ID: nht75-1.13

DATE: 05/16/75

FROM: AUTHOR UNAVAILABLE; R. B. Dyson; NHTSA

TO: Toyo Kogyo Co., Ltd.

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your April 16, 1975, question whether the test procedure of S7.7.1 of Standard No. 105-75, Hydraulic brake systems, permits reapplication of the parking brake if the vehicle fails to hold on the required grade after the first application of a force or series of forces. You also ask whether a brake warning indicator which signals a short-lived loss of pressure during a spike stop brake application would conform to S5.3.1(a)(1).

Section S7.7.1 directs (in part) application of the parking brake with a force or series of forces, release of the service brake which has been holding the vehicle on the required grade, and indicates that in release of the service brake, "it may be necessary to reapply it, if the vehicle moves slightly, to take up the parking brake system slack." (emphasis added).

The word "it" refers to the service brake system, and not the parking brake system. This sentence permits application of the service brake only, which has the effect of taking up parking brake system slack due to rotation of the brake shoes and drum prior to bottoming against the anchor pin. This service brake application is intended to provide the best opportunity for a static test of the parking brake.

You state that a differential pressure can occur within the Mazda master cylinder during a spike stop brake application because the piston travels beyond the outlet port to the rear wheel brake lines. This pressure differential causes momentary activation of the brake warning indicator lamp.

The NHTSA would consider in this case that, as a technicality, momentary failure of the rear wheel subsystem has occurred because continued braking pressure cannot be applied to the rear wheels. You point out that the system corrects immediately and the signal lamp is extinguished.

From your description of the Mazda system, NHTSA concludes that the activation of the signal lamp conforms to the requirements of S5.3.1(a)(1) as long as it is designed to extinguish as soon as the system corrects and continued brake force could be applied to the rear wheels.

Yours truly,

Enclosure

April 16, 1975

James C. Schultz -- Chief Counsel, National Highway Traffic Safety Admin.

Dear Mr. Schultz: In determining the final system for meeting MVSS 105-75, we are having some trouble in following some of the test requirements. We would highly appreciate it if we could have your view on the following questions until April 25, 1975 in order to relief them.

1. Re: Parking Brake Test Procedure in S7.7.1

When we run the test according to this section, we understand the following sequence (a) through (h) acceptable.

a) Bring the vehicle on the grade and hold it by applying the service brake.

b) Apply the parking brake by keeping the service brake working with specified force.

c) Release the service brake.

d) Check the movement.

e) If moved slightly, reapply the service brake and hold it.

f) Then reapply parking brake with the specified force to take up its slack without releasing it.

g) Release service brake again.

h) Check the movement.

2. Re: Brake Indicator Lamp

During the spike stop test on our model, it was observed that the "brake indicator lamp" lit while the test driver kept depressing the service brake pedal. We studied this problem and found that as shown in the drawing its master cylinder piston can travel beyond the hole which supplies brake fluid to the rear brake cylinder, that generates the difference in the pressure of front and rear.

As the brake indicator lamp works by sensing the difference in pressure of the front and rear, this lamp becomes "on" accordingly.

(Graphics omitted)

However, this piston does not travel beyond its hole under normal operation. If this lamp should light during spike stop, this will not give any problem to the drivers because this lamp will turn out after releasing pedal force.

We would like to have your view on the acceptability of the above condition.

Sincerely yours,

H. (Speedy) Hirai -- Technical Representative, Toyo Kogyo Co., Ltd. (Mazda), Representative office

cc: V. Bloom; T. Herliny

ID: nht75-1.14

DATE: 08/08/75

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: International Business

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your June 18, 1975, question whether S5.3 of Standard No. 105-75, Hydraulic Brake Systems, requires that the brake fluid level warning system specified by S5.3.1 be instantaneous when the brake fluid level reaches the condition described in S5.3.1(b).

The answer to your question is no. The National Highway Traffic Safety Administration recognizes that a minimal interval between the occurrence of the specified condition and the appearance of the required signal is a physical fact. I enclose a copy of an interpretation of a similar requirement of Standard No. 105-75 for your information. In the case of the brake fluid level indicator, a time interval that is insignificant with respect to the time required to respond to the signal would be permissible.

Sincerely

Enclosure

ATTACH.

June 18, 1975

Department of Transportation -- National Highway Traffic Safety Administration

Gentlemen:

Specification S5.3 of Regulation FMVSS 105-75 includes a requirement of brake system indicator lamps but does not, as I read it, mention the time permitted for such devices to signal after the brake fluid has reached the "danger" level.

