Parts and Accessories Necessary for Safe Operation; Denial of the International Window Film Association's Exemption Application

T.F. Scott Darling III
Federal Motor Carrier Safety Administration
June 11, 2015

[Federal Register Volume 80, Number 112 (Thursday, June 11, 2015)]
[Notices]
[Pages 33326-33328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14272]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[[Docket No. FMCSA-2013-0436]


Parts and Accessories Necessary for Safe Operation; Denial of the 
International Window Film Association's Exemption Application

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Denial of exemption application.

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SUMMARY: FMCSA denies an exemption application from the International 
Window Film Association (IWFA) to allow the use of glazing in the 
windows to the immediate right and left of the driver that does not 
meet the light transmission requirements specified in the Federal Motor 
Carrier Safety Regulations (FMCSR). The current rule permits 
windshields and side windows of commercial motor vehicles (CMVs) to be 
tinted as long as the light transmission is not restricted to less than 
70 percent of normal. While IWFA contended that a reduction of light 
entering the truck cab interior can (1) significantly improve driver 
comfort, (2) reduce eye strain, and (3) reduce the heat load of the 
interior environment, thus making the driver more comfortable as well 
as lowering energy use for cooling, it failed to provide any evidence 
that motor carriers operating CMVs equipped with glazing that blocks 
more normal light than currently permitted will achieve a level of 
safety that is equivalent to, or greater than, the level of safety that 
would be obtained by complying with the regulation.

FOR FURTHER INFORMATION CONTACT: Mr. Mike Huntley, Vehicle and Roadside 
Operations Division, Office of Bus and Truck Standards and Operations, 
MC-PSV, (202) 366-5370; Federal Motor Carrier Safety Administration, 
1200 New Jersey Avenue SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: 

Background

    Section 4007 of the Transportation Equity Act for the 21st Century 
(TEA- 21) [Pub. L. 105-178, June 9, 1998, 112 Stat. 401] amended 49 
U.S.C. 31315 and 31136(e) to provide authority to grant exemptions from 
the FMCSRs. On August 20, 2004, FMCSA published a final rule (69 FR 
51589) implementing section 4007. Under this rule, FMCSA must publish a 
notice of each exemption request in the Federal Register (49 CFR 
381.315(a)). The Agency must provide the public with an opportunity to 
inspect the information relevant to the application, including any 
safety analyses that have been conducted. The Agency must also provide 
an opportunity for public comment on the request.
    The Agency reviews the safety analyses and the public comments and 
determines whether granting the exemption would likely achieve a level 
of safety equivalent to or greater than the level that would be 
achieved by the current regulation (49 CFR 381.305). The decision of 
the Agency must be published in the Federal Register (49 CFR 
381.315(b)). If the Agency denies the request, it must state the reason 
for doing so. If the decision is to grant the exemption, the notice 
must specify the person or class of persons receiving the exemption and 
the regulatory provision or provisions from which an exemption is 
granted. The notice must also specify the effective period of the 
exemption (up to 2 years) and explain the terms and conditions of the 
exemption. The exemption may be renewed (49 CFR 381.315(c) and 49 CFR 
381.300(b)).

IWFA Application for Exemption

    IWFA applied for an exemption from 49 CFR 393.60(d) to allow the 
use of glazing in the windows to the immediate right and left of the 
driver that does not meet the light transmission requirements specified 
in the FMCSRs. A copy of the application is included in the docket 
referenced at the beginning of this notice.
    Section 393.60(d) of the FMCSRs permits coloring or tinting of 
windshields and the windows to the immediate right and left of the 
driver, as long as the ``parallel luminous transmittance through the 
colored or tinted glazing is not less than 70 percent of the light at 
normal incidence in those portions of the windshield or windows which 
are marked as having a parallel luminous transmittance of not less than 
70 percent.'' The transmittance restriction does not apply to other 
windows on the commercial motor vehicle.
    In its application, IWFA states:

    Many commercial operators, however, have been unable to obtain 
the approved film products in a timely and local basis; this has 
generated a significant volume of inquiries to federal, state, and 
association offices. We are therefore requesting a favorable 
consideration for the use of a market-standard 50%-type of film with 
a 7% measurement tolerance (to accommodate variances in glass, glass 
condition, film manufacturing variation, and meter differences.) 
This would allow the standard 50%-type film to be used on CMVs for 
the windows to the immediate right and left of the driver. This film 
is the same minimum visibility requirement used in the majority of 
states for automobiles and is essentially ``clear'' to the extent 
that, in most cases, it is difficult to determine if a vehicle even 
has had film applied. Since a reduction of light entering the truck 
cab interior will decrease not only available visible light but also 
scattered light (sometimes called ``interference haze'' by optical 
researchers), it can significantly improve driver comfort and reduce 
eye strain while also allowing films to be used which can also 
reduce the heat load of the interior environment, thus making the 
driver more comfortable as well as lowering energy use for cooling.


