ID: nht90-2.86

TYPE: INTERPRETATION-NHTSA

DATE: June 14, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Normand Laurendeau, Esq. -- Guy And Gilbert

TITLE: NONE

ATTACHMT: ATTACHED TO 8/4/95 LETTER FROM JOHN WOMACK TO JEREL M. SACHS (A43; STD. 205; REDBOOK 2); ALSO ATTACHED TO 6/26/95 LETTER FROM JEREL M. SACHS TO CLARKE HARPER; ALSO ATTACHED TO 8/4/86 LETTER FROM ERIKA JONES TO HENRY A. GORRY; ALSO ATTACHED TO 6 /10/87 LETTER FROM ERIKA JONES TO DAVID C. MAROON

TEXT: Dear Mr. Laurendeau:

Thank you for your letter on behalf of your client, who distributes auto glass parts in Canada. You had two questions regarding your client's status as an "intermediate" in the motor vehicle industry.

Before I address your specific questions, I believe some background information about this agency may be of assistance to you. The National Highway Traffic Safety Administration (NHTSA) has the authority under the National Traffic and Motor Vehicle Safe ty Act (Safety Act) to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, the Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet our safety standards. The agency periodically tests vehicles and equipment items for compliance with the standards, and al so investigates other alleged safety-related defects. I have enclosed an information sheet which briefly describes each of a manufacturer's responsibilities under the Safety Act. The information sheet also explains how a company offering an item of mot or vehicle equipment for importation into the United States must designate an agent within this country for service of process.

Your letter describes your client as "one of the major distributors of auto glass parts in all of Canada." Your letter states that your client's customers demand that your client "certifies all glasses shipped with D.O.T. number AS1 or AS2 for domestic a nd export purposes in all countries." I will now address the specific questions raised in your letter.

Your first question was whether your client, as a distributor of automotive safety glass, needs a D.O.T. number to operate in the United States. The answer to this question depends on what role your client has in the process that results in glazing bein g sold to the customer.

The agency has issued Standard No. 205, Glazing Materials (49 CFR $ 571.205) which specifies performance requirements for glazing for use in motor vehicles. S6 of Standard No. 205 establishes marking and certification requirements for manufacturers and d istributors of glazing materials.

The marking and certification requirements differ, depending upon whether your client is a "prime glazing material manufacturer" or simply a manufacturer or distributor. A "prime glazing material manufacturer" is defined in S6.1 of Standard No. 205 as " one who fabricates, laminates, or tempers the glazing material." If your client performs any of these operations, it must comply with the marking and certification requirements set forth in S6.1 through S6.3 of Standard No. 205. S6.1 requires every prim e glazing material manufacturer to mark all glazing materials it manufactures in accordance with American National Standard "Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways". Z-26.1-1977, January 26, 1977, as supplemented by Z26.1a, July 3, 1980 (hereinafter referred to as "ANS Z26). S6.2 of Standard No. 205 requires each prime glazing material manufacturer to certify each piece of glazing designed as a component of any specific motor vehicle or camper by adding to the mark required by S6.1 the symbol "DOT" and a manufacturer's code mark that is assigned by this agency. S6.3 requires each prime glazing manufacturer to certify each piece of glazing designed to be cut into components for use in motor vehi cles pursuant to the requirements of section 114 of the Safety Act (15 U.S.C. 1403).

Assuming that your client would not be considered a "prime glazing material manufacturer," but is simply a distributor, it would not need to be assigned a DOT number pursuant to S6.2 of Standard No. 205. In your letter, however, you incorrectly identifi ed the codes AS1 and AS2 as DOT numbers. Those codes are required on glazing materials by section 6 of ANS Z26. As explained below, your client may be required to add such markings to glazing materials, even if your client is only considered a distribu tor for the purposes of Standard No. 205.

