ID: nht91-7.48

DATE: December 16, 1991

FROM: William R. Willen -- Managing Counsel, Product Legal Group, American Honda Motor Co., Inc.

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 1/28/92 from Paul Jackson Rice (Stephen P. Wood) to William R. Willen, Esq. (A39; Std. 123)

TEXT:

I am writing to you seeking an interpretation.

FMVSS 123, in section 5.2.1. contains the following language: "if a motorcycle is equipped with a self proportioning, or an antilock braking device utilizing a single control for both front and rear brakes, the control shall be located and operable in the same manner as a rear brake control."

Honda is in the final stages of developing an advanced version of their proportional braking system for motorcycles. It offers:

a) Full proportioning front and rear when utilizing either the front hand control, or the rear foot control.

In order to fully comply with the "letter" of the standard, this system would seem to be out of compliance when the front hand brake is applied.

Honda feels that it is an obvious safety advantage to offer the full extent of proportioning, with "any" brake application! Honda also feels that the authors of 123 did not foresee the possibility of proportioning, being available with the application of the right, front handlebar lever.

Since the "full spirit" of FMVSS 123 is being met, Honda is seeking an interpretation of this system that would permit the use of these advancements. Telephone conversations have taken place between Doug Toms, an advisor on the project, and Steve Wood. Honda stands ready to answer any questions, or provide additional technical detail should that be desired.

Honda will be conducting sales "decision meetings" on Jan. 22, and 23, 1992. It would be most helpful if some "feeling" for your response could be gained by telephone just prior to those dates.

ID: nht91-7.49

DATE: December 18, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Masashi Maekawa -- Director, Technical Division, Ichikoh Industries, Ltd.

TITLE: None

ATTACHMT: Attached to letter dated 11-27-91 from Masashi Maekawa to Paul Jackson Rice (OCC 6714)

TEXT:

This responds to your letter of November 27, 1991, asking for an interpretation of Motor Vehicle Safety Standard No. 108 as it relates to a specific vehicle design.

Your letter depicts a combination tail/stop lamp that would be mounted on the deck lid ("Lamp B"), immediately adjacent to a combination tail/stop lamp that is mounted on the vehicle body ("Lamp A"). Each lamp complies with the requirement for effective projected luminous lens area, but neither complies with photometric requirements. You have asked whether, under S5.1.1.6 it is possible to consider the two adjacent lamps as one lamp for purposes of measuring the photometrics for tail and stop lamps, and, if so, whether the requirements for one or two lighted sections will apply.

S5.1.1.6 covers requirements for replacement stop lamps, and does not appear relevant to our question. We have, however, addressed before the question that you raise. It is not possible to consider the two adjacent lamps as one lamp for purposes of measuring the minimum photometrics required under Standard No. 108. We regard the lamp that is located on the body, Lamp A, as the lamp that must be designed to conform to all applicable requirements of Standard No. 108, including photometrics. In that location, Lamp A meets the requirement that stop/taillamps be located as far apart as practicable, whereas Lamp B would not. The requirements that would apply to Lamp A are those for lamps with a single lighted section. Since your letter indicates that Lamp A does not meet photometric requirements, Lamp A would be a nonconforming lamp. Lamp B is permissible as supplementary lighting equipment and need not meet the photometric or location requirements in order for the vehicle to comply with the standard. Thus, Lamp B would be permissible in its present state. (The sole restriction that Standard No. 108 imposes upon supplementary lighting equipment is that it must not impair the effectiveness of required lighting equipment; that possibility does not appear to exist in this design, where the two lamps are intended as complementary).

ID: nht91-7.5

DATE: November 11, 1991

FROM: Richard Gray -- Secretary, Sports Car Club of New Zealand, Inc.

TO: Paul Jackson Rice -- Office of Chief Council, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 1/23/92 from Paul Jackson Rice (by Stephen P. Wood) to Richard Gray (A39; VSA S108(a)(1)(A))

TEXT:

I am writing to in the hope that your Department may be able to assist our Organization in overcoming a couple of vehicle standards problems. The New Zealand Ministry of Transport is introducing new Vehicle Safety Standards similar to those in operation in the USA, United Kingdom, Europe and Australia. Their main thrust is to align the NZ Vehicle Standards with those of USA, Europe and UK. In doing so the cars built by the major manufacturers will require the local importers to ensure that the vehicles they import or assemble locally meet the Vehicle Standards of any of the above named countries.

