Headlamps are under the regulatory spotlight as industry associations are challenging a ruling by the National Highway Traffic Safety Administration (NHTSA) that appears to ban aftermarket replacement systems that previously met the agency’s performance requirements.
Confusion over the actual wording and intent of the measure is casting a shadow upon the lighting aftermarket; industry representatives say that under NHTSA’s new policy, replacement headlamps must comply with all the applicable photometry requirements while using the same light source as the OEM unit.
For example, the rule would now prohibit replacing a halogen-based system with high intensity discharge (HID) headlights that otherwise meet Federal Motor Vehicle Safety Standard (FMVSS) No. 108.
NHTSA asserts this is an interpretation of an old rule that prompts manufacturers to recall noncompliant items or face fines.
Those opposing NHTSA’s position stress that the sweeping provisions could catch many products in its sightlines, darkening lighting units that are otherwise in full compliance with the 108 standards — not just those that are too bright or otherwise illegal for highway use.
The issue is highly complex, couched in legal terminology and government bureaucratese. Debate rages over the actual meaning and application of words such as “interpretation,” “rulemaking,” “standard” and “policy.”
The industry is concerned that the concept behind an October NHTSA “letter of interpretation” could be negatively applied across the board to other aftermarket components — with the government mandating that products be taken off the market without following established due process procedures.
Many headlamp retailers told us they were in the dark about the controversy, and, at press time, there were no reports of retailers pulling headlamps from inventory or installers turning away optical improvement-seeking customers from the bays.
Typical responses were reflected by a retailer in Missouri who remarked, “This is the first I’ve heard of it.” In Texas, a specialty installer/retailer/distributor observed, “I’ve heard bits and pieces about it, but I haven’t kept up with it.” In New Jersey, a retailer/distributor/installer commented that he routinely expects manufacturers to sell him only legal products appropriate for the targeted vehicles.
One program group executive insisted that his organization does not wish to get involved with a manufacturer issue, while another said he was unfamiliar with the matter.
It remains unclear which specific aftermarket products are in jeopardy as the industry calls for NHTSA to shed some light on the situation by either issuing a clarification, at minimum, or hopefully withdrawing the measure.
Lampmakers, meanwhile, are essentially sitting tight pending more direction from NHTSA officials. “We’re trying to figure out what the companies should be doing,” reports Ann McCulloch, senior government relations manager for MEMA — the Motor & Equipment Manufacturers Association.
Industry sources privately say there has been little, if any, enforcement action thus far by NHTSA compliance personnel or law enforcement officials in the various states.
“This is still shaking out, and it’s unclear to people what this letter means,” says Aaron Lowe, vice president of regulatory and government affairs for the Automotive Aftermarket Industry Association (AAIA).
“This is an issue for all of us,” he advises. “It’s setting a bad precedent. It’s not really a ‘rulemaking,’ but it has the impact of a ‘rulemaking.’”
Although Lowe reports that some unspecified HID lamps have been taken off the market, he goes on to say, “I don’t know if it’s having an immediate impact” on sales of lighting systems. “We’re concerned about the long-term implications” if NHTSA’s rule-by- letter-of-interpretation is allowed to prevail.
The AAIA is deferring in part to the Specialty Equipment Market Association (SEMA) regarding official objections to the ruling, given SEMA’s many years of battling for the lighting rights of hot rods, roadsters and other custom vehicles with unusual headlamp needs.
When the NHTSA edict was issued in October, “some exhibitors pulled products from the SEMA Show or declined to exhibit at all,” says Steve McDonald, SEMA’s vice president of government affairs. “In addition, we have been contacted by numerous lighting companies inquiring about this rulemaking and its impact on the industry.”
Pulling the plug
Although it appears that any consequences have not yet been spotted along aftermarket supply chains, there are fears that product availability and sales could be dimmed throughout the channel.
“Osram Sylvania and other automotive accessory manufacturers, distributors, retailers and installers will be economically harmed by these interpretations,” according to Dennis Holt, the company’s reliability and regulations manager. “Some of the current products would no longer be allowed because they are not used on original vehicles. In other cases, the market will be significantly reduced to vehicles where the OEM offered these design options.”
As the debate goes forward, Holt suggests any current impact on the company’s distribution chain is not yet apparent. He says “a significant review by management” would be necessary to glean such information. However, Holt does report that “product development has probably been slowed down. It’s delayed decisions and put a cloud of uncertainty over things.”
Sylvania executives, though, are confident that “things will be resolved,” he notes. “I think they overlooked a number of situations,” Holt observes of the agency. “I’ve always found NHTSA to be respectful and interested in industry’s input.”
Hella North America is equally eager to reach an agreement with regulators over the matter. “It’s just not something that can be sustained,” reports Jason Bonin, vice president of business development and lighting technology, “and I think the administration understands that.”
The impressive arguments raised by the industry associations are a bright sign that displays a unified front. “There is very good cooperation between the various lighting councils and MEMA,” Bonin points out.
(Requests for comment were made to executives at other automotive lighting producers, but they declined on-the-record interviews. Knowledgeable industry sources point out that the issue with NHTSA is a sensitive one with high stakes.)
Should the latest standard hold, even the venerable snowplow could be in NHTSA’s harsh glare, as the common auxiliary lights that peek over the blade may be restricted to containing only that truck’s OEM fixtures and bulbs — a manufacturer of a plow-light assembly may have to create multiple designs that contain only a particular vehicle’s model of headlamp rather than the current wide-application units, according to aftermarket opponents.