Each manufacturer or distributor who cuts a section of glazing material to which Standard No. 205 applies, for use in a motor vehicle or camper, must comply with the requirements set forth in S6.4 and S6.5 of Standard No. 205. For sections of glazing th at are cut by the manufacturer or distributor, the manufacturer or distributor must mark it in accordance with section 6 of ANS Z26 (S6.4) and certify it in accordance with section 114 of the Safety Act (S6.5).

Your second question asked about the potential liability of a distributor for the certification of automotive safety glazing for importation into the United States.

If your client is required to certify glazing it distributes pursuant to the provisions in either S6.2, S6.3, or S6.5 of Standard No. 205, the failure to so certify would be a violation of the standard. Section

108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) provides that:

No person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any appl icable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard . . .

Thus, if your client is required by Standard No. 205 to certify some glazing it distributes, the failure to make such a certification would be a violation of section 108(a)(1)(A) of the Safety Act. Even if your client is not required to certify the glaz ing it distributes pursuant to Standard No. 205, section 114 of the Safety Act requires every distributor of motor vehicle equipment (such as glazing) to furnish a certification. Section 114 provides: Every manufacturer or distributor of . . . motor veh icle equipment shall furnish to the distributor or dealer at the time of delivery of such . . . equipment by such . . . distributor the certification that each such . . . item of motor vehicle equipment conforms to all applicable Federal motor vehicle sa fety standards. In the case of an item of motor vehicle equipment such certification may be in the form of a label or tag on such item or on the outside of a container in which such item is delivered.

Section 108(a)(1)(C) of the Safety Act provides that no person shall fail to issue a certificate required by section 114, or issue a certificate to the effect that a motor vehicle or item of motor vehicle equipment conforms to all applicable safety stand ards, if such person in the exercise of due care has reason to know that such certificate is false or misleading in a material respect. Section 109 of the Safety Act (15 U.S.C. 1398) provides that any violations of section 108 subject the violator to a civil penalty of not to exceed $ 1,000 for each such violation, up to a maximum penalty of $ 800,000.

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

ID: nht90-2.87

TYPE: INTERPRETATION-NHTSA

DATE: 06/15/90

FROM: NORMAN B. SCOTT, JR.,-- SNUG SEAT, INC.

TO: ERIKA T. JONES -- CHIEF COUNSEL, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 8-15-90 TO N. B. SCOTT, JR., FROM P. J. RICE; (A36; STD. 213); ALSO ATTACHED--PHOTOGRAPH (OMITTED)

TEXT:

During a meeting held at NHTSA offices on June 13, 1990, 1 presented a new product being introduced to the market in the next 60 days which will transport "Low Birth Weight" (LBW) infants in a supine or prone position.

This "LBW" car bed is to be called the Mini-Swinger and will be represented as appropriate for infants no longer than twenty (20) inches and no more than eight to ten (8-10) pounds in weight. The Mini-Swinger was developed as a safer means of transporta tion for the "LBW" population of infants that do not have the skeletal/muscular structure required for safe transportation in the standard rear facing six (6) month old car seats. The Mini-Swinger is protected by patent number 4,113,306 issued to Mr. vo n Wimmersperg and owned by the West German firm, Romer-Britax.

As FMVSS 213 does not deal directly with infants of this size we would like an opinion on the following:

In order to certify to FMVSS 213 we are required to place the six (6) month old seventeen (17) pound dummy in the Mini-Swinger. The six (6) month old dummy's torso fits in the Mini-Swinger; however, the legs do not. A dynamic crash test showed the dumm y staying in the shell and the shell maintaining its integrity.

Given that FMVSS 213 does not address the comfort of the occupant of a car seat, we need to know if you accept our testing as adequate relative to the present standard.

On July 8, 1988, you wrote a six (6) page letter to Donald Friedman, Liability Research, Inc., relative to a similar issue. During review of this letter, it seems evident to me the testing we have done is an acceptable test for compliance to FMVSS 213.

Would you please review our request and let me know your thoughts at the earliest convenience?

