ID: 1984-1.36

TYPE: INTERPRETATION-NHTSA

DATE: 04/04/84

FROM: AUTHOR UNAVAILABLE; Jeffrey R. Miller; NHTSA

TO: Mr. Armond Cardarelli

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Armond Cardarelli Director, Safety Equipment Services American Association of Motor Vehicle Administrators 1201 Connecticut Avenue, N.W., Suite 910 Washington, D.C. 20036

Dear Mr. Cardarelli:

Thank you for your letter of February 1, 1985, concerning the application of Standard No. 205, Glazing Materials, to sun- screening materials used on vehicle glazing. I hope that the following discussion will answer your questions.

You first asked if Standard No. 205 regulates the use of sun-screening materials. Standard No. 205 affects the use of sun-screening materials in the following ways. Standard No. 205 sets performance requirements that all glazing used in new motor vehicles and all glazing sold as aftermarket equipment for use in motor vehicles must meet. One of the requirements of the standard is that, as explained in more detail in response to your second question, all windows requisite for driving visibility must have a light transmittance of at least 70 percent. Another is that glazing for use in those areas must meet specified requirements for resistance to abrasion.

Manufacturers of new vehicles must certify that the glazing in windows requisite for driving visibility, whether clear or tinted, conforms with the light transmittance and other requirements of the standard. Likewise, if a dealer or other person places sun-screening material on glazing in a new vehicle prior to sale of the vehicle, that person must certify that the glazing continues to be in compliance with the requirements of Standard No. 205. Thus, for example, the light transmittance through the combination of the sun-screening material and the glazing must be at least 70 percent in the case of glazing used in windows requisite for driving visibility. Similarly, the combination must also meet the other applicable requirements of the standard, such as the abrasion resistance requirements.

Purchasers of new vehicles may alter the vehicles as they please, so long as they adhere to all State requirements. There are no requirements under the National Traffic and Motor Vehicle Safety Act which would limit such alterations. However, certain commercial establishments must not install tinted film or other sun-screening material on windows if the combination of the sun-screening material and glazing cannot meet the requirements of Standard No. 205. Section 108(a)(2)(A) of the Vehicle Safety Act provides that no manufacturer, distributor, dealer or motor vehicle repair business shall knowingly render inoperative any device or element of design installed on or in a motor vehicle in compliance with an applicable motor vehicle safety standard. Thus, none of those persons may knowingly install a film or other sun-screening material on a used vehicle for its owner if that act would render inoperative the compliance of the vehicle's glazing with Standard No. 205. Violators of this prohibition are subject to Federal civil penalties up to $1,000 for each violation.

State laws which are inconsistent with these Federal requirements are preempted. Any State law or regulation which would permit any person to install sun-screening material on a new vehicle in violation of Standard No. 205 is preempted under section 103(d) of the Vehicle Safety Act. For example, a State law which specifies a transmittance level less than 70 percent for windows requisite for driving visibility would be preempted. The adoption or retention of such a law would have no effect on the illegality of that installation under Federal law. Further, any State law or regulation that would permit manufacturers, distributors, dealers or motor vehicle repair businesses to install sun-screening material on a vehicle after its first sale in violation of section 108(a)(2)(A) of the Vehicle Safety Act is also preempted.

Your second question asked which windows in passenger cars, trucks, buses, and multipurpose passenger vehicles must meet the luminous transmittance requirements of Standard No. 205. In particular, you asked if the luminous transmittance requirements apply to opera windows and sun roofs. The specification for light transmittance applies to all windows, including opera windows, in a passenger car. It does not, however, apply to car sunroofs . As to trucks , buses, and multipurpose passenger vehicles, it only applies to the windshield and the windows to the immediate right and left of the driver. Thus, none of those windows may be darkly tinted. However, the windows to the rear of the driver in trucks, buses, and multipurpose passenger vehicles are not required to meet the 70 percent light transmittance requirement and thus may be darkly tinted.

Your third question asked if the luminous transmittance requirements apply to the windows behind the driver in passenger cars or station wagons if those vehicles are equipped with an exterior mirror on the right side of the vehicle. The answer is that those windows must still meet the luminous transmittance requirements of Standard No. 205.

