ID: 86-5.30

TYPE: INTERPRETATION-NHTSA

DATE: 10/16/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Alan Cranston

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your letter on behalf of Mr. Raymond Kesler. He asked for this agency's response to a letter from Mr. Robert R. Phillips concerning the bi-focal mirror developed by Mr. Kesler. In his letter, Mr. Phillips asked whether an outside rearview mirror, which has both a planar surface of unit magnification and a convex surface, complies with Standard No. 111, Rearview Mirrors. I regret the delay in responding to this letter.

As we understand the information supplied by Mr. Phillips, the bi-focal mirror would be installed on the driver's side of motor vehicles to give the driver a wider field of view by combining a convex mirror and a planar mirror as the outside rearview mirror on the driver's side. The convex portion would abut the planar portion and be located to the left of the planar portion. Thus, both normal and wide-angle vision would be provided at the same horizontal viewing level.

By way of background information, this agency does not give approvals of vehicles or their equipment. The National Traffic and Motor Vehicle Safety Act of 1966, as amended (the Act), places the responsibility on the manufacturer to ensure that items of motor vehicle equipment, such as rearview mirrors, comply with any applicable requirements. A manufacturer certifies that its equipment complies with all applicable safety standards.

Mr. Phillips asked this agency to confirm his interpretation that this bi-focal mirror meets the requirements of Standard No. 111 if its planar or unit magnification surface has an area of at least 19.5 square inches, regardless of the existence of the convex portion. The 19.5 square inch requirement is one applicable to multipurpose passenger vehicles, trucks, and buses (other than schoolbuses) with a GVWR of 10,000 pounds or less. Those types of vehicles are required by S6.1 of the standard either to have a set of inside and outside rearview mirrors that comply with the requirements applicable to passenger cars or to have outside mirrors of unit magnification, each with not less than 19.5 square inches of reflective surface, on both sides of the vehicle. If Mr. Phillips' mirror meets that size requirement, is located on a vehicle so as to provide the required view and is adjustable in the required manner, it complies with S6.1.

There are no minimum size requirements for unit magnification outside rearview mirrors on passenger cars. Mr. Phillips' mirror can be installed on the driver's side of passenger cars if the mirror's unit magnification portion, independently of the convex portion, meets the field of view and mounting requirements specified in S5.2.

In one drawing accompanying Mr. Phillips' letter, there appears to be a warning on the planar portion of his bi-focal mirror stating "Objects Appear Within Markers: Caution." There is no requirement in Standard No. 111 for such a warning. The agency is concerned that the message conveyed by this warning is unclear and could confuse motorists. The warning ("CAUTION When Vehicle Appears Here") in Mr. Phillips' other drawing seems more easily understood. He might consider providing purchasers with written instructions explaining that the purpose of the message is to warn drivers that the appearance of a vehicle in the convex portion of the mirror means that the vehicle is so close that a lane change would be unsafe.

Unit magnification and convex mirrors on other types of vehicles must meet the specific performance and location requirements for those types of vehicles, as set out in the standard. Again, please note that a vehicle manufacturer installing a bi-focal mirror on different types of vehicles must ensure that the unit magnification portion of the mirror meets any applicable requirements of the standard independently of the convex portion.

If Mr. Phillips' mirror meets the requirements of Standard No. 111 for a particular vehicle type, then it may be installed on new vehicles of that type. It may also be installed on used vehicles of that type. Conversely, if the mirror does not meet those requirements, then it may not be installed on new vehicles. Further, manufacturers, distributors, dealers and repair businesses would be prohibited from installing it on used vehicles. However, the Act does not establish any limitations on an individual vehicle owner's ability to alter his or her own used vehicle.

Under Federal law, individual vehicle owners can themselves install any product they want on their used vehicles, regardless of whether that product would render inoperative the compliance of the vehicle's rearview mirrors with the performance or location requirements of Standard No. 111.

I hope this information is helpful to you.

SINCERELY

United States Senate

August 19, 1986

To: Congressional Laision Department of Transportation National Highway Traffic Safety Administration

Enclosure From:

Mr. Ray Kesler

Re: Mr. Kesler would appreciate a letter confirming his bifocal safety mirror conforms to federal safety standards. Is this possible?

I forward the attached for your consideration.

Your report, in duplicate, along with the return of the enclosure will be appreciated.

Alan Cranston

Please address envelope to:

Senator Alan Cranston

August 6, 1986

Dear Senator Cranston,

I am seeking a letter to confirm, yes it does provide the plane flat mirror (unit of manification) on the required amount because it is comformity of the standards. I would expect they would simply state it back to us so I can present it to the S.A,E, (society of automotive engineers) and the automotive industry that they have no question, it does meet the federal safety standards, but that has not happened and would appreciate a answer on this soon. This has held up this project for many monthes. I believe we can start saving lives with the new mirror concept in safety vision soon. I know you will give federal support on this matter. You have been so helpful before and I sincerely thank you.

Ray Kesler

enclosure. Drawings (2)

Instructions on viewing bifocal safety mirror

July 25, 1980

The Honorable Alan Cranston UNITED STATE SENATE

Dear Senator Cranston:

Your concern for public safety is well known to us, and because of your reputation as a strong-willed combatant for causes you believe in, we are soliciting your advice and support for our project.

