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

AGENCY:

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

ACTION:

Receipt of petition.

SUMMARY:

BMW of North America, LLC (BMW), a subsidiary of BMW AG, Munich, Germany, has determined that certain (MY) 2019-2012; BMW and 2020-2021 Toyota motor vehicles do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 104, Windshield Wiping and Washing Systems. BMW filed a noncompliance report dated September 11, 2020. BMW subsequently petitioned NHTSA on October 9, 2020, and submitted a supplement to the petition on February 23, 2021, for a decision that the subject noncompliance is inconsequential as it relates to motor vehicle safety. This notice announces receipt of BMW's petition.

DATES:

Send comments on or before May 24, 2021.

ADDRESSES:

Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and submitted by any of the following methods:

• Mail: Send comments by mail addressed to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE, Washington, DC 20590.
• Hand Delivery: Deliver comments by hand to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE, Washington, DC 20590. The Docket Section is open on weekdays from 10 a.m. to 5 p.m. except for Federal holidays.
• Electronically: Submit comments electronically by logging onto the Federal Docket Management System (FDMS) website at https://www.regulations.gov/. Follow the online instructions for submitting comments.
• Comments may also be faxed to (202) 493-2251.

Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to https://www.regulations.gov,, including any personal information provided.

All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.

When the petition is granted or denied, notice of the decision will also be published in the Federal Register pursuant to the authority indicated at the end of this notice.

All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at https://www.regulations.gov by following the online instructions for accessing the docket. The docket ID number for this petition is shown in the heading of this notice.

DOT's complete Privacy Act Statement is available for review in a Federal Register notice published on April 11, 2000 (65 FR 19477-78).

SUPPLEMENTARY INFORMATION:

I. Overview: BMW has determined that certain (MY) 2019-2012;2021 BMW and 2020-2021 Toyota motor vehicles do not fully comply with the requirements of paragraphs S4.1.1.2 and S4.1.1.3 of FMVSS No. 104, Windshield Wiping and Washing Systems (49 CFR 571.104).

BMW filed a noncompliance report dated September 11, 2020, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports. BMW subsequently petitioned NHTSA on October 9, 2020, and submitted a supplement to the petition on February 23, 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.

This notice of receipt of BMW's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any Agency decision or other exercise of judgment concerning the merits of the petition.

II. Vehicles Involved: Approximately 244,433 of the following MY 2019-2021 Toyota and BMW motor vehicles, manufactured between February 9, 2018, and August 4, 2020, are potentially involved:

• MY 2020-2012;2021 Toyota Supra
• MY 2020-2012;2021 BMW 2 Series Gran Coupe (228i, 228i xDrive, M235i xDrive)
• MY 2019-2012;2021 BMW 8 Series Convertible (840i, 840i xDrive, M850i xDrive, M8)
• MY 2019-2012;2021 BMW 8 Series Coupe (840i, 840i xDrive, M850i xDrive M8)
• MY 2020-2012;2021 BMW 8 Series Gran Coupe (840i, 840i xDrive, M850i xDrive, M8)
• MY 2019-2012;2021 BMW X5 sDrive40i, X5 xDrivex40i, X5 xDrive50i, X5 M50i, X5M
• MY 2021 BMW X5 xDrive45e
• MY 2020-2012;2021 BMW X6 sDrive40i, X6 xDrive40i, X6 M50i, X6M
• MY 2019-2012;2021 BMW X7 xDrive40i, X7 xDrive50i, X7 M50i
• MY 2019-2012;2021 BMW 330i, 330i xDrive, M340i
• MY 2021 BMW 330e, 330e xDrive
• MY 2021 BMW 4 Series Coupe (430i, 430i xDrive, M440i xDrive)
• MY 2021 BMW 4 Series Convertible (430i, M440i)
• MY 2019-2012;2021 BMW Z4 SDrive30i, Z4M40i

III. Noncompliance: BMW explains that the noncompliance is due to a coding parameter issue, where the windshield wiper frequency decreases when the vehicle is at rest and in brief intervals when the vehicle accelerates from rest and therefore, does not meet the requirements set forth in paragraph S4.1.1.2 and S4.1.1.3 of FMVSS No. 104. Specifically, when the vehicle speed is 0 km/h, or when accelerating after a stop up to a vehicle speed of 4 km/h (approximately 2.5 mph), the wiper speed decreases.