If you have any further questions, please let me know.

Sincerely,

Jeffrey R. Miller Chief Counsel

ID: 1984-1.37

TYPE: INTERPRETATION-NHTSA

DATE: 04/06/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Sheeskin; Hillman & Lazar; P.C.

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Jacob Sheeskin Sheeskin, Hillman & Lazar, P.C. 6110 Executive Boulevard P.O. Box 2186 Rockville, MD 20852

RE: your file 3189/001:11

Dear Mr. Sheeskin:

This responds to your letter of March 7, 1984, concerning discussions between your client and the Maryland State Police about the application of tinting or sun screening materials to vehicle glazing materials. This office has sent two letters of interpretation concerning the application of glazing materials to the Maryland State Police. I am enclosing a copy of the agency's letters of December 20, 1983 and April 3, 1984 and the Maryland States Police's original request for an interpretation.

As stated in our letter of April 7, 1984, the application of tinting materials to glazing does not, in and of itself, constitute a violation of the render inoperative provisions of section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act. To violate section 108(a)(2)(A), manufacturers, distributors, dealers, and motor vehicle repair shops that install tinting materials must knowingly install materials which render inoperative the glazing material's compliance with Standard No. 205. Thus, for example, a motor vehicle repair shop would be in violation of section 108(a)(2)(A) if it knowingly installed on a passenger car's window a tinting material which would render inoperative the glazing's compliance with the abrasion resistance or luminous transmittance requirements of the standard.

If you have any further questions, please let me know.

Sincerely,

Frank Berndt Chief Counsel

March 7, 1984

In reply refer to: Our File No. 3189/001:11 Gerald S. Lakas, t/a Custom Window Tinting Services

Frank Berndt, Esq. Chief Counsel National Highway Traffic Safety Administration 400 7th Street, S.W. Washington, D.C.

Dear Mr. Berndt:

This will confirm my telephone conversations of March 5th and 6th with Steve Oesch, Esquire, of your office. I informed Mr. Oesch that I represent Gerald S. Lakas, t/a Custom Window Tinting Services. Mr. Lakas is in the business of tinting automobile windows in the state of Maryland. On March 2, 1984 he received a call from the Automotive Safety Enforcement Division of the Maryland State Police which in effect ordered him to cease and desist his business immediately. A statement by the Maryland State Police officer was that as a result of a recent court case in Hawaii and as a result of a recent ruling by your office that the addition of tinting film or sunscreen materials to vehicle glazing on passenger cars is not in conformance with abrasion resistance requirements and may also exceed allowable luminous transmittance requirements set forth in 49 CFR 571.205. It is also our understanding that the Maryland State Police issued a directive that Class A Maryland registered passenger vehicles would not be permitted to have window tinting that was not incorporated into the original glazing on any window by the manufacturer.

Mr. Oesch of your office was kind enough to furnish us with a copy of USA Standard Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways and we, of course, reviewed 49 CFR 571.205 as well as 15 USCA 1391, et seq.

After reviewing the above material we came to the conclusion that the addition of tinting film or sunscreen materials in and of itself does not violate any federal regulation as long as the material complies with the luminescence and abrasive requirements. I asked Mr. Oesch if it is possible for us to obtain a statement to this effect from your office and he suggested that I write this letter to you. We have talked to the manufacturer of the tinting material that our client uses and we are assured by the manufacturer that the material complies with federal regulations. We have also suggested to our client that he have his material tested locally to make sure he is in compliance.

For your information we enclose a copy of a letter we have addressed to Captain W.R. Janey of the Maryland State Police Automotive Safety Enforcement Division which explains the position we have taken with said facility. We do not feel that the Maryland State Police had any authority to order Mr. Lakas to cease his operations. We have advised Mr. Lakas that we feel he should stay in business until such time it has been demonstrated that his materials do not comply with federal regulations and if they do not comply we suggested that he seek another supplier of material or that his materials be modified to comply with federal regulations. It is not our client's intention to violate any federal or state law or regulation.