However, certification of Low volume vehicles (those built in numbers less than 20O per year) is being entrusted to four organizations of which the Sports Car Club of New Zealand is playing a key role in helping to set up the certification system for all low volume vehicles including modified cars.

With the introduction of the Standards we are faced with two major problem areas; glazing and seat-belts. New Zealand has a number of privately imported American built sports cars such as the Montage, GT40, replicas, Cobra replicas, and Cheetahs to name just a few, which are facing the prospect of being legislated off our roads.

GLAZING:

The problem is that many of these cars are fitted with acrylic or polycarbonate side and/or rear glazing. The N.Z. Ministry of Transport is saying that unless we can provide proof from the relevant authorities that such glazing is permissible for use in Low Volume vehicles respective countries of origin, then they will have to have moulds made and new safety glass screens manufactured for fitment. This ruling will apply retrospectively back to 1976.

The cost of such an exercise would be prohibitive and would result in most of these cars being put off the road for good. The introduction of such a regulation would also rule out the possibility of any further low volume cars from being imported into NZ should they also be fitted with such glazing.

The fact that such cars were sold in their countries of origin with acrylic or polycarbonate screens does not help our case. The MOT say that we have no proof that the manufacturers of these cars actually complied with the regulations of their country, or that their countries of origin have any special exemptions in place for low volume vehicles.

To overcome this problem the NZ MOT require us to provide proof from the appropriate authorities in USA and UK to this effect.

A prompt reply from your Department is a matter of urgency as the introduction of the N.Z. Standards governing alternative glazing materials is set for January 1992.

Could you please reply stating if such materials are permissible, and if so, what types are allowed for use (e.g. acrylic, polycarbonate, abrasion resistant films etc), and under what circumstances, placement or conditions they are permitted.

FULL HARNESS SEATBELTS:

The fitment of 3-point dual sensitive seatbelts to the outboard front seating positions on new cars has been mandatory for some time in NZ, but there has been nothing stopping people from fitting full harness seatbelts if they so desired. However, the NZ MOT are about to stop this practice and in fact retrospectively apply the new ruling.

We believe that any person should be allowed to take extra safety precautions to protect themselves over and above those standards set down by the authorities, provided they do not endanger other people. in this regard we have noticed that quite a number of Low Volume American built sports cars come fitted with full harness seatbelts.

Again it would greatly help our case if we could have the official ruling on the provisions for fitment and use of full harness seatbelts in America.

FRONT NUMBER PLATES:

This problem is not quite so urgent, but the NZ MOT have recently decided not to allow the fitment of flexible registration plates to the front of vehicles. This is creating quite a problem with cars such as E type Jaguars, Cobra Replicas and even modern production sports cars like the MX5 to name just a few. The shape of their nose section does not allow for the fitment of rigid metal plates without them either interfering with radiator cooling or becoming a dangerous protrusion.

It would appear that the American regulations allow for the fitment of either alternative flexible registration plates, or none at all. If this is so, a copy of your registrations governing their fitment would be most helpful.

In anticipation of an early reply, I would like to take this opportunity to thank you for your time and assistance.

ID: nht91-7.50

DATE: December 20, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Deborah K. Nowak-Vanderhoef, Esq. -- General Motors Corporation, Legal Staff

TITLE: None

ATTACHMT: Attached to letter dated 12-2-91 from Deborah K. Nowak-Vanderhoef to Paul Jackson Rice (OCC 6728)

TEXT:

This responds to your request for an interpretation of Standard No. 209, Seat Belt Assemblies (49 CFR S571.209). Specifically, you asked if General Motors Corporation (GM) could include the term "dynamically-tested" in the label required by S4.6(b) of Standard No. 209. The answer is that GM may do so.

Prior to September 1, 1992, S4.6(b) of Standard No. 209 requires a dynamically tested manual belt to be labeled with the following statement: "This dynamically-tested seat belt assembly is for use only in (insert specific seating position(s), e.g., front right) in (insert specific vehicle make(s) and model(s)). However, a November 4, 1991 final rule, published at 56 FR 56323, amended S4.6(b) by deleting the term "dynamically-tested" from the required label, effective September 1, 1992. GM would like to continue to include the term "dynamically-tested" on its labels.

