ID: aiam1988

Dear Mr. Joyce:#This responds to your June 18, 1975, question whethe S5.3 of Standard No. 105-75, *Hydraulic Brake Systems*, requires that the brake fluid level warning system specified by S5.3.1 be instantaneous when the brake fluid level reaches the condition described in S5.3.1(b).#The answer to your question if no. The National Highway Traffic Safety Administration recognizes that a minimal interval between the occurrence of the specified condition and the appearance of the required signal is a physical fact. I enclose a copy of an interpretation of a similar require- ment of Standard No. 105-75 for your information. In the case of the brake fluid level indicator, a time interval that is insignificant with respect to the time required to respond to the signal would be permissible.#Sincerely,Frank A. Berndt,Acting Chief Counsel;

ID: aiam0045

Dear Mr. Diehl: #In our telephone conversation of January 8, 1968, an your letter of January 9, 1968, your requested: #>>>'...an early reply whether labels are required, when the information already appears on *one sidewall*, except the basic label. (Basic Label Information - DOT-153) It is also our feeling that the labeling is not a serious requirement to meet minimum safety standards.'<<< #This letter confirms my statement in our telephone conversation that Motor Vehicle Safety Standard 109 may be met if the information required in S4.3 of this standard is molded on one or both sidewalls of the tire in lieu of a label until August 1, 1968, after which this information is required on each sidewall. #Sincerely, Roger H. Compton, Director, Office of Standards on Accident Avoidance, Motor Vehicle Safety Performance Service;

ID: aiam0083

Dear Mr. Farmer: Thank you for your letter of June 4, 1968, to Mr. George C. Nield concerning the State Board of Education's requirement for school bus warning signal lamps.; The warning signal system as described in your letter does not meet th requirements of Motor Vehicle Safety Standard 108, effective January 1, 1969. A copy of this Standard is enclosed for your reference. A minimum of four red signal lamps is required and they shall be designed to conform to SAE Standard J887, July, 1964, a copy of which is also enclosed. Four additional amber lamps are permitted. The red and amber system and the red only system shall be installed in accordance with paragraph S3.1.3.2 and S3.1.3.3, respectively, of Standard No. 108.; Sincerely, David A. Fay, Office of Standards on Accident Avoidance Motor Vehicle Safety Performance Service;

ID: aiam1486

Dear Mr. Baskin: #This is in reply to your letter of March 21 and Apri 22, 1974, in which you ask whether a tire sold as a 'blemish' must be guaranteed for workmanship, material, and road hazards. #There are no Federal requirements that manufacturers guarantee blemish (or non-blemish) tires. Such guarantees are within the discretion of each manufacturer. However, Federal Motor Vehicle Safety Standard No. 109 (49 CFR S 571.109) requires all new passenger car tires to meet minimum safety performance levels for high speed performance, endurance, strength, bead unseating, physical dimensions and treadwear indicators. These requirements apply similarly to both blemish and non-blemish tires. #We have enclosed for your information a copy of the Federal Trade Commission's Tire Advertising and Labeling Guides which contain in Guide 11 requirements for the labeling of blemish tires. #Yours truly, Richard B. Dyson, Assistant chief Counsel;

ID: 2874o

Mr. Donald Friedman
President
Liability Research, Inc.
4448 Via Esperanza
Santa Barbara, CA 93110

Dear Mr. Friedman:

This is a response to your letter dated November 17, 1987, asking whether two child restraint systems you have designed comply with certain requirements of Federal motor vehicle safety standard 213, Child Restraint Systems. You call one system "Cradle Safe," and describe it as an inclined, rear-facing, deformable, vinyl-covered woodfiber board carrier designed to restrain new-born infants from 4.5 to 14 lbs. The second system you call "Premie Cradle," and describe it as a recumbent, rear-facing, deformable, vinyl-covered woodfiber board carrier designed for premature infants from 4 to 6 lbs.

Your letter assesses the performance attributes of these systems as follows:

"In an accident the baby is oriented and cushioned to avoid injury and ejection by a deformable, energy absorbing 'bed' and 'shell' without harnessing the infant.

The bed and its crushable extensions (wings) cause the infant to rotate and take acceleration forces through its back and limit those applied to the head. After rotation, the infant is cushioned by the collapsing bed."

You state your belief that both systems comply with applicable provisions of Standard 213, but ask for our comment because "the designs are innovative and make the applicability and interpretation of certain paragraphs of the standard not entirely obvious." To help the agency better understand your products and the methods you used to test performance, you requested that agency staff meet with you, and your colleague, Mr. David Shinn.

On April 12, 1988, a meeting was held with you, Mr. Shinn, and agency staff from the following offices: Chief Counsel, Enforcement, Plans and Policy, Research and Development, Rulemaking, and Traffic Safety Programs. At that meeting, you and Mr. Shinn presented a video-film showing two sled-tests of your cradle-safe restraint system, one with a NHTSA-specified, 17 pound dummy, and one with an EEC eight pound dummy. In the video film, your child restraint system broke apart in the 30 mph test with the 17 pound dummy, but appeared to maintain its structural integrity when tested with the eight pound dummy. You did not show a sled-test with your "Premie Cradle" product.

