[Federal Register Volume 87, Number 12 (Wednesday, January 19, 2022)]
[Notices]
[Pages 2981-2983]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00869]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2018-0105; Notice 2]


BMW of North America, LLC, Grant of Petition for Decision of 
Inconsequential Noncompliance

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

ACTION: Grant of petition.

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SUMMARY: BMW of North America, LLC (BMW), a subsidiary of BMW AG, has 
determined that certain model year (MY) 2019 BMW F750 GS and F850 GS 
motorcycles do not fully comply with Federal Motor Vehicle Safety 
Standard (FMVSS) No. 205, Glazing Materials. BMW filed a noncompliance 
report dated October 19, 2018. BMW subsequently petitioned NHTSA on 
October 29, 2018, for a decision that the subject noncompliance is 
inconsequential as it relates to motor vehicle safety. This document 
announces the grant of BMW's petition.

FOR FURTHER INFORMATION CONTACT: Leroy Angeles, Office of Vehicle 
Safety Compliance, the National Highway Traffic Safety Administration 
(NHTSA), telephone (202) 366-5304, [email protected].

SUPPLEMENTARY INFORMATION:

I. Overview

    BMW has determined that certain MY 2019 BMW F750 GS and F850 GS 
motorcycles do not fully comply with paragraph S6.3 of FMVSS No. 205, 
Glazing Materials (49 CFR 571.205). BMW filed a noncompliance report 
dated October 19, 2018, pursuant to 49 CFR part 573, Defect and 
Noncompliance Responsibility and Reports. BMW subsequently petitioned 
NHTSA on October 29, 2018, for an exemption from the notification and 
remedy requirements of 49 U.S.C. Chapter 301 on the basis that this 
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 BMW's petition was published with a 30-day 
public comment period, on February 27, 2020, in the Federal Register 
(85 FR 11447). No comments were received. To view the petition 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

[[Page 2982]]

locate docket number ``NHTSA-2018-0105.''

II. Vehicles Involved

    Approximately 604 MY 2019 BMW F750 GS and F850 GS motorcycles, 
manufactured between June 21, 2018, and September 19, 2018, are 
potentially involved.

III. Noncompliance

    BMW explains that the noncompliance is that the subject motorcycles 
are equipped with windscreens that do not comply with paragraph S6.3 of 
FMVSS No. 205. Specifically, the subject windscreens were marked with 
the AS4 glazing type marking instead of the AS6 glazing type marking. 
The windscreens were AS6 glazing and should have been marked as the AS6 
glazing type.

IV. Rule Requirements

    Paragraph S6.3 of FMVSS No. 205 includes the requirements relevant 
to this petition. A manufacturer or distributor who cuts a section of 
glazing material to which this standard applies, for use in a motor 
vehicle or camper, must mark that material in accordance with section 7 
of ANSI/SAE Z26.1-1996 and certify that its product complies with this 
standard in accordance with 49 U.S.C. 30115.
    AS4 certified glazing is typically rigid plastic and is only 
permitted for use in certain locations. AS4 glazing may not be used for 
motorcycle windscreens. AS4 glazing is not subject to a flexibility 
test, whereas AS6 marked glazing is subject to this test. AS6 certified 
glazing is typically made of flexible plastic and, unlike AS4 certified 
glazing, can be used as a motorcycle windscreen. Additionally, AS6 
certified glazing is not subject to two impact tests, an abrasion test, 
and a dimensional stability test, whereas, AS4 certified glazing is 
subject to these tests.

