ID: nht75-6.23

DATE: 01/01/75 EST

FROM: RICHARD B. DYSON -- NHTSA ASSISTANT CHIEF COUNSEL

TO: ALLAN B. FREDHOLD -- GENERAL MANAGER K-B AXLE CO., INC.

TITLE: N40-30 (TWH)

ATTACHMT: LETTER DATED 4/16/75 FROM RICHARD B. DYSON -- NHTSA CHIEF COUNSEL TO GEOFFREY R. MYERS OF HALL AND MYERS; UNDATED LETTER FROM RICHARD B. DYSON -- NHTSA CHIEF COUNSEL TO ADDRESSEE UNKNOWN

TEXT: Dear Mr. Fredhold:

This responds to K-B Axle Company's March 4, 1975, request for guidance in assisting K-B's customers in meeting their certification responsibilities under Standard No. 121, Air brake systems.

Standard No. 121 specifies air brake performance requirements (and some equipment requirements) which newly-manufactured trucks, buses, and trailers must be capable of meeting. For example, the standard specifies that if a truck or bus, in the loaded and unloaded condition, is stopped six times from 60 mph on certain test surfaces, it must be capable of stopping at least once in 258 feet without leaving a 12-foot wide lane and without uncontrolled wheel lockup.

Many manufacturers incorrectly assume that this requirement means that, in order to certify that it has this capability, each vehicle produced must actually be tested from 60 mph on a test track. In fact the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1391, et. seq.) specifies the manufacturer's certification responsibility, which is to exercise "due care" that the vehicle or item of equipment is capable of meeting all requirements.

NHTSA has made clear in the past, and has emphasized in its implementation of Standard No. 121, that a manufacturer is free to use whatever method is reasonably calculated to fulfill his responsibility to exercise due care. To cite a simple example, if a safety standard specifies that a certain safety device be no less than 8 inches above the ground, it would not be necessary to measure the height of each safety device on each vehicle produced to assure in the exercise of due care that it complies.

Standard No. 121, of course, establishes more complex performance requirements, and they would be affected by the addition of your "tag" or "pusher" axles. Most final-stage manufacturers and alterers feel confident that they can meet such requirements as minimum air tank volume when they add a third axle. In more complex areas, however, they require some reasonable basis on which to certify, in the exercise of due care, that the vehicle still is capable of stopping within the required distance, and that the brake actuation and release times still meet the minimum performance levels of the standard.

As noted earlier, the standard and our statute do not require road testing as the basis of certification. NHTSA, in a preamble to Standard No. 121 recognized:

What constitutes due care in a particular case depends on all relevant facts, including such things as the time to elapse before a new effective date, the availability of test equipment, the limitations of current technology, and above all the diligence evidenced by the manufacturer.

Road testing would be one method of exercising due care. Your customers, of course, may not have the capability to conduct road testing.

As a supplier of the added component, you are in a good position to develop engineering data on the effect your axle has when added to a 121 vehicle. For example, you could add your axle to a 121 chassis with a representative body and conduct a road test to see that the vehicle with the added axle and gross vehicle weight would still meet the stopping distance requirements. You might also test the actuation and release times on this vehicle to see that the axle addition does not cause non-conformity. This experimentation would permit you to make general statements about the conditions under which your axle could be added to a 121-type chassis without causing non-conformity.

Although retardation force is not a requirement for a vehicle other than a trailer, you suggest use of dynamometer data as a basis of certification. Such information would be a valid basis of certification if it is shown that a reasonable correlation exists between the retardation forces you specify and the actual ability of the modified truck to stop.

Yours truly,

ID: nht75-6.24

DATE: 04/16/75

FROM: RICHARD B. DYSON -- NHTSA ASSISTANT CHIEF COUNSEL

TO: GEOFFREY R. MYERS -- HALL & MYERS

TITLE: N40-30 (RED)

ATTACHMT: ATTACHED TO 01/01/75 (EST) LETTER FROM RICHARD B. DYSON -- NHSTA CHIEF COUNSEL TO ALLEN B. FREDHOLD OF K-B AXLE COMPANY INC.; N40-30 (TWH); UNDATED LETTER FROM RICHARD B. DYSON -- NHSTA CHIEF COUNSEL TO ADDRESSEE UNKNOWN

TEXT: Dear Mr. Myers:

This is in response to your letter of March 25, 1975, enclosing a circular to Truck Equipment and Body Distributors Association members, and a petition containing questions concerning the position of the NHTSA regarding conformity to Standard 121 by persons who alter chassis prior to their completion as trucks or truck tractors. You asked that we comment on your circular and answer the questions in your petition. In the interest of a rapid reply, I would like to respond in this letter to your request concerning your circular. We will answer separately the questions in your petition.

