ID: nht90-3.93

TYPE: Interpretation-NHTSA

DATE: September 10, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Lawrence F. Henneberger -- Arent, Fox, Kintner, Plotkin & Kahn

TITLE: None

ATTACHMT: Attached to letter dated 6-22-90 from L.F. Henneberger to P.J. Rice (OCC 4927); Also attached to Ford Bulletin number 10 dated 12-15-89 entitled Splicing Into The Stop Lamp Electrical Circuit, signed by R.R. Chestnut; Also attached to memo date d 6-6-90 from Tekonsha Engineering Company; Also attached to letter dated 8-31-78 from J.J. Levin, Jr. to L.F. Henneberger; Also attached to letter dated 5-2-84 from F. Berndt to L.F. Henneberger; Also attached to letter dated 11-30-81 from F. Berndt to K.G. Moyer (A23; Redbook 3; Std. 108)

TEXT:

This is in reply to your letter of June 22, 1990, on behalf of your client, Tekonsha Engineering Company, a subsidiary of Echlin, Inc., asking for confirmation of your interpretation that a provision of the California Vehicle Code conflicts with, and is preempted by, Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment

Tekonsha has developed the "Commander Electronic Brake Control", which will allow the driver of a vehicle-trailer combination "to use the hand control to override the trailer brakes in an emergency mode to control swaying." The system has been designed specifically to avoid splicing into the stop lamp switch circuit. This eliminates electrical interference which can deactivate anti-lock brake system operation, or prevent the speed control from disengaging upon braking. The hand control activates only the trailer brakes, and not the service brakes of the towing vehicle.

You state that the California Highway Patrol has taken the position that the towing vehicle's stop lamps must be activated when the Commander Electronic Brake Control manual trailer brake override is used, even though the service brakes of the towing veh icle are not applied. Section 24603(f) of the California Vehicle Code provides, in pertinent part:

Stoplamps shall be activated upon application of the service (foot) brake and the hand control head for air, vaccuum, or electric brakes...

You believe that this is in conflict with section S5.5.4 of Standard No. 108, which requires:

The stop lamps on each vehicle shall be activated upon application of the service brakes. The high-mounted stop lamp on each passenger car shall be activated only upon application of the service brakes.

You argue that California is incorrect because the use of the device is not intended to and usually does not result in diminished vehicle speeds, does not involve application of the service brakes, and would provide an

"unsafe", false braking signal if connected to the stop lamp system.

In further support of your argument you cite past interpretations of this agency, specifically our letters to you of August 31, 1978, and May 2, 1984, with respect to the Jacobs device, and a letter of November 30, 1981 to Kenneth Moyer. I appreciate th e fact that you enclosed copies for our reference.

In reviewing this matter, I can understand the basis for a conclusion by California that section 24603(f) is not preempted by section S5.5.4. The second sentence of S5.5.4 restricts operation of the center stop lamp to application of the service brakes, but no such restriction exists in the first sentence. Although the first sentence requires operation of the stop lamps upon application of the service brakes, when considered in conjunction with the restriction stated in the second sentence, it can be read as implying that there may be other conditions under which activation of the stop lamps is permissible. However, the reason for the difference in the two sentences is otherwise. Commonly, in red rear combination lamps, the same filament serves bot h the stop and turn signal functions. If the turn signal is functioning when the brakes are applied, tbe first sentence of S5.5.4 ensures that the stop signal overrides the turn signal.

The meaning of the first sentence of S5.5.4 has been set forth and explained in long-standing letters of interpretation. These letters demonstrate that the agency's clear intent is that stop lamps be activated only when fulfilling their definitional pur pose. Standard No. 108 incorporates by reference SAE Standard J586 FEB84 Stop Lamps, which defines a stop lamp as one that gives "a steady light to the rear of a vehicle to indicate the intention of the operator of a vehicle to stop or diminish speed by braking." Most recently, in a letter of January 25, 1990, to Larry S. Snowhite, the agency stated that an aftermarket device that activated the stop lamps when it sensed that pressure was being released from the accelerator did not necessarily indicate that the operator would subsequently apply the brake pedal, and that, therefore, it would render the stop lamps partially inoperative within the prohibition of 15 U.S.C. 1397(a)(2)(A) applicable to vehicles in use. This is consistent with the Moyer inte rpretation of 1981 where the stop lamps were activated when all pressure had been released from the accelerator and the agency expressed its opinion that the use of required lighting equipment for a purpose other than the defined one created an "impairme nt" within the original equipment prohibition of section S4.1.3 of Standard No. 108 (now S5.1.3). To the same effect is our 1978 letter to you which held that activation of the stop lamps by use of the Jacobs brake foundation control device was permissi ble as the effect of the device was to diminish the speed of the vehicle by braking it.

For the reasons expressed above, we confirm your interpretation that section S5.5.4 of 49 CFR 571.108 Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment preempts section 24603(f) of the California Vehicle Code to t he extent that it may be read as requiring stop lamps to be activated on motor vehicles equipped with the Commander Electronic Brake Control, when the Control is hand activated in an emergency mode to provide sway control. The authority for our conclusi on is Title 15, United States Code, Section 1392(d) which states

in pertinent part:

(d) Whenever a Federal motor vehicle safety standard . . . is in effect, no State . . . shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard."

With best regards.

ID: 1210corrforweb

VIA FACSIMILE






Air Brake Systems, Inc.
c/o David M. Lick, Esq.
Loomis, Ewert, Parsley, Davis and Gotting
232 South Capitol Avenue
Suite 1000
Lansing, MI 48933





Dear Mr. Lick:

This letter provides an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 121, Air Brake Systems (49 CFR 571.121) with regard to a device sold by Air Brake Systems, Inc. (ABS, Inc.) known as the MSQR-5000. It is issued pursuant to orders in Air Brake Systems, Inc. v. Mineta (E.D. Mich. No. 01-10038).

Background

On June 4, 2001, we sent to Mr. James Arnold of MAC Trailer Manufacturing Inc. an interpretation of Federal Motor Vehicle Safety Standard (FMVSS or Standard) No. 121, Air Brake Systems (49 CFR 571.121). MAC Trailer, a small business manufacturing semi-trailers, asked if the MSQR-5000, manufactured by ABS, Inc., could be used to satisfy the antilock brake system (ABS) requirements of FMVSS No. 121 for trailers.

Our letter to MAC trailer explained that MAC Trailer, if it manufactured a vehicle equipped with the MSQR-5000, would be responsible for ensuring that the vehicle met all applicable standards, including Standard 121. We further stated that installation of the MSQR-5000 as an ABS would not allow a vehicle to meet the requirements of Standard 121.

ABS, Inc. challenged the conclusions of our June 4, 2001 interpretation, and requested further consideration. ABS, Inc. has submitted additional materials to the agency for its consideration. NHTSA has considered these materials and additional information it has obtained. This letter supercedes our June 4, 2001 interpretation.

ABS systems and the requirements of Standard 121.

Standard 121 establishes requirements for braking systems on vehicles equipped with air brake systems. The ABS requirements of FMVSS No. 121 were incorporated into the standard by a final rule published in the Federal Register on March 10, 1995 (60 Fed. Reg. 13216). In the preamble to the final rule, the agency noted that 10 to 15 percent of heavy combination vehicle crashes involve braking-induced instability or loss of control. These crashes result in significant property damage, injury and loss of life. In order to address the safety consequences of braking related instability, NHTSA amended FMVSS No. 121 to require antilock braking systems.

One of the primary considerations in developing the new requirements was what, at a minimum, an antilock braking system must do in order to prevent or reduce crashes. The agency determined that due to the wide range of surfaces a vehicle may encounter in normal use, an ABS system must have the ability to determine if and when a braked wheel is momentarily locked as it passes from high to low traction conditions. Because of such varying conditions, the agency determined that any ABS must be a "closed loop" system - i.e., a system that continuously monitors the rate of wheel rotation, adjusts wheel rotation when needed and reacts to ongoing changes in rotation caused by the operation of the system, by changed road surfaces, or both (60 Fed. Reg. 13217). NHTSA also determined that warning light requirements that establish a minimum level of safety are also important for reducing crashes, deaths and injuries. The warning light requirements would inform operators of an ABS malfunction and both facilitate and encourage repairs of faulty ABS systems (60 FR 13244).

We now turn to the terms of Standard 121.

Warning light.

An ABS malfunction warning light is required by Sections 5.1.6.2 and 5.1.6.3 of Standard 121. As noted in the preamble to the final rule, for an ABS that does not require electrical power for operation, the only mandatory electrical requirement is for malfunction indicator lamps used to signal a problem in the ABS (60 FR 13227).

Definition

An antilock brake system is defined in S4 of Standard 121 as follows:

Antilock brake system or ABS means a portion of a service brake system that automatically controls the degree of rotational wheel slip during braking by:

(1) Sensing the rate of angular rotation of the wheels;

(2) Transmitting signals regarding the rate of wheel angular rotation to one or more controlling devices which interpret those signals and generate responsive controlling output signals; and

(3) Transmitting those controlling signals to one or more modulators which adjust brake actuating forces in response to those signals.

The opening clause of the definition states: "Antilock brake system or ABS means a portion of a service brake system that automatically controls the degree of rotational wheel slip during braking [by]:" As noted in the preamble to the final rule adopting the definition of an ABS, the agency's definition of ABS incorporated the terms set forth in Society of Automotive Engineers (SAE) publications and European regulations to reflect the attributes of antilock systems as commonly understood by the automotive industry. (60 FR 13224).

