[Federal Register Volume 81, Number 70 (Tuesday, April 12, 2016)]
[Notices]
[Pages 21663-21666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08360]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2013-0101; Notice 2]


Morgan 3 Wheeler Limited, Denial of Petition for Decision of 
Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Denial of petition.

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SUMMARY: Morgan 3 Wheeler Limited (Morgan) has determined that certain 
model year (MY) 2012 and 2013 Morgan model M3W three-wheeled 
motorcycles do not comply with all of the requirements of Federal Motor 
Vehicle Safety Standard (FMVSS) No. 108, Lamps, reflective devices, and 
associated equipment. Specifically, the vehicles' headlamps are spaced 
further apart than permitted, and do not have the required ``DOT'' 
marking. Morgan has petitioned for an exemption from the recall 
notification and remedy requirements of 49 U.S.C. Chapter 301--``Motor 
Vehicle Safety'' (Vehicle Safety Act) on the grounds that the 
noncompliances are inconsequential to motor vehicle safety. This notice 
announces and explains NHTSA's denial of Morgan's petition.

FOR FURTHER INFORMATION CONTACT: For further information on this 
decision contact Mike Cole, Office of Vehicle Safety Compliance, 
National Highway Traffic Safety Administration (NHTSA), telephone (202) 
366-2334, facsimile (202) 366-5930.

SUPPLEMENTARY INFORMATION:
    I. Overview: Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the 
rule implementing those provisions at 49 CFR part 556, Morgan has 
petitioned for an exemption from the notification and remedy 
requirements of 49 U.S.C. Chapter 301 on the basis that the 
noncompliances are inconsequential to motor vehicle safety.
    Notice of receipt of the petition was published, with a 30-day 
public comment period, on December 9, 2013 in the Federal Register (78 
FR 73920). One comment was received from Peter C. Larsen of Liberty 
Motors, LLC. To view the petition and all supporting documents log onto 
the Federal Docket Management System Web site at: http://www.regulations.gov/. Follow the online search instructions to locate 
docket number ``NHTSA-2013-0101.''
    II. Vehicles involved: Approximately 150 MY 2012 and 2013 Morgan 
model M3W three-wheeled motorcycles manufactured from August 1, 2012 to 
August 14, 2013 (subject vehicles) are affected.
    III. Noncompliances: Morgan's petition concerns two requirements in 
FMVSS No. 108.\1\ Both noncompliances involve the vehicles' headlights. 
Morgan states that the noncompliances are a result of a configuration 
error in its production line. The first noncompliance involves the 
spacing between the headlights. Paragraph S10.17.1.2.2 of FMVSS No. 108 
specifies that if motorcycle headlamps are horizontally disposed about 
the vertical centerline, the distance between the closest edges of 
their effective projected luminous lens areas must not be greater than 
200 mm.\2\ Morgan states in its petition that the subject motorcycles 
do not comply with this requirement because they are equipped with dual 
horizontally-mounted headlamps mounted 29 inches (737 mm) apart (lens 
edge to lens edge).
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    \1\ 49 CFR 571.108.
    \2\ In a December 2007 final rule, NHTSA rewrote and reorganized 
FMVSS No. 108 to provide a more straightforward and logical 
presentation of the regulatory requirements. 72 FR 68234, Dec. 4, 
2007. Those amendments became effective on December 1, 2012. 74 FR 
58214, Nov. 12, 2009. The rewrite was not intended to make any 
substantive changes to the standard. The subject vehicle population 
includes vehicles manufactured both before and after this effective 
date. Prior to the effective date of the reorganized standard, the 
headlight spacing requirement was contained in S7.9.6.2(b).
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    The second noncompliance concerns the lack of a required marking on 
the headlamps. Paragraph S6.5.1 of FMVSS No. 108 requires that the lens 
of each original equipment and replacement headlamp be marked with the 
symbol ``DOT,'' either horizontally or vertically, to indicate 
certification under 49 U.S.C. 30115.\3\ Morgan states in its petition 
that the subject vehicles do not include this marking.
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    \3\ This provision was located at S7.2(a) in the pre-rewrite 
version of FMVSS No. 108.
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    IV. Rule Text: Paragraphs S7.9.6.2(b) and S10.17.1.2.2 of FMVSS No. 
108 require in pertinent part:

