ID: nht92-4.34

DATE: August 17, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Charles Henry, Jr.

TITLE: None

ATTACHMT: Attached to letter dated 7/1/92 (est) from Charles Henry, Jr. to Paul J. Rice (OCC 7297)

TEXT:

This responds to your letter that requested information about how the laws and regulations administered by this agency would apply to a device you wish to market. Since your device is an item of "motor vehicle equipment," it would be subject to our jurisdiction as explained below.

In your letter, you stated that when installed in a motor vehicle, your device would automatically shut down the "lighting circuits of an automobile or vehicle" within a prescribed time period after the motor is turned off. In a telephone conversation with Dorothy Nakama of my staff, you explained that the lights controlled by the device are the headlights and tail lights.

By way of background information, NHTSA has no authority to approve, endorse or offer assurances of compliance for any motor vehicle or item of motor vehicle equipment. Instead, the National Traffic and Motor Vehicle Safety Act of 1966 ("Safety Act," 15 U.S.C. 1381 et seq.) authorizes this agency to regulate "motor vehicles" and "motor vehicle equipment." Section 102(4) of the Safety Act (15 U.S.C. 1391(4)) defines "motor vehicle equipment," in part, as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system part, or component or as any accessory or addition to the motor vehicle...

As an "addition" to the motor vehicle that automatically shuts off the vehicle's lights, after the motor is shut down, we would consider your device as "motor vehicle equipment."

There are no specific provisions in the safety standards that set forth requirements for devices that automatically shut off lights on motor vehicles, after the motor is shut down. Thus, your company as the manufacturer of such a device would not have to certify that the device complies with any safety standards before offering it for sale to the public.

From your letter, it appears that your device is initially intended for installation after first sale of the motor vehicle to the public, but may later be sold for installation before such sale. The addition of this device to a vehicle before the vehicle's first sale could affect the vehicle's compliance with the safety standards. NHTSA's certification regulation requires vehicle manufacturers to permanently attach a label to each of their new vehicles stating that the vehicle complies with all applicable safety standards. See 49 CFR S567.4. The certification regulation also sets forth requirements for persons who modify previously certified vehicles by adding, modifying, or substituting readily attachable components. Such persons are considered "alterers" of the previously certified vehicles. Alterers are required to

leave the original manufacturer's label in place and affix an additional label identifying the alterer and stating that the vehicle, as altered, continues to comply with all applicable safety standards. See 49 CFR S567.7. As you may be aware, Federal Motor Vehicle Safety Standard No. 101; Controls and displays, specifies requirements for the illumination of motor vehicle controls and displays, and Standard No. 108; Lamps, reflective devices, and associated equipment, specifies requirements for lamps on motor vehicles.

While your letter gave no details about how this device would be installed in a vehicle, it seems highly unlikely that a device would be regarded as "readily attachable" if it is designed to automatically shut off lights on a motor vehicle, when the motor is shut down. Thus, any person that installed this device on a new vehicle before the vehicle's first sale to the public would be required to certify that the vehicle complies with all applicable safety standards, including Standards No. 101 and 108, with this device installed.

After the first sale of the vehicle to the public, certain persons who modify vehicles are subject to the prohibition in section 108(a)(2) of the Safety Act (15 U.S.C. 1397(a)(2)). That section provides that: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard..."

To avoid a "rendering inoperative" violation for vehicles that comply with any of our safety standards, commercial after market installers of your device should examine any installation instructions that you may have for your device and compare those instructions with the requirements of our safety standards, to determine if installing the device in accordance with those instructions would result in the vehicle no longer complying with any of those safety standards. If the installation of your device would not result in a "rendering inoperative" of the vehicle's compliance with the safety standards, the device can be installed by manufacturers, distributors, dealers and repair shops without violating any Federal requirements.

The prohibitions of Section 108(a)(2)(A) do not apply to the actions of a vehicle owner in modifying his or her vehicle. Thus, a vehicle owner would not violate the Safety Act by installing your device even if doing so would adversely affect some safety feature in his or her vehicle.

Manufacturers of motor vehicle equipment such as your device are also subject to the requirements in sections 151-159 of the Safety Act (15 U.S.C. 1411-1419) concerning the recall and remedy of products with defects related to motor vehicle safety. The Safety Act specifies that if either your company or this agency determines that a safety-related defect exists in your device, your company as the manufacturer must notify purchasers of the safety-related defect and must either:

(1) repair the product so that the defect is removed; or

(2) replace the product with identical or reasonably equivalent products which do not have a defect.

Whichever of these options is chosen, the manufacturer must bear the full expense and cannot charge the owner for the remedy if the equipment was purchased less than 8 years before the notification campaign.

For your information, I have enclosed a copy of an information sheet for new manufacturers of motor vehicles and new motor vehicle equipment. This sheet gives a brief description of our regulations and explains how to obtain copies of those regulations. You should also be aware that state laws may apply to the use of your device. For further information on state laws, you may wish to contact the American Association of Motor Vehicle Administrators at 4600 Wilson Boulevard, Arlington, Virginia 22203.

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

Attachment

NHTSA Information Sheets: Information For New Manufacturers of Motor Vehicles and Motor Vehicle Equipment; and Where to Obtain NHTSA's Safety Standards and Regulations (Text omitted)

ID: nht92-4.35

DATE: August 17, 1992

FROM: Spencer A. Darby -- Vice President - Engineering, Sate-lite Mfg. Co.

