Interpretation ID: nht76-2.34

DATE: 02/17/76

FROM: AUTHOR UNAVAILABLE; R. B. Dyson; NHTSA

TO: Wagner Electric Corporation

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of December 11, 1975, referring to our letter to Ideal Corporation of September 17, 1975. You commented that "customers believe that the NHTSA approves the unqualified use of variable-load flashers for replacement turn-signal applications." You have requested "confirmation that the intent of Standard 108, @ 4.5.6 is to only permit a variable-load flasher to be used only on an Excepted Vehicle." Your interpretation is incorrect.

Although the NHTSA does not approve of the use of variable-load turn signal flashers as replacement for fixed-load flashers, the choice of replacement equipment for a vehicle in use is that of the consumer, and is not subject to Federal control. We have no authority to require that the owner of a vehicle originally equipped with a fixed load flasher replace it with a fixed load flasher. This may be the reason for your confusion with respect to the NHTSA's reaction to Ideal Corporation's petition for rulemaking. It was not necessary to amend the standard as requested by Ideal, since it already allowed the type of replacement suggested, and this agency generally does not regulate modifications by consumers. Such an amendment would have been superfluous.

As indicated in our letter to Ideal, we continue to believe it preferable that consumers be informed that a variable load flasher will not provide an outage indication. To this end the NHTSA is considering rulemaking that would require labeling on containers of variable-load flashers.

Yours truly,

ATTACH.

WAGNER ELECTRIC CORPORATION

December 11, 1975

Frank A. Berndt -- Acting Chief Counsel, National Highway Traffic Safety Administration

Dear Mr. Berndt:

We have recently seen your letter of September 17, 1975 to Mr. Martin Rothfield, General Manager, Flasher Division, Ideal Corporation. In your letter there appears a statement which relates to the meaning and interpretation of the provisions of @ 4.5.6 of Standard No. 108 (as amended effective June 6, 1974).

Your letter is a discussion of the meaning of @ 4.5.6 regarding permitting the use of variable-load flashers. We believe your letter was intended to mean that a variable-load flasher may be used as replacement equipment for a fixed-load flasher on any of the vehicle classes specified in S2 as covered by the Standard pursuant to the provisions of @ 4.5.6. S2 specifies passenger cars, multi-purpose passenger vehicles, trucks, buses, trailers, (except pole trailers and trailer convertor dollies), and motorcycles. @ 4.5.6 provides an exception to its provisions for a truck (including a truck capable of accommodating a slide-in camper), bus, multi-purpose passenger vehicles (but only those 80 or more inches in overall width), or for any vehicle (including a passenger car and multi-purpose passenger vehicles less than 80 or more inches in overall width) equipped to tow trailers. That is to say, if any vehicle specified in S2 ordinarily requires an illuminated pilot indicator and also turn-signal lamp failure indication under @ 4.5.6, it would be excepted from those requirements and still be in compliance with the Standard if it was one of the class of vehicles within the meaning of the "except where" language of @ 4.5.6. Consequently, it would be a vehicle as specified in S2 as covered by the Standard pursuant to the provisions of @ 4.5.6.

Customers of Ideal Corporation see a much broader meaning to your letter. We disagree with that meaning and would like to have your concurrence with our interpretation of your letter as indicated above. In this connection we would like to trace the history of @ 4.5.6 of Federal Motor Vehicle Safety Standard 108, as we know it, since our interpretation is based upon such history.

Federal Motor Vehicle Safety Standard 108 ("Standard 108" or the "Standard") as it existed at the time of a Notice of Proposed Rule Making issued on January 3, 1970, provided in pertinent part as follows:

"@ 3.4.7 - Except on vehicles using variable-load flashers, a means for indicating to the driver that the turn-signal system is energized, shall be provided in accordance with SAE Standard J588d "Turn Signal Lamps", June, 1966."

In the Notice of Proposed Rule Making concerning Standard 108 which was issued on January 3, 1970 (35 FR 106), the preamble of the NPRM noted:

". . . @ 3.4.7 [of Standard 108] currently exempts all vehicles using variable-load flashers from the requirement for providing an indication to the driver that the turn-signal system is energized. This should apply only to those vehicles which are equipped to tow trailers (which require variable-load flashers and a turn-signal circuit), and it is proposed that the exemption be restricted accordingly (@ 3.5.6)."

