Federal Motor Vehicle Safety Standards; Reflecting Surfaces

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-97-3278]

RIN 2127-AF74

Federal Motor Vehicle Safety Standards; Reflecting Surfaces

AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION: Denial of petitions for reconsideration.

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SUMMARY: This document denies two petitions for reconsideration of

NHTSA's March 1996 final rule rescinding the Federal Motor Vehicle

Safety Standard on reflecting surfaces. Neither petitioner has raised

any new issues nor presented any new evidence that were not considered

in the final rule.

FOR FURTHER INFORMATION CONTACT: The following persons at the National

Highway Traffic Safety Administration, 400 Seventh Street, S.W.,

Washington, D.C. 20590.

For technical issues: Mr. Richard Van Iderstine, Office of Crash

Avoidance. Mr. Van Iderstine's telephone number is (202) 366-5280, and

his FAX number is (202) 366-4329.

For legal issues: Ms. Dorothy Nakama, Office of the Chief Counsel.

Ms. Nakama's telephone number is (202) 366-2992, and her FAX number is

(202) 366-3820.

SUPPLEMENTARY INFORMATION:

I. Background

Standard No. 107 was promulgated as one of the initial Federal

Motor Vehicle Safety Standards (32 FR 2408, February 3, 1967). The

standard specified reflecting surface requirements for certain ``bright

metal'' components in the driver's forward field of view: the

windshield wiper arms and blades, inside windshield mouldings, horn

ring and hub of the steering wheel assembly, and the inside rearview

mirror frame and mounting bracket. The specular gloss of the surface of

these components was required to be less than 40 units when tested.

(``Specular gloss'' refers to the amount of light reflected from a test

specimen.)

II. Rescission of Standard No. 107

A. Notice of Proposed Rulemaking

In a notice of proposed rulemaking published on June 26, 1995 (60

FR 32935), NHTSA proposed to rescind Standard No. 107, on the grounds

that market forces and product liability concerns have eliminated the

need for its requirements. NHTSA rejected the possibility of extending

the standard's specular gloss limitations to non-metallic surfaces, and

to the instrument panel.

In the NPRM, NHTSA stated its belief that market forces continue to

favor matte finishes and surfaces for components in the driver's field

of view, and are reinforced by product liability concerns. As evidence

of the impact of these factors, NHTSA cited the virtual disappearance

of horn rings and metallic windshield mountings and the use of matte

finishes on unregulated components. The agency also noted that

nonmetallic materials are typically lighter weight than metallic ones.

NHTSA concluded that as a result of the use of nonmetallic

components in the driver's field of view, glare from those components

has been substantially reduced. Increased use of non-metallic materials

(hard plastic or rubber) for parts such as windshield wiper arms and

blades, steering wheel assembly hubs, and inside rearview mirror frame

and mounting brackets, has virtually eliminated the metallic components

that are regulated by the standard.

The decreasing tendency to use metal is also evident with respect

to components not regulated by Standard No. 107. Since 1987, vehicle

interior styling practices have favored a combination of hard plastic

and other materials that do not reflect sufficient light to create

glare. NHTSA stated its belief that market forces will continue to

favor these materials in the future.

In the NPRM, NHTSA tentatively concluded that although it believed

future market forces would favor nonreflecting surfaces, it was

possible that motor vehicle designs, styles, and preferred materials

would change. If such changes should result in motor vehicle components

that may produce distracting glare in the driver's line of sight, NHTSA

stated that it ``intends to review the situation'' through its

statutory authority over safety related defects. 60 FR 32936.

B. Comments

Seven comments were received in response to the NPRM. All

commenters supported the proposed rescission, except for the Advocates

for Highway and Auto Safety (Advocates), and the State of Connecticut

(Connecticut). The Insurance Institute for Highway Safety (IIHS)

supported rescission but objected to NHTSA's reliance on product

liability considerations and recall procedures as rationales for

rescission.

C. Final Rule and Petitions for Reconsideration

On March 21, 1996, NHTSA issued a final rule rescinding Standard

No. 107 (61 FR 11587). NHTSA concluded that Standard No. 107 could be

rescinded without adversely affecting safety. This conclusion was based

on the agency's finding that vehicle manufacturers had established a

practice of using nonglossy materials and matte finishes on unregulated

components as well as the components regulated by Standard No. 107.

Since manufacturers have elected to use nonglossy surfaces on

components not regulated by the standards, NHTSA concluded that

rescinding Standard No. 107 would not result in the return of the

glossy surfaces that prompted the agency to issue the standards. In

reaching this conclusion, NHTSA also noted that the virtual elimination

of metallic components within the driver's forward field of view had

already reduced the effective scope of the standard ``to the level of

insignificance.'' 61 FR 11587.