TO: Legal Counsel - FMVSS 125 -- NHTSA

COPYEE: Larry Michelson

TITLE: None

ATTACHMT: Attached to letter dated 10/28/92 from Paul Jackson Rice to Spencer A. Darby (A40; Std. 125)

TEXT:

IN THE "S1. SCOPE" AND "S3. APPLICATION" SECTIONS OF FMVSS 125, REFERENCE IS MADE TO "...DEVICES, WITHOUT SELF-CONTAINED ENERGY SOURCES,...".

I AM RESPECTFULLY REQUESTING AN AGENCY INTERPRETATION OF THIS PHRASEOLOGY IN REGARDS TO ONE PUTTING FLASHING, BATTERY OPERATED LIGHT SOURCES BETWEEN THE REFLEX REFLECTORS PORTION OF AN OTHERWISE COMPLYING WARNING DEVICE. WOULD THIS ALTERED DEVICE BE IN COMPLIANCE WITH THE FMVSS 125 STANDARD IF THE LIGHT SOURCES WERE OPERATED AFTER DARK? OR, PHRASED ANOTHER WAY, DOES FMVSS 125 APPLY TO AN OTHERWISE COMPLYING DEVICE THAT HAS FLASHING LIGHTS IN IT, AND, IF NOT, WOULD A VEHICLE WHICH IS REQUIRED TO HAVE THE THREE 125 WARNING TRIANGLES HAVE TO HAVE THREE NON-LIGHTED COMPLYING TRIANGLES SET OUT AS WELL?

IT IS OUR OPINION THAT FLASHING LIGHTS IN AN OTHERWISE COMPLYING EMERGENCY WARNING TRIANGLE ENHANCES THE ATTENTION GRABBING CAPABILITY OF THE DEVICE AFTER DARK.

PLEASE FEEL FREE TO TELEPHONE THE WRITER AT ANY TIME, IF HE COULD BE OF FURTHER ASSISTANCE IN CLARIFYING THIS REQUEST FOR AN INTERPRETATION.

ID: nht92-4.36

DATE: August 16, 1992

FROM: Robert N. Moore -- No. 203048, Iowa State Penitentiary

TO: Mr. Curry

TITLE: Re: Safety Act; 15 U.S.C., Section 1381 et seq.; F.M.V.S.S. #208

ATTACHMT: Attached to letter dated 9/28/92 from Paul Jackson Rice to Robert N. Moore (A39; Std. 208)

TEXT:

I'm pleased to make your acquaintance.

This is a request for information, in the form of an official statement from your agency, concerning an interpretation of the above-caption statute and Safety Standard.

Before going further I should inform you that my prison I.D. No., given above, must follow my name on the face of your reply envelope.

The circumstances surrounding this request is a lawsuit I am prosecuting in the United States District Court for the Central District of Illinois. That court is in Peoria, and the suit is captioned as MOORE V. GREEN, CV89-4129.

The factual basis of this action concerns my transportation in a law enforcement vehicle which was a regular, passenger van, with modifications to change it into a "paddy wagon" type of vehicle. The defendants admit that the device did not contain any type of occupant restraint system for my safety. I did sustain injury in the vehicle.

I have based one cause of action upon an alleged violation of the Safety Act and F.M.V.S.S. #208. The suit is presently at the discovery stage; and upon my receipt of answers to Interrogatory questions, both parties have informed the Magistrate of the intention to file motions for summary judgment. I am assuming that the defendants will rely as heavily upon the Interrogatory answers as I plan to do.

It thus appears that our first battle will focus upon the question of whether or not I have been bestowed the equivalent of a right or privilege under the Act to have been provided with a seat belt. And following that question, is that right enforceable under the remedial authority of 42 U.S.C., Section 1983, which is the statute I am using to obtain compensation.

Of course I have no idea of the research capabilities of the Asst. State's Attorney who is defending, but I do know that I can find no legal authority, at least in the cases, which addresses the specific question of whether the Act does in fact create a right to have a restraint system; and the related question of whether or not Congress has either allowed, or foreclosed a remedy under Section 1983 to enforce that right.

It is at this point where I think everyone involved would benefit from an expert opinion.

I'm sure you are probably aware of the policy of the federal judiciary to defer to, or to at least consult a government agency's own interpretation of the relevant statutes and regulations in these types of cases.

During my research I've discovered several recent opinions where one of the parties wrote an agency, exactly as I am doing here, for opinions or interpretations of the law bearing upon the issues of those particular actions. The written replies were submitted to those courts and were well received by them. I believe your written opinion could also guide our court when I will be required to conduct an agency interpretation analysis in this case.

In case you are disposed towards providing something to clarify the issue in this case, I can offer the following examples as reference points.

The opinion of GOLDEN STATE TRANSIT CORP. V. CITY OF LOS ANGELES, 110 S.CT. 444, probably frames the entire problem much better than I can explain it.

From the viewpoint of that case, I suppose I could just ask two specific questions to make this an easier task for you:

1. Does the Safety Act, and F.M.V.S.S. #208, create a "binding obligation", as opposed to merely expressing a "congressional preference" as to the inclusion of seat belts in motor vehicles?

2. Do any provisions of the Act, or any regulations show that Congress specifically foreclosed a remedy under Section 1983?

I await your reply.

ID: nht92-4.37

DATE: 08/14/92

FROM: PATTI AUPPERLEE

TO: DEE FUJIDA -- OFFICE OF CHIEF COUNSEL, NHTSA

ATTACHMT: ATTACHED TO LETTER DATED 10-28-92 FROM PAUL JACKSON RICE TO PATTI AUPPERLEE (STD. 213; A40)

TEXT: My name is Patti Aupperlee. My business partner, Beth Wiswell, and I have invented a product for childrens car seats. We would like to manufacture them and then sell them retail. We want to comply with all government regulations regarding products for front facing car seats for children.