My client, Mr. Raymond Kesler, has recently developed a bifocal safety mirror for automobiles that has the potential to make a major contribution to the cause or automotive safety. You have previously been kind enough to lend support to Mr. Kesler on this project (i.e. your letter to Diane Steed at NHTSA on Feb. 5, 1985), and we are once again in need of someone to help break what appears to be a bureaucratic logjam.

The enclosed letter was written to Brika Jones, Chief Counsel at NHTSA upon the advice of Dr. Carl Clark, Investor Contact Code NRD-12 in the Office of Vehicle Research. As the letter indicates, we are simply seeking interpretation of the code of federal regulations governing automotive mirrors. Our question is, we believe, specific and clear, yet to date no response from Ms. Jones was received.

If you could assist us in getting some official interpretation as to how the federal regulations affect this bi-focal mirror, we would be most grateful.

Robert R. Phillips Project Manager enclosure: Erika Jones Letter (March 27, 1986)

P.S. We are also enclosing a copy of an article on the mirror that recently appeared in Automotive News.

March 27, 1980

Erika Jones Chief Counsel NATIONAL HIGHWAY TRAFFIC AND SAFETY ADMIN.

Dear Ms. Jones:

At the suggestion of Dr. Carl Clark in the Office of Vehicle Research, we are seeking from you some interpretation of existing federal regulations regarding outside rear-view mirrors for automobiles.

In particular, we are concerned about a mirror that was recently developed by Mr. Raymond Kesler, a California inventor. The enclosed article in Automotive News plus the other material provides information on the mirror, but our inquiry is, I believe, specific and clear.

It is our interpretation or the NHTSA regulations that this bi-focal mirror (i.e. a planar surface abutted to a convex mirror of fixed radius) does meet the requirements if its planar (unit magnification) surface has an area of at least 19.5 square inches, regardless of the existence of the convex portion.

We would greatly appreciate your comments on this interpretation prior to final approval of the mirror's specific dimensions.

Thank you for your assistance.

Robert R. Phillips

Automotive News

March 24, 1986

engineering

Mirror wipes out blind spot

An inventor in West Hollywood, Calif., believes car mirrors have been overlooked for too long. He has taken what he calls a revolutionary approach to the subject and has eliminated the pesky -- and dangerous -- passing-car blind spot.

The first auto mirror, patterned after one seen on a carriage in Chicago, was used on the winning car in the first Indianapolis 500 race in 1911. Driver Ray Harroun installed the 8-inch-by-3-inch mirror to avoid using the riding mechanic who usually kept one eye rearward in races of the era.

It would appear that little change has taken place over the years, and 47-year-old inventor Raymond Kesler said his latest work will refocus attention of safety authorities on the mirror.

Others say that attention is overdue. They contend that because the U.S. population is aging, the left-side blind spot is growing as a danger point. (Illegible Word) one's peripheral vision diminishes with age.

Kesler said he has combined the positive characteristics of two different optics -- a planar, or flat, surface connected to a curved surface of fixed radius.

"This achieves a remarkably effective enhancement of the field of view without the distortion associated with variable-curvature convex mirrors," he said.

"The Kesler approach uses the flat surface for 70 percent of the mirror with the remaining 30 percent devoted to the convex portion for wide-angle vision."

On the convex surface, there are what Kesler calls "reflective caution arrows" which warn the driver of traffic approaching from the rear and act as a distance finder for position and size of objects.

"The overall unit is rectangular to fit most 1985/86 original equipment mirror housings," Kesler said, "It also it well-suited for the aftermarket manufacturers who utilize the new rectangular design for their mirrors."

A patent is pending, Kesler said.

The inventor has been interested in automotive accessories and automotive phenomena for many years, said Robert R. Phillips, of the Woodland Hills (Calif.) consulting firm that bears his name. Phillips is handling inquiries about Kesler's device.

In most other attempts at bifocal mirrors, distortion has been the major problem, and NHTSA regulations have kept them off the road. Hopes of other inventors have been shattered by NHTSA investigations.

Small, convex anti-blind-spot mirrors that adhere to flat mirrors are sold by parts stores and are not installed as original equipment. Therefore, their distortion escapes the regulatory eye of NHTSA. Also, such mirrors stand out physically from the flat mirror and it is not likely a driver would confus, images seen in them with images in the flat mirror.

A mirror manufacturer in Michigan said some drivers become nauseated from multiple radius mirrors. The eyes see differing images simultaneously, and the brain becomes confused.

Several mirror makers have petitioned NHTSA for regulation changes. European regulations are reported to be similarly rigid, but Saab in 1982 introduced in Europe a mirror it says eliminates the blind spot.

The Saab mirror, as does Kesler's, shows two fields of view at the same time.

The mirror glass has two surfaces. One is a large plane surface closest to the driver. It is separated from the second, a narrow convex surface, by an etched line.

Together, the two surfaces enable the driver to follow a passing vehicle until it becomes visible in the driver's direct vision, even in the blind spot, Saab said.

Saab said European legislation is very strict regarding the design of side mirrors and requires that the division between the two fields be clearly marked. In Saab's case, this is achieved by the etched line, the company said.

