Interpretation ID: nht79-2.2

DATE: 09/28/79

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: P. L. Whitehorn

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of August 31, 1979, following your discussion with Mr. Vinson of this office.

Your client, ZEMCO Inc., has developed a fuel saving device for the automobile aftermarket the operation of which you have described as follows:

". . . if a vehicle approached a read light requiring the driver to stop . . . several seconds after the accelerator was released and the automobile stopped the device would automatically shut off the engine. To restart, the driver would press the accelerator pedal and the device would automatically trigger the ignition to start the engine."

In your opinion two Federal Motor Vehicle Safety Standards appear to conflict with the ZEMCO device, Standards Nos. 102 and 124. Paragraph S3.1.3 of 49 CFR 571.102, Motor Vehicle Safety Standard No. 102 imposes a starter interlock requirement under which "the engine starter shall be inoperative when the transmission shift lever is in a forward or reverse drive position." You point out that ZEMCO's device "has been designed to automatically restart the engine with the transmission in either forward or reverse." Paragraph S5.1 of 49 CFR 571.124, Motor Vehicle Safety Standard No. 124 requires the throttle to return to the idle position within a specified time period "whenever the driver removes the opposing actuating force." The ZEMCO device shuts off the engine several seconds after driver's foot is removed from the accelerator.

You have cited Section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act which prohibits the manufacture of any item of motor vehicle equipment that does not conform to Federal motor vehicle safety standards, and Section 108(a)(2)(A) which forbids manufacturers, distributors, dealers and motor vehicle repair businesses from "Knowingly rendering inoperative . . . any device or element of design installed on or in a motor vehicle. . . in compliance with an applicable Federal motor vehicle safety standard.

You have asked whether the ZEMCO device is in conflict with the Act.

The ZEMCO device does not violate Section 108(a)(1)(A) of the Act. Although it is an item of "motor vehicle equipment" as defined by Section 102(a) of the Act, there is no Federal motor vehicle safety standard applicable to a device of this nature, so that its manufacture and sale would not be a violation of Section 108(a)(1)(A).

With respect to Section 108(a)(2)(A) we do not see that the device conflicts with Standard No. 124 as long as the device does not prevent the accelerator from returning to idle in the standard's specified time period before the engine is shut off. The ZEMCO device appears to come into play after the accelerator has return to idle, a period of time outside the coverage of the standard.

You are correct, however, in your concern with Standard No. 102 as the activation of the starter in forward or reverse gear is diametrically opposed to the standard's requirement. Its installation would appear to "render inoperative" the starter interlock that is required by Standard No. 102. Although ZEMCO's manufacture of the device would not violate Section 108(a)(2)(A), its installation by a person other than the vehicle owner would appear to.

You are also correct that this agency has not issued the regulation authorized by Section 108(a)(2)(B) under which any person may be exempted from Section 108(a) (2) (A) upon a determination that the exemption is consistent with motor vehicle safety and the purposes of the Act.

If you wish to petition the agency to issue such a regulation or to amend Standard No. 102 in an appropriate manner you have, of course, the right to do so, and I enclose a copy of our petition procedures, 49 CFR Part 552, for your information.

I return your patent materials herewith.

SINCERELY,

CANNADY & WHITEHORN

August 31, 1979

Frank Berndt, ESQ Office of the Chief Counsel National Highway Traffic Safety Administration

RE: Petition for Exemption from Section 108 of Title I of the National Traffic and Motor Vehicle Safety Act of 1966.

Dear Mr. Berndt:

We are counsel for ZEMCO, INC., a California corporation. ZEMCO is in the process of developing a fuel or gasoline saving device for the automobile aftermarket. A literal reading of Section 108 of Title I of the National Traffic and Motor Vehicle Safety Act of 1966 suggests that ZEMCO's fuel saving device is in conflict with Motor Vehicle Safety Standards 102 and 124. We discussed this problem with Mr. Benson of your office, earlier this week, and he advised us to furnish your office with more particulars. Mr. Benson also suggested that we request a clarification and interpretation of the Act as it applies to ZEMCO's device.

The ZEMCO fuel saving device will automatically control the shutdown and restarting of a vehicle engine in order to conserve fuel at times when the vehicle would be otherwise stopped, with the engine running at idle speed. For example if a vehicle approached a red light requiring the driver to stop at the limit line, several seconds after the accelerator was released and the automobile stopped the device would automatically shut off the engine. To restart, the driver would press the accelerator pedal and the device would automatically trigger the ignition to start the engine. A copy of ZEMCO's confidential patent application is enclosed which more fully describes the fuel saving device.

Two motor vehicle safety standards appear to conflict with the application of ZEMCO's device to motor vehicles. Standard No. 102 requires an interlock to prevent starting of the car with the transmission shift lever in the forward or reverse drive positions. ZEMCO's fuel saving device has been designed to automatically restart the engine with the transmission in either forward or reverse.

Standard No. 124 requires the vehicle's throttle to return to the idle position when the driver's foot is removed from the accelerator. ZEMCO's device would of course go further and shut off the engine several seconds after the driver's foot is removed from the accelerator.

As you know, Section 108(a)(1)(A) of the Act provides in part that "no person shall manufacture for sale . . . any . . . item of motor vehicle equipment . . . unless it is in conformity . . . " with the motor vehicle safety standards. Subparagraph (2) (A) further provided in part that "no manufacturer . . . shall knowingly render inoperative . . . any device or element of design installed on or in a motor vehicle . . . in compliance with an applicable Federal motor vehicle safety standard . . . "

We understand from our discussions with Mr. Benson that the Secretary of Transportation has not yet issued regulations for the granting of exemptions from the act. However it is our understanding that the Office of the Chief Counsel will issue interpretations and clarify potential conflicts between safety standards and proposed automotive devices. The ZEMCO fuel saving device, although in technical conflict with the safety standards mentioned above, has been carefully designed to be compatible and consistent with motor vehicle safety.

Therefore, on behalf of ZEMCO, we respectfully request a clarification and interpretation of the Act particularly with respect to the potential conflict between Safety Standards Nos 102 and 124 and ZEMCO's fuel saving device. Thank you for your consideration of this matter.

Phillip L. Whitehorn

cc: JOAN CLAYBROOK; ZEMCO, INC.