NHTSA has often addressed the issue of whether additional information may be provided along with information that is required to be labeled on the product in the context of our safety standards that apply to tires. NHTSA has consistently stated that additional information may be included on tires, provided that the additional information "does not obscure or confuse the meaning of the required information, or otherwise defeat its purpose." See, e.g., our May 31, 1988 letter to Mr. Garry Gallagher of Metzeler Motorcycle Tire. This is the same test we would apply in any of our safety standards for additional information that is provided along with required labeling information.

Applying this test to the situation at hand, the purpose of the labeling requirements in Standard No. 209 is to minimize the likelihood of improper installations of dynamically-tested manual belts, by specifying the particular vehicles and seating positions in which the belts are designed to be installed. GM's proposed labels would provide the information about the particular vehicles and seating positions in which the belts are designed to be installed on the label of these belts. The only difference between GM's proposed labels and the exact language specified in S4.6(b) of Standard No. 209 would be that GM's proposed labels would describe the belts as "dynamically-tested seat belt assemblies," instead of "seat belt assemblies." We do not see how this additional description of the belts, which is accurate and consistent with the agency's use of the term "dynamically-tested," would obscure or confuse the meaning of the required information or otherwise defeat its purpose.

Therefore, GM's proposed labeling would be permitted under the provisions

of S4.6(b) of Standard No. 209 that take effect September 1, 1992.

Enclosed with your letter was a petition for reconsideration that you asked be considered if the agency determined that the current language of S4.6(b) of Standard No. 209 prohibited the additional information to be provided on the GM labels. Since NHTSA has concluded that Standard No. 209 permits the additional information, we are disregarding that petition for reconsideration and will take no action on it.

ID: nht91-7.51

DATE: December 20, 1991

FROM: Robert W. Smith -- President, Auto Safety Corporation

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 1/23/92 (est) from Paul Jackson Rice to Robert W. Smith (A39; Std. 108)

TEXT:

Thank you for your letter of November 15, 1991 in which you confirmed the points of our earlier meeting with Mr. Vinson. Also, I would like to provide an answer to the question you raised as to "...the effect, if any, that the installation of your combination license plate frame/supplementary stop lamp(s) with requirements of Standard No. 108."

We recognize the prohibition specified in the Safety Act against tampering with the motor vehicle license plate lamps, and would call your attention to the fact that those license plate lamps are for the sole purpose of illuminating the license plate itself and are part of the motor vehicle electrical circuit that also includes the front headlights and rear red driving lights. Our device, the license plate frame with built-in supplementary flashing/steady burning stop lamp, is indeed an aftermarket device and is not connected to the aforementioned motor vehicle headlight/rear light electrical circuit and therefore, does not have any effect on that system. Furthermore, our engineering precludes any physical interference and obstruction of visibility of the vehicle's license plate.

In addition, our company recognized the above safety concerns and based its engineering of the license plate stop lamp device on our patented electronic circuitry. It received a patent, in large part, because of its fail-safe features which permit increased safety while operating the motor vehicle.

I hope this explanation clears up your uncertainty about the operation of our device and I would appreciate a response from your office to that effect.

ID: nht91-7.52

DATE: December 20, 1991

FROM: James C. Hansen -- Product Development, Model E Concepts

TO: Office of the Chief Council, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 2/19/92 from Paul Jackson Rice to James Hansen (A39; Part 567)

TEXT:

In January 1992, we will begin an engineering study relating to a proposed alteration of a vehicle that has been previously certified in accordance with National Traffic and Motor Vehicle Safety Act of 1966 (Vehicle Safety Act, 15 U.S.C. 1381 et seq.).

More specifically, this proposed alteration would be conducted on new and used automobiles, vans, and pickups. The purpose of the alteration, is to convert these vehicles to a hybrid version of an electric powered highway vehicle, and to do so without infringing upon the safety provisions of the vehicle as it was originally manufactured. At the present time, our alteration plans include removal of the internal combustion engine and associated support components, and on certain vehicles it may include removal of the transmission. Light duty suspension and brake systems would be replaced with heavy duty factory components, when required, to accommodate the added weight of the battery pack. In addition, to strengthen the unibody for accommodating the added weight of the battery pack, and to provide attach points for the electric drive, aluminum beams would enclose the exposed uniframe members of the original structure. Our alterations do not include changing the body or frame by making any cuts into these original structures.

Our purpose in this endeavor is to eventually offer these types of vehicles for sale to fleet operators and the general public, while complying with all safety requirements. We are aware of the temporary exemptions from motor vehicle safety standards provided in Part 555 of the Act, but prefer, for resale purposes, to be in compliance of the original standards.

