By Daniel Stern, DVN Chief Editor
Pretty much everyone in the vehicle lighting world is well aware of what veteran expert Marcin Gorzkowski accurately calls the North American “regulatory island”: the world’s only major market (or quite possibly of any size) not to recognise, one way or another, the UN Regulations that define the requirements, prohibitions, allowances, and norms for vehicle lighting virtually everywhere else in the world.
In 1966 when the National Traffic and Motor Vehicle Safety Act took force to enable the U.S. Government to set and administer auto safety standards, nearly 95% of new vehicles sold in the United States were made by domestic automakers. American legislators didn’t have much of any incentive to think about anyone else’s practices and rules, and even if they had, auto safety regulation was in its infancy worldwide. The UNECE 1958 Agreement was initially focused not on safety but on standardisation and reciprocal approval to facilitate pan-European trade. So, the U.S. regulatory system grew up in context of a domestic makers’ oligopoly that no longer exists; in 2019, U.S. automakers’ share of the American market was between 31% and 44%.
Up through at least the 1980s, meeting American rules instead of European or Japanese ones was largely a matter of parts-swapping: different lights, bumpers, mirrors, door structures, fuel tanks, glass and seat belts; that sort of thing, which imposed extra costs for non-American makers wanting to sell in the giant American market. That suited the domestic industry just fine, especially since it was one-sided; many countries at that time accepted American vehicles equipped in accord with the American standards.
There’s been some regulatory harmonisation over the years, but as we’ve gradually moved beyond the parts-swapping era the amount and speed of harmonisation and regulatory update has been severely outstripped by the evolution of technology and technique on the one hand, and on the other hand the large and ever-larger car worldwide ratio of UN-spec versus U.S.-spec vehicles as more and more of the world’s markets have decided to go with the UN regs.
Some years ago we published a series of articles ( one, two, three ) looking into just how and why the American legal system and the UN Regulations are fundamentally incompatible. Those articles remain accurate today, and as the pace of innovation has sped up, regulatory response in America seems to have slowed down. Let’s take a look at a few examples:
• NHTSA first seriously began considering the CHMSL in 1980-’81. In October 1983, FMVSS № 108 was amended to require a CHMSL on each new passenger car from 1 September 1985. So, from first consideration to the regulation being finalised was two to three years’ time, and from first consideration to the regulation’s effective date was four to five years’ time.
• Replaceable-bulb headlamps were first seriously considered by NHTSA in 1981, and first allowed from 1 September 1983. That’s a two- to three-year timeframe.
• Visual/optical aim for headlamps was first seriously considered by NHTSA in 1994-’95, and first allowed from 1 September 1998. Here again, roughly three or four years’ time from first serious consideration to first practical permission.
The latter two examples, as fundamental changes in headlamp technology proposed as allowances but not requirements, are directly comparable to today’s ADB situation. But here we are about a decade out from the dawn of ADB and five years on from NHTSA’s scrutiny and study of ADB-equipped cars—and all we’ve seen from the agency is a proposal so technically and practically problematic as to raise serious questions of intent, with no foreseeable hope of favourable resolution.
There is not much appetite at NHTSA for touching FMVSS № 108—there never has been—and as vexing as that is to those of us in the lighting community, it stands to reason; regulating crash avoidance systems like lighting is difficult, fraught, resource-intensive, and messy under the American system, which requires proof of cost-benefit before an aspect of vehicle safety can be mandated. Lighting equipment creates non-events, which cannot be calculated as to their cost, making direct cost-benefit analysis very difficult.
Clearly, perhaps now more than ever, there is no real likelihood of any significant American movement toward globalised vehicle lighting regulations. That is the reality, and we have no choice but to work within it as best we can. Is there an opportunity here? How might we make a doorway through this wall? Maybe there is: what if FMVSS № 108 were to be deleted?
It’s a radical idea, sure, but one worth pondering at least as a thought exercise. The idea starts to seem less radical when we remember the precedent that has been baked into FMVSS № 108 right from its beginnings: it is a regulation originally almost completely—and still heavily—based on a snapshot of industry (SAE) standard practice as it existed when the snapshot was taken in 1967. There is nothing technically supreme about that moment over all others, it just happens to be when auto safety regulations were coming into existence. The FMVSSs came in response to a Congressional mandate to address the complicated problem of unacceptably high rates of motor vehicle traffic-related death, injury, and property damage. The mandate and accompanying public demand came to force very quickly, requiring fast action without affording time that would have allowed the research, development, and formulation of safety standards based on best practices. Instead, safety standards had to be adopted and promulgated in a hurry to comply with the Congressionally-mandated timeframe.
FMVSS № 108 was among the first standards to take effect. It was, by necessity, written quickly, largely just a codification of existing industry practice with very few new or upgraded requirements—the notable exception being the requirement for side marker lights and reflectors. Once the hectic regulation rush settled down a few years later, NHTSA proposed a thorough revisitation and revision of the regulation based more on up-to-date knowledge, experience, and best practice rather than a mere codification of industry practice during a certain snapshot of time. That effort toward an upgraded FMVSS № 108 fizzled, though, and although the standard has been amended from time to time, many of its requirements are still based on industry practice of the past—as evidenced, for example, by the many references to SAE standards so long outdated that they are sometimes difficult to obtain.
We take this state of affairs for granted—that’s just the way it is. Think about it a little, though: why could industry practice over half a century ago at that moment be regarded as enduringly appropriate, reasonable, and proper…but not industry practice at this more advanced, better-informed and -equipped moment? H’mm. Maybe it doesn’t have to be this way, and maybe efforts to get an update to FMVSS № 108 should be abandoned as fruitless.
