Pulsating brake lights: Know who can – and can’t – legally install them

From an NTEA memberWe were told by a supplier of our lighting products that the Federal Motor Carrier Safety Administration (FMCSA) would allow our delivery fleet to have brake-activated pulsating warning lamps. However, our vehicle builder said they can’t install flashing brake lights on our new trucks and certify the vehicles to Federal Motor Vehicle Safety Standard (FMVSS) 108. Can you explain why?Over the past six years, the FMCSA has granted a number of petitions from end-users and lighting manufacturers that allow a limited, five-year exemption for motor carriers to install a red or amber brake-activated pulsating lamp on the rear of trailers and certain other vehicles. These exemptions have created understandable confusion for both the fleets/end users and the vehicle builders/final-stage manufacturers/alterers. The ability to legally add the additional brake-activated pulsating warning lamps depends on the lamp installer and under which Department of Transportation (DOT) agency’s jurisdiction they fall. For perspective, FMCSA is the U.S. DOT division that regulates the operation of commercial motor vehicles in interstate commerce. In addition to vehicle operation, FMCSA is responsible for regulations on commercial driver’s licenses, hours of service, insurance requirements, cargo securement, etc., as well as commercial motor vehicle maintenance, including parts and accessories (rear end protection, lighting requirements, etc.). In other words, they regulate the use of commercial vehicles and their motor carrier operators.The National Highway Traffic Safety Administration (NHTSA), also a U.S. DOT division, regulates the manufacture of new motor vehicles operated on public roads within the U.S. It is responsible for vehicle certification, Federal Motor Vehicle Safety Standards (including FMVSS 108: Lamps, Reflective Devices, and Associated Equipment), emissions and fuel economy regulation (in conjunction with the U.S. Environmental Protection Agency), early warning reporting, recall and remedy regulations, and more.The confusion concerning the lamps allowed by these FMCSA exemptions is that NHTSA’s regulations do not allow for such lamps. Therefore, the legal ability to install these lamps depends on who does the installation and when.NHTSA regulates the vehicle up to the point where it’s completed, certified, titled, and licensed in a given state — meaning NHTSA regulates the manufacture of new motor vehicles. FMCSA has jurisdiction over the operation of vehicles that meet the definition of a “commercial motor vehicle” with the exception of remedy and recall, and make inoperative rules that remain under NHTSA’s authority for vehicles in-service. At its simplest, NHTSA regulates new vehicle manufacturing (and manufacturers), whereas FMCSA regulates the operation of commercial vehicles (and their owners and operators). As such, FMCSA does not have the authority to exempt manufacturers from their responsibilities to comply with FMVSS, including lighting requirements.A final-stage manufacturer/alterer must certify the completed new vehicle meets all FMVSS (in this situation, specifically FMVSS 108). NHTSA has issued multiple interpretations over the years regarding prohibiting flashing/pulsating lamps activated with the brake lamp function.NHTSA has consistently maintained that such lamp functions do not comply with FMVSS 108 — noting both the potential for distraction/confusion as well as the requirement that brake lamps be steady-burning. NTEA held a conference call with NHTSA personnel from compliance, rulemaking, and the chief counsel’s offices to discuss the FMCSA pulsating lamp exemptions. During the discussion, NHTSA confirmed a final-stage manufacturer/alterer would not be able to add brake-activated, pulsating lamps in addition to the steady-burning brake lamps when certifying a vehicle to FMVSS 108. In a Jan. 20, 2022, notice to Waste Management Inc., FMCSA acknowledged this division of DOT regulatory authority and the proper application of their exemptions: “FMCSA acknowledges the concern of NTEA that FMCSA has the authority to grant the temporary exemption only to motor carriers and not to commercial motor vehicle manufacturers or vehicle alterers.”In similar situations, FMCSA has frequently included the following statement to clarify that no one other than the end-user/motor carrier of a commercial vehicle is authorized under these exemption grants to install lighting under the conditions of the exemption:“THE PRODUCT MUST BE INSTALLEDONLY BY THE OWNER OF THEVEHICLE. IN ACCORDANCE WITHFEDERAL LAW (49 U.S.C. 30112(a)(1)AND 49 U.S.C. 30122), THE PRODUCTMAY NOT BE INSTALLED BY ANYMANUFACTURER, DISTRIBUTOR,DEALER, RENTAL COMPANY, ORMOTOR VEHICLE REPAIR BUSINESS.”As the owner/operator of a commercial motor vehicle, your company may install the brake-activated, pulsating warning lamps from your supplier in accordance with an applicable FMCSA exemption. However, since a final-stage manufacturer/alterer is subject to NHTSA regulations, they cannot add the additional light for you. Note, this includes installing these lamps on vehicles that are already in service, as this would be considered a violation of the “make inoperative” requirements where used vehicles may not knowingly be taken out of compliance with the FMVSS to which they were originally certified. This is why other entities — such as distributors, dealers, rental companies, and vehicle repair businesses — are also prohibited from installing them.

Pulsating brake lights: Know who can – and can’t – legally install them

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