Interpretation ID: 22837ogm

Mr. James Arnold
MAC Trailer Manufacturing Inc.
14599 Commerce Street
Alliance, OH 44601

Dear Mr. Arnold:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 121, Air Brake Systems (49 CFR 571.121). You indicate that your company manufactures truck trailers for highway use. Your letter further indicates that a number of your dealers have asked that your company produce trailers equipped with a certain item of equipment to satisfy the antilock brake systems (ABS) requirements of FMVSS No. 121. The device in question, marketed by its manufacturer Air Brake Systems, Inc. (ABS, Inc.) as the MSQR-5000, is described in promotional material from ABS, Inc. as a "Differential Pressure Regulator Quick Release Valve." You have also attached a document from ABS, Inc. that contains a number of representations relating to the ABS requirements of FMVSS No. 121 and concludes as follows:

Air Brake Systems Inc. hereby certifies that the MSQR-5000^TM anti-lock brake system fully satisfies the definition of anti-lock brakes as required by 49 CFR 571.121 and exceeds the performance requirements of 49 CFR 30113(b)(3)(B)(ii). (Warning light excluded thereto.) ABS Brakes, Inc. Mt. Pleasant, MI 48858 USA

Based on the aforementioned materials, you ask if a trailer equipped with the MSQR-5000 "system" installed as means of meeting ABS requirements would meet the requirements of FMVSS No. 121.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicle or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with applicable safety standards. With certain exceptions related to special configurations, FMVSS No. 121 applies to vehicles - trucks, buses, and trailers - with air brake systems.

As an equipment manufacturer, ABS, Inc., is not required to certify compliance of its product to FMVSS No. 121, but any vehicle manufacturer would be required to certify that its vehicle complies with all the requirements of FMVSS No. 121. It is not uncommon for a vehicle manufacturer to request information from an equipment manufacturer. However, the responsibility for compliance with FMVSS No. 121 and for certification of compliance rests with the vehicle manufacturer. As we have stated before, it is our opinion that reliance by a vehicle manufacturer solely on "certification of compliance" provided by an equipment manufacturer, without more, is not legally sufficient. Moreover, should it be determined that a vehicle does not comply with a Federal motor vehicle safety standard or contains a defect, the recall and remedy obligations of the National Traffic and Motor Vehicle Safety Act would fall upon the vehicle manufacturer and not the equipment manufacturer which supplied particular equipment. See 49 CFR Part 579. Possible liability in tort under state law could fall upon both the vehicle manufacturer and the equipment manufacturer. A private attorney could advise you about this possibility.

The following represents our opinion based on the facts presented in your letter, the attachments provided with your letter and agency review of other data obtained from ABS, Inc.

In marketing and selling the MSQR-5000, ABS, Inc., has represented, in advertisements, promotional materials and in direct contact with potential customers, that the MSQR-5000 is an ABS whose installation in a vehicle will result in the vehicle meeting the ABS requirements of FMVSS No. 121 (49 CFR 571.121). The configuration of the MSQR-5000 and the fact that the device has no electrical or electronic components has apparently led some potential customers of ABS, Inc. to ask NHTSA if the MSQR-5000 is a device which, if installed on a vehicle, would allow that vehicle to meet the ABS requirements of FMVSS No. 121. As discussed below, based on a review of the promotional materials describing the device and the principles involved in its operation, it is NHTSA's view that the installation of the MSQR-5000 alone would not allow a vehicle to meet FMVSS No. 121's ABS requirement.

Among other things, FMVSS No. 121 requires that trailers (S5.2.3) and trucks (S5.1.6) be equipped with an ABS. For the purposes of FMVSS No. 121, ABS is defined in S4 of the standard as follows:

Antilock brake system or ABS means a portion of a service brake system that automatically controls the degree of rotational wheel slip during braking by:

(1) Sensing the rate of angular rotation of the wheels;

(2) Transmitting signals regarding the rate of wheel angular rotation to one or more controlling devices which interpret those signals and generate responsive controlling output signals; and

(3) Transmitting those controlling signals to one or more modulators which adjust brake actuating forces in response to those signals.

