ID: nht75-6.20

DATE: 03/21/75

FROM: BYRON CRAMPTON -- TRUCK BODY AND EQUIPMENT ASSOCIATION MANAGER OF ENGINEERING SERVICES

TO: CHIEF COUNSEL NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 08/19/75 EST, FROM RICHARD B. DYSON TO BYRON CRAMPTON; N40-30; OPINION FILE, STANDARD 108

TEXT: Dear Sir:

Recently several members of the Truck Body and Equipment Association have raised questions concerning state versus federal motor vehicle lighting requirements.

The vehicle in question is a multipurpose passenger vehicle less than eighty (80) inches wide, equipped with a raised roof.

Our question is as follows: Can a state require a motor vehicle to be equiped with lights not required under FMVSS #108?

Thanking you in advance for your help, I am,

Very truly yours,

ID: nht75-6.21

DATE: 02/28/75

FROM: RICHARD B. DYSON -- NHTSA ASSISTANT CHIEF COUNSEL

TO: GERHARD P. RIECHEL -- ATTORNEY VOLKSWAGEN OF AMERICA, INC.

TITLE: N40-30

ATTACHMT: LETTER DATED 12/11/74 FROM GERHARD P. RIECHEL TO TAYLOR VINSON -- NHTSA, STANDARD 105-FAILURE INDICATOR LAMP

TEXT: Dear Mr. Riechel:

This responds to Volkswagen's December 11, 1974, request for a determination that a brake system indicator lamp which activates only upon application of the brake pedal with a control force of 50 pounds or more to signal a "gross loss of pressure" would meet the requirement of S5.3.3 of Standard No. 105-75, Hydraulic brake systems:

S5.3.3 Each indicator lamp activated due to a condition specified in S5.3.1 shall remain activated as long as the condition exists, whenever the ignition (start) switch is in the "on" ("run") position, whether or not the engine is running.

Your question arises as to the meaning of the phrase in S5.3.3 which requires that the lamp "remain activated as long as the condition exists", with reference to the condition described in S5.3.1(a) as "gross loss of pressure (such as caused by rupture of a brake line but not by a structural failure of a housing that is common to two or more subsystems)". You point out that a condition involving loss of pressure cannot exist in the absence of pressure, that is, after control force is removed from the brake pedal.

While the NHTSA has always believed that the requirement in question can best be satisfied by an indicator lamp which remains activated after the loss of pressure has occurred, we agree that the language in question could be more clearly drafted to express this intent. Accordingly, we plan to propose an amendment to the standard to eliminate this ambiguity. The proposed effective date of the amendment

will be far enough in the future so that any new design changes required to comply may be effected without undue burden on affected manufacturers.

Because we conclude that the reliance Volkswagen has placed on its alternative reading of S5.3.3 can be justified in this case, we would accept the limited warning offered by the system you describe as satisfying the current requirement in S5.3.3 with regard to S.5.3.1(a).

Yours truly,

ID: nht75-6.22

DATE: 08/19/75 EST

FROM: RICHARD B. DYSON -- NHTSA ASSISTANT CHIEF COUNSEL

TO: BYRON CRAMPTON -- BODY AND EQUIPMENT ASSOCIATION INC

COPYEE: MARTIN; ROGERS; OYLES; P.W MAURER

TITLE: N40-30

ATTACHMT: LETTER DATED 03/21/75 FROM BYRON CRAMPTON TO NHTSA

TEXT: Dear Mr. Crampton:

This is in response to your letter of March 21, 1975 inquiring whether a State may require a motor vehicle to be equipped with lights not required under Federal Motor Vehicle Safety Standard No. 108.