I will quote from our docketed memorandum of the meeting that we had on March 19:

"Under NHTSA interpretations and opinions of long standing, actual road tests are not necessary to establish compliance with Standard 121 or other standards, where other reasonable means, such as engineering calculations coupled with laboratory tests, can be used to the same effect. The agency has recognized that small companies' such as many of the finalstage and intermediate manufacturers represented by the TEBDA, cannot be expected to test on the same scale or by the same methods as large integrated automotive manufacturers. Supplier warranties and instructions are one of the primary means by which smaller assemblers are expected to use statutory "due care" to see that their products conform."

You and the association have attempted to set forth our position to your clients, and I don't want to quibble over the precise form of words that you choose. On the other hand, I don't believe the agency should be in the position of appearing to endorse a description of its position that does not conform to its own statements.

Paragraph 5 of the circular represents us as having said that "road tests and the testing of brake release and actuation times are NOT REQUIREMENTS of the standard, but merely methods of assuring compliance." This point is not incorrect, but could be misunderstood out of context. Our position here is not limited to road tests or even Standard 121, but applies to all the requirements of all the motor vehicle safety standards. The standards describe the required capabilities of the vehicles in question; they are not instructions to the manufacturer as to how he ensures those capabilities. Thus, the standard does not specify who must test what and how. It requires that vehicles be capable of meeting the tests when the government tests them, and that manufacturers (including intermediate and final-stage manufacturers) use due care to see that they are so capable.

In the sixth paragraph, the circular states that

"you may still certify a vehicle under FMVSS 121 (even if you increase the GVW, move component parts and/or do not have available the height of the body's center of gravity), provided that your own expertise and judgment reasonably indicates to you that your work has not adversely affected the chassis maker's conformance statements. In other words, you must have no real reason to believe that the completed vehicle does not comply with FMVSS 121. (And this is true even if your reasonable judgment later proves to be wrong.)"

The key word in this passage is "reasonable." The judgment by which the alteration is made must indeed be reasonable to satisfy the due care test. The sentence beginning "In other words" may be misleading, if it leads the reader to believe that blissful ignorance is enough. In case of a failure to comply, a vehicle alterer should be prepared to show, where he used calculations, for example, that the calculations were a reasonable interpretation of the information that was available to him. If a company does not have the in-house capability of making such calculations and judgments, it should obtain it from outside sources such as suppliers or independent contractors. We noted at the meeting on which the circular was based that persons from the axle supplier represented indicated that they were prepared to assist their customers (such as the association members) in this regard.

You should note that our discussion of due care does not deal with the question of what action must be taken by a manufacturer by way of remedy, if a nonconformity is discovered in his vehicles that is not "inconsequential" within the meaning of section 157 of the Act (1974 Amendments). Except for the case of an inconsequentiality finding, the duty to remedy a nonconformity exists regardless of prior testing or any other measures taken by the manufacturer.

Yours truly,

ID: nht75-6.25

DATE: 05/02/75

FROM: JAMES C. SCHULTZ -- NHTSA CHIEF COUNSEL

TO: FRAZER F. HILDER -- GENERAL COUNSEL GENERAL MOTORS CORPORATION

TITLE: N40-30

TEXT: Dear Mr. Hilder:

This is in response to your letter of March 21, 1975, inquiring as to the effect of Federal Motor Vehicle Safety Standard No. 121 on Massachusetts and New Jersey State laws relating to air brake performance.

As you are aware, section 103(d) of the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1392(d)) provides that no State or political subdivision of a State may promulgate or continue in effect standards applicable to an aspect of motor vehicle or motor vehicle equipment performance which is covered by a Federal Motor vehicle safety standard, unless the standards are identical.

