ID: nht78-3.35

DATE: 11/29/78

FROM: AUTHOR UNAVAILABLE; Joseph J. Levin Jr.; NHTSA

TO: British Standards Institution

TITLE: FMVSR INTERPRETATION

TEXT: Please excuse the long delay in responding to your letter about materials incorporated by reference in the Federal motor vehicle safety standards. Your primary concern is the correct version of the referenced materials to be used in conducting compliance tests if the materials are subject to change.

As you noted, Part 571.5 (49 CFR 571.5) of our regulations provides, in pertinent part, "Materials subject to change are incorporated as they are in effect on the date of adoption of this part, unless the reference to them provides otherwise." Almost all safety standards incorporating materials by reference specifically refer by month and year to a particular version of the referenced material. Therefore, the specified version should be used for compliance test purposes, even if the organization that adopted the reference material has published an updated version. If the reference does not identify a specific version, the version in effect when the safety standard was issued should be used for compliance testing.

As you pointed out, many of the voluntary industry standards do not have an "effective date." To determine which version was "in effect" on the date the Federal safety standard incorporating the material was issued, the agency looks to the version adopted by the organization that developed the material as of that date. For example, the Society of Automotive Engineers Standards do not have an effective date, but they do have an identifying month and year which indicates when the latest version was approved by the appropriate SAE approval body. The agency would look at that identifying month and year to determine which version was in effect on the issuance date of the safety standard or amendment.

Regarding your request for a list of the effective dates of the Federal safety standards, please be aware that the standards are being continually amended and the new provisions have their own effective dates. Thus, there is no single effective date for each standard. The enclosed computer printout provides a listing of the effective dates of the safety standards and their amendments as of July 1978. You are correct in your assumption that the safety standards only apply to vehicles manufactured on or after the effective date of relevant standard.

Finally, the effective date of a safety standard does not have any bearing on which edition of materials incorporated by reference is applicable. The version used for compliance testing is the version specifically refered to in the standard by date or, if there is no date specification, the version which was in effect on the date of issuance of the safety standard.

If you have any further questions, I will be pleased to answer them.

SINCERELY, British Standards Institution

National Highway Traffic Safety Administration Office of the Chief Counsel U S Department of Transportation

Date: February 7, 1978

Dear Sirs

MATTER INCORPORATED BY REFERENCE INTO FEDERAL MOTOR VEHICLE SAFETY STANDARDS

A number of FMVSS's in Sub-part B of 49 CFR 571 make direct reference to one or more published specifications (such as those published by ANSI, SAE, ASTM, etc.); some of these specifications, which are sometimes termed "primary reference standards", make reference to further published specifications. Most of these specifications ae subject to periodic review and either amendment of re-confirmation; many of them (particularly those published by the SAE) have in fact been amended since the effective date of the relevant FMVSS.

We would greatly appreciate your guidance on the ground rules for determining the edition of a referenced specification (whether "primary" or otherwise) that is applicable for conformity testing purposes.

We have studied 49 CFR 571.5 and note the statement that" . . . materials subject to change are incorporated as they are in effect on the date of adoption of this part, unless the reference to them provides otherwise". However, we need to know:

(a) the "date of adoption" of 49 CFR 571, and

(b) whether the words "as they are in effect" has a precise meaning, bearing in mind that voluntary standards - unlike regulatory standards - do not normally have an "effective date".

There is a related problem on which we would also request your guidance. Section 103(c) of the National Traffic and Motor Vehicle Safety Act requires that an effective date shall be specified for each FMVSS. But, on studying individual FMVSS's, we cannot see where the effective date is specified - at least, not in the CFR-published texts (although the date does appear in the FR-published texts).

Unfortunately, we discard the FR-published version once it is incorporated in the CFR volume, so we are not able to make a retrospective analysis of all FMVSS's to determine their effective dates. Do you have a list of effective dates that you could let us have, and can you confirm that vehicles or equipment manufactured on or after the relevant effective date must comply with the requirements? And does the effective date of an FMVSS have any bearing on the edition of a referenced specification that is applicable?

We apologise for troubling you on this matter but would be most grateful for your guidance.

