ID: nht88-1.45

TYPE: INTERPRETATION-NHTSA

DATE: 02/18/88

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: HOWARD SMOLKIN -- MANAGING DIRECTOR

TITLE: THE MEANING OF PRACTICABILITY AND THE VEHICLE SAFETY ACT

TEXT: Attached per your request is a discussion of the meaning of "practicable" under the Vehicle Safety Act, for use in connection with the next meeting of the Research Advisory Committee.

Attachment

PRACTICABILITY AND THE VEHICLE SAFETY ACT

This paper provides a general discussion of the meaning of "practicable" under the National Traffic and Motor Vehicle Safety Act (Vehicle Safety Act). The Vehicle Safety Act directs the Secretary of Transportation, or his or her delegate, to issue Feder al motor vehicle safety standards that "shall be practicable, shall meet the need for motor vehicle safety, and shall be stated in objective terms." 15 U.S.C. @ 1392(a). (Emphasis added.) See also 15 U.S.C. @ 1391(2). In issuing these standards, the Se cretary is directed to consider "relevant available motor vehicle safety data," whether the proposed standard "is reasonable, practicable and appropriate" for the particular type of motor vehicle or item of motor vehicle equipment for which it is prescri bed, and the "extent to which such standards will contribute to carrying out the purposes of the Act." 15 U.S.C. 1392(f)(1), (3), (4). (Emphasis added.)

The dictionary defines "practicable" as "capable of being done, effected, or put into practice, with the available means; feasible: a practicable solution." Random House Dictionary of the English Language (unabridged edition). Courts construing the term under the Vehicle Safety Act have generally relied on the following statements in the legislative history:

House Report: "In establishing standards the Secretary must conform to the requirement that the standard be practicable. This would require consideration of all relevant factors, including technological ability to achieve the goal of a particular sta ndard as well as consideration of economic factors." H. R. Rep. 1776 at 16.

Senate Report: "The committee intends that safety shall be the overriding consideration in the issuance of standards under this bill. The committee recognizes . . . that the Secretary will necessarily consider reasonableness of cost, feasibility and adequate leadtime." S. Rep. 1301, p.6.

The court decisions construing the term "practicable" have established several general principles about its meaning. First, while NHTSA must bear in mind that Congress intended safety to be the preeminent factor under the Vehicle Safety Act, the agency is to look at costs as well as benefits. In Motor Vehicle Manufacturers Association v. State Farm, 463 U.S. 29, 54-55 (1983), a case reviewing a recission by the agency of the automatic restraint requirements, the Supreme Court concluded that the agency had been correct to look at the costs as well as the benefits of the requirements. NHTSA had determined that the incremental costs of the requirements were no longer reasonable based on its prediction that the safety benefits of the regulation might be minimal. In this instance, the court required a reexamination of the agency's conclusion that the safety benefits might be minimal. The court stated that when the agency examined its findings as to the likely safety benefits, it must also reconsider i ts judgment of the reasonableness of the monetary and other costs associated with the standard, bearing in mind that Congress intended safety to be the preeminent factor under the Act.

A second principle is that NHTSA must conduct careful analysis of the economic impacts of safety standards. In H & H Tire Co. v. DOT, 471 F.2d 350 (7th Cir. 1972), a case reviewing a safety standard requiring retreaded tires to meet many of the same per formance requirements as new tires, the court concluded that NHTSA had not adequately investigated the practicability of the standard. The court found that current retread tires could not comply with the requirements and that there was a possibility tha t the industry's best efforts might be insufficient to insure prompt compliance. The court concluded that NHTSA had acted precipitately, adopting a rule which might possibly destroy a well-established industry, without adequate study. The court also in dicated that NHTSA must consider possible economic hardships of both manufacturers and customers. Note: The court agreed with the government that "the fact that a government regulation may cause economic hardship to a party does not make such regulation unreasonable" and stated that the deleterious economic effect on the industry of compliance with the standard at issue might be permissible if retreads unquestionably were major safety hazards and if compliance with the standard clearly enhanced retread s' safety under on-the-road conditions. 471 F.2d at 354.

