Interpretation ID: nht88-2.20

TYPE: INTERPRETATION-NHTSA

DATE: 05/06/88

FROM: DAIRL BRAGG -- DIRECTOR STATE GOVERNMENT RELATIONS MOTOR AND EQUIPMENT MANUFACTURERS ASSOCIATION

TO: WILLIAM S. HIATT -- COMMISSIONER DIV. OF MOTOR VEHICLES NORTH CAROLINA

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 04/13/89 FROM ERIKA Z. JONES -- NHTSA TO MABEL Y. BULLOCK, REDBOOK A33, STANDARD 205, VSA 103 (D), VSA SECTION 108 (A)(2)(A); LETTER FROM MABEL Y. BULLOCK AND LACY H. THORNBURG TO SUSAN SCHRUTH -- NHTSA RE WINDOW TINTIN G, FEDERAL PRE-EMPTION OF STATE REGULATIONS, OCC 2142; NORTH CAROLINA STATUTE REGULATION WINDOW TINTING; LETTER DATED 12/18/87 FROM LACY H. THORNBURG AND MABEL Y. BULLOCK, SUBJECT MOTOR VEHICLES, REGULATIONS OF DARK SHADED WINDOWS; PREEMPTION; LETTER DAT ED 10/28/82 FROM FRANK BERNDT -- NHTSA TO LAWRENCE T. HIROHATA, N0A-30; LETTER DATED 04/04/85 FROM JEFFREY R. MILLER TO ARMOND CARDARELLI; REGULATIONS DATED 07/01/85 EST, FEDERAL AUTO SAFETY LAWS AND MOTOR VEHICLE WINDOW TINTING

TEXT: Dear Commissioner Hiatt:

Thank you for providing me the opportunity, on behalf of the sunscreen industry, to meet with you and your people to address the problem concerning the implementation of HB-955, the new automotive sunscreen law.

We, as an industry, believe we have acted responsibly in attempting to exercise our right to compete in commerce in the state of North Carolina. We have asked the legislature to regulate our industry and provide us with guidelines as to the level of light transmission in sunscreening materials we may provide the consumer for use upon his or her vehicle. The legislature has provided that guidance by the passage of HB-955 in the 1987 session of the General Assembly. However, because of two factors, we now find ourselves in the precarious position of being unable to do business in your state, in keeping with the guidelines provided us in the new law. One factor is the opinion issued on December 18, 1987 by the Attorney General which concludes that a state law or regulation permitting 35% light transmission on windows in motor vehicles would be in conflict with the federal standard 205 and would be preempted by that standard. The second is the adoption of regulation NCAC.3D.0900-.0904 which change s the light transmission permitted in the new law from 35% to 70%.

As I stated at our meeting last week, preemption is not at issue here. Federal Standard 205 regulates the vehicle manufacturer and is applicable to certain windows in certain new vehicles prior to first sale. The one addition to the requirement of th is standard since it became effective in January 1968 is the 1974 amendment to the 1966 Act, Section 108(a)(2)(A), which extends the requirement and applicability to manufacturers, distributors, dealers, or motor vehicle repair businesses. The state law regulates the operation of a motor vehicle in-use upon the public right of way which is

registered or required to be registered in the state and is applicable to the use of approved film upon the windows of that vehicle. The statutory requirements and applicability of standard 205 and the requirements and applicability of the new North Car olina law are clearly two separate and distinct issues. The Chief Counsel of the National Highway Traffic Safety Administration (NHTSA) has consistently stated, in the form of written legal opinions, that they do not have the statutory authority to regu late the consumer in what he or she does or has done to their vehicle after its purchase. At our meeting last week, I provided you with copies of some of those opinions which address this specific issue. Additionally, I talked to Susan Schruth on Monda y, May 2, the NHTSA attorney with whom both Ms. Bullock and I have been discussing this issue. Ms. Schruth reaffirmed this steadfast position of NHTSA.

Since the Attorney General's opinion addressed only the federal standard 205 and its preemption of the state law but did not address the specifics of the new state law, particularly the difference in its requirements and applicability from 205, the fo llowing question should be asked: Would the National Traffic and Motor Vehicle Safety Act of 1966 or Federal Motor Vehicle Safety Standard 205 preempt a state statute or regulation which permits the operation of a motor vehicle in use upon the public rig ht of way which is registered or required to be registered in the state with sun screen film, approved by the Commissioner, upon the side and rear windows which reduces the light transmission to 35%?

Based upon the numerous legal opinions issued by the Chief Counsel of NHTSA stating that they do not have the statutory authority to regulate the consumer and the vehicle in use, the Attorney General may wish to study and evaluate these documents and consider revising his opinion to reflect this NHTSA position.

We look forward to an early amicable resolution of this issue so that our industry may compete in commerce in North Carolina in keeping with the provisions of the new law as we do in in more than 30 other states which have passed favorable legislation regulating our industry.

If I can be of further assistance or provide you with additional information, please do not hesitate to get back in touch with me.

Sincerely,