In addition, in order to ensure that vehicle owners and operators have knowledge of the status of an ABS system installed on a truck, truck tractor or trailer, FMVSS No. 121 also contains extensive and detailed requirements for malfunction indicators that illuminate a light when the ABS is not working properly. These requirements, found in S5.1.6.2, S5.1.6.3 and S5.2.3.2, specify that a truck, truck tractor or trailer must have an electrical circuit that is capable of signaling a malfunction in the vehicle's antilock brake system, and must have the means for connection of this antilock brake system malfunction signal circuit to a trailer or towing vehicle. Such a signal must be present whenever there is a malfunction that affects the generation or transmission of response or control signals in the antilock brake system. The signal must remain present as long as the malfunction exists, whenever power is supplied to the antilock brake system, and each message about the existence of such a malfunction must be stored in the antilock brake system whenever power is no longer supplied to it.

The ABS requirements of FMVSS No. 121 were incorporated into the standard by a final rule published in the Federal Register on March 10, 1995 (60 FR 13216). In the preamble to that final rule, the agency noted that 10 to 15 percent of heavy combination vehicle crashes involved braking induced instability or loss of control. These crashes resulted in significant property damage, injury and loss of life. In order to address the safety consequences of braking related instability, NHTSA amended FMVSS No. 121 to require effective antilock braking systems.

One of the primary considerations in developing the new requirements was what, at a minimum, an antilock braking system must do in order to prevent or reduce crashes. The agency determined that due to the wide range of surfaces a vehicle may encounter in normal use, an effective ABS system must have the ability to determine if and when a braked wheel is momentarily locked as it passes from high to low traction conditions. Because of such varying conditions, the agency determined that any effective ABS must be a "closed loop" system - i.e., a system that continuously monitors the rate of wheel rotation, adjusts that wheel rotation when needed and reacts to ongoing changes in rotation caused by the operation of the system, changing road surfaces or both (60 FR 13217). Similarly, NHTSA determined that warning light requirements that established a minimum level of safety were also important for reducing crashes, deaths and injuries. The warning light requirements would inform operators of an ABS malfunction and both facilitate and encourage repairs of faulty ABS systems (60 FR 13244).

The MSQR-5000 appears to lack one or more features that an ABS must have to meet FMVSS No. 121. Based on literature provided to us, the MSQR-5000 does not seem to have any means of automatically controlling wheel slip during braking by sensing, analyzing, and modulating the rate of angular rotation of a wheel or wheels. The components identified and described in the MSQR-5000 promotional materials do not have a means for measuring wheel rotation, recognizing wheel lockup, controlling or modulating brake pressure to a locked wheel, or preventing one or more wheels from locking if a driver applies maximum brake pressure to the system. Therefore, standing alone, the MSQR-5000 does not satisfy the definition of ABS as set forth in FMVSS No. 121.

In addition, the MSQR-5000 also appears to lack any provision for illuminating a warning light providing notification of an ABS malfunction. In fact, the materials distributed by ABS, Inc., including the "Certification of Compliance, "indicate that the company believes that the ABS warning light requirements of FMVSS No. 121 are "excluded"by virtue of a decision issued by the United States Court of Appeals for the 10^th Circuit in the case of Washington v. Department of Transportation, 84 F.3d 1222 (1996).

The Washington case involved a challenge to the validity of FMVSS No. 121's ABS requirements on two grounds - that the requirements conflicted with existing Federal Highway Administration regulations governing motor carriers and that NHTSA exceeded its authority in issuing the rule by establishing that an ABS must have certain characteristics. Mr. Washington argued that the requirement that an ABS have certain minimum characteristics unduly restrained design choices. The Court of Appeals ruled in favor of NHTSA in regard to both of these claims. Moreover, while the Court's decision discussed the fact that manufacturers may apply for an exemption from an existing standard or petition the agency to modify an existing standard, the decision did not provide for any such exemption or "exclusion"for ABS, Inc., or any other manufacturer. The claims now made by ABS, Inc. - that the ABS warning light requirements of FMVSS No. 121 were "excluded,"or that ABS, Inc. is exempt from meeting this requirement - are incorrect. Similarly, any assertion that the Court of Appeals found that FMVSS No. 121 unduly restricted design choices is in error.

If you have any questions, please contact Otto Matheke of my staff at (202) 366-5253.

Sincerely

John Womack
Acting Chief Counsel

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