I would like to take this opportunity to commend Mr. Oesch for his very prompt attention to my inquiry. He was most informative and very helpful in resolving my client's problem.

Very truly yours,

Jacob Sheeskin

JS/drw

ID: 1984-1.38

TYPE: INTERPRETATION-NHTSA

DATE: 04/08/84

FROM: AUTHOR UNAVAILABLE; Jeffrey R. Miller; NHTSA

TO: Mr. Troy C. Martin

TITLE: FMVSS INTERPRETATION

ID: 1984-1.39

TYPE: INTERPRETATION-NHTSA

DATE: 04/11/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Mazda (North America) Inc.

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Stephen Underwood Mazda (North America), Inc. 23777 Greenfield Road Suite 462 Southfield, Michigan 48075

Dear Mr. Underwood:

This is to follow up on your phone conversation with Stephen Oesch of my staff on Standard No. 203, Impact Protection for the Driver From the Steering Control System. You asked how the steering wheel should be positioned when it is tested in accordance with the standard. As explained below, the steering wheel should be positioned at its design angle, as specified by the manufacturer.

Standard No. 203 incorporates by reference Society of Automotive Engineers Recommended Practice J944, Steering Wheel Assembly Laboratory Test Procedure, December 1965. Section 6.2 of SAE J944 provides that the steering wheel is to be mounted "at the proper angle as determined by the package drawing." Therefore, the agency would mount the column at the design angle specified by the manufacturer.

If you have any further questions, please let me know.

Sincerely,

Frank Berndt Chief Counsel

ID: 1984-1.4

TYPE: INTERPRETATION-NHTSA

DATE: 01/26/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Ms. Margaret Moore Oba

TITLE: FMVSS INTERPRETATION

ID: 1984-1.40

TYPE: INTERPRETATION-NHTSA

DATE: 04/19/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Margaret Moore Oba -- Hino Motors (U.S.A.) Inc.

TITLE: FMVSS INTERPRETATION

TEXT:

MS. Margaret Moore Oba Hino Motors (U.S.A.) Inc. 200 Park Avenue, Suite 4116-12 New York, New York 10166

This responds to your March 12, 1984 letter regarding the applicability of Federal Motor Vehicle Safety Standards to motor vehicles imported into Guam.

Under sections 102(8), 102(9), and 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. 1391(8), 1391(9), and 1397(a)(1)(A), motor vehicles introduced into commerce in Guam are subject to Federal Motor Vehicles Safety Standards. In general, the standards apply to the same extent to vehicles imported into Guam as to those imported into the continental U.S. However, as you note in your letter, FMVSS 103 (windshield defrosting and defogging systems) does not apply outside the continental U.S., as specified in section 3 of that standard. See 49 CFR 571.103. Other standards such as FMVSS 124, which do not limit their applicability to specific geographic areas, apply fully in Guam. Therefore, vehicles imported into Guam must have an accelerator control system which returns the throttle to idle over a temperature range of -40 degrees F. to +125 degrees F.

Original signed by Frank Berndt

March 12, 1984

Dear Mr. Berndt:

1) Re: Applicability of F.M.V.S.S. in Guam

We, Hino Motors, are a heavy duty diesel truck manufacturer, and are interested in importing Class 6 and 7 trucks to Guam and Saipan. We would appreciate if you would be so kind as to clarify the jurisdiction of the Federal Motor Vehicle Safety Standards (F.M.V.S.S.) in Guam. We are aware that the F.M.V.S.S. were made applicable to Saipan in 1978, and that dispensation from certain standards had been granted until October of 1981. We would like to know if the F.M.V.S.S. are applicable to Guam as well, and also, if there are any similar exceptions due to local conditions.

2) Re: F.M.V.S.S. 124

We would also like to receive clarification of the applicability of F.M.V.S.S. 124, regarding acceleration control systems. F.M.V.S.S. 103, Windshield Defrosting and Defogging Systems, is limited in its applicability to the fifty states of the United States. Is F.M.V.S.S. 124, which stipulates that the throttle be able to return to idle despite extreme temperatures ranging from -40oF to +125oF, applicable only to the continental U.S., or does it also apply to Hawaii and territories like Guam and Saipan?

