Interpretation ID: nht87-1.40

TYPE: INTERPRETATION-NHTSA

DATE: 02/26/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Darryl M. Burman

TITLE: FMVSS INTERPRETATION

TEXT:

Darryl M. Burman, Esq. Messrs. Dotson, Babcock & Scofield 1200 InterFirst Plaza Houston, Texas 77002-5219

Re: Whether market and sale of headlamp covers are regulated by Federal law

Dear Mr. Burman:

This is in reply to your letter of January 9, 1987, asking for an interpretation of 49 CFR 571.108 Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Associated Equipment. Your client wishes to import, market, distribute and sell a "cle ar, plastic headlamp cover...for all makes of cars manufactured in or imported to the United States." The stated safety purpose of the headlamp cover is "to protect the glass headlamps on automobiles from breaking."

Three methods of distribution are contemplated: direct sale by your client, sale through auto parts distribution centers, and sale as optional but uninstalled equipment at the time of the vehicle's original sale (the cover in its wrapping would be in the vehicle trunk). You state that the headlamp cover is not intended to be installed by your client, or its distributors and dealers, but will be accompanied by instructions so that the vehicle owner may install it. Warnings will be provided "about minimum Federal photometric requirements". You wish to know whether the headlamp cover is subject to Standard No. 108 or any other Federal regulation and, if so, the effect and impact of such regulation.

A plastic headlamp cover is "motor vehicle equipment", defined in pertinent part by Section 102(1) of the National Traffic and Motor Vehicle Safety Act (15 USC 1391(4)) as "any...accessory, or addition to the motor vehicle...." Its importer is a "manufac turer", defined in pertinent part by Section 102(5) of the Act as "any person importing...motor vehicle equipment for resale". As a manufacturer of motor vehicle equipment your client has the responsibility imposed by Sections 151 et seq of the Act to no tify and remedy in the event that either it or this agency determines that a safety related defect exists in the product, or that it fails to comply with all applicable Federal motor vehicle safety standards. You have already noted that headlamp covers a re not "a regulated safety device" under Standard No. 108. A "defect" under Section 102(11) includes "any defect in performance, construction, components, or materials". Under the best of circumstances a plastic cover when new will reduce light output of a headlamp beneath its designer's intent, whether or not the output falls below the floor established by Standard No. 108 as a minimum for headlamp performance. In service, a plastic headlamp cover may contain condensation under certain climatic conditi ons, or grow increasingly opaque through exposure to ultraviolet rays or other atmospheric components, either of which would further affect the design performance of the headlamp. A conclusion could be reached that such a cover contained a safety related defect and that its importer should notify all purchasers and remedy according to the Act.

Safety problems associated with headlamp covers led to their prohibition when the headlamp is in use, initially under SAE J580 for sealed beam headlamps and later by its incorporation into Standard No. 108, for both sealed beam and replaceable bulb headl amps. The specific prohibition of J580 is why passenger cars are not manufactured with original equipment headlamp covers. Under Section 108(a)(l)(A) of the Act, if a dealer sells a noncomplying motor vehicle, he is in violation of the Act, and may be su bject to civil penalties for it. These penalties, under Section 109, range up to $1000 for a single violation, with a cumulative total of $800,000 for a related series of violations. If a dealer at time of sale provides the means through which a new car meeting all Federal safety standards may be rendered noncompliant immediately after its delivery, we would regard that as tantamount to his having sold a noncomplying motor vehicle in violation of the Act.

Although there is no Federal prohibition against a vehicle owner installing and using headlamp covers, there may nonetheless be local laws covering the sale and use of this equipment. We offer no views of your client's potential exposure under common law , in such situations as use of a deteriorated cover, or when used with a substandard replacement headlamp, except to note that photometric "warnings" may serve no defensive purpose. Photometric values at the individual test points are judged under labora tory conditions. Service facilities do not contain equipment by which on-vehicle compliance of the headlamp can be judged, and the eye is a subjective and unreliable source to discriminate between complying and noncomplying levels of light output.

I hope that this answers your questions.