A third principle is that NHTSA may issue safety standards that are technology-forcing. In Chrysler v. DOT, 472 F.2d 659 (6th Cir. 1972), a case reviewing a safety standard requiring vehicles to be equipped with automatic restraints, the court held that NHTSA has authority to issue safety standards which require improvements in existing technology or which require the development of new technology, and is not limited to issuing standards based solely on devices already developed.

A fourth principle is that NHTSA must consider the public acceptability of safety standards. In Pacific Legal Foundation v. DOT, 593 F.2d 1338 (D.C. Cir. 1979), a case reviewing a safety standard requiring vehicles to be equipped with automatic restrain ts, the court held that consideration of public reaction is part of the requirement that standards be practicable. The court stated that "(m)uch as economic analysis must evaluate both supply and demand conditions, motor vehicle safety standards cannot be considered practicable unless we know both that the needed production capability is within reach and that motorists will avail themselves of the safety system." 593 F.2d at 1345.

Finally, the meaning of the term "practicable" appears to differ depending upon whether it is applied to a mandatory or optional provision in a safety standard. In Chrysler v. DOT, 515 F.2d 1053, 1060 (6th Cir. 1975), Chrysler argued that a standard perm itting use of rectangular headlamps, as an alternative to round headlamps, for a specified time period was impracticable because that company could not complete the necessary engineering and retooling in time to produce automobiles equipped with the new headlamps before the option expired. In dicta, the court stated that it had "some doubt that practicability is a significant principle in the context of an optional provision in a safety standard." The court stated that a review of the cases in this are a suggests the practicability requirement was designed primarily to prevent NHTSA from establishing mandatory safety requirements that are economically or technologically infeasible. The court contrasted that situation with the one at bar, in which the use of rectangular headlamps was not required, and Chrysler was not subject to any statutory penalties for failing to comply with this aspect of the standard. The court also stated that even assuming that an optional requirement were required to be prac ticable, it would be difficult to conclude that the rectangular headlamp option was impracticable in any absolute sense, since at least two manufacturers were capable of producing rectangular headlamps.

ID: aiam4720

Dear Mr. Baran: This is in reply to your letter to Taylor Vinson o this Office, with respect to 'D.O.T. guidelines for tail light brightness' with respect to a 'brake light for the back of a motor cycle helmet.' I regret the delay in responding. The Department has no authority to 'approve' or 'disapprove' items of equipment, but we can provide guidance on the relationship of equipment to the Federal motor vehicle safety standards. I enclose a copy of a l982 interpretation with respect to a similar device, a headlamp intended for installation on a motorcycle helmet. It also represents our views with respect to your device. I enclose also a copy of SAE Standard J586c Stop Lamps, which our Rulemaking office promised you. We note that you use the term 'tail light' and 'brake light' interchangeably. In seeking State guidance you should be clear as to whether your device indicates the presence of the cyclist (taillamp), or the application of the brakes of the motorcycle (stop lamp), or both. Sincerely, Stephen P. Wood Acting Chief Counsel Enclosure;

ID: aiam3150

Dear Mr. Fujita: This is in reply to your letter of October 17, 1979, asking for a interpretation for Paragraph S4.3.1.7 of Federal Motor Vehicle Safety Standard No. 108.; S4.3.1.7 says in effect that a front turn signal lamp and a low bea headlamp may be closer to each other than 4 inches 'if the sum of the candlepower values of the turn signal lamp measured at the test points within each group listed in Figure 1 is not less than two and one-half times the sum specified for each group for yellow turn signal lamps.'; You have asked whether a motorcycle turn signal lamp should 'satisf the values specified in S4.3.1.7 or half those values'. The answer, is, the values specified in S4.3.1.7. Half those values would be 'less than two and one-half times the sum specified ...' and impermissible under S4.3.1.7.; I hope that this answers your question. Sincerely, Frank Berndt, Chief Counsel

ID: 1984y

Dear:

With respect to the interpretation furnished you on July 21, l989, you have requested the following clarification in your letter of the 28th: that the provisions of paragraph S7.4 of Standard No. l08 that relate to filament usage do not apply to the headlamp system previously described. You have also confirmed that this system is designed to conform to all other requirements of Standard No. l08 "including photometric, special wiring, mechanical aim, environmental and marking requirements.