By a letter dated June 8, 1988, you informed this agency that you had performed tests of a "modified" Cradle-Safe restraint system, and that this system will contain the NHTSA-specified 17 pound dummy in simulated barrier-impact testing under Standard 213. You state further that a restraint system you call "One-ride" also will contain a 17 pound dummy in Standard 213 testing. (You did not address the "One-ride" restraint in your November 17, 1987, correspondence, nor did you present it during the April 12, 1988 meeting.) Your June 8 letter also references a letter of July 22, 1987, addressed to Mr. Val Radovich of this agency; a June 3, 1988 video tape showing a simulated barrier impact test of your Cradle-Safe seat with a 17 pound dummy; and submissions of patent documents in support of a patent application for your products.

As NHTSA staff understood from your November 17, 1987 letter, and the April 12, 1988 meeting, your principal question was whether you could test a Standard 213 child restraint system with an eight or 14 pound dummy (rather than the specified 17 pound dummy), if you intended to label the restraint as appropriate for children from 4.5 to 10 pounds. You briefly addressed the other matters raised in your November 17, letter, clarifying a reference to an "unspecified belt provided for use outside the vehicle and not required in (Standard 213) testing." You explained that the "belt" to which you refer is a two-piece, cloth wrap that anchors at either side of the restraint, and fastens over the child with a velcro attachment.

I shall respond to your comments in the order that you present them in your letter, also discussing new matters raised in the meeting, in the June 8, 1988 letter, and in your other submissions where appropriate. I will not discuss the patent materials because they are not relevant to a determination of whether your restraint systems comply with Standard 213. In responding to your comments, I assume that we are discussing only those child restraint systems designed for children weighing less than 20 pounds (infant restraints).

Your First Comment. Paragraph 5.1.1.a dealing with Child Restraint System Integrity specifies "no complete...and no partial separation" of surfaces. Our design is deformable and involves materials of 1/4" thickness which in deforming, tear slightly. However when torn these materials are not lacerating and not likely to come into contact with the infant.

Response. Paragraph S5.1.1(a) states that when a child restraint is tested as specified in the Standard, the system shall:

Exhibit no complete separation of any load bearing structural element and no partial separation exposing either surfaces with a radius of less than 1/4 inch or surfaces with protrusions greater than 3/8 inch above the immediate adjacent surrounding contactable surface of any structural element of the system.

If the system failure you describe as tearing of materials at the system surface does not result in a failure of the load-bearing structure of the system, then paragraph S5.1.1(a) is inapplicable. In 1978, NHTSA proposed adding this language to 213 as one of a number of amendments to the Standard that would upgrade performance requirements, improve performance criteria, and require dynamic testing of child restraint systems using anthropomorphic test dummies. (43 FR 21470, 21473, May 18, 1978.) In the preamble of that document, we stated that our objectives in promulgating the system integrity requirements were to prevent a child's excessive excursion or ejection from the system, and to ensure that the system does not fracture or separate in such a way as to harm the child. (43 FR 21470, 21473.)

To accomplish this objective, Standard 213 requires that in dynamic testing, any load-bearing, structural element of a child restraint system must not separate completely; and that any partial separation must not expose surfaces with sharp edges that may contact the child. Id. Your letter states that some materials at the surface of your system may tear during an impact. In promulgating S5.1.1(a), the agency intended to minimize dangers resulting from failures in the structural integrity of the system, rather than failures in the materials. The agency did not intend to preclude a manufacturer from designing some deformation into a child restraint system to improve the system's energy absorption performance.

Your Second Comment. Paragraph 5.2.3.2.b The system surface in contact with the infant's head shall be covered with slow recovery, energy absorbing material. Although our system surfaces are not covered, they are fabricated out of such material. The system surface in contact with the infants head (the bed) is 3/16" woodfiber separated by air from a similar material in the shell. The system complies with the requirement and when dynamically tested exhibits deformation much better than a 25% compression-deflection, but there is no appropriate ASTM Test Standard such as for open or closed cell foam.

Response. As I read your comment, you raise three issues which I shall address separately. The first is whether the material from which you fabricate your system can meet the S5.2.3.2(b) requirement that a child restraint system must be "covered" with slow recovery, energy absorbing material. The agency's long-standing position is that a given type of surface material is an acceptable "covering" if it is a flexible material that would meet the thickness and performance requirements for energy-absorbing padding set out in paragraphs (a) and (b) of S5.2.3.2. The surface needn't have a separate layer of energy-absorbing padding.

The second issue is whether 3/16 inch woodfiber is a sufficient thickness for a system surface. This thickness would not comply with S5.2.3.2(b) of Standard 213. That subparagraph requires thicknesses of at least 1/2 or 3/4 inch, depending on the material's compression-deflection performance as measured in the static testing specified in S6.3 of Standard 213.

