[Federal Register Volume 82, Number 100 (Thursday, May 25, 2017)]
[Notices]
[Pages 24203-24204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-10743]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2015-0040; 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) 2013 BMW 5 
Series sedan passenger cars do not fully comply with Federal Motor 
Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices and 
Associated Equipment. BMW filed a noncompliance report dated March 26, 
2015. BMW also petitioned NHTSA on April 17, 2015, for a decision that 
the subject noncompliance is inconsequential as it relates 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) 366-3081.

SUPPLEMENTARY INFORMATION: 

I. Overview

    BMW of North America, LLC, (BMW) a subsidiary of BMW AG in Munich, 
Germany, has determined that certain model year (MY) 2013 BMW 5 Series 
sedan passenger cars do not fully comply with paragraph S8.1.11 of 
Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, 
Reflective Devices and Associated Equipment. BMW filed a noncompliance 
report dated March 26, 2015, pursuant to 49 CFR part 573, Defect and 
Noncompliance Responsibility and Reports.
    Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule 
at 49 CFR part 556), BMW also petitioned NHTSA on April 17, 2015, for 
an exemption from the notification and remedy requirements of 49 U.S.C. 
Chapter 301 on the basis that the subject noncompliance is 
inconsequential as it relates to motor vehicle safety.
    Notice of receipt of the petition was published with a 30-day 
public comment period, on June 11, 2015, in the Federal Register (80 FR 
33332). No comments were received. To view the petition and all 
supporting documents log onto the Federal Docket Management System 
(FDMS) Web site at: https://www.regulations.gov/. Then follow the 
online search instructions to locate docket number ``NHTSA-2015-0040.''

II. Vehicles Involved

    Affected are approximately 13,899 MY 2013 BMW 5 Series sedan 
passenger cars manufactured between January 30, 2013 and June 28, 2013.

III. Noncompliance

    BMW explains the noncompliance as a failure of some of the rear 
reflex reflectors on the affected vehicles to fully conform to the 
minimum photometric performance required by paragraph S8.1.11 of FMVSS 
No. 108.

IV. Rule Text

    Paragraph S8.1.11 of FMVSS No. 108 requires in pertinent part:

S8.1.11 Photometry. Each reflex reflector must be designed to 
conform to the photometry requirements of Table XVI-a when tested 
according to the procedure of S14.2.3 for the reflex reflector color 
as specified by this section.

V. Summary of BMW's Analyses

    BMW used Ricco's Law to determine a minimum required reflection 
coefficient in its analysis. BMW chose Ricco's Law because they believe 
it best corresponds to the human physiological condition in which a 
light source of a given size and intensity is minimally capable (i.e., 
illumination threshold) of producing visual perception.
    As such, BMW created a graph whereby the y-axis represented the 
reflection coefficient in units consistent with FMVSS No. 108 and the 
x-axis represented the distance between two vehicles in order to 
simulate the condition of an approaching vehicle and a parked or 
stopped vehicle.
    BMW provided the graph to illustrate that even with parameters 
representing a ``worst-case scenario,'' sufficient visibility of the 
rear reflex reflectors of the affected vehicles exists.
    BMW stated that it has not received any contacts from vehicle 
owners or other road users regarding issues related to the subject 
noncompliance and is also 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 subsequent vehicle production will conform to 
paragraph 8.1.11 of FMVSS No. 108.
    In summation, BMW believes that the described noncompliance of the 
subject vehicles 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 recall 
noncompliance as required by 49 U.S.C. 30120 should be granted.

NHTSA's Decision

    NHTSA's Analysis: Reflex reflectors make a vehicle conspicuous to 
drivers of other vehicles at night and at other times when there is 
reduced ambient light including dawn and dusk. The advance warning 
provided by the rear reflex reflectors has the potential to enable 
drivers to avoid a collision when approaching from the rear.
    In reviewing BMW's technical arguments, BMW claims that 2.5 mcd/lux 
is sufficient ``visibility'' for reflex reflectors. BMW bases this 
claim on an equation known as Ricco's law, and provided a link to a 
University of Calgary Web page (http://ucalgary.ca/pip369/mod3/brightness/threelaws) that provides a very limited description of this 
science. When compared to the FMVSS No. 108 required minimum 
performance of 420, 280, and 140 mcd/lux at certain test points and 
observation angles, the value that BMW claims is sufficient, 2.5 mcd/
lux, represents only 0.5%, 0.8%, and 1.7%

[[Page 24204]]

of the required minimum performance requirements. Based on the agency's 
review of BMW's technical analysis, we do not believe they have fully 
accounted for the complexities of real world driving in their proposed 
minimum perceivable performance. Additional factors must be accounted 
for in the determination of minimum performance, some include: Dirt 
buildup on the device, older driver's visual perception skills, a 
variety of ambient illumination and surrounding contrast scenes, and 
the continually changing viewing geometry between the reflex reflector 
and observer.
    In consideration that the primary function of a rear reflex 
reflector is to reduce crashes by permitting early detection of 
unlighted preceding motor vehicles or those parked by the side of the 
road, NHTSA has concluded that BMW's assessment that 2.5 mcd/lux is a 
suitable ``required reflection coefficient,'' a value representing less 
than 1.7% of the FMVSS No. 108 required minimum values, is not 
compelling.
    BMW did not provide any test reports detailing the performance of 
its noncompliant rear reflex reflectors; however, it did indicate that 
the worst measured values were 154, 120, and 91 mcd/lux at certain test 
points. These values are substantially below the minimum values 
required by FMVSS No. 108 (420, 280, and 140 mcd/lux) by 63%, 57%, and 
35%, respectively. Based on these photometric performance failures, 
NHTSA believes that BMW's noncompliant reflex reflectors present a 
consequential risk to motor vehicle safety.
    BMW also states that it had not received contacts from vehicle 
owners, or other road users, regarding this issue. Nor is it aware of 
any accidents or injuries that have occurred as a result of this issue. 
NHTSA does not consider the absence of complaints to show that a 
noncompliance is inconsequential to safety. 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 BMW. 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.
    NHTSA's Decision: In consideration of the foregoing, NHTSA finds 
that BMW has not met its burden of persuasion that the FMVSS No. 108 
noncompliance is inconsequential to motor vehicle safety. Accordingly, 
BMW's petition is hereby denied and BMW is obligated to provide 
notification of, and a 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).

Jeffrey M. Giuseppe,
Acting Associate Administrator, Enforcement.
[FR Doc. 2017-10743 Filed 5-24-17; 8:45 am]
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