[Federal Register Volume 60, Number 78 (Monday, April 24, 1995)]
[Notices]
[Pages 20152-20153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10000]



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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. 94-48; Notice 2]


John Russo Industrial, Inc.; Grant of Petition for Determination 
of Inconsequential Noncompliance

    John Russo Industrial, Inc. (Russo) of San Jose, California, 
determined that some of its trucks failed to comply with requirements 
of several Federal motor vehicle safety standards (FMVSS) in 49 CFR 
Part 571. These are FMVSS No. 113, ``Hood Latch Systems,'' FMVSS No. 
120, ``Tire Selection and Rims for Motor Vehicles other than Passenger 
Cars,'' FMVSS No. 205, ``Glazing Materials,'' and FMVSS No. 207, 
``Seating Systems.'' All these noncompliances were discovered on July 
13, 1993 during inspection of vehicles by NHTSA's Office of Vehicle 
Safety Compliance (File NCI 3288). Russo filed an appropriate report 
pursuant to 49 CFR Part 573, ``Defect and Noncompliance Reports.'' 
Russo also petitioned to be exempted from the notification and remedy 
requirements of the National Traffic and Motor Vehicle Safety Act (15 
U.S.C. 1381 et seq.) (now 49 U.S.C. 30118 and 30120) on the basis that 
the noncompliances were inconsequential as they relate to motor vehicle 
safety. This notice grants the petition.
    Notice of receipt of the petition was published on June 9, 1994 (59 
FR 29861), and an opportunity afforded for comment. Comments on the 
petition were received from Donald W. Beams (Fleet Manager, Vehicle 
Maintenance Division, Department of General Services, City of San 
Jose); R. A. Gaffney (a senior member of the board of the California 
Fire Chief's Mechanics Education Committee); and Darlene E. Skelton. 
These commenters recommended that the petition be denied. Comments on 
the safety issues were also received from the Fire Marshal of the State 
of California, Ronny J. Coleman.

1. FMVSS No. 113, ``Hood Latch Systems''

    In 1991, Russo completed two vehicles which do not comply with the 
hood latching requirements in S4.2 of FMVSS No. 113, in that panels 
opening on the front were not provided with a second latch position on 
the hood latch system or with a second hood latch system. With respect 
to this noncompliance, Russo argued:

    [49 CFR 571.113 S3] definition, ``Hood means any movable 
exterior body panel forward of the windshield that is used to cover 
[an] engine, luggage, storage, or battery compartment.'' The forward 
face panels on our vehicles are below the windshield, and are not 
used as compartment, storage, or any criteria to classify it as a 
hood.
    Paragraph S4.2 of standard 113 states: ``A front opening hood 
which, in any open position partially or completely obstructs a 
driver's forward view through the windshield must be provided with a 
second latch position on the hood latch system or with a second hood 
latch system.''
    The access panels in question are not classified as a hood 
mechanism, therefore [they] do not need to follow these guidelines. 
If the panel were left open it would not obstruct the driver's view 
enough to cause a driving hazard.
    Our testing of this design consisted of the air flow testing of 
up to 78 mph with a head wind of 14 mph that brought the total air 
speed to 92 mph. Air flow only holds the access panel down more 
securely. The panel cannot fly up as a result of the air flow.
    Panels of similar design are easily found on hundreds of 
thousands of on-road vehicles including GMC Astro 9500, Chevrolet 
Titan 90, Ford CLT 9000, Freight Liner cab overs, and many other 
vehicles * * *.
    The Hazmat and Command vehicles are built with windshields which 
are much larger than those of typical van or cab over engine type 
vehicles. This large windshield is provided partially as a styling 
feature and partly to provide exceptional visibility in low speed 
maneuvering situations. The small area of windshield which would be 
blocked if the access panel could physically be lifted up by air 
flow, would not even be in the field of view on typical vehicles in 
this class.

    The City of San Jose disputes Russo's contention that the panel is 
not a hood, saying that the front compartment ``has some storage 
capacity.'' Commenters expressed concern that the panel could rise and 
strike the windshield. The Fire Marshal asks whether a standard has 
been developed for air flow tests; if no standard exists, the panel's 
performance in Russo's tests is an inadequate justification for 
granting the petition.
    NHTSA has reviewed Russo's arguments and the comments received. The 
agency accepts the manufacturer's position that the panels do not cover 
the engine, luggage or storage space, or battery compartment. The 
panel, therefore, would not appear to be a ``hood'' within the meaning 
of the standard's definition. Even if it were a hood, Russo's 92 mph 
wind tests provide a measure of assurance that the airflow increases 
the pressure on the panels, making it unlikely that the wind could blow 
the panels open. Even if the panels do blow open, any obstruction to 
the operator's view is minor and affects visibility only through the 
lowest portion of the windshield.

