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

American Government Special Collections Reference Desk

American Government Topics:  BMW 7 Series

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

Jeffrey M. Giuseppe
National Highway Traffic Safety Administration
21 November 2017


[Federal Register Volume 82, Number 223 (Tuesday, November 21, 2017)]
[Notices]
[Pages 55484-55486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25168]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2016-0025; 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), has determined that certain 
model year (MY) 2016 BMW 7 Series motor vehicles 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 January 21, 2016. BMW also petitioned NHTSA on February 
12, 2016, for a decision that the subject noncompliance is 
inconsequential as it relates to motor vehicle safety.

FOR FURTHER INFORMATION CONTACT: For further information on this 
decision contact Leroy Angeles, Office of Vehicle Safety Compliance, 
the National Highway Traffic Safety Administration (NHTSA), telephone 
(202) 366-5304, facsimile (202) 366-5930.

SUPPLEMENTARY INFORMATION: 
    I. Overview: BMW of North America, LLC (BMW), has determined that 
certain model year (MY) 2016 BMW 7 Series motor vehicles do not fully 
comply with paragraph S7.7.13.3 of Federal Motor Vehicle Safety 
Standard (FMVSS) No. 108, Lamps, reflective devices and associated 
equipment. BMW filed a noncompliance report dated January 21, 2016, 
pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility 
and Reports. BMW also petitioned NHTSA on February 12, 2016, pursuant 
to 49 U.S.C. 30118(d) and 30120(h) and 49 CFR part 556), 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.
    Notice of receipt of the petition was published with a 30-day 
public comment period, on March 4, 2016, in the Federal Register (81 FR 
11645). One comment was received. To view the petition, comments 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-2016-0025.''
    II. Vehicles Involved: Approximately 5,076 MY 2016 BMW 7 Series 
passenger cars, which were manufactured between August 03, 2015, and 
November 20, 2015, are potentially involved.
    III. Noncompliance: BMW states that the rear license plate lamp may 
not fully conform to paragraph S7.7.13.3 of FMVSS No. 108 because it 
exceeds the illumination ratio specified in that paragraph.
    IV. Rule Text: Paragraph S7.7.13.3 of FMVSS No. 108 requires, in 
pertinent part:

    S7.7.13.3 The ratio of the average of the two highest 
illumination values divided by the average of the two lowest 
illumination values must not exceed 20:1 for vehicles other than 
motorcycles and motor driven cycles.

    V. Summary of BMW's Petition: BMW described the subject 
noncompliance and stated its belief that the noncompliance is 
inconsequential to motor vehicle safety for the following reasons:
     The out-of-specification lamps satisfy all other 
requirements of FMVSS No. 108.
     The out-of-specification lamps only deviate from paragraph 
7.7.13.3 of FMVSs No. 108 with regard to the lamp's illumination ratio 
and not the lamp's actual illumination.
     Personnel who participated in a company assessment 
reported no difference in their visual perception of the simulated 
license plates that were used as test specimens.
     BMW has not received any customer complaints related to 
the issue.
     BMW is not aware of any accidents or injuries related to 
this issue.
     NHTSA has previously granted petitions in which the 
illumination of test points remains well above the requirements.
     Vehicle production has been corrected.
    In support of its petition, BMW submitted the following information 
pertaining to laboratory testing and analysis of the subject 
noncompliance:
    (1) FMVSS No. 108 Lamp Certification: BMW submitted a test report 
dated April 7, 2015 pertaining to lamps manufactured by U-SHIN Italia 
S.p.A. (U-SHIN) prior to vehicle production. According to BMW, this 
report indicates that the lamp satisfies FMVSS No. 108 requirements, as 
the ratio of the average of the two highest illumination values divided 
by the average of the two lowest illumination values is 14.1, and FMVSS 
No. 108 requires that the value be less than 20.
    (2) Evaluation by Measurement Equipment: Both BMW and U-SHIN 
performed a number of tests of both in-specification and out-of-
specification lamps to assess the performance of the subject lamps to 
the pertinent requirement of FMVSS No. 108. BMW submitted one 
representative test report for each test condition. The results are as 
follows:

--U-SHIN out-of-specification lamp tests: These showed an illumination 
ratio of 22.0. BMW noted, however, that each of the eight (8) test 
points satisfies the applicable FMVSS No. 108 photometric 
(illumination) requirements.
--BMW out-of-specification lamp tests: BMW performed its own out-of-
specification tests to verify U-SHIN's test results and to obtain 
results for the lamps when equipped within a vehicle. These showed an 
illumination ratio of 22.2. BMW noted, however, that each of the eight 
(8) test points satisfies the applicable FMVSS No. 108 photometric 
(illumination) requirements.
--U-SHIN in-specification lamp tests: These showed an illumination 
ratio of 13.8. As with the previously described tests, BMW noted, 
however, that each of the eight (8) test points satisfies the 
applicable FMVSS No. 108 photometric (illumination) requirements.
--BMW in-specification tests: BMW performed their own in-specification 
tests to verify U-SHIN's test results and to obtain results for the 
lamps when equipped within a vehicle. These showed an illumination 
ratio of 13.9. BMW again noted, however, that

