[Federal Register Volume 81, Number 164 (Wednesday, August 24, 2016)]
[Notices]
[Pages 58001-58002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20250]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2015-0031; Notice 2]


BMW of North America, LLC, 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: BMW of North America, LLC (BMW), a subsidiary of BMW AG in 
Munich, Germany, has determined that certain model year (MY) 2014-2015 
BMW R nineT motorcycles do not fully comply with paragraph S6.4.3(a) 
(Table V-b) of Federal Motor Vehicle Safety Standard (FMVSS) No. 108, 
Lamps, Reflective Devices and Associated Equipment. BMW has filed an 
appropriate report dated February 20, 2015, pursuant to 49 CFR part 
573, Defect and Noncompliance Responsibility and Reports. BMW then 
petitioned NHTSA under 49 CFR part 556 requesting a decision that the 
subject noncompliance is inconsequential to motor vehicle safety.

ADDRESSES: For further information on this decision contact Mike Cole, 
Office of Vehicle Safety Compliance, the National Highway Traffic 
Safety Administration (NHTSA), telephone (202) 366-5319, facsimile 
(202) 366-5930.

SUPPLEMENTARY INFORMATION: 
    I. BMW's Petition: Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see 
implementing rule at 49 CFR part 556), BMW submitted a petition for an 
exemption from the notification and remedy requirements of 49 U.S.C. 
Chapter 301 on the basis that this noncompliance is inconsequential to 
motor vehicle safety.
    Notice of receipt of BMW's petition was published, with a 30-day 
public comment period, on June 4, 2015 in the Federal Register (80 FR 
31966). No comments were received. To view the petition and all 
supporting documents log onto the Federal Docket Management System 
(FDMS) Web site at: http://www.regulations.gov/. Then follow the online 
search instructions to locate docket number ``NHTSA-2015-0031.''
    II. Motorcycles Involved: Affected are approximately 1,792 MY 2014-
2015 BMW R nineT motorcycles manufactured between November 27, 2013 and 
January 26, 2015.
    III. Noncompliance: BMW explains that, due to an obstruction caused 
by the tail lamp assembly, the noncompliance is that the rear turn 
signal lamps were manufactured with a corner point of 5[deg]IB. The 
turn signal lamps should have had a corner point of 20[deg]IB as 
required by paragraph S6.4.3(a) (Table V-b) of FMVSS No. 108.
    BMW has since revised its petition to indicate that the obstructed 
lens area was 666 sq-mm and that the photometric test point (20[deg]IB/
5[deg] down) was also obstructed and measured only 1.1 cd (FMVSS No. 
108, S6.1.3.1 and S7.1.2.13.2).
    IV. Rule Text: FMVSS No 108 requires in pertinent part:

    Paragraph S6.1.3.1: Each lamp, reflective device, and item of 
associated equipment must be securely mounted on a rigid part of the 
vehicle, other than glazing, that is not designed to be removed 
except for repair, within the mounting location and height limits as 
specified in Table I, and in a location where it complies with all 
applicable photometric requirements, effective projected luminous 
lens area requirements, and visibility requirements with all 
obstructions considered;
    Paragraph S6.4.3(a): When a vehicle is equipped with any lamp 
listed in Table V-b each such lamp must provide not less than 1250 
sq mm of unobstructed effective projected luminous lens area in any 
direction throughout the pattern defined by the corner points 
specified in Table V-b for each such lamp;
    Paragraph S7.1.2.13.2: As an alternative to S7.1.2.13.1, a rear 
turn signal lamp installed on a motorcycle may be designed to 
conform to the photometry requirements of Table XIII-a.

    V. Summary of BMW's Analyses: BMW stated its belief that the 
subject noncompliance is inconsequential to motor vehicle safety for 
the following reasons:
    (A) BMW states that when the subject motorcycles are upright on a 
level surface and equipped with standard tires at their recommended 
cold tire inflation pressure; the lower edge of the rear turn signal 
lenses are approximately 747 mm above ground, the lower edge of the 
tail lamp lens is approximately 710 mm above ground and the tail lamp 
lens extend upward. BMW believes that due to these geometric conditions 
there is some overlap in the vertical direction between the rear turn 
signal lenses and the tail lamp lens however, they are not aligned 
along the same longitudinal centerline [of the turn signals]. 
Specifically, the tail lamp is on the motorcycle's longitudinal 
centerline while the rear turn signals are on stalks offset from the 
centerline. As a result, BMW believes that this has a very minor affect 
upon the effective projected luminous lens area.
    (B) BMW stated its belief that the obstruction from the tail lamp 
only occurs if another road user in a following vehicle has an eye-
point of approximately 747 mm above ground (extremely low for an 
average vehicle) and is a worst-case-scenario. For other road users 
with a higher eye-point, there is no apparent obstruction and the turn 
signal would appear to meet the requirements of FMVSS No. 108.
    (C) BMW also stated its belief that the effect of the 
noncompliance, i.e., the overlap or interference of the turn signal 
lamp by the tail lamp does not occur during critical traffic 
conditions. A road user, who is following an affected motorcycle, and 
in the same lane as an affected motorcycle, will be able to fully view 
an affected motorcycle's rear turn signal at a distance of 
approximately 1,935 mm (approximately 6 ft). BMW believes that in most 
traffic conditions, a road user would not want to be closer to a 
motorcycle than 6 ft. Thus, this ``non-visible'' rear turn signal 
condition is not likely to occur during the vast majority of traffic 
conditions. BMW provided detailed analysis of specific travel 
conditions including following directly behind an affected motorcycle 
and overtaking/passing an affected motorcycle that it believes supports 
its conclusion that the condition caused by the subject noncompliance 
will not interfere with the safety of the motorcycle rider or another 
road user.
    (D) BMW Customer Relations has not received any contacts from 
motorcycle riders, or other road users regarding this issue. Also, BMW 
is not aware of any accidents or injuries that have occurred as a 
result of this issue.
    BMW has additionally informed NHTSA that it has corrected the 
noncompliance so that all future production of the subject vehicles 
will fully comply with FMVSS No. 108.
    In summation, BMW believes that the described noncompliance of the 
subject motorcycles is inconsequential to motor vehicle safety, and 
that its petition, to exempt BMW from providing recall notification of 
noncompliance as required by 49 U.S.C. 30118 and remedying the 
noncompliance as required by 49 U.S.C. 30120 should be granted.

