Interpretation ID: 19163.ztv

Mr. Fred Kelly
President
Hamsar Diversco Inc.
5320 Downey Street
Burlington, Ontario
Canada L7L 6M2

Dear Mr. Kelly:

This is our answer to your letter of November 12, 1998, to Taylor Vinson of this Office, as a followup to your phone conversation with him on lamps for vehicles equipped with snow plows. This letter also reflects your conversation with Mr. Vinson on December 2.

Our reply discusses your obligations as a Canadian-based manufacturer of motor vehicle equipment selling its product in the United States. We also discuss the obligations that arise on various persons when a snow plow is installed on a motor vehicle.

You wrote us that you "have sold approximately 2500 sets of lights that would not comply with the DOT regulations as far as the low beam, high beam, and park/turn photometric output are concerned," and you asked about your responsibilities on

December 2. We understand that all these lamps were sold to a single customer in the United States for retail sale under the customer's brand name.

The obligations under Federal law of a Canadian-based manufacturer of motor vehicle equipment selling its product in the United States.

We require manufacturers of motor vehicles and motor vehicle equipment based outside the United States to file a designation of agent for service of process through whom legal documents may be sent. In the December 2 phone call, we informed you that Hamsar Diversco, Inc., had not designated an agent, and that it must do so. I enclose a copy of 49 CFR Sec. 551.45 so that you may comply with this requirement at your earliest convenience.

Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices and Associated Equipment, applies to the lamps you sell. They are considered replacement headlamps, parking lamps, and turn signal lamps. As such, they must meet all applicable specifications of Standard No. 108, including photometric output. They must also be certified as meeting those requirements in order to be imported and sold in the United States. You have informed us that the lamps do not comply, but not whether the lamps have been certified as complying. Importation and sale of nonconforming and uncertified replacement lighting equipment is a violation of 49 U.S.C. 30112(a) for which a civil penalty may be imposed. This penalty may be as high as $1,100 for a single violation, and up to $880,000 for a related series of violations. The same penalties apply for lack of certification, or for certification that is false and misleading in a material respect.

When a manufacturer decides that a vehicle or equipment item fails to conform with an applicable standard such as Standard No. 108, 49 CFR Part 573, Defect and Noncompliance Reports the manufacturer must, pursuant to 49 U.S.C. 30118-30120, notify us within 5 days of its decision, and thereafter notify its customers and provide a free remedy for the noncompliance through repair, repurchase, or replacement with an equivalent conforming item. Hamsar Diversco is the fabricating manufacturer, but your customer, who we understand is the importer of the equipment, is also a "manufacturer," for purposes of notification and remedy, because the statutory definition of the term "manufacturer" includes those who import motor vehicle equipment for resale. With respect to vehicle equipment that is imported, either the fabricating manufacturer or the importer for resale must notify us, and that is considered notice by both (Sec. 573.3(b)).

After a person notifies us, that person then proceeds to notify owners and remedy the noncompliance as specified in 49 CFR Part 577, Defect and Noncompliance Notification. The manufacturer also has a continuing obligation to file quarterly reports on the progress of each recall campaign covering six calendar quarters after the campaign has begun.

The obligations under Federal law of the person who installs the snow plow.

As you and Mr. Vinson discussed in November, S5.3.1.1 of Standard No. 108, in essence, requires headlamps, parking lamps, and front turn signal lamps, as installed on a vehicle, to comply with visibility and photometric requirements specified in SAE materials that have been incorporated by reference in Standard No. 108. If a snow plow prevents any of these lamps from complying, an auxiliary lamp that complies must be provided. Although the lamps you have provided apparently do not comply, the discussion below assumes that the headlamps and other lamps comply with Standard No. 108.

Under our laws, a motor vehicle must continue to comply with Standard No. 108 when additional equipment that performs work is added to it. This requirement applies both when the plow is added by the time of the vehicle's initial sale (S5.3.1.1), and after it is sold (49 U.S.C. 30122).

If the plow is installed not later than the time of the initial sale, we regard the installer as an "alterer." A person who alters a new vehicle, other than by the addition of readily detachable components, must add its certification to the vehicle in the manner prescribed by 49 CFR 567.7, stating that the vehicle as altered continues to meet all applicable Federal motor vehicle safety standards. We do not regard a snow plow as a "readily detachable component" (this term includes mirrors and tire and rim assemblies). Thus, it is incumbent upon the installer of the plow to determine whether the vehicle will continue to comply with Standard No. 108 when the plow is installed. We believe that the lamps installed on the vehicle must continue to comply when the snow plow is in any position that may be used when the vehicle is in motion or signaling a turn.

If the plow is installed after sale by a manufacturer, distributor, dealer, or motor vehicle repair business, that person has the legal obligation under Sec. 30122 to ensure continued conformance with Standard No. 108 but is not required to certify compliance. However, Sec. 30122 imposes no obligation on an individual vehicle owner.

Whether lamps may be redundant

In your letter of November 12, you commented that "since the park/turn on the vehicle is fully functional and is not blocked by the addition of the snowplow, the vehicles park/turn is sufficient and the additional park/turn on the snowplow lamp is redundant."

Whether an additional parking/turn signal lamp is redundant, in our view, depends on the design of the vehicle and the potential positions of the plow. Assuming that you are manufacturing sets of lamps for universal application and not with respect to a particular motor vehicle, we believe that the set should include a parking/turn signal lamp that will meet Standard No. 108 when it is installed on the plow.

If you have any further questions, Taylor Vinson will be glad to answer them (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:108#573#577
d.1/22/99