[[Page 33327]]


    In support of its application, IWFA also provided an excerpt from 
an article titled ``Safety Benefits and Costs of Tinted Glazing'' 
published in 1988 by Harold Wakeley of the IIT Research Institute of 
Chicago.
    In addition, IWFA stated:

    This level of application would retain the industry's commitment 
to the enforcement community and also provide the commercial fleet 
operator with the expanded benefits of a larger number of film 
products which can provide energy and emissions improvements. It 
should be noted that while there may be no additional improvement in 
UV protection from that received by the current standard of 70 
percent, the added benefit of fuel savings (and therefore greenhouse 
gas reductions) as well as reduced glare (haze) and enhanced driver 
comfort are greatly expanded by the benefits associated with the use 
of the requested level of film on CMVs.

Safety Requirements

    Section 393.60(a) of the FMCSRs requires that ``Glazing material 
used in windshields, windows, and doors on a motor vehicle manufactured 
on or after December 25, 1968, shall at a minimum meet the requirements 
of Federal Motor Vehicle Safety Standard (FMVSS) No. 205 in effect on 
the date of manufacture of the motor vehicle.''
    NHTSA is authorized to issue safety standards applicable to new 
motor vehicles and motor vehicle equipment under 49 U.S.C. 30101 et 
seq. These safety standards establish minimum performance requirements 
for motor vehicles and motor vehicle equipment in order to ``reduce 
traffic accidents and deaths and injuries resulting from traffic 
accidents'' [49 U.S.C. 30101]. Under this authority, NHTSA issued FMVSS 
No. 205, ``Glazing materials,'' which applies to all new vehicles and 
all new glazing materials for use in motor vehicles. FMVSS No. 205 
specifies performance requirements and permissible locations for the 
types of glazing that may be installed in motor vehicles. The standard 
incorporates by reference American National Standards Institute (ANSI) 
Standard Z26.1, ``Safety Code for Safety Glazing Materials for Glazing 
Motor Vehicles Operating on Land Highways,'' (Z26). The requirements in 
Z26 are specified in terms of performance tests that the various types 
of glazing must pass.
    One of the tests is for luminous, or light, transmittance. This 
test measures the regular (parallel) transmittance of a sample of the 
glazing, in terms of the percentage of incident light that passes 
through the glazing. During the test, light strikes the glazing at a 90 
degree angle. To pass the test, the glazing must allow 70 percent of 
the incident light to pass through.
    The amount of light transmitted through vehicle glazing affects the 
ability of the driver to see objects on the road. Low light 
transmittance can make it difficult to detect low contrast objects, 
such as pedestrians, whose luminance and coloring causes them to blend 
with the background of the roadside environment. The effect of low 
light transmittance levels on the driver's vision is most pronounced at 
dusk and night when the ambient light level is low. This is because the 
``contrast sensitivity'' of the eye diminishes as the overall 
brightness of the scene decreases. This lower contrast sensitivity 
makes it especially difficult to discern low contrast objects. This 
problem is most acute for older drivers who have poorer contrast 
sensitivity. Contrast sensitivity declines by a factor of two about 
every 20 years after age 30. Thus, older drivers have poorer dusk and 
night vision.
    The light transmittance requirements must be met by all glazing 
installed in windows that are ``requisite for driving visibility.'' For 
CMVs, glazing that meets the 70 percent light transmittance requirement 
is required in the windshield and the windows to the immediate left and 
right of the driver. Section 393.60 of the FMCSRs does not require 
other windows on CMVs (i.e., rear windows) to meet the 70 percent light 
transmittance requirement, as Section 393.80 of the FMCSRs requires 
every bus, truck, and truck tractor to be equipped with two rear-vision 
mirrors, one at each side, firmly attached to the outside of the motor 
vehicle and so located as to reflect to the driver a view of the 
highway to the rear, along both sides of the vehicle. These rear-vision 
mirrors must meet the requirements of FMVSS No. 111, ``Rearview 
mirrors,'' in effect at the time the vehicle was manufactured.