G I WHISTON Coordinator - International Information

ID: aiam4845

"Dear Mr. Moran: RE: Brey v. Spalding & Evenflo Companies, Inc. You File No.: 3571 This responds to your letter to Stephen Kratzke, our Deputy Assistant Chief Counsel for Rulemaking, seeking an interpretation of the labeling requirements in Standard No. 213, Child Restraint Systems (49 CFR 571.213). More specifically, you noted that S5.5.2(g) requires add-on child restraint systems to be permanently labeled with the following: WARNING! Failure to follow each of the following instructions can result in your child striking the vehicle's interior during a sudden stop or crash. Secure this child restraint with a vehicle belt as specified in the manufacturer's instructions located Insert the location of the instruction booklet . You also noted that Standard No. 213 requires the installation instruction booklet to 'explain the primary consequences of not following the warnings required to be labeled on the child restraint system.' Parenthetically, I note that your letter erroneously identified S5.6.3 as the source of this requirement. You told Mr. Kratzke in your telephone conversation that your litigation involves an add-on child restraint system. S5.6.3 applies solely to built-in child restraint systems. However, the identical requirement is set forth for add-on child restraint systems in S5.6.1.3 of Standard No. 213. You asked whether the explanation in the instruction booklet of the primary consequences of not following the warnings labeled on the child restraint system (per S5.6.1.3) is required to be something more than the statement required to be labeled on the child restraint system (per S5.5.2(g)). The answer is no. NHTSA explicitly addressed this question in the rulemaking that established the current labeling requirements. A notice of proposed rulemaking was published on May 18, 1978 (43 FR 21470). This proposal did not include any proposed regulatory text to require a label on the child restraint system warning users about the failure to follow the instructions provided by the manufacturer. However, the preamble did have the following discussion: Comments are also requested on whether a brief explanation should be given of the primary consequences of not following the warnings and instructions provided by the manufacturer on the restraint. An example of such an explanation is that failure to attach the tether on systems having top tethers may result in the top part of the system bending forward during a crash and striking the dashboard or back of the front seat, depending on where the restraint is installed. Another example would be to explain that failure to adjust belts snugly may result in the child coming entirely out of the restraint during a crash or in crash forces being placed on the wrong portions of the child's body. (Emphasis added). 43 Fed. Reg. 21476. This request for comments was addressed solely to information that should be labeled on the restaint itself. There is no indication in the proposal that the agency sought comments on or otherwise considered requiring information in addition to this to be provided in the instuction booklet. A final rule implementing this proposal was published on December 13, 1979 (44 FR 72131). That rule included the following discussion: Many commenters (citation omitted) supported the proposed requirement that manufacturers inform consumers about the primary consequences of not following the manufacturer's warning about the correct use of the restraint. Therefore, the visible label must state the primary consequence of misusing the restraint. The same information would also have to be included in the instruction manual accompanying the restraint. (Emphasis added). 44 Fed. Reg. 72137. The regulatory language that was added to the labeling requirement for child restraints in the final rule to 'state the primary consequence of misusing the restraint' was the warning now in S5.5.2(g) of Standard No. 213. The last sentence in the above-quoted section of the preamble expressly states that the instruction booklet that accompanies the child restraint must include the same warning that is required to be labeled on the child restraint. There is, therefore, no basis for the assertion that the instruction booklet must include some warning in addition to the warning required to be labeled on the child restraint system. Sincerely, Paul Jackson Rice Chief Counsel";

ID: nht88-3.96

TYPE: INTERPRETATION-NHTSA

DATE: 11/03/88 EST

FROM: ERIKA Z. JONES -- CHIEF COUNSEL, NHTSA

TO: SADATO KADOYA -- MANAGER, SAFETY ENGINEERING, MAZDA (NORTH AMERICA), INC.

ATTACHMT: MEMO DATED 7-14-88, RE: REQUEST FOR INTERPRETATION-FMVSS 108; LAMPS, REFLECTIVE DEVICES, AND ASSOCIATED EQUIPMENT-AUXILIARY LAMPS; MEMO DATED 7-14-88, RE: REQUEST FOR CONFIDENTIAL TREATMENT OF INFORMATION-49 CFR PART 512, CONFIDENTIAL BUSINESS INFORMATION

TEXT: This is in reply to your letters of July 14, 1988, with respect to an interpretation of Motor Vehicle Safety Standard No. 108 and a request for confidential treatment of it. We understand that you orally withdrew this request during a telephone conversa tion with this Office on August 23, 1988.

You have asked whether Standard No. 108 permits the use of replaceable bulb headlamps with adjustable reflectors, or the use of such lamps as fog and/or cornering lamps. Although Standard No. 108 defines a replaceable bulb headlamps as one with a bonded lens-reflector assembly, this definition does not preclude a design with an adjustable reflector, as the bond may be applied to a portion of the reflector assembly that is not adjustable. However, a headlamp with an adjustable reflector must be designe d to conform with all applicable photometric requirements with the reflector in all positions in which it may be adjusted.

As for its use as a fog or cornering lamp, you are correct that it is acceptable provided that it does not impair the effectiveness of the lighting equipment required by Standard No. 108. Whether the device impairs the effectiveness is determined by the vehicle manufacturer before it certifies compliance with all applicable Federal motor vehicle safety standards. The decision, however, may be questioned by this agency if it appears erroneous.

I hope that this answers your questions.

ID: 3132o

Mr. Sadato Kadoya
Manager, Safety Engineering
Mazda (North America), Inc.
Research & Development Center
1203 Woodbridge Avenue
Ann Arbor, MI 48105

Dear Mr. Kadoya:

This is in reply to your letters of July 14, l988, with respect to an interpretation of Motor Vehicle Safety Standard No. 108 and a request for confidential treatment of it. We understand that you orally withdrew this request during a telephone conversation with this Office on August 23, l988.