IV. Rule Requirements: Paragraph S4.1.1.2 and S4.1.1.3 of FMVSS No. 104 include the requirements relevant to this petition. One frequency or speed shall be at least 45 cycles per minute regardless of engine load and engine speed. Regardless of engine speed and engine load, the highest and one lower frequency or speed shall differ by at least 15 cycles per minute. Such lower frequency or speed shall be at least 20 cycles per minute regardless of engine speed and engine load.

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. They have not been evaluated by the Agency 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.

In support of its petition, BMW offers the following reasoning:

1. Wiper System Design/Functionality: BMW states that the subject vehicles are equipped with a wiper system that contains a driver-selectable setting/mode Low, a driver-selectable setting/mode High, a driver-selectable setting/mode Auto (Rain Sensor), and a non-selectable pre-programmed setting/mode that BMW refers to as Standstill Mode (“Standstill”). The system function is described below:

a. Driver Selects Low Mode: If a driver selects the wiper frequency mode Low, then wiper frequency while driving is larger than 40 cycles/min and is model dependent as noted further in the petition. When the vehicle comes to rest, e.g., at a stoplight, then the frequency decreases. The decreased frequency is also present in the brief period of time when the vehicle accelerates from 0 mph to 2.5 mph. This decreased frequency is the frequency of the Standstill mode and is due to a pre-programmed comfort function described further below. The wiper frequency quickly and automatically returns to its selected mode, in this case, Low, as soon as the vehicle reaches 2.5mph.

b. Driver Selects High Mode: If a driver selects wiper frequency High mode, then wiper frequency while driving is larger than 56 cycles/min and is model dependent as noted further in the petition. When the vehicle comes to rest, e.g., at a stoplight, then the frequency decreases. The decreased frequency is also present in the brief period of time when the vehicle accelerates from 0 mph to 2.5 mph. The decreased frequency is the frequency of the Low setting/mode and is due to the pre-programmed comfort function described further below. The wiper frequency quickly and automatically returns to its selected mode, in this case, High, as soon as the vehicle reaches 2.5 mph.

c. Auto (Rain Sensor) Mode: If the driver selects Auto (Rain Sensor) mode, then wiper frequency while driving is a function of the amount of rain detected on the windshield by the rain sensor. Depending upon the amount of rain, the system will provide an appropriate wiper frequency up to the maximum wiper system frequency, which is larger than the FMVSS No. 104 S4.1.1.2 requirement of 45 cycles/min.

d. Comfort Function: The decrease in wiper frequency when the vehicle is at rest is a “comfort function” and was introduced because, at vehicle rest, the amount of water on the windshield compared to the amount of water on the windshield on a moving vehicle is significantly less. The comfort function was introduced to allow the driver to focus on the driving task and surroundings, and not be distracted (or annoyed) by a wiper system in which the higher frequency (when the vehicle was moving) is not needed when the vehicle is at rest. At vehicle rest (and during acceleration from 0 mph to 2.5 mph), the frequency is decreased briefly from either High to Low, or from Low to Standstill, and then quickly and automatically increases again to the prior driver-selected frequency when the vehicle reaches 2.5 mph.

e. Driver Can Increase Wiper Frequency While Vehicle is at Rest: The driver can also, while the vehicle is at rest, increase the wiper frequency.

If the driver had selected wiper frequency mode Low, then when the vehicle comes to rest, the frequency will decrease to Standstill. In this case, if the driver perceives a need to increase the frequency while the vehicle is momentarily at rest, the driver can quickly and easily increase the frequency by moving the wiper arm/control upward. The wiper frequency will increase from Standstill to High. When the vehicle accelerates, the frequency will remain at High. If desired, the driver can then decrease the frequency to Low again.

If the driver had selected wiper frequency mode High, then when the vehicle comes to rest, the frequency will decrease to Low. In this case, if the driver perceives a need to increase the frequency while the vehicle is momentarily at rest, the driver can quickly and easily increase the frequency by moving the wiper arm/control first downward and then upward. The wiper frequency will increase from Low to High. When the vehicle accelerates, the frequency will remain at High.