Sincerely,

Erika Z. Jones Chief Counsel

January 9, 1987

National Highway Traffic Safety Administration Erika Z. Jones, Chief Counsel 400 7th Street, S.W. Washington. DC 20590

Re: Letter ruling to determine if market and sale of headlamp covers are regulated by federal law

Dear Ms. Jones:

REQUEST FOR RULING

Our client is in the process of forming a Texas corporation (the "Company") to engage in those activities described below, and, on its behalf, we are requesting an interpretation of Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Ass ociated Equipment ("Standard 108") and other related or applicable rules or regulations of the Department of Transportation. The reason for this request is the lack of specific guidance in determining (i) if the product our client will import, market and sell will be subject to such regulation, or any other federal regulation, and, (ii) if so, the effect and impact of such regulation. The product, which the Company intends to market, sell and distribute and for which the Company seeks approval by the Na tional Highway Traffic Safety Administration ("NHTSA"), is a clear, plastic headlamp cover (the "Headlamp Cover") for all makes of cars manufactured in or imported to the United States.

STATEMENT OF FACTS

The Company proposes to engage in the importation and marketing of the Headlamp Cover, either through direct sales to ultimate consumers or through sales to automobile dealers, distributors and automotive parts distributors. The Headlamp Cover is designe d to protect the glass headlamps on automobiles from breaking. The Company, distributors, automotive dealers and others will not physically install the Headlamp Cover on automobiles. However, the Company does intend to provide warnings and instructions i n the packaging so that the owner of the vehicle may purchase the proper Headlamp Cover and safely install it.

The Company, proposes to distribute the Headlamp Cover in one or more of the following manners:

1. Over-the-counter. The Company wishes to market and distribute its Headlamp Cover to auto parts distributor centers for sale to the consumer. These distribution centers will be instructed not to participate in the installation of the Headlamp Cover.

2. Option offered by Dealer. The Company will sell and distribute the Headlamp Cover to automotive distributors and dealers who will offer them as accessories to purchasers of new automobiles. The automotive distributors or dealers will place the Headlam p Cover, in its original packaging, in the trunk of the automobile and will not install it for the consumer. Automotive distributors of imported automobiles will place the Headlamp Cover in trunks of automobiles at the port of arrival and list the Headla mp Cover on the price sticker as well as the invoice to the dealer.

3. Direct to consumer. The Company also desires to sell its Headlamp Cover directly to consumers, again, with no installation services offered.

CHRYSLER RULING

The Company is aware of a fairly recent denial of petition for rulemaking by the NHTSA regarding an attempt by Chrysler Corporation ("Chrysler") for an amendment to Standard 108 to allow Chrysler to offer removable transparent Headlamp Covers as original equipment on motor vehicles manufactured by Chrysler. It is our client's understanding that such petition was denied primarily because Chrysler's Headlamp Covers caused a reduction in light output between 7.2% and 15.5% and it was conceivable that certa in replacement headlamps purchased by consumers would produce an unacceptable light output when used in conjunction with the Chrysler Headlamp Cover.

The Company believes its proposed activities should be differentiated from those of Chrysler and should not be subject to federal regulation. The differences between the Company's proposal and Chrysler's proposal are: (i) the Company intends to market an d sell, but not manufacture and install, the Headlamp Cover, (ii) the Headlamp Cover is not a regulated safety device as defined in Standard No. 108, (iii) the Headlamp Cover will not be original equipment installed on an automobile at the time of purcha se and will not be installed by the Company. the distributor or the dealer, as prohibited by SAE J580 Sealed Beam Headlamp Assembly and (iv) the Headlamp Cover will not be marketed as a dealer installed option.

Additionally, the Chrysler ruling dealt specifically with the sealed beam headlamp assembly while the Company proposes to initially sell Headlamp Covers for the bulb and reflector type headlamp assembly found on many makes of cars sold in the United Stat es today.

However, similar to Chrysler, the Headlamp Cover, when used with original headlamps furnished by the manufacturers of the automobiles, will satisfy minimum federal photometric requirements.

CONCLUSION

The Company believes its activities should not be compared to those of Chrysler. It is aware that there may exist circumstances or possibilities where the Headlamp Cover may be misused, but intends to make information available to all parties who sell th e Headlamp Cover directly to consumers regarding photometric warnings. The product will also be packaged so that warnings are found on the exterior of the package to warn consumers about minimum federal photometric requirements. The interior of the packa ge will contain complete and accurate instructions for consumer installation of the Headlamp Cover.

The Company questions whether the Headlamp Cover or the contemplated activities of the Company, the distributors and dealers who will sell the Headlamp Cover, fall within federal regulated guidelines. Therefore,the Company hereby requests a ruling differ entiating its sale of the Headlamp Cover from Chrysler and permitting the Company. and the distributors and dealers to whom it sells the Headlamp Cover, to market and sell this product in accordance with the procedures discussed above.

We appreciate your attention to this matter and would be grateful for your prompt response.

If we can provide you with additional information, please do not hesitate to contact us.

Very truly yours,

Darryl M. Burman