We would greatly appreciate your prompt response to our inquiries. Thank you very much for your kind cooperation.

Original Signed by Margaret Moore Oba

cc: Mr. S. Ikoma, Tech. Div. Tokyo

ID: 1984-1.41

TYPE: INTERPRETATION-NHTSA

DATE: 04/19/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Dotech Inc.

TITLE: FMVSS INTERPRETATION

TEXT:

Herbert T. Thrower, Jr., P.E. President Dotech, Inc. 306 Clanton Road Charlotte, North Carolina 28210

Dear Mr. Thrower:

This is in response to your letter of February 14, 1984, to Mr. Vinson of my staff asking "is there any reluctance on the part of NHTSA to make a patented device a legal option under Federal Motor Vehicle Safety Standard No. 108?"

At present, Standard No. 108 mandates specific items of lighting equipment not optional ones (though "options" as to matters such as size and shape exist among headlamps which are required items). Instead, NHTSA points out that, pursuant to S4.1.3 optional lighting devices (proprietary or not) are allowable, provided that they do not impair the effectiveness of the lighting equipment the standard requires. When proprietary rights are involved in mandated lighting equipment, manufacturers have been willing to waive their rights.

You have also said that you "presume that other patented automotive devices also must have DOT approval before their optional public use is permissible." I don't know what you have in mind, but under the National Traffic and Motor Vehicle Safety Act, no "approval" by DOT is necessary to market "optional" motor vehicle equipment of any sort. Such equipment is subject only to the general requirement that its installation must not affect the compliance of the vehicle with any Federal motor vehicle safety standard.

If you have further questions, please let us know.

Sincerely,

Original Signed By

Frank Berndt Chief Counsel

February 14, 1984

Mr. Taylor Vinson Office of Chief Counsel National Highway Traffic Safety Admin. Washington, D. C. 20590

Dear Mr. Vinson.

Is there any reluctance on the part of NHTSA to make a patented device a legal option under Federal Motor Vehicle Lighting Code 108?

As you know, the U.S. Food and Drug Administration permit use of various patented drugs for optional public use.

I also presume that other patented automotive devices also must have DOT approval before their optional public use is permissible.

Thank you in advance for your comments.

Very truly yours, Dotech, Inc.

Herbert T. Thrower, Jr., P.E. President

HTT,jr/jhc

ID: 1984-1.42

TYPE: INTERPRETATION-NHTSA

DATE: 04/19/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Leslie R. Ablondi

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Leslie R. Ablondi Pleasant Valley Corporate Center Suite 800 2024 Arkansas Valley Drive Little Rock, Arkansas 7221 2-4237

Dear Mr. Ablondi:

This responds to your March 16, 1984 letter regarding the applicability of Federal Motor Vehicle Safety Standard (FMVSS) 111 to an aftermarket rearview mirror which one of your clients proposes to market. This mirror would be attached to the original equipment inside mirror stalk in such a way that the view through the OEM mirror is unimpaired. Your client's mirror would permit the driver to view children in the rear seat of the vehicle.

FMVSS 111 ( see 49 C.F.R. 571.111, copy enclosed) is directly applicable to new motor vehicles only. However, that standard may apply indirectly to aftermarket mirrors through the operation of 15 U.S.C. 1397(a)(2)(A). The latter provision prohibits any motor vehicle manufacturer, distributor, dealer, or repair business from rendering inoperative any "device or element of design installed on or in a motor vehicle...in compliance with an applicable Federal motor vehicle safety standard...." Thus, the installation of a replacement or even a supplemental rearview mirror in a motor vehicle could be unlawful if that installation resulted in a mirror system which did not comply with the requirements of FMVSS 111.

Based on your description of your client's mirror, it does not appear that the aftermarket installation of that mirror would be prohibited under 15 U.S.C. 1397(a)(2)(A), since the operation of the OEM mirror system is unaffected by the addition of the aftermarket mirror.

If you have any further questions on this matter, please contact us.