Subsequent to issuance of the final rule, petitions for

reconsideration were submitted by the Center for Auto Safety (CAS) and

Dr. Merrill Allen, neither of whom had commented on the NPRM. CAS

asserted that NHTSA's rescission of Standard No. 107 ``cannot stand''

for the following four reasons:

(1) NHTSA provided no satisfactory basis and explanation for

``reversing course'' and rescinding a safety standard.

(2) NHTSA relied on factors Congress did not intend NHTSA to

consider, which are not adequate substitutes for continued enforcement

of Standard No. 107. In particular, NHTSA's reliance on ``market

forces'' is ``implausible and run[s] counter to the evidence in the

rulemaking record.''

(3) There are ``identified market segments'' which are eager to

supply an apparent demand for bright metal interior components.

Rescinding Standard No. 107 would encourage this demand.

(4) NHTSA's final rule ignores information in the record reflecting

the need to extend the Standard to reduce glare from currently

unregulated sources and is therefore ``arbitrary, capricious, and an

abuse of discretion.''

In making its first two arguments, CAS relied on the legal standard

for rescinding a Federal Motor Vehicle Safety Standard established in

the 1983 U.S. Supreme Court decision Motor Vehicle Manufacturers

Association v. State Farm Mutual Automobile Insurance Co., Inc. (463

U.S. 29) (hereafter cited as State Farm). NHTSA

[[Page 47]]

will address each of CAS' assertions below.

III. Review of CAS' Petition

1. Legal Standard for Review Established by the Supreme Court

In its petition for reconsideration, CAS stated its view of the

legal principles established in State Farm. In essence, CAS argues that

NHTSA's rescission of Standard No. 107 was ``arbitrary and capricious''

and did not meet State Farm's principles for rescinding a Federal motor

vehicle safety standard (FMVSS). In State Farm, the Supreme Court cited

Citizens to Preserve Overton Park v. Volpe (401 U.S. 402, 414 (1971))

to the effect that an agency's actions in promulgating motor vehicle

safety standards may be set aside if found to be ``arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with

law.'' (463 U.S. at 41)

The Supreme Court noted that revoking a standard constitutes a

reversal of the agency's former views as to the proper course: ``There

is, then, at least a presumption that those policies will be carried

out best if the settled rule is adhered to.'' (463 U.S. at 42)

Therefore, an agency changing its course by rescinding a rule must

supply ``a reasoned analysis for the change beyond that which may be

required when an agency does not act in the first instance.'' (463 U.S.

at 42)

At the same time, the Supreme Court recognized that ``regulatory

agencies do not establish rules of conduct to last forever'' (citing

American Trucking Assns., Inc. v. Atchison, T. & S.F.R. Co. (387 U.S.

397, 416 (1967)) and that an agency must be given latitude to ``adapt

their rules and policies to the demands of changing circumstances''

(citing Permian Basin Area Rate Cases, 390 U.S. 747, 784 (1968)). (463

U.S. at 42) The Supreme Court further stated that the presumption from

which judicial review should start is against changes in current policy

that are not justified by the rulemaking record. (See 463 U.S. at 42)

A. NHTSA Has Not ``Reversed Course'' in Rescinding Standard No. 107

The CAS's first assertion under State Farm is that in rescinding

Standard No. 107, it has ``revers[ed] course'' without a satisfactory

basis and explanation. NHTSA, however, looks at the rescission of the

Standard as the logical end result of the rulemaking history of

Standard No. 107.

The Supreme Court described the rulemaking record of the Standard

at issue in State Farm as follows: ``Over the course of approximately

60 rulemaking notices, the requirement has been imposed, amended,

rescinded, reimposed, and now rescinded again.'' (463 U.S. at 34) CAS

tries to analogize the facts in the rescission of Standard No. 107 to

the facts in State Farm, and argues that the fact of rescinding

Standard No. 107 (i.e., a Standard that had been in effect for thirty

years) makes NHTSA's actions ``arbitrary and capricious.''

In contrast to the facts in State Farm, the history of Standard No.

107 shows no pattern of frequent changes. Despite opportunities to do

so, NHTSA has never determined that expanding Standard No. 107 would

meet the need for safety. The rescinded Standard No. 107 was the same

Standard promulgated in 1967.