Our product name is COOL COVER and has a patent pending number of 07/684,783. This product is not the same as the current covers on the market. An example is the Diplomat Juvenile Corporation makes an infant car seat cover which is a liner for use when the child is in the car seat and it leaves several areas of the car seat exposed to direct sunlight and heat when the car seat is in a parked and empty car. COOL COVER completely covers the car seat when the child is not in the car seat and it is exposed to direct sunlight. The cover absorbs the heat that builds up in a parked car. The car seat will not be burning hot when it is time to travel with the child. The product also comes with its own specially designed pouch that turns into a comfortable pillow for the childs head. The pillow also acts as a storage area for the cover. The pillow does not interfere with the safety purpose of the car seat, or any of its straps or buckles. The COOL COVER is unique in that it significantly reduces the heat build up on the car seat in a parked car.

I received your name from Dick Jasinski at (202) 366-5298. The Auto Safety Hotline recommended that I speak with him. He mentioned that we need to make sure we are following governmental standards on flame retardants and any intereferance of operation among others that your office would give us the necessary information of standards. I have received a copy of FEDERAL MOTOR VEHICLE SAFETY STANDARD NO. 213.

I am enclosing a description of the product, pictures, the materials used, and a sample of those materials. Please advise me of the regulations that apply to our product.

The COOL COVER was created out of concern for the comfort of all children who must ride in a HOT car seat. We are mom's who never thought a car seat could be "dangerous" until one of our children suffered a burn from the contact with a buckle after the car seat had been exposed to the sun in a parked car.

I can be contacted at (407) 478-5850. My address is 5961 St. Barbara St. West Palm Beach, Florida 33415. Thank you for your attention in this matter.

ATTACHMENT OMITTED.)

ID: nht92-4.38

DATE: August 12, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Tim Flagstad

COPYEE: Joan Moniz

TITLE: None

ATTACHMT: Attached to letter (fax) dated 7/24/92 from Tim Flagstad to Paul J. Rice (OCC 7574)

TEXT:

This responds to your FAX of July 24, 1992, seeking clarification of our letter to you of July 20.

This matter concerns the importation of a 1981 Kenworth truck from Canada that was manufactured in that country. The truck entered pursuant to the declaration that the vehicle was manufactured to conform to all applicable Federal motor vehicle safety standards, and bore a certification label to that effect. The current owner of the truck says that it bears no U.S. certification label. Our earlier letter informed you that entry under the conformance and certification provisions was therefore erroneous, and that the truck should have been imported under the new provisions for importing nonconforming motor vehicles that became effective on the day of importation.

Your letter of July 24 states that a certification label was attached at the time of importation, and you have asked "As the Certification Label was on the truck at the time it came through Customs, how would this affect the entry status of this vehicle?"

Assuming that the truck bore a certification label, the question is whether the label certified compliance to the U.S. or Canadian Federal motor vehicle safety standards. If the manufacturer certified compliance to the Canadian standards, then my previous advice remains in effect: the entry of this truck as a vehicle conforming, and certified as conforming, to U.S. safety standards was erroneous.

If, on the other hand, the manufacturer certified compliance to the U.S. standards, the truck was properly entered.

However, it appears more likely than not that such certification as may have been affixed was to the Canadian standards. We understand that the truck lacked equipment necessary for conformance to Standard No. 121, "Air Brake Systems", and that its VIN did not consist of 17 characters. These were requirements of the U.S., but not the Canadian, Federal motor vehicle safety standards at the time the truck was manufactured.

The apparently erroneous admission by the U.S. Customs service is understandable. Canada permits certification either in the form of a "National Safety Mark" (maple leaf) or a statement of compliance with "Federal motor vehicle safety standards", the identical phrase used in U.S. certification labels. When a Canadian manufacturer employs this certification statement, a

closer examination of the certification label is necessary. If GAWR and GVWR ratings are expressed in pounds, the certification is to the U.S. standards; if expressed in kilograms, the certification covers the requirements of Canada.

ID: nht92-4.39

DATE: August 12, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: L.J. Sharman

TITLE: None

ATTACHMT: Attached to letter dated 4/13/92 from L.J. Sharman to NHTSA (OCC 7450)

TEXT:

This responds to your letter requesting information about whether the National Highway Traffic Safety Administration (NHTSA) has issued any regulations addressing the retention of records regarding compliance testing results. Your question arises in the context of the testing procedures set forth in Standard No. 302, Flammability of Interior Materials. (49 CFR S571.302).

As explained below, the agency makes available all of its compliance test results through its Technical Reference Division. However, the agency has no such requirements for manufacturers or other persons to keep records concerning any test results. Nevertheless, a manufacturer would be well advised to retain such records in case its motor vehicle or item of equipment did not comply with an applicable safety standard.

By way of background information, the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq., the "Safety Act") gives this agency the authority to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. Each of the agency's safety standards specifies the test conditions that this agency will use to assure whether the performance of the vehicle or equipment being tested is in compliance with the safety standard. NHTSA follows the established test procedures and conditions when conducting its compliance testing. The results of NHTSA's compliance tests are always recorded and made available to the public in the agency's Technical Reference Division.