You have asked whether Standard No. l08 permits the use of replaceable bulb headlamps with adjustable reflectors, or the use of such lamps as fog and/or cornering lamps. Although Standard No. l08 defines a replaceable bulb headlamp as one with a bonded lens-reflector assembly, this definition does not preclude a design with an adjustable reflector, as the bond may be applied to a portion of the reflector assembly that is not adjustable. However, a headlamp with an adjustable reflector must be designed to conform with all applicable photometric requirements with the reflector in all positions in which it may be adjusted.

As for its use as a fog or cornering lamp, you are correct that it is acceptable provided that it does not impair the effectiveness of the lighting equipment required by Standard No. l08. Whether the device impairs the effectiveness is determined by the vehicle manufacturer before it certifies compliance with all applicable Federal motor vehicle safety standards. The decision, however, may be questioned by this agency if it appears erroneous.

I hope that this answers your questions.

Sincerely,

Erika Z. Jones Chief Counsel

/ref:l08 d:ll/3/88

ID: 10117-2

Mr. Hai Tee Young
10313 Lower Azusa Road
Temple City, CA 91780

Dear Mr. Young:

This responds to your August 14, 1995, letter to the Secretary of Transportation asking whether there are any Federal regulations prohibiting your sunshade invention. The Secretary referred your letter to me because the National Highway Traffic Safety Administration (NHTSA) is the Department of Transportation agency that issues Federal motor vehicle safety standards (FMVSS's) for new motor vehicles and new items of motor vehicle equipment. From the patent application materials and drawings you enclosed with your letter, your invention appears to be venetian blind-type slats for use as a sunshade device on all windows of a motor vehicle, especially the windshield.

In a September 6, 1995 phone conversation with Paul Atelsek of my staff, you stated that you were not concerned about confidentiality of this public letter, even though your patent application has not been made. You also indicated that you wanted us to supplement your letter with additional drawings and letters. We received those materials by facsimile on September 18, 1995.

Let me briefly review the important points of your letter. The blinds for side windows are depicted as being attached to hooks above and below the windows. For the windshield, they are attached to the existing sunvisor and the dashboard. In these drawings, blind deployment appears to be manual and require two hands. However, you state that you could also design the slats to be installed between two layers of glass and have them adjusted either manually or by electric automatic control. You believe that in a crash the blinds would cushion unbelted vehicle occupants before they hit the glass.

The short answer to your question is that, while there are no regulations that directly prohibit your invention, there are Federal requirements that it must satisfy. We also have some safety concerns regarding this invention.

The FMVSS most relevant to your blinds is Standard No. 205, Glazing materials. Among other things, this standard requires the glazing to permit 70 percent of the incident light to be passed through the window material. The purpose of the 70 percent light transmissibility requirements in Standard No. 205 is to ensure that the driver can adequately view the driving environment through all the windows that are requisite for driving visibility (which includes all windows in passenger cars). Installation of your blinds as proposed would not cause a noncompliance with Standard No. 205 because the test procedures do not incorporate an in-vehicle test. Instead, they contemplate testing only of the glazing itself. Your blinds need not comply with the standard either by themselves (because they do not meet the definition of glazing) or in combination with windows (because they are not attached to the window). However, if the blinds were installed between two panes of glass, the combination of blinds and glass would be considered a multiple glazed unit and would have to meet the standard.

Another safety standard (Standard No. 201, Occupant protection in interior impact) requires, among other things, that the area in front of the driver provide protection when struck by the head during a crash. NHTSA believes that installation of your blinds in front of the driver could have an impact on compliance with that standard, regardless of your assertions that they would not. If your blinds are installed on a sun visor so that a hard object (e.g., a rigid mounting hook) were to be struck by the occupant's head, compliance with the standard might not be achieved. Moreover, new requirements for cushioning in the header area are due to be phased in 1998.

Another safety standard, No. 302, Flammability of interior materials, requires that shades, such as your blinds, burn at a rate of not more than 4 inches per minute. If installed in a new vehicle, all surfaces of your blinds would have to meet this requirement.

We have some additional safety-related concerns regarding your invention. If a malfunction caused the blinds to lower or close while the vehicle is in motion, then the driver would not be able to see through the affected window. This would be particularly dangerous if the blinds for the windshield were deployed unexpectedly. Moreover, the blinds could make exiting from a vehicle more difficult if the windows had to be used for egress after an accident occurs. Mounting hooks for the side window blinds would also be a concern for impact with the head in a side collision and for emergency egress through the door (e.g., by catching clothing).

The manufacturer of these blinds, which are motor vehicle equipment, would be subject to the requirements in sections 30118-30122 of Title 49 of the U.S. Code concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that a manufacturer or NHTSA determines that the product contains a safety-related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

Other legal requirements could apply depending on how your product is marketed. If your product were installed by a vehicle manufacturer as original equipment, i.e., on a new vehicle, the vehicle manufacturer would have to certify that the vehicle with the blinds installed complies with all FMVSS's, including the standards discussed above. In addition, if your invention were installed by motor vehicle manufacturers, distributors, dealers or repair businesses, those commercial enterprises would have to take care not violate section 30122(b) of Title 49, which prohibits them from "knowingly mak[ing] inoperative any part of a device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard . . . " For instance, compliance with Standard No. 201 might be degraded if the blinds were mounted in front of the driver. Any violation of this "make inoperative" prohibition would subject the violator to a potential civil penalty of up to $1,000 for each violation.

