[Federal Register Volume 88, Number 205 (Wednesday, October 25, 2023)]
[Notices]
[Pages 73394-73395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 https://www.regulations.gov/. 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 
https://www.regulations.gov/document/NHTSA-2021-0037-0001.
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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\ https://www.nhtsa.gov/interpretations/aiam3524.
    \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 https://www.nhtsa.gov/interpretations/nht73-622.
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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