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Interpretation ID: 22653.drn



    Mr. Larry Dornbusch
    22 West 131st Glen Park Road
    Glen Ellyn, IL 60137


    Dear Mr. Dornbusch:

    This responds to your inquiry asking whether a company modifying a used two-wheeled motorcycle into a three-wheeled motorcycle is required to ensure, pursuant to Standard No. 122, Motorcycle Brake Systems, that each of the three wheels has a brake, and that the three-wheeled motorcycle has a parking brake. As discussed below, the answer is no.

    I note that your communication to us was supplemented with a telephone conversation with Dorothy Nakama of my staff. As background for your question, you told Ms. Nakama that you originally bought a two-wheeled motorcycle and registered the motorcycle in the State of Illinois. Subsequently, you sent the motorcycle out-of-state to a company to be converted to a three-wheeled motorcycle (trike). When you got your trike back, you discovered that "the two rear wheels were braked by one rotor and caliper on the differential rather than the wheels. "You expressed to Ms. Nakama your understanding that Standard No. 122 requires a brake for each of the three wheels.

    By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new motor vehicle equipment. One of the standards we have issued is Standard No. 122, which applies to motorcycles. Standard No. 122 specifies performance requirements for motorcycle brake systems.

    While the Federal motor vehicle safety standards apply only to new motor vehicles and new motor vehicle equipment, Federal law limits the modifications that can be made by certain businesses to used vehicles. 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 safety standard (49 U.S.C. ' 30122).

    The manufacturer of your motorcycle presumably manufactured a new motorcycle that met all applicable Federal motor vehicle safety standards. Under the "make inoperative" provision cited earlier, the company that modified your used motorcycle was required to ensure that the various changes it made did not make inoperative any device or element of design installed on or in the motorcycle in accordance with Standard No. 122 or any other Federal motor vehicle safety standard.

    As to your question concerning whether each wheel of a three-wheeled motorcycle must have a brake, Standard No. 122 establishes the following requirements for motorcycle brakes at S5.1, Required equipment-split service brake system: "Each motorcycle shall have either a split service brake system or two independently actuated brake systems." Nothing in the standard requires all three wheels of a three-wheeled motorcycle to have a brake.

    You also noted that after the modifications, the three-wheeled motorcycle did not have a parking brake. Standard No. 122 at S5.1.4 Parking brake, states: "Each three-wheeled motorcycle shall be equipped with a parking brake of a friction type with a solely mechanical means to retain engagement."

    As earlier stated, Standard No. 122 applies to new motor vehicles. If your motorcycle were manufactured new with three wheels, or converted prior to first retail sale, S5.1.4's parking brake requirement would have applied. However, in the case at issue, a parking brake was not required for your motorcycle when it was new, since it was a two-wheeled motorcycle. Moreover, the make inoperative provision would not have the effect of requiring a company modifying a used two-wheeled motorcycle into a three-wheeled motorcycle to add a parking brake.

    You also ask whether 49 CFR Section 393.42 Brakes required on all wheels, applies to the way your motorcycle was converted. We are unable to provide an answer to this question because Section 393.42 is not administered by NHTSA, but by the Federal Motor Carrier Safety Administration (FMCSA), another agency of the U.S. Department of Transportation. I therefore suggest you refer your question about Section 393 to the FMCSA for an answer.

    I also note that the individual states may regulate modifications to used motorcycles.

    I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

    Sincerely,

    John Womack
    Acting Chief Counsel

    ref:122
    d.9/20/01