Interpretation ID: curtain22830
Mr. Natale De Pasquale
ITI Industriale
s.r.l. Via Fratelli Bandiera
13-20016 PERO (MILANO)
ITALY
Dear Mr. De Pasquele:
This responds to your letter asking for information about the application of United States safety standards to a "rear window curtain for cars in general." You do not mention, however, the purpose of the attachment, whether the curtain will be made available to original equipment manufacturers and/or marketed as an aftermarket product for installation on used vehicles, or provide a thorough description of the product. Further, you indicate that ITI Industriale intends to import this product into the United States.
By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the statutory authority to issue Federal motor vehicle safety standards (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 regarding the applicability of our laws to your product 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 (which includes all windows in passenger cars).
Installation of your curtains as proposed would not cause a noncompliance with FMVSS No. 205 because the test procedures do not incorporate an in-vehicle test, instead they contemplate testing of only the glazing itself. Therefore, your curtain need not comply with the standard either by itself (because it does not meet the definition of glazing) or in combination with the windows, assuming that it is not attached to the window. However, if the curtains were installed into the glazing in any manner, e.g. between two layers of glass, the combination of curtain and glass would be considered a multiple glazed unit and would have to meet the standard.
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, FMVSS No. 201, Occupant protection in interior impact, and FMVSS No. 302 , Flammability of interior materials. You should carefully review these and all other FMVSSs to determine how the product would affect a vehicle's conformance with these standards.
As an Aftermarket Item of Equipment
As far as we can tell from your letter, your product appears to be an item of motor vehicle equipment regulated by NHTSA. (1) Your curtain is an accessory because it was presumably designed with the expectation that a substantial portion of its expected use will be with motor vehicles. (We make this assumption because you designed the product for rear windows in "cars"). Further, the curtain appears to be intended to be purchased and principally used by ordinary users of motor vehicles.
While a rear window curtain 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 notification 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 a rear window curtain 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 rear window curtain could not be installed by any of those entities if such use would adversely affect the ability of a vehicle to comply with any FMVSS. You should carefully review the FMVSSs, particularly those listed above, to determine whether installation of your rear window curtain would affect a vehicle's compliance with the standards. (2)
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 curtain 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.5/9/01
1. Our statute defines "motor vehicle equipment," in relevant part, as any system, part, or component "sold ... as an accessory or addition to a motor vehicle" (49 U.S.C. 30102(a)(7)(B)). An item of equipment is an accessory if it meets the following criteria:
a. A substantial portion of its expected uses are related to the operation or maintenance of motor vehicles; and
b. It is purchased or otherwise acquired, and principally used by ordinary users of motor vehicles.
2. 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.