Paragraph S7.4 describes a variety of headlighting systems which come under the heading of "integral beam systems." The beams in these systems will be produced by "beam contributors" (S7.4(a)(3)), headlamps containing "two light sources" (S7.4(b)), or headlamps containing "a single filament" (S7.4(c)). The arc tubes in the system you describe would appear to be "beam contributors" within the meaning of S7.4, and the filament language of paragraph S7.4 would not apply to this particular type of integral beam headlighting system.

We will honor your continuing request that your name and those of your firm and client be deleted from the copy made publicly available.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:l08 d:8/l7/89

ID: aiam2756

Dear Mr. Gill: This is in reply to your letter of January 20, 1978, asking for a interpretation of the requirements in Motor Vehicle Safety Standard No. 123, *Motorcycle Controls and Displays*, for motorcycle headlamp upper-lower beam switches.; Standard No. 123 requires this control to be pushed 'up' for the uppe beam and 'down' for the lower beam. You have stated with respect to the design which you submitted that 'when the lower beam is on, the control surface is parallel to the housing. To switch to the high beam the top of the control is pushed ... to switch to the lower beam the bottom of the control is pushed.' You asked if this design is within the scope of the operation described in Standard No. 123.; It appears from your description that up and down motions of the thum operate the upper and lower beams respectively and that the design conforms to Standard No. 123's requirements.; Sincerely, Joseph J. Levin, Jr., Chief Counsel

ID: 0797

Mr. Bill Lieb
Regional Sales Manager
ResTech
6120 East 58th Avenue
Commerce City, CO 80022

Dear Mr. Lieb:

This is in reply to your letter of February 27, 1995. You report that "a manufacturer of sealed beam automotive head lamps . . . was told by [an adhesive supplier]. . . that D.O.T. 'approval' is required prior to changing the adhesive used on head lamps."

Subsequently, you were told by Blane Laubis of this agency "that D.O.T. does not test, approve, or specify any adhesives, but just verifies that the completed unit meets the prescribed standards, and passes the appropriate tests." You ask if this is correct.

Mr. Laubis is correct. Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices and Associated Equipment establishes requirements that must be met by sealed beam headlamps. As you learned in your review, Standard No. 108 contains no specifications for adhesives. This means the manufacturer may choose the adhesive that appears best suited to ensuring that its particular sealed beam headlamp complies with the performance requirements of Standard No. 108. The approval of the agency is not required. The agency frequently buys and tests all types of headlamps as part of its compliance enforcement program.

I hope that this letter is sufficient for your purposes.

Sincerely,

Philip R. Recht Chief Counsel ref:108 d:4/10/95

ID: 12200.ztv

Mr. Don Weidman
Mgr., Special Project
Grote Industries, Inc.
P.O. Box 1150
Madison, IN 47250-0550

Dear Mr. Weidman:

This responds to your letter of July 9, 1996, asking for an interpretation of paragraph S7.8.5 of Federal Motor Vehicle Safety Standard No. 108.

The sentence that concerns you reads as follows: "When activated in a steady-burning state, headlamps shall not have any styling ornament or other feature, such as a translucent cover or grill, in front of the lens." You ask whether a transparent cover is permissible.

No cover of any sort is permissible. The standard is absolute in its prohibition and merely uses translucent covers and grills as examples of items that may not be placed in front of a lens. The reason for the prohibition is to preserve original photometric performance of the headlamps, and to prevent deterioration from interference by grills, or which might occur over time from moisture, scratching, and other environmental factors that can affect headlamp covers, whether translucent or transparent.