As background, a document that addresses the topic of antilock braking systems from the standpoint of the industry as a whole is "Antilock Brake System Review" SAE J2246 (June 1992). As explained therein, "ABS is a feedback control system that attempts to maintain controlled braking under all operating conditions. This is accomplished by controlling the slip at each wheel so as to obtain optimum forces within the limits of the tire-road combination." (emphasis added). Ibid Sec 5.3 (now renumbered as 7.3). The SAE document reiterated that ABS attempts to regulate the tire-road forces during braking to follow the driver's steering and braking commands within the constraints of the tire-road traction capability. This is accomplished by controlling the wheel slip. Ibid Sec. 5.4.4 (now renumbered as 7.4.4). "If the braking capability of the tire and road is exceeded, the wheels tend to lock. It is at this time that the antilock brake system's control logic takes over the pressure regulation at the wheel in order to obtain optimum braking." (emphasis added) Ibid Sec. 5.4.5 (now renumbered as 7.4.5).

We first address the terms in the introductory clause of the definition of ABS. "Automatically controls" means that the ABS, rather than the driver, must regulate the degree of rotational wheel slip. This is based on the meaning of the words "automatic" and "control", and is consistent with the discussion in the preamble to the rule (60 FR 13225). As the agency noted, automatic control is necessary since the driver cannot control lockup in an emergency situation. (Id.)

Next, the "degree of rotational wheel slip" includes several terms. To begin, the term "wheel slip" is both fundamental and well established. In the context of antilock braking systems, wheel slip refers to the proportional amount of wheel/tire skidding relative to the forward motion (velocity) of the vehicle (60 FR 13225 at n. 27); for a mathematical definition see 60 FR 13261. Zero wheel slip occurs when a wheel is unbraked and free rolling. As defined in S4 of FMVSS 121, wheel lockup means 100 percent wheel slip.

As explained in the preamble to the rule, a rolling tire generates braking and stabilizing forces. As the brakes are applied with increasing amounts of force, braking generally improves. However, at some point, the forces in the brakes exceed the grip of the tire on the road. The tire then begins to slide and the wheel rapidly goes into full lockup. The braking force at which this occurs is not fixed; it is dependent, among other things, on the characteristics of both the tire and the road. A sliding tire loses its grip in all directions. Thus, locked wheels make a vehicle unstable and lead to loss of control (See 60 FR 13261; 13278).

To continue, in order to minimize lockup and maximize braking, an ABS must control the degree of rotational wheel slip. To control wheel slip, an ABS system automatically reduces the amount of brake application pressure (in air braked vehicles, conventionally this is done by venting air in the brake chambers to the atmosphere) to prevent or abate excessive wheel slip - including prolonged lockup. When there is wheel slip, the level of which is assessed by the ABS from the actual and recent rates of rotation of the vehicle's wheels, the brake pressure is adjusted if the amount of wheel slip is not within an acceptable range (See 60 FR 13262). An antilock system reduces, holds and reapplies, i.e. modulates, brake pressure to each controlled wheel. As a wheel approaches lockup, the control unit sends signals to the modulator device to hold or reduce the build-up of wheel brake pressure. The brake pressure must then be increased again to ensure that the wheel is not underbraked for the road surface conditions. Through these cycles, which may require reducing or applying air pressure by as much as 60 pounds per square inch or more, the degree of wheel slip is controlled. ⁽¹⁾

Finally, "during braking" means during all phases of braking when antilock braking would be called upon, including incipient wheel lock and wheel lock up. In order to meet this portion of the definition, an ABS must therefore act when wheels are about to lock, when they have locked and after they have locked.

Therefore, the introductory clause of the definition of ABS contained in Standard 121 requires that an ABS system act automatically - without any action on the part of the driver. When functioning on its own, the system must exercise control over the degree of rotational wheel slip, including 100 percent wheel slip or full lockup. Finally, a qualifying system must act during braking, including those periods where lock up is about to occur, and where full lockup has occurred.

The definition also sets forth the means by which these requirements are to be met. I now turn to the numbered elements of the regulatory definition quoted above.

The first numbered element of the definition is "sensing the rate of angular rotation of the wheels." This requires sensing the rate of angular wheel rotation (emphasis added). The ability to sense the rate of angular wheel rotation, not simply whether the wheel is rotating or not, is critical to meeting the requirements of the overarching introductory clause of the definition. Information about the rate of wheel rotation, relative to the forward motion of the vehicle, enables an ABS to determine if a wheel is about to lockup or has locked up. It also enables the ABS to then control (release/hold) brake pressure to enable the wheel to begin rotating again, at an appropriate level of rotational wheel slip.

Second, with regard to the next portion of the definition, "transmitting signals regarding the rate of wheel angular rotation to one or more controlling devices which interpret those signals and generate responsive controlling output signals," we note that the preamble stated that this is necessary to ensure that lockup will be prevented or controlled for all road surfaces and under all load conditions, and also to ensure that stability is not provided at the expense of stopping distance (60 FR 13225). The amount of braking air pressure that causes lockup varies dramatically depending on road surface, vehicle loading and other factors (60 FR 13261-62). At a given time, the rate of wheel rotation is the product of all these factors; also, wheel slip can be determined from it (60 FR 13225). The remainder of the second element - that rate information be transmitted for interpretation by a control unit - is necessary to ensure that an ABS uses the rate of wheel rotation to control wheel slip and prevent lockup. Ibid.

The third numbered element in the definition, "transmitting those controlling signals to one or more modulators which adjust brake actuating forces in response to those signals," completes the definition of a qualifying system. In order to prevent/control lockup and ensure good stopping distances under all road surface and load conditions, such a system must modulate brake pressure in response to the rate of angular rotation of the wheels relative to the vehicle's forward motion. During automatic brake control, wheel speed is constantly monitored so that the maximum braking force for the conditions can be achieved by a succession of pressure reduction, pressure-holding and pressure-reapplication phases (60 FR 13226-28).

All of the elements of this definition are necessary to ensure that an ABS system provides the minimum level of performance required by Standard 121 for safe braking. As discussed in the preamble and appendix to the rule, an antilock system must be capable of reducing, holding and reapplying brake pressure to each controlled wheel. The wheel speed sensor monitors the rotational speed of the wheel. When a monitored wheel approaches a lockup condition, there is a sharp deceleration of the wheel and rise in wheel slip. If this exceeds threshold levels, the control unit sends signals to the modulator device to hold or reduce the build-up of wheel brake pressure until the danger of wheel lockup has passed. The brake pressure must then be increased again to ensure that the wheel is not underbraked for the road surface conditions. During automatic brake control, wheel speed is constantly monitored so that the maximum braking force is achieved (60 FR 13226). The preamble noted that all ABSs currently marketed in the United States are electronic in nature, but other systems are not precluded.

Following issuance of the rule on March 10, 1995, William Washington, now president of ABS, Inc., challenged the rule on the grounds that the rule reflected a deliberate attempt to exclude all but electronic ABS designs, impermissibly conflicted with operational standards for commercial motor carriers, and improperly imposed design specifications rather than performance criteria. The petitioner also claimed that NHTSA failed to evaluate and disclose information regarding petitioner's mechanical alternative to electronic ABS and published false data. The petition was denied. Washington v. Department of Transportation, 84 F.3d 1222 (10^th Cir. 1996).

The MSQR-5000 and why we initially concluded that it appeared to lack one or more features that an ABS must have to meet FMVSS No. 121's definition of ABS

The MSQR-5000, is patented as a Differential Pressure Regulator Quick Release Valve, but not as an antilock brake system or portion thereof. ⁽²⁾ The device is essentially a diaphragm, backed by a piston and dampened by a rubber spring, which is acted on by the air pressure in the brake lines to the brake cylinders. As promoted, the MSQR-5000 operates on the theory that wheel lockup and other unwanted conditions occurring during braking are the result of pressure spikes and pressure differentials inside the braking system caused by out-of-round brake drums and warped rotors. It does not have a warning light. A decade ago, NHTSA tested similar devices for hydraulic brake systems on passenger cars and light trucks; NHTSA observed, and the Federal Trade Commission ruled, that they did not function as an ABS. ⁽³⁾

On January 8, 1992, William Washington, president of the corporation then manufacturing the MSQR-5000, petitioned NHTSA to amend Standard 121 to require "differential pressure regulating systems." In its review of the petition, the agency reviewed a variety of materials including test reports of vehicle testing performed at the Aberdeen Proving Ground and Southwest Research Institute (SWRI). The Aberdeen Proving Ground tests, in which a variation on the MSQR-5000 (the BX-100) was tested in comparison to other devices claimed to improve brake performance, did not verify that the device produced the claimed safety benefits. ⁽⁴⁾ Similarly, tests performed at SWRI of the MSQR-5000 indicated that the phenomenon of differential pressure between brake chambers on the same axle did not exist. Based on its finding that the requested rulemaking would not produce any safety benefits and would entail significant cost, NHTSA denied the petition on July 2, 1992 (57 FR 29459).

The agency's recent experience with the MSQR-5000 arose shortly after particular types of vehicles were required to have ABS under Standard 121. ABS, Inc., the current manufacturer of the MSQR-5000, was marketing the device as an antilock brake system that purportedly complied with the requirements of Standard 121, according to the Federal Motor Carrier Safety Administration (FMCSA). Review of ABS, Inc.'s website revealed that the device was being marketed as an ABS complying with Standard 121 and as being "excluded" from meeting the warning light requirements due to the decision rendered in Washington v. DOT - Mr. Washington's prior challenge to Standard 121.