Must it be instaneous? If not, what time intervals at various temperatures do you consider adequate?

As a United States citizen I respectfully request your advice on this point at your early convenience.

Very truly yours,

W. J. JOYCE -- CONSULTANT, INTERNATIONAL BUSINESS

ID: nht75-1.15

DATE: 06/06/75

FROM: AUTHOR UNAVAILABLE; R. B. Dyson; NHTSA

TO: Alfred Teves GMBH

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your April 29, 1975, question whether S5.4.3 of Standard No. 105-75, Hydraulic brake systems, permits a brake fluid warning statement on a filler cap to be partially obscured by two "contact blades" on the cap which apparently are inserted into a receptacle attached to the vehicle. The description you enclose is similar to one submitted with an earlier request which we evaluated in a March 3, 1975, letter to your representative, Mr. Paul Utans.

Sections S5.4.3 (b) requires that the statement be "located so as to be visible by direct view." As noted in our March 3 letter, this requirement prohibits an arrangement which would obscure any part of the statement. We also noted that S5.4.3(b) permits a location within 4 inches of the brake fluid reservoir filler plug or cap to accommodate arrangements which do not permit use of the fuller cap as a location.

From the drawing you enclose, we conclude that the contact blades obscure part of the warning and it therefore would not comply with the requirement of S5.4.3(b). As an enforcement matter, we would find it impossible to allow a "minor noncompliance" and still be able to enforce a standard objectively. We do not consider the ability to turn the cap to expose the warning to constitute "visible by direct view."

Yours truly,

ATTACH.

ALFRED TEVES GMBH

Richard B. Dyson -- Assistant Chief Counsel, U.S. DEPT. OF TRANSPORTATION, NHTSA

April 29, 1973

Subject: Your Letter Dated March 3, 1975 to Mr. Paul Utans - N40-30 (TWH)

Dear Mr. Dyson,

In our inquiry of January 19, 1975, we informed you about 2 variants of our brake fluid reservoir filler cap with imprinted designation according to FMVSS 105-75 S. 5.4.3 asking you to examine them with regard to legality.

In your letter dated March 3, 1975 you rejected the version with contact blades displaced by 180 degrees because the fully insulated contact blades would partially obscure the statement. This design will therefore not reach the production stage. However, we intend to sell in the USA the version which only has two contact blades which are parallel to each other and are not insulated.

We believe that this design guarantees visibility of the statement by direct view which is required in S. 5.4.3. Furthermore we hold the view that this very important statement must still be visible after a 10 years' utilization in the vehicle.

According to our experience made with stickers or stamps, this requirement cannot be met since durable fixing of the warning statement cannot be ensured due to brake fluid running out and wetting of the sticker or stamp connected herewith as well as due to salt spray liquid and the like. In our opinion, such a warning statement which will not be legible after several service years, cannot be regarded as being within the meaning of this safety law.

We therefore kindly ask you to accept the stamping on the filler cap since this design ensures absolute and durable legibility. A further advantage would be that, when opening the filler cap, you automatically have to read the designation.

Finally we wish to refer to the 360 degrees turning capability of the contact blades so that the complete text can be seen at any time.

We kindly request you to re-examine our inquiry, and remain.

Yours truly,

ALFRED TEVES GMBH

(Beller)

(Dr. Strien)

Encl.:

3-04011-29

cc: P. Utans, Englewood

ID: nht75-1.16

DATE: 07/15/75

FROM: AUTHOR UNAVAILABLE; J. C. Schultz; NHTSA

TO: Toyota Motor Sales, USA, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This responds to Toyota's June 9, 1975, request for confirmation that S5.3.2 of Standard No. 10575, Hydraulic brake systems, requires a check of the brake system indicator lamp function only when the transmission shift lever (in the case of vehicles with automatic transmission) is in the "P" (park) position or the "N" (neutral) position. S5.3.2 specifies:

S5.3.2 All indicator lamps shall be activated as a check of lamp function either when the ignition (start) switch is turned to the "on" ("run") position when the engine is not running, or when the ignition (start) switch is in a position between "on" ("run") and "start" that is designated by the manufacturer as a check position.

The wording of S5.3.2 requires a check of lamp function without regard to the position of the transmission shift lever whenever the ignition switch is in one of the positions described. In the case of vehicles equipped with automatic transmission, this language does not reflect the National Highway Traffic Safety Administration's (NHTSA) intent that the check function occur during the process of starting the vehicle.