Kesler said the Kesler Bi-Focal Safety Mirror meets federal safety standards. He also said there are no other similarly qualified mirrors that have normal and wide-angle vision at the same horizontal viewing level.

The Kesler Bi-focal Wide Angle Automotive Safety Mirror

(Meets Federal Motor Vehicle Safety Standard No. 111.) D.O.T.

REFLECTIVE CAUTION ARROWS RNS DRIVER OF APPROACHING TRAFFIC

(ACTS AS A DISTANCE FINDER FOR POSITION AND SIZE OF OBJECTS)

PLANAR MIRROR (NORMAL VISION OF STANDARDS) D.O.T.

ABUTTED JUNCTURE TANGENT TO PLANE KESLER PATENT PENDING

(C) 1986 KESLER RESEARCH ENTERPRISES

PICTORIAL CONCEPT OF WIDE ANGLE OPTIC

(Graphics omitted)

Traffic in "BLIND SPOT" Appears Here

CAUTION When Vehicle Appears Here

Traffic Leaves View of Planar Mirror Here

Anti-Blind Spot Mirror

(Graphics omitted)

KESLER RESEARCH ENTERPRISES

"Avoid an Accident at a Glance"

SAFETY ADVANTAGES OF VIEWING BIFOCAL REARVIEW SAFETY MIRROR

1. Plane section of mirror is for normal viewing of traffic with no depth perception loss. This section complies with FMVSS III D.O.T. standards.

2. The constant radius convex section of the mirror provides an extra margin of safety with uniform vision on a horizontal level, allowing extra vision for better view of the far lane, pulling away from curbs, and backing out of driveways.

3. A conventional mirror out of adjustment can cause an accident. The fact is that a convex section of the bi-focal safety mirror provides the extra vision, even when out of adjustment.

4. The reflective caution safety markers on the convex section aid the user for judging distance, position, and size or objects.

5. Both plane and convex mirrors can be viewed to cut glance duration time to a minimum when objects (traffic) appear in the safety markers.

6. Both separate sections can be viewed as one (integrated) mirror when objects meet the transition.

Copyright, 1986 KESLER RESEARCH

ID: 2836yy

Mr. Jeffrey S. Malinowski
Small Business Center
407 Avalon
Marine City, MI 48039

Dear Mr. Malinowski:

This responds to your letter on behalf of Mr. Leo McCallum, asking whether any Federal Motor Vehicle Safety Standard applies to his invention, a tie rod "safety bracket." You stated that the product would typically be installed by a vehicle owner to reduce tie rod end wear. As explained below, while no Federal safety standard directly applies to your client's product, he may nevertheless have certain responsibilities under this agency's regulations.

As way of background information, the National Traffic and Motor Vehicle Safety Act of 1966, as amended (the "Safety Act") authorizes the National Highway Traffic Safety Administration (NHTSA) to issue safety standards applicable to motor vehicles and items of motor vehicle equipment. The Safety Act also requires that these safety standards establish minimum levels of performance for vehicles or equipment. Once the necessary performance level has been established, vehicle or equipment manufacturers are free to choose any means they wish to achieve the required level of performance. In other words, the safety standards do not require the use of any particular manufacturer's product or particular materials; the standards permit the use of any manufacturer's product that achieves the necessary performance level. Section 114 of the Safety Act (15 U.S.C. 1403) requires manufacturers to certify that each of its vehicles or items of motor vehicle equipment complies with all applicable safety standards. NHTSA does not approve, endorse, or certify any motor vehicle or item of motor vehicle equipment.

NHTSA has no safety standard directly about tie rods or safety brackets used with tie rods.

As for installation of your client's device on vehicles in the aftermarket, such installations may be limited by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, distributor, dealer, or motor vehicle repair business from knowingly rendering inoperative any device or element of design installed on or in a motor vehicle in compliance with an applicable safety standard. If installation of your client's product resulted in a vehicle no longer complying with a safety standard, a manufacturer, distributor, dealer, or repair business that installed the product would have rendered inoperative a device or element of design installed on the vehicle in compliance with a standard. To avoid a "rendering operative" violation, your client should examine his product to determine if installing his product would result in the vehicle no longer complying with a standard's requirements.

Section 109 of the Safety Act (15 U.S.C. 1398) specifies a civil penalty of up to $1,000 for each violation of the "render inoperative" provision.

Please note that the Safety Act does not establish any limitations on an individual vehicle owner's ability to alter his or her own vehicle. Under Federal law, individual owners can install any device they want on their own vehicles, regardless of whether that device renders inoperative the vehicle's compliance with a safety standard.

Other statutory provisions in the Safety Act could affect your client's product. Manufacturers of motor vehicle equipment such as the "tire rod safety bracket" are subject to the requirements in sections 151-159 of the Safety Act (15 U.S.C. 1411-1419) on the recall and remedy of products with defects related to motor vehicle safety. The Safety Act specifies that if either the manufacturer or this agency determines that a safety-related defect exists in your client's product, your client as the manufacturer must notify purchasers of the safety-related defect and must either:

(1) repair the part so that the defect is removed; or

(2) replace the part with an identical or reasonably equivalent part which does not have a defect.