    Paragraph S7.9.6.2(b) (applies only to the subject vehicles 
manufactured before December 1, 2012).
    If the system consists of two headlamps, each of which provides 
both an upper and lower beam, the headlamps shall be mounted either 
at the same height and symmetrically disposed about the vertical 
centerline or mounted on the vertical centerline. If the headlamps 
are horizontally disposed about the vertical centerline, the 
distance between the closest edges of their effective projected 
luminous lens areas shall not be greater than 200 mm (8 in.).
    Paragraph S10.17.1.2.2 (applies only to the subject vehicles 
manufactured after December 1, 2012).
    If the headlamps are horizontally disposed about the vertical 
centerline, the distance between the closest edges of their 
effective projected luminous lens areas must not be greater than 200 
mm.

    V. Summary of Morgan's Petition and Comments: Morgan petitions for 
relief from the recall provisions of the Vehicle Safety Act with 
respect to both of these noncompliances. Morgan makes several arguments 
to support its assertion that these noncompliances are inconsequential 
to motor vehicle safety.
    With respect to the headlamp spacing noncompliance, Morgan contends 
that

[[Page 21664]]

the headlamps meet the ``technical requirements'' of FMVSS No. 108. 
Morgan also states that it does not believe that this noncompliance 
will increase the safety risk to vehicle occupants or approaching 
drivers. Morgan argues that the current horizontal spacing of 29 inches 
(737 mm) is in the best interests of road safety, because if the M3W 
complied with the existing motorcycle head lamp spacing requirement, 
other road users would not have an accurate indication of the width of 
an oncoming M3W. Morgan also argues that NHTSA has previously found a 
lighting separation noncompliance to be inconsequential.\4\
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    \4\ See 64 FR 28864, May 27, 1999.
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    Morgan contends that the lens marking noncompliance is 
inconsequential to motor vehicle safety because the lamps meet the 
substantive requirements of FMVSS No. 108. Morgan also states that 
owners of Morgan vehicles almost exclusively go to Morgan dealers for 
replacement parts; the agency assumes that Morgan is implying that 
because the vehicle owner is likely to obtain a replacement part 
directly from a dealer, the owner can be confident that the headlamp 
complies with all applicable requirements, even though it lacks the 
proper ``DOT'' marking.
    With respect to both noncompliances, Morgan asserts, based on its 
reading of previous inconsequentiality petition grants by NHTSA, that 
its noncompliances should be found to be inconsequential because the 
M3W is an exotic vehicle with no roof or doors, produced in very low 
numbers, driven a low number of miles, and likely to be operated on a 
limited basis, as opposed to an ordinary passenger automobile designed 
to be used as a family's primary passenger vehicle. Morgan also states 
that there have been no reports of any safety issues or injuries 
related to the subject noncompliances. NHTSA received one comment on 
Morgan's petition from Peter Larsen. Mr. Larsen makes several arguments 
in support of Morgan's petition. First, Mr. Larsen asserts that a 
NHTSA-published guidebook on motorcycle requirements does not contain 
the 200 mm spacing requirement. Second, Mr. Larsen argues that when 
NHTSA promulgated this requirement it did not contemplate three-wheeled 
vehicles with the frontal aspect of a small automobile, for which 
headlights spaced more than 200 mm apart help to indicate the size and 
shape of the vehicle. Accordingly, Mr. Larsen contends that the 200 mm 
requirement, as applied to the subject vehicles, is not in the interest 
of safety. Third, Mr. Larsen suggests that if the subject vehicles are 
remedied so that the dual headlights are replaced with a compliant 
center headlight, owners and dealers of the subject vehicles would 
likely remove the single center light and replace it with the dual, 
widely-spaced lights; and that a recall or design revision, Mr. Larsen 
asserts, would ``criminalize'' these actions. Finally, Mr. Larsen 
argues that many existing three-wheeled vehicles have similarly-spaced 
dual headlights, and it would be unjust to penalize Morgan's similar 
design. Mr. Larsen requests that NHTSA ``properly amend'' FMVSS No. 
108.