To incorporate the intended meaning of the requirement into the standard, the NHTSA will shortly issue an interpretative rule that modifies the language of S5.3.2 by limiting the check function to the park and neutral positions for vehicles with automatic transmission.

Sincerely,

ATTACH.

June 9, 1975

James B. Gregory -- Administrator, National Highway Traffic Safety Administration, U. S. Department of Transportation

Re: Interpretation of FMVSS No. 105-75

Dear Dr. Gregory:

We wish to request clarification of our interpretation of S5.3.2, Check of the Brake System Indicator Lamp Function, of FMVSS No. 105-75.

S5.3.2 reads as follows:

All indicator lamps shall be activated as a check of lamp function either when the ignition (start) switch is turned to the "on" ("run") position when the engine is not running, or when the ignition (start) switch is in a position between "on" ("run") and "start" that is designated by the manufacturer as a check position.

Our question is whether or not the indicator lamp must be activated in vehicles with automatic transmission when the neutral safety switch is open.

The neutral safety switch is installed on vehicles with automatic transmission and is designed to prevent engine starting when the transmission gear selector is in one of the positions other than P (Park) and N (Neutral).

We believe that this nonactivation of the indicator lamp when the engine cannot be started enables us to design a more reliable system without sacrificing any safety benefits.

We would very much appreciate your informing us of your opinion of our interpretation at your earliest convenience.

Thank you.

Very truly yours,

K. Nakajima -- Director/General Manager, Factory Representative Office

ID: nht75-1.17

DATE: 10/15/75

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Motor Vehicle Inspection

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your May 29, 1975, letter to Mr. Vincent Esposito of the National Highway Traffic Safety Administration (NHTSA), in which you indicate your desire that a "second independent means of stopping be made mandatory" on newly-manufactured motor vehicles.

Federal motor vehicle safety Standard No. 105-75 (49 CFR 571.105-75) becomes effective January 1, 1976, for passenger cars, and it establishes requirements for the service and parking brake systems of these vehicles (copy enclosed). The test procedures for parking brake testing specify that the service brake control be released in testing the parking brake system. This has the practical effect of requiring a separate parking brake similar to that specified by the Iowa law you cited in your letter.

Federal motor vehicle safety Standard No. 121, (49 CFR 571.121) became effective January 1, 1975, for air-braked trailers and March 1, 1975, for air-braked trucks and buses (copy enclosed). It establishes requirements for the service and parking brake systems of these vehicles. Section S5.6.4 of the standard states that "The parking brake control shall be separate from the service brake control."

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.

As noted, Standard No. 105-75 and Standard No. 121 include requirements for the parking brake control aspect of braking performance. The Federal requirements must be regarded as conclusive with regard to this aspect of performance in order to maintain the uniformity necessary in a Federal regulatory scheme. If States were permitted to impose additional requirements in an area regulated by a Federal safety standard manufacturers would be confronted with an impossible task of compliance. This reasoning formed the basis of 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 NHTSA 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 No. 105-75 in the case of passenger cars, since the aspect of performance that would be affected is covered by the Federal standard. The same is true for motorcycles, covered by Standard No. 122, Motorcycle Brake Systems, and trucks, buses, and trailers equipped with air brake systems, covered by Standard No. 121.

With regard to trucks, buses, and multipurpose passenger vehicles that are equipped with hydraulic brake systems, the NHTSA is in the process of developing a hydraulic brake standard. I have forwarded a copy of your letter to the NHTSA Office of Crash Avoidance for consideration in developing the standard in this area.

SINCERELY,

May 29, 1975

Vincent J. Estosito, Director Office of Vehicle Safety Research and Development U.S. Department of Transportation National Highway Traffic Safety Administration

A letter from Mr. George W. Crise of Danville, Ohio that was sent to Mr. Robert F. Tyson, Director of Office of Planning and Programming, Des Moines, Iowa has been referred to this office.

It called our attention that the 1975 cars and trucks are being built without a second means of stopping feature as required by the laws of Ohio and other states.

I have enclosed a copy of the Iowa statutes pertaining to brake requirements and brake performance which clearly indicates that the Iowa law specifies two seperate means of applying the brakes. Each of which means shall be affective to apply the brakes to at least two wheels. If these two seperate means of applying the brakes are connected in any way, they shall be so constructed that failure of one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two wheels.

I was not aware that the 1975 model cars and trucks were not equipped with the means to comply with the Iowa statute.

It is our desire that a second independent means of stopping be made mandatory on new motor vehicles.

Lowell E. Schellhase Supervisor Motor Vehicle Inspection

BRAKES

(Illegible Words) Brake requirements.

