Notice2023-23529
BMW of North America, LLC, Grant of Petition for Decision of Inconsequential Noncompliance
Primary source
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Published
October 25, 2023
Issuing agencies
Transportation DepartmentNational Highway Traffic Safety Administration
Abstract
BMW of North America, LLC, a subsidiary of BMW AG, Munich, Germany, (collectively "BMW"), has determined that certain Model Year (MY) 2018-2021 BMW K 1600 motorcycles do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 123, Motorcycle Controls and Displays. BMW filed an original noncompliance report dated March 18, 2021, and, subsequently, BMW petitioned NHTSA on April 9, 2021, for a decision that the subject noncompliance is inconsequential as it relates to motor vehicle safety. This notice announces the grant of BMW's petition.
Full Text
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<title>Federal Register, Volume 88 Issue 205 (Wednesday, October 25, 2023)</title>
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[Federal Register Volume 88, Number 205 (Wednesday, October 25, 2023)]
[Notices]
[Pages 73394-73395]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23529]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2021-0037; 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, a subsidiary of BMW AG, Munich,
Germany, (collectively ``BMW''), has determined that certain Model Year
(MY) 2018-2021 BMW K 1600 motorcycles do not fully comply with Federal
Motor Vehicle Safety Standard (FMVSS) No. 123, Motorcycle Controls and
Displays. BMW filed an original noncompliance report dated March 18,
2021, and, subsequently, BMW petitioned NHTSA on April 9, 2021, for a
decision that the subject noncompliance is inconsequential as it
relates to motor vehicle safety. This notice announces the grant of
BMW's petition.
FOR FURTHER INFORMATION CONTACT: Frederick Smith, General Engineer,
NHTSA, Office of Vehicle Safety Compliance, (202) 366-7487.
SUPPLEMENTARY INFORMATION:
I. Overview
BMW has determined that certain MY 2018-2021 BMW K 1600 motorcycles
do not fully comply with the requirements of paragraph S5.2.5 of FMVSS
No. 123, Motorcycle Controls and Displays (49 CFR 571.123). BMW filed a
noncompliance report dated March 18, 2021, pursuant to 49 CFR part 573,
Defect and Noncompliance Responsibility and Reports. BMW subsequently
petitioned NHTSA on April 9, 2021, 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 June 17, 2022, in the Federal Register (87 FR
36579). No comments were received. To view the petition and all
supporting documents log onto the Federal Docket Management System
(FDMS) website at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. Then follow the online
search instructions to locate docket number ``NHTSA-2021-0037.''
II. Motorcycles Involved
Approximately 4,966 MY 2018-2021 BMW K 1600 GTL, B, and Grand
America motorcycles manufactured between April 13, 2017, and February
23, 2021, are potentially involved.
III. Noncompliance
BMW explains that the subject motorcycles are equipped with
passenger footrests that fold upward and slightly forward, but not
rearward, when not in use, and therefore do not fully comply with the
requirements specified in paragraph S5.2.5 of FMVSS No. 123.
IV. Rule Requirements
Paragraph S5.2.5 of FMVSS No. 123 includes the requirements
relevant to this petition. Footrests shall be provided for each
designated seating position. Each footrest for a passenger other than
an operator shall fold rearward and upward when not in use.
V. Summary of BMW's Petition
The following views and arguments presented in this section, ``V.
Summary of BMW's Petition,'' are the views and arguments provided by
BMW and do not reflect the views of the Agency. BMW describes the
subject noncompliance and contends that the noncompliance is
inconsequential as it relates to motor vehicle safety.
BMW says that that while ``there are slight differences in the
geometry and mounting locations'' between each model of the affected
motorcycles, the passenger footrest ``is attached to the mounting
bracket and the bracket is bolted to the motorcycle frame.'' BMW notes
that ``the mounting locations for the rider footrest are identical, but
for the K 1600 GTL, the mounting location for the passenger footrest is
higher.''
BMW states that despite there being ``no possibility for ground
contact to occur with the passenger footrest'' while in a banked turn,
BMW conducted an analysis ``to determine the distance between the
passenger footrest and the ground when other motorcycle components
contact the ground.'' \1\ BMW also conducted test rides with the
affected K 1600 GTL and K 1600 Grand America model motorcycles.
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\1\ Details of BMW's analysis can be found in its petition at
<a href="https://www.regulations.gov/document/NHTSA-2021-0037-0001">https://www.regulations.gov/document/NHTSA-2021-0037-0001</a>.
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For the analysis, BMW examined the ``various components that could
contact the ground during a banked turn'' and ``the lean angles at
which a specific component will contact the ground.'' BMW explains that
the ``lean angle is the angle that is subtended by the intersection of
a plane passing through the longitudinal axis of the motorcycle when it
is upright (vertical), and a plane passing through the longitudinal
axis of the motorcycle when the motorcycle is at a specific angle
(i.e., the lean angle) from upright (vertical).''
As a result of the analysis, BMW found that it is not possible for
the passenger footrest on the subject vehicles to contact the ground
while in a banked turn. Furthermore, BMW says that ``if the lean angle
is increased, there are a number of motorcycle components that would
contact the ground and, at those points, the passenger footrest is
still approximately several inches from the ground.''