The "make inoperative" prohibition does not apply to modifications that vehicle owners make to their own vehicles. Thus, Federal law would not apply to individual vehicle owners who install your blinds in their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, NHTSA encourages vehicle owners not to degrade any safety device or system installed in their vehicles. In addition, since individual States have the authority to regulate modifications that individual vehicle owners may make to their vehicles, you might wish to consult State regulations to see whether your device would be permitted.

I hope this information is helpful. I am also enclosing a copy of a fact sheet titled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment." If you have any further questions, please feel free to contact Paul Atelsek of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Samuel J. Dubbin Chief Counsel

Enclosure

ref:205 d:12/11/95

ID: nht94-5.6

TYPE: INTERPRETATION-NHTSA

DATE: December 9, 1994

FROM: Mr. R.E. Wareham -- Technical Director, Total Vehicle Security Ltd.

TO: J. Womack -- Acting Chief Council, NHTSA

TITLE: Re: Third Brake Light Conditions Sensor/SYNCRO LITE.

ATTACHMT: ATTACHED TO LETTER DATED 12/21/94 FROM PHILIP R. RECHT TO R. F. WAREHAM (A42; STD. 108); ALSO ATTACHED TO LETTER DATED 1/26/93 FROM JOHN WOMACK TO DAVID H. B. LEE

TEXT: I am writing to you with regards to discussions held between your office and Mr. David Lee of the Lee Family Corporation, together with correspondence on or around December 92 to January 93.

I am specifically wanting to re-confirm the status of your understanding with regards to the marketing and sale of this product into the US aftermarket. We have been granted the rights to distribute the product under our trade name of 'SYNCRO LITE' by t he Lee family and are wanting to commence a marketing campaign early in 95.

Specifically we intend to seek a 'licensee' who is able to drive sales of SYNCRO LITE through after market car accessory outlets, both via single and multiple 'chain store' outlets, the product will marketed as a D.I.Y. installation by the car owner.

We are intending to travel to Washington D C in late January 95 and would very much like the opportunity to meet with you or your associates in order to formalize our respective positions.

