Interpretation ID: SEMA

Mr. Stephen B. McDonald

Vice President, Government Affairs

Specialty Equipment Marketing Association

1317 F Street, NW, Suite 500

Washington, DC 20004

Dear Mr. McDonald:

This responds to your letter requesting clarification of our notice of interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 108, published in the Federal Register (70 FR 65972) on November 1, 2005. The interpretation addressed how FMVSS No. 108 applies to replacement equipment. The issues you asked about are addressed below.

In our interpretation, we noted that FMVSS No. 108s current requirement for replacement equipment, set forth in paragraph S5.8.1 of the standard, reads as follows:

Except as provided below, each lamp, reflective device, or item of associated equipment manufactured to replace any lamp, reflective device, or item of associated equipment on any vehicle to which this standard applies shall be designed to conform to this standard.

We explained:

This language is relatively straightforward. For any particular item of lighting equipment, e.g., a lamp, FMVSS No. 108 states only that if a lamp is manufactured to replace a lamp on a vehicle to which the standard applies, it must be designed to conform to the standard. It does not say anything about the replacement lamps being required to have the same type of light source as the OE lamp. Moreover, while it is true that, unlike other lamps, FMVSS No. 108 specifically regulates headlamp systems including their light sources, neither the language of S5.8.1 nor any other language in the standard requires replacement headlamps to use the same light sources as the OE headlamps. 70 FR at 65974.

In your letter, you stated that you agreed with this language, but asked for clarification of the immediately following paragraph, which reads as follows:

Under our revised interpretation, it is our opinion that a lamp (or other item of lighting equipment, as relevant) manufactured to replace a lamp on a vehicle to which the standard applies is permitted under S5.8.1 so long as the vehicle manufacturer could have certified the vehicle to FMVSS No. 108 using the replacement lamp instead of the lamp it actually used. To the extent the vehicle manufacturer could have certified the vehicle using the replacement lamp, instead of the lamp it actually used, we believe the replacement lamp should be viewed as being designed to conform to FMVSS No. 108. This includes, but is not limited to, replacement headlamps using different light sources than the OE headlamps.

You expressed concern that this paragraph could be construed as preventing new technologies from being used as replacement equipment, even though such equipment was in compliance with FMVSS No. 108. You stated, as an example, that if a technology could not have been certified in a new vehicle prior to 2005 because the technology was not yet developed, but was available in 2005, an unreasonably strict reading could limit the technology for use only in 2005 model year and subsequent model year vehicles.

We confirm that the language was not intended to be so narrowly applied so as to prevent new technologies from being used as replacement equipment on earlier model year vehicles. With reference to your example, to the extent the manufacturer of the pre-2005 model year vehicle could have certified the vehicle using the later replacement lamp incorporating the new technology (had that technology been available at the time of vehicle manufacture), instead of the lamp it actually used, we believe the replacement lamp should be viewed as being designed to conform to FMVSS No. 108.

You also asked to confirm that while the paragraph only references the vehicle manufacturer, it is not intended to exclude other segments of the industry that could have certified the vehicles lighting system using a replacement lamp. You stated that this could include a lighting manufacturer, dealer or alterer.

As discussed below, for the sentence at issue, we agree that alterers (persons who make changes to vehicles prior to first sale) would be included along with vehicle manufacturers. However, lighting manufacturers and dealers would not be included unless they were also alterers.

As indicated above, in the sentence at issue, we stated that it is our opinion that a lamp (or other item of lighting equipment, as relevant) manufactured to replace a lamp on a vehicle to which the standard applies is permitted under S5.8.1 so long as the vehicle manufacturer could have certified the vehicle to FMVSS No. 108 using the replacement lamp instead of the lamp it actually used.

We referenced vehicle manufacturer because it is the vehicle manufacturer, rather than the equipment manufacturer, that is responsible for certifying new vehicles to FMVSS No. 108. The only entities other than vehicle manufacturers that could be certifying new vehicles to FMVSS No. 108 would be alterers. Under our regulations, alterers are persons who make changes to certified motor vehicles prior to first retail sale. Part 567.7, Requirements For Persons Who Alter Certified Vehicles, requires alterers to certify that the vehicle, as altered, complies with all applicable safety standards affected by the alteration.

Since alterers may be certifying a new vehicle to FMVSS No. 108, it would be correct to reference them along with vehicle manufacturers in the above-quoted sentence. However, it would not be correct to include any entities that would not be certifying a new vehicle to FMVSS No. 108. Therefore, lighting manufacturers and dealers would not be included unless they were also alterers.

I hope this information is helpful. If you have any further questions, please feel free to contact Edward Glancy of my staff at (202) 366-2992.

Sincerely,

Anthony M. Cooke

Chief Counsel

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d.8/24/06