In January 2001, as NHTSA began to receive inquiries from vehicle manufacturers about the MSQR-5000, a consultant retained by ABS, Inc. requested a meeting that was held on February 13, 2001. At this meeting, William Washington, President of ABS, Inc., explained the operational theory of the MSQR-5000 and presented some test data. NHTSA personnel present asked for evidence of the existence of pressure pulses caused by brake drums as previous NHTSA testing on air brake systems did not reveal the existence of such pressure pulses, questioned the ability of a device that had no means to vent air pressure from the brake lines in response to a lockup situation, and indicated to Mr. Washington that ABS, Inc. should conduct proper tests on the device using qualified test facilities.

On February 1, 2001, MAC Trailer, a small entity within the meaning of the Small Business Regulatory Enforcement Fairness Act, in the business of manufacturing semi-trailers, requested that NHTSA provide it with an opinion of whether the MSQR-5000 met the requirements of Standard 121 as represented by ABS, Inc. MAC trailer forwarded information provided to it by ABS, Inc. about the device, including a "certification" of compliance and a decal to be applied to new vehicles documenting the warning light "exclusion." The agency responded to MAC Trailer on June 4, 2001 (at which time we had not received information from ABS, Inc.). NHTSA stated that it is NHTSA's view that the installation of an MSQR-500 alone would not allow a vehicle to meet FMVSS 121's ABS requirements. NHTSA observed that the MSQR-5000 did not have the required ABS malfunction warning light and was not, as represented by ABS, Inc. "excluded" from the warning light requirement by the decision in Washington v. DOT. The agency further indicated that it did not appear that the device had one or more features required by the definition of ABS. NHTSA based its decision on promotional literature by ABS, Inc., statements by ABS, Inc. at the meeting in February 2001, NHTSA's experiences with the MSQR-5000 and similar products, its knowledge of ABS systems and the requirements of the definition in Standard No. 121.

NHTSA's Position on Reconsideration

NHTSA has reconsidered its interpretation in light of materials received or obtained since June 4, as well as those that we had previously obtained. We reiterate that, as Standard 121 is a vehicle standard, the vehicle manufacturer is responsible for ensuring that the ABS requirements are met. Overall, our interpretation remains that the installation of the MSQR-5000 alone would not allow a vehicle to meet FMVSS 121's ABS requirements.

Warning Light Requirements

Since the issuance of the MAC trailer letter, ABS, Inc. has apparently conceded the correctness of the agency's position regarding the warning light requirement. There is no dispute that the MSQR-5000 lacks a warning light. Rather than maintaining that it is "excluded" from the warning light requirement, ABS Inc. has alternatively argued that it should not be subjected to the warning light requirement and requested that NHTSA grant it an exemption. As we explained in our June 4, 2001 letter, Standard 121 applies to vehicles and not items of equipment. Therefore, NHTSA could only grant such an exemption to the manufacturer of a complete vehicle employing the MSQR-5000.

ABS, Inc. now claims that applying FMVSS No. 121's ABS malfunction signal/indicator requirements to the MSQR-5000 is an attempt to "place a round peg in a square hole." It is ABS, Inc.'s position that these requirements are unnecessary for the MSQR-5000, since it operates solely on air pressure and does not have any electrical or electronic components. ABS argues that if the MSQR-5000 were to fail, this failure would be evidenced by the existing gauge and low pressure warning required by S5.14 and S5.15 of FMVSS No. 121.

This is not an argument that can be entertained in an interpretation letter such as this. An interpretation applies our laws or regulations in the context of the facts in the interpretation. It is not a vehicle for granting exceptions to our rules.

If we were to entertain ABS, Inc.'s argument, we would not adopt it. ABS, Inc. claims that "it is clear that the warning signal requirements of FMVSS 121 were drafted with electronic ABS in mind" and that "(i)n the final rule, it is clear that NHTSA contemplated use of such warning signals for electronic ABS systems." The statement that the warning signal requirements of FMVSS No. 121 were drafted with electronic ABS in mind is simply incorrect. During the rulemaking establishing the ABS requirements, the agency expressly considered whether the malfunction signal/indicator requirements should apply to vehicles equipped with non-electrical ABS. In the preamble to the final rule, NHTSA explained that a mechanical ABS would have to comply with the malfunction indicator requirements (60 FR 13246).

ABS, Inc. also suggests that the language of S5.2.3.3(d) indicates that NHTSA contemplated that ABS systems must be electronic. The language in question specifies that a trailer's external antilock malfunction indicator lamp illuminate whenever power is supplied to the antilock brake system and there is a malfunction in the trailer's antilock system. Your understanding is incorrect. Trailers receive power from the towing vehicle, and the antilock malfunction indicator lamp is part of the trailer's antilock brake system. The requirement that a light illuminate when the trailer receives power is not a requirement that an ABS be electronic.

ABS, Inc. also contends that an air-operated device like the MSQR-5000 does not need any malfunction warning device other than the existing low air pressure warnings. This argument assumes that the MSQR-5000, by itself, cannot fail or be incapacitated by damage. We will not assume that a mechanical device cannot fail. Indeed, as the affidavit of William Washington attests, the MSQR-5000 may be damaged in use. (Washington para. 6(g)). Moreover, failures, or malfunction caused by damage to the unit would not necessarily result in loss of vehicle brake system pressure to the point where the vehicle's low pressure warning system would activate.

Nonetheless, as we have explained to you before, if ABS, Inc., wishes the agency to modify the ABS malfunction signal/indicator requirements of FMVSS No. 121, it may submit a petition for rulemaking under 49 CFR Part 552 seeking modification of the standard.

Definition of ABS

Several arguments are offered by ABS, Inc., in support of its contention that the MSQR-5000 is an ABS system for the purposes of Standard No. 121. First, ABS, Inc., contends that the affidavits it has submitted have established that the MSQR-5000 meets the definition of an ABS contained in Standard 121. Second, ABS, Inc. contends that through testing, it has established that the MSQR-5000 meets the performance requirements of Standard 121.

In considering the contention that the MSQR-5000 meets the requirements of Standard No. 121, we note, as we have before, that Standard 121 applies to vehicles and not to equipment. Therefore, any claim made by ABS, Inc. (or any other manufacturer of equipment as opposed to vehicles) that the device meets Standard 121 is improper.

Definitional issues

Through affidavits, ABS, Inc. seeks to establish that the MSQR-5000 meets the definition of ABS contained in Standard 121. We note at the outset that these affidavits, as well as the arguments contained in correspondence with NHTSA, do not address the entire definition as set forth in the Standard. As observed above, the introductory clause of the definition establishes overarching characteristics of an ABS - the automatic control of the degree of rotational wheel slip during braking. The materials submitted by ABS, Inc. do not address, much less establish that the device automatically controls rotational wheel slip during braking.

For example, Standard 121 applies to braking, including periods of incipient lockup and full lock up (100% wheel slip). ABS, Inc. has submitted materials advancing a theory that the device would satisfy parts of the definition, based on pressure pulses produced when a braked wheel is rotating. ⁽⁵⁾ ABS, Inc.'s affidavits do not address the performance of the MSQR-5000 once full wheel lockup -- 100% wheel slip -- has occurred. At lock up, the wheel, which is attached to the brake drum, does not rotate. Since the generation of the claimed pressure pulses is dependent on a rotating wheel and drum, if the wheels stop rotating due to lockup, no more "pressure pulse" signals would be produced. As a result, the device would not function. An alternative mode of operation once the "pressure pulses" have stopped is not presented or explained. ⁽⁶⁾

In regard to the first numbered element of the definition - sensing the rate of angular rotation of the wheels - ABS, Inc.'s affidavits indicate that the MSQR-5000 senses the rate of angular rotation of the wheels through the pressure pulses described above. The generation of these pulses depends on irregularities in brake drums, such as occur with wear. Assuming that there are such pulses, there are still questions that must be answered before this portion of the definition would be satisfied. One is whether the device would function as an ABS on a vehicle with new brake drums. New brake drums are essentially round ("out of round" by less than five-thousandths of an inch). The test data and affidavits do not address the performance of the MSQR-5000 on a vehicle with new brake drums. An ABS, Inc. consultant, Mr. Perazzola, noted that in one test of the MSQR-5000, elimination of lockup was not demonstrated due to the use of new brake shoes and drums (Perazzola II, para. 25). No further data or explanation is given. It is not shown, therefore, that new drums would provide the signal needed by the MSQR-5000.

Second, to satisfy the definition, the rate of angular rotation must be sensed. The materials submitted by ABS, Inc. do not establish a standard number of irregularities per wheel. Thus, the input in terms of pressure pulses would not be meaningful. For the sake of discussion, consider a wheel with four irregularities per rotation and one with one irregularity per rotation. The MSQR-5000 would not sense a difference between a wheel with four pressure pulses per rotation at a given speed and another wheel with one irregularity turning at four times the given speed. Because the number of events is not known and is not the same from wheel to wheel, the device is incapable of quantifying the rate of angular wheel rotation or wheel slip. Other than Mr. Foss' analysis - which assumes without support 10 irregularities per revolution (Foss para. 20), ABS, Inc. has not provided any information on how many pulses will be available for the device to sense changes in the rate of angular wheel rotation. Without these data, it has not been shown that the device can actually sense the rate of angular rotation of the wheels.