You assert that the 3/16 inch thickness material used in your systems exceeds a 25% compression-deflection measurement in dynamic testing. In the preamble to the final rule amending Standard 213, NHTSA responded to commenters who suggested that specifying a minimum thickness for the infant restraint surface was design-restrictive. (44 FR 72131, 72135, December 13, 1979.) We explained in that document that we set these minimum thickness requirements because there was no available test device to measure the energy absorption properties of either the surface or underlying structure of an infant restraint in dynamic testing. Consequently, the agency specified "long-established static tests" of the surface material, and established minimum thickness requirements based on the results of those static tests. Therefore, a compression-deflection measurement derived from dynamic testing is not an acceptable test of compliance with paragraph S5.2.3.2.

The third issue is whether the compression-deflection measurement for this system must be derived from tests under one of the ASTM standards in S6.3, even though none of the ASTM titles expressly states that the test is for woodfiber, and all three procedures are for static tests. Paragraph S5.2.3.2(b) requires that when one tests the energy absorption properties of child restraint materials, those tests must be conducted under one of three ASTM static test procedures set out in paragraph S6.3 of Standard 213.

Your restraint systems are made of woodfiber. Woodfiber - or any material that meets the Standard's requirements - can be an acceptable substance out of which to fabricate a child restraint. As NHTSA stated in the final rule preamble cited earlier, the agency wishes to allow restraint manufacturers to use a wide range of materials, provided that the material exhibits acceptable energy absorption properties. You may use any ASTM title specified in paragraph S6.3 to test your surface material, and the material is acceptable if it displays the required energy absorption properties when tested under one of those titles.

Your Third Comment. Paragraph 5.4.3.1 "Each belt that is part of a child restraint system and that is designed to restrain a child using the system..." is interpreted to mean that a soft unspecified belt provided for use outside the vehicle and not required in testing, need not conform to this paragraph.

Response. As you explained in the April 12, meeting, the "belt" to which you refer is the cloth device described in the beginning of this letter. By its express terms, paragraph S5.4.3.1 is inapplicable to belts that are (1) not part of the child restraint system and (2) not designed to restrain a child using the system. On the other hand, I note that in the June 8, video tape, the narrative refers to a belt within the Cradle-Safe system as a belt for restraining the child. If you do intend any belt in the system to be used for restraining the child, then various provisions of paragraph S5.4.3, Belt Restraint, will apply, depending on the design configuration of the belt assembly.

In the preamble to the May 1978 proposal cited earlier in this letter, the agency expressed its continuing concern that child restraint system designs minimize the prospect of system misuse. (43 FR 21470, 21471.) If there are belts in any of your child restraint systems that you do not intend as restraints for the child, then I hope you will consider whether these additional belts unreasonably increase the risk that some users will mistake the additional belt assembly as a Standard 213 belt intended for use in restraining a child.

Your Fourth Comment. Paragraph 6. This paragraph requires the CRADLE SAFE to be tested with a paragraph 7 dummy (17 lb.) for which it was not designed and which cannot be physically accommodated. We would prefer to use available 7.8 lb. and/or 14 lb. non-specified dummies. The PREMIE CRADLE falls in the car bed "travel crib" category and does not require dynamic testing.

Response. Paragraph S7.1 of Standard 213 requires testing an infant restraint system with the 6-month-old dummy specified in 49 CFR 572.25. (An infant restraint system is one that is recommended "for use by children in a weight range that includes children weighing not more than 20 pounds.") That test device is 17.4 pounds. Because your child safety system meets the definition of infant restraint, it must be capable of meeting Standard 213 performance requirements when tested with the specified 17.4 pound dummy. If an infant restraint can not accommodate this test device, then it can not be certified as complying with Standard 213. I understand from your June 8, 1988, letter that the Cradle-Safe and One-Ride systems will accommodate the specified 17.4 pound dummy in Standard 213 testing. Further, your restraint systems must meet head excursions limits with the 17.4 pound dummy under paragraph S5.1.3.2, Rear-facing Child Restraint Systems.

The dummy specified in Part 572 is based on a simple design that represents a 6-month-old infant in dimensional, mass distribution, and dynamic response characteristics. NHTSA chose to use this test dummy after conducting extensive testing and evaluation of the dummy's responses. The testing, conducted by NHTSA and the Federal Aviation Administration (FAA), showed that the specified dummy provided a consistent and repeatable measure of the structural integrity and confinement properties of a child restraint system, and was superior to a previous test version. (43 FR 21490, May 18, 1978; 44 FR 76527, December 27, 1979.) Before we can sanction use of another device to test an infant restraint system, the agency would have to determine that the dummy is a reliable surrogate for measuring a system's performance in an actual crash. NHTSA can not now make that statement with respect to any unspecified dummy, instrumented or non-instrumented. The agency can make this kind of finding only through a rulemaking process.