ID: nht90-2.88

TYPE: Interpretation-NHTSA

DATE: June 15, 1990

FROM: James W. Lawrence -- Manager, Compliance and Technical Legislation, Volvo GM Heavy Truck Corporation

TO: Stephen P. Wood -- Acting Chief Counsel, NHTSA

TITLE: Re Interpretation on Conformance of Aftermarket Parts

ATTACHMT: Attached to letter dated 4-9-90 from Stephen P. Wood to Mehdi Rowghani (A35; Std. 214; Part 541); Also attached to letter dated 3-13-91 from Paul Jackson Rice to James W. Lawrence (A37; Std. 214; VSA 108(a)(2)(A))

TEXT:

I recently became aware of an Administration interpretation (copy attached) to a parts distribution that states in part as follows:

"...there is no requirement that the replacement door restore the vehicle to a condition in which it continues to meet Standard No. 214."

In contrast, the Act section 108a(2)(A) prohibits rendering inoperative devices or elements of design installed in compliance to a Safety Standard. I interpret this provision of the Act to require the installation of parts meeting the same performance r equirements as OEM parts. A clarification would be most appreciated.

ID: nht90-2.89

TYPE: INTERPRETATION-NHTSA

DATE: 06/18/90

FROM: PAUL JACKSON RICE -- NHTSA CHIEF COUNSEL

TO: JOHN W. GARRINGER

TITLE: NONE

ATTACHMT: LETTER DATED 05/07/90 FROM JOHN W. GARRINGER TO STEPHEN P. WOOD -- NHTSA, OCC 4751; LETTER DATED 02/01/90 FROM JOHN W. GARRINGER TO TERRY M. GERNSTEIN

TEXT: This responds to your letter asking whether Federal law permits the installation of tinted plastic film on the bottom of motor vehicle windshields. The purpose of this film would be to reduce glare for the driver and any front seat passengers. I am ple ased to have this opportunity to explain how our laws and regulations apply to such a product.

Our agency is authorized under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.; the Safety Act) to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not appro ve or certify any vehicles or items of equipment, nor do we endorse any commercial products or processes. Instead, the Safety Act specifies that each manufacturer itself must certify that its products meet all applicable safety standards. The agency pe riodically tests vehicles and items of equipment for compliance with the standards, and also investigates alleged defects related to motor vehicle safety and alleged violations of other statutory provisions.

Pursuant to this authority, NHTSA has issued Standard No. 205, Glazing Materials (49 CFR @ 571.205), which sets forth performance requirements for windows and other glazing items installed in motor vehicles. Among the requirements set forth in Standard N o. 205 are specifications for minimum levels of light transmittance. A minimum of 70 percent light transmittance is required in glazing areas requisite for driving visibility, which includes all windows in passenger cars. In trucks and buses, the winds hield and windows to the immediate right and left of the driver and the rearmost window, if the latter is used for driving visibility, are considered to be requisite for driving visibility, and therefore subject to the 70 percent minimum light transmitta nce requirement.

Your letter did not provide any information on the light transmittance that would be measured through glazing with your Hood Glare product installed on it. The combination of the glazing material and your tinting film must allow at least 70 percent light transmittance to comply with the requirements of Standard No. 205. No manufacturer or dealer would be permitted to install your tinting film on the glazing materials on new vehicles, unless the manufacturer or dealer certifies that the vehicle continue s to comply with the 70 percent minimum light transmittance and other requirements of Standard No. 205.

After a vehicle is first sold to a consumer, modifications to the vehicle are affected by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, dealer, distributor, or repair business from "rendering i noperative" any device or element of design installed in a vehicle in compliance with any safety standard. This provision of the law means that no manufacturer, dealer, distributor, or repair business could install tinting film if the addition of the ti nting film to the glazing would result in a light transmittance of less than 70 percent, or otherwise cause the vehicle to no longer comply with the applicable requirements of Standard 205. Violations of this "render inoperative" prohibition can result in Federal civil penalties to the manufacturer, dealer, distributor, or repair business of up to $ 1000 for each noncomplying installation.