The second and third numbered elements of Standard 121's definition of ABS require that an ABS automatically control the degree of rotational wheel slip by:

(2) Transmitting signals regarding the rate of wheel angular rotation to one or more controlling devices which interpret those signals and generate responsive controlling output signals; and

(3) Transmitting those controlling signals to one or more modulators which adjust brake actuating forces in response to those signals.

ABS, Inc submitted materials asserting that the MSQR-5000 "interprets" the "pressure pulses" it receives through the deformation of the rubber diaphragm incorporated in the device, and the subsequent movement of the piston and rubber shock absorber behind the diaphragm. This deformation is described in the affidavits and other documents as "interpretation" of the "pressure pulses." The required responsive controlling output signals are explained as being found in the waves that are produced when the piston and rubber shock absorber diaphragm rebound and create a "compensating" pressure wave. This "compensating" pressure wave purportedly travels back to the brake cylinder, which modulates brake application.

We need not address this in detail. We observe that ABS, Inc.'s pressure wave analysis is disputed on the ground that it does not account for the physical realities of the fluid mechanics in an actual air brake system. Furthermore, it is uncorroborated by data showing the existence of the pressure wave posited. However, even under ABS, Inc.'s theory, the MSQR-5000 would not produce controlling output signals during lockup, as required. This is so because operation of the device is dependent on pulses traveling to it in order for it to create reflected pressure wave output signals. As described above, there are no such inputs and therefore no output at lock up. Second, modulators would have to adjust brake forces to control lockup. Assume that a vehicle travels from a dry concrete surface that momentarily becomes an icy surface; assume that the brake application on the concrete involves significant amounts of brake pressure. Without ABS, the wheels would lock (due to excess brake pressure on an icy surface) and stay locked until the driver reacted. The task of the ABS system is to relieve the excess brake pressure conditions and modulate the pressure application whenever the actuation level is too high, whether the excess is 1 psi or 100 psi. As a matter of standard practice, ABS in air-braked vehicles releases the excess pressure by venting air into the atmosphere. If the MSQR-5000 reacts to incipient lockup as described in the affidavit of Mr. Foss, the offsetting pressure wave would be on the order of magnitude of 2 psi. Nothing that ABS, Inc., has submitted indicates that a 2 psi pressure differential would prevent or relieve lockup in a conventionally air braked vehicle. ABS, Inc., has not provided data showing that the MSQR-5000 device would relieve significant over-pressure conditions that occur during braking data. The materials also do not provide any information indicating if outgoing "control" pulses are affected by incoming "data" pulses, when both travel in the same brake lines.

Vehicle Testing

Our analysis must proceed on the assumption that the vehicle tests submitted by ABS, Inc. are intended to be the equivalent of tests performed by vehicle manufacturers to establish ABS functioning and compliance . In so doing, we note that the information on January 9 and February 13, 2001 tests provided by ABS, Inc. represents only segments of the performance tests required to establish compliance with Standard 121 and would not, by themselves, constitute sufficient documentation of compliance. Moreover, the test reports that have been provided are inadequate and incomplete.

Three test reports have been provided to NHTSA. Even though they were submitted to show the effectiveness of the MSQR-5000, none of them compares the performance of the test vehicle with the MSQR-5000 device disabled to performance of a vehicle with the device enabled. Each reveals that they were performed without any observance of Standard 121's test procedures or accepted industry protocols in the case of the split coefficient test. ⁽⁷⁾ We have prepared charts, placed in the record, outlining the requirements of Standard 121, the Standard 121 test procedure, and SAE J46, an industry standard for split coefficient tests, with the three tests submitted by ABS, Inc. In addition, the attached Affidavits of Alfred Beier, Duane Perrin, Robert Ervin and Jeffrey Woods address the performance and value of these tests.

The first of the tests is a stopping distance test. This January 9, 2001 test contains a number of omissions. We note first that the unbraked control trailer required by S6.1.10 of Standard 121 was not used. Instead, a standard highway van trailer was used. The report is not complete. It is not known if the trailer brakes were employed. The brakes themselves were old, unburnished, and their temperature unknown. No information on vehicle loads is given although vehicle loading is critical to evaluating brake and ABS performance. Speed data were collected through the use of an observer in the cab monitoring the speedometer - an unreliable method of measuring speed.

The February 13, 2001 braking in a curve test contains similar omissions. In braking in curve tests, which are designed to evaluate ABS performance on low friction surfaces, establishing the characteristics of the test surface is critical. Standard 121 S5.3.6.1 specifies that the test must be performed on a curved wet roadway with a peak coefficient of friction of 0.5 as determined by use of an ASTM E1136 standard reference tire in accordance with ASTM measurement method E1337-90 at a speed of 40 mph. The test report states that the approximate coefficient of friction used was 0.5, apparently derived through use of E1337-90 tires. No record of the speed during these measurements is recorded. To simulate a panic stop, Standard 121 requires that this test be run with a full treadle brake application - an application in which, according to the definition in Standard 121, within 0.2 seconds after brake application is initiated, at least 85 psi is reached in the treadle valve's output circuits or maximum pedal travel is reached. ⁽⁸⁾ The test report indicates simply that "maximum peddle effort" was used without providing any data on the rate of application or the pressure of the application. The Standard 121 test procedure requires that this full treadle brake application be initiated 60 feet after the test vehicle enters the curved test lane. Braking was initiated in the February 13 test when approximately 28 feet into the test lane. The test report is silent in regards to the loading of the vehicle, while Standard 121 requires that the test be performed in a loaded and unloaded condition. Finally, the condition of the test vehicle's brakes and braking system are not noted. If the brakes were impaired to the point where braking force was reduced, non-compliant vehicle could successfully complete the test.

Although the Standard 121 test procedures do not specify a split coefficient test, an examination of an industry standard test protocol, SAE J46, provides guidance on testing to produce the requisite data. SAE J46 requires split coefficient tests to be performed on a test surface where the "high" coefficient surface has twice the friction of the low surface, requires that test runs be made with the ABS activated and deactivated, requires the test course to be run in two directions, and sets minimum requirements for brake condition to ensure that braking effort is sufficient to adequately test the ABS. The SAE protocol also requires that all brake applications in all test runs be made as rapidly as possible.

The July 9, 2001 split coefficient tests provide very little information. No data are presented on the condition of the vehicle's brakes. No measurements were made of the coefficient of friction of the high or low coefficient portions of the test surface. No data are presented comparing vehicle test runs with the MSQR-5000 enabled and disabled to show disparities in performance. It is not shown if the vehicle was run through the course in different directions. No record is presented regarding the rate of brake applications for the test stops other than a notation that in one stop, the driver "slammed" on the brakes in a simulated panic stop where the brake pressure was 40 psi. As most air braked vehicles are capable of producing brake pressures of 80 to 120 psi in a simulated panic stop, data on the particular configuration of the test vehicle is needed.

The test data and information provided by ABS, Inc. do not establish that the MSQR-5000 device, if installed in a new vehicle, would allow that vehicle to meet the requirements of Standard 121. The device does not have, or accommodate, an ABS warning light when it is required to do so. Data presented to NHTSA to date, do not establish that a new vehicle with the MSQR-5000 would be in compliance with Standard 121, including the definition of ABS contained in the Standard. This letter does not address use of the MSQR-5000 for purposes other than as an ABS.

Sincerely,

John Womack
Acting Chief Counsel

cc:
James Arnold

ref:121
d.12/10/01





---

¹For example, a braking vehicle may move from a high friction surface, like dry pavement, to a very low friction surface such as an icy road or a wet steel plate. In such an instance, an ABS would sense the different surfaces through changes in the rate of wheel rotation, reduce brake air line pressure by significant amounts on the low friction surface and restore it when a high friction surface is reached.

² NHTSA has been given an affidavit by John Cepican, a patent attorney, stating that the MSQR-5000 is an ABS under Standard 121. In our view and as indicated by the letter from the U.S. Patent Office, which is in the record, the grant of a patent for the MSQR-5000 does not establish that a device complies with regulatory requirements for an ABS.

³The Brake-Guard, which responded to "fluctuations" caused by irregularities in drums and rotors, allegedly prevented premature wheel lock by "metering" surges and allowing brake shoes to move "reciprocally" as needed. It had been patented. Finding that the devices were not ABS systems, the FTC issued orders forbidding representations of ABS function against the manufacturers of the Brake-Guard device, In re Brake Guard Products, Inc., Docket No. 9277, 1998 FTC Lexis 184, January 23, 1998, and the manufacturers of the ABS-Traxx device, In re Automotive Breakthrough Sciences, Inc. Docket No. 9275, Federal Trade Commission, 1998 FTC Lexis 112, January 23, 1998.

⁴The Aberdeen tests included both wet and dry test stops in which vehicles with the BX-100, which is identical to the MSQR-5000 except the quick release valve is mounted externally, experienced lockup at brake application pressures within the range of pressures that would be experienced in highway use.

⁵As described by ABS, Inc. and its affiants, the device depends on air pressure pulses generated by irregularities in brake drums as a wheel turns for the production of signals about the rate of angular wheel rotation. Despite NHTSA requests for data documenting the existence of these pulses, they are simply said to exist or, in theory, are the inevitable product of the operation of fluid dynamics. As we have indicated before, NHTSA itself, despite extensive testing of vehicles and brakes, does not have any data indicating the pressure pulses exist. However, it is not the function of an interpretive letter to adjudicate factual issues such as this.