NHTSA'S Decision

    NHTSA's Analysis of BMW's Arguments: BMW stated that a number

[[Page 58002]]

of traffic conditions were analyzed to determine whether the 
noncompliance is perceptible to other road users and, if so, its affect 
upon safety.
    The first condition BMW reviewed was the rear turn signal mounting 
height. BMW indicates that for another road user with a higher eye-
point, there is no apparent obstruction \1\ and the turn signal would 
appear to meet the requirements of FMVSS No. 108. While many road users 
will have higher eye-points on a flat road than the mounting height of 
these lamps, the downward requirements applicable to lamps are 
generally necessary for instances when other road users are below the 
preceding vehicles, such as vehicles cresting a hill. NHTSA has 
previously relaxed the provisions of downward photometric test angles 
for low mounted turn signal lamps,\2\ however, this provision would not 
apply to BMW's turn signal lamps due to their moderately higher 
mounting height. Regardless, even for lower mounted lamps, the 
photometric test angles were relaxed at test points that were 15[deg] 
down and 10[deg] down only. Essentially, any photometric requirements 
for a low mounted turn signal lamp at the 15[deg] down and 10[deg] down 
locations are allowed to be met at 5[deg] down. In the instant case, 
BMW's turn signal lamps (as installed) at the 20[deg]IB/5[deg] down 
test point are 75% below the required minimum photometric requirements. 
As such, we are not compelled by BMW's argument on this point.
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    \1\ BMW later indicated that the obstruction of the turn signal 
that created the noncompliance was due to a redesigned stop lamp.
    \2\ See Final Rule at 69 FR 48805, August 11, 2004
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    The second condition that BMW reviewed was a traffic condition of 
``Following Directly Behind an Affected Motorcycle.'' BMW's analysis in 
this case assumes that the motorcycle and following vehicle are in the 
same lane, and the motorcycle is on the left side of the lane directly 
in front (and inline) with the driver of the following vehicle. BMW 
argues that the following driver would have to be closer than 6 feet 
from the motorcycle for the lamp to become obstructed and that would be 
unlikely unless they were in bumper to bumper traffic. However, BMW did 
not analyze the case where the motorcycle and the following vehicle 
were in the same lane, but the motorcycle was oriented on the right 
hand side of the lane. In this instance, the motorcycle could be offset 
by 7.5 feet or more to the opposite side of the following driver, and 
the distance from the motorcycle where the right turn signal lamp would 
begin to become obstructed would be over 65 feet. This situation could 
occur when the motorcyclist is preparing for a right hand turn and the 
following driver may not receive the signal that the motorcycle is 
about to slow down for the turn. As such, we are not compelled by BMW's 
argument on this point.
    The third condition that BMW reviewed was a traffic condition of 
``Overtaking/Passing an Affected Motorcycle.'' BMW's analysis in this 
case assumes that the following vehicle is not in the same lane as the 
motorcycle and that if the motorcyclist used its turn signal to 
indicate a turn into the same lane as the following vehicle, the turn 
signal lamp would not be obstructed. In this case, where a motorcyclist 
indicates a turn into the same lane as a following vehicle, NHTSA 
agrees that the turn signal lamp on that side would not be obstructed.
    NHTSA's Decision: In consideration of the foregoing, NHTSA finds 
that BMW has not met its burden of persuasion that the subject FMVSS 
No. 108 noncompliance described is inconsequential to motor vehicle 
safety. Accordingly, BMW's petition is hereby denied and BMW is 
obligated to provide notification of, and a free remedy for, that 
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.

Gregory K. Rea,
Associate Administrator for Enforcement.
[FR Doc. 2016-20250 Filed 8-23-16; 8:45 am]
 BILLING CODE 4910-59-P