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Interpretation ID: 22118evisor1



    Mr. David H. Coburn
    Steptoe & Johnson LLP
    1330 Connecticut Avenue, NW
    Washington, DC 20036-1795


    Dear Mr. Coburn:

    This responds to your letter requesting an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 205, Glazing materials, with respect to a product that would "automatically, and virtually immediately upon activation, create a shade band on top of the front windshield of a vehicle."

    You state in your letter that your client, Al-Coat, Ltd., a corporation based in Israel, has developed an electro-optical sun visor known commercially as e-Visor. The e-Visor is composed of a thin plastic band attached to the top part of the windshield. The e-Visor is approximately 5 inches wide and is made out of an electronically controlled light modulating (ECLM) film generally constructed with Polymer Dispersed Liquid Crystal technology. The ECLM film lightens with the application of voltage and returns to a darkened state when no voltage is applied. An electronic unit mounted under the dashboard controls the voltage applied to the band. A control unit mounted on the dashboard allows the driver to turn the band on or off, or place it in an automatic mode.

    In the automatic mode, the voltage applied to the band is controlled by a sunlight sensor mounted on the front windshield of the vehicle. The sensor responds to sunlight, causing the ECLM film to "instantaneously" assume a darkened state in "blinding or bright sunlight." In a darkened state, the e-Visor reduces the light transmittance of the windshield to approximately 1 percent, while the light transmittance in its lightened state is "approximately 50 percent." You state that the e-Visor "would have no effect on any part of the front windshield other than the area traditionally reserved for a shade band located near the top of the front windshield." You also state that Al-Coat seeks to import this product into the United States. The e-Visor would be made available to original equipment manufacturers and/or marketed as an aftermarket product for installation on used vehicles.

    By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the statutory authority to issue FMVSSs applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not approve motor vehicles or motor vehicle equipment or pass on the compliance of a vehicle or item of equipment outside the context of an actual enforcement proceeding. Instead, Federal law establishes a self-certification system under which motor vehicle and equipment manufacturers themselves certify that their products comply with all applicable standards. The following represents our opinion based on the facts set forth in your letter.

    Installation in New Vehicles

    A manufacturer of a new vehicle must certify that its vehicle meets all applicable Federal motor vehicle safety standards. Any person who manufactures or sells a new vehicle which does not conform to any safety standard is subject to civil penalties and recall action under our statute.

    NHTSA has issued FMVSS No. 205, Glazing materials, to establish performance and location requirements for glazing in each new motor vehicle. FMVSS No. 205 incorporates an industry standard, the American National Standard "Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways (ANSI Z26.1)." Under FMVSS No. 205 and the ANSI standard, glazing for use at levels intended for driving visibility must meet all of the requirements of the standard, including those on light transmittance. FMVSS No. 205 and ANSI Z26.1 apply a 70 percent light transmittance requirement to areas of glazing that are requisite for driving visibility.

    In all vehicles, the windshield is considered requisite for driving visibility. However, ANSI Z26.1 provides that a manufacturer may provide an area on the glazing that has a light transmittance of less than 70 percent as long as the areas requisite for driving visibility have a light transmittance of 70 percent. Our longstanding position has been that the area of the windshield traditionally comprising a shade band is not considered requisite for driving visibility, so that area may have a light transmittance of less than 70 percent.

    After reviewing the information you have submitted, we have concluded that the e-Visor operates and is intended to operate as a shade band. We have reached this conclusion based on the specific facts and purposes of your client's particular design and on your representations that the product would not affect any part of the windshield other than within the area traditionally reserved for a shade band; i.e., an approximate 5-inch band located near the top of the windshield. As a shade band in that location, the e-Visor would not be subject to FMVSS No. 205's light transmittance requirement.

    Although the agency has concluded that your shade band is not in an area considered requisite for driving visibility, it is important to note that we are in the midst of rulemaking on limiting the width of shade bands. We have published an August 4, 1999, notice of proposed rulemaking (64 FR 42330) on this subject. It may be appropriate for you to examine whether the e-Visor would be affected by a possible new shade band requirement.

    Of course, a new vehicle with the e-Visor must be certified, for its location and installation (e.g., windshield), as meeting all other requirements in FMVSS No. 205, including all applicable performance requirements of the standard (haze resistance, scratch resistance, and etc.). In addition, there are a number of other standards that might be affected by installation of the component. In particular, I would like to draw your attention to FMVSS No. 103, Windshield defrosting and defogging systems, FMVSS No. 212, Windshield mounting, FMVSS No. 219, Windshield zone intrusion, and FMVSS No. 201, Occupant protection in interior impact. You should carefully review these and all other FMVSSs to determine how the product would affect a vehicle's conformance with these standards.