⁶ Also, we note that mathematically, wheel slip may be expressed as the ratio of the difference between the velocity of the wheel center and the velocity of a point on the tread of the tire that is not in contact with the road, to the velocity of the wheel center. 60 FR 13260. There is nothing in ABS, Inc.'s affidavits to show that the MSQR-5000 receives or generates information about the forward velocity of the vehicle wheel center. There is nothing to show that it controls the degree of rotational wheel slip during braking.

⁷ Split coefficient means that the roadway is "split" down the middle, longitudinally, and the coefficient of friction (roughly, a measure of friction or slipperiness) is different from side to side; the left-side and right-side wheels are on different surfaces. Wheels on different surfaces would reach lock up at different braking levels (see 60 FR 13278) unless controlled by an ABS.

⁸ The treadle valve is linked to the driver's brake pedal. The valve sends compressed air to the brakes in proportion to the driver's input.

ID: nht91-7.21

DATE: November 27, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: None (Confidential)

TITLE: None

ATTACHMT: Attached to letter dated 9-9-91 to Paul Jackson Rice

TEXT:

This responds to your September 9, 1991 letter requesting an interpretation of Standards No. 101, Controls and Displays (49 CFR S571.101) and No. 208, Occupant Crash Protection (49 CFR S571.208). More specifically, you stated that your company is planning to incorporate seat belt pretensioners for the manual safety belts installed at front outboard seating positions in some future models. Your company intends to provide an onboard diagnostic system, including a malfunction display, to inform the driver about the functional status of the pretensioner system. You asked how Standards No. 101 and 208 would affect three alternative visual displays your company is contemplating. I am pleased to have this opportunity to explain our standards for you.

Before discussing the substantive issues raised in your letter, I would like to indicate how this letter is responding to your request that NHTSA not publicly release the identity of your company. NHTSA granted your request in a 1991 letter signed by Kathleen DeMeter, our Assistant Chief Counsel for General Law. To reflect this agency determination, we will make available to the public only the version of your letter to me that your company purged of all references to your company's identity and a version of this letter that is purged of all references to your identity.

Your letter set forth three alternative means of providing information about the functional status of the pretensioner system to the driver. Under Alternative #1, your company would use the existing seat belt telltale display field to provide information in the event of a pretensioner malfunction. The seat belt telltale light currently illuminates for a six second period following the ignition being switched on, regardless of whether the seat belt is fastened. In the event of a pretensioner malfunction, you propose to have the seat belt telltale light go off for a five second period, and then begin blinking a "pretensioner malfunction" message.

Alternative #2 would also combine the "fasten seat belt" and "pretensioner malfunction" messages in the same display. For this alternative, if belts are fastened prior to ignition, the seat belt telltale light would illuminate for a seven second period following the ignition being switched on. In the event of a pretensioner malfunction, a pretensioner malfunction message would begin flashing on and off. If the seat belts are not fastened prior to ignition, the seat belt telltale light would remain illuminated until the seat belts are fastened. In the event of a pretensioner system malfunction, a fasten seat belt/pretensioner malfunction message would begin flashing on and off. If the belts were later fastened, this would be replaced by a pretensioner malfunction message.

Alternative #3 would combine the pretensioner malfunction message with the readiness indicator for the air bag system, which is required by S4.5.2 of Standard No. 208. Under this alternative, the readiness indicator would flash steadily in the event of a malfunction in either the air bag system or the pretensioner. Only trained service technicians would be able to determine which of those two systems was experiencing the malfunction.

You then posed several questions about these alternatives. Underlying all of these questions is the issue of whether your company is required to provide an indication of a malfunction in the pretensioner system for manual belts. The only source for such a requirement would be S4.5.2 of Standard No. 208, which reads as follows:

An occupant protection system that deploys in the event of a crash shall have a monitoring system with a readiness indicator. The indicator shall monitor its own readiness and shall be clearly visible from the driver's designated seating position.

It is plain that pretensioners for manual belts are designed to activate in the event of a crash. However, the basic occupant protection system, the manual belts, are already deployed at that time, assuming they have been manually fastened. Further, if the belts have not been manually fastened, the pretensioners will not deploy the belts in the event of a crash. Thus, we do not view the pretensioners as "deploying" the belts but instead providing a final, albeit important, adjustment to belts which have already been deployed. Therefore, a manual belt system is not required to include a readiness indicator by S4.5.2, even if it includes pretensioners that activate in the event of a crash.

Further support for this position comes from reviewing the preambles for both the proposal and the final rule (35 FR 7187, May 7, 1970, and 35 FR 16927, November 3, 1970, respectively) adding the readiness indicator requirement to Standard No. 208. Those preambles make clear that NHTSA was focusing on newly developed occupant protection systems, some of which deployed in the event of a crash (e.g., air bags), and not on improvements and modifications of existing manual seat belt systems.

Since neither S4.5.2 of Standard No. 208 nor any other provision of the safety standards requires your company to provide a readiness indicator for the pretensioner in the manual belt systems, the decision to provide a readiness indicator for those pretensioners is voluntary. The issue then arises of whether and how the safety standards would affect the voluntarily provided readiness indicator for the pretensioners.

NHTSA has long said that systems or components installed IN ADDITION TO required safety systems are not required to comply with the provisions of the safety standards, provided that the additional systems or components do not destroy the ability of the required safety systems to comply with the safety standards. See, e.g., this office's December 1, 1986 letter to Mr. Francois Louis and this office's October 13, 1988 letter to Mr. Paul Utans. The question for each of your three alternatives, then, is whether the combination of the voluntarily provided pretensioner telltale with the

required seat belt telltale or air bag readiness indicator would result in the required equipment failing to comply with Standards No. 101 and/or 208.

Under Alternatives #1 and 2, your company would display the pretensioner telltale on common space with the seat belt telltale required by Standard No. 208. Alternative #1 would provide a seat belt telltale that appears to comply with S7.3(a)(2) of Standard No. 208, and Alternative #2 would provide a seat belt telltale that appears to comply with S7.3(a)(1) of Standard No. 208. Thus, your company's use of a common space to display a voluntary pretensioner malfunction message and the required seat belt telltale does not result in the seat belt telltales failing to comply with Standard No. 208.

The other safety standard that might affect your company's ability to use common space for the pretensioner malfunction message and the seat belt telltale is Standard No. 101. S5(a) of Standard No. 101 provides that "each passenger car, multipurpose passenger vehicle and truck or bus less than 10,000 pounds GVWR with any display listed in S5.1 or in column 1 of Table 2, shall meet the requirements of this standard for the location, identification and illumination of such ... display." Column 1 of Table 2 includes, among other things, the seat belt telltale. This means that your company's voluntary addition of a pretensioner readiness indicator cannot be done in a way that would make the seat belt telltale fail to comply with the requirements of Standard No. 101.

Since Alternatives #1 and 2 would combine the seat belt telltale with the pretensioner malfunction indicator, the most relevant provisions in Standard No. 101 are those in S5.4. S5.4 reads, in part, as follows: S5.4 A common space may be used to display messages from any sources, subject to the following requirements: (a) The telltales for the brake, high beam, and turn signal, and the safety belt telltale required by S4.5.3.3 of Standard No. 208 may not be shown on the common space.

* * * * *

(e) The safety belt telltale must be displayed and visible during the time specified in S7.3 of Standard No. 208

These provisions expressly permit the use of a common space to display messages, except that four telltales cannot be displayed on common space. The relevant one of the four telltales that cannot be displayed on common space is the safety belt telltale REQUIRED BY S4.5.3.3 OF STANDARD NO. 208. S4.5.3.3 sets forth special telltale requirements that must be met by automatic belts. The safety belt telltale for the manual belts in Alternative #1 is required by S7.3(a)(2) and the safety belt telltale for the manual belts in Alternative #2 is required by S7.3(a)(1) of Standard No. 208. Since neither telltale is required by S4.5.3.3 of Standard No. 208, S5.4(a) of Standard No. 101 expressly permits the use of common space to show a pretensioner malfunction message and the seat belt telltales under Alternatives #1 and 2 in your letter.

Further, Alternatives #1 and 2 appear to comply with S5.4(e) of Standard No. 101. That subparagraph requires that the seat belt telltale must be displayed and visible during the time specified in S7.3 of Standard No.

208. For Alternative #1, S7.3(a)(2) requires the seat belt telltale to be visible for four to eight seconds after the ignition is turned "on". The information in your letter indicates that under Alternative #1, even in the event of a pretensioner malfunction, the only information that would be displayed in the common space during the four to eight second period would be the seat belt telltale. For Alternative #2, S7.3(a)(1) of Standard No. 208 requires that the seat belt telltale be visible for not less than 60 seconds after the ignition is turned "on," if the driver's lap belt is not in use. The information in your letter indicates that under Alternative #2, even in the event of a pretensioner malfunction, the seat belt telltale would continue to be displayed alternately with the pretensioner malfunction message until such time as the belt was fastened.

Based on this review, it appears that using common space to display a voluntary pretensioner malfunction message and the required seat belt telltale, in the manner set forth in Alternatives #1 and 2 in your letter, would not violate any provisions of the safety standards.