Whichever of these options is chosen, the manufacturer must bear the full expense and cannot charge the owner for the remedy if the equipment was purchased less than eight years before the notification campaign.

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

Sincerely,

Paul Jackson Rice Chief Counsel Enclosures d:2/l/9l

ID: 5927Carraway

Mr. Bruce H. Carraway, Jr.
Carraway Safety Belt Company
14 Kings Bridge
Atlanta, GA 30329

Dear Mr. Carraway:

This responds to your letter in which you follow-up on our earlier correspondence regarding belt minder systems. In your recent letter, you requested that the agency require vehicles to be equipped with a belt minder system which relies on a voice synthesizer to provide an audible alarm. As explained below, the agency does not have authority to require a system as you have described.

In your letter, you requested that the agency require vehicles to be equipped with a belt-minder system developed by your company. You explained that the system would transmit a message through a vehicle’s audio system when a vehicle’s ignition is turned to the “on” position. Additionally, you stated that your system would use a voice synthesizer to state, “Thank you for fastening your seat belt.” You further explained that the duration of the message would be 4 or 5 seconds, and would repeat after a period of approximately 100 seconds. From your letter, it appears that the audible warning would sound regardless of whether the safety belt at the driver’s seat is buckled.

I want first to thank you for your continued interest in motor vehicle safety. As explained in our previous letter to you, Congress has provided the agency with specific direction with respect to certain types of vehicle-based safety belt incentives. 49 U.S.C. § 30124 states that:

A motor vehicle safety standard … may not require or allow a manufacturer to comply with the standard by using a safety belt interlock designed to prevent starting or operating a motor vehicle if an occupant is not using a safety belt or a buzzer designed to indicate a safety belt is not in use, except a buzzer that operates only during the 8-second period after the ignition is turned to the “start” or “on” position. (Emphasis added.)

Under this provision, the agency is prohibited from establishing a standard based on the system you described. Specifically, the agency is prohibited from requiring a belt minder system that sounds after the initial 8-second period. As your system has a second audible alarm 100 seconds after a vehicle’s ignition is turned to the “on” position, a standard mandating your system would not comply with the congressional directive.

While the agency is unable to mandate your system, we continue to encourage vehicle manufacturers to consider voluntarily introducing belt-minder systems and other innovative technologies that could increase seat belt use in ways acceptable to their customers. As explained in our previous letter to you, manufacturers may provide a voluntary audible signal that sounds after the 8-second period specified in S7.3 of Federal Motor Vehicle Safety Standard (FMVSS) No. 208, Occupant crash protection, so long as they provide some means for differentiating the voluntarily provided signal from the required signal. Further, i n a previous interpretation letter to MMC Services, we stated that an audible “voice” signal would be permitted under the standard (January 13, 1981; copy enclosed).

However, we have concerns with a system such as you described, in which the audible signal operates regardless of whether an individual is buckled-up. Under your system, an occupant that has not fastened his/her safety belt would still be “thanked” for buckling-up. This may minimize the incentive to buckle-up that a belt-minder system is intended to provide. Further, it could both confuse and aggravate drivers and passengers because an occupant would receive the same signal no matter what action is taken.

If you have any further questions, please contact Chris Calamita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures

fef:208

d.11/12/04

ID: 12247.ztv

Mr. Shlomo Zadok
Zadok Research Laboratories
739 North Occidental Blvd., Suite #6
Los Angeles, CA 90026

Dear Mr. Zadok:

This replies to your letter of July 25, 1996, asking for an interpretation as to the applicability of Federal laws to a "third brake light" that you have designed.

Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices and Associated Equipment (Title 49 Code of Federal Regulations Sec. 571.108) is the Federal regulation that prescribes lighting equipment for new motor vehicles. Standard No. 108 refers to this item of equipment as a "center highmounted stop lamp" which is frequently abbreviated to "CHMSL." As Mr. Vinson explained to you in several phone talks on the subject, Standard No. 108 has required the CHMSL on all passenger cars manufactured on and after September 1, 1986, and on light trucks and vans manufactured on and after September 1, 1993. Both original and replacement CHMSLs for these vehicles must meet the requirements specified in Standard No. 108. Further, if you sell a CHMSL in the aftermarket for replacement of an original equipment CHMSL, you are required to certify that it meets the original equipment requirements, either by a DOT symbol on the lamp, or a statement on a label or tag attached to it or its container.

The unusual feature of your CHMSL is that it will carry a message in "big block letters" that don't flash or blink. Whether a "message" of this nature is permissible on original CHMSLs and their replacements depends on whether your CHMSL conforms to paragraph S5.1.1.27 of Standard No. 108. The most important of these requirements is that a CHMSL have an effective projected luminous lens area of not less than 4 square inches, that it have a signal visible to the rear through a horizontal angle from 45 degrees to the left to 45 degrees to the right of the vehicle's longitudinal axis, and that it have the minimum photometric values in the amount and location listed in Figure 10 of Standard No. 108 (the most difficult requirement to meet with a "message" imposed on the lens).

Your CHMSL as original equipment or its replacement is also subject to the prohibition of paragraph S5.1.3 that it not "impair the effectiveness" of any lighting equipment required by

Standard No. 108. This means that the message must not distract or confuse following drivers from reacting to the CHMSL and other stop signals exactly as they would were the message not there.

