Interpretation ID: nht95-1.37

TYPE: INTERPRETATION-NHTSA

DATE: January 27, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Deborah K. Nowak-Vanderhoef -- Attorney, GM

TITLE: NONE

ATTACHMT: Attached to 12/23/94 letter from Deborah K. Nowak-Vanderhoef to Philip R. Recht (OCC 10600)

TEXT: Dear Ms. Nowak-Vanderhoef:

We have received your letter of December 23, 1994, with respect to an alternative to HB3 and HB4 replaceable light sources, and asking for our "guidance as to the most appropriate method for seeking approval of the alternative bulb configurations." Altho ugh your letter is silent on the matter, we understand from Dick Humphrey of your Washington office that GM would like to incorporate the revised light sources in production in the summer of 1995.

You have presented three possible methods for our consideration. The first is to "seek approval" through 49 CFR Part 564. The second is to petition for rulemaking to amend Standard No. 108 to incorporate the revised light sources. The third is to reque st that HB3 and HB4 bulbs be placed in Part 564 with the alternative configurations included on the drawing.

Under the current regulatory scheme for headlamps, there are two regulations that govern the permissibility of replaceable light sources. The first of these, Standard No. 108, prescribes detailed dimensional specifications and performance requirements f or replaceable light sources Types HB1 through HB5. Faced with the possibility of an endless number of new light sources which could not be added to Standard No. 108 without at least two rulemaking notices, NHTSA decided to deregulate the dimensional asp ects of replaceable light sources by establishing Part 564 which sets up an agency procedure for the allowance of new light sources upon receipt of the dimensional information specified in the regulation. However, the new light source must not be interc hangeable with any other replaceable light source, either in Part 564 or Standard No. 108. NHTSA has been petitioned for reconsideration of this restriction but has not yet acted upon it. Further, it can be argued that there is a regulatory inconsisten cy in the different treatment of replaceable light sources, and that NHTSA needs to address this inconsistency.

NHTSA is conscious of the need for regulatory flexibility in both areas and is actively working towards their resolution.

At present, it appears that we could respond positively to petitions for reconsideration of Part 564 by a direct amendment allowing modifications in previous submissions, but we have not completed our examination of the possible safety ramifications of a llowing interchangeability of modified light sources. The inconsistent treatment of light source dimensions can be resolved through transfer of the HB Types to Part 564, but we do not believe that the Administrative Procedure Act permits us to do so with out a formal proposal asking public comment. In the present regulatory climate, we cannot estimate when the appropriate rulemaking notices will appear but GM's letter evidences the need for a less restrictive regulatory scheme, and we are sympathetic to GM's position. It is our best estimate that both final action on Part 564 and that a NPRM on the transfer amendments to Standard No. 108 will have been published by July 1, 1995, but the issuance of a final rule on the transfers may not have occurred a s of that date. I might add that we see no true safety issues presented by the modified light source; the difficulties are all procedural.

For these reasons, GM may wish at this point to petition for rulemaking to add HB3S and HB4S, as you call them, to Standard No. 108. In the less likely event that, during the pendency of the HB3S/HB4S rulemaking, rulemaking is completed to Standard No. 108 that removes the other HB Types and places them in Part 564, HB3S/HB4S could be added to Part 564 as a termination of the rulemaking. If a proposal to amend Standard No. 108 to remove the HB Types has not proceeded to a final rule, HB3S/HB4S could b e added to Standard No. 108 as proposed, which would allow their use in GM's vehicles.

The following scenario is the most likely resolution of GM's problem. Under paragraph 564.5(a), GM is eligible to furnish information on HB3S/HB4S to Part 564 because they do not meet the requirements of S7.7. Since information indicates that they are interchangeable with HB3/HB4, they could not be accepted absent an amendment to Part 564 allowing for changes. Thus, when a response to the petitions for reconsideration of Part 564 is published that allows changes without affecting interchangeability, GM could immediately file HB3S/HB4S information in Part 564 which, upon acceptance, would allow immediate use of the light sources in GM cars. Acceptance would also moot any rulemaking that might then be underway to add HB3S/HB4S to Standard No. 108 pur suant to a GM petition for rulemaking.

You have also suggested that a single new submission to Part 564 could consist of the HB3/HB4 information currently part of Standard No. 108 with the alternative configurations of HB3S/HB4S included on the drawing. Given paragraph S564.5(a)'s specific e xclusion of Standard No. 108 light sources from Part 564, we could not accept for Part 564 a submission that included a light source meeting the requirements of S7.7 of Standard No. 108.

Our rulemaking and legal staff would be willing to talk with you further if you wish.

Sincerely