NHTSA's Decision

    General Principles: Federal motor vehicle safety standards are 
adopted only after the agency has determined, following notice and 
comment, that the performance requirements are objective, practicable, 
and meet the need for motor vehicle safety.\5\ 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 determined appropriate by NHTSA through 
the rulemaking process. To protect the public from such risks, 
manufacturers whose products fail to 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 
remedy without charge.\6\
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    \5\ 49 U.S.C. 30111(a).
    \6\ 49 U.S.C. 30118-30120.
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    Congress has, however, recognized that under some limited 
circumstances a noncompliance may be ``inconsequential'' to motor 
vehicle safety. Neither NHTSA's statute nor its regulations define 
``inconsequential.'' NHTSA determines whether a particular 
noncompliance is inconsequential to motor vehicle safety based on the 
specific facts before the agency. The key issue in evaluating an 
inconsequentiality petition is whether the noncompliance is likely to 
increase the safety risk to individuals who experience the type of 
injurious event against which the standard was designed to protect.\7\ 
The agency is not aware of any prior inconsequentiality petitions 
concerning either of the two requirements that are the subject of 
Morgan's petition.
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    \7\ General Motors Corp., Ruling on Petition for Determination 
of Inconsequential Noncompliance, 69 FR 19897, Apr. 14, 2004.
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    NHTSA's analysis: The agency has determined that Morgan has not met 
its burden of persuasion that the noncompliances are inconsequential to 
safety. The agency is therefore denying Morgan's petition with respect 
to both noncompliances. The agency's reasons for the denial are 
discussed below.
    NHTSA is not persuaded by the arguments of Morgan or Mr. Larsen 
regarding the noncompliance with the headlamp spacing requirement in 
S10.17.1.2.2. Morgan's assertion that the subject vehicles meet the 
``technical requirements'' of FMVSS No. 108 is inaccurate because the 
distance requirement for headlamp configuration is clearly stated in 
the regulation as one of the requirements for compliance.\8\ Morgan 
acknowledges in its Part 573 defect notification report that the 
headlamps on the subject vehicles do not comply with this requirement.
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    \8\ S10.17.1.2.2.
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    The agency is also not persuaded by Morgan and Mr. Larsen's 
arguments that the noncompliance not only does not increase the safety 
risk, but is, in fact, safety-enhancing, because the wider-spaced 
headlamps convey a more accurate impression of the vehicle's width to 
other motorists. An inconsequentiality petition is not the appropriate 
means to challenge the basis or appropriateness of a requirement 
specified in an FMVSS. The appropriate venue for such an argument is a 
petition for rulemaking to amend the current safety standard. 
Nevertheless, neither Morgan nor Mr. Larsen have offered persuasive 
evidence that either the standard or market conditions have changed to 
undermine the basis for the spacing limitation. The 200 mm maximum 
spacing requirement was added to the standard in 1998 in response to a 
petition for rulemaking. In the preamble to the final rule, NHTSA 
explained the rationale for the motorcycle headlight requirements: 
``[A]t the time that the motorcycle headlight requirements in Standard 
No. 108 were originally issued, the predominant concern was that the 
headlighting system clearly identify a motorcycle as such when the 
vehicle was being operated at night.'' \9\ The wider space between the 
headlamps on the subject vehicles could impair the ability of other 
motorists to identify the subject vehicle as a motorcycle. Such 
identification is important because motorists may be more alert or 
alter their driving in response to the presence of a motorcycle, since 
motorcycles are smaller, less enclosed, and less stable than passenger 
cars and other motor vehicles.\10\ Even if the Morgan vehicle's