You also state that the CHMSL "is not so large as to block the driver's rear view." The Federal requirement is that, with the CHMSL in place, a vehicle must continue to conform to the rear field of view requirements of Safety Standard No. 111 Rearview Mirrors.

If you sell your CHMSL in the aftermarket as a replacement only for use on older vehicles that did not carry a CHMSL as original equipment, there is no Federal requirement that it comply with Standard No. 108. The sole Federal restriction is that a manufacturer, dealer, distributor, or motor vehicle repair business may not install the CHMSL if it " makes inoperative" any equipment originally installed to meet a Federal motor vehicle safety standard. We interpret this as meaning that your CHMSL must not detract from the stop signal provided by the two original equipment stop lamps, and that it must not create a noncompliance with Standard No. 111. Nevertheless, even if it meets these tests, your aftermarket CHMSL is subject to the laws of each state in which it will be used. We regret that we are unable to advise you on state laws, and suggest that you consult state Departments of Motor Vehicles.

Taylor Vinson will be pleased to answer any further questions you may have. You may call him at 202-366-5263.

Sincerely,

John Womack
Acting Chief Counsel

ref:108

d:8/20/96

ID: nht92-4.7

DATE: September 14, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Lyle Walheim -- Lieutenant, Motor Carrier and Inspection Services, Wisconsin Department of Transportation

TITLE: None

ATTACHMT: Attached to letter dated 6/30/92 from Lyle Walheim to Paul Jackson Rice (OCC-7495)

TEXT:

This responds to your letter seeking a clarification of whether Wisconsin's current requirements for the activation of stop signal arms on school buses would comply with the stop signal arm requirements set forth in Federal Motor Vehicle Safety Standard No. 131, School Bus Pedestrian Safety Devices. Your letter was prompted by my June 17, 1992 interpretation to Blue Bird Body Company. After evaluating the information provided in your letter, together with the information previously supplied by Blue Bird, we have reconsidered our assessment of the Wisconsin requirements. Subject to the qualifications discussed below, it is our reconsidered view that the Wisconsin requirements are not preempted by Standard No. 131 and that Blue Bird can continue to supply buses meeting Wisconsin's specifications, with the addition of the audible warning device described in Blue Bird's letter.

The distinguishing feature of Wisconsin's requirement is that it ties the operation of the stop arm to the opening of the service door, not to the operation of the red flashing lamps. In practice, the lamps on a Wisconsin bus equipped with a four-lamp system would operate like those on a bus equipped with an eight-lamp system, with the red lamps (instead of yellow lamps) flashing while the bus is coming to a stop. Since S5.1.4(b)(ii) of Standard No. 108 requires the yellow lamps on an eight-lamp system to turn off automatically and the red lamps to turn on automatically whenever the entrance door opens, and since the red lamps on the Wisconsin buses would operate whenever the entrance door is open, the Wisconsin buses would conform to the requirements of Standard No. 108. That standard does not prohibit the flashing of red lamps on a four-lamp system while the service door is closed.

For purposes of Standard No. 131, the question is whether there is any circumstance in which the stop arm may be deactivated while the red lamps are flashing. From the standpoint of practicality, we agree with you that the stop arm should not function before the bus has stopped and the driver has opened the service door. We further believe it is consistent with the purpose of the standard for the stop arm to be deactivated on a Wisconsin bus before the bus stops, even though the bus's red lamps may be flashing. To reconcile this view with the language of the standard, however, requires us to address the requirement of the standard that the arm must extend "at a minimum whenever the red signal lamps required by S5.1.4 of Standard No. 108 are activated...."

Standard No. 131 expressly contemplates a situation in which the stop arm would not automatically extend despite the operation of the red lamps. The final clause of S5.5 provides that "a device may be installed that prevents

the automatic extension of a stop signal arm." The question in Wisconsin's situation is whether the manual switch that activates the red signal lamps but not the stop arm would qualify as such a device. In our view, it does. Since the only time the red lamps are required by Standard No. 108 to operate is when the entrance door is open, and since the Wisconsin system would automatically extend the stop arm when the entrance door opens, we believe that the manual switch in the Wisconsin system can be fairly characterized as an override device that prevents the automatic extension of the stop signal arm until the red lamps are required to operate. For an override to be permitted, the device must comply with the other provisions set forth in S5.5, including the presence of a continuous or intermittent signal.

I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

ID: nht92-6.5

DATE: June 17, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Thomas Turner -- Manager, Engineering Services, Blue Bird Body Company

TITLE: None

ATTACHMT: Attached to letter dated 4/21/92 from Thomas D. Turner to Paul J. Rice (OCC 7241)

TEXT:

This responds to your letter asking about Federal Motor Vehicle Safety Standard No. 131, School Bus Pedestrian Safety Devices, with respect to the automatic extension of a stop signal arm. You were especially concerned with the interaction between a provision in Wisconsin's Administrative code requiring activation of the stop signal arm under specified conditions and the stop signal arm activation requirements set forth in Standard No. 131. I have responded in detail to your questions below.