Prior to beginning this exercise, we would like to more clearly understand the provisions of the safety regulations. We understand the type of alterations we plan to conduct on new and used vehicles are covered in Part 567.7 - Requirements for persons who alter certified vehicles. As I stated in the above paragraphs, we do not plan to make any changes to the original unibody structure, only to strengthen it for the additional weight of the battery pack. Therefore, we would only be adding additional weight to the vehicle, but not beyond the original Gross Vehicle Weight Rating (GVWR) or Gross Axle Weight Ratings (GAWR). In addition, the center-of-gravity of the vehicle would possibly be changed depending upon the locations of the added weight. In referring to Part 567.7, we understand our only requirement, because of the change in vehicle weight, is to affix to the vehicle an additional label (as described) stating the modified GVWR, and GVAR.

We are requesting, based upon your interpretation of Part 567.7, if the vehicle, altered as described, would be in compliance of all NHTSA requirements.

If you require additional information regarding this matter, I would be happy to respond. Your attention to this request is appreciated!

ID: nht91-7.53

DATE: December 23, 1991

FROM: Thomas A. Gerke -- Smith, Gill, Fisher & Butts

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

COPYEE: Marc Iacovelli -- President, Rally Manufacturing, Inc.

TITLE: FMVSS No. 107, Reflecting Surfaces

ATTACHMT: Attached to letter dated February 3, 1992 from Paul Jackson Rice to Thomas A. Gerke, Esq. (A39; Std. 107; 108(a)(2)(A))

TEXT:

I am writing on behalf of Rally Manufacturing, Inc. ("Rally").

The purpose of this letter is to obtain confirmation of the National Highway Traffic Safety Administration's ("NHTSA") position with respect to Federal Motor Vehicle Safety Standard No. 107, Reflecting Surfaces. Specifically, Rally needs confirmation that FMVSS 107 does not apply to replacement windshield wiper arms and blades ("Wiper Blades") sold by a distributor/wholesaler to retail stores and other similar customers where the Wiper Blades are not installed by the distributor/wholesaler.

On May 14, 1991, Rally received a letter from NHTSA (NEF-31LLo IR 934 copy enclosed). After devoting significant management time to the matter and incurring substantial legal expenses, Rally was able to convince NHTSA that the position taken was contrary to applicable regulations and the positions taken by NHTSA in the record of various proposed rule making proceedings. IR 934 was closed. (See enclosed NHTSA letter dated August 7, 1991).

At the time of receipt of the May 14, 1991 letter, Rally discontinued the production of the products identified in the correspondence. Although the August 7, 1991 letter closed IR 934, Rally did not resume production. This has put Rally at a very significant competitive disadvantage and is resulting in the loss of sales, market share and shelf space to Rally's competition. Specifically, in reliance on your letter dated September 3, 1991, Rally's competitors (one of which is Custom Accessories, Inc.) have continued to offer a broad product line which includes products identical or very similar to the product discontinued by Rally. Again, this broader product line has put Rally at a competitive disadvantage and resulted in the loss of sales, market share and shelf space.

The situation has left Rally with no choice but to reintroduce the products in question in order to be able to offer a competitive product line. The difference between the positions taken in the May 14 letter to Rally and the September 3 letter to Custom Accessories, Inc. is the reason Rally seeks the requested written confirmation.

Your cooperation in immediately confirming to the undersigned on behalf of Rally that the NHTSA position is and continues to be (as set forth in your September 3 letter) that the sale of Wiper Blades by a wholesaler/distributor to retail stores and other similar customers without any installation service by the wholesaler/distributor is not (i) prohibited by FMVSS No. 107; (ii) a violation of Section 108 (a)(2)(A) of the National Traffic and Motor Vehicle Safety Act; or (iii) prohibited by any other applicable authority enforced by the NHTSA. Our telecopier number is 816-391-7600.

If there are any questions concerning the above or the requested letter, please telephone me immediately. Otherwise, thank you in advance for your prompt confirmation of NHTSA's position.

ID: nht91-7.54

DATE: December 26, 1991

FROM: Charles W. O'Connor -- Assistant Secretary, Echlin Inc.

