Interpretation ID: nht91-7.54

DATE: December 26, 1991

FROM: Charles W. O'Connor -- Assistant Secretary, Echlin Inc.

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

COPYEE: C. Scott Greer; Lawrence F. Henneberger; Jon P. Leckerling; Joan McKinnon; Larry Pavey

TITLE: Re: Commander and Voyager Electronic Brake Controls

ATTACHMT: Attached to letter dated 3/26/92 from Paul J. Rice to Charles W. O'Connor (A39; Std. 108)

TEXT:

This letter comments on your letters of May 23, 1991 and November 22, 1991 to Mr. William J. Lewandoski of Kelsey-Hayes Corporation ("Kelsey-Hayes"), a manufacturer of electronic brake controls and a competitor of Tekonsha Engineering Company ("Tekonsha"), the manufacturer of the Commander and Voyager electronic brake controls. Tekonsha is a subsidiary of Echlin Inc. Our comments are first directed at your conclusion in your November 23, 1991 letter that Tekonsha's Commander and Voyager electronic brake controls "appear to violate Standard No. 108 and the National Traffic and Motor Vehicle Safety Device." The reference to "Device" and precise meaning of the language following the words "Standard No. 108" is not clear to us.

Section S4.5.4 of Standard No. 108 (49 CFR Section 571.108) provides in pertinent part that "The stoplamps on each vehicle shall be activated upon application of the service brakes." Your interpretation appears to be based on the theory that the trailer brakes, standing alone, are "service brakes." It seems clear to us that "service brakes" refers to the brakes of each vehicle together because it takes both sets of brakes to stop both vehicles in a reasonably effective manner. This interpretation is consistent with the common sense view that the service brakes are applied by stepping on the foot pedal as well as the wording of Section 24603(f) of the California Vehicle Code which states, in pertinent part, "Stoplamps shall be activated upon application of the service (foot) brake..."

The term "service brake" is defined in the Federal Motor Vehicle Safety Standards at 49CFR Section 571.3 as follows: "'Service brake' means the primary mechanism designed to stop a motor vehicle." Service brakes are those brakes normally used to stop the vehicle and which will stop the vehicle under normal and emergency situations. The combined brakes on both vehicles meet this standard and the "primary mechanism" standard. It is difficult and dangerous to stop both vehicles using the brakes of the towing vehicle alone and virtually impossible and extremely dangerous to stop both vehicles using the brakes of the towed vehicle alone.

Your November 22, 1991 letter seriously misquotes Tekonsha's product literature and leads us to believe that your opinion is based on a misunderstanding with respect to how the Voyager, Commander and other electronic brake controls operate. Your quote, in the second paragraph on page 2 is "The Voyager will not apply the trailer brakes unless the manual override slidebar is applied." That statement is not true. The brochure you cited actually states "IN A

STATIONARY STATE, the Voyager will not apply the trailer brakes unless the manual override slidebar is applied" (emphasis added). The fact is that this is true in almost all electronic brake controls including those made and sold by Kelsey-Hayes.

Your letter does not comment on important safety features provided by Tekonsha's Commander and Voyager electronic brake controls which are superior to both existing Kelsey-Hayes products and Tekonsha's older style brake controls (herein the "2030 style"). Tekonsha spent large amounts of its own money developing superior and safer products for consumers while Kelsey-Hayes has not invested a nickel. Rather than compete fairly in the marketplace, it turns to the National Highway Traffic Safety Administration ("NHTSA"), which effectively protects Kelsey-Hayes from competition.

The first question one should ask is "Why do the Commander and Voyager brake controls have a manual override?" First and foremost, it permits the driver to properly set the brakes of the trailer to provide optimum braking performance for the towing and towed vehicles. The vehicles start together, stay together and stop together and, for all practical purposes, are a single vehicle.

Second, the brakes on the trailer serve as emergency brakes. If the service brakes fail when the driver applies the foot pedal, then the driver could activate the towing vehicle's emergency (parking) brake and activate the manual override to operate the trailer brakes. The emergency (parking) brakes on the towing vehicle do not activate the stoplamps on the towing vehicle. This is permitted by Federal law. See 49 CFR Section 393.25 (f). Notwithstanding that the law does not require that the activation of the emergency brakes on the towed vehicle activate the stoplamps on the towed vehicle, you want the activation of the emergency brakes on the towed vehicle to activate the stoplamps on the towed vehicle.