Every motor vehicle, other than a motorcycle, when operated upon highway shall be equipped with brakes adequate to control the (Illegible Words) of and to stop and hold such vehicle, including two separate (Illegible Word) the brakes, each of which means shall be effective (Illegible Word) the brakes to at least two wheels. If these two separate means applying the brakes are connected in any way, they shall be so (Illegible Word) that failure of any one part of the operating mechanism shall (Illegible Word) the motor vehicle without brakes on at least two wheels.

Every motorcycle, and bicycle with motor attached, when operated a highway shall be equipped with at least one brake, which may be (Illegible Word) by hand or foot.

Every trailer or semitrailer of a gross weight of three thousand (Illegible Word) or more, and every trailer coach or travel trailer of a gross (Illegible Word) of three thousand pounds or more intended for use for human (Illegible Word) shall be equipped with brakes adequate to control the (Illegible Word) and to stop and hold such vehicle, and so designed as to be (Illegible Word) by the driver of the towing motor vehicle from its cab, or with (Illegible Word) brakes, and weight equalizing hitch with a sway control type approved by the commissioner of public safety. Every (Illegible (Illegible Words) travel trailer, or trailer coach of a gross weight of three thousands or more shall be equipped with a separate, auxiliary means (Illegible Word) the brakes on the semitrailer, travel trailer, or trailer from the cab of the towing vehicle. This Act shall apply to all and used travel trailers sold at July 1, 1971 and on all registered (Illegible Word) trailers after December 1, 1973. Trailers or semitrailers with (Illegible Word) or truck tractor need only comply with the brake requirements. Except as otherwise provided in this chapter, every new motor (Illegible Word) trailer, or semitrailer hereafter sold in this state and operated the highways shall be equipped with service brakes upon all wheels every such vehicle with the following exceptions:

Any motorcycle. Any trailer or semitrailer of less than three thousand pounds gross (Illegible Word) need not be equipped with brakes.

Trucks and truck tractors having three or more axles need not brakes on the front wheels, except that such vehicles equipped two or more front axles shall be equipped with brakes on at least of such axles; provided that the service brakes of such vehicle (Illegible Word) with the performance requirements of section 321.431.

Only such brakes on the vehicle or vehicles being towed in a driveaway-towaway operation need be operative as may be necessary be necessary to insure compliance by the combination of vehicles with the performance requirements of section 321.431. The term "driveaway-towaway" operation as used in this subsection means any operation in which any motor vehicle or motor vehicles, new or used, constitute the commodity being transported, when one set or more of wheels of any such motor vehicle or motor vehicles are on the roadway during the course of transportation, whether or not any such motor vehicle furnishes the motive power.

Referred to in sections 321.181, 321.196, 321.210, 321.464, subsection 1

321.431 Performance ability

1. The service brakes upon any motor vehicle or combination of motor vehicles, when upon dry asphalt or concrete pavement surface free from loose material where the grade does not exceed one percent, when traveling twenty miles an hour shall be adequate:

a. To stop such vehicle or vehicles having a gross weight of less than five thousand pounds within a distance of thirty feet.

b. To stop such vehicle or vehicles having a gross weight in excess of five thousand pounds within a distance of forty-five feet.

2. Under the above conditions the hand brake shall be adequate to hold such vehicle or vehicles stationary on any grade upon which operated.

3. Under the above conditions the service brakes upon a motor vehicle equipped with two-wheel brakes only, and when permitted hereunder shall be adequate to stop the vehicle within a distance of forty-five feet and the hand brake adequate to stop the vehicle within a distance of fifty-five feet.

4. All braking distances specified in this section shall apply to all vehicles mentioned, whether such vehicles are not loaded or are loaded to the maximum capacity permitted under this chapter.

5. All brakes shall be maintained in good working order and shall be so adjusted as to operate as equally as practicable with respect to the wheels on opposite sides of the vehicle.

(Illegible Words)

MISCELLANEOUS EQUIPMENT

321.432 Horns and warning devices. Every motor vehicle when operated upon a highway shall be equipped with a horn in good working order and capable of emitting sound audible under normal conditions from a distance of not less than two hundred feet, but no horn or other warning device shall emit an unreasonably loud or harsh sound or a whistle. The driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use such horn when upon a highway.

ID: nht75-1.18

DATE: 12/31/75

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Motor Vehicle Manufacturers Association

TITLE: FMVSS INTERPRETATION

TEXT: This is in further response to your letter of November 12, 1975, asking whether this agency considers Standard 105-75 on hydraulic braking systems to be preemptive of State regulations concerning brake wear warning devices. You asked the question in light of the proposed uniform State regulation requiring such devices recently adopted by the Vehicle Equipment Safety Commission.