2. Test Results: BMW tested the vehicles and the test results are contained in Table 1 of the petition.

In this petition, although there are more than five vehicle models potentially affected, 5 wiper systems account for the systems installed across all vehicle models. In some cases, only one vehicle model was tested for a given wiper system, such as the 8 Series Gran Coupe, whereas, in some cases, more than one vehicle model was tested for a given wiper system, such as the X5 SAV and X6 SAC, and also the Z4 and Supra.

Entries in the table for the 2 Series, 3 Series, and 4 Series suggest that these vehicles comply with FMVSS No. 104 Sections 4.1.1.2 and 4.1.1.3. However, due to wiper system tolerances, a slight or marginal noncomplying condition could occur.

The wiper frequencies (cycles/min) in Table 1 of the petition are based upon actual measurements of wiper movement on the subject vehicles during a three-minute time period and then adjusted for a one-minute time period to denote wiper frequency in units of cycles/min. To assess the accuracy of the three-minute count (and the cycles/minute equivalency), a control was used in which a time period was measured for a wiper frequency consisting of 10 wipe cycles. Using this control, wiper frequency in cycles/min was calculated and then assessed against the actual measured three-minute count (adjusted to the equivalent frequency for a one-minute time period) as a check.

As noted earlier, if the driver selected wiper frequency High, then due to the comfort function, at vehicle rest (and between 0 mph and 2.5 mph), wiper frequency changes to Low. The “High @ . . .” column indicates that some models have a reduced wiper frequency of either 41 cycles/min or 42 cycles/min.

Similarly, if the driver selected wiper frequency Low, then due to the comfort function, at vehicle rest (and between 0 mph and 2.5 mph), wiper frequency changes to Standstill. The “Low @ . . .” column indicates that the Z4 and Supra have a reduced wiper frequency of 19.8 cycles/min.

3. Wiper Frequency Comparisons

a. Wiper Frequency High: FMVSS No. 104 Section 4.1.1.2 requires a minimum wiper frequency of 45 cycles/min. In some vehicle models, the frequency is 41 cycles/min. A wiper frequency of 45 cycles/min equates to a single wipe cycle of approximately 1.33 seconds. A wiper frequency of 41 cycles/min equates to a single wipe cycle of 1.46 seconds. The difference is approximately 0.13 seconds and is unlikely to affect driver visibility as explained further below in the section comparing a stationary vehicle with a moving vehicle regarding the amount of water on the windshield.

b. Wiper Frequency Low: FMVSS 104 Section 4.1.1.3 requires a minimum wiper frequency of 20 cycles/min. In some vehicle models, the frequency is 19.8 cycles/min. A wiper frequency of 20 cycles/min equates to a single wipe cycle of approximately 3.00 seconds. A wiper frequency of 19.8 cycles/min equates to a single wipe cycle of 3.03 seconds. The difference is approximately 0.03 seconds and is extremely unlikely to affect driver visibility as explained further below in the section comparing a stationary vehicle with a moving vehicle regarding the amount of water on the windshield.

4. Vehicle Travels Very Small Distance When Accelerating from 0 mph to 2.5 mph:

In the brief interval during vehicle acceleration from 0 mph to 2.5 mph, an average vehicle travels only a small amount, approximately 1 ft. and, at that point (distance), the driver-selected wiper frequency, i.e., either Low or High, is quickly and automatically re-established.

5. Rain Volume Comparison Between a Vehicle at Rest and a Moving Vehicle:

In a given period of time, the volume of water on the windshield while the vehicle is at rest is significantly less than the volume of water on the windshield while the vehicle is moving, for example at city or highway speeds. For example, the amount of water on the windshield while the vehicle is at rest is approximately 50% less than the amount of water on the windshield when driving at approximately 25 mph. Therefore, if wiper frequencies of 20 cycles/min and 45 cycles/min are deemed to be sufficient when driving then, when the vehicle is at rest, wiper frequencies of 19.8 cycles/min and 41 cycles/min are sufficient for an overview of the traffic and roadway conditions. As noted earlier, there is only a 0.13 second difference in time for a single wipe cycle between the required 45 cycles/min and the 41 cycles/min condition, and only a 0.03 second difference in time for a single wipe cycle between the required 20 cycles/min and the 19.8 cycles/min condition.