Section 108(a)(2)(A) of the Safety Act does not affect vehicle owners. Hence, vehicle owners themselves may install tinting film or any other product on the glazing of their vehicle, regardless of whether the installation causes the vehicle to no longer comply with Standard No. 205. Individual States have the authority to regulate the operational use of vehicles by their owners, and, therefore, have the authority to regulate or preclude individual owner modifications to the glazing of their vehicles.

I have enclosed an information sheet that summarizes the relationship between Federal auto safety laws and motor vehicle window tinting. I hope this information is helpful. If you have any further questions or need any additional information about this topic, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

ENCLOSURE

ID: nht90-2.9

TYPE: INTERPRETATION-NHTSA

DATE: APRIL 9, 1990

FROM: STEPHEN P. WOOD

TO: GARY R. BALANZA

TITLE: NONE

ATTACHMT: LETTER DATED 10-11-89 TO NHTSA FROM GARY R. BALANZA ATTACHED.

TEXT:

This is in reply to your letter asking for an interpretation whether your invention "will interfere with the standard equipment" required by Motor Vehicle Safety Standard No. 108. I regret the delay in responding.

Your invention, "Pinlights", is described as an auxiliary lighting system designed to fit an automobile's side contours. Its purpose is to light up the entire length of a vehicle, so that it will be more conspicuous at night. We note your uncertainty a s to "number of stripes allowed on Bcar", "colors allowed on a car", and "maximum brightness allowable."

There are two ways to approach your invention under the National Traffic and Motor Vehicle Safety Act, our authority for the issuance of the motor vehicle lighting standard, Standard No. 108. The first is as an item of original equipment, in place on th e vehicle at the time it is bought by its first owner. You have asked the correct question: does the invention impair the effectiveness of the lighting equipment required by Standard No. 108? The equipment most likely to be impaired are the side marke r lamps and reflectors. These items are located near the front and rear of the vehicle, to enhance vehicle conspicuity by affording an approximation of vehicle length, and an indication of the vehicle's front and rear. The lamps are amber to the front, and red to the rear. Your invention would be located along the side of the vehicle, from front to rear. This suggests that the color of your device should similarly be amber to the front and red to the rear, so as not to impair the effectiveness of th e directional function of the side marker lamps.

The second way to approach your invention is as an item available in the aftermarket. Standard No. 108 does not apply to a vehicle in use. However, as it applies to your question, the vehicle Safety Act prohibits modifications by manufacturers, distribu tors, dealers, or motor vehicle repair businesses if they render inoperative, in whole or in part, any of the required lighting equipment. In most cases, we consider an impairment of new vehicle equipment to be equivalent to a partial inoperability. Fu rther, if installation of aftermarket equipment directly affects the performance of original equipment (such as a reduction of light output through an interference with the wiring), that would certainly be considered a partial inoperability.

Lighting equipment that is not covered by Standard No. 108 remains subject to the requirements of each State in which a vehicle on which it is installed is registered and/or operated. We are unable to advise you on State laws, and suggest that, for an o pinion, you write the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard,

Arlington, Va. 22203.

ID: nht90-2.90

TYPE: INTERPRETATION-NHTSA

DATE: 06/18/90

FROM: PAUL JACKSON RICE -- NHTSA CHIEF COUNSEL

TO: DOUGLAS MAYES -- PRESIDENT CREATIVE PRODUCTS, INC.

TITLE: NONE

ATTACHMT: LETTER DATED 10/17/89 FROM DOUGLAS MAYES -- CREATIVE PRODUCTS TO NHTSA; RE BRAKING DISTANCE TEST AND LABORATORIES USED BY DOT; OCC 4087

TEXT: This responds to your letter asking questions in relation to your product called "gyroscopic wheel covers." We apologize for the delay in our response.

