TITLE 19. PUBLIC SAFETY
DEPARTMENT OF STATE POLICE
Agency Decision
Title of Regulation: 19VAC30-70. Motor Vehicle Safety Inspection Rules and Regulations.
Statutory Authority: § 46.2-1165 of the Code of Virginia.
Name of Petitioner: Mr. Patrick McTague.
Nature of Petitioner's Request: "By authority of the Code of Virginia § 2.2-4007, I am petitioning the Department of State Police action to repeal its regulations relating to the inspection of sunshading material. As stated in § 46.2-1052 of the Code of Virginia 'Except as otherwise provided in this article or permitted by federal law, it shall be unlawful for any person to operate any motor vehicle on a highway with any sign, poster, colored or tinted film, sun-shading material, or other colored material on the windshield, front or rear side windows, or rear windows of such motor vehicle. This provision, however, shall not apply to any certificate or other paper required by law or permitted by the Superintendent to be placed on a motor vehicle's windshield or window.'
"Your current regulations permit for unlawful vehicles to pass safety inspections, thus permitting unsafe vehicles to travel on Virginia's roads. These regulations are also in violation of the minimum Federal Motor Vehicle Safety Standards and in violation of the U.S. Code. Your regulations must comply with both of these documents in order to have jurisdiction on State and Federal funded highways. Although your department may enforce illegal tint with its Troopers, this alone is not a suitable policy as governed by higher powers. In essence, you are providing the motorist with a document proclaiming their vehicle legal for use on the highway's and yet at the same time claim these vehicles are illegal for use. The motorist has reasonable expectation that their vehicle is lawful and therefore cannot be prosecuted for inspection requirements which you do not require. Below you will find relevant law which, under your current regulations, makes your Department unlawful. I propose that the inspection of window requirements be reinstated into your inspection program immediately.
"The National Highway Traffic Safety Administration has a legislative mandate under Title 49 of the United States Code, Chapter 301, Motor Vehicle Safety, to issue Federal Motor Vehicle Safety Standards (FMVSS) and Regulations to which manufacturers of motor vehicle and equipment items must conform and certify compliance. New standards and amendments to existing standards are published in the Federal Register.
"These Federal safety standards are regulations written in terms of minimum safety performance requirements for motor vehicles or items of motor vehicle equipment. These requirements are specified in such a manner 'that the public is protected against unreasonable risk of crashes occurring as a result of the design, construction, or performance of motor vehicles and is also protected against unreasonable risk of death or injury in the event crashes do occur.'
"FMVSS Standard No. 205: Glazing Materials Scope and Purpose: This standard specifies requirements for glazing materials for use in motor vehicles and motor vehicle equipment. The purpose of this standard is to reduce injuries resulting from impact to glazing surfaces, to ensure a necessary degree of transparency in motor vehicle windows for driver visibility and to minimize the possibility of occupants being thrown through the vehicle windows in collisions.
"US code Title 23, Chapter 402 states:
'(a) Each State shall have a highway safety program approved by the Secretary, designed to reduce traffic accidents and deaths, injuries, and property damage resulting therefrom. Such programs shall be in accordance with uniform guidelines promulgated by the Secretary. Such uniform guidelines shall be expressed in terms of performance criteria. In addition, such uniform guidelines shall include programs
(b) Administration of State Programs.— (1) Administrative requirements.— The Secretary may not approve a State highway safety program under this section which does not—
(B) authorize political subdivisions of the State to carry out local highway safety programs within their jurisdictions as a part of the State highway safety program if such local highway safety programs are approved by the Governor and are in accordance with the minimum standards established by the Secretary under this section;'"
Agency Decision: Request denied.
Statement of Reasons for Decision: On December 15, 2008, Mr. Patrick McTague petitioned the Virginia Department of State Police to repeal its regulations relating to the inspection of sun shading materials, which are set forth in 19VAC30-70-210. In his petition he cites the statutory provision, § 46.2-1052 of the Code of Virginia, which was enacted by the General Assembly, and prohibits and fixes punishment for those who operate a motor vehicle on the highways of the Commonwealth with impermissible levels of tint on specified vehicle windows. In the petition Mr. McTague asserts that Virginia is not in compliance with the minimum standards set forth in FMVSS Standard No. 205.
The petition was properly posted and opened to a comment period prior to this agency considered any action. The comments, economic impact on small business (inspection stations), and the safety concerns addressed were all considered by the department in making its decision. Three comments were received, one on the Virginia Town Hall website and two by facsimile to the department. Of the three one was in favor of taking regulatory action to add window tint as a pass fail item for state inspection, two were opposed to doing the same.
The impact on Virginia inspection stations, many of which are small businesses, would be extensive. Each station would be required to purchase a sufficient number of tint meters to ensure that they could conduct the inspection if a meter became damaged or was found to be out of calibration. An initial search for such meters found that a basic model would cost between $74 and $245 per unit. The stations would be required to provide training and supervision of the personnel conducting the test, would be required to evaluate and consider medical documentation relating to exceptions to the rule under § 46.2-1053, and would be not be compensated for the additional equipment, training, and time required to conduct each inspection as the inspection fee is fixed by Act of the general Assembly.
Safety of the traveling public would not be greatly enhanced by including such a measure in the inspection process. Out of state vehicles are not subject to the Virginia inspection process and would continue to travel in or through Virginia with the tint on the windows. In addition tint is often an aftermarket addition to a vehicle that could be added the day after the inspection and the driver would still be in violation of the law. The provisions of § 46.2-1052 properly address the issue of dark tint and places the public on notice.
The guidance found in FMVSS No. 205 is properly addressed in 19VAC30-70-210 in that the glazing and any tint or coating must not obscure the drivers view. Tint that is fogged, peeling, or otherwise obscures the drivers view would result in a failure to pass inspection under current regulations. Overly dark tint that otherwise does not obstruct the drivers view is primarily an issue of officer not operator safety. Overly dark tint may allow safe operation of the vehicle but still pose a risk to officers approaching the vehicle and not being able to identify the number of persons therein.
For the reasons stated above the Virginia Department of State Police has considered the petition for rulemaking and has determined that no change is required or justified.
Agency Contact: Lt. Colonel Robert Kemmler, Regulatory Coordinator, Department of State Police, Bureau of Administrative and Support Services, P.O. Box 27472, Richmond, VA 23261-7472, telephone (804) 674-4606, FAX (804) 674-2234, or email robert.kemmler@vsp.virginia.gov.
VA.R. Doc. No. R09-1844; Filed March 3, 2009, 1:56 p.m.
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