The text of @ 3.5.6 as proposed in the NPRM reads as follows:

"All vehicles having turn-signal operating units shall have an illuminated pilot indicator. Except on truck tractors and vehicles equipped to tow trailers, failure of one or more turn-signal lamps to operate shall be indicated in accordance with SAE Standard J588d, "Turn Signal Lamps", June 1966."

In the ammouncement of the adoption of Rule Making issued on October 1970 (35 FR 16840) the preamble states:

"(p) It was proposed that all vehicles be equipped with a turn-signal pilot indicator, and that those vehicles not equipped to tow trailers (i.e. vehicles with a fixed load flasher) be provided with a lamp failure indicator . . . .

Many comments objected to the proposal for a lamp failure indicator on vehicles 80 inches or more in overall width. Heavy-duty flashers used on these vehicles are not presently available with a failure indicator. However, this type flasher is considerably more durable than the fixed load type, used on vehicles of lesser width, which indicates a lamp failure, and the continued use of present heavy-duty flashers for wider vehicles is warranted. Also, vehicles of 80 inches or more overall width are generally used commercially, and many of them are subject to the regulations of the Bureau of Motor Carrier Safety of the Federal Highway Administration; such vehicles are more frequently inspected and failed lamps more promptly repaired. For the foregoing reasons, vehicles of 80 or more inches overall width are excluded from the requirement in the amended Standard for a turn-signal lamp failure indicator." [Emphasis added.]

The Standard was thereupon amended, effective July 1, 1971, so that @ 4.5.6 provided:

"Each vehicle equipped with a turn signal operating unit shall also have an illuminated pilot indicator. Except on a truck, bus or multi-purpose passenger vehicle 80 or more inches overall width, and on any other vehicle equipped to tow trailers, failure of one or more turn-signal lamps to operate shall be indicated in accordance with SAE Standard J588d "Turn-Signal Lamps," June, 1966."

Following the foregoing amendment to Standard 108 on October 31, 1970 (35 FR 16840), petitions for reconsideration of the amendment were filed by a number of manufacturers. In response to those petitions the NHTSA on February 3, 1971 (36 FR 1896 to 1897) stated:

"8. Paragraph S4.5.6 International Harvester asked that the exemption for lamp outage indication be extended to vehicles equipped with auxiliary lamps or wiring, since these vehicles, like vehicles equipped to tow trailers, use variable-load flashers. However, fixed-load flashers providing lamp outage indication are available on the market for the increased load of an auxiliary lamp. The manufacturer can provide the appropriate flasher with foreknowledge of the intended end configuration of the vehicle, and International Harvester's petition is therefore denied."

@ 4.5.6 of the Standard was then the subject of the following proposed amendment published on January 3, 1974 (38 FR 822) pursuant to a petition by the Ford Motor Company.

"@ 4.5.6 Each vehicle equipped with a turn-signal operating unit shall also have an illuminated pilot indicator. Failure of one or more turn signal lamps to operate shall be indicated in accordance with SAE Standard J588d, "Turn-Signal Lamps", June 1966, except on a truck, bus, or multi-purpose passenger vehicle 80 or more inches in overall width, or a truck that is capable of accommodating a slide-in camper, or any other vehicle equipped to tow trailers, provided that an excepted vehicle is equipped with a variable-load flasher." [Emphasis added.]

@ 4.5.6 of the Standard as it existed prior to January 3, 1974, exempted from the requirement of turn-signal lamp failure indication a class of vehicles which included only a truck, bus, or multi-purpose passenger vehicle 80 or more inches in overall width, or any other vehicle equipped to tow trailers (the "Pre-1974 Excepted Vehicles"). Such class of vehicles had to use a variable-load flasher to ensure uniform flash rate so as to comply with the flash per minute requirements of Standard 108.

The 1974 proposed Rule Making originally was intended to only add "a truck that is capable of accommodating a slide-in camper" to the list of Pre-1974 Excepted Vehicles. Such exemption, as contained in the Standard prior to the 1974 amendment, was obviously a result of (Illegible Word) NHTSA's judgment that while it recognized the value of lamp failure indication, it also recognized that there were certain vehicles on which a uniform flash rate within the flash per minute perimeter of Standard 108 was more beneficial than a lamp failure indication, and on which uniform flash rate could not be obtained without the use of variable-load flasher which without special circuitry could not provide the lamp failure indication. Accordingly, the NHTSA obviously concluded that those vehicles and only those vehicles which would require a variable-load flasher so as to ensure a uniform flash rate, need not comply with the lamp failure indication requirements of @ 4.5.6.

