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Consolidated Glass & Mirror, LLC, Denial of Petitions for Decision of Inconsequential Noncompliance Publication: Federal Register Agency: National Highway Traffic Safety Administration Byline: Eileen Sullivan Date: 12 January 2024 Subjects: American Government  , Safety
Topic: Guardian Industries |
[Federal Register Volume 89, Number 9 (Friday, January 12, 2024)]
[Notices]
[Pages 2475-2478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00391]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2018-0109 and NHTSA-2018-0074; Notice 2]
Consolidated Glass & Mirror, LLC, Denial of Petitions for
Decision of Inconsequential Noncompliance
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Denial of petitions.
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[[Page 2476]]
SUMMARY: Consolidated Glass & Mirror, LLC (CGM), a subsidiary of
Guardian Industries Corporation (Guardian), has determined that certain
laminated glass parts do not fully comply with Federal Motor Vehicle
Safety Standard (FMVSS) No. 205, Glazing Materials. CGM filed two
separate noncompliance reports dated December 14, 2018, and April 15,
2020, and petitioned NHTSA on December 20, 2018 and May 23, 2018,
respectively, for decisions that the subject noncompliances are
inconsequential as it relates to motor vehicle safety. This document
announces the denial of the petitions.
FOR FURTHER INFORMATION CONTACT: Jack Chern, Office of Vehicle Safety
Compliance, the National Highway Traffic Safety Administration (NHTSA),
(202) 366-0661, Jack.Chern@dot.gov.
SUPPLEMENTARY INFORMATION:
I. Overview
CGM determined that certain laminated glass parts do not fully
comply with paragraph S6 of FMVSS No. 205, Glazing Materials (49 CFR
571.205). On May 23, 2018, CGM petitioned NHTSA for an exemption from
the notification and remedy requirements of 49 U.S.C. chapter 301 on
the basis that the noncompliance is inconsequential as it relates to
motor vehicle safety, pursuant to 49 U.S.C. 30118(d) and 30120(h) and
49 CFR part 556, Exemption for Inconsequential Defect or Noncompliance,
without initially filing a noncompliance report. NHTSA prompted CGM to
file the required noncompliance report and Guardian, on behalf of CGM,
did so on April 15, 2020, pursuant to 49 CFR part 573, Defect and
Noncompliance Responsibility and Reports.
Guardian, on behalf of CGM, also filed a noncompliance report on
December 14, 2018, pursuant to 49 CFR part 573, Defect and
Noncompliance Responsibility and Reports. CGM petitioned NHTSA on
December 20, 2018, for an exemption from the notification and remedy
requirements of 49 U.S.C. chapter 301 on the basis that the
noncompliance is inconsequential as it relates to motor vehicle safety,
pursuant to 49 U.S.C. 30118(d) and 30120(h) and 49 CFR part 556,
Exemption for Inconsequential Defect or Noncompliance.
Notice of receipt of CGM's petitions was published with a 30-day
public comment period, on November 10, 2020, in the Federal Register
(85 FR 71712). No comments were received. To view the petitions and all
supporting documents log onto the Federal Docket Management System
(FDMS) website at https://www.regulations.gov/. Then follow the online
search instructions to locate docket numbers ``NHTSA-2018-0109'' and
``NHTSA-2018-0074.''
II. Equipment Involved
Approximately 223 laminated windshields manufactured on March 8,
2018, and shipped to IC Corp Tulsa Bus Plant for installation into
Navistar buses are potentially involved with the noncompliance report
dated December 14, 2018.
Approximately 1,390 bus door windowpanes, manufactured between
November 1, 2017, and March 29, 2018, are potentially involved with the
noncompliant report dated April 15, 2020. The windowpanes were sold to
Vapor Bus for use in the fabrication of bus doors. Vapor Bus
subsequently shipped the bus doors to Nova Bus for installation in
their buses.
III. Noncompliance
Guardian explained that the noncompliance is that the markings on
the subject laminated glass panes do not fully meet the requirements
specified in paragraph S6 of FMVSS No. 205. Specifically, the laminated
windshields shipped to IC Corp Tulsa Bus Plant were marked AS-2, when
they should have been marked AS-1, and the laminated bus door
windowpanes sold to Nova Bus were marked AS-S, when they should have
been marked AS-2.
IV. Rule Requirements
Paragraph S6 of FMVSS No. 205 includes the requirements relevant to
these petitions. A manufacturer or distributor who cuts a section of
glazing material, to which FMVSS No. 205 applies, for use in a motor
vehicle or camper, must correctly mark that material in accordance with
section 7 of ANSI/SAE Z26.1-1996.