In your phone conversation of March 28 with Mr. Robert Donin of this office you indicated that the vehicle in question was an ambulance outfitted with a raised roof designed to enable medical personnel to stand inside. The raised top increases the height of the vehicle to 9 feet. You stated that although you could not identify the specific State statute involved, it was your understanding that Virginia requires clearance lights near the top of all vehicles over 7 feet in height. The law to which you apparently were referring is Virginia Motor Vehicle Code@46.1-265. A copy is enclosed. It states in part:

(a) All motor vehicles, trailers or semitrailers exceeding seven feet in height or in width or the widest portion of which extends four inches beyond the front fender extremes shall be equipped with lamps mounted at the extreme right- and left-hand front top corners of such vehicle, each of which lamps shall be capable of projecting an amber light visible in clear weather for a distance of at least five hundred feet to the front of such vehicle, and shall be equipped with lamps mounted at the extreme right-and left-hand rear top corners of such vehicle, each of which lights shall be capable of projecting a red light visible in clear weather for a distance of at least five hundred feet to the rear of such vehicle; ***

(b) In addition to the lamps required herein, each such vehicle shall be equipped with amber reflectors located on the side thereof, at or near the front. Red reflectors shall be used on the rear of each such vehicle. Such reflectors shall be securely fastened to the vehicle not less than twenty-four inches and not more than sixty inches from the ground, provided that in the case of a vehicle which is less than twenty-four inches in height such reflectors shall be securely fastened thereto at the highest point the structure of the vehicle will permit. The reflectors required therein shall be of a type that have been approved by the Superintendent. ***

It is important to note that the Virginia Motor Vehicle Code also provides in$46.1-267: ***

No motor vehicle shall be operated on any highway which is equipped with any lighting device other than lamps required or permitted in this article or required or approved by the Superintendent or required by the Federal Department of Transportation.

As you may know, section 103(d) of the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1392(d) provides that no State or political subdivision of a State may promulgate or continue in effect safety standards applicable to an aspect of motor vehicle or motor vehicle equipment performance covered by a Federal motor vehicle safety standard, unless the standards are identical. By virtue of this provision, the Federal government is said to "preempt" the field of regulation with respect to any aspect of performance for which there is a Federal Motor Vehicle Safety Standard.

The key question, therefore, is whether Federal Standard No. 108 and Virginia Motor Vehicle Code @ 46.1-265 regulate the same "aspect of performance." If so, Virginia may not apply its requirement unless the Federal and Virginia requirements are identical. From a comparison of the two laws, it is evident that both address the same aspect of performance and that they are not identical:

* Both the Federal and Virginia laws apply to ambulances. An ambulance is a multipurpose passenger vehicle, under Federal Standard No. 108 and a "motor vehicle" under Virginia Code 46.1-265.

* Both laws require that the vehicle be equipped with lights at certain specified locations to facilitate recognition of its dimensions.

* The configuration and color of the lights required by the two laws differ.

Consequently Federal Standard No. 108 is preemptive, and to the extent that they differ from the Federal requirements the state clearance lamp and reflector requirements quoted are void. The language of Virginia Code @ 46.1-267, to the effect that lighting devices may conform to Virginia or Federal standards, is incorrect.

ENCLOSURE

Sincerely,

ID: nht75-6.23

DATE: 01/01/75 EST

FROM: RICHARD B. DYSON -- NHTSA ASSISTANT CHIEF COUNSEL

TO: ALLAN B. FREDHOLD -- GENERAL MANAGER K-B AXLE CO., INC.

TITLE: N40-30 (TWH)

ATTACHMT: LETTER DATED 4/16/75 FROM RICHARD B. DYSON -- NHTSA CHIEF COUNSEL TO GEOFFREY R. MYERS OF HALL AND MYERS; UNDATED LETTER FROM RICHARD B. DYSON -- NHTSA CHIEF COUNSEL TO ADDRESSEE UNKNOWN

TEXT: Dear Mr. Fredhold:

This responds to K-B Axle Company's March 4, 1975, request for guidance in assisting K-B's customers in meeting their certification responsibilities under Standard No. 121, Air brake systems.