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

COPYEE: C. Scott Greer; Lawrence F. Henneberger; Jon P. Leckerling; Joan McKinnon; Larry Pavey

TITLE: Re: Commander and Voyager Electronic Brake Controls

ATTACHMT: Attached to letter dated 3/26/92 from Paul J. Rice to Charles W. O'Connor (A39; Std. 108)

TEXT:

This letter comments on your letters of May 23, 1991 and November 22, 1991 to Mr. William J. Lewandoski of Kelsey-Hayes Corporation ("Kelsey-Hayes"), a manufacturer of electronic brake controls and a competitor of Tekonsha Engineering Company ("Tekonsha"), the manufacturer of the Commander and Voyager electronic brake controls. Tekonsha is a subsidiary of Echlin Inc. Our comments are first directed at your conclusion in your November 23, 1991 letter that Tekonsha's Commander and Voyager electronic brake controls "appear to violate Standard No. 108 and the National Traffic and Motor Vehicle Safety Device." The reference to "Device" and precise meaning of the language following the words "Standard No. 108" is not clear to us.

Section S4.5.4 of Standard No. 108 (49 CFR Section 571.108) provides in pertinent part that "The stoplamps on each vehicle shall be activated upon application of the service brakes." Your interpretation appears to be based on the theory that the trailer brakes, standing alone, are "service brakes." It seems clear to us that "service brakes" refers to the brakes of each vehicle together because it takes both sets of brakes to stop both vehicles in a reasonably effective manner. This interpretation is consistent with the common sense view that the service brakes are applied by stepping on the foot pedal as well as the wording of Section 24603(f) of the California Vehicle Code which states, in pertinent part, "Stoplamps shall be activated upon application of the service (foot) brake..."

The term "service brake" is defined in the Federal Motor Vehicle Safety Standards at 49CFR Section 571.3 as follows: "'Service brake' means the primary mechanism designed to stop a motor vehicle." Service brakes are those brakes normally used to stop the vehicle and which will stop the vehicle under normal and emergency situations. The combined brakes on both vehicles meet this standard and the "primary mechanism" standard. It is difficult and dangerous to stop both vehicles using the brakes of the towing vehicle alone and virtually impossible and extremely dangerous to stop both vehicles using the brakes of the towed vehicle alone.

Your November 22, 1991 letter seriously misquotes Tekonsha's product literature and leads us to believe that your opinion is based on a misunderstanding with respect to how the Voyager, Commander and other electronic brake controls operate. Your quote, in the second paragraph on page 2 is "The Voyager will not apply the trailer brakes unless the manual override slidebar is applied." That statement is not true. The brochure you cited actually states "IN A

STATIONARY STATE, the Voyager will not apply the trailer brakes unless the manual override slidebar is applied" (emphasis added). The fact is that this is true in almost all electronic brake controls including those made and sold by Kelsey-Hayes.

Your letter does not comment on important safety features provided by Tekonsha's Commander and Voyager electronic brake controls which are superior to both existing Kelsey-Hayes products and Tekonsha's older style brake controls (herein the "2030 style"). Tekonsha spent large amounts of its own money developing superior and safer products for consumers while Kelsey-Hayes has not invested a nickel. Rather than compete fairly in the marketplace, it turns to the National Highway Traffic Safety Administration ("NHTSA"), which effectively protects Kelsey-Hayes from competition.

The first question one should ask is "Why do the Commander and Voyager brake controls have a manual override?" First and foremost, it permits the driver to properly set the brakes of the trailer to provide optimum braking performance for the towing and towed vehicles. The vehicles start together, stay together and stop together and, for all practical purposes, are a single vehicle.

Second, the brakes on the trailer serve as emergency brakes. If the service brakes fail when the driver applies the foot pedal, then the driver could activate the towing vehicle's emergency (parking) brake and activate the manual override to operate the trailer brakes. The emergency (parking) brakes on the towing vehicle do not activate the stoplamps on the towing vehicle. This is permitted by Federal law. See 49 CFR Section 393.25 (f). Notwithstanding that the law does not require that the activation of the emergency brakes on the towed vehicle activate the stoplamps on the towed vehicle, you want the activation of the emergency brakes on the towed vehicle to activate the stoplamps on the towed vehicle.

Third, the manual override is used in conjunction with the towing vehicle accelerator to control sway, although this use is inconsequential and not encouraged by Tekonsha. Because some drivers are aware of the laws of physics, they figure out that they can use the manual override in conjunction with the accelerator on the towing vehicle to control sway. To be able to control sway is a safety feature. In the "sway control" mode the intent of the driver is to control sway and not to stop or diminish the speed of the combined vehicle and, in this mode, the advanced Tekonsha brake controls do not activate the stoplamps which avoids sending false braking signals to trailing vehicles.