Sincerely,

Original Signed By

Frank Berndt Chief Counsel

Enclosure

March 16, 1984

Mr. Roger Fairchild, Legal Counsel National Highway Traffic Safety Administration U.S. Dept. of Transportation 400 7th Street SW Washington D.C. 20509

RE: Federal Motor Vehicle Safety Standard No.

Mr. Fairchild,

By this letter I am requesting a formal opinion as regards to an after market mirror which a client proposes to market. The mirror will attach to the OEM mirror stalk in the center of the windshield and will enable a driver to view children in the rear seat without turning their head. The mirror does not in any way restrict or interfere with the view of the OEM mirror.

In checking with the Dept. of Transportation Rule Making Division, I spoke with a Mr. Kevin Cavey, who advised me the applicable federal standard was Number 111. At that time I requested that Mr. Cavey send me a copy of the standard. To date I have not received any correspondence from Mr. Cavey or anyone else. As Mr. Cavey explained it there are no federal safety standards which relate to aftermarket mirrors being attached to automobiles.

My question is, "are there any restrictions which would prohibit the production, distribution and sale of the proposed mirror?"

If you have available to you would you please send a copy of standard number 111 and any others which are applicable to this case.

Thank you very much for your time and consideration in this matter, I shall await your reply. Should you require further information or have questions that I may answer, please do not hesitate to contact me.

Sincerely Yours,

Leslie R. Ablondi c: files d/38/fairchil

ID: 1984-1.43

TYPE: INTERPRETATION-NHTSA

DATE: 05/01/84 EST

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: National Truck Equipment Association -- Steven D. Herringshaw, Coordinator of Technical Services

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Steven D. Herringshaw Coordinator of Technical Services National Truck Equipment Association 25900 Greenfield Road Oak Park, Michigan 48257

Dear Mr. Herringshaw:

This is in response to your letter of February 24, 1984, with respect to mounting requirements for clearance and identification lamps under Federal Motor Vehicle Safety Standard No. 108.

Your Exhibit A depicts a body mounted on a chassis-cab, with clearance lamps mounted both on the body and chassis-cab, but identification lamps mounted on only the chassis-cab. You have asked whether the truck body must have a set of identification lamps in order to meet Standard No. 108. The answer is yes. In order to comply with the requirements that identification lamps be located as closely as practicable to the top of the vehicle, a set of identification lamps must be provided for the truck body. You may be interested to know that there is a pending proposal which was published on February 22, 1982; a vehicle such as shown in Exhibit A would comply with a single set cf identification lamps mounted on the cab. enclose a copy of the proposal. The agency has taken no further action with respect to it.

In comparing the vehicles in Exhibit A and Exhibit B you have asked whether theone in Exhibit A is "compliant with the intentions of FMVSS 108." As I have just explained, this vehicle is currently noncompliant with the standard, but would comply if the proposal were adopted. The vehicle in Exhibit B meets the standard.

I hope that this answers your questions.

Sincerely,

Frank Berndt Chief Counsel

Enclosure

February 24, 1984

Office of Chief Counsel Room 5219 National Highway Traffic Safety Administration 400 Seventh St., SW Washington, DC 20590

Dear Sirs:

The National Truck Equipment Association (NTEA) is a national trade association representing over 900 members of the truck body and truck equipment industry. Our members include manufacturers and distributors of truck bodies, chassis, and every imaginable type of truck accessories and equipment.

On behalf of one of our members, a rather substantial manufacturer of van bodies designed to be mounted on a chassis-cab, we would like to request a ruling or official interpretation cf FMVSS 108, Lights. The bodies in question are at least 80 inches wide, so that the vehicles do require both clearance and identification lamps. The issue being questioned is the clause "...as high as practicable".

Following are some specifics on both the bodies and the chassis. -- The bodies range from approximately 81 inches wide to 102 inches wide. -- The bodies range in height from 18 inches above the top of the cab to 75 inches above the cab (on a 13' 6" vehicle). -- The bodies range from 8 feet to 28 feet in length. -- The chassis used with the bodies in question come equipped from the manufacturer with both clearance and identification lights mounted on the roof of the cab.