If you have any questions, you may refer them to Taylor Vinson of this Office (202-366-5263).

Sincerely,

Samuel J. Dubbin

Chief Counsel

ref:108
d:8/12/96

ID: nht95-2.27

TYPE: INTERPRETATION-NHTSA

DATE: April 10, 1995

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

TO: Bill Lieb -- Regional Sales Manager, ResTech

TITLE: NONE

ATTACHMT: ATTACHED TO 2/27/95 LETTER FROM BILL LIEB TO PHILIP RECHT (OCC 10797)

TEXT: Dear Mr. Lieb:

This is in reply to your letter of February 27, 1995. You report that "a manufacturer of sealed beam automotive head lamps . . . . was told by [an adhesive supplier] . . . . that D.O.T. 'approval' is required prior to changing the adhesive used on head lamps."

Subsequently, you were told by Blane Laubis of this agency "that D.O.T. does not test, approve, or specify any adhesives, but just verifies that the completed unit meets the prescribed standards, and passes the appropriate tests." You ask if this is corr ect.

Mr. Laubis is correct. Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices and Associated Equipment establishes requirements that must be met by sealed beam headlamps. As you learned in your review, Standard No. 108 contains no spec ifications for adhesives. This means the manufacturer may choose the adhesive that appears best suited to ensuring that its particular sealed beam headlamp complies with the performance requirements of Standard No. 108. The approval of the agency is no t required. The agency frequently buys and tests all types of headlamps as part of its compliance enforcement program.

I hope that this letter is sufficient for your purposes.

ID: nht92-4.41

DATE: August 11, 1992

FROM: Steven Henderson -- McGill University

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 8/28/92 from Paul Jackson Rice to Steven Henderson (A39; Std. 108)

TEXT:

Thank you for your letter of June 29 concerning our motorcycle headlamp warning device. I certainly agree with you that the device contravenes the letter of DOT Standard No. 108 as it presently stands. Nevertheless, I ask for your patient indulgence in considering the counterarguments I present below.

I will argue that the potential benefits of our device are so congruent with both the congressional mandate of the NHTSA ("to reduce the mounting number of deaths, injuries, and economic losses ... on the Nation's highways") and the intent of the author(s) of Standard No. 108, as to warrant the inclusion in the standard of an exception referring specifically to the operating characteristics of the device. My understanding is that an exception may be incorporated into the standard when in specific situations the public safety would be increased by a rigorously specified departure from die standard. That is, the exception allows the spirit of the law to rule while protecting the letter of the law from violation. Nevertheless, an exception governing a device should only be granted if its use would not cause any difficulties that the original standard was framed to prevent. I will address these issues below. Your further point that "the safety benefits of the device are speculative and unproven" is very relevant and well taken, and again I ask for your tolerant consideration of my discussion on that point.

Briefly, my understanding of the issues you raise regarding the device's noncompliance with Standard No. 108 are:

a) the headlamp modulation is greater than 17% and so the device does not comply with S5.6.1(c). (Please note that modulation is between intensity levels within a single beam, and is available for use with either the high or the low beam.)

b) the headlamp flash rate of 10 per second supersedes the maximum allowable rate (S5.6.1(a)) of 280 per minute, or 4.67 hz.

c) the taillamp(s) would no longer be steady-burning, as required by S5.5.10(d).

d) the turn signal flash rate of 10 hz would not comply with the SAE specification of 60-120 flashes per minute (1-2 hz) referred to in Standard No.108.

Within my discussion of each of the four specific instances of noncompliance I will also attempt to infer the intent of the clauses cited. If the device violates the letter of the law while satisfying the spirit or inferred intent of the law in each case, I feel that the granting of an exception should be

considered by the NHTSA.