[[Page 21665]]

front end is wider than that of a typical two-wheeled motorcycle, the 
vehicle is still smaller, less enclosed, and less stable than passenger 
cars and other motor vehicles with which it shares the road. In 
addition, to further distinguish motorcycles from larger vehicles, 
NHTSA's regulations also allow modulation of motorcycle headlamp 
intensity to provide increased conspicuity.\11\ If the subject Morgan 
motorcycles were equipped with modulators on its headlamps, the wide 
spacing of the headlamps could be perceived by other drivers as an 
emergency or police vehicle. If Morgan believed that lighting 
indicating the width of the vehicle would enhance the safety of the 
vehicle, Morgan could have accomplished this by adding supplemental 
lighting to the vehicle (e.g., parking lamps), keeping in mind that 
supplemental lighting may not impair the effectiveness of required 
lighting equipment.\12\ We also note that the space between the 
headlamps is less than the wheel-to-wheel width of the vehicle, so the 
existing headlights do not accurately indicate the actual width of the 
vehicle.
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    \9\ 63 FR 42582, 42582, Aug. 10, 1998.
    \10\ The noncompliance is also not de minimis. The headlamps on 
the subject vehicles are 29 inches apart, while the maximum spacing 
permitted by the standard is 200 mm (7.9 in).
    \11\ S10.17.5.
    \12\ S6.2.1.
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    Similarly, Mr. Larsen asserts that when NHTSA promulgated this 
headlamp spacing regulation it did not contemplate three-wheeled 
vehicles such as the subject vehicles, which, he states, display the 
frontal aspect of a small automobile. The initial Federal Motor Vehicle 
Safety Standards, published in 1967, defined a ``motorcycle'' as ``a 
motor vehicle with motive power having a seat or saddle for the use of 
the rider and designed to travel on not more than three wheels in 
contact with the ground.'' \13\ This definition, which is in effect 
today,\14\ clearly includes the subject vehicles. While the M3W may be 
an unusual design, the vehicle configuration is unequivocally a 
motorcycle; as Mr. Larsen notes in his comment, ``the Morgan 3 Wheeler 
follows the classic lighting scheme.'' Again, as we noted above, a 
petition for rulemaking, not an inconsequentiality petition, is the 
proper mechanism if Morgan or Mr. Larsen believes that the existing 
requirement is not appropriate for the subject vehicles.\15\
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    \13\ 32 FR 2408, 2409, Feb. 3, 1967.
    \14\ 49 CFR 571.3.
    \15\ We note that subsequent to filing the present 
inconsequentiality petition, Morgan did file a petition for 
rulemaking on this issue. The agency is currently evaluating this 
petition.
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    Morgan also cites, in support of its petition, a prior agency 
decision granting a General Motors inconsequentiality petition.\16\ 
That inconsequentiality petition concerned a noncompliance with a 
minimum required separation distance between a daytime running lamp 
(DRL) and a front turn signal. The purpose of that spacing requirement 
is to prevent masking of the turn signal lamp by the DRLs. The agency 
found that masking would not be an issue in that case because those 
vehicles incorporated front turn signals that were five times the 
required minimum area and four times brighter than the minimum required 
photometry. NHTSA went on to state that its research showed that high 
turn signal intensity was very important to prevent masking. Because 
the requirements at issue in the General Motors petition are intended 
to address a fundamentally different safety issue than the requirement 
from which Morgan is seeking a grant of inconsequential noncompliance, 
we do not find the General Motors petition to be relevant for our 
consideration of Morgan's petition; as discussed above, we believe that 
the greater than allowed distance between the headlamps might hinder 
other motorists from identifying the subject vehicles as motorcycles.