For a given rainfall velocity, driver visibility while the vehicle is at rest with this slight or marginal noncompliance is greater than driver visibility while the vehicle is moving with a compliant system, especially when the vehicle is moving at city and highway speeds.

Another perspective involves determining an equivalent condition between a vehicle at rest containing this slight noncompliance and a moving vehicle that is compliant. A vehicle at rest with this slight noncompliance, i.e., with a wiper frequency of 41 cycles/min (instead of 45 cycles/min) has a reduced wiper frequency and, therefore, is slightly less efficient in removing the rain from the windshield. An equivalent condition would result in a vehicle velocity of approximately 2.3mph. Therefore, a vehicle containing this slight noncompliance at rest can be considered to be equivalent to a compliant vehicle at 2.3 mph. Moreover, this pertains to the High wiper frequency mode. If the Low wiper frequency mode is selected, the equivalent vehicle velocity is 0.2 mph.

Driver visibility, while the vehicle is at rest with this slight or marginal noncompliance, is greater than driver visibility while the vehicle is moving with a compliant system, especially when the vehicle is moving at city and highway speeds.

6. The Wiper System Does Not Decrease During Vehicle Deceleration:

The wiper system functionality on the vehicles that are the subject of this petition is such that wiper frequency does not decrease during vehicle deceleration to 0 mph. Therefore, the slight or marginal noncompliance does not exist during vehicle deceleration, including the small period of time when the vehicle is coming to rest, e.g., approaching a stoplight. In those circumstances, there could be a vehicle already at the stoplight or a pedestrian in the crosswalk. In these instances, the vehicles that are the subject of this petition are fully compliant. BMW contends that the affected vehicles comply with all other applicable provisions of FMVSS No. 104. BMW says that the wiper system is compliant in the vast majority of driving situations/modes, especially when wipers are needed most, i.e., while driving when the wipers are selected by the driver to be in either “High” or “Low” setting/mode. Any potential non-compliance only occurs when the vehicle is at rest, or in the very brief time period when accelerating from 0 mph to 2.5 mph.

7. SAE J903 (Passenger Car Windshield Wiper Systems):

BMW says that it has reviewed the most recent release of SAE J903 and that it would appear that based upon a review of “currently available engineering data” by the technical expert group responsible for ongoing releases of SAE J903, that the currently-accepted minimum performance requirement is 10 cycles/min. As noted in its petition, under certain limited circumstances BMW's wiper system frequencies (cycles/min) are at approximately 41 or 42 instead of 45, or at 19.8 instead of 20 and, in all of these conditions, all frequencies are well-above a wiper frequency rate of 10 cycles/min. Therefore, it would appear, according to the current version of SAE J903 that these wiper frequency rates are also safe.

8. Field Experience:

BMW affirms that they have not received any complaints from vehicle owners and are not aware of any accidents or injuries that have occurred as a result of this issue. Toyota is not aware of any accidents or injuries and has no field reports or claims relating to this issue in Supra vehicles.

9. Vehicle Production:

BMW says that vehicle production has been corrected to conform to FMVSS No. 104 Sections 4.1.1.2 and 4.1.1.3.

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.

On February 23, 2021, BMW submitted a supplement to its petition pertaining to a study created and conducted by BMW's Human-Factor's group in conjunction with the technical development group responsible for wiper systems. BMW states that the objective of this study was to evaluate two different wiping speeds (41 rmp and 45 rpm) in two identical vehicles and their influence on the recognizability and legibility of traffic signs using an experimental setup. During the standardized test, a rain simulation was used to create comparable visibility conditions. The participants had to read out different traffic signs to an experimenter and evaluate their recognizability while sitting in the vehicle with the wipers on. Steady rain conditions were simulated by applying water to the windshield. BMW contends that there was no statistically significant difference in the self-reported difficulty of reading the traffic signs, and there was no difference in the recognition rate of the signs (i.e., speed limits and additional texts). There was also no difference in the satisfaction with the wiping performance.

BMW's complete petition and all supporting documents, including details of the study conducted by BMW, are available by logging onto the Federal Docket Management System (FDMS) website at: https://www.regulations.gov and by following the online search instructions to locate the docket number as listed in the title of this notice.

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, any decision on this petition only applies to the subject vehicles that BMW no longer controlled at the time it determined that the noncompliance existed. However, any decision on 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.