First, S5.6.1(c) calls for a modulation intensity of not greater than 17%, the presumed intent being to reduce distraction and annoyance to other drivers whenever such a modulating headlight system is in view. For a device that is used steadily (as is the device described in S5.6), when the presence of a motorcycle is recognized, the modulation becomes redundant and so carries no useful information. Without a limit on its magnitude, the modulation would likely interfere with the other visual processes needed for operating a motor vehicle. On the other hand, our device is only used intermittently and only at need, so that when the presence of the motorcycle is recognized by the car driver, the horn button is released and the modulation stops. As the device is only used to attract attention when necessary and at no other time, no redundant information from the device is ever present in the visual scene to distract other drivers. Therefore our proposed device does not conflict with the inferred intent of S5.6.1(c). Furthermore, to maximize the likelihood that the motorcycle will be seen and an accident avoided, the exception for the device should permit 100% modulation on the condition that modulation can only occur in conjunction with the sounding of the horn.

Second, S5.6.1(a) specifies a modulation rate of between 200 and 280 cycles per minute, or 4.67 hz, while our device has a modulation rate of 600 cycles per minute, or 10 hz. Despite the salience of the 10 hz flash rate, the likelihood of distraction to other drivers is nonexistent, as again the device is only used at need rather than continuously (see the counterargument given above). The 10 hz flash rate is particularly appropriate for use as a warning signal. Figures 1 and 2 (from Snowden and Hess, 1992) show that at every retinal eccentricity, light modulation of approximately 10 hz is more easily seen (or seen at a greater distance) than modulation of any other frequency. Finally, referring to Appendix A, the "brightness enhancement effect" (Bartley, 1939) also achieves maximum enhancement at a rate of about 10 flashes per second, the frequency corresponding to the alpha rhythm of the human visual cortex. As the 10 hz enhancement effect was reported in a document commissioned by the NHTSA and published as Report No. DOT HS 807 121 (1987), I believe that the intent of the author(s) of Standard No.108 (the NHTSA) would be to exploit the safety advantages to be gained by the use of 10 hz light modulation, given the knowledge gained from the visual system research that has been conducted since Standard No.108 was written, and given the safe means to use this knowledge. (Please also note that the 50% duty cycle of the proposed device yields maximum brightness enhancement, as shown by the figure in Appendix A.) I therefore contend that as the flash rate of 10 hz is not contrary to the inferred intent of S5.6.1(a), and further, that its use will not cause any of the difficulties that S5.6.1(a) was likely Written to prevent, that the requested exception should permit the use of a 10 hz flasher frequency, again on the condition that modulation can occur only in conjunction with the sounding of the horn.

Please observe that the first two points of noncompliance result from an attempt to apply to our device, an exception granted to allow the use of another device that is explicitly described in the standard. Our device is unique and clearly differs from the device referred to in S5.5.10(c) and described in S5.6. (In our attorney's opinion the patent search we commissioned found no prior art of sufficient similarity to jeopardize our

patent claims, as shown in the prior art section of the enclosed patent application - see Appendix B.) Therefore, the noncompliance of our device with an exception drafted in specific reference to a different device should not be taken as grounds for prohibiting our device. Rather, I contend that our device is not contrary to the spirit and intent of Standard No.108, and that introducing an exception for the device into the standard would be the most appropriate course of action for the NHTSA to take. Section 5.6 establishes a clear precedent for introducing an exception into the standard by the NHTSA, if public safety would thereby be expected to increase.

Third, when the horn button is pressed the taillamp flashes at a rate of 10 hz, rather than being steady-burning as required by S5.5.10(d). However, a taillight's purpose is to mark the rear of a motor vehicle during nighttime driving when it would otherwise be invisible. For this reason the law requires that taillights be lit at night. The law makes no such requirement during the day. The law does require that motorcycle headlights be lit during the day. Consequently, the taillight, being wired in parallel with the headlight, is also always lit during daytime riding, although not required to be by law. At night the taillight will always be steady- burning, as required by S5.5.10(d), because the flasher device is only able to induce taillight flicker during daylight hours due to the photocell circuitry incorporated to prevent the headlight from generating strobe effects at night. Therefore, the device is in compliance with S5.5.10(d), as it will cause the taillight to flash only at times that it is not required by law to be lit. At such times as the taillight must be lit to mark the rear of the motorcycle to following drivers, it can not be made to flicker by pushing the horn button, and so the device does not violate the intent of the standard.