Also troublesome are the universal headlamp assemblies typically installed on small-volume production vehicles such as motor homes, heavy trucks and buses. These vehicles frequently use headlamps designed for passenger cars under FMVSS No. 108. “To create specific headlamp assemblies for these small production vehicles simply is not cost-effective. NHTSA’s draft interpretation most definitely will cause economic hardship to small-volume vehicle manufacturers,” states a letter written by SEMA to the agency.
“Worse, the draft interpretation would hold that any motor home, bus or heavy truck using a headlamp not originally designed for that vehicle is deemed illegal for that application,” SEMA points out, noting that most of the major aftermarket lighting companies routinely provide products to these specialized OEMs.
“The agency’s interpretation effectively establishes an original equipment standard for headlamp light sources,” says Chris Kersting, SEMA’s president and CEO. It also holds that the OEM light source type “cannot be modified or otherwise altered by aftermarket manufacturers seeking to improve the lighting of a given vehicle,” he contends. “There is absolutely no industry support for a design-restrictive application of FMVSS No. 108.”
SEMA and MEMA are among those leading the charge to change a NHTSA “letter of interpretation” that threatens to pull the plug on the aftermarket headlamp industry.
Optical opposition
“It is SEMA’s view that this new position runs contrary to long-standing precedent, is beyond authority as delegated by Congress and has implications as a new precedent that could affect equipment other than lighting. We are compelled to act on our members’ behalf to do all that is possible to overturn this new policy,” Kersting says.
SEMA recently filed a “petition for reconsideration” challenging NHTSA’s authority to issue a rule that fails to comply with a long-standing policy of basing federal safety standards on performance rather than design criteria. McDonald argues that NHTSA failed to supply the necessary safety factors to demonstrate any need for a design-based application of FMVSS No. 108, and safety data is indeed a requirement under the agency’s Congressional mandate. “For example, NHTSA did not produce any evidence that a restrictive rule would reduce traffic accidents, deaths or injuries.”
He points out that the agency’s action contradicts NHTSA’s previous decision to withdraw rulemakings regarding glare issues, as it admitted there is not yet enough information available upon which to soundly base any lighting rule changes. SEMA also contends that NHTSA surpassed its legal authority.
Calling for clarification
MEMA has sent NHTSA a letter requesting withdrawal or clarification of the ruling. “We believe there are some serious issues raised in the letter of interpretation,” says Ann Wilson, MEMA’s vice president of government relations. She signed the association’s letter along with Joseph V. Borruso, the chairman of MEMA’s Motor Vehicle Lighting Council who is also president and CEO of Hella North America.
“Imposing design restrictive requirements that have not demonstrated safety benefits is an inappropriate modification of a standard that is meant to be performance-based,” they write.
“In the past, NHTSA has insisted on clear articulations of safety benefits associated with petitions and the rulemaking process. In this case, no such underlying study was conducted, nor was any safety benefit information provided,” MEMA maintains. “This interpretation clearly conflicts with the Congressional direction to NHTSA to produce performance-based safety standards and ‘not … to take over the design and manufacturing functions of private industry,’” the letter notes.
“The practical implications” of the ruling are disturbing, especially if this type of rulemaking is inflicted on other product lines, Wilson points out. “We’ll be working hard to make sure it doesn’t,” she promises.
“The way it’s written now — it would have a serious impact on the aftermarket industry,” Wilson says. “One has to wonder why NHTSA is going down this path.”
Nothing ‘new’
Apparently viewing the matter as an exercise in semantics, a NHTSA spokesman doesn’t even accept the premise of the aftermarket’s questions over the new OEM-based light source requirements.
“We did not say anything ‘new’ about headlamps,” contends Mike Cole, NHTSA safety compliance engineer. “Interpretations are the chief counsel’s interpretations of what the standards are. The interpretation relates to what the standards say today,” he explains, meaning that the ban on non-OEM bulbs has been in effect all along, but the agency’s lawyers just recently decided that that language is indeed contained within the existing regulations.
“It’s not a rulemaking issue — it’s an interpretation of what the standard says,” Cole continues.
Richard L. Van Iderstine, chief of NHTSA’s Visibility and Injury Prevention Division, says the recent interpretation is based on Standard No. 108 text dating back to the mid-1980s. Under the law, non-complying lamps may not be sold to the public. If non-complying lamps have been sold, the manufacturer or importer must recall them. Those who don’t adhere can be assessed civil penalties up to $5,000 per violation, with a limit of $15 million for a series of violations, according to Van Iderstine.
Regarding any aftermarket lights that are currently compliant, Van Iderstine says, “While we have not tested all replacement headlamps, we do believe that there are thousands of replacement headlamp designs intended for use in repairing crash damage that use the same standardized headlamp light source that the original headlamp used.”
Cole says the industry is welcome to contact NHTSA with its concerns, but any comment should be restricted only to a discussion of safety, rather than economic impact. “It’s got to be real data — not marketing issues.”
Notwithstanding Cole’s explanation of the controversy (like we said earlier, it is certainly complex), “It’s de facto rulemaking,” counters SEMA’s McDonald, who invites others interested in the issue to make their opinions known to NHTSA.
With the letter of interpretation “they’re treating it like rulemaking. These are not letters of interpretation — these are a change in standards. What they are doing is changing policy,” he adds. “Such a policy not only establishes a design, rather than a performance, standard, but also establishes that the design standard is to be created by the vehicle manufacturer,” notes SEMA lawyer John Russell Deane III in a letter to NHTSA. “The courts have made clear that the standards adopted by NHTSA are to be performance standards, not design.”