[[Page 55485]]

each of the eight (8) test points satisfies the applicable FMVSS No. 
108 photometric (illumination) requirements.
    (3) Evaluation by human assessment: In addition to the laboratory 
testing performed by both BMW and U-SHIN using specific lamp 
measurement equipment, BMW also compared the out-of-specification lamps 
to the in-specification lamps via human assessment. BMW performed this 
assessment to determine whether or not the condition caused by the non-
compliance was perceptible to other road users (i.e., drivers 
approaching an affected vehicle) and, if so, its effect on safety.
    BMW submitted photographs that depict the illumination of a test 
specimen simulating a rear license plate by both in-specification and 
out-of-specification lamps. According to BMW, while there may be a 
slightly perceptible difference in the photographs depicting the test 
specimen illuminated by in-specification and out-of-specification 
lamps, this is due to tolerances of the camera equipment related to 
exposure time and shutter speed. BMW stated that the personnel who 
participated in this assessment reported no difference in their visual 
perception of the test specimens.
    Additionally, BMW noted that even for the out-of-specification 
lamp, all of the eight (8) test points satisfy the applicable FMVSS No. 
108 photometric (illumination) requirements. BMW emphasized that the 
noncompliance pertains to the illumination ratio, not to the actual 
lamp illumination. As a consequence, BMW asserts that while the 
noncompliance condition can be measured in a laboratory, it cannot be 
detected by the human eye, and therefore drivers of approaching 
vehicles will be afforded the same level of visibility as if 
approaching a non-affected vehicle. According to BMW, these analyses 
support the conclusion that the condition caused by the noncompliance 
does not affect the safety of affected vehicle occupants or other road 
users such as drivers approaching affected vehicles.
    (4) Field Experience: BMW states that its Customer Relations 
division has not received any contacts from vehicle owners regarding 
the matter at issue. As a consequence, BMW believes that, consistent 
with the results of the laboratory tests and human assessments 
described above, the condition is undetectable to road users such as 
drivers approaching affected vehicles. BMW further notes that it is not 
aware of any accidents or injuries that have occurred as a result of 
the condition.
    (5) Prior NHTSA Rulings: BMW states that NHTSA has previously 
granted petitions from other manufacturers involving various issues 
pertaining to FMVSS No. 108 noncompliance. BMW believes that in some of 
those petitions, the photometry (illumination) of the test points 
remains well above the FMVSS No. 108 requirements as the noncompliance 
has no affect upon the illumination of the test points.
    (6) Vehicle Production: BMW stated that subsequent vehicle 
production has been corrected to conform to paragraph 7.7.13.3 of FMVSS 
No. 108.
    In summation, BMW expressed the belief that the subject 
noncompliance is inconsequential to motor vehicle safety, and that its 
petition, to exempt BMW from providing notification of the 
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

    Comments: One comment was received by Mr. Chris Janik. Mr. Janik 
said ``This is a technical non-compliance that is based only on 
laboratory measurement and calculation of the illumination ratio. To 
me, the compelling argument to grant the petition is that there are no 
customer complaints regarding the issue and that the difference between 
license plate bulb that comply with the requirements and those that do 
not is not perceptible to anyone that is behind the vehicle. There is 
no unreasonable risk to motor vehicle safety, so this petition should 
clearly be granted''
    NHTSA thanks Mr. Janik for his comment. NHTSA has reviewed the 
petition and made its decision based on the reasons described below.
    NHTSA's Analysis: Based on test data provided by BMW, NHTSA found 
that the percent difference of the lamp's illumination ratio in the 
subject vehicles exceed the maximum requirement by 9% to 10.6%. Even 
though the lamps exceed the illumination ratio the lamps satisfy all 
other FMVSS No. 108 requirements. However, NTHSA is unable to verify 
the validity of BMW's claim that this difference cannot be detected by 
the human eye.
    License plates are necessary on motor vehicles to allow law 
enforcement personnel and the general public to uniquely identify 
vehicles. When it is dark and motor vehicle lighting is in use, the 
required license plate lamp is necessary to illuminate the license 
plate on the rear of a vehicle so it can be identified. FMVSS No. 108 
contains various photometric and geometric requirements for the purpose 
of assuring legibility of the license plate. One such requirement is 
the illumination ratio to protect against shadowing across the license 
plate, which could make the license plate difficult to read.
    As in the case of BMW's petition, the burden of establishing the 
inconsequentiality of a failure to comply with a performance 
requirement in a standard is substantial and difficult to meet, and the 
agency has not found many such noncompliances to be inconsequential. 
However, one area in which the agency has granted such petitions has 
been where the noncompliance is expected to be imperceptible, or nearly 
so, to vehicle occupants or approaching drivers. NHTSA found BMW's 
assessment of human visual perception of the test specimens to be 
interesting, yet insufficient to justify granting the petition. Instead 
NHTSA is relying on the test data which indicates that the license 
plate lamps on these vehicles exceeded the minimum photometric 
performance levels at each of the eight (8) test points by at least 
37.5% and up to 191.3%. This data in conjunction with the fact that the 
ratio is slightly greater than required, NHTSA would agree that license 
plates illuminated with these lamps would be legible.
    Furthermore, NHTSA reiterates that the lamp illumination ratio is 
an important performance measurement to ensure license plate 
legibility.
    NHTSA's Decision: In consideration of the foregoing, NHTSA finds 
that BMW has met its burden of persuasion that the FMVSS No. 108 
noncompliance is inconsequential as it relates to motor vehicle safety 
under these facts and circumstances. Accordingly, BMW's petition is 
hereby granted and BMW is consequently exempted from the obligation to 
provide notification of, and remedy for, the subject noncompliance in 
the affected vehicles 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

[[Page 55486]]

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)

Jeffrey M. Giuseppe,
Associate Administrator for Enforcement.
[FR Doc. 2017-25168 Filed 11-20-17; 8:45 am]
 BILLING CODE 4910-59-P

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