Interpretation ID: 3237yy
National Accounts Manager
Wheels/RV Products
Kelsey Parts Business
38481 Huron River Drive
Romulus, MI 48174
Dear Mr. Lewandoski:
This responds to your letter of July 9, l99l, to Robert Hellmuth of this agency, regarding an apparent conflict between an interpretation furnished you by this Office on May 23 of this year, and a Memorandum of the California Highway Patrol (CHP) dated May 30, 1991. The subject is whether the Tekonsha Voyager and Commander electronic brake controls ("the Brake Control") are permitted under Motor Vehicle Safety Standard No. 108.
The Brake Control incorporates a "manual override" slide bar that activates the trailer brakes without a corresponding activation of the trailer stop lamps. On May 23, we responded to your question whether activation of "the trailer brakes and non-activation of the tow vehicle/trailer stop lamps comply" with Standard No. 108. We informed you that Standard No. l08 does not so permit, and that, because the Brake Control "applies the service brakes to diminish vehicle speed," the stop lamps are required by Standard No. 108 to be activated.
However, on May 30, CHP issued Management Memorandum No. 91-80 stating that this agency had issued a ruling that the Brake Control was "legal" under the preemption authority of l5 U.S.C. 1392(d), and that CHP personnel should consider the device to be in compliance with State requirements. You have asked for a clarification of the apparent conflict between our May 23, 1991 interpretation and the CHP memorandum.
The Patrol informs us that its Memorandum was based upon an interpretation that this office furnished on September 10, l990, to Lawrence F. Henneberger. Describing the Tekonsha Commander as a device which would allow the driver of a tractor-trailer combination "to use the hand control to override the trailer brakes in an emergency mode to control swaying," Mr. Henneberger had stated last year that California had taken the position that the vehicle's stop lamps must be activated when the Brake Control is used, "even though the service brakes are not applied at the time." It appeared to us from Mr. Henneberger's statements that the purpose of the Brake Control was "to control trailer sway and not 'to stop or diminish speed by braking.'" The basis for California's position was its interpretation of Section 24603(f) of the California Vehicle Code which states, in pertinent part, that stoplamps shall be activated upon application of the hand control head for electric brakes. We responded to Mr. Henneberger in our September 1990 letter that the California requirement conflicted with the requirement in Standard No. l08 that stop lamps be activated upon application of the service brakes, and that therefore, under the preemption clause of l5 U.S.C. 1392(d), Section 24603(f) was preempted "to the extent that it may be read as requiring stop lamps to be activated on motor vehicles equipped with the Commander Electronic Brake Control, when the Control is hand activated in an emergency mode to provide sway control."
We have reviewed the interpretations of September 10, 1990, and May 23, l991, as you have requested, and we have concluded that our interpretation letter to Mr. Henneberger was in error. Although Mr. Henneberger informed us that the Brake Control "does not involve application of the vehicle's service brakes" (Henneberger letter, June 22, l990, page 2; there are also three similar representations on page 4), the Tekonsha product literature that you supplied us clearly states that "The Voyager will not apply the trailer brakes unless the manual override slide bar is applied." (Item 5 under "Important Facts to Remember"), demonstrating that application of the Brake Control results in application of the trailer's service brakes. We have talked with Sergeant Cox of the California Highway Patrol about the operation of the Brake Control. We understand that operation of the Brake Control sends an electric impulse to the trailer brakes without going through the main tractor/trailer brake actuation system. The activation of the trailer brakes without a simultaneous activation of the tractor brakes allows the tractor to proceed with undiminished speed in order to take the slack out of the connector by increasing the distance between it and the trailer, which has slowed due to the activity of the electronic brake control, and thereby reduce the sway of the trailer.
This information about the Brake Control is the basis for our reconsideration of the interpretation of September 10, 1990. Although use of the Brake Control does not involve application of the "vehicle's service brakes" through the service brake control, it nevertheless does "apply the trailer brakes" as that phrase is used by Tekonsha in its product literature. Although the immediate intent of the driver may be to control sway, that intent is realized by creating a differential in speeds between towing and towed vehicles. That differential is created, not by increasing the speed of the towing vehicle, but by diminishing the speed of the towed vehicle through braking. As we noted in the September l0 letter, a stop lamp is defined in part as a lamp that indicates the intent of the driver to diminish speed by braking. We therefore find that Standard No. l08 and 15 U.S.C. 1392(d) do not preempt Section 24603(f) of the California Vehicle Code. We confirm our interpretation of May 23, that installation of the Tekonsha systems, under the conditions and by the persons therein described, appear to violate Standard No. 108 and the National Traffic and Motor Vehicle Safety Device.
Our letters to both you and Mr. Henneberger may have left the impression that operation of the Brake Control on the brakes of the towed vehicle also requires activation of the stop lamps of the towing vehicle. Sgt. Cox has clarified that the Brake Control activates only the brakes of the towed vehicle, not the towing one. Consequently, Standard No. l08 would not require activation of the towing vehicle's stop lamps when the Brake Control alone is used to apply the brakes of the towed vehicle to diminish sway.
A copy of this letter is being provided the Department of California Highway Patrol, and Lawrence Henneberger, attorney for Tekonsha.
Sincerely,
Paul Jackson Rice Chief Counsel
cc: Lawrence F. Henneberger, Esq. Sgt. Larry Cox, CHP
/ref:l08#VSA d:ll/22/9l