Standard No. 121 includes provisions relating to truck and bus brake performance, including requirements for stopping distances. A more restrictive State brake requirement than that specified in Standard 121 is voided by @ 103(d) since the Federal standard is intended to cover all aspects of air brake performance.

The Federal requirements must be regarded as conclusive with regard to service, emergency, and parking braking capabilities in order to maintain the uniformity necessary in a Federal regulatory scheme. This was affirmed in a recent decision rendered in a case brought by the Motorcycle Industry Council, Inc. against the State of California in the United States District Court for the Eastern District of California concerning the preemption of a California State requirement that Motorcycle headlamps be wired to operate when the engine is running. The Court held that the California requirement is preempted by the Federal Motor Vehicle Safety Standard No. 108 since the National Highway Traffic Safety Administration intended to cover all aspects of performance directly involving motorcycle headlamps.

Therefore, requirements such as those described in your letter would be preempted by Standard 121 since the aspects of performance that would be affected are covered by the Federal standard. You should note that this discussion of State "requirements" only refers to rules of general applicability within a State or municipality. It does not refer to purchase specifications that may be imposed by any person or organization, including a State or municipality, with respect to vehicles purchased for the person or organization's own use. Such specifications are not limited by Federal law, and in the case of governmental bodies are specifically allowed by @ 103(d), although of course they cannot alter a manufacturer's duty to conform to Federal standards.

Sincerely,

ID: nht75-6.26

DATE: 06/02/75

FROM: JAMES B. GREGORY -- NHTSA ADMINISTRATOR

TO: DAVID E. MARTIN -- DIRECTOR AUTOMOTIVE SAFETY ENGINEERING GENERAL MOTORS CORPORATION

TITLE: N40-30

TEXT: Dear Mr. Martin:

This responds to your December 17, 1974, and March 31, 1975, letters asking whether your proposed inertia seatback latch meets the requirements of Federal Motor Vehicle Safety Standard No. 207, Seating Systems.

After carefully examining the mechanism, considering General Motors' arguments in its favor, and meeting twice with GM representatives, we have decided that the proposed inertia latch would not comply with S4.3.1 of FMVSS 207 unless an emergency release were added to enable someone to override the automatic locking mechanism when necessary.

We agree with GM that the proposed seatback latch is an improvement in some respects over current designs. The latch provides added convenience for rear seat occupants since under normal circumstances they may fold the seat forward by simply pushing on the seatback. We also recognize that there may be a safety advantage in certain circumstances requiring fast exit from the vehicle in that the passenger will not have to fumble for a latch, which, though readily accessible, is neither in the same location nor operated in a similar manner in all cars. Your proposed design also avoids a serious problem of some current latches: namely, that they will not release if even light pressure is applied against the seatback in a forward direction. The National Highway Traffic Safety Administration is seriously considering action on this problem.

Despite these advantages, GM's proposed inertia latch would satisfy neither the intent nor the wording of S4.3.1 of FMVSS 207 because it would not release when the vehicle is upside down or upright at a pitch attitude exceeding a 32% downgrade. Such vehicle positions are not uncommon in accident situations and GM's own figures indicate that "100 rear seat occupants per year could be hindered in leaving the vehicle under circumstances which would make prompt egress important." S4.3.1 requires that "the control for releasing the (self-locking seatback) device shall be readily accessible to the occupant of the seat . . . and . . . to the occupant of the designated seating position immediately behind the seat." Under normal conditions the seatback itself would be the control for your latch and it is certainly readily accessible. When the vehicle is nose down or inverted, however, the seatback would not perform this function and there would consequently be no readily accessible control for releasing the self-locking device.

Because it is often important for passengers in post-accident situations immediately to leave or be removed from a vehicle, for any number of reasons including fire, serious bleeding or hazardous vehicle location, it seems especially important that a seatback release control operate under these circumstances. Adding an emergency latch lock override to the inertia latch design would avoid this problem while retaining the previously mentioned advantages of your design.