    In addition, S5.3.5 of FMVSS No. 101, Controls and displays, reads as follows:

      Any source of illumination within the passenger compartment which is forward of a transverse vertical plane 110 mm rearward of the manikin "H" point with the driver's seat in its rearmost driving position, which is not used for the controls and displays regulated by this standard, which is not a telltale, and which is capable of being illuminated while the vehicle is in motion, shall have either (1) light intensity which is manually or automatically adjustable to provide at least two levels of brightness, (2) a single intensity that is barely discernible to a driver who has adapted to dark ambient roadway conditions, or (3) a means of being turned off. This requirement does not apply to buses that are normally operated with the passenger compartment illuminated.

    The purpose of this requirement is to prevent glare visible to the driver. If the e-Visor control unit installed in view of the driver were capable of operation while the vehicle is in motion, it would be subject to this requirement.

    As an Aftermarket Item of Equipment

    The e-Visor is an item of motor vehicle equipment since it would be sold as part of a motor vehicle or as an addition to a vehicle. (See 49 U.S. Code (U.S.C.) 30102(a)(7)). While the e-Visor is an item of motor vehicle equipment, NHTSA has not issued any FMVSSs establishing performance standards directly applicable to this product if it were sold directly to consumers for installation on used vehicles. However, the manufacturer, whether your client or a licensee, is subject to the requirements of 49 U.S.C. 30118-30120 which set forth the recall and remedy procedures for products with defects related to motor vehicle safety. Thus, if NHTSA or the manufacturer determines that the product contains a safety-related defect, the manufacturer is responsible for notifying purchasers of the defective equipment and for remedying the problem free of charge. (Note that this responsibility is borne by the vehicle manufacturer in cases in which the product is installed on a new vehicle by or with the express authorization of that vehicle manufacturer.)

    The installation of the e-Visor by a commercial entity is also subject to other restrictions. Our statute at 49 U.S.C. 30122 provides that a manufacturer, distributor, dealer, or vehicle repair business may not knowingly "make inoperative" any device or element of design installed on or in a motor vehicle in accordance with any FMVSS. Therefore, the e-Visor could not be installed by any of those entities if such use would adversely affect the ability of a vehicle's glazing to comply with the performance requirements of FMVSS No. 205, as well as the compliance of a vehicle with any other FMVSS. You should carefully review the FMVSSs to determine whether installation of the e-Visor would affect a vehicle's compliance with the standards. (1)

    I note that the Federal Motor Carrier Safety Administration has jurisdiction over interstate motor carriers operating in the United States. You should contact that Administration at (202) 366-2519 for information about any requirements that may apply to your product. In addition, states have the authority to regulate the use and licensing of vehicles operating within their jurisdictions and may have restrictions on shade bands. Therefore, you should check with the Department of Motor Vehicles in any state in which the equipment will be sold or used.

    Also, there is a procedural regulation that you need to meet to import the e-Visor into the United States. 49 CFR Part 551, "Procedural Rules," requires the actual manufacturer of foreign-manufactured motor vehicle equipment to designate a permanent resident of the United States as the manufacturer's agent for service of process in this country. The designation of the agent for the service of process must contain the following six items in order to be valid under section 551.45:

    1. A certification that the designation is valid in form and binding on the manufacturer under the laws, corporate by-laws, or other requirements governing the making of the designation at the time and place where it is made;

    2. The full legal name, principal place of business, and mailing address of the manufacturer;

    3. Marks, trade names, or other designations of the origin of any of the manufacturer's products which do not bear its name;

    4. A statement that the designation shall remain in effect until withdrawn or replaced by the manufacturer;

    5. A declaration of acceptance duly signed by the agent appointed, which may be an individual, a firm, or a U.S. corporation; and

    6. The full legal name and address of the designated agent.

    In addition, the designation must be signed by one with authority to appoint the agent, and the signer's name and title should be clearly indicated beneath his or her signature. This designation should be mailed to the address shown in section 551.45(b).

    For your further information, I am enclosing a fact sheet we prepared entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, and Where to Obtain NHTSA's Safety Standards and Regulations.

    I hope this information is helpful. If you have any questions or need additional information, feel free to contact Nancy Bell of my staff at (202) 366-2992.

    Sincerely,

    John Womack
    Acting Chief Counsel

    Enclosure
    ref:205
    d.2/20/01


    1. The "make inoperative" provision does not apply to equipment attached to or installed on or in a vehicle by the vehicle owner. However, NHTSA urges vehicle owners not to degrade the safety of any system or device on their vehicles.