However, the Safety Act does not require a manufacturer to test its products only in the manner specified in the relevant safety standard, or even to test the products at all. A manufacturer may choose any means of certifying that its products comply with the requirements of the safety standards. If the manufacturer chooses to conduct testing, there is no requirement that the manufacturer retain those results.

However, if the agency testing shows that an apparent noncompliance exists with a vehicle or item of equipment, the manufacturer is asked to show the basis for its certification that the vehicle or equipment complies with the relevant safety standard or standards. If, in fact, there is a noncompliance, the manufacturer is subject to civil penalties under the Safety Act unless it can establish that it exercised "due care" in the design and manufacture of the product and in the checks (through actual testing, computer simulation, engineering analyses, or other means) to ensure compliance, but nevertheless did not have reason to know that the vehicle or item of equipment did not in fact comply with the safety standards. Given the potential for civil penalties, it is in the manufacturer's best interests to retain its testing records in case it must establish due care. (See 15 U.S.C. 1397(b)).

I note that the agency has issued a regulation addressing recordkeeping, 49 CFR Part 576, Record Retention, which establishes requirements for the retention by motor vehicle manufacturers of complaints, reports, and other records concerning motor vehicle malfunctions. However, nothing in this provision requires retention of information generated during compliance testing.

I hope this information is helpful. If you have any further questions about NHTSA's regulations, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

ID: nht92-4.4

DATE: September 15, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Leonard Marks

TITLE: None

ATTACHMT: Attached to 01/01/92 (EST) letter from Leonard Marks to Office of the Chief Counsel, NHTSA (OCC-7689)

TEXT:

This responds to your letter asking how the laws and regulations administered by this agency would apply to a device you intend to market. According to your letter, this device is "a new adjustable attachment to seat belts which allows the user to lower the level so that it will no longer cut them in the neck and yet give them the safety of the belt." I am pleased to provide the following information.

It is not entirely clear how your proposed device would work. However, we have explained how our regulations apply to several different types of belt positioning devices. One such device is a "comfort clip," which is attached to the safety belt and can be positioned by an occupant to introduce and maintain slack in the belt system by physically preventing the belt slack from being taken in by the belt's retractor. We have explained how our regulations apply to comfort clips in a February 7, 1986 letter to Mr. Lewis Quetel (copy enclosed). Another device is one that clips the shoulder belt to the lap belt nearer the middle of the wearer's abdomen. We have explained how our regulations apply to these belt positioning devices in a February 11, 1988 letter to Mr. Roderick Boutin (copy enclosed). Yet another device is a covered foam pad that is fastened around the belt. We have explained how our regulations apply to these devices in a November 22, 1988 letter to Ms. Claire Haven (copy enclosed). Since your device would be considered "motor vehicle equipment," within the meaning of the National Traffic and Motor Vehicle Safety Act, I have also enclosed an information sheet for new manufacturers of motor vehicle equipment. This information sheet also explains how to get copies of our regulations.

As you will see from reviewing the enclosed letters, aftermarket sales and installation by individual vehicle owners of devices to reposition belts are not prohibited any Federal statutory or regulatory requirements. Nevertheless, the use of such devices could raise serious safety concerns if the devices inadvertently reduce the safety protection afforded by the original equipment safety belts.

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

ID: nht92-4.40

DATE: 08/12/92

FROM: DENNIS T. JOHNSTON -- ENGINEERING PLANNING AND LIAISON MANAGER, ROVER GROUP NORTH AMERICAN ENGINEERING OFFICE

TO: ADMINISTRATOR -- NHTSA

COPYEE: GREG DANA -- AIAM

TITLE: SUBJECT: PETITION FOR RECONSIDERATION - FMVSS 214 - SIDE IMPACT PROTECTION; LIGHT TRUCKS, BUSES AND MULTIPURPOSE PASSENGER VEHICLES; FINAL RULE

REFERENCE: DOCKET NO. 88-06, NOTICE 19, FMVSS 214 - FINAL RULE: RESPONSE TO PETITIONS FOR RECONSIDERATION DATED JULY 13, 1992 FR VOL. 57, NO. 134 PP 30917-23

ATTACHMT: ATTACHED TO LETTER DATED 11-10-92 FROM BARRY FELRICE TO DENNIS T. JOHNSTON (A40; STD. 214)

TEXT: Rover Group Ltd., the British manufacturer of the Range Rover Multipurpose Passenger Vehicle (MPV), submits the following in response to the referenced Final Rule amending FMVSS No. 214, 'Side Impact Protection; Light Trucks, Buses and Multipurpose Passenger Vehicles'.

The July 13, 1992 Final Rule introduces a concept that had not been previously addressed in the June 14, 1991 Final Rule or the NPRM dated January 15, 1992. That is the classification of contoured doors by the ratio of the width of the lowest portion of the door to the width of the door at its widest point ("ratio"). This classification is not specifically mentioned in the preamble (except obliquely as ". . . certain contoured doors . . ."), but rather, appears directly in the rule in Section 3(e)(7).

Specifically, the July 13, 1992 Final Rule treats contoured doors with a ratio of greater than 0.5 differently than those whose ratio is 0.5 or less. It is Rover Group's understanding following the final rule that a contoured door on a multipurpose passenger vehicle whose width of the lowest portion of the door, for example, measured 41 centimeters and whose widest portion measured 80 centimeters would be required to meet the current quasi-static door strength procedures contained in FMVSS 214 for passenger cars beginning with vehicles produced after September 1, 1993. Multipurpose passenger vehicles (trucks and buses, as well) with contoured doors whose ratio was 0.5 or less (whose lower most width was 40 centimeters or less in the above example) would not be required to have these contoured doors meet quasi-static requirements until September 1, 1994, with the inference that a newly proscribed test procedure would be promulgated for these doors far enough in advance to allow manufacturers to meet this requirement.