Further, contrary to what you believe, infant car beds are subject to dynamic testing to ensure that the test dummy stays within the confines of the restraint system during impact. (Standard 213, S6.1.2.3.3.)

While you believe you have identified some potential problems with Standard 213, I am sure that you can appreciate the need to follow established procedures when considering any change to a safety standard. Following established practices helps ensure that child restraint systems which comply with Federal standards continue to offer satisfactory crash protection for children. The agency has scheduled two public meetings this summer in order to explore the need for changes to Standard 213. I enclose a copy of the notice announcing these meetings, and invite you to participate in the forum.

Based on the information you provided, it appears that you would have to modify your systems, or the agency would have to amend Standard 213 in order for you to be able to certify your child restraint system as satisfying all the applicable requirements of that Standard. Title 49 CFR Part 552, Petitions for Rulemaking, Defect, and Noncompliance Orders (copy enclosed) sets out a procedure for petitioning the agency to amend a safety standard, and you have a right to file such a petition. If NHTSA grants your petition, the agency would follow its normal rulemaking procedures to amend Standard 213.

If you have some further questions or need further information on this subject, please contact Joan Tilghman of my staff at our address, or telephone (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures ref:213 d:7/8/88

ID: 22837ogm

Mr. James Arnold
MAC Trailer Manufacturing Inc.
14599 Commerce Street
Alliance, OH 44601

Dear Mr. Arnold:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 121, Air Brake Systems (49 CFR 571.121). You indicate that your company manufactures truck trailers for highway use. Your letter further indicates that a number of your dealers have asked that your company produce trailers equipped with a certain item of equipment to satisfy the antilock brake systems (ABS) requirements of FMVSS No. 121. The device in question, marketed by its manufacturer Air Brake Systems, Inc. (ABS, Inc.) as the MSQR-5000, is described in promotional material from ABS, Inc. as a "Differential Pressure Regulator Quick Release Valve." You have also attached a document from ABS, Inc. that contains a number of representations relating to the ABS requirements of FMVSS No. 121 and concludes as follows:

Air Brake Systems Inc. hereby certifies that the MSQR-5000^TM anti-lock brake system fully satisfies the definition of anti-lock brakes as required by 49 CFR 571.121 and exceeds the performance requirements of 49 CFR 30113(b)(3)(B)(ii). (Warning light excluded thereto.) ABS Brakes, Inc. Mt. Pleasant, MI 48858 USA

Based on the aforementioned materials, you ask if a trailer equipped with the MSQR-5000 "system" installed as means of meeting ABS requirements would meet the requirements of FMVSS No. 121.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicle or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with applicable safety standards. With certain exceptions related to special configurations, FMVSS No. 121 applies to vehicles - trucks, buses, and trailers - with air brake systems.

As an equipment manufacturer, ABS, Inc., is not required to certify compliance of its product to FMVSS No. 121, but any vehicle manufacturer would be required to certify that its vehicle complies with all the requirements of FMVSS No. 121. It is not uncommon for a vehicle manufacturer to request information from an equipment manufacturer. However, the responsibility for compliance with FMVSS No. 121 and for certification of compliance rests with the vehicle manufacturer. As we have stated before, it is our opinion that reliance by a vehicle manufacturer solely on "certification of compliance" provided by an equipment manufacturer, without more, is not legally sufficient. Moreover, should it be determined that a vehicle does not comply with a Federal motor vehicle safety standard or contains a defect, the recall and remedy obligations of the National Traffic and Motor Vehicle Safety Act would fall upon the vehicle manufacturer and not the equipment manufacturer which supplied particular equipment. See 49 CFR Part 579. Possible liability in tort under state law could fall upon both the vehicle manufacturer and the equipment manufacturer. A private attorney could advise you about this possibility.

The following represents our opinion based on the facts presented in your letter, the attachments provided with your letter and agency review of other data obtained from ABS, Inc.

In marketing and selling the MSQR-5000, ABS, Inc., has represented, in advertisements, promotional materials and in direct contact with potential customers, that the MSQR-5000 is an ABS whose installation in a vehicle will result in the vehicle meeting the ABS requirements of FMVSS No. 121 (49 CFR 571.121). The configuration of the MSQR-5000 and the fact that the device has no electrical or electronic components has apparently led some potential customers of ABS, Inc. to ask NHTSA if the MSQR-5000 is a device which, if installed on a vehicle, would allow that vehicle to meet the ABS requirements of FMVSS No. 121. As discussed below, based on a review of the promotional materials describing the device and the principles involved in its operation, it is NHTSA's view that the installation of the MSQR-5000 alone would not allow a vehicle to meet FMVSS No. 121's ABS requirement.