According to your letter and accompanying information, you claim that use of "gyroscopic wheel covers" can reduce stopping distance. You stated that Dr. Carl Clark of this agency suggested that you request this office to provide a letter specifically ou tlining the requirements of the agency's braking test, and a list of the various testing facilities used by the agency when testing a product for this purpose. You then asked for a letter stating the "stopping distance test guidelines" of Safety Standar d No. 105, Hydraulic Brake Systems," and a list of laboratories acceptable to DOT that could be used to test your product. You also asked whether an SAE standard is a proper example of a stopping distance test. You stated that it is your intention to us e these testing standards and one of the acceptable laboratories so as to properly document your product's test results in compliance with the DOT testing standards.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of th e manufacturer to ensure that its products meet applicable standards.

Safety Standard No. 105, Hydraulic Brake Systems, applies to passenger cars and other motor vehicles. The standard specifies, among other things, a number of stopping distance tests that each motor vehicle must meet. I have enclosed a copy of the stand ard for your information.

I note that Standard No. 105 was not designed for the purpose of evaluating whether a product such as yours can improve stopping distance. We are unable to offer an opinion as to the appropriateness of using Standard No. 105's stopping distance tests fo r that purpose, or how such a test program would best be carried out.

This agency does not provide recommendations or endorsements for particular testing laboratories. I have, however, enclosed a list of the independent laboratories conducting compliance tests for NHTSA's Office of Vehicle Safety Compliance during the cur rent fiscal year.

I have also enclosed a copy of an information sheet we have prepared which provides information for new manufacturers of motor vehicles and motor vehicle equipment.

I hope this information is helpful.

[NHTSA STANDARD NO 105 HYDRAULIC BRAKE SYSTEMS; 49 CFR CHAPTER V; DATED 10/01/89 OMITTED]

ID: nht90-2.91

TYPE: Interpretation-NHTSA

DATE: June 20, 1990

FROM: Dennis T. Johnston -- Senior Executive Engineer, Product Engineering and Regulatory Affairs, Sterling Motor Cars

TO: General Jerry R. Curry -- Administrator, NHTSA

TITLE: Re Sterling Superlocking System

ATTACHMT: Attached to letter dated 10-5-90 from B. Felrice to D.T. Johnston (A36; Part 543)

TEXT:

Rover Cars of North America (formerly Austin Rover Cars of North America, d.b.a. Sterling Motor Cars), importer of the British Sterling passenger car, manufactured by the Rover Group Ltd., U.K. sent you a letter dated March 14, 1990 outlining a proposed modification to our antitheft system in the 1991 Model Year. Due to marketing considerations, this enhanced system, referred to as 'superlocking' will not be available for the 1991 Model Year. Therefore Sterling would like to withdraw that submission. If we elect to offer this system at some point in the future we will resubmit a request for de minimus change to our currently approved theft prevention system.

We would like to introduce a minor revision to our currently approved system for the 1991 Model Year, however. Our present system, once armed, will activate if the trunk is opened, even using the key, unless the system is disarmed. Our proposed modific ation would allow the system to be disarmed when the trunk is opened by the key and rearmed when the, trunk lid is closed. Forcing open of the trunk without using the key would still activate the alarm.

If you have any questions regarding this request please feel free to contact me on (213) 437-6282 at your earliest convenience.

ID: nht90-2.92

TYPE: Interpretation-NHTSA

DATE: June 22, 1990

FROM: Ed McCarron -- Western Star Trucks Inc.

TO: Dee Fujita -- Chief Counsel's Office, NHTSA

TITLE: FMVSS 302 Burn Test

ATTACHMT: Attached to letter dated 6-29-90 to E. McCarron from P. J. Rice; (A35; Std. 302) TEXT:

As per our conversation, below is a sketch (cross section). This shows the corner of a cushion, specifically a mattress.

(Graphics omitted See illustration on original. 1) cover 2) foam 3) foam backing 4) fill 5) corner reinforcement 6) fill backing (at corners)

Can you please recommend how this would be tested.