The question being posed is: "If the chassis is equipped with clearance and identification lights, and the front of the body is equipped with clearance lights mounted at the highest point and the widest point of the vehicle (see exhibit A), is this a compliant vehicle with FMVSS 108, or does the body require an additional set of identification lights on its front end?"

FMVSS 108 allows the clearance lights on the front of the vehicle to be lower than the top of the vehicle if the widest point is lower (see exhibit B). FMVSS 108 also allows the rear clearance lights to be lower if the identification lights are at the top. The NTEA opinion in the past has been that the vehicle in exhibit A is a safer vehicle than the vehicle in exhibit B, and that the overallsize of the vehicle in exhibit A would be more easily recognizable to approaching motorists than a vehicle with lower clearance lights. This would seem to make vehicle A compliant with the intentions of FMVSS 108. Is this a just opinion?

One additional piece of information which may or may not be relevant is that the cost difference to the final customer could be upwards of $100 without the additional I.D. lights.

Thank you for your consideration.

Yours Truly,

Steven D. Herringshaw Coordinator of Technical Services

ID: 1984-1.44

TYPE: INTERPRETATION-NHTSA

DATE: 05/02/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Arent; Fox; Kinter; Plotkin & Kahn -- Lawrence F. Henneberger

TITLE: FMVSS INTERPRETATION

ATTACHMT: 6/7/74 letter from R.B. Dyson to Engineer/Transit Technology; 7/10/74 letter from R.B. Dyson to Flyer Industries Limited; 11/12/74 letter from R.B. Dyson to The Flxible Company; 4/1/88 (est) letter to Carl Kalpan from Michael M. Finkelstein (A33; Std. 108); 3/7/88 memo to Associate Administrator for Research and Development, NHTSA from Erika Z. Jones; 11/30/81 letter to Kenneth G. Moyer from Frank Berndt

TEXT:

Lawrence F. Henneberger, Esq. Arent, Fox, Kintner, Plotkin & Kahn 1050 Connecticut Avenue N.W. Washington, D.C 20036-5339

This is in reply to your letter of September 26, 1983 asking for an interpretation on behalf of your client, Jacobs Manufacturing Company.

You referenced an interpretation of August 31, 1978, which we gave you, also on behalf of Jacobs. Your client manufactures a diesel engine retarder system which would be provided a means to warn following drivers when the system was in use. The specific means of warning discussed in the 1978 letter was to connect the retarder activation switch to the hazard warning system, either as original or aftermarket equipment. We concluded that this installation augmented the hazard warning system, and thus did not impair the hazard warning system within the prohibition of paragraph S4.1.3 of Standard No. 108. We also concluded that it would not render inoperative the hazard warning system, and thus was not a violation of the "anti-tampering" provision of Section 108(a)(2)(A) of the Traffic Safety Act.

Apparently, a customer of Jacobs has asked it to wire its warning system through the stop lamps. A separate manually-operated switch will be provided. We understand that when the warning system is operational there is no difference of light intensities when the brakes are applied. You have asked us for a re-interpretation, on the basis of these new facts, that the changed retarcer warning will not violate either paragraph S4.1.3 or section 108(a)(2)(A). You believe that the warning system is still permissible, because the stop lamps when so used will nevertheless indicate that the vehicle is diminishing its speed by braking, and because of interpretations by this office that retarder controls can be incorporated with the foundation brake controls and activated with the foundation brakes.

We have reviewed the 1978 interpretation allowing use of the retarder system through the hazard warning system, and the two 1974 interpretations with reference to incorporation of supplementary braking devices with foundation controls. We agree with your interpretation that the latter interpretations impliedly require activation of the stop lamps when the supplementary braking devices are used. The agency is not prepared at this time to modify either interpretation, and you may inform your client that there is no Federal legal prohibition against its hiring the retarder to activate the stop lamps when it is in use.

However, we wish to point cut an area of potential risk which your client should weigh before proceeding to offer this option and which, if it occurred, could be viewed as an impairment of the stop signal within the prohibition of S4.1.3. Under the Jacobs plan, activation of the stop lamp when the retarder is engaged would indicate only a lessened rate of speed. Because there is no difference in intensity, a following driver would have no indication when the brake was applied to signal a normal or sudden stop, such as might be required when a child or animal runs into the roadway.