Among other things, FMVSS No. 121 requires that trailers (S5.2.3) and trucks (S5.1.6) be equipped with an ABS. For the purposes of FMVSS No. 121, ABS is defined in S4 of the standard as follows:

Antilock brake system or ABS means a portion of a service brake system that automatically controls the degree of rotational wheel slip during braking by:

(1) Sensing the rate of angular rotation of the wheels;

(2) Transmitting signals regarding the rate of wheel angular rotation to one or more controlling devices which interpret those signals and generate responsive controlling output signals; and

(3) Transmitting those controlling signals to one or more modulators which adjust brake actuating forces in response to those signals.

In addition, in order to ensure that vehicle owners and operators have knowledge of the status of an ABS system installed on a truck, truck tractor or trailer, FMVSS No. 121 also contains extensive and detailed requirements for malfunction indicators that illuminate a light when the ABS is not working properly. These requirements, found in S5.1.6.2, S5.1.6.3 and S5.2.3.2, specify that a truck, truck tractor or trailer must have an electrical circuit that is capable of signaling a malfunction in the vehicle's antilock brake system, and must have the means for connection of this antilock brake system malfunction signal circuit to a trailer or towing vehicle. Such a signal must be present whenever there is a malfunction that affects the generation or transmission of response or control signals in the antilock brake system. The signal must remain present as long as the malfunction exists, whenever power is supplied to the antilock brake system, and each message about the existence of such a malfunction must be stored in the antilock brake system whenever power is no longer supplied to it.

The ABS requirements of FMVSS No. 121 were incorporated into the standard by a final rule published in the Federal Register on March 10, 1995 (60 FR 13216). In the preamble to that final rule, the agency noted that 10 to 15 percent of heavy combination vehicle crashes involved braking induced instability or loss of control. These crashes resulted in significant property damage, injury and loss of life. In order to address the safety consequences of braking related instability, NHTSA amended FMVSS No. 121 to require effective antilock braking systems.

One of the primary considerations in developing the new requirements was what, at a minimum, an antilock braking system must do in order to prevent or reduce crashes. The agency determined that due to the wide range of surfaces a vehicle may encounter in normal use, an effective ABS system must have the ability to determine if and when a braked wheel is momentarily locked as it passes from high to low traction conditions. Because of such varying conditions, the agency determined that any effective ABS must be a "closed loop" system - i.e., a system that continuously monitors the rate of wheel rotation, adjusts that wheel rotation when needed and reacts to ongoing changes in rotation caused by the operation of the system, changing road surfaces or both (60 FR 13217). Similarly, NHTSA determined that warning light requirements that established a minimum level of safety were also important for reducing crashes, deaths and injuries. The warning light requirements would inform operators of an ABS malfunction and both facilitate and encourage repairs of faulty ABS systems (60 FR 13244).

The MSQR-5000 appears to lack one or more features that an ABS must have to meet FMVSS No. 121. Based on literature provided to us, the MSQR-5000 does not seem to have any means of automatically controlling wheel slip during braking by sensing, analyzing, and modulating the rate of angular rotation of a wheel or wheels. The components identified and described in the MSQR-5000 promotional materials do not have a means for measuring wheel rotation, recognizing wheel lockup, controlling or modulating brake pressure to a locked wheel, or preventing one or more wheels from locking if a driver applies maximum brake pressure to the system. Therefore, standing alone, the MSQR-5000 does not satisfy the definition of ABS as set forth in FMVSS No. 121.

In addition, the MSQR-5000 also appears to lack any provision for illuminating a warning light providing notification of an ABS malfunction. In fact, the materials distributed by ABS, Inc., including the "Certification of Compliance, "indicate that the company believes that the ABS warning light requirements of FMVSS No. 121 are "excluded"by virtue of a decision issued by the United States Court of Appeals for the 10^th Circuit in the case of Washington v. Department of Transportation, 84 F.3d 1222 (1996).

The Washington case involved a challenge to the validity of FMVSS No. 121's ABS requirements on two grounds - that the requirements conflicted with existing Federal Highway Administration regulations governing motor carriers and that NHTSA exceeded its authority in issuing the rule by establishing that an ABS must have certain characteristics. Mr. Washington argued that the requirement that an ABS have certain minimum characteristics unduly restrained design choices. The Court of Appeals ruled in favor of NHTSA in regard to both of these claims. Moreover, while the Court's decision discussed the fact that manufacturers may apply for an exemption from an existing standard or petition the agency to modify an existing standard, the decision did not provide for any such exemption or "exclusion"for ABS, Inc., or any other manufacturer. The claims now made by ABS, Inc. - that the ABS warning light requirements of FMVSS No. 121 were "excluded,"or that ABS, Inc. is exempt from meeting this requirement - are incorrect. Similarly, any assertion that the Court of Appeals found that FMVSS No. 121 unduly restricted design choices is in error.

If you have any questions, please contact Otto Matheke of my staff at (202) 366-5253.