There are presently no requirements in the Federal motor vehicle safety standards dealing directly with the subject of brake wear indicators or warning devices. The question, therefore, becomes whether the Federal safety standards on braking performance were intended generally to cover this aspect of performance, analogously to the situation in which Standard 108 was held to be preemptive in Motorcycle Industry Council v. Younger, No. CIV S74-126 (E. D. Cal. 1974). The guiding rule, as set forth by the U. S. Supreme Court in Florida Lime & Avocado Growers v. Paul, 373 U. S. 132, 141-142 (1963), is "whether both regulations can be enforced without impairing federal superintendence of the field." Under the accepted doctrines as set forth in cases such as Thorpe v. Housing Authority of Durham, 393 U. S. 268 (1969), and Chrysler v. Tofany, 419 F.2d 499, 511-12 (2d Cir. 1969), the interpretation of this question by the administering agency is "of controlling weight unless it is plainly erroneous or inconsistent with the regulation."

The NHTSA has determined that the issuing of requirements for brake wear indicators by the States does not conflict with or otherwise impair our present regulation of braking systems, and that brake wear indicators are not within the intended scope of the present Federal safety standards. We therefore conclude that the existing standards are not preemptive of such State regulations. You should be aware that the agency is actively proceeding with rulemaking development work in this area, and may within the next year issue requirements that would alter these legal relationships.

SINCERELY,

MOTOR VEHICLE MANUFACTURERS ASSOCIATION

November 12, 1975

Dr. James B. Gregory, Administrator National Highway Traffic Safety Administration

Re: Request for Statement of Scope of Braking Standards; Proposed Uniform State Brake Component Wear Warning Regulation

The Motor Vehicle Manufacturers Association of the United States, Inc. (MVMA) requests a statement by the National Highway Traffic Safety Administration of the preemptive effect of Federal Motor Vehicle Safety Standards 105, 105-75, and 121, in light of Section 103(d) of the National Traffic and Motor Vehicle Safety Act of 1966. MVMA believes that those standards preempt any state statute or regulation implementing the proposed uniform state regulation requiring brake wear warning devices recently adopted by the Vehicle Equipment Safety Commission. Briefly, that regulation would require that manufacturers of all highway use vehicles except motorcycles, trailers and semi-trailers provide a "visible, audible or tactile signal" when brake friction materials are worn to the discard point. (A copy of the VESC regulation is appended to this letter. The copy is of the draft prepared by the VESC for its annual meeting on July 30, 1975, which was adopted without substantial amendment on that date.)

Forty-two states and the District of Columbia are now members of the VESC. Under the terms of the Vehicle Equipment Safety Compact, "each party state obligates itself to give due consideration to any and all rules, regulations and codes issued by the Commission and hereby declares its policy and intent to be the promotion of uniformity in the laws of the several party states relating to equipment." A copy of the Vehicle Equipment Safety Compact is also appended.

MVMA includes in its membership manufacturers of more than 99% of the motor vehicles made in the United States. Our members are vitally affected by both Federal and state regulation of motor vehicles.

MVMA believes that state legislation or regulation incorporating this proposed brake wear warning device requirement is preempted by presently effective Federal motor vehicle safety standards which govern brake performance of affected vehicles; i.e., FMVSS 105 and 121. We urge the Administrator to publish a clear statement in the Federal Register, addressing this preemption issue and asserting that under the authority of Section 103(d) of the Safety Act, such legislation or regulation is preempted by these standards. MVMA believes that the issue raised here is as important as the question raised by the Japan Automobile Manufacturers Association on state enforcement policies, which occasioned the Administration to publish a strong preemptive statement in the Federal Register on June 2, 1971 (36 FR 10744).

Summary of Legal Issues

We believe that a brief review of the treatment given to the preemption question in the National Traffic and Motor Vehicle Safety Act is appropriate.

Section 103(d) of the Act (15 USCA Section 1392(d)) provides:

"(d) Whenever a Federal motor vehicle safety standard established under this title is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal Standard. Nothing in this section shall be construed to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard."