In an NPRM dated November 13, 1987 (52 FR 43628), NHTSA considered

whether to extend Standard No. 107's specular gloss limitations to non-

metallic surfaces. NHTSA considered three issues: (1) Whether there are

safety benefits in retaining Standard No. 107; (2) whether there is

justification to apply the specular gloss requirement to non-metallic

versions of the components already covered by Standard No. 107; and (3)

whether there is a need to expand Standard No. 107 to other component

parts (such as instrument panel pads).

On the first issue, NHTSA concluded the Standard No. 107's limits

on highly reflective components, (i.e., possible sources of glare),

still addressed a safety problem for drivers. On the second issue,

NHTSA proposed to extend the standard to non-metallic components,

tentatively determining that the problem posed by glossy non-metallic

components was indistinguishable from the problem posed by glossy

metallic components. On the third issue, NHTSA declined to propose

extending Standard No. 107 to other vehicle components, since it found

no data showing that glare from unregulated components has presented a

safety problem.

In 1989, NHTSA terminated the rulemaking after finding no evidence

to substantiate a safety problem with glare from non-metallic surfaces.

(54 FR 35011, August 23, 1989).

In 1991, the CAS petitioned NHTSA to add the instrument panel

surface as a newly regulated item in Standard No. 107. CAS believed

that such an action would ``significantly limit dashboard reflections

in windshields'', and limit ``veiling glare'' as a ``major source of

vision impairment.'' NHTSA denied CAS's petition (see 56 FR 40853,

August 16, 1991), after determining that there was no evidence of a

visibility problem that warranted rulemaking.

The agency could find no information showing that dashboard

reflections constituted a safety hazard. At the time (i.e., in 1991), a

search of the NHTSA consumer complaint file found only 23 complaints

that were related to light refections from the dashboard in over

138,000 complaints (0.017 percent). NHTSA determined that the

insignificant number of complaints reinforced the agency's prior

determinations that there is no need to expand the scope of Standard

No. 107. Therefore, NHTSA found no safety need to add to the components

covered by Standard No. 107.

B. NHTSA relied on Appropriate Factors, including Market Forces, in

Rescinding Standard No. 107

In its second argument under State Farm, CAS asserted that NHTSA

relied on factors that Congress did not intend it to consider, which

are not adequate substitutes for continued enforcement of Standard No.

107. In particular, CAS pointed to the President's Regulatory

Reinvention Initiative as a factor Congress did not intend NHTSA to

consider, and described NHTSA's reliance on ``market forces'' as

``implausible'' and ``counter to the evidence in the rulemaking

record.''

In State Farm, the Supreme Court cited the Permian Basin Area Rate

Cases (390 U.S. 747, 416 (1967)) for the principle that an agency must

be given latitude to ``adapt their rules and policies to the demands of

changing circumstances.'' (463 U.S. at 42). NHTSA did not decide to

rescind Standard No. 107 precipitously. It decided to rescind the

Standard after observing long-term changes in the composition of

components in vehicle interiors (whether or not the component was

regulated by Standard No. 107). It used its knowledge of the motor

vehicle industry to determine that cost of materials (a ``market

force'') is an important consideration for vehicle manufacturers, and

would continue to be so. NHTSA also noted that since rubber and

plastics tend to cost and weigh less than metals, vehicle manufacturers

would likely continue to use less expensive materials in the components

specified in Standard No. 107.

Although CAS cites the President's Regulatory Reinvention

Initiative (RRI) as a factor that Congress did not intend NHTSA to

consider, the RRI only provided NHTSA an opportunity to revisit an

important issue first raised in the 1987 NPRM: does Standard No. 107

continue to address a safety problem for

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drivers? NHTSA determined that the answer was now no.

An updated search conducted in 1995 of NHTSA's consumer complaint

file found 52 complaints that were related to dashboard glare in over

241,000 complaints (0.021 percent). The 0.021 rate is about the same as

the 1991 complaint rate of 0.017 percent. This updated search indicated

the number of complaints related to dashboard glare continues to be

minuscule.

CAS also alleged in a December 17, 1996 letter to NHTSA's

Administrator that the count of 52 complaints of veiling glare from the

dash was understated. According to that letter, CAS had determined

there were at least 150 complaints of veiling glare among the more than

241,000 complaints. Thus, instead of representing 0.021 percent of

complaints from the public, as acknowledged by NHTSA, CAS believed

veiling glare actually represents 0.063 percent of the complaints NHTSA

has received from the public.