Fourth, if the horn button is pushed while a turn is being signalled, the appropriate signallight will give out 2 hz bursts of 10 hz flicker (the other signallight remaining dark) and so will not comply with the flash rate of 1-2 hz "specified by SAE requirements incorporated by reference in Standard No. 108". Note first that the situation in which the turn signal and horn button are simultaneously in use will be relatively rare. In addition, the salient difference between a 10 hz flash rate and a 2 hz flash rate allows both to be seen simultaneously and with little or no interference between the two perceptual channels. In other words, an observer who sees a turn signal if a uniform fight is flashing at 2 hz will also see a turn signal if a 10 hz flickering fight is flashing at 2 hz, due to the independence of the temporal channels of the visual system. This channel independence has been most clearly shown by Hess and Snowden (1992) who state that:

The results for 0 and .3 c/d (Fig.4) (shown here as Fig.3) suggest that probes of 1 Hz are detected by a temporal mechanism with a low pass temporal characteristic while probes of 8 Hz are detected by a band pass temporal mechanism centered at 8-10 Hz...For stimuli of mid spatial frequency (1 and 3 c/deg) the results of Fig.5 (shown here as Fig.4) suggest the presence of at least 2 temporal mechanisms, one low pass underlying the detection of low temporal frequency probes and one band pass centered at 8 Hz and underlying the detection of higher temporal frequency probes (p.50).

I have also included their Figures 7 and 8 (shown here as Fig.5 and 6) from

the same publication to illustrate that the temporal frequency of 2.4 hz (above the highest signal light rate specified by SAE) is also detected by the low pass channel tuned to 1-2 hz frequencies, and not by the band pass channel tuned to 8-10 hz frequencies. This result demonstrates empirically that no perceptual interference will occur between the signal flash of 1-2 hz and the hazard flash of 10 hz. Thus, if the signal switch and the horn switch are used together, the SAE-specified turn signal flash of 1-2 hz will be perceptually present, the hazard signal flash of 10 hz will also be perceptually present at the same location, and the two signals will not interfere. Therefore, as widely separated temporal channels in vision are independent, our device is in compliance with the SAE specification of a 1-2 hz flash rate for turn signals, and the additional presence of a 10 hz flash rate for a hazard signal at the same location does not introduce a point of noncompliance between our device and Standard No. 108.

For the reasons given above, I feel that the action by which the NHTSA could most appropriately carry out its congressional mandate would be to write an exception into Standard No. 108, with the exception clause containing the specific assertion that the proposed device is legally permitted if the device can only be actuated by the horn button. The temporary granting of the exception (for an interval of one or two years) will allow the "speculative and unproven ... safety benefits" of the device to be evaluated. If such benefits exist, and the device could help save hundreds or even thousands of lives every year, testing must be carried out.

Before discussing two studies by which the device's benefits can be assessed, I wish to offer from personal experience some anecdotal evidence that demonstrates the need for this device. In 1971, while riding my Triumph motorcycle on a mountain highway in British Columbia, I had a head-on crash with a car at a closing speed of about 60 miles per hour. The car's driver had gradually crossed into my lane as he prepared to turn left onto a gravel road. I moved to the center line in an attempt to squeeze past his car, whereupon he saw a car about fifty yards behind me and attempted to return to his own lane. I was thrown over his car and trailer and sustained a ruptured spleen, some broken bones, and a concussion. The other driver subsequently testified in court that he never saw me, although the accident took place on a clear sunny summer afternoon. That accident would almost certainly not have occurred if I had had the use of the device I have described to you. Furthermore, the responses of other motorcyclists to whom I have described the device are uniformly enthusiastic. We have all felt the helplessness of seeing a motorist inadvertently threatening our lives because he or she has not seen us and we have no means to make ourselves more visible. This device would give motorcyclists the means to do so. If the NHTSA grants a temporary exception to allow safety tests, I believe that many motorcycle manufacturers and insurance companies would enthusiastically support and participate in the studies outlined below. The purpose of the first study is to generate videotape records of automobile drivers' responses to the device's warning flashes. Several motorcycles will be equipped with warning flashers and special purpose cameras. The cameras will be similar in principle to those used by business security firms, in that they will constantly record onto a thirty second videotape loop.