BMW says that it has not received any complaints from vehicle
owners and is not aware of any accidents or injuries that have occurred
because of this issue. Additionally, BMW says that vehicle production
has been corrected.
BMW concludes that the subject noncompliance is inconsequential as
it relates to motor vehicle safety and that its petition 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
The burden of establishing the inconsequentiality of a failure to
comply with a performance requirement is substantial and difficult to
meet. Accordingly, the Agency has not found many such noncompliances
inconsequential.\2\
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\2\ 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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In determining inconsequentiality of a noncompliance, NHTSA focuses
on the safety risk to individuals who experience the type of event
against which a recall would otherwise protect.\3\ In general, NHTSA
does not
[[Page 73395]]
consider the absence of complaints or injuries when determining if a
noncompliance is inconsequential to safety. The absence of complaints
does not mean vehicle occupants have not experienced a safety issue,
nor does it mean that there will not be safety issues in the future.\4\
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\3\ 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).
\4\ See Morgan 3 Wheeler Limited; Denial of Petition for
Decision of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr.
12, 2016); see also 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 the inconsequential noncompliance
petition and supplemental materials submitted by BMW and has determined
that this particular noncompliance is inconsequential to motor vehicle
safety. Specifically, the Agency considered the following when making
its decision:
In pertinent part, S5.2.5 requires that each footrest for a
passenger other than an operator fold rearward and upward when not in
use. NHTSA has issued several interpretations of section S5.2.5. In a
letter dated February 16, 1982, to American Honda Motor Co., Inc., with
respect to a proposed footboard design, the then Chief Counsel
commented that ``[w]e consider that the purpose of S5.2.5 is to prevent
accidents caused by rigid footrests contacting the ground in a banking
turn.'' \5\ Various other NHTSA letters provided the same
interpretation of the footrest requirement in S5.2.5.\6\
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\5\ <a href="https://www.nhtsa.gov/interpretations/aiam3524">https://www.nhtsa.gov/interpretations/aiam3524</a>.
\6\ An earlier interpretation from 1973 also to American Honda
stated that S5.2.5 regulates ``only the direction in which footrests
shall retract, so that if they are inadvertently left down when not
in use they will fold rearward and upward should they hit an
obstacle while the motorcycle is travelling forward.'' That
interpretation suggests that contact of the footrests with obstacles
other than the ground or roadway may be a consideration. However,
all other agency interpretations of S5.2.5 focus on footrest contact
with the ground/roadway. See <a href="https://www.nhtsa.gov/interpretations/nht73-622">https://www.nhtsa.gov/interpretations/nht73-622</a>.
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BMW conducted a measurement analysis for the K1600 GTL Motorcycle
including lean angle to determine the distance between the passenger
footrest and the ground when other motorcycle components contact the
ground during a banked turn. The analysis indicated that the first
component that would contact the ground would be the rider's footrest
at 39 degrees lean angle, followed by other components such as the
engine spoiler that would contact the ground at 43 degrees. Next,
components including the center stand would contact the ground at 46
degrees. The BMW analysis demonstrated that, as the motorcycle lean
angle increases, all of these components contact the ground well before
the passenger footrest would make contact with the ground.
Additionally, BMW conducted a measurement analysis for the K1600 B
Motorcycle including lean angle to determine the distance between the
passenger footrest and the ground when other motorcycle components
contact the ground during a banked turn. The analysis indicated that
the first component that would contact the ground would be the rider's
footrest at 39 degrees, followed by other components such as the engine
spoiler that would contact the ground at 42 degrees. Next, components
including the engine spoiler would contact the ground at 43.5 degrees.
According to BMW's analysis, as the motorcycle lean angle increases,
all of these components contact the ground before the passenger
footrest would make contact with the ground.
Furthermore, BMW conducted a measurement analysis for the K1600
Grand America Motorcycle including lean angle to determine the distance
between the passenger footrest and the ground when other motorcycle
components contact the ground during a banked turn. The analysis
indicated that the first component that would contact the ground would
be the rider's floorboard at a lean angle of 34.5 degrees, followed by
other components such as the rider footrest that would contact the
ground at 39 degrees. Next, components including the silencer would
contact the ground at 42 degrees. As motorcycle lean angle increases,
all of these components contact the ground well before the passenger
footrest would make contact with the ground.
BMW also conducted real-world test rides with a K 1600 GTL and with
a K 1600 Grand America. On-board videos were taken to provide a close-
up view of certain components prior to, and at, contact with the
ground. The videos confirmed the findings from the measurement
analysis.
NHTSA considers the purpose of S5.2.5 is to prevent accidents
caused by rigid passenger footrests contacting the ground when a
motorcycle is leaned over in a turn. BMW's measurement analysis and
real-world testing clearly demonstrate there is no possibility for the
passenger footrests to contact the ground while the motorcycle is under
control in a banked turn because numerous other components would
contact the ground first, preventing either passenger footrest from
ever contacting the ground. Therefore, this noncompliance 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. 123 noncompliance in
the affected motorcycles is inconsequential to motor vehicle safety.
Accordingly, BMW's petition is hereby granted, and 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 motorcycles 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 motorcycles 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. 2023-23529 Filed 10-24-23; 8:45 am]
BILLING CODE 4910-59-P
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</html>Indexed from Federal Register on October 25, 2023.
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