The express statutory inclusion of such a preemption provision is relatively unusual. The statute does not broadly permit states to establish or enforce identical standards; it prohibits standards which are not identical to Federal standards. Congress made plain the necessity for Federal preemption and the broad reach the preemption provision was to have. For example, the Senate Report (S. Rep. No. 1301, 89th Cong., 2d Sess., 1966) stressed the paramount Federal Role (page 4):

"Out of the committee's hearings, there emerged a clear outline of the basic needs to be served by Federal legislation:

"1. The promotion of motor vehicle safety through voluntary standards has largely failed. The unconditional imposition of mandatory standards at the earliest practicable date is the only course commensurate with the highway death and injury toll.

"2. While the contribution of the several States to automobile safety has been significant, and justifies securing to the States a consultative role in the setting of standards, the primary responsibility for regulating the national automotive manufacturing industry must fall squarely upon the Federal Government." [Emphasis added]

The Senate Report also explained why preemption was needed to insure uniformity (page 12):

"The centralized, mass production, high volume character of the motor vehicle manufacturing industry in the United States requires that motor vehicle safety standards be not only strong and adequately enforced, but that they be uniform throughout the country. At the same time, the committee believes that the States should be free to adopt standards identical to the Federal standards, which apply only to the first sale of a new vehicle, so that the States may play a significant role in the vehicle safety field by applying and enforcing standards over the life of the car. Accordingly, State standards are preempted only if they differ from Federal standards applicable to the particular aspect of the vehicle of item of vehicle equipment (sec. 104)." [Emphasis added.]

The House Report (H.R. Rep. No. 1776, 89th Cong., 2d Sess., 1966) makes a similar statement. See page 11 where the House Report emphasizes the need for national solution of this "nationwide problem", and see also the emphasis on uniformity at page 17 -- "this preemption subsection is intended to result in uniformity of standards so that the public as well as industry will be guided by one set of criteria rather than by a multiplicity of diverse standards."

In view of this legislative history of Section 103(d), it is clear that the comprehensive attention which the National Highway Traffic Safety Administration has given to brake systems and components in the formulation of Standards 105 and 121 preempts the regulation which the Vehicle Equipment Safety Commission now proposes for legislative or regulatory adoption by member states.

The currently effective Federal standard on hydraulic brake systems, FMVSS No. 105 (49 CFR S 571.105), states in its "Purpose and scope" section that it specifies requirements for ". . . brake systems intended to ensure adequate braking performance under normal and emergency conditions." The National Highway Traffic Safety Administration has taken the position that the purpose and scope provision of a Federal standard defines the aspect of performance covered -- see 35 Fed. Reg. 18000, November 24, 1970. The aspect of performance thus stated in FMVSS No. 105 necessarily embraces what the VESC now proposes as State law or regulation. Although FMVSS 105 does not deal in specific detail with all of the components of a hydraulic brake system, this system approach follows the Congressional expectation of how the Federal standards should operate. * Moreover, in addition to its system approach "to ensure adequate braking performance", FMVSS No. 105 specifically addresses failure of the system and requires a system effectiveness warning indicator light (@ 4.2.2). That requirement alone leaves no room for State adoption of a different warning requirement such as the VESC now proposes.

* For example, the Senate Report states at page 6:

"Unlike the General Services Administration's procurement standards, which are primarily design specifications, both the interim standards and the new and revised standards are expected to be performance standards, specifying the required minimum safe performance of vehicles but not the manner in which the manufacturer is to achieve the specified performance (sec. 101(b)). Manufacturers and parts suppliers will thus be free to compete in developing and selecting devices and structures that can meet or surpass the performance standard.

"The Secretary would thus be concerned with the measurable performance of a braking system, but not its design details. Such standards will be analogous to a building code which specifies the minimum loadcarrying characteristics of the structural members of a building wall, but leaves the builder free to choose his own materials and design. Such safe performance standards are thus not intended or likely to stifle innovation in automotive design."

FMVSS No. 105-75 becomes effective on January 1, 1976. This standard has been under intense consideration by the Administration and by industry since 1968. In the course of that consideration the NHTSA considered and rejected matters which are pertinent here. For example, the Administration had proposed that brakes be installed so that the lining thickness of drum brake shoes and brake pads could be visually inspected without removing the drums or pads. Subsequently the Administration decided to abandon that proposal (37 Fed. Reg. 17972, September 2, 1972). The Administration has also stated that FMVSS No. 105 would provide consumers "with braking systems that have been optimized with respect to safety, performance, and cost," (38 Fed. Reg. 3047, February 1, 1973).

For any state now to enact an additional warning requirement would fly in the teeth of FMVSS No. 105-75. Such action would make a mockery of the uniformity which Congress said was necessary in adopting the preemption provision of the National Safety Act.

