Interpretation ID: nht92-5.39

DATE: June 29, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Steven Henderson -- Department of Psychology, McGill University, Montreal, Canada

TITLE: None

ATTACHMT: Attached to letter (fax) dated 6/3/92 from Steven Henderson to Michael Perel (OCC 7383)

TEXT:

Michael Perel of this agency has asked this Office to reply to your FAX of June 3, 1992, in which you have asked for a legal opinion with respect to the relationship of your motorcycle headlamp warning-device to S5.6 of Federal Motor Vehicle Safety Standard No. 108.

As you have described the device, it "flickers the headlight, tail light, and signal lights at a rate of 10 flashes per second whenever the horn button is pressed." If the horn button is pushed while a turn signal is operating, "the headlight flickers at a rate of 10 Hz, and only the actuated signal light gives out 2 Hz bursts of 10 Hz flicker." The device "is also intended for use with automobile signal lights (but not automobile headlights)."

One of the basic performance requirements of Standard No. 108 is that lighting equipment in use be steady-burning, with the exceptions provided in S5.5.10. One of these exceptions (S5.5.10(c)) allows either the upper beam, or the lower beam, of a motorcycle headlamp to be wired to modulate from a higher intensity to a lower intensity, in accordance with S5.6. Your letter does not state whether the "flicker" is between the upper and lower beams, or between intensity levels within a single beam so that we do not know whether the modulation is in accordance with S5.6. However, the flash rate of 10 per second is substantially more than the maximum of 280 cycles per minute specified by S5.6.1(a), so, that overall, the device would not comply with the exception set forth in S5.5.10(c).

Furthermore, the device would affect compliance of the taillamps and turn signal lamps with Standard No. 108. The taillamps would no longer be steady-burning, as required by S5.5.10(d). It would appear that the turn signal rate would also cease to comply with the flash rate of 60-120 per minute specified by SAE requirements incorporated by reference in Standard No. 108.

For the reasons stated above, the device would be impermissible for installation as original motor vehicle equipment. The situation is much the same in the aftermarket. Under 15 U.S.C. 1397(a)(2)(A), as it applies to your device, no manufacturer, distributor, dealer, or motor vehicle-repair business may modify a motor vehicle in a manner that renders it noncompliant with Standard No. 108. You will note that the statute does not preclude the owner from such modifications. Thus, if a motorcycle owner can install the device, there would be no violation of Federal Law. In this event, the legality of its use would be determinable under the laws of the individual American states, many of which follow Standard No. 108.

You have also asked our assistance "in advancing the examination of a U.S. patent application" for the device in accordance with 37 CFR 1.102. Advancements may occur upon application wherein the invention is "deemed of peculiar importance to some branch of the public service and the head of some department of the Government requests immediate action for that reason." Because the safety benefits of the device are speculative and unproven, and because the device is contrary to the requirements of Standard No. 108, I believe that it would be improper for this agency to intervene in the manner you have requested.