Interpretation ID: 1984-1.44

TYPE: INTERPRETATION-NHTSA

DATE: 05/02/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Arent; Fox; Kinter; Plotkin & Kahn -- Lawrence F. Henneberger

TITLE: FMVSS INTERPRETATION

ATTACHMT: 6/7/74 letter from R.B. Dyson to Engineer/Transit Technology; 7/10/74 letter from R.B. Dyson to Flyer Industries Limited; 11/12/74 letter from R.B. Dyson to The Flxible Company; 4/1/88 (est) letter to Carl Kalpan from Michael M. Finkelstein (A33; Std. 108); 3/7/88 memo to Associate Administrator for Research and Development, NHTSA from Erika Z. Jones; 11/30/81 letter to Kenneth G. Moyer from Frank Berndt

TEXT:

Lawrence F. Henneberger, Esq. Arent, Fox, Kintner, Plotkin & Kahn 1050 Connecticut Avenue N.W. Washington, D.C 20036-5339

This is in reply to your letter of September 26, 1983 asking for an interpretation on behalf of your client, Jacobs Manufacturing Company.

You referenced an interpretation of August 31, 1978, which we gave you, also on behalf of Jacobs. Your client manufactures a diesel engine retarder system which would be provided a means to warn following drivers when the system was in use. The specific means of warning discussed in the 1978 letter was to connect the retarder activation switch to the hazard warning system, either as original or aftermarket equipment. We concluded that this installation augmented the hazard warning system, and thus did not impair the hazard warning system within the prohibition of paragraph S4.1.3 of Standard No. 108. We also concluded that it would not render inoperative the hazard warning system, and thus was not a violation of the "anti-tampering" provision of Section 108(a)(2)(A) of the Traffic Safety Act.

Apparently, a customer of Jacobs has asked it to wire its warning system through the stop lamps. A separate manually-operated switch will be provided. We understand that when the warning system is operational there is no difference of light intensities when the brakes are applied. You have asked us for a re-interpretation, on the basis of these new facts, that the changed retarcer warning will not violate either paragraph S4.1.3 or section 108(a)(2)(A). You believe that the warning system is still permissible, because the stop lamps when so used will nevertheless indicate that the vehicle is diminishing its speed by braking, and because of interpretations by this office that retarder controls can be incorporated with the foundation brake controls and activated with the foundation brakes.

We have reviewed the 1978 interpretation allowing use of the retarder system through the hazard warning system, and the two 1974 interpretations with reference to incorporation of supplementary braking devices with foundation controls. We agree with your interpretation that the latter interpretations impliedly require activation of the stop lamps when the supplementary braking devices are used. The agency is not prepared at this time to modify either interpretation, and you may inform your client that there is no Federal legal prohibition against its hiring the retarder to activate the stop lamps when it is in use.

However, we wish to point cut an area of potential risk which your client should weigh before proceeding to offer this option and which, if it occurred, could be viewed as an impairment of the stop signal within the prohibition of S4.1.3. Under the Jacobs plan, activation of the stop lamp when the retarder is engaged would indicate only a lessened rate of speed. Because there is no difference in intensity, a following driver would have no indication when the brake was applied to signal a normal or sudden stop, such as might be required when a child or animal runs into the roadway.

If you have any further questions, we shall be happy to answer them.

Sincerely,

Frank Berndt Chief Counsel

September 26, 1983

Frank Berndt, Esquire Chief Counsel National Highway Traffic Safety Administration Room 5219, 400 Seventh Street, S.W. Washington, D.C. 20590

Re: Request for Interpretation

Dear Mr. Berndt:

My client, Jacobs Manufacturing Company, manufactures and distributes a complete line of retarding devices which provide auxiliary retarding capabilities independent of a vehicle's foundation brakes and permit a heavy truck to travel at normal traffic speeds on long downgrades, under full control, as well as extending the service life of the foundation brakes.

On August 31, 1978, your office provided me with an interpretation (copy attached as Exhibit A), confirming that the connection of a retarder activation switch to the hazard warning system did not violate the requirements of Federal Motor Vehicle Safety Standard 108, nor the anti-tampering provisions set forth in Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act, as amended. Because of customer reports that such a retarder activation device, both as a practical and legal matter, should be connected to the rear brake lights, Jacobs now requests a written interpretation that connection of the retarder activation switch to the brake light system when a retarder is installed, either at the original equipment or aftermarket level, will not violate laws and regulations administered by the National Highway Traffic Safety Administration. More specifically, Jacobs seeks the agency's confirmation that a hand-operated retarder activation switch, connected to the brake light system to provide the same steady-on warning when activated, is not legally precluded in the view of NHTSA.

As was pointed out in our earlier submission in support of our request for an opinion concerning use of the hazard warning activation means for retardation signalling, in recent years the retarding forces generated by electric retarders have become capable of producing significant deceleration of a large truck so equipped. For this reason, Jacobs believes that there must be an effective means of providing a warning to following vehicles when a retarder is in use. Using the brake lights in their regular mode as the retarder warning light does not appear to violate Federal Motor Vehicle Safety Standard 108 or the anti-tampering clause of the National Traffic and Motor Vehicle Safety Act, for the reasons as discussed below.

In addition to the wording in FMVSS 108, a review of the applicable SAE Standard, SAE J586c (currently referenced by FMVSS 108), does not appear to preclude the use of stop lamps as a steady-burning retarder warning signal. Indeed, S 2.1 of the standard, which provides a definition of "stop lamps," strongly suggests that the warning light would be a permissible use. The definition states that "stop lamps" are "lamps giving a steady light to the rear of a vehicle or train of vehicles to indicate the intention of the operator of a vehicle to stop or diminish speed by braking." This is precisely the intention and effect of the retarder activation signal.

The brake light warning means has received further support in a series of formal interpretations issued by your office, to the effect that retarder controls can be incorporated with the foundation brake controls and activated with the foundation brakes. Clearly, if one can connect the retarder controls into the foundation brake controls, the application of the retarder will automatically trigger the rear stop lights. See undated letter from Mr. Lawrence Schneider, NHTSA Chief Counsel, responding to letter dated April 2, 1974, from Mr. Alden G. Olson, Municipality of Metropolitan Seattle; letter of July 10, 1974, from Mr. Richard Dyson, NHTSA Assistant Chief Counsel, to Mr. A. Deane, Flyer Industries, Ltd., Winnipeg, Canada; and letter of November 12, 1974, from Mr. Dyson, then Acting Chief Counsel of NHTSA, to Mr. Stanley Frye, The Flxible Company, Loudonville, Ohio. Copies of these letters are attached hereto as Exhibit B.

The only caveat detectable in the pertinent NHTSA interpretations appears to be that use of the retarder in conjunction with the brake system and rear brake lights should not affect the rear stop lights in such a way that they no longer comply with the requirements of FMVSS 108. Use of a hand-operated switch to activate the brake lights when the retarder is in use for purposes of signalling following drivers does not raise this difficulty under applicable law and regulations.

We appreciate your consideration of our request for interpretation, and encourage you to contact the undersigned, should questions remain.

Sincerely,

Lawrence F. Henneberger

cc: Z. Taylor Vinson, Esquire (Prior interpretation letters omitted here.)