Standard No. 121 specifies air brake performance requirements (and some equipment requirements) which newly-manufactured trucks, buses, and trailers must be capable of meeting. For example, the standard specifies that if a truck or bus, in the loaded and unloaded condition, is stopped six times from 60 mph on certain test surfaces, it must be capable of stopping at least once in 258 feet without leaving a 12-foot wide lane and without uncontrolled wheel lockup.

Many manufacturers incorrectly assume that this requirement means that, in order to certify that it has this capability, each vehicle produced must actually be tested from 60 mph on a test track. In fact the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1391, et. seq.) specifies the manufacturer's certification responsibility, which is to exercise "due care" that the vehicle or item of equipment is capable of meeting all requirements.

NHTSA has made clear in the past, and has emphasized in its implementation of Standard No. 121, that a manufacturer is free to use whatever method is reasonably calculated to fulfill his responsibility to exercise due care. To cite a simple example, if a safety standard specifies that a certain safety device be no less than 8 inches above the ground, it would not be necessary to measure the height of each safety device on each vehicle produced to assure in the exercise of due care that it complies.

Standard No. 121, of course, establishes more complex performance requirements, and they would be affected by the addition of your "tag" or "pusher" axles. Most final-stage manufacturers and alterers feel confident that they can meet such requirements as minimum air tank volume when they add a third axle. In more complex areas, however, they require some reasonable basis on which to certify, in the exercise of due care, that the vehicle still is capable of stopping within the required distance, and that the brake actuation and release times still meet the minimum performance levels of the standard.

As noted earlier, the standard and our statute do not require road testing as the basis of certification. NHTSA, in a preamble to Standard No. 121 recognized:

What constitutes due care in a particular case depends on all relevant facts, including such things as the time to elapse before a new effective date, the availability of test equipment, the limitations of current technology, and above all the diligence evidenced by the manufacturer.

Road testing would be one method of exercising due care. Your customers, of course, may not have the capability to conduct road testing.

As a supplier of the added component, you are in a good position to develop engineering data on the effect your axle has when added to a 121 vehicle. For example, you could add your axle to a 121 chassis with a representative body and conduct a road test to see that the vehicle with the added axle and gross vehicle weight would still meet the stopping distance requirements. You might also test the actuation and release times on this vehicle to see that the axle addition does not cause non-conformity. This experimentation would permit you to make general statements about the conditions under which your axle could be added to a 121-type chassis without causing non-conformity.

Although retardation force is not a requirement for a vehicle other than a trailer, you suggest use of dynamometer data as a basis of certification. Such information would be a valid basis of certification if it is shown that a reasonable correlation exists between the retardation forces you specify and the actual ability of the modified truck to stop.

Yours truly,

ID: nht75-6.24

DATE: 04/16/75

FROM: RICHARD B. DYSON -- NHTSA ASSISTANT CHIEF COUNSEL

TO: GEOFFREY R. MYERS -- HALL & MYERS

TITLE: N40-30 (RED)

ATTACHMT: ATTACHED TO 01/01/75 (EST) LETTER FROM RICHARD B. DYSON -- NHSTA CHIEF COUNSEL TO ALLEN B. FREDHOLD OF K-B AXLE COMPANY INC.; N40-30 (TWH); UNDATED LETTER FROM RICHARD B. DYSON -- NHSTA CHIEF COUNSEL TO ADDRESSEE UNKNOWN

TEXT: Dear Mr. Myers:

This is in response to your letter of March 25, 1975, enclosing a circular to Truck Equipment and Body Distributors Association members, and a petition containing questions concerning the position of the NHTSA regarding conformity to Standard 121 by persons who alter chassis prior to their completion as trucks or truck tractors. You asked that we comment on your circular and answer the questions in your petition. In the interest of a rapid reply, I would like to respond in this letter to your request concerning your circular. We will answer separately the questions in your petition.