Fifteen seconds after a horn button is pressed, the entire loop's contents will be copied to a permanent videotape record. This record will show, for

each instance of flasher use, the circumstances making such use necessary, as well as the car driver's reaction to the warning flashes. A telltale light or the flasher itself will be within the camera's field of view, furnishing a flasher activation record against which the car driver's preflash and postflash behaviors can be categorized as either appropriate or inappropriate. Each record of a change from inappropriate to appropriate behavior that coincides with flasher activation will be prima facia evidence of the safety benefits conferred by the device. Although this study should generate compelling visual evidence for any safety benefits that exist, the study will not generate logically compelling statistical evidence for the effect, as the criticism can logically be made that the car driver could have seen the motorcycle and responded appropriately in any case (such as by coming to a halt after beginning to pull out from a side street, or by pulling back into the correct lane rather than attempting to complete an overtaking maneuvre), even without flasher activation. Although the cost of conducting the first study is not prohibitive, to carry out the study will certainly require funding support. Clearly however, no group or company will fund the study without assurances from the NHTSA that the device may be legally used if the research demonstrates that the device reduces accidents and saves lives.

The second study is an example of the statistically rigorous experimental design needed to incontrovertibly establish that the device does confer a safety benefit as well as to allow an estimation of the benefit's magnitude. This study requires that a motorcycle manufacturer install flasher systems onto several hundred of their motorcycles. As the motorcycle accident rate in North America in 1987 was approximately 1 accident for each 13 registered motorcycles (U.S. Census figures), a large number of participants is required to allow a statistically significant measure of the device's safety benefits to be made. For example, a safety benefit having sufficient strength to reduce the accident rate by 25 percent (a reduction of 1000 fatalities per year) requires 800 motorcyclists in each of two groups (only the experimental group being equipped with the flashers) to show a statistically significant effect at p less than .05, and 1380 motorcyclists in each group to show statistical significance at p less than .01. Again, no motorcycle manufacturer will conduct so costly a test - even with the support of motorcycle insurance companies - unless the NHTSA has signalled a willingness to allow the device to become available if a safety benefit can be shown.

My most fervent wish is that in light of the reasoning offered above regarding our flasher system, you will reconsider your initial position as stated in your letter of June 29, 1992, and introduce into Standard No. 10 an exception allowing the use of the device I have described. In addition, I again ask (further to my letter faxes of June 3 and June 9) that you request an advanced examination of the patent application filed with the U.S. Patent Office on April 1, 1992 by Steven Henderson and David Kernaghan under Serial No. 863686.

Thank you for your interest and your patience. I look forward to your reply.

ID: 1983-1.5

TYPE: INTERPRETATION-NHTSA

DATE: 01/17/83

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Nissan Motor Co., Ltd.

TITLE: FMVSR INTERPRETATION

TEXT:

January 17, 1983 NOA-30

Mr. Akihiko Muraoka, Manager Nissan Motor Co., Ltd. P.O. Box 1606 560 Sylvan Avenue Englewood Cliffs, NJ 07632

Dear Mr. Muraoka:

This responds to your letter asking about the requirements of 49 CFR Part 581, Bumper Standard. Your letter indicated that Nissan is considering the installation of towing hooks on the bumpers of some future vehicles. You asked if Nissan would be permitted to remove the towing hook before conducting the test. Assuming that the towing hook is mounted on the bumper face bar, the answer to your question is that the towing hook must be removed if it is optional equipment but must not be removed if it is standard equipment. You also asked if a breakage or deformation of the towing hook as a result of the pendulum test would be regarded as a noncompliance with Part 581. The answer to that question is yes. These answers are discussed below at further length.