V. Summary of CGM's Petitions
The following views and arguments presented in this section, ``V.
Summary of CGM's Petitions,'' are the views and arguments provided by
CGM and do not reflect the views of the Agency. The petitioner
describes the subject noncompliance and contends that the noncompliance
is inconsequential as it relates to motor vehicle safety.
In support of its petitions, CGM submits the following reasoning:
1. CGM explains that the laminated glass parts are affixed with the
Guardian trademark, the correct DOT manufacturer's code mark that NHTSA
assigned to the manufacturer, and the model number that was assigned by
the manufacturer of the safety glazing material. The manufacturer can
use the model number to identify the type of construction of the
glazing material.
2. CGM claims that although the laminated glass parts are affixed
with the misprinted AS numbers, the glass construction from which the
laminated glass parts were fabricated is in full compliance with the
technical requirements that 49 CFR 571.205 as it currently applies to
laminated glass for use in a motor vehicle. CGM believes the misprinted
AS numbers do not affect the safety of the laminated glass parts.
3. Despite the misprinted AS numbers being affixed to the laminated
glass parts, CGM states that the correct parts were sold and shipped to
Navistar and Nova Bus for use as windscreens and door windows.
4. CGM believes that the subject noncompliance could not result in
the wrong part being used in an OEM application, given that the part
would be ordered by its unique part number and not the model number.
Furthermore, CGM says the parts are also easily traceable back to
Guardian via their unique DOT manufacturer's code mark.
Guardian concluded by contending that the subject noncompliance is
inconsequential as it relates to motor vehicle safety, and that its
petitions to be exempted from providing notification of the
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the
noncompliance, as required by 49 U.S.C. 30120, should be granted.
VI. NHTSA's Analysis
1. General Principles
Congress passed the National Traffic and Motor Vehicle Safety Act
of 1966 (the Safety Act) with the express purpose of reducing motor
vehicle accidents, deaths, injuries, and property damage. 49 U.S.C.
30101. To this end, the Safety Act empowers the Secretary of
Transportation to establish and enforce mandatory FMVSS, pursuant to 49
U.S.C. 30111. The Secretary has delegated this authority to NHTSA. 49
CFR 1.95.
NHTSA adopts an FMVSS only after the Agency has determined that the
performance requirements are objective, practicable, and meet the need
for motor vehicle safety. See 49 U.S.C. 30111(a). Thus, there is a
general presumption that the failure of a motor vehicle or item of
motor vehicle equipment to comply with an FMVSS increases the risk to
motor vehicle safety beyond the level deemed appropriate by NHTSA
through the rulemaking process. To protect the public from such risks,
manufacturers whose products fail to
[[Page 2477]]
comply with an FMVSS are normally required to conduct a safety recall
under which they must notify owners, purchasers, and dealers of the
noncompliance and provide a free remedy. 49 U.S.C. 30118-30120.
However, Congress has recognized that, under some limited
circumstances, a noncompliance could be ``inconsequential'' to motor
vehicle safety. It, therefore, established a procedure under which
NHTSA may consider whether it is appropriate to exempt a manufacturer
from its notification and remedy (i.e., recall) obligations. 49 U.S.C.
30118(d) and 30120(h). The Agency's regulations governing the filing
and consideration of petitions for inconsequentiality exemptions are
set forth in 49 CFR part 556.
Under the Safety Act and part 556, inconsequentiality exemptions
may be granted only in response to a petition from a manufacturer, and
then only after notice in the Federal Register and an opportunity for
interested members of the public to present information, views, and
arguments on the petition. In addition to considering public comments,
the Agency will draw upon its own understanding of safety-related
systems and its experience in deciding the merits of a petition. An
absence of opposing argument and data from the public does not require
NHTSA to grant a manufacturer's petition.
Neither the Safety Act nor part 556 defines the term
``inconsequential.'' The Agency determines whether a particular
noncompliance is inconsequential to motor vehicle safety based upon the
specific facts before it in a particular petition. An important issue
to consider in determining inconsequentiality is the safety risk to
individuals who experience the type of event against which the recall
would otherwise protect.\1\ NHTSA also does not consider the absence of
complaints or injuries to show that the issue is inconsequential to
motor vehicle safety. ``Most importantly, the absence of a complaint
does not mean there have not been any safety issues, nor does it mean
that there will not be safety issues in the future.'' \2\
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\1\ See Gen. Motors, LLC; Grant of Petition for Decision of
Inconsequential Noncompliance, 78 FR 35355 (June 12, 2013) (finding
noncompliance had no effect on occupant safety because it had no
effect on the proper operation of the occupant classification system
and the correct deployment of an air bag); Osram Sylvania Prods.
