[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

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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]
BILLING CODE 4910-59-P