Sincerely

John Womack
Acting Chief Counsel

ref.121
d.6/4/01

Addendum: 09/26/01

At the request of Air Brake Systems, Inc. ("ABS, Inc."), the opinions stated in the foregoing letter are under further consideration by the agency, based, in part, on additional materials that ABS, Inc. has provided, or may submit, to the agency in the near future. The agency is now undertaking further review, after which NHTSA will, if appropriate, issue a revised interpretation to MAC Trailer.

ID: nht87-1.40

TYPE: INTERPRETATION-NHTSA

DATE: 02/26/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Darryl M. Burman

TITLE: FMVSS INTERPRETATION

TEXT:

Darryl M. Burman, Esq. Messrs. Dotson, Babcock & Scofield 1200 InterFirst Plaza Houston, Texas 77002-5219

Re: Whether market and sale of headlamp covers are regulated by Federal law

Dear Mr. Burman:

This is in reply to your letter of January 9, 1987, asking for an interpretation of 49 CFR 571.108 Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Associated Equipment. Your client wishes to import, market, distribute and sell a "cle ar, plastic headlamp cover...for all makes of cars manufactured in or imported to the United States." The stated safety purpose of the headlamp cover is "to protect the glass headlamps on automobiles from breaking."

Three methods of distribution are contemplated: direct sale by your client, sale through auto parts distribution centers, and sale as optional but uninstalled equipment at the time of the vehicle's original sale (the cover in its wrapping would be in the vehicle trunk). You state that the headlamp cover is not intended to be installed by your client, or its distributors and dealers, but will be accompanied by instructions so that the vehicle owner may install it. Warnings will be provided "about minimum Federal photometric requirements". You wish to know whether the headlamp cover is subject to Standard No. 108 or any other Federal regulation and, if so, the effect and impact of such regulation.

A plastic headlamp cover is "motor vehicle equipment", defined in pertinent part by Section 102(1) of the National Traffic and Motor Vehicle Safety Act (15 USC 1391(4)) as "any...accessory, or addition to the motor vehicle...." Its importer is a "manufac turer", defined in pertinent part by Section 102(5) of the Act as "any person importing...motor vehicle equipment for resale". As a manufacturer of motor vehicle equipment your client has the responsibility imposed by Sections 151 et seq of the Act to no tify and remedy in the event that either it or this agency determines that a safety related defect exists in the product, or that it fails to comply with all applicable Federal motor vehicle safety standards. You have already noted that headlamp covers a re not "a regulated safety device" under Standard No. 108. A "defect" under Section 102(11) includes "any defect in performance, construction, components, or materials". Under the best of circumstances a plastic cover when new will reduce light output of a headlamp beneath its designer's intent, whether or not the output falls below the floor established by Standard No. 108 as a minimum for headlamp performance. In service, a plastic headlamp cover may contain condensation under certain climatic conditi ons, or grow increasingly opaque through exposure to ultraviolet rays or other atmospheric components, either of which would further affect the design performance of the headlamp. A conclusion could be reached that such a cover contained a safety related defect and that its importer should notify all purchasers and remedy according to the Act.

Safety problems associated with headlamp covers led to their prohibition when the headlamp is in use, initially under SAE J580 for sealed beam headlamps and later by its incorporation into Standard No. 108, for both sealed beam and replaceable bulb headl amps. The specific prohibition of J580 is why passenger cars are not manufactured with original equipment headlamp covers. Under Section 108(a)(l)(A) of the Act, if a dealer sells a noncomplying motor vehicle, he is in violation of the Act, and may be su bject to civil penalties for it. These penalties, under Section 109, range up to $1000 for a single violation, with a cumulative total of $800,000 for a related series of violations. If a dealer at time of sale provides the means through which a new car meeting all Federal safety standards may be rendered noncompliant immediately after its delivery, we would regard that as tantamount to his having sold a noncomplying motor vehicle in violation of the Act.

Although there is no Federal prohibition against a vehicle owner installing and using headlamp covers, there may nonetheless be local laws covering the sale and use of this equipment. We offer no views of your client's potential exposure under common law , in such situations as use of a deteriorated cover, or when used with a substandard replacement headlamp, except to note that photometric "warnings" may serve no defensive purpose. Photometric values at the individual test points are judged under labora tory conditions. Service facilities do not contain equipment by which on-vehicle compliance of the headlamp can be judged, and the eye is a subjective and unreliable source to discriminate between complying and noncomplying levels of light output.

I hope that this answers your questions.

Sincerely,

Erika Z. Jones Chief Counsel

January 9, 1987

National Highway Traffic Safety Administration Erika Z. Jones, Chief Counsel 400 7th Street, S.W. Washington. DC 20590

Re: Letter ruling to determine if market and sale of headlamp covers are regulated by federal law

Dear Ms. Jones:

REQUEST FOR RULING

Our client is in the process of forming a Texas corporation (the "Company") to engage in those activities described below, and, on its behalf, we are requesting an interpretation of Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Ass ociated Equipment ("Standard 108") and other related or applicable rules or regulations of the Department of Transportation. The reason for this request is the lack of specific guidance in determining (i) if the product our client will import, market and sell will be subject to such regulation, or any other federal regulation, and, (ii) if so, the effect and impact of such regulation. The product, which the Company intends to market, sell and distribute and for which the Company seeks approval by the Na tional Highway Traffic Safety Administration ("NHTSA"), is a clear, plastic headlamp cover (the "Headlamp Cover") for all makes of cars manufactured in or imported to the United States.