ID: nht90-2.93

TYPE: INTERPRETATION-NHTSA

DATE: 06/22/90

FROM: PAUL JACKSON RICE -- NHTSA CHIEF COUNSEL

TO: RALPH H. SHEPPARD, -- ADDUCI, MASTRIANI, MEEKS & SCHILL

TITLE: NONE

ATTACHMT: LETTER DATED 06/11/90 FROM RALPH H. SHEPPARD; IMPORTATION OF A NON-CONFORMING VOLVO CAB CHASSIS INTENDED FOR RE-EXPORT TO SWEDEN; OCC 4872

TEXT: This is in reply to your facsimile letter of June 11, 1990, with regard to the imminent importation of a "Volvo truck cab chassis manufactured in Belgium pursuant to Swedish environmental and safety standards." Given the time restrictions of your client, we have given this matter priority attention.

The unit would be imported by your client, BAF Communications Corporation of Massachusetts, for completion as a mobile television transmission facility, and, upon completion, would be exported to Sweden. You believe that the unit may be eligible for tem porary importation into the United States under at least one of four compliance exceptions that you have listed, and you have asked for confirmation of your belief.

This is a case of first impression under the Imported Vehicle Safety Compliance Act of 1988 (P.L. 100-562) and its implementing regulation, 49 CFR Part 591, which became effective January 31, 1990. None of the four exceptions you cited are exactly on po int with the facts in this case, but we believe the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.) may be broad enough to accommodate your client.

Your first suggestion is that temporary importation be allowed pursuant to section 591.5(c); the vehicle does not comply with all applicable Federal motor vehicle safety standards but is "intended solely for export. . . and the vehicle bears a label or t ag to that effect." However, your client does not intend to import the chassis cab "solely" for export, but, in fact, to complete its manufacture before its export.

Under your second suggestion, temporary importation would be allowed pursuant to section 591.5(d), where the importer certifies that (s)he is a nonresident of the United States, importing the vehicle for personal use for a period not to exceed one year, and will export the vehicle not later than one year after entry. You report that the president of the Swedish company, "the ultimate purchaser of the completed vehicle, and a non-resident of the United States, is prepared to certify that the vehicle wou ld be imported solely" for its completion, and that it would be exported thereafter. However, this is not appropriate as the importer of record, your client BAF, is in fact a resident of the United States.

You have also suggested that importation might be accomplished pursuant to section 591.5(a)(1), that the vehicle was not manufactured primarily for use on the public roads. In your view, this exception may apply as the vehicle will not be manufactured p rimarily for use on the public roads of the United States. We cannot concur with this interpretation. This exception is intended to apply to vehicles manufactured primarily for off-road use, such as golf carts, all-terrain vehicles, and farm tractors. The completed chassis cab would be intended for on-road use and could, at some future time, be reimported into the United States for use here.

Finally, you believe that the unit could be imported under section 591.5(e) as a vehicle requiring further manufacturing operations to perform its intended purpose. This is not fully appropriate because the importer must also declare that "upon completi on of such further manufacturing operations [the vehicle] will comply with all applicable Federal motor vehicle safety standards."

In a telephone conversation with Taylor Vinson of this Office on June 14, you informed us that the owner of the chassis cab is Comvik Skyports, a Swedish corporation. From the standpoint of Part 591, the most appropriate solution would be for the Swedis h company to appear as the importer of record (rather than BAF), and we understand that you believe that this course of action could be followed. Although one of the requirements of the regulation is that the importer provide a passport number and count ry of issue, this assumes that the importer is an individual, not a corporation. It will be sufficient for our purposes for the declaration to note that Sweden is the residence of Comvik. This suggested course of action would fulfill the non-resident im portation requirements of section 591.5(d).

However, because this is a case of first impression and because the U.S. Customs Service, not the Department of Transportation, is the Federal agency directly involved in admitting vehicles into the United States, it is possible that Customs might be rel uctant to admit a vehicle intended for completion for commercial purposes as one imported for "personal use." If Customs is unwilling to admit the chassis cab under section 591.5(d), but is willing to admit it as imported "solely for export", we would al low importation under that provision. Alternatively, if Customs regards importation under the further manufacturing operations exception of section 591.5(e) as appropriate, we would not object to this as long as it is clearly marked on the HS-7 importati on form that the vehicle will not conform with the Federal safety standards upon its completion, but will be exported at that time.

