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

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