NHTSA used a standardized computer keyword search of its complaints

to arrive at its count of 52 relevant complaints. Even if NHTSA were to

accept the CAS count of 150 dashboard glare complaints as accurate, the

agency would still reiterate its previously-stated conclusion--so few

complaints from the public about an aspect of design that has never

been regulated on any of the hundreds of millions of vehicles on the

road can reasonably be said to show there is no need for the agency to

expend its limited resources to try to address dashboard glare, because

the available evidence (NHTSA's complaints) indicate the public finds

this to be an insignificant safety problem.

NHTSA saw no safety value in 1995 to continue to regulate

components (such as windshield wiper blades, the steering wheel hub and

interior mirror frame and mounting bracket) that still exist on new

motor vehicles. Observing the types of components actually used in

today's vehicles, the agency concluded that none of those components is

a potential source of reflecting surface distraction in the driver's

field of view.

In new vehicles in the late 1990's, the inside windshield metal

moldings and horn rings are no longer provided. As for the other

specified components, vehicle manufacturers have redesigned windshield

wiper arms and blades so that many of them are recessed below the view

of the driver when not in use. The arms and blades are usually black

and finished with a matte surface. Manufacturers have placed air bags

in steering wheel hub assemblies so that the hubs cannot be made of

``bright metal'' if the air bags are to deploy properly. The mirror

frame and mounting bracket are made out of plastic.

NHTSA notes that in the almost thirty years that Standard No. 107

was in effect, vehicle manufacturers were not prohibited from

installing vehicle components (including those specified in Standard

No. 107) made out of metals with a matte or burnished surface. Styling

considerations have apparently never introduced such dull metals into

components in the line of sight of the driver or elsewhere in the

vehicle interior in any significant volume. Lack of dull metals

indicates that regardless of styling and other cosmetic considerations,

vehicle manufacturers are choosing to reduce costs by minimizing

metallic components in vehicles.

For these reasons, NHTSA's rescission of Standard No. 107 was not

arbitrary and capricious but the result of a reasoned analysis, based

on its observations of the new vehicle market.

2. ``Identified Market Segments'' Have Obtained Bright Metal Parts in

the Aftermarket Despite Standard No. 107

In addition to issues arising from State Farm, CAS asserted that

there are ``identified market segments'' with a demand for bright metal

interior components. CAS stated its belief that the demand includes

components regulated under Standard No. 107. CAS asserted that at least

one manufacturer is eager to serve these markets and to respond to this

and any other such consumer demand. But for Standard No. 107, CAS

states that the manufacturer (Vehicle Improvement Products (VIP)) and

others would freely serve these markets. As evidence, CAS pointed to

VIP's comment in response to the June 26, 1995 NPRM that there is a

demand for ``polished and/or chrome plated steering wheel surfaces'' as

a contradiction to NHTSA's assertion that there is no market for bright

metal components.

NHTSA believes that CAS's comment does not acknowledge a difference

in applicability of the Standard between the new vehicle manufacturer

and the after market equipment manufacturer. Standard No. 107 applied

to new vehicles only, and did not regulate the actions of after market

equipment manufacturers. Standard No. 107 applied to ``passenger cars,

multipurpose passenger vehicles, trucks, and buses.'' The Standard

imposed restrictions on specified equipment in new vehicles. The

Standard never prohibited sales of aftermarket equipment, including the

components specified in Standard No. 107, that were made of bright

metal that exceeded a specified specular gloss. Further, even in a new

vehicle, the Standard did not generally regulate ``steering wheel

surfaces,'' it regulated only the hub of the steering wheel assembly.

Thus, even when Standard No. 107 was in effect, the Standard did

not restrict equipment manufacturers, including VIP from selling shiny

metallic steering wheels in the aftermarket, even if the steering wheel

hubs did not meet the specular gloss limitations of Standard No. 107.

(Whether a business could install a shiny metallic steering wheel hub

without violating 49 U.S.C. Sec. 30122, by making safety devices and

elements inoperative, is not an issue within the scope of this

rulemaking. However, NHTSA would not have had any authority over an

owner installing a shiny metallic steering wheel hub in his or her own

vehicle.)

CAS also pointed to the State of Connecticut's comments (in

response to the June 1996 NPRM) that small aftermarket parts

manufacturers are ``quick to respond to market demands without fully

evaluating all of the safety aspects on which their component would

have an affect.'' Connecticut also commented that states can require

vehicles to be maintained in compliance with FMVSS's to prevent such

things as bright metal windshield wiper blades to be installed. It

argued reliance on the FMVSS ``quells market demand before the

liability factors would surface.''