Regardless of the category under which the chassis cab is admitted, BAF must fulfill a statutory requirement outside the importation requirements upon completion of its manufacturing operations if it is to avoid a potential liability for a civil penalty. The National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.) prohibits any person from manufacturing a motor vehicle that does not comply with all applicable Federal safety standards upon completion of manufacture. However, it excuses th ose vehicles intended solely for export and so labeled (15 U.S.C. 1397(b)(3)). Therefore BAF should affix a label or tag to the chassis cab stating that the vehicle is intended for export.

ID: nht90-2.94

TYPE: Interpretation-NHTSA

DATE: June 22, 1990

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

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: Re Request for Interpretation

ATTACHMT: Attached to Ford Bulletin number 10 dated 12-15-89 entitled Splicing Into The Stop Lamp Electrical Circuit, signature by R.R. Chestnut; Also attached to memo dated 6-6-90 from Tekonsha Engineering Company; Also attached to letter dated 8-31-78 from J.J. Levin, Jr. to L.F. Henneberger; Also attached to letter dated 5-2-84 from F. Berndt to L.F. Henneberger; Also attached to letter dated 11-30-81 from F. Berndt to K.G. Moyer (A23; Std. 108; Redbook 3); Also attached to letter dated 9-10-90 from P.J. Rice to L.F. Henneberger (A36; VSA Sec. 103 (d); Std. 108)

TEXT:

I am submitting this request for interpretation on behalf of my client, Echlin Inc. and more specifically Tekonsha Engineering Company, a subsidiary of Echlin, concerning a California Vehicle Code lighting provision which, in our view, conflicts with and is preempted by Federal Motor Vehicle Safety Standard (FMVSS) 108.

The respective NHTSA and California requirements at issue are subparagraph S5.5.4 of FMVSS 108 and subparagraph 24603(f) of the California Vehicle Code. These provisions are reproduced in juxtaposition at Attachment A to this letter. Essentially, the conflict arises from the California Highway Patrol's (CHP) interpretation of 24603(f) as requiring the activation of a vehicle's stop lamps upon the application of the manual emergency override for use in controlling trailer sway.

Tekonsha believes that the California provision is at odds with S5.5.4 of FMVSS 108 since its hand controlled emergency device (a) is not intended to and in the usual case, does not result in diminished vehicle speeds; (b) does not involve application of the vehicle's service brakes; (c) if connected to the stop lamps, would provide an unsafe, false braking signal; and (d) by not being connected to the stop lamps, eliminates other unsafe conditions caused by electrical interference.

BACKGROUND

Tekonsha has recently developed and introduced into the market a new generation, "state of the art" product known as the Commander Electronic Brake Control specifically designed to avoid splicing into the stop lamp switch circuit. This new development eliminates electrical interference including interference which causes serious safety problems. Electrical interference can, for example, prevent the speed control from disengaging upon braking, or deactivate antilock brake system operation. See Ford Motor Company Bulletin No. 10 (December 15, 1989) and Tekonsha product memorandum (June 6, 1990), both enclosed, respectively, as Attachments B-1 and B-2.

The Commander brake control permits the driver of a vehicle to use the hand control to override the trailer brakes in an emergency mode to

control swaying. In this emergency condition, the Commander brake control does not send out false signals because it is not connected into the stop lamp switch circuit. It is not the intention of the driver in controlling sway to stop or diminish speed. Therefore, by definition, the stop lamps should not be activated.

REGULATORY APPLICATION

Subparagraph S5.5.4 of FMVSS 108 provides that the "stop lamps on each vehicle shall be activated upon application of the service brakes." A review of the applicable SAE Standard, SAE J586 FEB84 (currently referenced by FMVSS 108), provides, at S2.1 of the SAE standard, a definition of "stop lamps" as "lamps giving a steady light to the rear of a vehicle to indicate the intention of the operator of a vehicle to stop or diminish speed by braking."