STATEMENT OF FACTS

The Company proposes to engage in the importation and marketing of the Headlamp Cover, either through direct sales to ultimate consumers or through sales to automobile dealers, distributors and automotive parts distributors. The Headlamp Cover is designe d to protect the glass headlamps on automobiles from breaking. The Company, distributors, automotive dealers and others will not physically install the Headlamp Cover on automobiles. However, the Company does intend to provide warnings and instructions i n the packaging so that the owner of the vehicle may purchase the proper Headlamp Cover and safely install it.

The Company, proposes to distribute the Headlamp Cover in one or more of the following manners:

1. Over-the-counter. The Company wishes to market and distribute its Headlamp Cover to auto parts distributor centers for sale to the consumer. These distribution centers will be instructed not to participate in the installation of the Headlamp Cover.

2. Option offered by Dealer. The Company will sell and distribute the Headlamp Cover to automotive distributors and dealers who will offer them as accessories to purchasers of new automobiles. The automotive distributors or dealers will place the Headlam p Cover, in its original packaging, in the trunk of the automobile and will not install it for the consumer. Automotive distributors of imported automobiles will place the Headlamp Cover in trunks of automobiles at the port of arrival and list the Headla mp Cover on the price sticker as well as the invoice to the dealer.

3. Direct to consumer. The Company also desires to sell its Headlamp Cover directly to consumers, again, with no installation services offered.

CHRYSLER RULING

The Company is aware of a fairly recent denial of petition for rulemaking by the NHTSA regarding an attempt by Chrysler Corporation ("Chrysler") for an amendment to Standard 108 to allow Chrysler to offer removable transparent Headlamp Covers as original equipment on motor vehicles manufactured by Chrysler. It is our client's understanding that such petition was denied primarily because Chrysler's Headlamp Covers caused a reduction in light output between 7.2% and 15.5% and it was conceivable that certa in replacement headlamps purchased by consumers would produce an unacceptable light output when used in conjunction with the Chrysler Headlamp Cover.

The Company believes its proposed activities should be differentiated from those of Chrysler and should not be subject to federal regulation. The differences between the Company's proposal and Chrysler's proposal are: (i) the Company intends to market an d sell, but not manufacture and install, the Headlamp Cover, (ii) the Headlamp Cover is not a regulated safety device as defined in Standard No. 108, (iii) the Headlamp Cover will not be original equipment installed on an automobile at the time of purcha se and will not be installed by the Company. the distributor or the dealer, as prohibited by SAE J580 Sealed Beam Headlamp Assembly and (iv) the Headlamp Cover will not be marketed as a dealer installed option.

Additionally, the Chrysler ruling dealt specifically with the sealed beam headlamp assembly while the Company proposes to initially sell Headlamp Covers for the bulb and reflector type headlamp assembly found on many makes of cars sold in the United Stat es today.

However, similar to Chrysler, the Headlamp Cover, when used with original headlamps furnished by the manufacturers of the automobiles, will satisfy minimum federal photometric requirements.

CONCLUSION

The Company believes its activities should not be compared to those of Chrysler. It is aware that there may exist circumstances or possibilities where the Headlamp Cover may be misused, but intends to make information available to all parties who sell th e Headlamp Cover directly to consumers regarding photometric warnings. The product will also be packaged so that warnings are found on the exterior of the package to warn consumers about minimum federal photometric requirements. The interior of the packa ge will contain complete and accurate instructions for consumer installation of the Headlamp Cover.

The Company questions whether the Headlamp Cover or the contemplated activities of the Company, the distributors and dealers who will sell the Headlamp Cover, fall within federal regulated guidelines. Therefore,the Company hereby requests a ruling differ entiating its sale of the Headlamp Cover from Chrysler and permitting the Company. and the distributors and dealers to whom it sells the Headlamp Cover, to market and sell this product in accordance with the procedures discussed above.

We appreciate your attention to this matter and would be grateful for your prompt response.

If we can provide you with additional information, please do not hesitate to contact us.

Very truly yours,

Darryl M. Burman

ID: nht92-5.29

DATE: July 7, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Guy Dorleans -- International Regulatory Affairs Manager, Valeo

TITLE: None

ATTACHMT: Attached to letter dated 5/25/92 from Guy Dorleans to Chief Counsel, NHTSA

TEXT:

This responds to your letter of May 25, 1992, asking for confirmation that your interpretation of Motor Vehicle Safety Standard No. 108 is correct.