In response to CAS's comments about Connecticut's views, we first

note that CAS has not refuted the principal basis for the rescission:

The evident and universal practice by vehicle manufacturers of

designing their vehicles to avoid the use of metallic (or nonmetallic)

components with glossy surfaces, whether or not regulated. Based on

that practice, we do not believe that there will be a demand for

original equipment glossy components on new vehicles. In the absence of

any demand, there would be unlikely to be more than a negligible supply

of those components produced by aftermarket manufacturers.

As earlier stated, when Standard 107 was in effect, the Standard

did not prohibit a business from manufacturing glossy metallic vehicle

components for the aftermarket or prevent an individual owner from

installing, for example, a shiny steering wheel hub on his or her

vehicle. Even so, the agency is not aware of any significant instances

of

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such manufacture or installation. Restrictions on equipment on

registered vehicles and changes that owners may make on their own

vehicles are matters of State law.

3. Standard No. 107 Was Never Intended to Address Glare Generally, and

the Standard Will Not Be Reinstated and Expanded to Address ``Veiling

Glare''

CAS asserted that the Association of International Automobile

Manufacturer's (AIAM) comment to the June 1995 NPRM, that since

Standard No. 107 ``does not cover all components for which

manufacturers have needed to reduce glare,'' and ``[i]n the absence of

any concern [by NHTSA] that manufacturers have not addressed glare from

these other components,'' the Standard is not necessary, should have

``triggered alarm bells at the Agency as it contemplated rescinding the

only standard regulating interior compartment glare.''

CAS appears to believe that NHTSA has not considered the issue of

potential glare from sources other than the components regulated in

Standard No. 107. NHTSA does not agree, since the agency has in the

past carefully looked at glare issues outside of Standard No. 107. As

earlier stated, the NPRM (60 FR 32935, June 26, 1995) outlined NHTSA's

past review of whether Standard No. 107's specular gloss limitations

should be extended to non-metallic surfaces, or to other vehicle

components. A summary of this discussion was provided earlier. For the

reasons previously explained, NHTSA decided there is no evidence of any

safety need to extend the scope of Standard No. 107. In addition, as

has been previously noted, there is no evidence in the record of any

significant use of unregulated components with glossy finishes by

vehicle manufacturers.

CAS also suggests that the agency's desire to reduce glare from

shiny metallic components arises from an underlying generalized concern

about interior compartment glare. CAS therefore urges that Standard No.

107 be reinstated and expanded to address veiling glare, i.e., the

reflection cast by light-hued and/or glossy surfaced dashboards onto

the windshield.

As previously noted, Standard No. 107 never regulated veiling

glare. On August 16, 1991 (56 FR 40853), NHTSA denied a petition from

the CAS to amend Standard No. 107 by including the instrument panel

surface as a regulated item, limiting ``veiling glare'' as a ``major

source of vision impairment.'' Since Standard No. 107 did not regulate

veiling glare, CAS's comments on veiling glare are outside the scope of

this rulemaking action and are not relevant to a petition for

reconsideration of rescission of Standard No. 107.

IV. Dr. Allen's Petition

In a submission dated May 2, 1996, Dr. Merrill J. Allen, Professor

Emeritus of Optometry of Indiana University (Bloomington, Indiana)

petitioned NHTSA to reconsider rescinding Standard No. 107. Dr. Allen

asserted that ``Standard No. 107 needs to be strengthened, not

rescinded.'' He estimated that crashes will increase more than 10 to

15% by rescinding Standard No. 107, but provided no information how he

formulated this estimate. He urged NHTSA to reinstate Standard No. 107

and to amend the Standard by specifying a black flock or velvet finish

on all motor vehicle dash panels, to minimize veiling glare.

Dr. Allen has not raised any new issues or presented any new

evidence not considered in previous rulemakings. As previously noted,

the veiling glare issue was addressed in 1991 by NHTSA in response to a

rulemaking petition from CAS. NHTSA denied CAS's petition (56 FR 40843,

August 16, 1991), after determining that there was no visibility

problem which warranted Federal rulemaking. Further, since Standard No.

107 never regulated it, veiling glare is not germane to the rescission

of the Standard.

V. Denial of Petitions for Reconsideration

NHTSA has considered the issues raised in the petitions for

reconsideration filed by the CAS and by Dr. Allen. Because they

presented no new evidence or issues, the petitions for reconsideration

are denied.

Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;

delegation of authority at 49 CFR 1.50.

Issued on: December 24, 1997.

L. Robert Shelton,

Associate Administrator for Safety Performance Standards.

[FR Doc. 97-34085 Filed 12-31-97; 8:45 am]

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