[Federal Register Volume 63, Number 1 (Friday, January 2, 1998)]
[Proposed Rules]
[Pages 46-49]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-34085]
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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
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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
[[Page 49]]
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]
BILLING CODE 4910-59-P