If you have any further questions, we shall be happy to answer them.

Sincerely,

Frank Berndt Chief Counsel

September 26, 1983

Frank Berndt, Esquire Chief Counsel National Highway Traffic Safety Administration Room 5219, 400 Seventh Street, S.W. Washington, D.C. 20590

Re: Request for Interpretation

Dear Mr. Berndt:

My client, Jacobs Manufacturing Company, manufactures and distributes a complete line of retarding devices which provide auxiliary retarding capabilities independent of a vehicle's foundation brakes and permit a heavy truck to travel at normal traffic speeds on long downgrades, under full control, as well as extending the service life of the foundation brakes.

On August 31, 1978, your office provided me with an interpretation (copy attached as Exhibit A), confirming that the connection of a retarder activation switch to the hazard warning system did not violate the requirements of Federal Motor Vehicle Safety Standard 108, nor the anti-tampering provisions set forth in Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act, as amended. Because of customer reports that such a retarder activation device, both as a practical and legal matter, should be connected to the rear brake lights, Jacobs now requests a written interpretation that connection of the retarder activation switch to the brake light system when a retarder is installed, either at the original equipment or aftermarket level, will not violate laws and regulations administered by the National Highway Traffic Safety Administration. More specifically, Jacobs seeks the agency's confirmation that a hand-operated retarder activation switch, connected to the brake light system to provide the same steady-on warning when activated, is not legally precluded in the view of NHTSA.

As was pointed out in our earlier submission in support of our request for an opinion concerning use of the hazard warning activation means for retardation signalling, in recent years the retarding forces generated by electric retarders have become capable of producing significant deceleration of a large truck so equipped. For this reason, Jacobs believes that there must be an effective means of providing a warning to following vehicles when a retarder is in use. Using the brake lights in their regular mode as the retarder warning light does not appear to violate Federal Motor Vehicle Safety Standard 108 or the anti-tampering clause of the National Traffic and Motor Vehicle Safety Act, for the reasons as discussed below.

In addition to the wording in FMVSS 108, a review of the applicable SAE Standard, SAE J586c (currently referenced by FMVSS 108), does not appear to preclude the use of stop lamps as a steady-burning retarder warning signal. Indeed, S 2.1 of the standard, which provides a definition of "stop lamps," strongly suggests that the warning light would be a permissible use. The definition states that "stop lamps" are "lamps giving a steady light to the rear of a vehicle or train of vehicles to indicate the intention of the operator of a vehicle to stop or diminish speed by braking." This is precisely the intention and effect of the retarder activation signal.

The brake light warning means has received further support in a series of formal interpretations issued by your office, to the effect that retarder controls can be incorporated with the foundation brake controls and activated with the foundation brakes. Clearly, if one can connect the retarder controls into the foundation brake controls, the application of the retarder will automatically trigger the rear stop lights. See undated letter from Mr. Lawrence Schneider, NHTSA Chief Counsel, responding to letter dated April 2, 1974, from Mr. Alden G. Olson, Municipality of Metropolitan Seattle; letter of July 10, 1974, from Mr. Richard Dyson, NHTSA Assistant Chief Counsel, to Mr. A. Deane, Flyer Industries, Ltd., Winnipeg, Canada; and letter of November 12, 1974, from Mr. Dyson, then Acting Chief Counsel of NHTSA, to Mr. Stanley Frye, The Flxible Company, Loudonville, Ohio. Copies of these letters are attached hereto as Exhibit B.

The only caveat detectable in the pertinent NHTSA interpretations appears to be that use of the retarder in conjunction with the brake system and rear brake lights should not affect the rear stop lights in such a way that they no longer comply with the requirements of FMVSS 108. Use of a hand-operated switch to activate the brake lights when the retarder is in use for purposes of signalling following drivers does not raise this difficulty under applicable law and regulations.

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

Sincerely,

Lawrence F. Henneberger

cc: Z. Taylor Vinson, Esquire (Prior interpretation letters omitted here.)