ID: aiam4288

Dear Mr. Ziwica: This letter concerns your request for an interpretation of Federa Motor Vehicle Safety Standard No. 206, *Door Locks and Door Retention Components*, as it applies to the antitheft device BMW intends to install on the Carline 7 passenger car line for model year 1988. We apologize for the delay in responding to your inquiry.; On October 9, 1986, NHTSA published a notice in the Federal Registe granting BMW's petition for an exemption from the marking requirements of the vehicle theft prevention standard, based on its determination that an effective antitheft device will be installed on those lines as standard equipment. (51 FR 3633.) However, because NHTSA wished to further consider the compliance of the double- lock aspect of the central locking system with Standard No. 206, we granted the petition while reserving decision on that issue. We have completed our evaluation of the double-lock system and have determined it is permitted by the standard.; In its petition for exemption from the marking requirements of th Theft Prevention Standard, BMW described an antitheft device which, among other things, prevents entry into the vehicle by affecting the door locks in the following manner:; >>>The inside locking mechanism operating means is a vertical plunge on each door, and the plungers on the front doors override the two rear door plungers. To prevent locking the keys in the car upon exiting, the front doors can only be locked with a key. For Convenience, this also locks all other doors, if they are open at the time of locking, they lock when closed.<<<; >>>The locks in the front doors have three-positions cylinders - off 45 degrees, and 90 degrees. Upon exiting, if the key is turned 45 degrees and removed from the lock, the doors, trunk and gas filler door are locked. If, however, the key is rotated 90 degrees and removed, the car's burglar alarm is armed and the doors are 'double locked', after the plungers move downward, the central locking system is deactivated and the door locks are mechanically inhibited. Thus locked, neither an outside nor inside handle, nor a locking plunger can be used to unlock a door - the doors can only be unlocked and the alarm disarmed using a key in a front door lock... Disconnecting the battery does not unlock the doors or change the 'double locked' mode... In the event of an accident, an inertia switch automatically unlocks all doors.<<<; The requirements of Standard No. 206 for door locks are as follows: >>>S4.1.3 Door locks. Each door shall be equipped with a lockin mechanism with an operating means in the interior of the vehicle.<<<; >>>S4.1.3.1 Side front door locks. When the locking mechanism i engaged, the outside door handle or other outside latch release control shall be inoperative.<<<; >>>S4.1.3.2 Side rear door locks. In passenger cars and multipurpos passenger vehicles, when the locking mechanism is engaged both the outside and inside door handles or other latch release controls shall be inoperative.<<<; The standard was amended on April 27, 1968, to include the door loc requirements described above. An objective of the amendment was to ensure retention of occupants within the vehicle during and subsequent to an impact by reducing inadvertent door openings due to impact upon or movement of inside or outside door handles, and to afford occupants of the rear of a vehicle a method of unlocking the rear door from inside the vehicle (i.e., a reasonable means of escape) in the postcrash phase of an accident.; Your inquiry raises the issue of the permissibility under S4.1. through S4.1.3.2 for negating the capability of the operating means to disengage requisite door locking mechanisms. As explained below, based on our review of the purpose of Standard No. 206 and past NHTSA interpretations of the standard, we conclude that the standard prohibits only additional locking systems which interfere with the capability of the operating means to *engage* the locking system required by the standard. Since, according to your letter of September 24, 1986, BMW's double-lock feature does not interfere with the interior operating means' engagement of the required door locks, the secondary locking system is permitted.; The answer to your question about the double lock system is dependen on whether the system interferes with an aspect of performance required by Standard No. 206. We have determined that the answer is no, because the requirements of S4.1.3.1 and S4.1.3.2 of the standard are written in terms of what must occur when the required locking system is engaged and impose no requirements for the effects of disengaging the system. Thus, the aspect of performance required by S4.1.3 for the interior operating means for the door locks is that it be capable only of *engaging* the required door locking mechanisms. The aspect of performance required by S4.1.3.2 for door locks on the rear doors is that the inside and outside door handles be inoperative when the locking mechanism is *engaged.* Since we have determined that S4.1.3 through S4.1.3.2 do not address the effects of disengaging the required door locks, we conclude that the required aspect of performance in S4.1.3 for door locking mechanisms is that the interior operating means be capable only of engaging the locks. We thus conclude that the standard permits an additional door locking device which might interfere with the disengagement of the required locking system. The additional system, however, must *not* interfere with the capability of the operating means to engage the required door locks.; In determining that the performance requirements of Standard No. 20 address only the effects of engaging the required door locks, we noted that the purpose of the standard is to 'minimize the likelihood of occupants being thrown from the vehicle as a result of impact.' Throughout the rulemaking history of the standard, NHTSA has limited application of the standard's performance requirements only to doors that are provided for the purpose of retaining the driver and passengers in collisions. Because the standard is narrowly focused on occupant retention in a vehicle and specifies no performance requirements for occupant egress, we concluded that there is no requirement in the standard that prohibit a device which negates the capability of the inside operating means for the door locks to disengage the locks, provided that the device does not interfere with the engagement of the required door locking system.; This letter interprets Standard No. 206 in a manner that clarifies pas agency statements on issues raised by secondary locking systems. To the extent that the statements contained herein conflict with interpretations issued in the past, the previous interpretations are overruled.; Sincerely, Erika Z. Jones, Chief Counsel

ID: nht90-1.22

TYPE: INTERPRETATION-NHTSA

DATE: 01/25/90

FROM: STEPHEN P. WOOD -- ACTING CHIEF COUNSEL, NHTSA

TO: LARRY S. SNOWHITE, ESQ. -- MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.

TITLE: NONE

ATTACHMT: LETTER DATED JULY 27, 1989 TO STEPHEN WOOD, NHTSA, FROM LARRY SNOWHITE, MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, ATTACHED; [OCC - 3763]

TEXT: This replies to your letters asking for a determination "that the sale into the aftermarket as well as aftermarket installation of the Advanced Brake Light Device ('ABLD') . . . would not violate" any of this agency's statutes or regulations.

As you have described it, the ABLD "consists of a sensor attached to the accelerator pedal that senses the rate at which the foot releases the accelerator pedal. This signal is sent to a processor unit, which determines whether the brake lights should b e turned on, and the duration of the illumination until the brake is applied. The ABLD is set so that the brake light will go off unless the brake is applied within one second of the ABLD's activation . . . ." You believe that this avoids providing a mi sleading signal. You further indicate the manufacturer's willingness to alter the time interval if NHTSA's favorable opinion is required for it.

You have not defined the term "aftermarket", but we shall assume that you mean sales to vehicle owners of equipment for installation on their vehicles (as contrasted with sales to dealers for installation on new vehicles before their delivery). There is no Federal motor vehicle safety standard that applies to the system described in your letter. This means that there are no Federal restrictions upon the importation, manufacture, or sale of the ABLD. Under the National Traffic and Motor Vehicle Safety Act (specifically, 15 U.S.C. 1397(a)(2)(A)), as you surmise, modifications to vehicles by a person other than the vehicle owner are permissible as long as they do not "render inoperative, in whole or in part, any device . . . installed on . . . a motor vehicle . . . in compliance with an applicable Federal motor vehicle safety standard . . . ."

The essential question then is whether the installation of the ABLD renders partially or wholly inoperative the vehicle's stop lamps. As you know, in our interpretations on lighting equipment, we have noted a close relationship between the statute's ren dering inoperative prohibition for

the aftermarket with the standard's impaired effectiveness prohibition for supplementary original equipment. Primarily, maintaining that relationship is done in order to avoid regulatory inconsistency with interpretations under which installation of an item of aftermarket equipment might be deemed acceptable under the National Traffic and Motor Vehicle Safety Act, while its installation as original equipment would violate Standard No. 108.