Only in the mind's eye is there "a differential in speeds between towing and towed vehicles." To the extent such a differential does exist, it exists only momentarily and cannot be observed by the human eye. Not only is a "differential in speeds" not mentioned in the regulations, but no one explains why a differential in speeds resulting from the towing vehicle accelerating (not physically possible because both parts of the combination accelerate together) is lawful but a differential resulting from applying the manual override (it does not work this way in practice) is unlawful. It is a distinction without a difference. In the sway control mode, an experienced driver will simultaneously accelerate the towing vehicle and manually apply the trailer brakes to stop the sway and the combination continues without any differential in speeds.

There are a number of situations where an operator intends to and does reduce speed without activating the stoplamps. For example, a driver using cruise control can reset the cruise control to a lower speed by merely pushing a button that reduces the speed of the vehicle until the driver releases the button. Downshifting is another example and, the most frequently used, removing the foot from the accelerator.

It might be helpful to recall that the purpose of the National Traffic and Motor Vehicle Safety Act of 1966 (the "Act") is to "reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents" (See Section 1 of the Act, 15 USC Section 1381), not to bar the development of new and safer products such as the Commander and Voyager electronic brake controls.

If you are not persuaded that the Commander and Voyager electronic brake controls comply with Section S4.5.4 of Standard No. 108, then the language should be amended to make them legal. Your agency has the power to establish "appropriate Federal motor vehicle safety standards" and that same power permits the amendment of existing standards to recognize technological advances.

There have been significant changes in the design and equipment of towing vehicles that called for advances in brake controls. Many towing vehicles are now equipped with such desireable features as cruise control, electronic engine controls and rear-wheel anti-lock brakes. These are desireable particularly when one is towing a 5,000 pound trailer down the road. These features do present a real challenge to brake control manufacturers because they are all susceptible to interference from brake controls. For safety purposes, the new towing vehicle features called for state of the art brake controls that:

1. DON'T put electrical noise on the 12 volt power system; 2. DON'T put signals on the stoplight circuit;and 3. DON'T invade the hydraulic brake system.

Tekonsha designed at great expense its Commander and Voyager electronic brake controls within the constraints set forth above. With respect to the dangers created by connecting to the stoplamp circuit see, for example, Ford Motor Company Bulletin Number 10 (copy attached).

We ask that you reconsider your position and, if you still feel constrained by the existing wording of Section S4.5.4, then the wording should be changed to read:

"The stoplamps on each vehicle shall be activated upon application of the service (foot) brakes."

We turn now to your May 23, 1991 letter which was written after the September 10, 1990 letter to Lawrence F. Henneberger, Esq. The September 10, 1990 interpretive letter concluded that Section S4.5.4 preempts in part Section 24603 (f) of the California Vehicle Code. The September 10, 1990 letter was written after a thorough evaluation of the Tekonsha Commander electronic brake control by engineering and legal representatives of NHTSA.

How could NHTSA issue its May 23, 1991 letter which reverses in part its September 10 1990 letter without notifying and giving Tekonsha an opportunity to comment. While we appreciate that both your May 23, 1991 and November 22, 1991 letter qualified your interpretation by stating "appear", you have placed a powerful anti-competitive tool in the hands of a competitor.

We suggest one way to clear up the havoc is to rule that all three of your letters i.e., the November 22 and May 23, 1991 letters to Mr. Lewandoski and your letter of September 10, 1990 to Mr. Henneberger are all void from the beginning. If you did this, you could then make a proper technical evaluation of the Commander and Voyager electronic brake controls. If a fair and objective evaluation concluded that not connecting to the stoplamp circuit advanced motor vehicle safety, then you could proceed accordingly. If a fair and objective evaluation resulted in a different conclusion, Tekonsha is prepared to live with the results on a prospective basis.

ID: nht91-7.55

DATE: December 30, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Wallace F. Forbes -- Planar Support Systems, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 11-11-91 from Wallace F. Forbes to Office of the Chief Counsel, NHTSA

TEXT:

This responds to your November 11, 1991 letter in which you asked whether there are any standards that apply to a product you are developing. The product is a "portable back support product which people would be likely to use in their automobiles as well as in other environments."