As you state, "Standard No. 108 specifies different levels of photometric requirements for signal lamps, depending on the number of lighted sections which they have", whether there are one, two, or three such sections (see Figure 1b). You further state that "the use of light-emitting diodes does not permit to distinguish at a glance several distinct lighted sections." Thus, when a single diode fails, "a variation will be easy to identify." Where "light-emitting diodes . . . are used in quantities bigger than three, we consider that the provision for 'lamps with three lighted sections' applies a fortiori, because its severeness will keep the user on the safe side, even though the standard does not specifically address the problems raised by the multiple light sources."

Standard No. 108 incorporates by reference two different SAE standards for turn signal lamps, J1395 APR85 for vehicles 2032mm or more in overall width, and J584 NOV84 for narrower vehicles. SAE J1395 establishes luminous intensity minima and maxima photometric requirements without reference to either compartments or lighted sections, and all that is required is for the lamp to comply at the individual test points specified. Section S5.1.1.31 clarifies that measurements of a multiple compartment turn signal lamps on vehicles to which SAE J1395 APR85 applies are to be made for the entire lamp and not for the individual compartments.

However, SAE J584 NOV84 continues to specify different minimum photometric requirements for one, two, and three "lighted sections." Because the SAE does not prescribe photometric requirements for more than three lighted sections, we have concluded that any device that contains more than three lighted sections need only comply with the requirements prescribed for three lighted sections.

ID: nht91-6.2

DATE: September 18, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: John E. Calow -- Senior Safety Engineer, Oshkosh Chassis Division

TITLE: None

ATTACHMT: Attached to letter dated 8-12-91 from John E. Calow to Taylor Vincon (OCC 6358)

TEXT:

This responds to your letter of August 12, 1991, to Taylor Vinson of this Office, asking for a verification of your understanding of certain requirements of Motor Vehicle Safety Standard No. 108.

Specifically, you ask:

"If the Brake Lights and Hazard Warning Lights are optically combined and both are activated (per federal regulations) which of the following will occur?

A) The brake lights will over-ride causing a steady light emission.

B) The hazard lights will over-ride causing a flashing light emission.

The answer to your first question is either "A" or "B" depending on how the manufacturer decided to wire the vehicle. The vehicular hazard warning signal operating unit is required to operate sufficient turn signal lamps to meet, as a minimum, the turn signal lamp photometric requirements of the standard (see S5.5.5) and function (see Table I or III) in accordance with SAE J910, January 1966. Since the vehicular hazard warning signal operating unit causes turn signal lamps to operate simultaneously, the turn signal lamps become hazard warning lamps that are optically combined with turn signal lamps. Should these hazard warning lamps also be optically combined with the brake lamps, as in your question, the standard does not provide any requirement for which, brake or hazard, should override.

You also ask:

"If the vehicle has a Center High Mounted Stop Lamp 'CHMSL' is it acceptable to have the Hazard Warning Lights over-ride the Brake Lights if the CHMSL has a steady light emitance (sic) upon brake application?"

The answer to this question is the same as the first. However, the CHMSL may not be combined, optically or otherwise, with any other lamp, and therefore it must remain operative upon brake application, even if the remaining stop lamps have been overridden.

I hope that this answers your questions.

ID: nht88-2.96

TYPE: INTERPRETATION-NHTSA

DATE: 08/10/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: STEPHEN BORKOWSKI

TITLE: NONE

ATTACHMT: LETTER DATED 06/24/88 TO ERIKA Z. JONES FROM STEPHEN BORKOWSKI, OCC - 2243

TEXT: Dear Mr. Borkowski:

This is in reply to your letter of June 24, 1988, asking about the legality of your "Bimmer Dimmer Safety Stop Light Concept". The concept has as its goal to lessen the chance of rear end collisions, by governing "the intensity of brake light brightness to indicate the degree of braking being applied to a vehicle."

Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Associated Equipment governs the legality of your concept. SAE Standard J586c Stop Lamps, August 1970, has been incorporated by reference, and specifies appropriate photometric requirements. Paragraph S4.5.4 of Standard No. 108 requires in pertinent part that "the stoplamps on each vehicle shall be activated upon application of the service brakes". We believe that this means that the lamp shall display the intensity that is designed into it to meet the photometrics of J586c. The photometrics are expressed in terms of a minimum for each test point and while there is not a corresponding maximum for each point, there is an overall maximum for the lamp. Thus, a lamp of variab le intensity could fall below the minimum at one or more test points or exceed the overall maximum. This, of course, would result in a noncompliance with Standard No. 108.

The agency examined the problem of rear end collisions and concluded that the most appropriate way to address it was through the center highmounted stoplamp, required equipment on passenger cars manufactured on and after September 1, 1985. This is inten ded not only to reduce the incidence of rear end collisions but also their severity. We are interested in the possibility of further reductions in rear end collisions. Because your concept may be of interest to that Office, I am forwarding a copy of yo ur letter to the agency's Associate Administrator for Research and Development for such further correspondence as may be warranted. We appreciate your interest in motor vehicle safety.

Sincerely,