NHTSA Rulemaking and Report to Congress

    On August 10, 1988, a group of businesses submitted a petition for 
rulemaking to NHTSA on the issue of light transmissibility for motor 
vehicle glazing. Specifically, NHTSA was petitioned to amend FMVSS No. 
205 to permit 35 percent minimum luminous transmittance plastic film on 
glazing in the side and rear locations of passenger cars. The petition 
was accompanied by a report, ``Safety Benefits and Costs of Tinted 
Vehicle Glazing'' by the Illinois Institute of Technology Research 
Institute (IITRI)--the same report cited by IWFA in the subject 
exemption application. On July 20, 1989, NHTSA published a notice in 
the Federal Register granting the petition and requesting public 
comment on the issues raised in the petition (54 FR 36427).
    The House Appropriations Committee Report accompanying the 
Department of Transportation Appropriations Act for Fiscal Year 1991 
requested NHTSA to report to the House and Senate Committees on 
Appropriations on the adequacy of current regulations governing window 
tinting. In March 1991, NHTSA issued a Report to Congress on Tinting of 
Motor Vehicle Windows which, among other things, concluded:

     While it is not possible to quantify the safety effects 
of lowering the light transmittance through window tinting, data 
indicate that extensive tinting can reduce the ability of drivers to 
detect objects, which could lead to an increase in crashes.
     The benefits of tinting do not appear great enough to 
justify any loss in safety that may be associated with allowing 
excessive tinting of windows. Further, technology already being 
applied in production car windows can reduce the heat build up in 
the occupant compartment while preserving the driver's visibility. A 
greater reduction in the ability of drivers to see through the 
windshield, rear window or front side windows would be expected to 
decrease highway safety.

    On January 22, 1992, NHTSA published a notice of proposed 
rulemaking in the Federal Register to amend FMVSS No. 205 to (1) revise 
the light transmittance requirements to replicate real-world conditions 
more closely, (2) adjust the required light transmittance levels in the 
standard in response to the new test procedure and other 
considerations, and (3) make the light transmittance requirements 
consistent for passenger cars and light trucks (57 FR 2496).
    On July 14, 1998, NHTSA published a notice in the Federal Register 
withdrawing the proposed amendments to FMVSS No. 205 to revise its 
light transmittance requirements (63 FR 36427). In part, NHTSA 
concluded that there was limited prospect of commensurate increases in 
visibility and safety, and indicated that it wanted to better define 
the relationship between light transmittance and highway safety before 
requiring differing transmittance values for different vehicle windows.

Public Comments

    On January 23, 2014, FMCSA published a notice of the IWFA 
application and asked for public comment (79 FR 3916). The Agency 
received 16 comments.
    The Agency received 12 comments in support of IWFA's exemption 
application, including 10 from individual drivers, one from a motor

[[Page 33328]]

carrier representative, and one from the American Trucking Associations 
(ATA), a united federation of motor carriers, state trucking 
associations, and national trucking conferences. The individual drivers 
and the motor carrier representative cited many of the same (or 
similar) benefits identified by IWFA in its exemption application in 
support of allowing the use of glazing that blocks more normal light 
than currently permitted, including (1) reduced glare, (2) reduced eye 
stress/strain, tiredness, and headaches due to heat, (3) increased 
driver comfort and awareness due to decreased cab temperatures, (4) 
increased privacy at truck stops, (5) reduced risk of skin cancer, and 
(6) increased availability and lower cost when compared to compliant 
glazing. ATA supported the exemption application, stating that it 
``believes that this exemption will not adversely impact safety and may 
help reduce heat load thereby lowering energy use and improving fuel 
economy.''
    FMCSA Response: None of the commenters that supported the exemption 
application provided any data or information to demonstrate that an 
equivalent level of safety would be maintained with the reduction in 
light transmittance. FMCSA agrees with NHTSA's previous conclusions 
that (1) the suggested benefits of reduced light transmission levels 
are minimal and can be better achieved through other means, and (2) a 
reduction in the ability of drivers to see through the windshield, rear 
window or front side windows would be expected to decrease highway 
safety. Consistent with the previous findings by NHTSA, FMCSA believes 
that any potential benefits of reduced light transmittance are not 
great enough to justify any corresponding loss in safety that may be 
associated such reduction.
    The Agency received four comments opposed to IWFA's exemption 
application, including two from individual drivers, one from a retired 
police officer, and one from Advocates for Highway and Auto Safety 
(Advocates). The individual drivers noted that window tinting (1) 
reduces visibility, explicitly at night, and (2) inhibits the ability 
to establish eye contact with other drivers and pedestrians at 
intersections. The retired police office cited concerns regarding the 
safety of law enforcement officials, noting that tinted windows make it 
more difficult to see how many persons are occupying vehicles, and 
possible weapons, drugs, or contraband on board the CMV.
    Advocates stated that as the IWFA exemption, if granted, would 
apply to all CMVs, it was concerned that:

[t]he exemption would amount to a whole cloth change of current 
regulation for all commercial motor vehicles which should more 
appropriately be handled through rulemaking rather than exemption 
procedures. Advocates is further concerned that should this 
exemption be granted, at the end of the two-year exemption period 
there would be widespread non-compliance unless the exemption were 
extended, which would lead to repetitive requests for renewal of the 
exemption. This situation would effectively eliminate the current 
regulation, or require that portion of the fleet using the proposed 
film to replace the window films or glazing in order to conform to 
the existing rule without the exemption. The FMCSA should deny the 
present petition and address the proposal through the rulemaking 
process.

    In addition, Advocates states that IWFA ``neither performed nor 
included any form of safety analysis in the Application nor provided 
any form of explanation as to how the Applicant would ensure that the 
proposed alternative window film light transmission levels would 
achieve an equivalent level of safety as required by both statute and 
regulation.'' Specifically, Advocates stated:

[t]here is no discussion of safety or the impact that decreased 
light transmission may have under other conditions, such as at night 
when this may reduce the driver's ability to view objects and 
vehicles through the side windows and mirrors. While the Applicant 
does cite a decades old paper on the benefits of reduced light 
transmittance, there is no discussion of this effect in any way, let 
alone in terms of safety, on the operation of a commercial vehicle. 
Additionally the citing of summary findings from a single work of 
decades old research in no way qualifies as an ``assessment of 
safety'' as required by statute and regulation.

    FMCSA response: The comments regarding reduced visibility, 
especially at night, are consistent with previous NHTSA findings, and 
FMCSA agrees that this reduced visibility would likely lead to a 
reduction in safety. FMCSA agrees with Advocates that none of the 
commenters that supported the exemption application provided any data 
or information to demonstrate that an equivalent level of safety would 
be maintained with the reduction in light transmittance. Lacking any 
such data or information, FMCSA is unable to make a determination--as 
required in 49 CFR 381.305(a)--that motor carriers would be able to 
maintain a level of safety equivalent to, or greater than, the level 
achieved without the exemption.

FMCSA Decision

    The purpose of FMVSS No. 205 is to (1) reduce injuries resulting 
from impact to glazing surfaces, (2) minimize the possibility of 
occupants being thrown through the vehicle windows in collisions, and, 
specifically with respect to the subject IWFA exemption application, 
(3) ensure a necessary degree of transparency in motor vehicle windows 
for driver visibility. While IWFA contended that a reduction of light 
entering the truck cab interior can (1) significantly improve driver 
comfort, (2) reduce eye strain, and (3) reduce the heat load of the 
interior environment thus making the driver more comfortable as well as 
lowering energy use for cooling, it failed to provide any evidence that 
motor carriers operating CMVs equipped with glazing that blocks more 
normal light than currently permitted will achieve a level of safety 
that is equivalent to, or greater than, the level of safety that would 
be obtained by complying with the regulation.
    NHTSA's 1991 Report to Congress acknowledged that ``Although all 
studies show a lowering of the ability to detect targets as tint level 
increases, it is not possible to predict accurately the numerical 
relationship between accidents and tinting.'' At the same time, 
however, the same report states ``The loss, due to excessive tinting 
and its effect on light transmittance, of the ability to see low 
contrast objects such as people, animals or unlighted vehicles is 
clearly a safety problem.'' [Emphasis added].
    Based on all of the above, FMCSA has made a determination to deny 
the IWFA exemption application. Absent any amendments to FMVSS No. 205 
and/or ANSI Z26.1 referenced therein, and lacking any objective data or 
analyses demonstrating that a reduction of the required light 
transmittance from 70 percent to 50 percent in CMVs will not adversely 
affect the level of safety of CMV operations, FMCSA is unable to make a 
determination--as required in 49 CFR 381.305(a)--that motor carriers 
would be able to maintain a level of safety equivalent to, or greater 
than, the level achieved without the exemption.

    Issued on: May 27, 2015.
T.F. Scott Darling, III,
Chief Counsel.
[FR Doc. 2015-14272 Filed 6-10-15; 8:45 am]
 BILLING CODE 4910-EX-P