Sincerely,

ID: nht75-6.27

DATE: 08/18/75

FROM: FRANK A. BERNDT -- NHTSA ACTING CHIEF COUNSEL

TO: WALTER C. BURVILLE -- MANAGER, UNDERWRITING SURVEY DEPARTMENT CHUBB/PACIFIC INDEMNITY GROUP

TITLE: N40-30

ATTACHMT: ATTACHED TO LETTER DATED 7/18/75 FROM WALTER C. BURVILLE OF CHUBB PACIFIC INDEMNITY GROUP TO THE ASSOCIATE ADMINISTRATOR FOR MOTOR VEHICLE PROGRAMS NHTSA

TEXT: Dear Mr. Burville:

This responds to your July 18, 1975, question whether actual road testing of completed vehicles that are required to meet Standard No. 121, Air Brake Systems, is necessary as a basis of certification to the standard.

I have enclosed copies of two letters that discuss in detail the kind of evidence a manufacturer of vehicles might use to certify compliance with Standard No. 121. It is emphasized in the letters that the statutory requirement is the exercise of "due care" and that this term may have a different meaning in the case of a small manufacturer than in the case of a large manufacturer. The manufacturer may decide to run only one test of his vehicles, or he may test representative vehicles periodically.

I have also enclosed a copy of a letter to a California manufacturer of trailers which may be the source of the NHTSA opinion that one means of exercising "due care" might be tests of representative trailers.

Sincerely,

ENCLOSURES

ID: nht75-6.28

DATE: 07/18/75

FROM: WALTER C. BURVILLE -- MANAGER UNDERWRITING SURVEY DEPARTMENT CHUBB/PACIFIC INDEMNITY GROUP

TO: ASSOCIATE ADMINISTRATOR FOR MOTOR VEHICLE PROGRAMS NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

TITLE: COMPLIANCE WITH FEDERAL MOTOR VEHICLE SAFETY STANDARD 121.

ATTACHMT: ATTACHED TO LETTER DATED 8/18/75 FROM FRANK BERNDT OF NHTSA TO WALTER C. BURVILLE -- MANAGER, UNDERWRITING SURVEY DEPARTMENT CHUBB PACIFIC INDEMNITY GROUP; N40-30

TEXT: Gentlemen:

In the hustle of various interpretations following the inactment of 121, I am getting contradicting information. We are insurers of several trailer manufactures in this area. Most of them maintain that actual road tests of complete units is not necessary to conform with Section 55.3.2 "Stopping Capability-Trailers."

In discussing this with NHTSA in Seattle in March, they stated that in their opinion, a company would have to take a typical unit of each variety manufactured and test it under the most adverse conditions according to Section 56 "Conditions", and this means an actual road test.

Would you provide an interpretation on this, if available. Will a road test be necessary and will routine tests or only the initial test be sufficient?

Very truly yours,

ID: nht75-6.29

DATE: 08/19/75

FROM: JAMES C. SCHULTZ -- NHTSA CHIEF COUNSEL

TO: GERHARD P. RIECHEL -- ATTORNEY VOLKSWAGEN OF AMERICA, INC.

TITLE: N40-30 KK

TEXT: Dear Mr. Riechel:

This is in response to your letter of June 27, 1975, inquiring as to the permissibility under Standard No. 111, Rearview Mirrors, of offering for sale new vehicles equipped with louvers affixed to the outside of the rear window without installing a rearview mirror on the passenger side.

Standard 111 requires that an outside rearview mirror of substantially unit magnification be installed on the passenger side of a vehicle where the field of view provided by the inside rearview mirror is obscured by objects other than seated occupants or head restraints. Based upon the information contained in your letter, it appears that the louver affixed to the rear window obstructs the view to the rear provided by the inside mirror. Since this louver does not fall within the two exceptions named in S3.1.1 of the standard (seated occupants and head restraints), a passenger side rearview mirror would be necessary to comply with the requirements of the standard.

The fact that the obstruction is only slight does not affect this determination, since the standard is clear on the point that the only obscurity allowable is that caused by occupants or head restraints.