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    \16\ 64 FR 28864, May 27, 1999.
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    Mr. Larsen also states that he developed a motorcycle on which the 
subject vehicle is based, and states that the headlamp location was 
configured as described in NHTSA's published guidebook entitled 
``Requirements of Motorcycle Manufacturers.'' Mr. Larsen did not 
further identify this guide, but he appears to refer to the NHTSA guide 
entitled ``Requirements for Motorcycle Manufacturers,'' published in 
February 2000.\17\ This guide states that it ``merely highlights the 
major requirements for manufacturers; each manufacturer should consult 
the specific statutes, regulations, and standards to determine its 
responsibilities.'' \18\ The lighting standard (FMVSS No. 108) contains 
many motorcycle lighting requirements in addition to the limited subset 
of requirements that are summarized in Table IV of the NHTSA guide.
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    \17\ Available at http://www.nhtsa.gov/Laws+&+Regulations/Manufacturer+Info/Requirements+for+Motorcycle+Manufacturers.
    \18\ Id. at pages 3 and 4.
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    Mr. Larsen also suggests that if NHTSA were to deny Morgan's 
petition, it would ``criminalize'' owners and dealers of the subject 
vehicles (who, he asserts, will likely replace a single center light 
and replace it with dual, widely-spaced lights). This is incorrect. 
Today's denial requires Morgan to notify owners of the subject vehicles 
of the noncompliance and to remedy the noncompliance if and when a 
vehicle owner presents a vehicle for repair. Neither NHTSA's denial nor 
the recall and remedy requirements impose any obligations on vehicle 
owners. Today's denial simply ensures that vehicle owners will be 
notified of the noncompliance and will have the opportunity to have 
their vehicle remedied, if the vehicle owner so chooses.\19\
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    \19\ NHTSA encourages vehicle owners to have recalled vehicles 
promptly remedied. We also note the statutory prohibition on making 
required safety elements inoperative. 49 U.S.C. 30122. This 
prohibition, however, applies only to manufacturers, distributors, 
dealers, and motor vehicle repair businesses. Sec.  30122. It does 
not apply to individual vehicle owners. See Letter from NHTSA Chief 
Counsel Frank Seales, Jr. to Hamsar Diversco Inc., Jan. 22, 1999, 
available at http://isearch.nhtsa.gov/search.htm.
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    Finally, the agency is not persuaded by Mr. Larsen's argument that 
it would be unjust to ``suddenly penalize'' and require Morgan to 
recall the subject vehicles because, he asserts, there are many three-
wheeled vehicles with wide-spaced dual headlights similar to the 
subject vehicles. The spacing regulation at issue has been in effect 
since 1998. Moreover, it does not apply to all three-wheeled 
motorcycles currently on the road. It applies to vehicles manufactured 
or imported into the United States after the effective date of the 1998 
final rule. Accordingly, it does not apply, for example, to vintage 
vehicles that were manufactured before the effective date of the final 
rule.
    Regarding the ``DOT'' marking requirement, the agency is also not 
persuaded by Morgan's arguments. In the past, NHTSA has granted 
inconsequentiality petitions for lighting components that did not have 
certain required markings.\20\ As we noted earlier, however, we are not 
aware of any prior inconsequentiality petitions concerning the ``DOT'' 
marking requirement at issue in Morgan's petition. We are not persuaded 
that the absence of the ``DOT'' mark is inconsequential to motor 
vehicle safety in this case. The ``DOT'' mark on a headlamp indicates 
that the lamp manufacturer has certified the lamp as conforming to all 
applicable requirements. Morgan has provided no information or data to 
demonstrate that the headlamps otherwise comply with the requirements 
of FMVSS No. 108. Morgan asserts that the lamps meet the