However, in conversation with NHTSA staff since the release of the July 13, 1992 Final Rule it appears that NHTSA is considering another discriminator other than the 0.5 ratio to determine which contoured doors for multipurpose vehicles will need to conform to the current quasi-static test or to the not as yet promulgated test.

The current Range Rover has contoured read doors. These doors have a ratio greater than 0.5 (though not significantly greater), and under our interpretation of the July 13, 1992 Final Rule would be required to meet current FMVSS 214 quasi static door strength requirements beginning September 1, 1993. We have developed a design that will meet the current requirements, and have begun to purchase tooling to ensure that production after September 1, 1993 will comply. Any significant change in the test procedure for these doors (along the lines of that proposed in the January 15, 1992 NPRM, for example) would render this tooling obsolete. Thus Rover Group would be required to scrap this tooling at significant cost, and embark on an additional development program. (For details on the design changes necessitated by the test procedure quoted in the January 15, 1992 NPRM please see Rover Group's response dated March 16, 1992.)

Futhermore, based on our side impact test data, we believe that the positioning of door strengtheners that result using the currently specified test procedure in FMVSS 214 is more appropriate than the test procedure in the January 15, 1992 NPRM to offer the passengers of Range Rover vehicles with enhanced side impact protection.

If the Final Rule is to be interpreted as Rover Group has related above (in the third paragraph), please consider this document as a request for interpretation. If, however, NHTSA believes another interpretation is appropriate, please consider this as a petition for reconsideration to align the rule with that contained in this document.

If you have any questions regarding this matter please feel free to contact me on (301) 731-8709 at your earliest convenience.

ID: nht92-4.41

DATE: August 11, 1992

FROM: Steven Henderson -- McGill University

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 8/28/92 from Paul Jackson Rice to Steven Henderson (A39; Std. 108)

TEXT:

Thank you for your letter of June 29 concerning our motorcycle headlamp warning device. I certainly agree with you that the device contravenes the letter of DOT Standard No. 108 as it presently stands. Nevertheless, I ask for your patient indulgence in considering the counterarguments I present below.

I will argue that the potential benefits of our device are so congruent with both the congressional mandate of the NHTSA ("to reduce the mounting number of deaths, injuries, and economic losses ... on the Nation's highways") and the intent of the author(s) of Standard No. 108, as to warrant the inclusion in the standard of an exception referring specifically to the operating characteristics of the device. My understanding is that an exception may be incorporated into the standard when in specific situations the public safety would be increased by a rigorously specified departure from die standard. That is, the exception allows the spirit of the law to rule while protecting the letter of the law from violation. Nevertheless, an exception governing a device should only be granted if its use would not cause any difficulties that the original standard was framed to prevent. I will address these issues below. Your further point that "the safety benefits of the device are speculative and unproven" is very relevant and well taken, and again I ask for your tolerant consideration of my discussion on that point.

Briefly, my understanding of the issues you raise regarding the device's noncompliance with Standard No. 108 are:

a) the headlamp modulation is greater than 17% and so the device does not comply with S5.6.1(c). (Please note that modulation is between intensity levels within a single beam, and is available for use with either the high or the low beam.)

b) the headlamp flash rate of 10 per second supersedes the maximum allowable rate (S5.6.1(a)) of 280 per minute, or 4.67 hz.

c) the taillamp(s) would no longer be steady-burning, as required by S5.5.10(d).

d) the turn signal flash rate of 10 hz would not comply with the SAE specification of 60-120 flashes per minute (1-2 hz) referred to in Standard No.108.

Within my discussion of each of the four specific instances of noncompliance I will also attempt to infer the intent of the clauses cited. If the device violates the letter of the law while satisfying the spirit or inferred intent of the law in each case, I feel that the granting of an exception should be

considered by the NHTSA.

First, S5.6.1(c) calls for a modulation intensity of not greater than 17%, the presumed intent being to reduce distraction and annoyance to other drivers whenever such a modulating headlight system is in view. For a device that is used steadily (as is the device described in S5.6), when the presence of a motorcycle is recognized, the modulation becomes redundant and so carries no useful information. Without a limit on its magnitude, the modulation would likely interfere with the other visual processes needed for operating a motor vehicle. On the other hand, our device is only used intermittently and only at need, so that when the presence of the motorcycle is recognized by the car driver, the horn button is released and the modulation stops. As the device is only used to attract attention when necessary and at no other time, no redundant information from the device is ever present in the visual scene to distract other drivers. Therefore our proposed device does not conflict with the inferred intent of S5.6.1(c). Furthermore, to maximize the likelihood that the motorcycle will be seen and an accident avoided, the exception for the device should permit 100% modulation on the condition that modulation can only occur in conjunction with the sounding of the horn.