In the announcement of the adoption of Rule Making issued on May 31, 1974 (39 FR 20063) Mr. James B. Gregory, Administrator, NHTSA, stated:

"The NHTSA has determined that the availability of variable load flashers ensuring flash rate control within the limits of the standard is desirable, and should be permitted on trucks capable of accommodating slide-in campers, despite the lack of lamp failure indication. In order to make clear the intent of the regulation, language is being added to specify that the exception applies only to vehicles with variable-load flashers."

@ 4.5.6 of the Standard was ultimately amended, effective June 6, 1974, (39 FR 20063) to read as follows:

"@ 4.5.6 Each vehicle equipped with a turn signal operating unit shall also have an illuminated pilot indicator. Failure of one or more turn signal lamps to operate shall be indicated in accordance with SAE Standard J588d, "Turn Signal Lamps", June, 1966, except where a variable-load turn signal flasher is used on a truck, bus, or multipurpose passenger vehicle 80 or more inches in overall width, on a truck that is capable of accommodating a slide-in camper, or on any vehicle equipped to tow trailers."

(The enumeration of vehicles in the "except where" language - to wit a truck, bus, or multi-purpose passenger vehicle 80 or more inches in overall width, a truck that is capable of accommodating a slide-in camper, or any vehicle equipped to tow trailers being hereinafter referred to as "Excepted Vehicles").

The Standard therefore presently requires each vehicle equipped with a turn-signal operating unit to also have an illuminated pilot indicator, and further requires turn-signal lamp failure indication (sentences 1 and 2, @ 4.5.6). The effect of that requirement is to either (1) mandate the use of a fixed load flasher on all vehicles, including certain vehicles in which the use of a fixed load flasher will increase the flash rate to a level generally exceeding the maximum specified by Standard 108, or (2) render such vehicles which must use a variable-load flasher to ensure a uniform flash rate and hence comply with the flash per minute requirements of Standard 108, to be in non-compliance with the provisions of $ 4.5.6 of Standard 108 relating to turn-signal lamp failure indication unless such vehicle is also equipped with special circuitry which is necessary to sense and indicate a failure in a variable-load system.

We submit that taken in its entirety the language of the Standard 108 and the history of its amendments require the interpretation that only those vehicles which require a variable-load flasher to ensure a uniform flash rate within the limits of Standard 108 should use a variable-load flasher and hence be exempted from the lamp failure indication provisions of Standard 108.

As further support of this we recall that Messrs. Arent, Fox, Kintner, Plotkin & Kahn filed a petition for rule making on January 19, 1971 on behalf of Ideal Corporation for an amendment of @ 4.5.6 of Standard 108 which proposed to add the following sentence to @ 4.5.6:

"Variable-load flashers are permitted as replacement equipment by Standard 108 for any vehicle contemplated by Paragraph S2 herein, where such devices shall operate in accordance with Tables I and III, as applicable."

The effect of such proposed amendment would have been to render meaningless the turn-signal failure indication requirement of Standard 108 because to permit variable-load flashers as replacement equipment for any vehicles contemplated by paragraph S2 (which includes passenger cars as well as the Excepted Vehicles) would mean no turn-signal failure indication on any passenger car having a variable-load turn signal flasher without needing one to ensure a uniform flash rate.

In reviewing the petition for rulemaking, Lawrence R. Schneider, Acting Chief Counsel, in a letter dated February 23, 1971 addressed to Mr. Earl W. Kintner, states among other things that:

"[Ideal] wishes to continue its established marketing practice of selling variable-load flashers in the after market and of advertising these flashers as "all purpose" flashers. We understand further that variable-load flashers frequently are purchased as replacements for fixed load flashers. When a variable-load flasher is installed as a replacement for an original equipment fixed load flasher, it does not provide the outage indication required by @ 4.5.6. Your client therefore questions whether, under these circumstances, it would properly certify compliance with Standard 108 when the standard becomes applicable to replacement equipment."

After reciting the sentence proposed to be added to the Standard by the petition, Mr. Schneider continues as follows:

"In our view Standard 108 permits your client to continue its practice and to properly certify compliance. S2 states in pertinent part that the standard applies to "lamps, reflective devices, and associated equipment for replacement of like equipment on vehicles to which this Standard applies." This means that equipment must comply with applicable requirements regardless of whether it is used as original or replacement equipment. For example, original and replacement variable-load flashers must both meet the appropriate requirements of SAE Standard J590b, "Automotive Turn Signal Flashers" October 1965. It is not intended that a variable-load flasher used as replacement for a fixed load flasher must provide the outage indication required by @ 4.5.6 for vehicles originally equipped with a fixed load flasher." [Emphasis added.]

