Interpretation ID: nht90-2.94

TYPE: Interpretation-NHTSA

DATE: June 22, 1990

FROM: Lawrence F. Henneberger -- Arent, Fox, Kintner, Plotkin & Kahn

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: Re Request for Interpretation

ATTACHMT: Attached to Ford Bulletin number 10 dated 12-15-89 entitled Splicing Into The Stop Lamp Electrical Circuit, signature by R.R. Chestnut; Also attached to memo dated 6-6-90 from Tekonsha Engineering Company; Also attached to letter dated 8-31-78 from J.J. Levin, Jr. to L.F. Henneberger; Also attached to letter dated 5-2-84 from F. Berndt to L.F. Henneberger; Also attached to letter dated 11-30-81 from F. Berndt to K.G. Moyer (A23; Std. 108; Redbook 3); Also attached to letter dated 9-10-90 from P.J. Rice to L.F. Henneberger (A36; VSA Sec. 103 (d); Std. 108)

TEXT:

I am submitting this request for interpretation on behalf of my client, Echlin Inc. and more specifically Tekonsha Engineering Company, a subsidiary of Echlin, concerning a California Vehicle Code lighting provision which, in our view, conflicts with and is preempted by Federal Motor Vehicle Safety Standard (FMVSS) 108.

The respective NHTSA and California requirements at issue are subparagraph S5.5.4 of FMVSS 108 and subparagraph 24603(f) of the California Vehicle Code. These provisions are reproduced in juxtaposition at Attachment A to this letter. Essentially, the conflict arises from the California Highway Patrol's (CHP) interpretation of 24603(f) as requiring the activation of a vehicle's stop lamps upon the application of the manual emergency override for use in controlling trailer sway.

Tekonsha believes that the California provision is at odds with S5.5.4 of FMVSS 108 since its hand controlled emergency device (a) is not intended to and in the usual case, does not result in diminished vehicle speeds; (b) does not involve application of the vehicle's service brakes; (c) if connected to the stop lamps, would provide an unsafe, false braking signal; and (d) by not being connected to the stop lamps, eliminates other unsafe conditions caused by electrical interference.

BACKGROUND

Tekonsha has recently developed and introduced into the market a new generation, "state of the art" product known as the Commander Electronic Brake Control specifically designed to avoid splicing into the stop lamp switch circuit. This new development eliminates electrical interference including interference which causes serious safety problems. Electrical interference can, for example, prevent the speed control from disengaging upon braking, or deactivate antilock brake system operation. See Ford Motor Company Bulletin No. 10 (December 15, 1989) and Tekonsha product memorandum (June 6, 1990), both enclosed, respectively, as Attachments B-1 and B-2.

The Commander brake control permits the driver of a vehicle to use the hand control to override the trailer brakes in an emergency mode to

control swaying. In this emergency condition, the Commander brake control does not send out false signals because it is not connected into the stop lamp switch circuit. It is not the intention of the driver in controlling sway to stop or diminish speed. Therefore, by definition, the stop lamps should not be activated.

REGULATORY APPLICATION

Subparagraph S5.5.4 of FMVSS 108 provides that the "stop lamps on each vehicle shall be activated upon application of the service brakes." A review of the applicable SAE Standard, SAE J586 FEB84 (currently referenced by FMVSS 108), provides, at S2.1 of the SAE standard, a definition of "stop lamps" as "lamps giving a steady light to the rear of a vehicle to indicate the intention of the operator of a vehicle to stop or diminish speed by braking."

Indeed, previous interpretations of NHTSA have restricted stop lamp activation to vehicle functions which involve deceleration of the vehicle. See, e.g., the agency's two interpretations to the undersigned on behalf of Jacobs Manufacturing Company, by letters dated August 31, 1978 (Attachment C-1), and May 2, 1984 (Attachment C-2).

Subparagraph S5.1.3 of FMVSS 108 provides, in part, that "no additional ... motor vehicle equipment shall be installed that impairs the effectiveness of lighting equipment required by this standard." In a November 30, 1981, letter of interpretation issued by NHTSA's Chief Counsel to Mr. Kenneth Moyer, the agency emphasized that a motor vehicle device which activated the stop lamps "under a condition indicating an intent other than (to stop or diminish speed by braking) ... could impair the effectiveness of the stop lamps." The 1981 interpretation letter went on to state that NHTSA considered "any use of required lighting equipment for a purpose other than as defined, as an 'impairment'" precluded by what is presently subparagraph S5.1.3 of Standard 108 in the case of original equipment, and as a violation of the National Traffic and Motor Vehicle Safety Act as a device which would "render ineffective in whole or in part" required lighting equipment, in the case of an aftermarket device.

In strong language which we believe is directly applicable to CHP's attempted stop lamp indication requirement here, NHTSA, in its November 1981 interpretation letter, underscored its position that a stop lamp, under FMVSS 108, must operate in such a way as to indicate the intention of the vehicle operator to stop or diminish speed by braking.

"We are especially concerned that a high rate of 'false alarms' may lead to a decrease in the overall warning value of the stop lamp signal itself, i.e., the 'cry wolf' phenomenon. This could lead to a significant reduction in the effectiveness of any proposed system."

The November 30, 1981, interpretation letter is included in our submission as Attachment D.

Subparagraph 24603(f) of the California Vehicle Code provides that "stoplamps shall be activated on application of the service (foot) brake and the hand control head for air, vacuum, or electric brakes." The

ambiguous drafting and resulting difficulties of interpreting a conjunctive provision such as the foregoing notwithstanding, CHP has taken the position that the cited clause mandates application of the stop lamps when the Commander Electronic Brake Control manual emergency override is used, even though the service brakes are not applied at the time. Besides the potential safety hazards presented by stop lamp circuit connection with the override as outlined above, this condition, which is typically intended to control trailer sway and not "to stop or diminish speed by braking," presents a false braking signal to following vehicles. By logical extension, the CHP position could require stop lamp indication for any of a myriad of vehicle activities and functions, none of which is related to vehicular braking or deceleration.

Tekonsha submits that the CHP position frustrates and is totally at odds with the plain wording and underlying intent of subparagraph S5.5.4. In the situation under review, the service brakes are not in the applied position and the vehicle is not in a stopping mode because it is not subject to any decelerating mechanism of the braking system. Under these circumstances, Tekonsha believes that the CHP position with respect to California vehicle Code subsection 24603(f) results in the California standard's being substantively dissimilar to FMVSS 108 on the same aspect of motor vehicle equipment performance and as such, preempted by the application of Section 103(d) of the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. S1392(d).

CONCLUSION

For the reasons as set forth, Tekonsha respectfully requests an interpretation confirming its view that subparagraph 24603(f) of the California Vehicle Code is preempted by S5.5.4 of FMVSS 108 to the extent that the former mandates stop lamp activation for a vehicular function such as the Commander Electronic Brake Control manual emergency override, which is unrelated to stopping activity and intended to assist in controlling a swaying trailer under emergency conditions without application of the service brakes.

We appreciate your consideration of our request for interpretation, and encourage you to contact the undersigned, should questions remain.

FMVSS 108 S S5.5.4

The stop lamps on each vehicle shall be activated upon application of the service brakes. The highmounted stop lamp on each passenger car shall be activated only upon application of the service brakes.

California Vehicle Code S 24603(f)

Stoplamps shall be activated upon application of the service (foot) brake and the hand control head for air, vacuum, or electric brakes....