[[Page 21666]]

``substantive'' requirements of FMVSS No. 108, but has provided no 
information as to which requirements it considers ``substantive'' and 
which it does not. Morgan has submitted no compliance testing data or 
information showing that the lamps comply with all relevant 
requirements. Without such information and data, and without a ``DOT'' 
mark on the headlamp to imply that such information and data exist, the 
agency is unable to conclude that the lack of the ``DOT'' mark is the 
only noncompliant aspect of the headlamps.
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    \20\ See, e.g., 78 FR 22943, Apr. 17, 2013 (grant of 
inconsequentiality petition from Osram Sylvania Products, Inc. for 
noncompliance with the light source marking requirements of FMVSS 
No. 108 S7.7.).
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    In addition to the arguments addressed above, the agency is also 
not persuaded by two additional arguments Morgan makes for why it 
believes NHTSA should grant the petition with respect to both 
noncompliances. First, Morgan argues that its petition should be 
granted because the subject vehicle is an exotic vehicle produced in 
very low numbers and likely to be operated on a limited basis, as 
opposed to a passenger automobile designed to be used as a family's 
primary passenger vehicle. In support of this argument, Morgan cites 
two previous agency decisions granting inconsequentiality 
petitions.\21\ Both petitions concerned noncompliances with automatic 
restraint requirements in FMVSS No. 208. The agency's decisions in 
those situations were based on the fact that it had already granted 
temporary exemption petitions from both manufacturers for the vehicle 
models at issue in those inconsequentiality petitions. The agency has 
not previously granted Morgan a temporary exemption for the 
noncompliances at issue in the present petition. Moreover, the 
``vehicle attributes'' that Morgan implies those grants were based on--
that the vehicles were exotic vehicles likely operated on a limited 
basis--were simply arguments made by the petitioners in those cases, 
and not, as Morgan's petition implies, the basis for the agency's 
decision. NHTSA expects manufacturers to fulfill their duties and 
responsibilities to provide vehicles that meet all safety standards 
regardless of production volume or estimated consumer use.
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    \21\ 60 FR 27593, May 24, 1995 (grant of inconsequentiality 
petition from Excalibur Automobile Corp.); 61 FR 9517, Mar. 8, 1996 
(grant of inconsequentiality petition from Cantab Motors, Ltd.).
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    Second, Morgan states that there have been no reports of any safety 
issues or injuries related to the subject noncompliances. NHTSA does 
not consider the absence of complaints to show that the noncompliances 
are inconsequential to safety. The subject vehicle population is small, 
so the lack of reports or complaints may not be surprising. Further, 
vehicle lighting functions as a signal to other motorists and 
pedestrians; if other motorists found the noncompliant lighting 
confusing, it is unlikely that those motorists would have been able to 
identify the subject vehicle and make a complaint to either NHTSA or 
Morgan. 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.
    Finally, the agency observes that although Morgan's Part 573 report 
and inconsequentiality petition only concern the headlamp spacing and 
headlamp marking noncompliances, the subject vehicles may also fail to 
comply with other applicable FMVSSs. For example, a motorcycle headlamp 
that incorporates a replaceable light source that does not comply with 
FMVSS No. 108, paragraph S11 (e.g., an H4 light source which is only 
permitted on motorcycle specific headlamps) is also required to have 
the headlamp lens permanently marked ``motorcycle.'' This marking may 
not have appeared on the headlamps of one of the subject vehicles the 
agency observed.
    Morgan's proposed remedy: Morgan proposes to add a single FMVSS No. 
108 compliant headlamp on the M3W's vertical centerline and have the 
original, noncompliant headlamps remain as separately switched 
auxiliary lamps. Paragraph S6.2.1 of FMVSS No. 108 requires that any 
additional lighting elements (i.e., lighting elements that are not 
required by the standard) installed on a vehicle must not impair the 
effectiveness of lighting equipment required by the standard. A 
motorcycle equipped with both a compliant single headlighting system 
and an auxiliary (supplemental) dual-headlamp system might be 
prohibited by the impairment provision. The proximity of the auxiliary 
lamps to the required front turn signal lamps might also raise 
impairment concerns. We strongly encourage Morgan to review the 
standard to ensure that its remedy does indeed comply with all 
applicable requirements.
    NHTSA's Decision: After carefully considering the arguments 
presented on this matter, NHTSA finds that the petitioner has not met 
its burden of persuasion in establishing that the described 
noncompliances in the subject vehicles are inconsequential to motor 
vehicle safety. Accordingly, Morgan's petition is hereby denied, and 
Morgan must notify owners, purchasers and dealers pursuant to 49 U.S.C. 
30118 and provide a free remedy in accordance with 49 U.S.C. 30120.

    Authority: 49 U.S.C. 30118, 30120: delegations of authority at 
49 CFR 1.95 and 501.8.

Gregory K. Rea,
Associate Administrator for Enforcement.
[FR Doc. 2016-08360 Filed 4-11-16; 8:45 am]
 BILLING CODE 4910-59-P