There are two types of supplementary original, or aftermarket, lighting equipment: those that operate independently of the lighting equipment that Standard No. 108 requires, and those that operate in connection with that equipment. A separate red rear f og lamp would be an example of the former. The ABLD is an example of the latter, because it has a direct effect upon the operation of the stop lamp.

An aftermarket device that has an effect upon the operation of required lighting equipment cannot be deemed permissible unless that effect is consistent with the operation and purpose of the required equipment. As you stated, the SAE defines a stop lamp as one whose function indicates "the intention of the operator of a vehicle to stop or diminish speed by braking". You have argued that "The ABLD is consistent because it "clearly and unambiguously indicates" an operator's intent to apply the brake. Y our client, however, does not make that claim for the ABLD; it concedes that "there will be circumstances in which the brake will not be engaged after the ABLD is activated."

The heart of our concern is that while the standard requires the stop lamp to operate in only one particular circumstance, the ABLD causes the stop lamp to operate at an earlier time when the lamp is supposed to be unlighted. Further, the ABLD's activat ion of the stop lamp indicates only that the operator has released the accelerator. It does not necessarily follow that the brake pedal will later be applied. Under this fact situation, the stop lamps fulfill a purpose other than for which they are ins talled. This can only create the potential for confusion and dilution of the effectiveness of the stop signal. For the reasons stated above, we have concluded that installation of the ABLD in the aftermarket would render the stop lamps partially inopera tive. Because this conclusion does not depend upon whether the ABLD would be acceptable using the different parameters of performance to which it is apparently capable of being adjusted, there appears to be no reason to discuss this matter with you befo re completion of this interpretation, which would further delay our response.

We would like to discuss several other points. You have stated that "Illuminations of the brake lights for one second or less occur frequently during normal driving without the ABLD", and have sought to allay our concerns with the manufacturer's willing ness to reduce the stop lamp activation time from one second to something less if that is required for a favorable interpretation. You have also provided information that the ABLD comes into operation only when the foot is released from the pedal at a ra te consistent with an intent to apply the brake, as in an emergency situation.

While we appreciate these arguments, we do not find them persuasive. The short periods of illumination to which you refer are occasioned by application of the brake pedal, no matter how brief that application is. The offer to reduce the activation time of the ABLD if it is not followed by a brake application would reduce but not eliminate stop lamp activation for purposes other than to indicate a stop or diminished speed. As for foot-movement time, there appears to be no indication in the University of Michigan study that you submitted that the ABLD was activated in traffic emergencies. The foot-movement time measurements seem consistent with removal of the foot from the accelerator under ordinary traffic situations, and thus there should have been no instances of ABLD activation.

Your most recent letter contained a copy of a report of an independent field study of the ABLD in Israel, which "found that rear-end accidents were reduced by 75 percent." However, the report states that the ABLD-equipped vehicles ("except a few") were a lso equipped with center high-mounted stop lamps. Since any reductions in rear-end accidents that were experienced by the test fleets cannot be attributed solely to the ABLD, the data must be viewed as inconclusive.

The acceptability for use of the ABLD must also be determined under the laws of the individual States. We are unable to advise you on these laws, and suggest that you get in touch with the American Association of Motor Vehicle Administrators (AAMVA) for further advice. Its address is 4600 Wilson Boulevard, Arlington, VA 22203.

ID: nht90-2.51

TYPE: INTERPRETATION-NHTSA

DATE: MAY 25, 1990

FROM: STEPHEN P. WOOD -- ACTING CHIEF COUNSEL, NHTSA

TO: SUSAN BIRENBAUM -- ACTING GENERAL COUNSEL, UNITED STATES CONSUMER PRODUCT SAFETY COMMISSION

TITLE: NONE

ATTACHMT: LETTER DATED 2-1-90 TO STEPHEN P. WOOD FROM SUSAN BIRENBAUM ATTACHED; ALSO ATTACHED LETTER DATED 10-12-89 TO STEPHEN WOOD FROM DAVID SCHMELTZER, U.S. CONSUMER PRODUCT SAFETY COMMISSION, AND LETTER DATED 6-29-89 TO STEPHEN WOOD FR OM SUSAN BIRENBAUM.

TEXT:

This responds to several letters asking whether various products are items of motor vehicle equipment: (1) "SNAP fix-a-flat", an aerosol container of liquid latex and a highly flammable propellant of pressurized gas which can be used to temporarily seal and inflate flat tires; (2) an electric windshield de-icer and windshield scraper which can be inserted into the cigarette lighter receptacle in a motor vehicle; and (3) a bicycle rack. In response to your request regarding the de-icer and rack, we will not disclose information regarding those items to the public.