By way of background information, I would point out that this agency does not grant approval of motor vehicles or motor vehicle equipment. The following interpretation only represents the agency's opinion based on the information provided in your letter.

I will first deal with your question of whether the towing hook may be removed before testing. One of the test conditions specified by the standard is that "(t)railer hitches, license plate brackets, running lights, fog lamps, other optional equipment mounted on the bumper face bar and headlamp washers are removed from the vehicle." Section 581.6(a)(5). We interpret this section to mean (1) that all trailer hitches, license plate brackets and headlamp washers be removed from the vehicle and (2) that running lights, fog lamps and other equipment mounted on the bumper face bar be removed if and only if they are optional equipment. Thus, a towing hook should be removed only if it is mounted on the bumper face bar and is optional equipment.

(The current language of section 581.6(a)(5) became effective on July 6, 1982. Prior to that time, the section simply specified that "(t)railer hitches and license plate brackets are removed from the vehicle." As discussed in the preamble to the final rule, published in the Federal Register (47 FR 21820, 21828) on May 20, 1982, the purpose behind the change was to expand the specified equipment that should be removed. The agency did not intend any change in the requirement that all trailer hitches and license plate brackets be removed. The agency plans to make that point clear in an interpretive amendment.)

Your second question concerned whether a breakage or deformation of the towing hook as a result of the pendulum test would be regarded as a noncompliance with Part 581. This question would be applicable, of course, only where the towing hook is not removed, i.e., where it is standard equipment. Section 581.5(c)(8) requires that:

The exterior surfaces shall have no separations of surface materials, paint, polymeric coatings, or other covering materials from the surface to which they are bonded, and no permanent deviations from their original contour 30 minutes after completion of each pendulum and barrier impact, except where such damage occurs to the bumper face bar and the components and associated fasteners that directly attach the bumper face bar to the chassis frame.

Based on your drawing, the towing hook protrudes through the bumper and is therefore an exterior surface. Also based on the drawing, it is our interpretation that the towing hook is not a part of the bumper face bar or the components and associated fasteners that directly attach the bumper face bar to the chassis frame. The bumper face bar is defined in section 581.4 as "any component of the bumper system that contacts the impact ridge of the pendulum test device." It is our conclusion that the towing hook is not a component of the bumper system. It is therefore irrelevant whether contacts the impact ridge of the pendulum test device. Our conclusion is based on the apparent fact that the towing hook does not perform a load bearing function for the bumper system and is not associated with the bumper system's functions. Therefore, the towing hook does not come within the exception provided by section 581.5(c)(8) for damage to exterior surfaces, and breakage or deformation of the towing hook under the specified tests is prohibited.

Sincerely,

Original Signed By

Frank Berndt Chief Counsel

September 9, 1982 Ref: 82-158-S

Mr. Frank A. Berndt Chief Counsel National Highway Traffic Safety Administration Nassif Building Washington, D.C. 20590

Dear Mr. Berndt:

We sincerely request information concerning the Bumper Requirement: Part 581 of the Code of Federal Regulations in response to the following questions.

We are considering installing a towing hook on the bumper of a future Nissan vehicle model, as shown in the following drawings.

" Insert Diagram

We'd like to know if the towing hook is considered a part of "the exterior surfaces" indicated by Section 581.5(8) of the standard, and if a breakage or deformation of the towing hook as a result of the pendulum impact test would be regarded as noncompliance to the bumper requirement.

In addition, we'd like to know if we can conduct the pendulum test by first allowing the towing hook to be removed.

Thank you in advance for your immediate attention to our inquiry.

We are looking forward to receiving your response in the immediate future.

Very truly yours,

Akihiko Muraoka Manager Nissan Motor Co., Ltd.