46 Federal Register / Vol. 63, No. 1 / Friday, January 2, 1998 / Proposed Rules

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.

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 nonmetallic 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
Federal Register / Vol. 63, No. 1 / Friday, January 2, 1998 / Proposed Rules 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 nonmetallic 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
48 Federal Register / Vol. 63, No. 1 / Friday, January 2, 1998 / Proposed Rules

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. § 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
Federal Register / Vol. 63, No. 1 / Friday, January 2, 1998 / Proposed Rules 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]

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