Inc.; Grant of Petition for Decision of Inconsequential
Noncompliance, 78 FR 46000 (July 30, 2013) (finding occupant using
noncompliant light source would not be exposed to significantly
greater risk than occupant using similar compliant light source).
\2\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
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2. NHTSA's Response to the Petitioner's Arguments
The purpose of FMVSS No. 205 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.
NHTSA has reviewed documentation provided by Guardian, on which
Guardian bases its certification of the affected laminated windshields
and laminated door windowpanes. This documentation shows the product
met the safety performance requirements of the standard based on the
intended design of the product. NHTSA also analyzed whether the
documentation shows that the product met the safety performance
requirements of the affected windshields and door windowpanes based on
how they are labeled and used.
There is a safety-related purpose for every required marking on
motor vehicles or items of motor vehicle equipment. The Agency also has
a long-standing position that an incorrect marking reduces the safety
effectiveness. The required markings are an assuring indication to the
Agency and to consumers, including secondhand vehicle owners, that the
item of equipment is certified to the applicable Federal requirements
and provides the required minimum level of safety protection. See 49
CFR 571.205, S6. The vehicle owners (including firsthand and secondhand
vehicle owners) might go to the original vehicle manufacturer and
glazing supplier to obtain replacement parts when the affected glazing
needs to be replaced. However, it is also likely that many vehicle
owners will instead purchase replacement parts from aftermarket
suppliers and rely on the marking suggested on the glazing, which will
trigger safety-related concerns if the vehicle owners replace the
glazing solely based on the incorrect marking suggested on the glazing.
The Agency believes it is important to inform all vehicle owners,
including firsthand and secondhand vehicle owners, what the proper
specifications are for replacement products.
Guardian stated that the laminated windshields shipped to IC Corp
Tulsa Bus Plant were marked as AS-2 when they should have been marked
as AS-1. Because the affected windshield is marked as AS-2, consumers
might replace the windshield according to the suggested AS-2 marking.
Importantly, AS-2 laminated glazing is not permitted to be installed as
a vehicle windshield because the test requirements for AS-2 are not as
comprehensive as for AS-1. For example, the test requirements for
certifying AS-1 laminated glazing require additional tests relating to
deviation, distortion, and penetration resistance of the glazing, which
are not required for certifying AS-2 laminated glazing. Therefore, the
potential consequence to vehicle owners, especially for secondhand
vehicle owners, to replace the windshield with an AS-2 laminated
glazing is high and unsafe.
Guardian also stated that the laminated bus door windowpanes sold
to Nova Bus were marked as AS-S when they should have been marked as
AS-2. There is no ``AS-S'' marking as specified in the FMVSS No. 205
standard. Vehicle owners, especially secondhand vehicle owners, will be
confused as to which AS-marked glazing they need as a replacement part
when they need to replace their windowpane.
Moreover, it is highly possible for consumers to mis-read the ``AS-
S'' marking as an ``AS-5'' marking because of the physical similarity
of the printed characters ``S'' and ``5.'' Replacing an AS-2 windowpane
with an AS-5 glazing is not permitted because AS-5 glazing should only
be used for installation in locations at levels not requisite for
driving visibility. Conversely, an AS-2 marked glazing is required in
locations at levels requisite for driving visibility. Consequently,
using an AS-5 glazing as a replacement part poses a risk to motor
vehicle safety because it would impair the bus driver's ability to see
clearly.
In summary, the petitioner's noncompliant markings are not
inconsequential to motor vehicle safety due to the possibility that
vehicle owners may purchase incorrect and unsafe replacement parts for
their vehicles.
VII. NHTSA's Decision
In consideration of the foregoing, NHTSA has decided that Guardian
has not met its burden of persuasion that the subject FMVSS No. 205
noncompliance in the affected vehicles is inconsequential to motor
vehicle safety. Accordingly, Guardian's petitions are hereby denied,
and Guardian is consequently obligated to provide notification of and
free remedy for that
[[Page 2478]]
noncompliance under 49 U.S.C. 30118 and 30120.
(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49
CFR 1.95 and 501.8)
Eileen Sullivan,
Associate Administrator for Enforcement.
[FR Doc. 2024-00391 Filed 1-11-24; 8:45 am]
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