Second, S5.6.1(a) specifies a modulation rate of between 200 and 280 cycles per minute, or 4.67 hz, while our device has a modulation rate of 600 cycles per minute, or 10 hz. Despite the salience of the 10 hz flash rate, the likelihood of distraction to other drivers is nonexistent, as again the device is only used at need rather than continuously (see the counterargument given above). The 10 hz flash rate is particularly appropriate for use as a warning signal. Figures 1 and 2 (from Snowden and Hess, 1992) show that at every retinal eccentricity, light modulation of approximately 10 hz is more easily seen (or seen at a greater distance) than modulation of any other frequency. Finally, referring to Appendix A, the "brightness enhancement effect" (Bartley, 1939) also achieves maximum enhancement at a rate of about 10 flashes per second, the frequency corresponding to the alpha rhythm of the human visual cortex. As the 10 hz enhancement effect was reported in a document commissioned by the NHTSA and published as Report No. DOT HS 807 121 (1987), I believe that the intent of the author(s) of Standard No.108 (the NHTSA) would be to exploit the safety advantages to be gained by the use of 10 hz light modulation, given the knowledge gained from the visual system research that has been conducted since Standard No.108 was written, and given the safe means to use this knowledge. (Please also note that the 50% duty cycle of the proposed device yields maximum brightness enhancement, as shown by the figure in Appendix A.) I therefore contend that as the flash rate of 10 hz is not contrary to the inferred intent of S5.6.1(a), and further, that its use will not cause any of the difficulties that S5.6.1(a) was likely Written to prevent, that the requested exception should permit the use of a 10 hz flasher frequency, again on the condition that modulation can occur only in conjunction with the sounding of the horn.

Please observe that the first two points of noncompliance result from an attempt to apply to our device, an exception granted to allow the use of another device that is explicitly described in the standard. Our device is unique and clearly differs from the device referred to in S5.5.10(c) and described in S5.6. (In our attorney's opinion the patent search we commissioned found no prior art of sufficient similarity to jeopardize our

patent claims, as shown in the prior art section of the enclosed patent application - see Appendix B.) Therefore, the noncompliance of our device with an exception drafted in specific reference to a different device should not be taken as grounds for prohibiting our device. Rather, I contend that our device is not contrary to the spirit and intent of Standard No.108, and that introducing an exception for the device into the standard would be the most appropriate course of action for the NHTSA to take. Section 5.6 establishes a clear precedent for introducing an exception into the standard by the NHTSA, if public safety would thereby be expected to increase.

Third, when the horn button is pressed the taillamp flashes at a rate of 10 hz, rather than being steady-burning as required by S5.5.10(d). However, a taillight's purpose is to mark the rear of a motor vehicle during nighttime driving when it would otherwise be invisible. For this reason the law requires that taillights be lit at night. The law makes no such requirement during the day. The law does require that motorcycle headlights be lit during the day. Consequently, the taillight, being wired in parallel with the headlight, is also always lit during daytime riding, although not required to be by law. At night the taillight will always be steady- burning, as required by S5.5.10(d), because the flasher device is only able to induce taillight flicker during daylight hours due to the photocell circuitry incorporated to prevent the headlight from generating strobe effects at night. Therefore, the device is in compliance with S5.5.10(d), as it will cause the taillight to flash only at times that it is not required by law to be lit. At such times as the taillight must be lit to mark the rear of the motorcycle to following drivers, it can not be made to flicker by pushing the horn button, and so the device does not violate the intent of the standard.

Fourth, if the horn button is pushed while a turn is being signalled, the appropriate signallight will give out 2 hz bursts of 10 hz flicker (the other signallight remaining dark) and so will not comply with the flash rate of 1-2 hz "specified by SAE requirements incorporated by reference in Standard No. 108". Note first that the situation in which the turn signal and horn button are simultaneously in use will be relatively rare. In addition, the salient difference between a 10 hz flash rate and a 2 hz flash rate allows both to be seen simultaneously and with little or no interference between the two perceptual channels. In other words, an observer who sees a turn signal if a uniform fight is flashing at 2 hz will also see a turn signal if a 10 hz flickering fight is flashing at 2 hz, due to the independence of the temporal channels of the visual system. This channel independence has been most clearly shown by Hess and Snowden (1992) who state that:

The results for 0 and .3 c/d (Fig.4) (shown here as Fig.3) suggest that probes of 1 Hz are detected by a temporal mechanism with a low pass temporal characteristic while probes of 8 Hz are detected by a band pass temporal mechanism centered at 8-10 Hz...For stimuli of mid spatial frequency (1 and 3 c/deg) the results of Fig.5 (shown here as Fig.4) suggest the presence of at least 2 temporal mechanisms, one low pass underlying the detection of low temporal frequency probes and one band pass centered at 8 Hz and underlying the detection of higher temporal frequency probes (p.50).

I have also included their Figures 7 and 8 (shown here as Fig.5 and 6) from

the same publication to illustrate that the temporal frequency of 2.4 hz (above the highest signal light rate specified by SAE) is also detected by the low pass channel tuned to 1-2 hz frequencies, and not by the band pass channel tuned to 8-10 hz frequencies. This result demonstrates empirically that no perceptual interference will occur between the signal flash of 1-2 hz and the hazard flash of 10 hz. Thus, if the signal switch and the horn switch are used together, the SAE-specified turn signal flash of 1-2 hz will be perceptually present, the hazard signal flash of 10 hz will also be perceptually present at the same location, and the two signals will not interfere. Therefore, as widely separated temporal channels in vision are independent, our device is in compliance with the SAE specification of a 1-2 hz flash rate for turn signals, and the additional presence of a 10 hz flash rate for a hazard signal at the same location does not introduce a point of noncompliance between our device and Standard No. 108.

For the reasons given above, I feel that the action by which the NHTSA could most appropriately carry out its congressional mandate would be to write an exception into Standard No. 108, with the exception clause containing the specific assertion that the proposed device is legally permitted if the device can only be actuated by the horn button. The temporary granting of the exception (for an interval of one or two years) will allow the "speculative and unproven ... safety benefits" of the device to be evaluated. If such benefits exist, and the device could help save hundreds or even thousands of lives every year, testing must be carried out.