2. FMVSS No. 120, ``Tire Selection and Rims for Motor Vehicles Other 
Than Passenger Cars''

    Seventeen vehicles completed or modified by Russo from 1989 through 
1991 do not have the label required by S5.3 of FMVSS No. 120, which 
includes the size designation of the tires, the size designation of the 
rims, and the cold inflation pressure of the tires. According to Russo, 
the noncompliances are due to removal of labels after the purchaser 
took delivery of the vehicles. It commented that

    Without waiving this petition for exemption due to 
inconsequential non-compliance, we will notify the Deputy Chief of 
the San Jose Fire Dept. of our offer to supply and install new 
decals if they wish in a coordinated verifiable supervised manner. 
We shall document it for NHTSA and send NHTSA all copies of the 
labels.

    The City of San Jose comments that it has no records that the 
labels were installed or removed. Darlene E. Skelton says that the same 
noncompliance can be found on Russo vehicles provided to fire 
departments other than those of San Jose. The Fire Marshal notes that 
Russo has offered to provide the labels.
    Russo's provision of the labels is the same remedy that other 
manufacturers with similar noncompliances have performed in the absence 
of an inconsequentiality petition. Thus, this action moots the petition 
for relief from remedy. Russo's notification letter to the Fire 
Department does not contain all the information required by 49 CFR Part 
577, but the omissions (safety warnings, DOT address, etc.) are not 
critical in this case where there is only one owner, who is aware of 
the problem and who has contacted NHTSA already with comments on it.

3. FMVSS No. 205, ``Glazing Materials''

    In 1991, Russo completed two vehicles that do not comply with the 
glazing materials marking requirements in Section 6 of FMVSS No. 205, 
which state that windshields must be marked AS-1 and windows to the 
right and left of the driver's position must be marked AS-2. The 
subject vehicles have no marking on the windshields, and the markings 
on the windows to the right and left of the driver's position are AS-3, 
not AS-2. Russo provided a photocopy of a purchase order for AS-1 
windshield glass which it claims were used for the windshields. Russo 
further provided a copy of a letter from the supplier of the cockpit 
side windows [[Page 20153]] stating that the windows in question were 
marked AS-3. Russo argued:

    The windshields that were installed in these vehicles were 
labeled AS-1.
    The [installers] had shown us the windshield label on the 
windshield stock plate before the installation and fitting process. 
The San Jose Fire Dept.'s Battalion Chief Master Mechanic was also 
shown the label at this time and he said this to Mr. Shifflet [of 
NHTSA's Office of Vehicle Safety Compliance] during his visit.
    We have a sample of the label that the glass company that 
supplies the Fire Dept. And all of California had supplied(sic) to 
show DOT.
    The windshield that was supplied to us by San Jose Glass 
contained this label:

Laminated
16 CFR 1201 M550
CATT II AS-1
DOT 273
* * * * *
    The labeling on the driver's and passenger's window is also 
inconsequential to vehicle safety as shown by supporting data that 
the glass manufacturer uses all the same AS 2 glass except for a 
very slight insignificant light transmission in AS-certified 
configuration.

    The City of San Jose notes that the side windows are AS-3 rather 
than AS-2. Darlene E. Skelton and the Fire Marshal note that the 
noncompliance is easily remedied by the installation of new glass. The 
Fire Marshal also believes that the windshield should be marked to 
bring it into full compliance with Standard No. 205.
    Because all windshields are required to be AS-1 glazing, NHTSA is 
confident that, if the unmarked windshields have to be replaced, the 
replacement windshield will be AS-1 glazing. The agency does not concur 
with Russo's characterization of the substitution of AS-3 glazing for 
AS-2 glazing as resulting in ``a very slight insignificant light 
transmission'', but it does conclude that, because the noncompliance 
exists in only two vehicles, it will have an inconsequential effect on 
safety.

4. FMVSS No. 207, ``Seating Systems''

    In April 1991, Russo produced one Command/Communications van (1989 
Gillig chassis) with an 18,000 pound gross vehicle weight rating. The 
vehicle is a specially configured portable meeting room for use at the 
scene of disasters. It is a closed, straight body van-type vehicle 
consisting essentially of a cab for vehicle operation and a cargo area 
which Russo converted into a conference room.
    Section 4.4 of FMVSS No. 207 requires that all seats not designed 
to be occupied while the vehicle is in motion are to be conspicuously 
labeled to that effect. The seats located in the meeting room area of 
this vehicle are not designed to be occupied while the vehicle is being 
operated, but are not labeled as such.
    Subsequent to its petition, Russo agreed to provide the labels for 
the seats in question. This moots its penalty for exemption from the 
statutory remedial requirements. Any failures to comply with the letter 
of the notification requirements of Part 577 are less significant in 
the case where notification is to be provided a single owner who is 
aware of the noncompliance and has commented to NHTSA on it.
    Accordingly, in consideration of the foregoing, it is hereby found 
that the petitioner has met its burden of persuasion that the 
noncompliances herein described are inconsequential to motor vehicle 
safety, and its petition is granted.

(49 U.S.C. 30118 and 30120; delegations of authority at 49 CFR 1.50 
and 49 CFR 501.8)

    Issued on April 18, 1995.
Barry Felrice,
Associate Administrator for Safety Performance Standards.
[FR Doc. 95-10000 Filed 4-21-95; 8:45 am]
BILLING CODE 4910-59-P