Interpretation ID: 17440.drn

Jörg S. Mager, Vehicle Policy Engineer
Safer Vehicles, Roads & Rail
Vehicle Policy
Land Transport Safety Authority of New Zealand
Level 4
7-27 Waterloo Quay
P. O. Box 2840
Wellington, NEW ZEALAND

Dear Mr. Mager:

This responds to your request for information on U. S. requirements for aftermarket tinting of motor vehicle glazing by means of self-adhesive films. You posed several questions which are answered below:

The first question concerned the "current legal position" of motor vehicle tinting in the United States. You also wished to know what Federal policy is with respect to tinting.

NHTSA has the authority under 49 USC 30111 to issue Federal motor vehicle safety standards (FMVSSs) applicable to all new motor vehicles at time of first sale to the consumer. Standard No. 205, Glazing materials (49 CFR Part 571.205) specifies performance requirements for glazing, and includes a requirement that all windows "requisite for driving visibility" (including all windows in passenger cars) have a light transmittance of at least 70 percent. The primary purpose of this requirement is to ensure adequate visibility through the windows, thereby reducing the risk of a motor vehicle crash. In establishing the 70 percent light transmittance requirement for motor vehicle glazing areas requisite for driving visibility, the National Highway Traffic Safety Administration (NHTSA) determined that level met the need for motor vehicle safety.

Although Standard No. 205 itself does not apply after the first sale of the vehicle, 49 USC 30122(b) prohibits a vehicle manufacturer, distributor, dealer, or repair business from "mak[ing] inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard . . . ." The effect of Section 30122(b) is to impose limits on the tinting practices of motor vehicle manufacturers, distributors, dealers and repair businesses. These businesses may not install tinting on new or used vehicles that reduces the light transmittance of windows covered by Standard No. 205 to a level below the Federal requirement of 70 percent.

Note however, that NHTSA's regulations do not apply to certain parties or actions. Vehicle owners are not restricted by Federal law in the modifications that they make to their vehicles, and could tint their windows as dark as they like without violating Federal law (although NHTSA does not encourage tinting darker than Standard No. 205 allows). NHTSA recommends that vehicle owners not degrade the safety features of the glazing in their motor vehicles by tinting the glazing darker than Standard No. 205 allows. Federal law also does not regulate the operation or use of vehicles, which is under the jurisdiction of the individual States.

Under certain circumstances, State laws would be preempted by Federal law. 49 USC 30103(b)(1) states "[w]hen a motor vehicle safety standard is in effect . . . a State . . . may prescribe . . . a standard applicable to the same aspect of performance . . . only if the standard is identical to the [federal standard]." A State law would be preempted by the Federal law to the extent that it regulates the same aspect of performance in a different way, or permits something prohibited by the Federal regulations (such as modifications by vehicle manufacturers, distributors, dealers or repair businesses that would violate Standard No. 205). A State law would also be preempted if it purported to allow the manufacture and sale of glazing materials or new vehicles containing glazing material that did not meet the specifications of Standard No. 205.

State requirements applicable to the registration and inspection of motor vehicles after the first sale to a consumer are not preempted merely because they are not identical to the Federal safety standards, as long as the state requirements do not interfere with the achievement of the purposes of Federal law. Therefore, a State could permit the registration of a vehicle which had been altered by its owner by the addition of window tinting, even when the tinting reduces the light transmittance below the Federal standard.

You asked about the outcome of the "Blue Skies" case in the Middle District of Florida.

In a Federal Register notice of proposed rulemaking of January 22, 1992 (57 FR 2496) (copy enclosed), NHTSA noted the following regarding the "Blue Skies" case:

One Florida District Court has held that Standard No. 205 is not currently enforceable against window tinting businesses because the agency did not issue a "new and revised Federal Motor Vehicle Safety Standard" pursuant to the second sentence of Section 103(h) of the Safety Act. United States v. Blue Skies Projects, Inc., No. 90-253-CIV-ORL-18 (M.D. Fla., August 13, 1991) ... NHTSA strongly believes that the court's opinion was erroneous and that the current standard is valid and enforceable. (57 FR at 2507)

Please note that the U.S. government did not appeal the decision of the Florida District Court. Also, NHTSA has not yet issued a final determination regarding the January 22, 1992 Federal Register notice.

You asked if NHTSA has a list of the "legal requirements with respect to the minimum visible light transmittance allowed by the states for windows of motor vehicles."

Since NHTSA does not maintain such a list, we cannot provide it to you.

You also asked if "the requirements in terms of permissible minium visible light transmittance spelled out in FMVSS 205 and ANSI/SAE Z26.1:1995 will be adopted on a state level in the foreseeable future."

NHTSA has no information on any planned state actions in this area. As described in our answer to the first set of questions, depending on the conduct or aspects of performance it seeks to regulate, a State law reducing the level of window light transmittance below the Federal standard may be preempted by Federal law.

I am enclosing a copy of NHTSA's March 1991 "Report to Congress on Tinting of Motor Vehicle Windows." Among other matters, the report discusses: (1) the current performance requirements in the Federal standard concerning window light transmittance, (2) how vehicles on the road at the time the report was written compare to the standard's requirements, (3) the rules and regulation other countries have in effect (at the time the report was written) on light transmittance through windows, (4) research on the effect of various tinting levels on depth perception, night vision, or other faculties that affect safety.

I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:205
d.6/22/98