As explained in detail below, each of these three items would be considered an item of motor vehicle equipment under the National Traffic and Motor Vehicle Safety Act (the Safety Act). In reaching these conclusions, we were cognizant of that fact that, as you noted, section 3(a)(1)(c) of the Consumer Product Safety Act, 15 U.S.C. 2052(a)(1)(c), excludes items of "motor vehicle equipment" from the definition of "consumer product."

Before I respond further to the substantive points in your letters, I would like to express my regret for the delay in this response. While preparing our response to your letters, we conducted an extensive review of our past interpretations regarding wh ether a product is an item of "motor vehicle equipment" within the meaning of the Safety Act. After that review, and in response to the issues raised in your letters, we have decided to clarify and revise our interpretation of what constitutes "motor ve hicle equipment."

As you are aware, section 102(4) of the Safety Act, 15 U.S.C. 1391(4), defines, in relevant part, the term "motor vehicle equipment as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle . . . (emphasis added).

In determining whether an item of equipment is considered an "accessory . . . to the motor vehicle," NHTSA has in the past generally applied not only the relevant statutory language, but also the following two criteria: first, whether the item has no ost ensible purpose other than use with a

motor vehicle (e.g., a battery charger that could be used for marine batteries as well as motor vehicle batteries would not qualify) and second, whether it is intended to be used principally by ordinary users of motor vehicles (e.g., items normally used by professional vehicle repair and maintenance personnel would not qualify). In most cases, the agency concluded that a product was an item of "motor vehicle equipment" only if it met both criteria. However, in several instances, the,agency found produ cts to be items of motor vehicle equipment without an explicit finding that they satisfied the first criterion (e.g., a June 11, 1986 letter to the Consumer Product Safety Commission, concerning a tow strap, and an August 18, 1987 letter to Ziemke, conce rning window shades).

Your recent requests have led us to review our approach to this issue. We have concluded that the first criterion stated above for determining whether a product should be regarded as an "accessory . . . to the motor vehicle" has been too restrictive. Ne ither the Safety Act nor its legislative history limits that category to items used exclusively in conjunction with motor vehicles. Moreover, we believe that a broader view of what comes within that term, and therefore what may be properly characterized as an item of motor vehicle equipment, is more consistent with the statutory language and with the Safety Act's purposes of enhancing motor vehicle safety.

Therefore, we have decided that a product will be deemed to satisfy the first criterion whenever a substantial portion of its expected uses are related to the operation or maintenance of motor vehicles. We will determine the expected uses by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. We anticipate that products found to satisfy the first criterion will ordinarily, although not n ecessarily, be ones that are carried in a vehicle. If the product also satisfies the second criterion (which is directed to the nature of the likely users of the product), the product will be considered an "accessory" and thus be subject to the provisio ns of the Safety Act.

Applying these criteria to the three products about which you inquired, NHTSA has come to the following conclusions:

SNAP fix-a-flat. You explained that while this product is primarily intended for use with motor vehicles, the product's label suggests it also can be used with tires on bicycles, tractors, and off-road all-terrain-vehicles. According to your letter, al l but one of the reported injuries have been sustained by a mechanic rather than the vehicle owner.

The agency considers this to be an item of motor vehicle equipment. First, although the product can be used to repair tires on bicycles and other vehicles not subject to the Safety Act, it is evident that a substantial use of the product is for the purpo se of repairing motor vehicle tires. Second, based on the product's purpose as suggested by the statements on the can (e.g., "Quick and easy to use. No jacks. No tools. No tire changing." and "Keep out of reach of children"), it appears that this prod uct was intended to be used principally by ordinary

vehicle owners. The fact that mechanics have typically been the ones being injured by this product may reflect, not the fact that the primary users are mechanics, but the fact that mechanics are more likely than other users to engage in practices that l ead to problems with fix-a-flat.

Bicycle rack. NHTSA considers these racks to be items of motor vehicle equipment. First, insofar as this agency is aware, bicycle racks are used exclusively in conjunction with motor vehicles. Even if bicycle racks were occasionally used on vehicles o ther than motor vehicles, use with motor vehicles is the primary use of these racks. Second, based on the product's function, which is to transport bicycles on motor vehicles, and their typically simple method of installation, it appears that this produ ct was intended to be used principally by ordinary vehicle owners.

De-icer. This agency considers the de-icer to be an item of motor vehicle equipment. First, several facts indicate that it is primarily intended for use in conjunction with motor vehicles. Its plug fits a type of outlet wbich we believe is most common ly found in motor vehicles. While that type of outlet may be found in some boats, boats are comparatively unlikely to be used in conditions in which ice may form. Thus, we conclude that use with motor vehicles is the primary use of this product. Second, based on the product's purpose, method of installation and operation, and likely circumstancs of its use, it appears that this product was intended to be used principally by ordinary vehicle owners.

ID: 2453y

Susan Birenbaum, Esq.
Acting General Counsel
United States Consumer Product Safety Commission
Washington, DC 20207

Dear Ms. Birenbaum:

This responds to several letters asking whether various products are items of motor vehicle equipment: (1) "SNAP fix-a-flat", an aerosol container of liquid latex and a highly flammable propellant of pressurized gas which can be used to temporarily seal and inflate flat tires; (2) an electric windshield de-icer and windshield scraper which can be inserted into the cigarette lighter receptacle in a motor vehicle; and (3) a bicycle rack. In response to your request regarding the de-icer and rack, we will not disclose information regarding those items to the public.