I will quote from our docketed memorandum of the meeting that we had on March 19:

"Under NHTSA interpretations and opinions of long standing, actual road tests are not necessary to establish compliance with Standard 121 or other standards, where other reasonable means, such as engineering calculations coupled with laboratory tests, can be used to the same effect. The agency has recognized that small companies' such as many of the finalstage and intermediate manufacturers represented by the TEBDA, cannot be expected to test on the same scale or by the same methods as large integrated automotive manufacturers. Supplier warranties and instructions are one of the primary means by which smaller assemblers are expected to use statutory "due care" to see that their products conform."

You and the association have attempted to set forth our position to your clients, and I don't want to quibble over the precise form of words that you choose. On the other hand, I don't believe the agency should be in the position of appearing to endorse a description of its position that does not conform to its own statements.

Paragraph 5 of the circular represents us as having said that "road tests and the testing of brake release and actuation times are NOT REQUIREMENTS of the standard, but merely methods of assuring compliance." This point is not incorrect, but could be misunderstood out of context. Our position here is not limited to road tests or even Standard 121, but applies to all the requirements of all the motor vehicle safety standards. The standards describe the required capabilities of the vehicles in question; they are not instructions to the manufacturer as to how he ensures those capabilities. Thus, the standard does not specify who must test what and how. It requires that vehicles be capable of meeting the tests when the government tests them, and that manufacturers (including intermediate and final-stage manufacturers) use due care to see that they are so capable.

In the sixth paragraph, the circular states that

"you may still certify a vehicle under FMVSS 121 (even if you increase the GVW, move component parts and/or do not have available the height of the body's center of gravity), provided that your own expertise and judgment reasonably indicates to you that your work has not adversely affected the chassis maker's conformance statements. In other words, you must have no real reason to believe that the completed vehicle does not comply with FMVSS 121. (And this is true even if your reasonable judgment later proves to be wrong.)"

The key word in this passage is "reasonable." The judgment by which the alteration is made must indeed be reasonable to satisfy the due care test. The sentence beginning "In other words" may be misleading, if it leads the reader to believe that blissful ignorance is enough. In case of a failure to comply, a vehicle alterer should be prepared to show, where he used calculations, for example, that the calculations were a reasonable interpretation of the information that was available to him. If a company does not have the in-house capability of making such calculations and judgments, it should obtain it from outside sources such as suppliers or independent contractors. We noted at the meeting on which the circular was based that persons from the axle supplier represented indicated that they were prepared to assist their customers (such as the association members) in this regard.

You should note that our discussion of due care does not deal with the question of what action must be taken by a manufacturer by way of remedy, if a nonconformity is discovered in his vehicles that is not "inconsequential" within the meaning of section 157 of the Act (1974 Amendments). Except for the case of an inconsequentiality finding, the duty to remedy a nonconformity exists regardless of prior testing or any other measures taken by the manufacturer.

Yours truly,

ID: nht75-6.25

DATE: 05/02/75

FROM: JAMES C. SCHULTZ -- NHTSA CHIEF COUNSEL

TO: FRAZER F. HILDER -- GENERAL COUNSEL GENERAL MOTORS CORPORATION

TITLE: N40-30

TEXT: Dear Mr. Hilder:

This is in response to your letter of March 21, 1975, inquiring as to the effect of Federal Motor Vehicle Safety Standard No. 121 on Massachusetts and New Jersey State laws relating to air brake performance.

As you are aware, section 103(d) of the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1392(d)) provides that no State or political subdivision of a State may promulgate or continue in effect standards applicable to an aspect of motor vehicle or motor vehicle equipment performance which is covered by a Federal Motor vehicle safety standard, unless the standards are identical.

Standard No. 121 includes provisions relating to truck and bus brake performance, including requirements for stopping distances. A more restrictive State brake requirement than that specified in Standard 121 is voided by @ 103(d) since the Federal standard is intended to cover all aspects of air brake performance.