Before I answer your question about your company's design for complying with both the Wisconsin Code and Standard No. 131, I would like to note that it does not appear that the Wisconsin regulation is inconsistent with Standard No. 131 with respect to the stop signal arm activation requirements. The Wisconsin Administrative Code states that:

"Any bus manufactured after January 1, 1978, shall have the stop signal arm controlled by the service door. The stop signal arm shall not become operational until the service door opens. The stop signal arm shall be installed in such a manner that it cannot be activated unless the alternating red lamps are in operation."

S5.5 of Standard No. 131 states that "The stop signal arm shall be AUTOMATICALLY EXTENDED in such a manner that it complies with S5.4.1, at a minimum whenever the red signal lamps required by S5.1.4 of Standard No. 108 are activated..." (emphasis added) Both the Wisconsin requirement and the requirement in Standard No. 131 tie the activation of the stop signal arm to the operation of the red signal lamps. In addition, the Wisconsin regulation also ties the activation of the stop signal arm to the opening of the service door. Based on this information, it appears that a manufacturer could comply with both Standard No. 131 and the Wisconsin regulation by designing its school buses so that opening the service door automatically activates both the stop signal arm and the red flashing lamps. If the Wisconsin regulation were interpreted in a way that does not tie the automatic extension of the stop signal arm to opening the service door, then there could be an inconsistency with Standard No. 131.

You asked whether Blue Bird's system for activating the stop signal arm in accordance with Wisconsin's requirement complies with the requirements of Standard No. 131. You explained that, on its school buses sold in Wisconsin, Blue Bird provides a system by which the alternating red flashing lamps are activated by a driver controlled manual switch and the stop signal arm is activated by opening the service door. Under this system, the red flashing lamps are activated before the service door has been opened and before the stop

signal arm has been extended. Based on the information provided in your letter, we conclude that Blue Bird's system would not comply with the requirements of Standard No. 131.

Standard No. 131 explicitly requires the stop signal arm to be automatically deployed whenever the red signal lamps required by Standard No. 108 are activated. As explained in the final rule adopting Standard No. 131, "any system of activation is permissible provided the stop signal arm is extended during, at least, the entire time that the red warning lamps are activated." (56 FR 20363, 20368, May 3, 1991). As described in your letter, the system your company has developed for its Wisconsin school buses has the red warning lamps activated by a manual switch and the activation of those lamps does not activate the stop signal arm. Hence, that system does not comply with the explicit requirement of Standard No. 131 that the stop signal arm be automatically extended whenever the red warning lamps are activated.

I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

ID: nht90-4.98

TYPE: Interpretation-NHTSA

DATE: December 26, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Arthur H. Bryant, Esq. -- Executive Director, Trial Lawyers for Public Justice

TITLE: Neilson v. Porsche, et al., D. Idaho, Civ. No. 87-1121

TEXT:

This is in response to your letter to Kenneth Weinstein, the Assistant Chief Counsel for Litigation of the National Highway Traffic Safety Administration ("NHTSA"), regarding the above-referenced case, in which the District Court ruled that the plaintiff 's claims are preempted by Federal law. You have requested that the United States file an amicus curiae brief with the Ninth Circuit in support of the plaintiff.

Although this agency strongly disagrees with both the result and the rationale adopted by the District Court, we have decided not to request the Department of Justice to file an amicus brief in this appeal. A discussion of our views on this legal issue and the basis for our decision not to participate is set forth below.

As you are aware, it is the position of the United States, as expressed in amicus briefs filed in Ritt v. General Motors, No. 88-1822 (7th Cir.), and Wood v. General Motors, No. 89-46 (U.S. S.Ct.), that under certain circumstances, claims seeking to hold a motor vehicle liable in tort for its failure to install airbags in a vehicle are preempted by the National Traffic and Motor Vehicle Safety Act of 1966 ("Act"), 15 U.S.C. S 1381 et seq., and Federal Motor Vehicle Safety Standard ("FMVSS") No. 208, 49 CFR S 571.208, issued at 49 Fed. Reg. 28962 (July 17, 1984). However, in both of those briefs, the United States emphasized that, as a general matter, the fact that a motor vehicle complies with applicable federal safety standards neither preempts state law tort actions nor provides a complete defense to such claims.

Those briefs noted that NHTSA had, for many years, interpreted the Act to allow such claims to proceed, and referred to a January 5, 1981 letter from Frank Berndt, NHTSA's Chief Counsel, to Daniel L. Thistle. As that letter noted:

Section 108(c) (15 U.S.C. 1397(c)) of the Act provides that compliance with a motor vehicle safety standard "does not exempt any person from liability under common law." The House Report (H.R. Rep. No. 1776, 89th Cong., 2d Sess (1966)) on se ction 108(c) states that, "It is intended, and this subsection specifically establishes, that compliance with safety standards is not to be a defense or otherwise to affect the rights of parties under common law, particularly those relating to warranty, contract, and tort liability."

This principle has been upheld consistently by the courts, as reflected in the cases cited in the plaintiff's brief in opposition to Porsche's motion for summary judgment in this case. (Of course, NHTSA takes no position on the merits of this case; i.e. , whether Porsche should be held liable for not making the seat backs in the vehicle in question stronger.)