Also relevant is FMVSS No. 121, Air Brake Systems (49 CFR S 571.121). This standard "establishes performance and equipment requirements for braking systems on vehicles equipped with air brake systems." Its stated purpose "is to insure safe braking performance under normal and emergency conditions." Standard 121 clearly is a comprehensive set of requirements encompassing every aspect of performance of air brake systems. Section 5.1.4, Section 5.1.5, and Section 5.1.6 provide requirements for gauges and warning signals. It would be anomalous indeed if various states were now permitted to require additional warning devices to be added to the system.

General Motors Corporation, a member of MVMA, has informed MVMA of a determination of preemption that was made on May 2, 1975, by Mr. James Schultz, then Chief Counsel of the NHTSA, in a letter to Mr. Frazer F. Hilder, General Counsel of General Motors Corporation. General Motors, in its letter of March 21, 1975, questioned the supplemental air brake performance requirements of the Massachusetts and New Jersey Departments of Public Utilities and indicated that those requirements were not identical to FMVSS No. 121 requirements.

Briefly, the Massachusetts statute and regulations required that all braking systems be constructed and designed to permit release by the operator from the normal operating position. Although FMVSS No. 121 requires the parking brake system to be operable after failure of both the service and emergency brake systems (@ 5.7.2.2), it does not expressly address the issue of how release of the parking brake should be made.

The New Jersey "autobus" regulation required an automatic emergency brake system as contrasted to the optional automatic or modulated system permitted in S5.7 of FMVSS No. 121. In addition, the New Jersey stopping distances for service and emergency brakes were not identical to the requirements of FMVSS No. 121.

In his May 2, 1975 answer to General Motors' request for a determination of preemption, Mr. Schultz stated in part as follows:

"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 brake performance. [Emphasis supplied.]"

In the course of extensive rulemaking for the development of Standards 105 and 121, the NHTSA has made its intention clear that those standards cover every aspect of braking performance on the vehicles to which they apply. In view of that expressed intention, a recent decision of the United States District Court for the Eastern District of California is germane. The case is Motorcycle Industry Council, Inc. et al v. Younger, et al No. CIV. S74-126, decided September 23, 1974. The Court reviewed a California statute requiring that motorcycles be wired so that headlamps would be lit whenever engines were running. The Court held that the statute related to the same "aspect of performance" as does FMVSS 108 and therefore was preempted.

In your letter of November 8, 1973 to Mr. W. Pudinski of the Department of California Highway Patrol concerning the preemptive effect of FMVSS No. 108 upon that California statute you stated as follows:

"The implication of the California opinion is that any mode of design or performance that is not expressly dealt with in the Federal standard is open to regulation by the states. Such a position is impractical, where the Agency's intent is to have a comprehensive, uniform regulation in a given area . . . . Congress clearly intended the NHTSA to establish a single set of uniform standards to which manufacturers must comply, and that intent would tend to be defeated by the position taken in the California opinion. Federal regulation has a negative as well as a positive aspect; in determining that there should be certain requirements in an area, we also are deciding against imposing others. The only way to effectuate such a decision is to declare, as we have done here, that our regulation is intended to be exclusive, and to describe as necessary its outer limits." [Emphasis supplied.]

In light of the legislative history, and the administrative and judicial interpretations of Section 103(d) of the Safety Act, Standards 105 and 121 appear clearly to be comprehensive and exclusive requirements covering all aspects of hydraulic and air brake system performance. The omission from those standards of an express requirement for an audible or visual wear signalling device does not permit a State to impose such a requirement.

MVMA urges that the NHTSA promptly publish a statement that state adoption and enforcement of the VESC's brake wear warning regulation is preempted by Federal standards.

We appreciate your consideration of this request.

Thomas H. Hanna

CC: RICHARD B. DYSON; FRANK A. BERNDT

ID: nht75-1.19

DATE: 10/28/75

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Toyota Motor Sales, USA, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This responds to Toyota's September 5, 1975, request for confirmation that the brake warning indicator labeling requirements in Standard No. 105-75, Hydraulic Brake Systems, permit the use of "PARK" and "SERVICE BRAKE" but prohibit the use of "PARK" and "BRAKE" as labeling for use on two indicator lamps, one signaling the condition of the parking brake system and the other signaling two or more functions of the service brake system. The relevant requirements of S5.3.5 of the standard state:

. . . . If a single common indicator is used, the lens shall be labeled "Brake." If separate indicator lamps are used for one or more of the various functions described in S5.3.1(a) to S5.3.1(d), the lens shall include the "Brake" and appropriate additional labeling (use "Brake Pressure," "Brake Fluid" for S5.3.1(a) and S5.3.1(b)) except that if a separate parking indicator lamp is provided, the single word "Park" may be used.