As explained in detail below, each of these three items would be considered an item of motor vehicle equipment under the National Traffic and Motor Vehicle Safety Act (the Safety Act). In reaching these conclusions, we were cognizant of that fact that, as you noted, section 3(a)(1)(c) of the Consumer Product Safety Act, 15 U.S.C. 2052(a)(1)(c), excludes items of "motor vehicle equipment" from the definition of "consumer product."

Before I respond further to the substantive points in your letters, I would like to express my regret for the delay in this response. While preparing our response to your letters, we conducted an extensive review of our past interpretations regarding whether a product is an item of "motor vehicle equipment" within the meaning of the Safety Act. After that review, and in response to the issues raised in your letters, we have decided to clarify and revise our interpretation of what constitutes "motor vehicle equipment."

As you are aware, section 102(4) of the Safety Act, 15 U.S.C. 1391(4), defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle . . . (emphasis added).

In determining whether an item of equipment is considered an "accessory . . . to the motor vehicle," NHTSA has in the past generally applied not only the relevant statutory language, but also the following two criteria: first, whether the item has no ostensible purpose other than use with a motor vehicle (e.g., a battery charger that could be used for marine batteries as well as motor vehicle batteries would not qualify) and second, whether it is intended to be used principally by ordinary users of motor vehicles (e.g., items normally used by professional vehicle repair and maintenance personnel would not qualify). In most cases, the agency concluded that a product was an item of "motor vehicle equipment" only if it met both criteria. However, in several instances, the agency found products to be items of motor vehicle equipment without an explicit finding that they satisfied the first criterion (e.g., a June 11, 1986 letter to the Consumer Product Safety Commission, concerning a tow strap, and an August 18, 1987 letter to Ziemke, concerning window shades).

Your recent requests have led us to review our approach to this issue. We have concluded that the first criterion stated above for determining whether a product should be regarded as an "accessory . . . to the motor vehicle" has been too restrictive. Neither the Safety Act nor its legislative history limits that category to items used exclusively in conjunction with motor vehicles. Moreover, we believe that a broader view of what comes within that term, and therefore what may be properly characterized as an item of motor vehicle equipment, is more consistent with the statutory language and with the Safety Act's purposes of enhancing motor vehicle safety.

Therefore, we have decided that a product will be deemed to satisfy the first criterion whenever a substantial portion of its expected uses are related to the operation or maintenance of motor vehicles. We will determine the expected uses by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. We anticipate that products found to satisfy the first criterion will ordinarily, although not necessarily, be ones that are carried in a vehicle. If the product also satisfies the second criterion (which is directed to the nature of the likely users of the product), the product will be considered an "accessory" and thus be subject to the provisions of the Safety Act.

Applying these criteria to the three products about which you inquired, NHTSA has come to the following conclusions:

SNAP fix-a-flat. You explained that while this product is primarily intended for use with motor vehicles, the product's label suggests it also can be used with tires on bicycles, tractors, and off-road all-terrain-vehicles. According to your letter, all but one of the reported injuries have been sustained by a mechanic rather than the vehicle owner.

The agency considers this to be an item of motor vehicle equipment. First, although the product can be used to repair tires on bicycles and other vehicles not subject to the Safety Act, it is evident that a substantial use of the product is for the purpose of repairing motor vehicle tires. Second, based on the product's purpose as suggested by the statements on the can (e.g., "Quick and easy to use. No jacks. No tools. No tire changing." and "Keep out of reach of children"), it appears that this product was intended to be used principally by ordinary vehicle owners. The fact that mechanics have typically been the ones being injured by this product may reflect, not the fact that the primary users are mechanics, but the fact that mechanics are more likely than other users to engage in practices that lead to problems with fix-a-flat.

Bicycle rack. NHTSA considers these racks to be items of motor vehicle equipment. First, insofar as this agency is aware, bicycle racks are used exclusively in conjunction with motor vehicles. Even if bicycle racks were occasionally used on vehicles other than motor vehicles, use with motor vehicles is the primary use of these racks. Second, based on the product's function, which is to transport bicycles on motor vehicles, and their typically simple method of installation, it appears that this product was intended to be used principally by ordinary vehicle owners.

De-icer. This agency considers the de-icer to be an item of motor vehicle equipment. First, several facts indicate that it is primarily intended for use in conjunction with motor vehicles. Its plug fits a type of outlet which we believe is most commonly found in motor vehicles. While that type of outlet may be found in some boats, boats are comparatively unlikely to be used in conditions in which ice may form. Thus, we conclude that use with motor vehicles is the primary use of this product. Second, based on the product's purpose, method of installation and operation, and likely circumstancs of its use, it appears that this product was intended to be used principally by ordinary vehicle owners.

Sincerely,

Stephen P. Wood Acting Chief Counsel

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