What would the topography look like in a post-108 America? NHTSA would scarcely ever have to touch the lighting standard again, so right away that’s an easy win. Deletion of 108 would mesh well with a pervasive, persistent, and presently-ascendent American anti-regulation/anti-government philosophy, so that’s another easy win. The basic idea would be to soften the line that presently divides industry standards from government regulations.
But what about safety? Theoretically, FMVSS № 108 exists to guarantee a minimum level of lighting performance adequate to address the need for safety. But practically, it’s clearly failing to do that. Outfits like IIHS and Consumer Reports have said, right out in plain language, that FMVSS № 108 fails to guarantee adequate headlighting performance; that’s why those outfits do their tests—and just look at the directly resultant trends: over their three years of existence so far, the IIHS tests have driven material improvements in headlight performance—read the latest on that elsewhere in this week’s Driving Vision News.
Meanwhile, there have been zero changes to FMVSS № 108 in that time; nothing at all related to the regulation that could explain the improvements that have been realised. This suggests market-based incentives might be a stronger, more efficient tool than regulations for achieving lighting improvement in the North American context. Even NHTSA themselves showed a glimmer of acknowledging this reality when they put forth a proposal a few years ago to award NCAP points to vehicles with better headlamps and turn signals. That proposal stalled, probably on account of the current American administration’s regulatory freeze and enthusiasm for de-regulation, but it is significant that NHTSA chose to pursue improvements via a market incentive (NCAP) rather than by stiffening the regulations (FMVSS).
Of course, there has to be a legal requirement of some kind, there can’t just be zero regulation—we know what happens in the total absence of regulations, and it’s neither pretty nor acceptable. So, what balance might be struck between the two unworkable extremes? Here again, we find a hint in FMVSS № 108 itself. Unlike the dimensionally-explicit mounting specifications in UN Regulations for lamps, light signals, and retro-reflectors, Standard 108 requires most devices to be mounted “as close as practicable” to (as applicable) the front, rear, and/or sides of the vehicle, and for the two lamps of a left/right pair to be mounted “as far apart as practicable”. Determination of practicability is left up to the automaker, and NHTSA’s official policy is not to challenge it unless it is “clearly erroneous”.
So in other words, the devices have to be mounted where they should be, and the automaker will get in trouble only if the devices clearly aren’t. In even simpler words, the maker has to do it right. That seems a vague, hands-off way to regulate, but practically—effectively—it’s nowhere near as lax as it sounds; for the most part it works quite well. Even disregarding vehicles sold in substantially similar configuration in the U.S. and elsewhere (with lights placed according to the UN Regulations’ dimensionally-specific requirements), most vehicles sold only in the U.S. have all their lights and retro-reflectors placed in functionally appropriate positions. Dubious notions of practicability have popped up from time to time—on rare occasion a maker has placed the front turn signals barely 30 cm apart from each other and 78 cm from the outboard edge of a vehicle 186 cm wide, or has used the repeater hole on the fender behind the front wheel for the U.S. front side marker light—but it’s quite a rare occurrence.
Why? Probably because if a lighting installation contributes to a crash or safety problem but meets the applicable explicit regulatory requirement, the only recourse is for the regulation to be changed so future vehicles won’t cause the same problem. But if the requirement is for the maker to do it right, then much more immediate and powerful recourse is available both to the government and to the consumer. The regulators can tell the automaker they did it wrong and have to fix it, and the consumer can sue the automaker for negligence. No company wants either of those things to happen, so there’s strong incentive to do it right.
How might this do-it-right principle, already present in FMVSS № 108, be applied more broadly? The regulation could say the lighting system must be designed, equipped, and configured appropriately for U.S. conditions, needs, and expectations; and all devices and systems must be designed, built, and tested in accord with prevailing best practices as defined in recognised technical standards as amended from time to time. A list of such standards might include SAE J2442, UN Regulation 48, and/or JIS D-5500 for installation, and the various SAE, UN, and JIS standards for design, construction, durability, and performance of devices and systems.
This approach might seem to provoke compatibility problems, but many of them are illusory. UN Regulation 48 doesn’t require side marker lights and side retro-reflectors; R149 has lower minimum intensity requirements for low beams than FMVSS № 108; turn signals and stop lamps are permitted by R148 to be smaller and dimmer than FMVSS № 108 allows, and JIS D-5500 specifies low beams for left-hand traffic, but none of those would make real problems because U.S. conditions, needs, and expectations include all vehicles being equipped with side markers and reflectors, right-traffic low beams giving seeing distance adequate for U.S. roadway geometry, and signal lights big and intense enough to be clearly conspicuous in very bright sunshine. And so on and on; automakers failing to cater for U.S. conditions, needs, and expectations would expose themselves to legal liability, bad grades and ratings on consumer-orientated tests, and other unfavourable pressures.
In a very real sense, it would be a large step toward the performance-based standards NHTSA have long advocated. And lawyers, insurance groups, consumer groups, and programs like NCAP would provide layers of incentive for automakers do the whole job right. Meanwhile, drivers could have the latest and greatest lights with minimal delay. American regulatory lag, obsolescence, and misalignment would be a thing of the past, and American expertise and innovation would be much better positioned to contribute to advancing the the state of vehicle lighting technology and technique for the benefit of everyone who participates or interacts with traffic anywhere in the world.
It might seem as though some kind of miracle would be needed to bring about such a fundamental change. Maybe or not; to find out, someone (or, preferably, a formidable group of interested parties) would have to thoughtfully petition NHTSA. Such a petition, carefully phrased, could leverage the existing reality of an American de-regulatory sentiment to achieve where the current approach has failed. Who will step up? The worst they can do is say no.