V. Summary of BMW's Petition

    BMW described the subject noncompliance and stated its belief that 
the noncompliance is inconsequential as it relates to motor vehicle 
safety. The following views and arguments presented in this section 
``V. Summary of BMW's Petition,'' are the views and arguments provided 
by BMW.
    In support of its petition, BMW submitted the following reasoning:
    1. FMVSS No. 205 Section 2 (Purpose) states, ``The purpose of this 
standard 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.''
    2. Potentially affected vehicles conform to all of the FMVSS No. 
205 performance requirements. Therefore, they satisfy the stated 
purpose of FMVSS No. 205 regarding a) injury reduction, and b) rider 
visibility.
    3. Potentially affected vehicles conform to all the FMVSS No. 205 
performance requirements. Therefore, there are no safety performance 
implications associated with this potential noncompliance.
    4. BMW has not received any contacts from vehicle owners regarding 
this issue. Therefore, BMW is unaware of any vehicle owners that have 
encountered this issue.
    5. BMW is unaware of any accidents or injuries that may have 
occurred as a result of this issue.
    6. NHTSA has previously granted petitions for inconsequential 
noncompliance regarding FMVSS No. 205 involving marking of window 
glazing. BMW believes that its petition is similar to other 
manufacturers' petitions in which NHTSA has granted. Examples of 
similar petitions, in which NHTSA has granted, include the following:
     Ford Motor Company, 80 FR 11259 (March 2, 2015).
     Ford Motor Company, 78 FR 32531 (May 30, 2013).
     Ford Motor Company, 64 FR 70115 (December 15, 1999).
     General Motors, LLC, 79 FR 23402 (September 25, 2015).
     General Motors, LLC, 70 FR 49973 (August 25, 2005).
     Toyota Motor North America Inc., 68 FR 10307 (March 4, 
2003).
     Fuji Heavy Industries USA, Inc., 78 FR 59088 (September 
25, 2013).
     Mitsubishi Motors North America, Inc., 80 FR 72482 (August 
22, 2015).
     Pilkington North America, Inc., 78 FR 22942 (April 17, 
2003).
     Supreme Corporation, 81 FR 72850 (October 21, 2016).
     Custom Glass Solutions Upper Sandusky Corp., 80 FR 3737 
(January 23, 2015).
    7. Vehicle production has been corrected to conform to FMVSS No. 
205 S6.
    8. BMW also provided a copy of the FMVSS No. 205 Certification 
Report from AIB-Vincotte International N.V.

VI. NHTSA's Analysis

    The burden of establishing the inconsequentiality of a failure to 
comply with a performance requirement in a standard--as opposed to a 
labeling requirement with no performance implications--is more 
substantial and difficult to meet. Accordingly, the Agency has not 
found many such noncompliances inconsequential.\1\ Potential 
performance failures of safety-critical equipment are rarely deemed 
inconsequential.
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    \1\ Cf. Gen. Motors Corporation; Ruling on Petition for 
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899 
(Apr. 14, 2004) (citing prior cases where noncompliance was expected 
to be imperceptible, or nearly so, to vehicle occupants or 
approaching drivers).
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    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.\2\ In general, NHTSA does not 
consider the absence of complaints or injuries to show that the issue 
is inconsequential to 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.'' \3\ 
``[T]he fact that in past reported cases good luck and swift reaction 
have prevented many serious injuries does not mean that good luck will 
continue to work.'' \4\
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    \2\ 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).
    \3\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of 
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
    \4\ United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C. 
Cir. 1977) (finding defect poses an unreasonable risk when it 
``results in hazards as potentially dangerous as sudden engine fire, 
and where there is no dispute that at least some such hazards, in 
this case fires, can definitely be expected to occur in the 
future'').
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    NHTSA has evaluated the merits of BMW's petition for 
inconsequential noncompliance. 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.
    The subject vehicles in BMW's petition have noncompliances that 
pertain to motorcycle windscreens that have incorrect AS markings. The 
Agency believes that it is important that the motorcycle windscreens 
equipped in the subject motorcycles are compliant with both FMVSS No. 
205 performance

[[Page 2983]]