Indeed, previous interpretations of NHTSA have restricted stop lamp activation to vehicle functions which involve deceleration of the vehicle. See, e.g., the agency's two interpretations to the undersigned on behalf of Jacobs Manufacturing Company, by letters dated August 31, 1978 (Attachment C-1), and May 2, 1984 (Attachment C-2).

Subparagraph S5.1.3 of FMVSS 108 provides, in part, that "no additional ... motor vehicle equipment shall be installed that impairs the effectiveness of lighting equipment required by this standard." In a November 30, 1981, letter of interpretation issued by NHTSA's Chief Counsel to Mr. Kenneth Moyer, the agency emphasized that a motor vehicle device which activated the stop lamps "under a condition indicating an intent other than (to stop or diminish speed by braking) ... could impair the effectiveness of the stop lamps." The 1981 interpretation letter went on to state that NHTSA considered "any use of required lighting equipment for a purpose other than as defined, as an 'impairment'" precluded by what is presently subparagraph S5.1.3 of Standard 108 in the case of original equipment, and as a violation of the National Traffic and Motor Vehicle Safety Act as a device which would "render ineffective in whole or in part" required lighting equipment, in the case of an aftermarket device.

In strong language which we believe is directly applicable to CHP's attempted stop lamp indication requirement here, NHTSA, in its November 1981 interpretation letter, underscored its position that a stop lamp, under FMVSS 108, must operate in such a way as to indicate the intention of the vehicle operator to stop or diminish speed by braking.

"We are especially concerned that a high rate of 'false alarms' may lead to a decrease in the overall warning value of the stop lamp signal itself, i.e., the 'cry wolf' phenomenon. This could lead to a significant reduction in the effectiveness of any proposed system."

The November 30, 1981, interpretation letter is included in our submission as Attachment D.

Subparagraph 24603(f) of the California Vehicle Code provides that "stoplamps shall be activated on application of the service (foot) brake and the hand control head for air, vacuum, or electric brakes." The

ambiguous drafting and resulting difficulties of interpreting a conjunctive provision such as the foregoing notwithstanding, CHP has taken the position that the cited clause mandates application of the stop lamps when the Commander Electronic Brake Control manual emergency override is used, even though the service brakes are not applied at the time. Besides the potential safety hazards presented by stop lamp circuit connection with the override as outlined above, this condition, which is typically intended to control trailer sway and not "to stop or diminish speed by braking," presents a false braking signal to following vehicles. By logical extension, the CHP position could require stop lamp indication for any of a myriad of vehicle activities and functions, none of which is related to vehicular braking or deceleration.

Tekonsha submits that the CHP position frustrates and is totally at odds with the plain wording and underlying intent of subparagraph S5.5.4. In the situation under review, the service brakes are not in the applied position and the vehicle is not in a stopping mode because it is not subject to any decelerating mechanism of the braking system. Under these circumstances, Tekonsha believes that the CHP position with respect to California vehicle Code subsection 24603(f) results in the California standard's being substantively dissimilar to FMVSS 108 on the same aspect of motor vehicle equipment performance and as such, preempted by the application of Section 103(d) of the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. S1392(d).

CONCLUSION

For the reasons as set forth, Tekonsha respectfully requests an interpretation confirming its view that subparagraph 24603(f) of the California Vehicle Code is preempted by S5.5.4 of FMVSS 108 to the extent that the former mandates stop lamp activation for a vehicular function such as the Commander Electronic Brake Control manual emergency override, which is unrelated to stopping activity and intended to assist in controlling a swaying trailer under emergency conditions without application of the service brakes.

We appreciate your consideration of our request for interpretation, and encourage you to contact the undersigned, should questions remain.

FMVSS 108 S S5.5.4

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

California Vehicle Code S 24603(f)

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