Mr. Robert Strassburger
    Vice President, Safety And Harmonization
    Alliance of Automobile Manufacturers
    1401 H Street, NW
    Suite 900
    Washington, DC 20005


    Dear Mr. Strassburger:

    This responds to your request that we reconsider a May 2, 2003, letter of interpretation we issued to Hyundai concluding that Federal Motor Vehicle Safety Standard (FMVSS) no. 108 does not preempt a California statute regulating the distance between front turn signal lamps and fog lamps. As discussed below, after carefully reconsidering our interpretation, we conclude that FMVSS No. 108 preempts State laws regarding the distance between front turn signal lamps and fog lamps. This letter withdraws and supersedes our May 2, 2003, interpretation.

    We note that, in a letter dated July 1, 2003, Hyundai requested that we reconsider our May 2, 2003, interpretation. However, the California Highway Patrol subsequently informed Hyundai that it recognized that the lamp spacing requirements in its regulations are not identical to those contained in FMVSS 108, and that the provisions of FMVSS No. 108 covering the same aspect of performance prevailed over the State regulation. Therefore, in a letter dated August 12, 2003, we advised Hyundai that we considered its July 1, 2003, request as mooted. you expressed concern, however, that other States may nonetheless rely on the May 2, 2003, interpretation letter, and asked that we clarify our position on this issue.

    The California law at issue provided that fog lamps must be mounted so that the inner edge of the lens retaining ring is no closer than 10 cm (4 in.) to the optical center of the front turn signal lamp. FMVSS No. 108 provides, by means of incorporation by reference of SAE Recommended Practice J588, that if the lighted edge of "the low beam headlamp or any additional lamp used to supplement or used in lieu of the lower beam, such as an auxiliary low beam or fog lamp" is closer than 100 mm (4 in.) to the geometric centroid of the front turn signal functional lighted area, the luminous intensity of the turn signal lamp is required to be higher than it would be if the spacing between the turn signal and other lamp were 100 mm or greater. Thus, the standard expressly contemplates the placement of fog lamps in an area that would be prohibited under the California law.

    Under 49 u.s.c. 30103(b), preemption, a State may prescribe or continue in effect a standard "applicable to the same aspect of performance of a motor vehicle only if the standard is identical to" a federal motor vehicle safety standard that is in effect. Thus, the relevant issue is whether the California law addresses the same aspect of performance as one addressed by FMVSS No. 108.

    In our August 12, 2003, letter to Hyundai, we summarized our May 2, 2003, interpretation as follows:

    In brief, fog lamps are not required items of lighting equipment under FMVSS No. 108. thus, if California were to preclude fog lamps, FMVSS No. 108 would not preempt such an action. similarly, California can address the spacing between fog lamps and turn signal lamps. However, California could not regulate fog lamps in a manner that would be inconsistent with the functioning of front turn signal lamps, which we do regulate.

    We note that, in our May 2, 2003, interpretation, we stated that we believed the thrust of J588 was to regulate performance of turn signal lamps, and that the reference to fog lamps was illustrative.

    We have reconsidered our May 2, 2003, interpretation. As noted above, the relevant issue is whether the California law and FMVSS No. 108 address the same aspect of performance.

    On reconsideration, we believe that both FMVSS No. 108 and the California law seek to prevent obscuration of the turn signals. FMVSS No. 108 requires that if a fog lamp is closer than four inches to the turn signal lamp, the turn signal lamp must be brighter. The California law requires that fog lamps not be any closer than four inches to turn signal lamps. Since the California law addresses the same aspect of performance as FMVSS No. 108 and is not identical, it is preempted.

    We note that you Stated in your letter that the alliance agrees that a State law prohibiting fog lamps would not be preempted, and we are not changing our view on that issue.

    I hope this clarification is helpful. If you have any questions, you may call Edward Glancy of this Office (202-366-2992).

    Sincerely,

    Jacqueline Glassman
    Chief Counsel

    ref:108
    d.4/1/04