This leaves Alternative #3, in which the voluntary pretensioner telltale would share common space with the air bag readiness indicator. S4.5.2 of Standard No. 208 requires that the air bag have a readiness indicator, which monitors its readiness, and which is clearly visible from the driver's seating position. The requirements in S5(a) of Standard No. 101 do not include air bag readiness indicators. Therefore, the provisions of Standard No. 101 would not apply to Alternative #3. The only question under Alternative #3, then, is whether the combination of the voluntarily provided pretensioner telltale with the required air bag readiness indicator would result in the air bag readiness indicator failing to comply with Standard No. 208.

Based on the description in your letter, we believe that your proposed Alternative #3 would effectively prevent the air bag readiness indicator from complying with Standard No. 208. Therefore, vehicles equipped with the warning system described in Alternative #3 would not comply with Standard No. 208. This conclusion is based on the following.

It would be permissible under Standard No. 208 to use a common space to display messages for both air bag readiness and a pretensioner malfunction. Nothing in the Standard No. 208 requirement for an air bag readiness indicator either expressly or impliedly precludes the use of common space for displaying the air bag readiness indicator and some other message. However, the messages on the common space would have to be distinguishable from each other. If the messages were not distinguishable, the driver of the vehicle would not know if the illuminated telltale showed a problem with the air bag system or a problem with the other system being monitored. NHTSA concludes that the requirement in S4.5.2 of Standard No. 208 that an air bag system be equipped with a readiness indicator necessarily requires that the air bag readiness indicator be clearly and readily distinguishable by the driver from any other information. Your Alternative #3 would not provide a readily distinguishable air bag readiness indicator, and so would not appear to comply with Standard No. 208.

I hope this information is helpful. If you have any further questions or need some additional information on this subject, please feel free to contact Steve Kratzke of my staff at this address or by telephone at (202) 366-2992.

ID: nht75-4.28

DATE: 07/30/75

FROM: Z. TAYLOR VINSON FOR RICHARD B. DYSON -- NHTSA

TO: Truck Body and Equipment Association, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your letter of July 3, 1975, forwarding a copy of an earlier letter that evidently was never received by us. You asked whether a garbage truck that contained an auxiliary driver's position on the right side of the vehicle, with a separate set of controls, needs to have a seat at the auxiliary position, and whether access to such controls as the heater, wipers, and lights from this position is required.

We consider the standards relating to the driver's position as relating to the normal position, and not to an auxiliary driving position. The answer is no, therefore, to both of the above questions.

Yours Truly,

TRUCK BODY AND EQUIPMENT ASSOCIATION, INC.

July 3, 1975

Richard Dyson, Assistant Chief Counsel NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

Enclosed please find a copy of a letter submitted to the NHTSA Office of Chief Counsel on May 19, 1975. In addition to the original cover letter, there were sales documents, a vehicle performance analysis, and several other pieces of background information.

We are still waiting to receive an interpretation on the vehicle in question.

If I can be of any help in expediting this matter please feel free to contact me.

Byron A. Crampton Manager of Engineering Services

TRUCK BODY AND EQUIPMENT ASSOCIATION INC.

May 19, 1975

James Schulz Chief Counsel NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

Recently a member of TBEA's Refuse Body Division raised several questions concerning the applicability of certain Federal Motor Vehicle Safety Standards to a specific vocational vehicle.

The vehicle in question is a relatively new concept in a solid waste removal vehicle (Garbage Truck) designed for optimum manpower utilization. From the enclosed sales literature the basic operating configuration is apparent - a one man operation. The projected cost savings associated with this design are achieved by the reduction in the number of people required to operate these vehicles during the collection cycle. Aside from the cost savings benefits appreciated through this side loading type of collection vehicle, additional benefits are achieved in the area of operating safety. The one man side loading unit has been proven to be substantially safer to operate than the conventional rear loading unit.

The vehicle's construction is as unique as its operation. The conventional truck cab is partitioned off into two separate areas. The left hand section, equipped with (1) designated seating position, is conventionally controlled to allow for normal road operation to and from landfill areas. The right hand section of the cab is altered by removing the door, lowering the floor and installing an additional set of hand operated driver controls. This modified section then becomes a convenient stand-up curbside work station. The 500 to 600 stops per day require constant movement in and out of the vehicle and this curbside/curb level operating position allows the driver to easily move and load the collection vehicle. As stated earlier, there is no door, door hardware, or seating system located at the curbside control position.

With these facts in mind, are we correct in assuming that no seating system and corresponding hardware is required for this auxillary control position? In addition, is control accessibility required (i.e. heater, wipers, lights) for this auxillary control position?

Should any clarification be required, please feel free to contact me.

Byron A. Crampton Manager of Engineering Services

ID: nht95-1.13

TYPE: INTERPRETATION-NHTSA

DATE: January 5, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Ms. Robin R. Miller -- DaRosa and Miller

TITLE: NONE

ATTACHMT: Attached to 11/22/94 letter from Robin R. Miller to Mary Versailles (OCC 10327)

TEXT: Dear Ms. Miller:

This responds to your letter of November 22, 1994, requesting information on what type of occupant protection systems (seat belts and/or air bags) were required in four passenger cars. The passenger cars were manufactured by Excalibur Automobile Corpora tion (Excalibur) between January 10, 1994, and May 6, 1994.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized under Title 49, Chapter 301 of the U.S. Code to issue Federal motor vehicle safety standards that apply to the manufacture and sale of new motor ve hicles and new items of motor vehicle equipment. Chapter 301 prohibits any person from manufacturing, introducing into commerce, selling, or importing any new motor vehicle or item of motor vehicle equipment unless the vehicle or equipment item is in co nformity with all applicable safety standards. NHTSA does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

One of the standards established by NHTSA, Standard No. 208, Occupant Crash Protection (49 CFR 571.208) requires some type of occupant protection system to be installed at all designated seating positions in all passenger cars. Different installation req uirements apply depending on the seating position within the vehicle and the date of manufacture.

For passenger cars manufactured on or after September 1, 1989, but before September 1, 1996, Standard No. 208 requires automatic crash protection at every front outboard seating position. Automatic crash protection systems protect their occupants by mea ns that require no action by vehicle occupants. Compliance with the automatic crash protection requirements of Standard No. 208 is determined in a dynamic crash test. That is, a vehicle must comply with specified injury criteria, as measured on a test d ummy, in a 30 mph barrier crash test. The two types of automatic crash protection currently offered are automatic safety belts (which help to assure belt use) and air bags (which supplement safety belts and offer some protection even when safety belts a re not used).

In addition, for passenger cars manufactured on or after September 1, 1989, but before September 1, 1996, Standard No. 208 requires Type 2 belts at every forward facing rear outboard designated seating position, and a Type 1 or Type 2 seat belt assembly at every other seating position. Type 2 seat belt assemblies are defined in Standard No. 209, Seat Belt Assemblies, as "a combination of pelvic and upper torso restraints." Type 1 seat belt assemblies are defined in Standard No. 209 as "a lap belt for p elvic restraint."

You should be aware that Excalibur has applied for temporary exemption (49 CFR Part 555) from the automatic crash protection requirements of Standard No. 208 which would, if granted, apply to vehicles manufactured on or after the effective date of the ex emption. Excalibur has also asked that it apply to those vehicles already manufactured but unsold and in dealer inventory. In addition, the manufacturer has also applied for an exemption from notification and remedy of its noncompliance with the automa tic crash protection requirements on the basis that the noncompliance is inconsequential to motor vehicle safety (49 CFR Part 556). If granted, this would relieve Excalibur of the obligation to notify and remedy the noncompliance in vehicles already man ufactured and not covered by the safety exemption petition. Prior to acting upon either of these applications, NHTSA will publish notices in the Federal Register requesting comments.

I hope this information has been helpful. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

Sincerely

ID: 10527

Ms. Robin R. Miller
DaRosa and Miller
208 North West Street
P.O. Box 48
Wheaton, IL 60189-0048

Dear Ms. Miller:

This responds to your letter of November 22, 1994, requesting information on what type of occupant protection systems (seat belts and/or air bags) were required in four passenger cars. The passenger cars were manufactured by Excalibur Automobile Corporation (Excalibur) between January 10, 1994, and May 6, 1994.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized under Title 49, Chapter 301 of the U.S. Code to issue Federal motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. Chapter 301 prohibits any person from manufacturing, introducing into commerce, selling, or importing any new motor vehicle or item of motor vehicle equipment unless the vehicle or equipment item is in conformity with all applicable safety standards. NHTSA does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

One of the standards established by NHTSA, Standard No. 208, Occupant Crash Protection (49 CFR 571.208) requires some type of occupant protection system to be installed at all designated seating positions in all passenger cars. Different installation requirements apply depending on the seating position within the vehicle and the date of manufacture.

For passenger cars manufactured on or after September 1, 1989, but before September 1, 1996, Standard No. 208 requires automatic crash protection at every front outboard seating position. Automatic crash protection systems protect their occupants by means that require no action by vehicle occupants. Compliance with the automatic crash protection requirements of Standard No. 208 is determined in a dynamic crash test. That is, a vehicle must comply with specified injury criteria, as measured on a test dummy, in a 30 mph barrier crash test. The two types of automatic crash protection currently offered are automatic safety belts (which help to assure belt use) and air bags (which supplement safety belts and offer some protection even when safety belts are not used).

