Interpretation ID: 16119.wkm

Mr. Richard T. Ince
C & J Technology, Inc.
9010 Pillsbury Avenue
Bloomington, MN 55420

Dear Mr. Ince:

Please pardon the delay in responding to your letter addressed to Georgia Jupinko, now Georgia Chakiris of this agency's Region 6 office, which was forwarded to this office for reply. You asked in your letter how to go about convincing the Federal government that your product, called the "Brake Alert" system, meets or exceeds applicable Federal motor vehicle safety standards (FMVSS). Based on the information you submitted, the "Brake Alert" neither meets nor exceeds FMVSSs, but could be installed on existing vehicles as an add-on, as discussed below.

You stated that you are marketing a brake monitoring device called "Brake Alert" that applies to all brake systems that use a push rod to activate the brakes. You stated that in your system, each brake has a sensor feeding into a black box that gives the driver a visual readout each time the brakes are applied. A dash-mounted monitor with LED lights for each wheel shows green lights if the brakes are functioning properly and a red light for each wheel on which the brakes malfunction or are not properly adjusted. If the monitoring system itself fails, all lights will turn red. The black box retains the last 64 brake applications in its memory, which can be checked by maintenance or law enforcement personnel by holding a device next to it. The memory can be removed from the black box and put into a computer for a printout showing the applications. Finally, you stated that you believe that your "Brake Alert" system meets or exceeds the requirements of "49 CFR CH.V (10-1-95) SECT.5.2.2(B)," which we assume refers to paragraph S5.2.2(b) of Federal Motor Vehicle Safety Standard No. 121, Air brake systems (49 CFR 571.121).

The National Highway Traffic Safety Administration (NHTSA) has the statutory authority to issue FMVSSs applicable to new motor vehicles and new items of motor vehicle equipment. Federal law establishes a self-certification system in which motor vehicle and equipment manufacturers themselves certify that their products comply with all applicable FMVSSs. Therefore, NHTSA neither tests, approves, disapproves, endorses, nor certifies compliance of products prior to their introduction into the retail market. NHTSA enforces compliance with the FMVSSs by purchasing motor vehicles and equipment and testing them for compliance with applicable standards. NHTSA also investigates safety-related defects. If a vehicle or item of replacement equipment is found not to comply with applicable standards or is found to have a safety-related defect, the manufacturer of that product is responsible for remedying the noncompliance or defect at no charge to the customer.

Subsection S5.1 of FMVSS No. 121 specifies brake requirements for trucks and buses, while subsection S5.2 specifies requirements for trailers. It was not clear from your letter that the "Brake Alert" system can be installed on trailers, but since you cited paragraph S5.2.2(b), which applies to trailers, we assume your "Brake Alert" is capable of being installed on trailers as well as single-unit vehicles. Thus, since brake malfunction or maladjustment anywhere in the tractor and trailer brake system is displayed in the cab, both S5.1 and S5.2 would apply. Paragraph S5.2.2(b), which reads essentially the same as paragraph S5.1.8(b), provides as follows:

(b) Brake indicator. For each brake equipped with an external automatic adjustment mechanism and having an exposed pushrod, the condition of service brake under-adjustment shall be displayed by a brake adjustment indicator in a manner that is discernible when viewed with 20/40 vision from a location adjacent to or underneath the vehicle, when inspected pursuant to S5.9.

Pertinent to this discussion, both S5.1.8(b) and S5.2.2(b) require that each service brake system with an exposed pushrod have a brake adjustment indicator viewable from outside the vehicle. Your informational material does not indicate whether the "Brake Alert" has a monitor visible from outside the vehicle. If the "Brake Alert" system displays brake malfunction or maladjustment inside the vehicle only, it does not meet, and therefore does not exceed, the requirements of either S5.1.8(b) or S5.2.2(b). Further, the "Brake Alert" system cannot substitute for the brake adjustment indicator required by S5.1.8(b) and S5.2.2(b) of Standard No. 121. However, so long as it does not interfere with the required brake adjustment indicator, it could be installed as an original equipment option or as an add-on to an existing vehicle.

The promotional literature enclosed with your letter indicates that the "Brake Alert" uses a "position sensor" to monitor the brake. It was not clear where or how the position sensor and related components are installed. The installation of these components must not interfere in any way with the operation of the pushrod or the required brake adjustment indicator, which normally consists of an indentation in the pushrod. If it does, that could constitute a violation of Title 49, U.S. Code, 30122, Making safety devices and elements inoperative (copy enclosed), which prohibits making inoperative any part of a device or element of design installed on or in a motor vehicle in compliance with any FMVSS. Violations of this provision can result in substantial civil penalties.

Finally, it is noted that the promotional brochure enclosed with your letter contains a statement that "Meets or exceeds U.S. FMVSS #121 . . . ." As discussed above, that is not a true statement if the "Brake Alert" offers in-cab only brake monitoring. It is requested, therefore, that you remove such statements from your promotional or advertising materials in order to avoid any misrepresentations to or misunderstandings by the public.

For your further information, I am enclosing fact sheets entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, and Where to Obtain NHTSA's Safety Standards and Regulations.

I hope this information is helpful to you. Should you have additional questions or need further information, feel free to contact Walter Myers of my staff at this address or at (202) 366-2992, or by FAX at (202) 366-3820.

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
Ref:121
d.5/1/98