 108 or any other Federal safety standard (15 U.S.C. 1397(a)(2)(A)). An action which created an adverse effect upon lamp performance would partially render inoperative the compliance of a vehicle with Standard No. 108. In our view, flashing deceleration lamps would "render inoperative" the compliant lamps installed by the vehicle manufacturer by potentially confusing following drivers. For this reason, it is our opinion that a manufacturer, distributor, dealer, or motor vehicle repair business that installed a deceleration warning system on a truck in Virginia would be in violation of section 1397(a)(2)(A) if that system consisted of flashing lights, or operated in a flashing mode through lamps that are normally steady burning in use. Since a State may not legitimize conduct that is illegal under Federal law, Virginia could not permit such businesses to install deceleration lamps on vehicles. However, the Act does not prohibit installation of a flashing light system by a person other than a manufacturer, dealer, distributor, or motor vehicle repair business.

For this reason, section 1397(a)(2)(A) does not apply to modifications made by owners to their own vehicles. However, we believe that it would be inappropriate for Virginia to encourage such modifications, in view of the potential adverse safety consequences of unexpected flashing lamps. Moreover, because it appears that the many of the vehicles will be operated in interstate commerce, we suggest that you also obtain the views of the Federal Highway Administration (FHWA) to determine whether that agency's regulations affect trucks with deceleration lights. You should direct your inquiry to James E. Scapellato, Director, Office of Motor Carrier Standards, FHWA, Room 3404, 400 7th Street, S.W., Washington, D.C. 20590.

You also asked about the proper course of action to obtain Federal approval of the use of deceleration lights. The agency does not "approve" or "disapprove" safety systems but will advise, as we do here, whether such systems are permitted or prohibited under Federal law. There appear to be certain types of deceleration warning systems that would not be prohibited under existing Federal law. With respect to systems that would not be allowable under Standard No. 108, these systems could only be permitted if NHTSA were to amend Standard No. 108 through rulemaking. Any person who believes that the standard should be amended may submit a petition for rulemaking. The agency's procedures for petitions for rulemaking are set forth at 49 CFR Part 552.

If we can be of further help, our Office of Research and Development may be able to assist you, and I suggest you contact Michael Perel for copies of pertinent research contracts on deceleration warning systems. Mr. Perel may be reached at 202-366-5675.