Such statement was obviously intended to mean that should an owner of a vehicle requiring a variable-load flasher to ensure uniform flash rate choose to use a variable-load flasher, the manufacturer of that variable-load flasher did not have to have such variable-load flasher meet the turn-signal failure indication requirement of the Standard in order to certify that such variable-load flasher meets the other requirements of Standard 108. This is evidenced by the following language taken from Mr. Schneider's comment quoted above:

"For example, original and replacement variable-load flashers must both meet the appropriate requirements of SAE Standard J590b, "Automotive Turn Signal Flashers" October 1965. It is not intended that a variable-load flasher used as replacement for a fixed load flasher must provide the outage indication required by @ 4.5.6 for vehicles originally equipped with a fixed load flasher."

As long as a variable-load flasher is to be used on an Excepted Vehicle, Ideal could continue to certify compliance to Standard 108 even if it knew such flasher was to be used to replace a fixed load flasher on an Excepted Vehicle. Standard 108 provides a specific exception for that situation. Mr. Schneider knew that. He also knew that @ 4.5.6 required each vehicle equipped with a turn-signal operating unit shall also have an illuminated pilot indicator, and he knew that Ideal's proposed amendment would render such requirement meaningless and detract from safety. This is evidenced by the concern expressed in the following language quoted from Mr. Schneider's response to the Ideal's 1971 petition for rule making:

"Although there presently is no legal prohibition on the advertising and sale of variable load flashers, we believe that your client should, in the interest of safety, either market variable load flashers only as replacements for like items or call prospective purchasers' attention to the fact that the flashers do not provide an outage indication. While the owner of a vehicle originally equipped with a fixed load flasher should be free to balance the merits of a fixed load flasher (such as the outage indication) with those of a variable load flasher (such as the continuing flash), he should not be misled as to the characteristics of each type, including the one with which his vehicle was originally equipped.

Please advise us within 10 days of the date of this letter if you wish to pursue this petition further; otherwise we shall consider the petition withdrawn."

Ideal apparently then withdrew its petition.

Reference must again be made to the 1974 Rule Making (38 FR 822). It is clear that the meaning of the statements contained in your letter are clearly as we interpret them when read in light of such rule making. @ 4.5.6 as originally intended to be amended in January 1974 read as follows:

"Each vehicle equipped with a turn-signal operating unit shall also have an illuminated pilot indicator. Failure of one or more turn-signal lamps to operate shall be indicated in accordance with SAE Standard J588d, "Turn Signal Lamps", June 1966, except on a truck, bus, or multi-purpose passenger vehicle 80 or more inches in overall width, or a truck that is capable of accommodating a slide-in camper, or any other vehicle equipped to tow trailers, provided that an excepted vehicle is equipped with a variable-load flasher." [Emphasis added.]

It is obvious that the underlined language could be interpreted to read that it would appear to mandate equipping such vehicles with variable-load flashers originally. Such was not the intent, for they could be equipped with a fixed-load flasher (having turn-signal lamp failure indication but non-uniform flash rate), and hence the clarifying language was added to the June 6, 1974 final version of the rule which makes it clear that you need the pilot indicator and that the failure of the lamps to operate must be indicated in accordance with SAE Standard J588d, except where a variable-load turn signal flasher is used as either original or replacement equipment on an Excepted Vehicle.

Your reference to "any of the vehicle classes specified in S2 as covered by the Standard" obviously does not refer to all passenger cars per se (one class covered by S2 but not enumerated as such in the list of Excepted Vehicles in @ 4.5.6), but to passenger cars "equipped to tow a trailer." For you could not have intended to disregard the explicit provision for turn signal pilot indication and turn signal lamp failure indication which has been an integral part of Standard 108 since prior to January 1970.

In reliance upon your letter of September 17, 1975 to Ideal Corporation, customers believe that the NHTSA approves the unqualified use of variable-load flashers for replacement turn-signal applications. In view of the foregoing discussion contained herein we believe that your letter is not being read as you intended and we request confirmation that the intent of Standard 108, @ 4.5.6, is to only permit a variable-load flasher to be used only on an Excepted Vehicle.

That is our interpretation of @ 4.5.6 and we have so advised our customers. There is confusion on this point and we would like to have the matter cleared up.

Very truly yours,

Kenneth R. Arnold -- Secretary and General Counsel