Thus, as noted above, in our view the District Court's opinion misstates the law on this issue. In relying upon cases in which courts have found claims involving airbags to be preempted, the court ignored the vital distiction between claims challenging a manufacturer's failure to install airbags rather than other forms of occupant protection that were specifically authorized by FMVSS No. 208, and claims such as the one at issue here, in which it is alleged that the manufacturer should have provided a h igher level of protection than that required under a NHTSA safety standard. However, to our knowledge, this is the first case in which a court has misapplied the airbag precedents to reverse a consistent body of law that permits claims such as this to p roceed. In keeping with NHTSA's long-standing policy of minimizing its involvement in private tort litigation, we believe that it would not be appropriate to participate formally in this case, particularly since the plaintiff will be able to provide the Ninth Circuit with our views on the issue. In the unlikely event that this erroneous view of the extent of Federal preemption proliferates in the future, the agency may decide to participate in a subsequent case.

ID: nht91-1.33

DATE: February 1, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Jeffrey S. Malinowski -- Small Business Center

TITLE: None

ATTACHMT: Attached to letter dated 11-14-90 from Jeffrey S. Malinowski to Paul Jackson Rice (OCC 5461)

TEXT:

This responds to your letter on behalf of Mr. Leo McCallum, asking whether any Federal Motor Vehicle Safety Standard applies to his invention, a tie rod, safety bracket. You stated that the product would typically be installed by a vehicle owner to reduce tie rod end wear. As explained below, while no Federal safety standard directly applies to your client's product, he may nevertheless have certain responsibilities under this agency's regulations.

As way of background information, the National Traffic and Motor Vehicle Safety Act of 1966, as amended (the Safety Act") authorizes the National Highway Traffic Safety Administration (NHTSA) to issue safety standards applicable to motor vehicles and items of motor vehicle equipment. The Safety Act also requires that these safety standards establish minimum levels of performance for vehicles or equipment. Once the necessary performance level has been established, vehicle or equipment manufacturers are free to choose any means they wish to achieve the required level of performance. In other words, the safety standards do not require the use of any particular manufacturer's product or particular materials; the standards permit the use of any manufacturer's product that achieves the necessary performance level. Section 114 of the Safety Act (15 U.S.C. 1403) requires manufacturers to certify that each of its vehicles or items of motor vehicle equipment complies with all applicable safety standards. NHTSA does not approve, endorse, or certify any motor vehicle or item of motor vehicle equipment.

NHTSA has no safety standard directly about tie rods or safety brackets used with tie rods.

As for installation of your client's device on vehicles in the aftermarket, such installations may be limited by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, distributor, dealer, or motor vehicle repair business from knowingly rendering inoperative any device or element of design installed on or in a motor vehicle in compliance with an applicable safety standard. If installation of your client's product resulted in a vehicle no longer complying with a safety standard, a manufacturer, distributor, dealer, or repair business that installed the product would have rendered inoperative a device or element of design installed on the vehicle in compliance with a standard. To avoid a "rendering operative" violation, your client should examine his product to determine if installing his product would result in the vehicle no longer complying with a standard's requirements.

Section 109 of the Safety Act (15 U.S.C. 1398) specifies a civil penalty of up to $1,000 for each violation of the render inoperative provision.

Please note that the Safety Act does not establish any limitations on an individual vehicle owner's ability to alter his or her own vehicle. Under Federal law, individual owners can install any device they want on their own vehicles, regardless of whether that device renders inoperative the vehicle's compliance with a safety standard.

Other statutory provisions in the Safety Act could affect your client's product. Manufacturers of motor vehicle equipment such as the "tire rod safety bracket" are subject to the requirements in sections 151-159 of the Safety Act (15 U.S.C. 1411-1419) on the recall and remedy of products with defects related to motor vehicle safety. The Safety Act specifies that if either the manufacturer or this agency determines that a safety-related defect exists in your client's product, your client as the manufacturer must notify purchasers of the safety-related defect and must either:

(1) repair the part so that the defect is removed; or

(2) replace the part with an identical or reasonably equivalent part which does not have a defect.

Whichever of these options is chosen, the manufacturer must bear the full expense and cannot charge the owner for the remedy if the equipment was purchased less than eight years before the notification campaign.

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

ID: 7241

Mr. Thomas Turner
Manager, Engineering Services
Blue Bird Body Company
P.O. Box 937
Fort Valley, GA 31030

Dear Mr. Turner:

This responds to your letter asking about Federal Motor Vehicle Safety Standard No. 131, School Bus Pedestrian Safety Devices, with respect to the automatic extension of a stop signal arm. You were especially concerned with the interaction between a provision in Wisconsin's Administrative Code requiring activation of the stop signal arm under specified conditions and the stop signal arm activation requirements set forth in Standard No. 131. I have responded in detail to your questions below.

Before I answer your question about your company's design for complying with both the Wisconsin Code and Standard No. 131, I would like to note that it does not appear that the Wisconsin regulation is inconsistent with Standard No. 131 with respect to the stop signal arm activation requirements. The Wisconsin Administrative Code states that:

"Any bus manufactured after January 1, 1978, shall have the stop signal arm controlled by the service door. The stop signal arm shall not become operational until the service door opens. The stop signal arm shall be installed in such a manner that it cannot be activated unless the alternating red lamps are in operation."

