Interpretation ID: 77-3.33

TYPE: INTERPRETATION-NHTSA

DATE: 07/22/77

FROM: AUTHOR UNAVAILABLE; Joan Claybrook; NHTSA

TO: Hon. C. L. Ray - Governor of Washington; DIXY LEE RAY -- GOVERNOR OF WASHINGTON

TITLE: FMVSS INTERPRETATION

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

Specifically we understand that R.C.W. @ 46.37.320 was amended in May 1977 to require that motor vehicle "lighting devices"

". . . shall correlate with, and, so far as practicable, conform to the then current standards and specifications of the society of automotive engineers applicable to such equipment and to the headlamp standards established by the United Nations agreement concerning the adoption of approval and reciprocal recognition of approval for motor vehicle equipment and parts done at Geneva on March 20, 1958, as amended and adopted by the Canadian standards association (CSA standard D106.2): Provided, that the sale, installation, and use of any headlamp meeting the standards of either the society of automotive engineers or the United Nations agreement, as amended, shall be lawful in this state."

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.

Although Standard No. 108 incorporates by reference many lighting standards of the Society of Automotive Engineers (SAE) it contains numerous qualifications of, and variations from, the SAE specifications. Even when Federal requirements and SAE specifications are identical, amendments by the SAE, which occur frequently, do not amend the corresponding Federal requirements. In short, that portion of the amendment to RCW @ 46.37.320 requiring compliance to SAE specifications does not establish requirements that are identical to those of Standard No. 108 and, in our opinion, are preempted by 15 U.S.C. 1392(d) and of no legal effect.

In addition, the United Nations 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, it does not require that the headlamps be mechanically aimable. Standard No. 108, on the other hand, requires that headlamps on 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, as amended by the Canadian Standards Association, does not specify requirements for headlamps that are identical to those of Standard No. 108. This means that this part of the amendment to R.C.W. @ 46.37.320 is, in our opinion, also preempted by 15 U.S.C. 1392(d), and of no legal effect.

As a consequence, it is our conclusion that any person in Washington 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 Washington any lighting equipment that does not conform to Standard No. 108, in reliance upon R.C.W. @ 46.37.320, 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 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 Washington on this subject. Questions on it may be referred to the Chief Counsel of this agency, Joseph J. Levin, Jr.