[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]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

[[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, [email protected].

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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]
BILLING CODE 4910-59-P