[Federal Register Volume 67, Number 91 (Friday, May 10, 2002)]
[Notices]
[Pages 31862-31863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11714]



[[Page 31862]]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA 2001-10258, Notice 2]


NovaBUS, Inc.; Denial of Application for Decision of 
Inconsequential Noncompliance

    NovaBUS, Inc. (Nova) of Roswell, New Mexico, manufactured a number 
of buses that were equipped with one of two types of auxiliary lamp 
systems. Both of these lamp systems are wired to flash. Federal Motor 
Vehicle Safety Standard (FMVSS) No. 108, ``Lamps, Reflective Devices, 
and Associated Equipment,'' requires that all lamps, except those 
specified, be wired to be steady burning. Nova determined that these 
buses fail to comply with FMVSS No. 108 and has filed an appropriate 
report pursuant to 49 CFR part 573, ``Defect and Noncompliance 
Reports.'' Nova has also applied to be exempted from the notification 
and remedy requirements of 49 U.S.C. Chapter 301--``Motor Vehicle 
Safety'' on the basis that the noncompliance is inconsequential to 
motor vehicle safety.
    Notice of receipt of the application was published in the Federal 
Register (66 FR 41307) on August 7, 2001. Opportunity was afforded for 
public comment until September 6, 2001. No comments were received.
    In FMVSS No. 108, paragraph S5.5.10 requires that, other than turn 
signal lamps, hazard warning signal lamps, school bus warning lamps, 
and headlamps and side marker lamps wired to flash for signaling 
purposes, all other lamps shall be wired to be steady burning.
    Between January 1994 and March 2001, Nova produced 742 buses with 
optional deceleration lamps that flash at a rate related to the 
deceleration of the vehicle. These lamps are amber and are located on 
the rear center of the bus.
    During the same period of time, Nova also produced 1,819 buses with 
``hoodlum'' lamps that flash when the driver activates a switch. The 
purpose of these lamps is to provide an alert to the police or public 
that a dangerous situation is occurring on the bus and that the driver 
requires assistance. These lamps are green and are located on the top 
front and rear of the bus.
    Nova supported its application for inconsequential noncompliance by 
stating the following:

    The [deceleration and hoodlum] lights do not pose a safety risk 
to the bus, passengers, driver, or other vehicles on the roadway. 
They in no way interfere with the normal operation of the bus. Their 
size, location, color, and flashing pattern make it impossible to 
confuse them with stop and turn lights. There are no other green 
lights on the vehicle. There is a slight chance the amber lens color 
may be confused with hazard lights. However, this is not a hindrance 
as the [deceleration] and hazard lights heighten other drivers' 
awareness of the bus.
    These lights were requested by our customers to help attract 
attention to the buses in the stated situations. Since the 
requirement that ``all other lamps shall be wired to be steady 
burning'' applies to Nova as an [original equipment manufacturer] 
but not to our customers, Nova believes these lights would not be 
changed to be steady burning if a recall process was executed.

    Nova no longer offers these options and is now compliant with 
[FMVSS No. 108].
    The agency has reviewed the application and has decided that the 
noncompliance is not inconsequential to motor vehicle safety. Regarding 
the flashing amber lamps, the standard states explicitly that only 
certain original equipment lamps are permitted to flash. The main 
reason for limiting the flashing function to these lamps is to minimize 
confusion that may be caused to other drivers who observe the flashing 
lights. If manufacturers include a flashing function in other lamps, 
the importance of the safety meaning of required lamps can be 
diminished. Standardization of lighting functions is paramount to the 
necessary and instant recognition of their meaning by other drivers.
    This concern was expressed by the agency in a March 1996, legal 
interpretation to the Gillig Corporation (Gillig). Gillig asked whether 
it was permitted to install four amber lamps that would act as 
supplemental stop lamps on its buses. These four lamps would flash when 
the brake pedal was depressed and be extinguished when the pedal was 
released. The agency stated that this was not permitted, as it could 
impair the effectiveness of the required red brake lamps. When 
confronted with an array of red steady burning lamps (the required 
ones) and amber flashing ones (the ones Gillig wished to add), the 
agency said that there is a strong likelihood of momentary confusion in 
the mind of a driver following the vehicle. Quick understanding of and 
appropriate reaction to motor vehicle safety signals is fundamental to 
safe motor vehicle operation.
    The agency also expressed a similar view in an August 1999 legal 
interpretation in response to a request from the law firm of Helfgott 
and Karas, P.C. A client of this firm wanted to install a steady 
burning amber lamp in the rear of the vehicle that would be illuminated 
whenever the ignition was activated and the brake lamps were not 
activated. In this interpretation, the agency stated that:

    Traffic safety is enhanced by the familiarity of drivers with 
established lighting schemes, which facilitates their ability to 
instantly and unhesitatingly recognize the meaning a lamp conveys 
and to respond to it. Any modification to the required lamps or any 
supplemental lamp that could be perceived to have signals different 
from the required functions when these functions are operating, or 
could be perceived incorrectly as signals from required functions 
would be deemed by us to impair the effectiveness of the required 
lighting.

    Regarding the green ``hoodlum'' lamps, the agency addressed a 
similar issue in an April 2001 interpretation to Peter Hoffman of I.D. 
Lite Products Group, Inc. (I.D. Lite). I.D. Lite asked whether it would 
be permitted to include a green lamp that highlights signage on 
commercial vehicles. The agency stated that, because FMVSS No. 108 only 
allows the use of white, red, or amber lamps, a green lamp would not be 
permitted.
    Also regarding the ``hoodlum'' lamps, the agency issued an 
interpretation in the early 1970s (the exact date could not be found in 
the interpretation database) in response to the Flxible Company 
(Flxible). Flxible asked whether a flashing ``hoodlum warning system'' 
that was requested by the city of Boston, Massachusetts would be 
allowable. The agency stated that, after January 1, 1972, this lamp 
would not be permitted because of the requirements limiting the 
flashing function to certain lamps.

[[Page 31863]]

    Nova supported its application by stating that the lamps do not 
pose a safety risk. It does not explain what leads it to believe that 
there is no possibility of confusing the subject amber lamps with 
required lamps or why flashing green lamps also would not confuse 
observers. It does admit that there is ``a slight chance'' that the 
amber ones could be confused with the hazard lamps. The fact remains 
that they will attract attention, while having no readily apparent 
safety meaning, given that they are unique in the motor vehicle 
environment. This dilutes driver attention that needs to be focused on 
the driving task.
    In addition, Nova states that because its customers specifically 
requested these noncompliant lamps and the agency cannot force the 
customers to return the buses to make them compliant, it would be 
unlikely they would return the vehicles in a recall campaign. This does 
not persuade us to grant the application. It is necessary that Nova 
notify its customers that the vehicles it sold them were noncompliant. 
It must also explain to the customers why they are noncompliant and the 
potential consequences of the noncompliance. If a large percentage of 
owners decide not to return their vehicles for remedy, the agency may 
investigate whether the Nova notification was adequate, and further 
action could be required.
    In consideration of the foregoing, NHTSA has decided that the 
applicant has not met its burden of persuasion that the noncompliance 
it describes is inconsequential to motor vehicle safety, and that it 
should not be exempted from the notification and remedy requirements of 
the statute. Accordingly, its application is hereby denied.

(49 U.S.C. 30118(d) and 30120(h); delegations of authority at 49 CFR 
1.50 and 501.8)

    Issued on: May 6, 2002.
Stephen R. Kratzke,
Associate Administrator for Safety Performance Standards.
[FR Doc. 02-11714 Filed 5-9-02; 8:45 am]
BILLING CODE 4910-59-P