The Federal requirements must be regarded as conclusive with regard to service, emergency, and parking braking capabilities in order to maintain the uniformity necessary in a Federal regulatory scheme. This was affirmed in a recent decision rendered in a case brought by the Motorcycle Industry Council, Inc. against the State of California in the United States District Court for the Eastern District of California concerning the preemption of a California State requirement that Motorcycle headlamps be wired to operate when the engine is running. The Court held that the California requirement is preempted by the Federal Motor Vehicle Safety Standard No. 108 since the National Highway Traffic Safety Administration intended to cover all aspects of performance directly involving motorcycle headlamps.

Therefore, requirements such as those described in your letter would be preempted by Standard 121 since the aspects of performance that would be affected are covered by the Federal standard. You should note that this discussion of State "requirements" only refers to rules of general applicability within a State or municipality. It does not refer to purchase specifications that may be imposed by any person or organization, including a State or municipality, with respect to vehicles purchased for the person or organization's own use. Such specifications are not limited by Federal law, and in the case of governmental bodies are specifically allowed by @ 103(d), although of course they cannot alter a manufacturer's duty to conform to Federal standards.

Sincerely,

ID: nht75-6.26

DATE: 06/02/75

FROM: JAMES B. GREGORY -- NHTSA ADMINISTRATOR

TO: DAVID E. MARTIN -- DIRECTOR AUTOMOTIVE SAFETY ENGINEERING GENERAL MOTORS CORPORATION

TITLE: N40-30

TEXT: Dear Mr. Martin:

This responds to your December 17, 1974, and March 31, 1975, letters asking whether your proposed inertia seatback latch meets the requirements of Federal Motor Vehicle Safety Standard No. 207, Seating Systems.

After carefully examining the mechanism, considering General Motors' arguments in its favor, and meeting twice with GM representatives, we have decided that the proposed inertia latch would not comply with S4.3.1 of FMVSS 207 unless an emergency release were added to enable someone to override the automatic locking mechanism when necessary.

We agree with GM that the proposed seatback latch is an improvement in some respects over current designs. The latch provides added convenience for rear seat occupants since under normal circumstances they may fold the seat forward by simply pushing on the seatback. We also recognize that there may be a safety advantage in certain circumstances requiring fast exit from the vehicle in that the passenger will not have to fumble for a latch, which, though readily accessible, is neither in the same location nor operated in a similar manner in all cars. Your proposed design also avoids a serious problem of some current latches: namely, that they will not release if even light pressure is applied against the seatback in a forward direction. The National Highway Traffic Safety Administration is seriously considering action on this problem.

Despite these advantages, GM's proposed inertia latch would satisfy neither the intent nor the wording of S4.3.1 of FMVSS 207 because it would not release when the vehicle is upside down or upright at a pitch attitude exceeding a 32% downgrade. Such vehicle positions are not uncommon in accident situations and GM's own figures indicate that "100 rear seat occupants per year could be hindered in leaving the vehicle under circumstances which would make prompt egress important." S4.3.1 requires that "the control for releasing the (self-locking seatback) device shall be readily accessible to the occupant of the seat . . . and . . . to the occupant of the designated seating position immediately behind the seat." Under normal conditions the seatback itself would be the control for your latch and it is certainly readily accessible. When the vehicle is nose down or inverted, however, the seatback would not perform this function and there would consequently be no readily accessible control for releasing the self-locking device.

Because it is often important for passengers in post-accident situations immediately to leave or be removed from a vehicle, for any number of reasons including fire, serious bleeding or hazardous vehicle location, it seems especially important that a seatback release control operate under these circumstances. Adding an emergency latch lock override to the inertia latch design would avoid this problem while retaining the previously mentioned advantages of your design.