S5.5 of Standard No. 131 states that "The stop signal arm shall be automatically extended in such a manner that it complies with S5.4.1, at a minimum whenever the red signal lamps required by S5.1.4 of Standard No. 108 are activated..." (emphasis added) Both the Wisconsin requirement and the requirement in Standard No. 131 tie the activation of the stop signal arm to the operation of the red signal lamps. In addition, the Wisconsin regulation also ties the activation of the stop signal arm to the opening of the service door. Based on this information, it appears that a manufacturer could comply with both Standard No. 131 and the Wisconsin regulation by designing its school buses so that opening the service door automatically activates both the stop signal arm and the red flashing lamps. If the Wisconsin regulation were interpreted in a way that does not tie the automatic extension of the stop signal arm to opening the service door, then there could be an inconsistency with Standard No. 131.

You asked whether Blue Bird's system for activating the stop signal arm in accordance with Wisconsin's requirement complies with the requirements of Standard No. 131. You explained that, on its school buses sold in Wisconsin, Blue Bird provides a system by which the alternating red flashing lamps are activated by a driver controlled manual switch and the stop signal arm is activated by opening the service door. Under this system, the red flashing lamps are activated before the service door has been opened and before the stop signal arm has been extended. Based on the information provided in your letter, we conclude that Blue Bird's system would not comply with the requirements of Standard No. 131.

Standard No. 131 explicitly requires the stop signal arm to be automatically deployed whenever the red signal lamps required by Standard No. 108 are activated. As explained in the final rule adopting Standard No. 131, "any system of activation is permissible provided the stop signal arm is extended during, at least, the entire time that the red warning lamps are activated." (56 FR 20363, 20368, May 3, 1991). As described in your letter, the system your company has developed for its Wisconsin school buses has the red warning lamps activated by a manual switch and the activation of those lamps does not activate the stop signal arm. Hence, that system does not comply with the explicit requirement of Standard No. 131 that the stop signal arm be automatically extended whenever the red warning lamps are activated.

I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel Ref:131 d:6/17/92

ID: 7495a

Mr. Lyle Walheim, Lieutenant
Motor Carrier and Inspection Services
Wisconsin Department of Transportation
4802 Sheboygan Avenue
P.O. Box 7912
Madison, WI 53707-7912

Dear Mr. Walheim:

This responds to your letter seeking a clarification of whether Wisconsin's current requirements for the activation of stop signal arms on school buses would comply with the stop signal arm requirements set forth in Federal Motor Vehicle Safety Standard No. 131, School Bus Pedestrian Safety Devices. Your letter was prompted by my June 17, 1992 interpretation to Blue Bird Body Company. After evaluating the information provided in your letter, together with the information previously supplied by Blue Bird, we have reconsidered our assessment of the Wisconsin requirements. Subject to the qualifications discussed below, it is our reconsidered view that the Wisconsin requirements are not preempted by Standard No. 131 and that Blue Bird can continue to supply buses meeting Wisconsin's specifications, with the addition of the audible warning device described in Blue Bird's letter.

The distinguishing feature of Wisconsin's requirement is that it ties the operation of the stop arm to the opening of the service door, not to the operation of the red flashing lamps. In practice, the lamps on a Wisconsin bus equipped with a four-lamp system would operate like those on a bus equipped with an eight-lamp system, with the red lamps (instead of yellow lamps) flashing while the bus is coming to a stop. Since S5.1.4(b)(ii) of Standard No. 108 requires the yellow lamps on an eight-lamp system to turn off automatically and the red lamps to turn on automatically whenever the entrance door opens, and since the red lamps on the Wisconsin buses would operate whenever the entrance door is open, the Wisconsin buses would conform to the requirements of Standard No. 108. That standard does not prohibit the flashing of red lamps on a four-lamp system while the service door is closed.

For purposes of Standard No. 131, the question is whether there is any circumstance in which the stop arm may be deactivated while the red lamps are flashing. From the standpoint of practicality, we agree with you that the stop arm should not function before the bus has stopped and the driver has opened the service door. We further believe it is consistent with the purpose of the standard for the stop arm to be deactivated on a Wisconsin bus before the bus stops, even though the bus's red lamps may be flashing. To reconcile this view with the language of the standard, however, requires us to address the requirement of the standard that the arm must extend "at a minimum whenever the red signal lamps required by S5.1.4 of Standard No. 108 are activated. . . ."

Standard No. 131 expressly contemplates a situation in which the stop arm would not automatically extend despite the operation of the red lamps. The final clause of S5.5 provides that "a device may be installed that prevents the automatic extension of a stop signal arm." The question in Wisconsin's situation is whether the manual switch that activates the red signal lamps but not the stop arm would qualify as such a device. In our view, it does. Since the only time the red lamps are required by Standard No. 108 to operate is when the entrance door is open, and since the Wisconsin system would automatically extend the stop arm when the entrance door opens, we believe that the manual switch in the Wisconsin system can be fairly characterized as an override device that prevents the automatic extension of the stop signal arm until the red lamps are required to operate. For an override to be permitted, the device must comply with the other provisions set forth in S5.5, including the presence of a continuous or intermittent signal.

I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel Ref:131 d:9/14/92