In addition, for passenger cars manufactured on or after September 1, 1989, but before September 1, 1996, Standard No. 208 requires Type 2 belts at every forward facing rear outboard designated seating position, and a Type 1 or Type 2 seat belt assembly at every other seating position. Type 2 seat belt assemblies are defined in Standard No. 209, Seat Belt Assemblies, as "a combination of pelvic and upper torso restraints." Type 1 seat belt assemblies are defined in Standard No. 209 as "a lap belt for pelvic restraint."

You should be aware that Excalibur has applied for temporary exemption (49 CFR Part 555) from the automatic crash protection requirements of Standard No. 208 which would, if granted, apply to vehicles manufactured on or after the effective date of the exemption. Excalibur has also asked that it apply to those vehicles already manufactured but unsold and in dealer inventory. In addition, the manufacturer has also applied for an exemption from notification and remedy of its noncompliance with the automatic crash protection requirements on the basis that the noncompliance is inconsequential to motor vehicle safety (49 CFR Part 556). If granted, this would relieve Excalibur of the obligation to notify and remedy the noncompliance in vehicles already manufactured and not covered by the safety exemption petition. Prior to acting upon either of these applications, NHTSA will publish notices in the Federal Register requesting comments.

I hope this information has been helpful. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

ref:208 d:1/5/95

ID: nht92-2.31

DATE: 11/13/92

FROM: PAUL JACKSON RICE -- CHIEF COUNSEL, NHTSA

TO: MARK W. STEVENS -- CHAIRMAN, SEATMORE

ATTACHMT: ATTACHED TO LETTER DATED 10-2-92 FROM MARK W. STEVENS TO PAUL J. RICE (OOC 7809)

TEXT: This responds to your letter of October 2, 1992 requesting information on standards applicable to an "after market 3rd rear facing seat for the Ford- Taurus and Mercury Sable station wagons 1986-1993." During an October 20, 1992 phone conversation with Mary Versailles of my staff you explained that in most instances these seats are sold for installation in used vehicles, by either the owner or by a dealer or repair business. You also stated that the seat might be installed by a dealer prior to the vehicle's sale. Your three questions and the answer to each follows.

Before I address the substance of your letter, I note that your letter requested that the product information enclosed with your letter be treated as confidential. Your request for confidentiality was denied in an October 27, 1992 letter signed by Kathleen DeMeter, our Assistant Chief Counsel for General Law. Accordingly, the product information enclosed with your letter has been placed in NHTSA's public docket, along with your letter and this reply.

1. Does the aftermarket 3rd rear facing station wagon system have to be tested in compliance with FMVSS 207, 209, & 210?

The National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1381 et seq.) authorizes this agency to issue Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. Section 108 (a) (1) (A) of the Safety Act (15 U.S.C. 1397 (a) (1) (A) prohibits any person from manufacturing, introducing into commerce, selling, or importing any new motor vehicle or item of motor vehicle equipment unless the vehicle or equipment item is in conformity with all applicable safety standards. NHTSA, however, does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products.

Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

NHTSA has exercised its authority to establish five safety standards which could be applicable to a 3rd rear facing vehicle seat: Standard No. 207, Seating Systems, Standard No. 208, Occupant Crash Protection, Standard No. 209, Seat Belt Assemblies, Standard No. 210, Seat Belt Assembly Anchorages, and Standard No. 302, Flammability of Interior Materials.

Standard No. 209 sets forth strength, elongation, webbing width, durability, and other requirements for seat belt assemblies. This standards applies to all seat belt assemblies for use in motor vehicles, regardless of whether the belts are installed as original equipment in a motor vehicle or sold as replacements. Hence, any seat belts installed on the 3rd rear facing seat have to be certified as complying with Standard No. 209.

The remaining four standards apply only to new vehicles. If the 3rd rear facing seat were installed before the vehicle's first purchase for purposes other than resale, the vehicle would have to be certified as complying with all applicable standards, including these four, with the 3rd rear facing seat installed. Standard No. 207 establishes strength and other performance requirements for vehicle seats. Standard No. 208 sets forth requirements for occupant protection at the various seating positions in vehicles. Standard No. 210 establishes strength and location requirements for seat belt anchorages. Finally, Standard No. 302 specifies burn resistance requirements for materials used in motor vehicles, specifically including seat cushions, seat backs, and seat belts.

After a vehicle's first purchase for purposes other than resale; i.e., the first retail sale of the vehicle, the only provision in Federal law that affects a vehicle's continuing compliance with an applicable safety standard is set forth in section 108 (a) (2) (A) of the Safety Act (15 U.S.C. 1397 (a) (2) (A). That section provides 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 . . . in compliance with an applicable Federal motor vehicle safety standard.

Any violation of this "render inoperative" prohibition would subject the violator to a potential civil penalty of up to $ 1,000 for each violation. Please note that the "render inoperative" prohibition does not require manufacturers, distributors, dealers, and repair businesses to certify that vehicles continue to comply with the safety standards after any aftermarket modifications are made. Instead, "render inoperative" prohibits those entities from performing aftermarket modifications that they know or should know will result in the vehicle no longer complying with the safety standards.

Please note also that the "render inoperative" prohibition does not apply to modifications vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where individual vehicle owners install your company's 3rd seat in their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, individual States have the authority to regulate modifications that individual vehicle owners may make to their own vehicles.

2. The seat belt anchorages are Ford factory anchorages built into the car at the factory and designed for the Ford factory 3rd seat and seat belts. We will be using the same anchorages with aftermarket seat belts already in compliance. Is a test required for this system?

As noted above, if these 3rd seats are installed in a vehicle prior to the vehicle's first sale for purposes other than resale, the vehicle must be certified as complying with all applicable safety standards with the 3rd seat installed. NHTSA's position on what steps manufacturers must take before certifying that their vehicles or equipment comply with applicable safety standards has been often stated and applies with equal force in your situation. The compliance test procedures set forth in the safety standards must be followed by this agency during our compliance testing. With respect to your company's 3rd seats, this means that NHTSA's compliance testing for the vehicle would be conducted using the test procedures set forth in the relevant safety standard or standards.

Manufacturers certifying compliance with the safety standards are not required to follow exactly the compliance test procedures set forth in the applicable standard. In fact, manufacturers are not required to conduct any actual testing before certifying that their products comply with applicable safety standards. However, to avoid liability for civil penalties if the vehicle were determined not to comply with a safety standard, the Safety Act requires the certifying manufacturer to exercise "due care" to assure compliance and in making its certification. It may be simplest for the manufacturer to establish that it exercised "due care" if the manufacturer has conducted testing that strictly followed the compliance test procedures set forth in the standard. However, "due care" might also be shown by using modified test procedures, engineering analyses, computer simulations, and the like. Thus, the entity that installs your company's 3rd seat in a vehicle prior to the vehicle's first sale will have to decide for itself, in the first instance, what information it needs to make its certification in the exercise of "due care."

If the 3rd seat were installed after the first purchase of the vehicle in good faith for purposes other than resale, no certification would be required. Instead, any manufacturer, distributor, dealer, or repair shop that performed the installation would have to ensure that the installation did not "render inoperative" compliance with any applicable safety standard. Actual testing is not required to avoid violating the "render inoperative" prohibition. Instead, your company could carefully examine your product and the proposed installation instructions and compare those with the requirements of the safety standards, to determine if installing your product in accordance with your instructions would result in the vehicle no longer complying with the standards.

3. If testing is required, must they be specifically Static Tested or Dynamic Crash Tested?

Testing is required only in agency compliance testing, as explained above. Agency testing must be conducted in accordance with the test procedures specified in the applicable standard. I note, however, that the dynamic crash testing requirement in Standard No. 208 applies only to the front outboard seating positions.

For your information, I have enclosed a sheet for new manufacturers that identifies the basic requirements of our standards and regulations, as well as how to get copies of those standards and regulations. I hope you find this information helpful. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

ID: 7809

Mark W. Stevens
Chairman
SeatMore
1091 Industrial Rd.
Suite 240
San Carlos, CA 94070

Dear Mr. Stevens:

This responds to your letter of October 2, 1992 requesting information on standards applicable to an "after market 3rd rear facing seat for the Ford Taurus and Mercury Sable station wagons 1986-1993." During an October 20, 1992 phone conversation with Mary Versailles of my staff you explained that in most instances these seats are sold for installation in used vehicles, by either the owner or by a dealer or repair business. You also stated that the seat might be installed by a dealer prior to the vehicle's sale. Your three questions and the answer to each follows.

Before I address the substance of your letter, I note that your letter requested that the product information enclosed with your letter be treated as confidential. Your request for confidentiality was denied in an October 27, 1992 letter signed by Kathleen DeMeter, our Assistant Chief Counsel for General Law. Accordingly, the product information enclosed with your letter has been placed in NHTSA's public docket, along with your letter and this reply.

1. Does the aftermarket 3rd rear facing station wagon system have to be tested in compliance with FMVSS 207, 209, & 210?

The National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1381 et seq.) authorizes this agency to issue Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) prohibits any person from manufacturing, introducing into commerce, selling, or importing any new motor vehicle or item of motor vehicle equipment unless the vehicle or equipment item is in conformity with all applicable safety standards. NHTSA, however, does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

NHTSA has exercised its authority to establish five safety standards which could be applicable to a 3rd rear facing vehicle seat: Standard No. 207, Seating Systems, Standard No. 208, Occupant Crash Protection, Standard No. 209, Seat Belt Assemblies, Standard No. 210, Seat Belt Assembly Anchorages, and Standard No. 302, Flammability of Interior Materials.