By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act (Safety Act), it is the responsibility of the manufacturer to ensure that its motor vehicles and equipment meet applicable requirements. The following provides our opinion based on the facts provided in your letter.

Your product would fall within NHTSA's jurisdiction if it is an item of "motor vehicle equipment" as that term is defined in S102(4) of the Safety Act. Section 102(4) defines "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any ACCESSORY, OR ADDITION TO THE MOTOR VEHICLE ... (emphasis added).

In determining whether an item is an "accessory ... to the motor vehicle," NHTSA applies two criteria. The first criterion is whether a substantial portion of the expected uses of the item are related to the operation or maintenance of motor vehicles. The agency determines the expected uses by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is intended to be used principally by ordinary users of motor vehicles (E.G., items normally used by professional vehicle repair and maintenance personnel would not qualify). If the product satisfies both criteria, the product is considered to be an "accessory" and this is subject to the provisions of the Safety Act.

While your letter does not provide sufficient information for us to determine whether your product would satisfy the first criterion, you should be able to make a determination based on the factors set forth above. If your product did satisfy the first criterion, it would appear to satisfy the second criterion.

If your product is an item of motor vehicle equipment, NHTSA has not issued any safety standards that would directly apply to your product. However, there are two statutory provisions of which you should be aware. First, S108(a)(2)(A) of the Safety Act states that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard...

These commercial entities could sell your product, but could not install it if the installation would negatively affect the vehicle's compliance with the safety standards. The standards your product would be most likely to affect are those for occupant protection in interior impacts (Standard No. 201), head restraints (Standard No. 202), and flammability resistance (Standard No. 302). (The safety standards are found in Title 49 of the Code of Federal Regulations, Part 571.) Please note however, that the render inoperative prohibition would NOT apply to vehicle owners who install your product in their own vehicles.

Second, if your product is an item of motor vehicle equipment, Planar Support Systems would be a motor vehicle equipment manufacturer. As a manufacturer, you would be subject to the requirements of S151-159 of the Safety Act, concerning the recall and remedy of products with defects related to motor vehicle safety. If you or the agency determined that your product had a defect related to motor vehicle safety, you would have to notify all product purchasers of the defect, and either repair or replace the product. An information sheet for new manufacturers is enclosed.

I hope this information is helpful. If you have any more questions about this issue, feel free to contact Mary Versailles at this address or by telephone at (202) 366-2992.

ID: nht91-7.6

DATE: November 12, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Michael D. Incorvaia -- Manufacturing Engineering Manager, Wagner Lighting

TITLE: None

ATTACHMT: Attached to letter dated 7-3-91 from Michael D. Incorvaia to NHTSA

TEXT:

This responds further to your letter of July 3, 1991, which we informed you on August 20, will be accorded confidential treatment.

Paragraph 4.5 of SAE Standard J588e, Turn Signal Lamps, September 1970, states that "failure of one or more turn signal lamps to operate should be indicated by a 'steady on', 'steady off', or by a significant change in the flashing rate of the illuminated indicator." Electronic flashers available today provide a "significant change" in flash rate by doubling it as an outage indication. Wagner Lighting has developed a lamp outage indication that will remain within the performance parameters of Standard No. 108, but provide an outage flash rate that appears to be slightly less than 50% greater than that of normal operation. However, there will be "a recognized change in flashing rate." You have asked whether these changes may be regarded as "significant" within the meaning of SAE J588e.

Your letter indicates that the design contemplated by Wagner Electric is for application in new motor vehicles. Although SAE J588e remains in effect as a replacement equipment standard, Standard No. 108 has been amended to incorporate by reference new SAE standards for turn signal lamps, and it is these standards that now apply to turn signals on new motor vehicles. Specifically, on and after December 1, 1990, a motor vehicle must be manufactured to meet either SAE Standard J588 NOV84, Turn Signal Lamps for Use on Motor Vehicles Less Than 2032 mm in Overall Width, or SAE Standard J1395 APR85, Turn Signal Lamps for Use on Motor Vehicles 2032 mm or More in Overall Width. The outage indication requirement of SAE J588e was not adopted in either of the SAE standards, and has not been incorporated directly in Standard No. 108. This means outage indication is no longer a requirement on new motor vehicles, and that Wagner Electric, under Standard No. 108, may adopt such change flash rate as its design may call for.

We are returning the tape that you enclosed.