Sincerely,

ID: nht75-6.27

DATE: 08/18/75

FROM: FRANK A. BERNDT -- NHTSA ACTING CHIEF COUNSEL

TO: WALTER C. BURVILLE -- MANAGER, UNDERWRITING SURVEY DEPARTMENT CHUBB/PACIFIC INDEMNITY GROUP

TITLE: N40-30

ATTACHMT: ATTACHED TO LETTER DATED 7/18/75 FROM WALTER C. BURVILLE OF CHUBB PACIFIC INDEMNITY GROUP TO THE ASSOCIATE ADMINISTRATOR FOR MOTOR VEHICLE PROGRAMS NHTSA

TEXT: Dear Mr. Burville:

This responds to your July 18, 1975, question whether actual road testing of completed vehicles that are required to meet Standard No. 121, Air Brake Systems, is necessary as a basis of certification to the standard.

I have enclosed copies of two letters that discuss in detail the kind of evidence a manufacturer of vehicles might use to certify compliance with Standard No. 121. It is emphasized in the letters that the statutory requirement is the exercise of "due care" and that this term may have a different meaning in the case of a small manufacturer than in the case of a large manufacturer. The manufacturer may decide to run only one test of his vehicles, or he may test representative vehicles periodically.

I have also enclosed a copy of a letter to a California manufacturer of trailers which may be the source of the NHTSA opinion that one means of exercising "due care" might be tests of representative trailers.

Sincerely,

ENCLOSURES

ID: nht75-6.28

DATE: 07/18/75

FROM: WALTER C. BURVILLE -- MANAGER UNDERWRITING SURVEY DEPARTMENT CHUBB/PACIFIC INDEMNITY GROUP

TO: ASSOCIATE ADMINISTRATOR FOR MOTOR VEHICLE PROGRAMS NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

TITLE: COMPLIANCE WITH FEDERAL MOTOR VEHICLE SAFETY STANDARD 121.

ATTACHMT: ATTACHED TO LETTER DATED 8/18/75 FROM FRANK BERNDT OF NHTSA TO WALTER C. BURVILLE -- MANAGER, UNDERWRITING SURVEY DEPARTMENT CHUBB PACIFIC INDEMNITY GROUP; N40-30

TEXT: Gentlemen:

In the hustle of various interpretations following the inactment of 121, I am getting contradicting information. We are insurers of several trailer manufactures in this area. Most of them maintain that actual road tests of complete units is not necessary to conform with Section 55.3.2 "Stopping Capability-Trailers."

In discussing this with NHTSA in Seattle in March, they stated that in their opinion, a company would have to take a typical unit of each variety manufactured and test it under the most adverse conditions according to Section 56 "Conditions", and this means an actual road test.

Would you provide an interpretation on this, if available. Will a road test be necessary and will routine tests or only the initial test be sufficient?

Very truly yours,

ID: nht75-6.29

DATE: 08/19/75

FROM: JAMES C. SCHULTZ -- NHTSA CHIEF COUNSEL

TO: GERHARD P. RIECHEL -- ATTORNEY VOLKSWAGEN OF AMERICA, INC.

TITLE: N40-30 KK

TEXT: Dear Mr. Riechel:

This is in response to your letter of June 27, 1975, inquiring as to the permissibility under Standard No. 111, Rearview Mirrors, of offering for sale new vehicles equipped with louvers affixed to the outside of the rear window without installing a rearview mirror on the passenger side.

Standard 111 requires that an outside rearview mirror of substantially unit magnification be installed on the passenger side of a vehicle where the field of view provided by the inside rearview mirror is obscured by objects other than seated occupants or head restraints. Based upon the information contained in your letter, it appears that the louver affixed to the rear window obstructs the view to the rear provided by the inside mirror. Since this louver does not fall within the two exceptions named in S3.1.1 of the standard (seated occupants and head restraints), a passenger side rearview mirror would be necessary to comply with the requirements of the standard.

The fact that the obstruction is only slight does not affect this determination, since the standard is clear on the point that the only obscurity allowable is that caused by occupants or head restraints.

Sincerely,