Sincerely,

ID: nht75-6.3

DATE: 08/25/75

FROM: AUTHOR UNAVAILABLE; Richard B. Dyson; NHTSA

TO: Royal Industries

TITLE: FMVSR INTERPRETATION

TEXT: This responds to your July 3, 1975, request for confirmation that a final-stage manufacturer (as defined in 49 CFR @ 568.3) is responsible for certification of its motor vehicle products under Part 568 of Title 49, Code of Federal Regulations (vehicles manufactured in two or more stages) and that it would be illegal for a final-stage manufacturer to complete a truck with a volumetric capacity which would accommodate more weight than the rated cargo load, causing the loaded vehicle weight to exceed the gross vehicle weight rating (GVWR) specified by the manufacturer. You also request confirmation that the cargo container designed for a specific commodity must have a load center of gravity (CG) that does not cause the total vehicle CG to exceed the chassis manufacturer's specified CG.

You are correct that Part 568 makes the final-stage manufacturer responsible for certification of a completed vehicle which is manufactured in two or more stages.

If a final-stage manufacturer specifies a rated cargo load for the completed vehicle, the weight of the vehicle when carrying that load must not exceed the GVWR. If you supply no rated cargo load, but only the volumetric capacity, the capacity would not on its face lead to a violation of the certification regulations, since the weight of specific commodities can vary considerably.

You should be aware, however, that completing the vehicle so that its apparent carrying capacity exceeds the stated weight ratings may create some risks of liability beyond the certification regulations themselves. If, for example, the vehicle suffers a hazardous malfunction in use that can be traced to overloading, its manufacturer may be liable both under the defect provisions of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1402) and under common-law product liability doctrines. As you suggest, the final-stage manufacturer who completes a vehicle for a specific commodity is clearly on notice that providing "overload capacity" could constitute a safety-related defect if that vehicle is involved in an accident due to overloading. I enclose copies of two interpretations on this subject provided to a manufacturer and a trade association.

Part 568 contains no requirements for limitation of cargo load center of gravity. I assume your question about CG concerns completion of air-brake vehicles in a fashion which permits you to certify to Standard No. 121, Air brake systems. I enclose a copy of a notice which explains that the National Highway Traffic Safety Administration (NHTSA) will test a vehicle under Standard No. 121, whether or not designed for a specific capacity, using a CG height which does not exceed that specified by the chassis manufacturer. I would note that the preamble of the enclosed notice points out that, if the NHTSA should discover vehicles being produced that do not perform safely when loaded in a normal manner and can establish that this condition is attributable to deficiencies in vehicle manufacture or design, it can proceed against their manufacturers under its safety-related defect jurisdiction.

ID: nht75-6.30

DATE: 06/10/75

FROM: NANCY KOLODNY -- STAFF ATTORNEY FORD MOTOR CO.

TO: RICHARD B. DYSON -- ASSISTANT CHIEF COUNSEL NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION DEPARTMENT OF TRANSPORTATION

TITLE: 1975 MONARCH REAR TAILLAMP PART NO. (2)(A)(2) - IP2R(2)S(3)T75CT

ATTACHMT: ATTACHES TO A LETTER DATED 8/18/75 FROM JAMES C. SCHULTZ -- NHTSA CHIEF COUNSEL TO NANCY KOLODNY -- FORD MOTOR'S GENERAL COUNSEL; N40 30(ZTV)

TEXT: We are writing to seek the express confirmation of the National Highway Traffic Safety Administration (NHTSA) of the preemptive effect of Federal Motor Vehicle Safety Standard 108, 49 CFR 571.108 ("Standard 108") on passenger car lighting, as was provided by NHTSA in Motorcycle Industry Council, Inc. v. Younger, No. Civ. S74-126 (D.C.E.D. Cal., Sept. 24, 1974).

This request is being made so that we may respond to the attached correspondence (Attachment I) from Mr. Warren M. Heath, Commander, California Highway Patrol, concerning compliance with Section 25950 * of the California Vehicle Code by the 1975 Monarch rear taillamps. Mr. Heath's letters of April 8 and May 25 contend that the amber lens applied over a red lens on one of the Monarch taillamp compartments violates that provision of the California Vehicle Code Section 25950 which does not permit a taillamp to be amber when unlighted. On this basis, Mr. Heath has stated that similarly equipped 1976 model year Monarchs will not be eligible for registration in California.