Standard No. 209 sets forth strength, elongation, webbing width, durability, and other requirements for seat belt assemblies. This standard applies to all seat belt assemblies for use in motor vehicles, regardless of whether the belts are installed as original equipment in a motor vehicle or sold as replacements. Hence, any seat belts installed on the 3rd rear facing seat have to be certified as complying with Standard No. 209.

The remaining four standards apply only to new vehicles. If the 3rd rear facing seat were installed before the vehicle's first purchase for purposes other than resale, the vehicle would have to be certified as complying with all applicable standards, including these four, with the 3rd rear facing seat installed. Standard No. 207 establishes strength and other performance requirements for vehicle seats. Standard No. 208 sets forth requirements for occupant protection at the various seating positions in vehicles. Standard No. 210 establishes strength and location requirements for seat belt anchorages. Finally, Standard No. 302 specifies burn resistance requirements for materials used in motor vehicles, specifically including seat cushions, seat backs, and seat belts.

After a vehicle's first purchase for purposes other than resale; i.e., the first retail sale of the vehicle, the only provision in Federal law that affects a vehicle's continuing compliance with an applicable safety standard is set forth in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section provides 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 ... in compliance with an applicable Federal motor vehicle safety standard.

Any violation of this "render inoperative" prohibition would subject the violator to a potential civil penalty of up to $1,000 for each violation. Please note that the "render inoperative" prohibition does not require manufacturers, distributors, dealers, and repair businesses to certify that vehicles continue to comply with the safety standards after any aftermarket modifications are made. Instead, "render inoperative" prohibits those entities from performing aftermarket modifications that they know or should know will result in the vehicle no longer complying with the safety standards.

Please note also that the "render inoperative" prohibition does not apply to modifications vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where individual vehicle owners install your company's 3rd seat in their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, individual States have the authority to regulate modifications that individual vehicle owners may make to their own vehicles.

2. The seat belt anchorages are Ford factory anchorages built into the car at the factory and designed for the Ford factory 3rd seat and seat belts. We will be using the same anchorages with aftermarket seat belts already in compliance. Is a test required for this system?

As noted above, if these 3rd seats are installed in a vehicle prior to the vehicle's first sale for purposes other than resale, the vehicle must be certified as complying with all applicable safety standards with the 3rd seat installed. NHTSA's position on what steps manufacturers must take before certifying that their vehicles or equipment comply with applicable safety standards has been often stated and applies with equal force in your situation. The compliance test procedures set forth in the safety standards must be followed by this agency during our compliance testing. With respect to your company's 3rd seats, this means that NHTSA's compliance testing for the vehicle would be conducted using the test procedures set forth in the relevant safety standard or standards.

Manufacturers certifying compliance with the safety standards are not required to follow exactly the compliance test procedures set forth in the applicable standard. In fact, manufacturers are not required to conduct any actual testing before certifying that their products comply with applicable safety standards. However, to avoid liability for civil penalties if the vehicle were determined not to comply with a safety standard, the Safety Act requires the certifying manufacturer to exercise "due care" to assure compliance and in making its certification. It may be simplest for the manufacturer to establish that it exercised "due care" if the manufacturer has conducted testing that strictly followed the compliance test procedures set forth in the standard. However, "due care" might also be shown by using modified test procedures, engineering analyses, computer simulations, and the like. Thus, the entity that installs your company's 3rd seat in a vehicle prior to the vehicle's first sale will have to decide for itself, in the first instance, what information it needs to make its certification in the exercise of "due care."

If the 3rd seat were installed after the first purchase of the vehicle in good faith for purposes other than resale, no certification would be required. Instead, any manufacturer, distributor, dealer, or repair shop that performed the installation would have to ensure that the installation did not "render inoperative" compliance with any applicable safety standard. Actual testing is not required to avoid violating the "render inoperative" prohibition. Instead, your company could carefully examine your product and the proposed installation instructions and compare those with the requirements of the safety standards, to determine if installing your product in accordance with your instructions would result in the vehicle no longer complying with the standards.

3. If testing is required, must they be specifically Static Tested or Dynamic Crash Tested?

Testing is required only in agency compliance testing, as explained above. Agency testing must be conducted in accordance with the test procedures specified in the applicable standard. I note, however, that the dynamic crash testing requirement in Standard No. 208 applies only to the front outboard seating positions.

For your information, I have enclosed a sheet for new manufacturers that identifies the basic requirements of our standards and regulations, as well as how to get copies of those standards and regulations. I hope you find this information helpful. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel Enclosure ref:VSA#207#208#209#210#302 d:11/13/92

ID: nht91-3.43

DATE: May 8, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: George Ziolo

TITLE: None

ATTACHMT: Attached to letter dated 3-18-91 from George Ziolo to Administrator, US DOT/NHTSA (OCC 5853)

TEXT:

This responds to your letter styled as a "Petition for Rectification of an Error" in Standard No. 208, Occupant Crash Protection (49 CFR 571.208). Your letter suggested that the version of Standard No. 208 published in the October 1990 edition of the Code of Federal Regulations retroactively changed the requirements for vehicles manufactured between January 1, 1972 and August 31, 1989. You stated that this change consisted of a new requirement that the manual belts at ALL front seating positions be equipped with a warning system to show when the belt is not fastened, whereas previously only manual belts at the driver's position had to be equipped with such a warning system. The change to Standard No. 208's warning system requirement identified in your letter was never made, so no action by the agency is necessary to alleviate your concerns. A detailed explanation is set forth below.

In your letter, you identified several sections of Standard No. 208 in the October 1990 version of Title 49 of the Code of Federal Regulations that, in your view, require safety belt warning systems at front seating positions in addition to the driver's seat. You asserted that S4.1.1.3.1(a) and S4.1.1.3.2 require the front outboard passenger's safety belt in vehicles manufactured between January 1, 1972 and August 31, 1973 to be equipped with a warning system, while the front outboard and front center passenger's safety belt are required to be equipped with a warning system by S4.1.2.3.1(a) and (b) and S4.1.2.3.2. Your assertions of the meaning of these sections are incorrect.

At the outset, we note that the versions of the sections of Standard No. 208 that were identified in your letter are verbatim identical in the October 1990 version of Title 49 of the Code of Federal Regulations to the October 1989 version of those sections and to every version of those sections of Standard No. 208 that has been published since 1984, when the automatic crash protection requirements were reinstated in Standard No. 208. Accordingly, it is not clear why you believe that the October 1990 version of these sections of Standard No. 208 wrought any change.

The sections of Standard No. 208 identified in your letter all require various front seating positions to be equipped with "a seat belt warning system that conforms to S7.3." S7.3 of Standard No. 208 establishes requirements for a warning system only at the driver's seating position. Thus, a vehicle that has a conforming warning system for the driver's position only would comply with S7.3 and all other sections of Standard No. 208 that require safety belts to be equipped with a warning system. This has been the agency's position for many years now and it has not been modified by anything in the October 1990 version of Standard No. 208.

I hope this information is helpful.

ID: 22052

Mr. Wade Vandiver
Hays, McConn, Rice & Pickering
400 Two Allen Center
1200 Smith Street
Houston, TX 77002





Dear Mr. Vandiver:

This responds to your letter in which you request information on Federal seat belt regulations. I apologize for the delay in our response. Your letter raises the issue of whether Federal law requires a person who is not a manufacturer, distributor, dealer or repair business and who installs temporary benches in the bed of a used pickup truck to equip each seating position with a seat belt. As discussed below, the answer is no.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards applicable to the manufacture and sale of new motor vehicles and items of motor vehicle equipment. NHTSA has exercised this authority to establish Federal Motor Vehicle Safety Standard No. 208, Occupant Crash Protection (49 CFR 571.208), which specifies performance requirements for the protection of vehicle occupants in crashes. Standard No. 208 required model year 1988 pickup trucks to have a Type 2 (lap/shoulder) seat belt assembly at each forward-facing front outboard designated seating position, and either a Type 1 (lap) or Type 2 seat belt assembly at all other designated seating positions.

NHTSA's safety standards apply only to new motor vehicles and new motor vehicle equipment. Since the benches were installed in the pickup bed after the first purchase of the vehicle, Standard No. 208 does not apply directly to those benches. However, 49 U.S.C. 30122(b) applies in the case of used as well as new vehicles. That section reads as follows:

A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable safety standard prescribed under this chapter unless the manufacturer, distributor, dealer, or repair business reasonably believes the vehicle or equipment will not be used (except for testing or a similar purpose during maintenance or repair) when the device or element is inoperative.

Section 30122(b) does not affect modifications made by vehicle owners to their own vehicles. Accordingly, looking at the specific factual situation identified by your letter, modifications made by a contractor who has been provided a vehicle for the contractor's sole use and operation are not subject to the provisions of this section .

As I am sure you are aware, however, individual States have the authority to regulate modifications that vehicle owners may make to their own vehicles and the operation of these vehicles. We offer no view on the impact of such State laws or whether they would apply to the operation of vehicles off of public roadways. Therefore, you should determine if any state laws govern this particular modification. In addition, while Federal law does not apply to a modification an individual makes to his or her own vehicle, NHTSA urges vehicle owners to exercise care when installing new seats, and to install seat belts for each seating position.

I hope you find this information useful. If you have any further questions, please feel free to contact Otto Matheke in NHTSA's Office of Chief Counsel at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:208
d.4/26/01