Interpretation ID: 77-3.32

TYPE: INTERPRETATION-NHTSA

DATE: 07/22/77

FROM: AUTHOR UNAVAILABLE; Joan Claybrook; NHTSA

TO: Hon. R. W. Straub - Governor of Oregon

TITLE: FMVSS INTERPRETATION

TEXT: The purpose of this letter is to express this agency's views on legislation recently enacted by the State of Oregon which appears to be preempted by Federal legislation of the same subject matter.

Specifically, we understand that ORS 483.404 was amended in June 1977 to require that headlamps on motor vehicles registered in Oregon meet the standards established for such under the National Traffic and Motor Vehicle Safety Act of 1966 or

". . . the United Nations Agreement concerning the Adoption of Approval and Reciprocal Recognition of Approval for Motor Vehicle Equipment and Parts; done at Geneva on 20 March 1958, as amended and adopted by the Canadian Standards Association (CSA Standard 106.2) or both."

Under 15 U.S.C. 1392(d):

"Whenever a Federal motor vehicle safety standard established under this title is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard." [Emphasis added.]

Pursuant to 15 U.S.C. 1392(a) [Section 103(a) of the National Traffic and Motor Vehicle Safety Act of 1966] Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment (49 CFR 571.108), has been established, effective January 1, 1972, as the Federal standard for lighting devices both as original and replacement equipment on motor vehicles.

The United Nations Agreement, and this Agreement as amended by the Canadian Standards Association, permits the use of motor vehicle headlamps that are not of sealed beam construction and whose candlepower output may exceed 75,000. Further, they do not require that the headlamps be mechanically aimable. Standard No. 108, on the other hand, requires that headlamps a passenger vehicles be of sealed beam construction, imposes a limit of 75,000 candlepower on all but one type of headlamp, and specifies that all headlamps be mechanically aimable. Thus, the United Nations Agreement, and that Agreement as amended by the Canadian Standards Association, do not specify requirements for headlamps that are identical to those of Standard No. 108. This means that this part of the amendment to ORS 483.404 is, in our opinion, preempted by 15 U.S.C. 1392(d), and of no legal effect.

As a consequence, it is our conclusion that any person in Oregon manufacturing for sale, selling, offering for sale, introducing or delivering for introduction in interstate commerce, or importing into the United States through the State of Oregon any lighting equipment that does not conform to Standard No. 108, in reliance upon ORS 483.404, could be subject to civil penalties for apparent violations of 15 U.S.C. 1397(a)(1)(A) in an amount up to $ 800,000 (15 U.S.C. 1398(a)), and to a restraining order (15 U.S.C. 1399(a)). There is no preemption, however, of your State's right to specify requirements for lighting equipment not currently included in Standard No. 108 (e.g. foglamps).

Section 1392(d) and the Act's preemptive effect have been invariably upheld. (See e.g. Chrysler Corp. v. Malloy, 294 F. Supp. 524 (U.S.D.C. Vt. 1968), Chrysler Corp. v. Tofany, 419 F.2d 499 (C.C.A. 2 1969)). We would also observe that the interpretation by an administering agency of its own statutes and regulations, has been viewed by courts as "of controlling weight." (Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969) quoted with approval in Chrysler Corp. v. Tofany, supra, at 512.)

We would appreciate the views of the State of Oregon on this subject. Questions on it may be referred to the Chief Counsel of this agency, Joseph J. Levin, Jr. The agency's position on this matter was presented previously in a letter dated May 27, 1977, from Mr. Levin to the Administrator of the Oregon Senate Transportation Committee. The Committee, however, chose to disregard our opinion, when it considered Oregon House Bill 2998 and recommended its passage.