Third, the manual override is used in conjunction with the towing vehicle accelerator to control sway, although this use is inconsequential and not encouraged by Tekonsha. Because some drivers are aware of the laws of physics, they figure out that they can use the manual override in conjunction with the accelerator on the towing vehicle to control sway. To be able to control sway is a safety feature. In the "sway control" mode the intent of the driver is to control sway and not to stop or diminish the speed of the combined vehicle and, in this mode, the advanced Tekonsha brake controls do not activate the stoplamps which avoids sending false braking signals to trailing vehicles.

Only in the mind's eye is there "a differential in speeds between towing and towed vehicles." To the extent such a differential does exist, it exists only momentarily and cannot be observed by the human eye. Not only is a "differential in speeds" not mentioned in the regulations, but no one explains why a differential in speeds resulting from the towing vehicle accelerating (not physically possible because both parts of the combination accelerate together) is lawful but a differential resulting from applying the manual override (it does not work this way in practice) is unlawful. It is a distinction without a difference. In the sway control mode, an experienced driver will simultaneously accelerate the towing vehicle and manually apply the trailer brakes to stop the sway and the combination continues without any differential in speeds.

There are a number of situations where an operator intends to and does reduce speed without activating the stoplamps. For example, a driver using cruise control can reset the cruise control to a lower speed by merely pushing a button that reduces the speed of the vehicle until the driver releases the button. Downshifting is another example and, the most frequently used, removing the foot from the accelerator.

It might be helpful to recall that the purpose of the National Traffic and Motor Vehicle Safety Act of 1966 (the "Act") is to "reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents" (See Section 1 of the Act, 15 USC Section 1381), not to bar the development of new and safer products such as the Commander and Voyager electronic brake controls.

If you are not persuaded that the Commander and Voyager electronic brake controls comply with Section S4.5.4 of Standard No. 108, then the language should be amended to make them legal. Your agency has the power to establish "appropriate Federal motor vehicle safety standards" and that same power permits the amendment of existing standards to recognize technological advances.

There have been significant changes in the design and equipment of towing vehicles that called for advances in brake controls. Many towing vehicles are now equipped with such desireable features as cruise control, electronic engine controls and rear-wheel anti-lock brakes. These are desireable particularly when one is towing a 5,000 pound trailer down the road. These features do present a real challenge to brake control manufacturers because they are all susceptible to interference from brake controls. For safety purposes, the new towing vehicle features called for state of the art brake controls that:

1. DON'T put electrical noise on the 12 volt power system; 2. DON'T put signals on the stoplight circuit;and 3. DON'T invade the hydraulic brake system.

Tekonsha designed at great expense its Commander and Voyager electronic brake controls within the constraints set forth above. With respect to the dangers created by connecting to the stoplamp circuit see, for example, Ford Motor Company Bulletin Number 10 (copy attached).

We ask that you reconsider your position and, if you still feel constrained by the existing wording of Section S4.5.4, then the wording should be changed to read:

"The stoplamps on each vehicle shall be activated upon application of the service (foot) brakes."

We turn now to your May 23, 1991 letter which was written after the September 10, 1990 letter to Lawrence F. Henneberger, Esq. The September 10, 1990 interpretive letter concluded that Section S4.5.4 preempts in part Section 24603 (f) of the California Vehicle Code. The September 10, 1990 letter was written after a thorough evaluation of the Tekonsha Commander electronic brake control by engineering and legal representatives of NHTSA.

How could NHTSA issue its May 23, 1991 letter which reverses in part its September 10 1990 letter without notifying and giving Tekonsha an opportunity to comment. While we appreciate that both your May 23, 1991 and November 22, 1991 letter qualified your interpretation by stating "appear", you have placed a powerful anti-competitive tool in the hands of a competitor.

We suggest one way to clear up the havoc is to rule that all three of your letters i.e., the November 22 and May 23, 1991 letters to Mr. Lewandoski and your letter of September 10, 1990 to Mr. Henneberger are all void from the beginning. If you did this, you could then make a proper technical evaluation of the Commander and Voyager electronic brake controls. If a fair and objective evaluation concluded that not connecting to the stoplamp circuit advanced motor vehicle safety, then you could proceed accordingly. If a fair and objective evaluation resulted in a different conclusion, Tekonsha is prepared to live with the results on a prospective basis.