Before discussing two studies by which the device's benefits can be assessed, I wish to offer from personal experience some anecdotal evidence that demonstrates the need for this device. In 1971, while riding my Triumph motorcycle on a mountain highway in British Columbia, I had a head-on crash with a car at a closing speed of about 60 miles per hour. The car's driver had gradually crossed into my lane as he prepared to turn left onto a gravel road. I moved to the center line in an attempt to squeeze past his car, whereupon he saw a car about fifty yards behind me and attempted to return to his own lane. I was thrown over his car and trailer and sustained a ruptured spleen, some broken bones, and a concussion. The other driver subsequently testified in court that he never saw me, although the accident took place on a clear sunny summer afternoon. That accident would almost certainly not have occurred if I had had the use of the device I have described to you. Furthermore, the responses of other motorcyclists to whom I have described the device are uniformly enthusiastic. We have all felt the helplessness of seeing a motorist inadvertently threatening our lives because he or she has not seen us and we have no means to make ourselves more visible. This device would give motorcyclists the means to do so. If the NHTSA grants a temporary exception to allow safety tests, I believe that many motorcycle manufacturers and insurance companies would enthusiastically support and participate in the studies outlined below. The purpose of the first study is to generate videotape records of automobile drivers' responses to the device's warning flashes. Several motorcycles will be equipped with warning flashers and special purpose cameras. The cameras will be similar in principle to those used by business security firms, in that they will constantly record onto a thirty second videotape loop.

Fifteen seconds after a horn button is pressed, the entire loop's contents will be copied to a permanent videotape record. This record will show, for

each instance of flasher use, the circumstances making such use necessary, as well as the car driver's reaction to the warning flashes. A telltale light or the flasher itself will be within the camera's field of view, furnishing a flasher activation record against which the car driver's preflash and postflash behaviors can be categorized as either appropriate or inappropriate. Each record of a change from inappropriate to appropriate behavior that coincides with flasher activation will be prima facia evidence of the safety benefits conferred by the device. Although this study should generate compelling visual evidence for any safety benefits that exist, the study will not generate logically compelling statistical evidence for the effect, as the criticism can logically be made that the car driver could have seen the motorcycle and responded appropriately in any case (such as by coming to a halt after beginning to pull out from a side street, or by pulling back into the correct lane rather than attempting to complete an overtaking maneuvre), even without flasher activation. Although the cost of conducting the first study is not prohibitive, to carry out the study will certainly require funding support. Clearly however, no group or company will fund the study without assurances from the NHTSA that the device may be legally used if the research demonstrates that the device reduces accidents and saves lives.

The second study is an example of the statistically rigorous experimental design needed to incontrovertibly establish that the device does confer a safety benefit as well as to allow an estimation of the benefit's magnitude. This study requires that a motorcycle manufacturer install flasher systems onto several hundred of their motorcycles. As the motorcycle accident rate in North America in 1987 was approximately 1 accident for each 13 registered motorcycles (U.S. Census figures), a large number of participants is required to allow a statistically significant measure of the device's safety benefits to be made. For example, a safety benefit having sufficient strength to reduce the accident rate by 25 percent (a reduction of 1000 fatalities per year) requires 800 motorcyclists in each of two groups (only the experimental group being equipped with the flashers) to show a statistically significant effect at p less than .05, and 1380 motorcyclists in each group to show statistical significance at p less than .01. Again, no motorcycle manufacturer will conduct so costly a test - even with the support of motorcycle insurance companies - unless the NHTSA has signalled a willingness to allow the device to become available if a safety benefit can be shown.

My most fervent wish is that in light of the reasoning offered above regarding our flasher system, you will reconsider your initial position as stated in your letter of June 29, 1992, and introduce into Standard No. 10 an exception allowing the use of the device I have described. In addition, I again ask (further to my letter faxes of June 3 and June 9) that you request an advanced examination of the patent application filed with the U.S. Patent Office on April 1, 1992 by Steven Henderson and David Kernaghan under Serial No. 863686.

Thank you for your interest and your patience. I look forward to your reply.

ID: nht92-4.42

DATE: August 10, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA; Signature by John Womack

TO: Christian Hammarskjold -- Vice President, USSC Group, Inc.

TITLE: None

ATTACHMT: Attached to letters dated 5/28/92 from Christian Hammarskjold to Paul J. Rice

TEXT:

This responds to your letters of May 28, 1992 concerning suspension seats. Your first letter states that you have been asked by SCRTD in Los Angeles to develop a system that will allow your suspension seats for the driver's seating position in transit buses to tilt from side-to-side. Your letter states:

In addition, USSC is concerned that there are not applicable FMVSS requirements that address a side-to-side strength requirements. 207/210 requires a pull from the front of the seat. What happens if there is a side impact on a suspension seat that has a ball and socket joint. Are there any applicable performance requirements that may apply to such a system.

With respect to seats which tilt side-to-side, you are correct that Federal Motor Vehicle Safety Standard No. 207, Seating Systems, does not include a performance requirement addressing side-to-side strength. Standard No. 207 requires certain specified forces to be applied only in a forward direction and in a rearward direction. All seats, in all vehicles, except for side-facing seats or passenger seats in buses, must be capable of withstanding these forces when tested in accordance with the S5 of Standard No. 207.