and labeling requirements. Nonetheless, BMW's petition establishes that 
the incorrectly marked windscreens on the affected motorcycles conform 
to all FMVSS No. 205 performance requirements as evidenced in a test 
report showing the windscreens meet all the AS6 glazing performance 
requirements required by FMVSS No. 205.
    As the performance requirements are met, NHTSA's principal concern 
is whether the noncompliant marking of the windscreen creates a safety 
risk in the event that consumers mistakenly believe the glazing meets 
the impact, abrasion, and dimensional stability requirements of AS4 
glazing or attempt to replace the windscreen with AS4 glazing.
    First, NHTSA considered whether the mismarking would lead a 
consumer to believe that the windscreen offers the same level of 
performance provided by AS4 glazing that is not provided by AS6 glazing 
material. Specifically, NHTSA considered whether a rider would believe 
that, as a result of the mismarking, the windscreen provides impact 
protection and meets dimensional stability and abrasion requirements. 
While this could be a potential safety risk, the size and placement of 
the subject windscreen was factored into NHTSA's analysis. The 
windscreens come in two sizes, one measuring 316 mm wide by 309 mm 
high, and the other measuring 314 mm wide by 216 mm high. The size, 
design, and placement of the subject windscreens appear such that a 
rider would expect that they would offer little to no impact 
protection. Further, the size and placement of the windscreens are such 
NHTSA does not believe that the mismarking will create a safety risk 
from riders believing that the windscreen meets the abrasion and 
dimensional stability requirements of AS4 glazing. According to BMW, 
the subject windscreens are intended to protect the dashboard 
electronics, deflect wind away from the rider, and serve as an 
aesthetic design for the motorcycle. Further, NHTSA believes that few 
riders know the differences in performance of AS4 and AS6 glazing. 
NHTSA believes that due to the size, design, placement of the subject 
windscreens, and the likelihood that riders would know the differences 
between the performance of AS4 and AS6 glazing, riders are unlikely to 
believe that the windscreen offers a higher level of performance than 
actually offered by the noncompliant windscreens.
    Second, in the case that the windscreens require replacement, NHTSA 
believes that there is minimal risk in a motorcyclist being misled by 
the improper marking and concluding that a replacement windscreen must 
be of AS4 glazing rather than AS6 flexible glazing. The Agency believes 
that this risk is minimal because an AS4 replacement part would not be 
available and obtaining such a part would require that the new 
windscreen be custom fabricated from rigid AS4 glazing. If such 
fabrication were possible, it would likely entail considerable 
inconvenience and expense. Further, BMW or another replacement part 
supplier would be able to easily identify the correct AS6 replacement 
glazing through their replacement parts identification systems.
    BMW's petition also cited multiple instances where NHTSA previously 
determined that incorrect AS markings on glazing were inconsequential 
for safety. The Agency first notes that use of previous determinations 
for inconsequential noncompliance should be viewed with caution as each 
inconsequential noncompliance petition is evaluated on the individual 
facts presented and determinations are made on a case-by-case basis. 
Further, of the eleven cited petitions, only 2 pertained to glazing 
that contained an incorrect AS glazing type marking and are potentially 
relevant to this petition. In both the petition from General Motors, 
LLC, (79 FR 23402, September 25, 2015) and the petition from Mitsubishi 
Motors North America, Inc. (80 FR 72482, August 22, 2015), AS3 glazing 
was marked as AS2 glazing. While the petitions are similar to BMW's, 
AS3 glazing and AS2 glazing have the same impact protection 
requirements. The analysis for this petition is different because, as 
discussed above, AS4 glazing is required to meet two impact tests that 
are not required for AS6 glazing.
    Given that the windscreens in the subject motorcycles meet all the 
performance requirements as required by FMVSS No. 205 and the improper 
marking of the glazing presents no recognizable safety risk, the Agency 
finds that the subject glazing is inconsequential to motor vehicle 
safety.

VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA finds that BMW has met its 
burden of persuasion that the subject FMVSS No. 205 noncompliance in 
the affected vehicles is inconsequential to motor vehicle safety. 
Accordingly, BMW's petition is hereby granted. BMW is consequently 
exempted from the obligation of providing notification of, and a free 
remedy for, that noncompliance under 49 U.S.C. 30118 and 30120.
    NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 
30120(h)) that permit manufacturers to file petitions for a 
determination of inconsequentiality allow NHTSA to exempt manufacturers 
only from the duties found in sections 30118 and 30120, respectively, 
to notify owners, purchasers, and dealers of a defect or noncompliance 
and to remedy the defect or noncompliance. Therefore, this decision 
only applies to the subject vehicles that BMW no longer controlled at 
the time it determined that the noncompliance existed. However, the 
granting of this petition does not relieve vehicle distributors and 
dealers of the prohibitions on the sale, offer for sale, or 
introduction or delivery for introduction into interstate commerce of 
the noncompliant vehicles under their control after BMW notified them 
that the subject noncompliance existed.

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

Otto G. Matheke III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2022-00869 Filed 1-18-22; 8:45 am]
BILLING CODE 4910-59-P