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TYPE: INTERPRETATION-NHTSA

DATE: 12/18/87

FROM: LACY H. THORNBURG -- ATTORNEY GENERAL; MABEL Y. BULLOCK -- ASSISTANT ATTORNEY GENERAL NORTH CAROLINA DEPARTMENT OF JUSTICE

TO: WILLIAM S. HIATT -- COMMISSIONER OF MOTOR VEHICLES

TITLE: MOTOR VEHICLES; REGULATIONS OF DARK-SHADED WINDOWS; PREEMPTION

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 TINT ING, FEDERAL PRE-EMPTION OF STATE REGULATIONS, OCC 2142; NORTH CAROLINA STATUTE REGULATING WINDOW TINTING; LETTER DATED 05/06/88 FROM DAIRL BRAGG TO WILLIAM S. HIATT; LETTER DATED 10/28/82 FROM FRANK BERNDT -- NHTSA TO LAWRENCE T. HIROHATA, NOA-30; LETTE R 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: Question: Would a State statute or regulation allowing 35% light transmittance through windows in motor vehicles be preempted by current federal safety laws and standards regulating this same subject matter?

Conclusion: Yes.

The National Traffic and Motor Vehicles Safety Act of 1966 authorized the National Highway Traffic Safety Administration (HTSA) to issue Federal Motor Vehicle Safety Standards for new motor vehicles and items of motor vehicle equipment. "Motor vehicle e quipment" is defined in the Act, 15 USCS @ 1391(4) as:

"(4) 'Motor vehicle equipment' means any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accesso ry, or addition to the motor vehicle, and any device, article, or apparel not a system, part, or component of a motor vehicle (other than medicines, or eyeglasses prescribed by a physician or other duly licensed practitioner), which is manufactured, sold , delivered, offered, or intended for use exclusively to safeguard motor vehicles, drivers, passengers, and other highway users from risk of accident, injury, or death."

Safety Standard No. 205, "Glazing Material", sets performance requirements for glazing materials in in new motor vehicles and those sold as replacement equipment. Standard No. 205 requires that glazing materials for use in motor vehicles conform to the American national Standard "Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways" (ANSZ26). This standard requires specific amounts of light transmittance and abrasion resistance.

Standard No. 205 requires 70% light transmittance in all windows in passenger vehicles. Multipurpose passenger vehicles, motor homes, and trucks are required to have 70% light transmittance in the windshield and windows to the immediate right and left o f the driver and the rearmost windows if used for driving visibility.

15 USCS @ 139.7(a)(2)(A) provides as follows:

"(2)(A) No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance wi th an applicable Federal motor vehicle safety standard, unless such manufacturer, distributor, dealer, or repair business reasonably believes that such vehicle or item of equipment will not be used (other than for testing or similar purposes in the cours e of maintenance or repair) during the time such device or element of design is rendered inoperative. For purposes of this paragraph, the term 'motor vehicle repair business' means any person who holds himself out to the public as in the business of rep airing motor vehicles or motor vehicle equipment for compensation."

Whoever violates this section is subject to a civil penalty of up to $ 1,000 for each such violation. The combination of tinting film and glazing must be at least 70% light transmittance in windows requisite for driving visibility.

15 USCS @ 1392(d) provides as follows:

"Whenever a Federal motor vehicle safety standard established under this title is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the federal standard. Nothing in this section shall be construed to prevent the Federal Governmen t or the government of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than th at required to comply with the otherwise applicable Federal standard."

Congress may preempt State law by so stating in express terms. California Federal S.& L. Assn. v. Guerra, 93 L Ed 2d 613. Therefore, a State statute or regulation allowing 35% light transmittance through windows in motor vehicles would conflict with St andard No. 205 which requires 70% light transmittance in windows requisite for driving visibility and would be preempted by the federal law. 15 USCS @ 1392(d).