* Section 25950 provides in pertinent part: "(b) All lamps and reflectors visible from the rear of a vehicle shall be red, except that stop lamps, turn signal lamps and front side-marker lamps required by Section 25100 may show amber to the rear.

This section applies to the color of a lamp whether lighted or unlighted, and to any reflector exhibiting or reflecting perceptible light of 0.05 candlepower or more per foot - candle of incident illumination, except that taillamps, stop lamps and turn signal lamps visible to the rear may be white when unlighted."

We believe the provisions of Section 25950 are preempted by Standard 108, and that pursuant to Section 103(d) of the National Traffic and Motor Vehicle Safety Act (15 USC 1392(d)), California is precluded from the enforcement of any nonidentical standard.

As the NHTSA has confirmed on several occasions, the Standard's lighting requirements are intended to be comprehensive and exclusive, and leave no room for differing state standards. The statement of the Administrator cited by the Court in the Motorcycle Industry Council judgment is particularly pertinent here where California seeks to enforce a differing standard for the precise function (i.e., taillamp color) covered by Standard 108. (Letter from James B. Gregory, Administrator NHTSA, to W. Pudinski, Commissioner, Dept. of Highway Patrol, dated Nov. 8, 1973, N40-30 (RBD).)

Compliance of the Monarch rear lamps with the requirements of Standard 108 has been confirmed by tests conducted at Ford. (Attachment II) Therefore, we seek an opinion on the issue of preemption with respect to the differing California requirements of Section 25950.

For your assistance, we are enclosing color photos of the Monarch and Monarch Ghia rear lamps which demonstrate their appearance when lighted and unlighted. (Attachment III) Photo #1 is of the Monarch rear lamp unlighted. Photo #2 shows the taillamp (3 exterior red compartments) lighted. Photos #3 and #4 are of the Monarch Ghia.

If you have any questions on this matter, please so inform me. I may be reached by telephone at (313) 337-6462. We hope to receive a response at your earliest convenience.

Sincerely,

ID: nht75-6.31

DATE: 07/16/75

FROM: WILLIAM T. COLEMAN -- SECRETARY OF TRANSPORTATION

TO: B. J. CAMPBELL -- CHAIRMAN, NATIONAL MOTOR VEHICLE SAFETY ADVISORY COUNCIL DEPARTMENT OF TRANSPORTATION

TITLE: NONE

TEXT: Dear Dr. Campbell:

As you and the many members present at the Council's last meeting will recall, Dr. Gregory asked the Council to consider two important questions facing NHTSA's motor vehicle safety program. I would like to formally reiterate that request and emphasize the importance of obtaining the Council's collective advice on them.

The first concerns the way NHTSA does business. As a regulatory agency, NHTSA establishes motor vehicle safety standards under the Administrative Procedure Act. Similarly, there are administrative procedures for ensuring industry compliance with those standards. In addition, NHTSA is responsible for monitoring the safety defects of motor vehicles on the highways and has established procedures for carrying out that task.

We are constantly in the process of reviewing, revising, and expanding these procedures. I ask that the Council look at them and determine whether NHTSA is being fair to all involved and at the same time responsive to the requirements of public safety and the mandates of Congress. Are these procedures timely, logical and equitable? Can they be improved?

The second important question concerns the role of cost/benefit studies in our safety standards process. Dr. Gregory and I have taken the position that cost/benefit analysis is important and should always be considered when developing a new or reviewing an existing safety standard. But the cost/benefit factors can be only one input. For example, in the transportation of school children we have a public that demands the safest possible ride on school buses, cost/benefit ratios notwithstanding. On the other hand, we clearly want to avoid a situation of rapidly rising costs with no or little increase in benefits. The question is -- how do we handle this in relation to public values and industry demands? Dr. Gregory and I believe that in any regulatory program standards should be set at a level where the cost -- in terms of dollars, inconvenience, or whatever -- is modest in proportion to the increase in safety benefits. I realize that the Council's Fourth International Congress on Automotive Safety is in large part directed at this question. I hope the information presented there and the ensuing discussions will aid the Council in tackling this important issue.

I've asked Dr. Gregory to make available background material and briefings to aid the Council in deliberating these questions, and I look forward to receiving the Council's advice.

Sincerely,