However, you should be aware that manufacturers are subject to the requirements in SS151-159 of the Safety Act concerning the recall and remedy of products with safety defects. The defect responsibility is a broad one and would include the side-to-side performance of your seat. In the event that NHTSA or a manufacturer determines that a vehicle containing your seat has a safety-related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

You may be interested in a current proposal to amend Standard No. 207 to establish revised test procedures for pedestal seats. I have enclosed a copy of the notice for your information.

Your second letter asks when shoulder belts will be required on suspension seats. The safety belt installation requirements are set forth in Standard No. 208, Occupant Crash Protection. This standard specifies requirements based on vehicle type and seating position within the vehicle, not based on seat design. I have limited the following discussion of safety belt requirements to trucks and buses, as I am unaware of any passenger cars or multipurpose passenger vehicles which contain suspension seats. As explained below, shoulder belts are required at every forward-facing outboard seating position in trucks with a GVWR of 10,000 pounds or less; at the driver's seating position and at every forward-facing outboard seating position in buses, other than school buses, with a GVWR of 10,000 pounds or less; and at the driver's and right front passenger's seating positions in school buses with a GVWR of 10,000 pounds or

less. Shoulder belts are not required at any other seating positions in these vehicles or in trucks or buses with a GVWR of more than 10,000 pounds.

The requirements for trucks are contained in sections S4.2 and S4.3 of Standard No. 208. Sections S4.2.2 and S4.2.3 of Standard No. 208 give vehicle manufacturers a choice of three options for providing occupant crash protection in trucks with a GVWR of 10,000 pounds or less, manufactured on or after September 1, 1991 and before September 1, 1997. Option 1, set forth in S4.1.2.1, requires vehicle manufacturers to provide automatic protection at the front outboard seating positions, lap or lap/shoulder belts at all other seating positions, and EITHER meet the lateral crash protection and rollover requirements by means of automatic protection systems or have manual safety belts at the front outboard seating positions such that those positions comply with the occupant protection requirements when occupants are protected by both the safety belts and the automatic protection. Option 2, set forth in S4.1.2.2, requires vehicle manufacturers to provide a lap or a lap/shoulder safety belt at every seating position, have automatic protection for the front outboard seats, and have a warning system for the safety belts provided. Option 3, set forth in S4.1.2.3 requires the manufacturer to install lap or lap/shoulder safety belts at every seating position and to have a warning system for those belts. In addition, each Type 2 seat belt assembly (i.e., lap/shoulder safety belts) installed at a front outboard seating position in trucks with a GVWR of 8,500 pounds or less must satisfy the dynamic testing requirements in S4.6.

S4.2.4 of Standard No. 208 specifies that a Type 2 seat belt assembly must be installed at each forward-facing rear outboard seating position in trucks with a GVWR of 10,000 pounds or less, manufactured on or after September 1, 1991.

Section S4.2.5 of Standard No. 208 specifies a phase-in of trucks and buses with a GVWR of 8,500 pounds or less that must satisfy the requirements of S4.1.2.1 (Option 1 above). Twenty percent of trucks and buses manufactured on or after September 1, 1994 and before September 1, 1995 must meet this requirement; 50 percent of trucks and buses manufactured on or after September 1, 1995 and before September 1, 1996; 90 percent of trucks and buses manufactured on or after September 1, 1996 and before September 1, 1997. All trucks and buses with a GVWR of 8,500 pounds or less manufactured on or after September 1, 1997 must comply with the requirements of S4.1.2.1.

Section 4.3.1 gives vehicle manufacturers a choice of two options for providing occupant crash protection in trucks with a GVWR of more than 10,000 pounds manufactured on or after September 1, 1990. Option 1, set forth in S4.3.1.1, requires vehicle manufacturers to provide an automatic protection system at all seating positions that meets the frontal and lateral crash protection and rollover requirements. Option 2, set forth in S4.3.1.2 requires vehicle manufacturers to install lap or lap/shoulder belts at every seating position. In addition, S4.3.2 specifies that, if a manufacturer chooses to comply with Option 2, the lap belt or pelvic portion of a lap/shoulder belt must have either an emergency locking retractor (ELR) or an automatic locking retractor (ALR).

The requirements for buses are contained in S4.4 of Standard No. 208. Section 4.4.1 gives vehicle manufacturers a choice of two options for providing occupant crash protection in buses manufactured on or after September 1, 1990.

Option 1, set forth in S4.4.1.1, requires vehicle manufacturers to provide an automatic protection system at the driver's seating position that meets the frontal and lateral crash protection and rollover requirements. Option 2, set forth in S4.4.1.2 requires vehicle manufacturers to install a lap or lap/shoulder belt at the driver's seating position. In addition, S4.4.2.2 specifies that, if a manufacturer chooses to comply with Option 2, the lap belt or pelvic portion of the lap/shoulder belt must have either an ELR or an ALR.

Section S4.4.3 requires buses, other than school buses, with a GVWR of 10,000 pounds or less, manufactured on or after September 1, 1991, to have a lap/shoulder belt at the driver's seating position and at every front and rear forward-facing seating position, and either a lap belt or a lap/shoulder belt at every other seating position. School buses with a GVWR of 10,000 pounds or less, manufactured on or after September 1, 1991, are required to have a lap/shoulder belt at the driver's and right front passenger's seating positions, and either a lap belt or lap/shoulder belt at every other seating position. As mentioned previously, buses with a GVWR of 8,500 pounds or less manufactured on or after September 1, 1994 are subject to the phase-in requirement for automatic occupant protection.

I hope you find this information helpful. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.