You are correct that S5.3.5 prohibits the use of one indicator labeled "PARK" with another indicator labeled "BRAKE". "PARK" may be used for a separate indicator of the parking brake condition, but only if the other indicator or indicators of brake system condition use the word "Brake" with appropriate additional labeling.

You asked if the designation "SERVICE BRAKE" would be a permissible label on an indicator separate from the "PARK" indicator. The designation would be permissible so long as it describes two or more of the conditions listed in S5.3.1(a), (b), or (c). You will note that S5.3.5 has specific labeling requirements for an indicator which signals only one condition in the case of 1(a), 1(b), and 1(d). In the case of S5.3.1(c), "SERVICE BRAKE" would not be appropriate labeling for the antilock function.

September 5, 1975

Dr. James B. Gregory, Administrator National Highway Traffic Safety Administration U. S. Department of Transportation 400 Seventh Street, S. W. Washington, D. C. 20590

Re: Interpretation of FMVSS No. 105-75, S5.3.5

Dear Dr. Gregory:

We wish to request clarification of our interpretation of S5.3.5, "Brake System Indicator Lamps," of FMVSS No. 105-75, "Hydraulic Brake Systems."

In S5.3.5 it reads as follows: ". . . If a single common indicator is used, the lens shall be labeled "Brake." If separate indicator lamps are used for one or more of the various functions described in S5.3.1(a) to S5.3.1(d), the lens shall include the word "Brake" and appropriate additional labeling (use "Brake Pressure," "Brake Fluid" for S5.3.1(a) and S5.3.1(b)) except that if a separate parking indicator lamp is provided, the single word "Park" may be used . . . ."

As we interpret it, this requirement does not prohibit the use of a separate indicator lamp for the parking brake labeled "Park" and one for the rest of the brake systems labeled "Service Brake." However, it does prohibit the simultaneous use of two separate indicator lamps labeled "Park" for the parking brake and "Brake" (without any additional labeling) for the other brake system functions, such as those described in S5.3.1(a) and S5.3.1(b).

We would appreciate your informing us of your opinion of our interpretation at your earliest convenience.

Very truly yours, TOYOTA MOTOR SALES, U.S.A., INC.

K. Nakajima Director/General Manager Factory Representative Office

KN:mc

ID: nht75-1.2

DATE: 02/24/75

FROM: AUTHOR UNAVAILABLE; R. B. Dyson; NHTSA

TO: Volkswagen of America, Inc.

TITLE: FMVSS INTERPRETATION

TEXT:

N40-30 (TH) FEB 24 1975

Mr. J. W. Kennebeck Volkswagen of America, Inc. Englewood Cliffs, New Jersey 07632

Dear Mr. Kennebeck:

This responds to Volkswagen of America's January 24, 1975, request for written confirmation that S5.3.3 of Standard No. 105-75, Hydraulic brake systems, only requires indication of a low fluid level condition (S5.3.1(b)) with the vehicle on a level surface, but that, in the event of a decrease in this fluid level (and apparent fluid volume) due to positioning the vehicle on an incline, the indicator lamp is permitted to activate and then deactivate when the vehicle is repositioned on a level surface.

Your understanding of the requirements of S5.3.3. for indication of a low fluid level condition (S5.3.1(b)) is correct. S5.3.3 requires low fluid level indication with the vehicle on a level surface, and an activation due only to positioning on an incline may be extinguished when the vehicle is again placed on a level surface.

Yours truly,

Richard B. Dyson Assistant Chief Counsel

ID: nht75-1.20

DATE: 08/21/75

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Toyoda Gosei Co., Ltd.

TITLE: FMVSS INTERPRETATION

TEXT: Please forgive the delay in responding to your letter of April 25, 1975, which questioned our interpretation of March 13, 1975, of the adhesion requirement of S7.3.7 of Federal Motor Vehicle Safety Standard No. 106-74, Brake Hoses.

Our interpretation was that the requirement applies to each pair of adjacent layers of a brake hose. Multilayer hose manufactured in the United States and Europe is in fact made with bonding between all pairs of adjacent layers. There is no change in our interpretation.

ID: nht75-1.21

DATE: 03/13/75

FROM: AUTHOR UNAVAILABLE; J. C. Schultz; NHTSA

TO: Toyoda Gosei Co., Ltd.

TITLE: FMVSS INTERPRETATION