73392 Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Notices 

without edit, including any personal 

information the commenter provides, to 

www.regulations.gov, as described in 

the system of records notice (DOT/ALL– 

14 FDMS), which can be reviewed at 

https://www.transportation.gov/privacy. 

See also https://www.regulations.gov/ 

privacy-notice for the privacy notice of 

regulations.gov. 

Issued in Washington, DC. 

John Karl Alexy, 

Associate Administrator for Railroad Safety 

Chief Safety Officer. 

[FR Doc. 2023–23559 Filed 10–24–23; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

[Docket No. NHTSA–2020–0091; Notice 2] 

Mercedes-Benz USA, LLC, Denial of 

Petition for Decision of 

Inconsequential Noncompliance 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Denial of petition. 

SUMMARY: Mercedes-Benz AG 

(‘‘MBAG’’) and Mercedes-Benz USA, 

LLC, (‘‘MBUSA’’) (collectively, 

‘‘Mercedes-Benz’’) have determined that 

certain model year (MY) 2019–2021 

Mercedes-Benz motor vehicles do not 

fully comply with Federal Motor 

Vehicle Safety Standard (FMVSS) No. 

135, Light Vehicle Brake Systems. 

Mercedes-Benz filed a noncompliance 

report dated August 14, 2020. MercedesBenz subsequently petitioned NHTSA 

on September 4, 2020, for a decision 

that the subject noncompliance is 

inconsequential as it relates to motor 

vehicle safety. This notice announces 

denial of Mercedes-Benz’s petition. 

FOR FURTHER INFORMATION CONTACT: 

Vince Williams, General Engineer, 

Office of Vehicle Safety Compliance, the 

National Highway Traffic Safety 

Administration (NHTSA), telephone 

(202) 366–2319, facsimile (202) 366– 

3018. 

SUPPLEMENTARY INFORMATION: 

I. Overview: Mercedes-Benz has 

determined that certain MY 2019–2021 

Mercedes-Benz A-Class, CLA-Class, 

GLA-Class, and GLB-Class motor 

vehicles do not fully comply with the 

requirements of paragraph S5.1.2 of 

FMVSS No. 135, Light Vehicle Brake 

Systems (49 CFR 571.135). MercedesBenz filed a noncompliance report 

dated August 14, 2020, pursuant to 49 

CFR part 573, Defect and 

Noncompliance Responsibility and 

Reports. Mercedes-Benz subsequently 

petitioned NHTSA on September 4, 

2020, 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 MercedesBenz’s petition was published with a 

30-day public comment period, on 

December 11, 2020, in the Federal 

Register (85 FR 80225). One comment 

was received. To view the petition and 

all supporting documents, log onto the 

Federal Docket Management System 

(FDMS) website at https://

www.regulations.gov/, and then follow 

the online search instructions to locate 

docket number ‘‘NHTSA–2020–0091.’’ 

II. Vehicles Involved: Approximately 

56,223 of the following MY 2019–2021 

Mercedes-Benz A-Class, CLA-Class, 

GLA-Class, and GLB-Class motor 

vehicles, manufactured between 

October 8, 2018, and July 27, 2020, are 

potentially involved: 

• 2020 Mercedes-Benz A35 AMG 

• 2020 Mercedes-Benz CLA45 AMG 

• 2021 Mercedes-Benz GLA250 

• 2019–2020 Mercedes-Benz A220 

• 2020–2021 Mercedes-Benz CLA250 

• 2020 Mercedes-Benz CLA35 AMG 

• 2021 Mercedes-Benz GLA45 AMG 

• 2021 Mercedes-Benz GLA35 AMG 

• 2020 Mercedes-Benz GLB250 

III. Noncompliance: Mercedes-Benz 

explains that the noncompliance is that 

the subject vehicles are not equipped 

with an acoustic or optical device that 

warns the driver when the rear brake 

lining requires replacement, and 

therefore, does not meet the 

requirements specified in paragraph 

S5.1.2 of FMVSS No. 135. Specifically, 

the subject vehicles are equipped with 

a service brake system that does not 

indicate the wear condition of the rear 

service brakes. 

IV. Rule Requirements: Paragraph 

S5.1.2 of FMVSS No. 135 includes the 

requirements relevant to this petition. 

The wear condition of all service brakes 

shall be indicated by either acoustic or 

optical devices warning the driver at his 

or her driving position when lining 

replacement is necessary or by way of 

visually checking the degree of brake 

lining wear, from the outside or 

underside of the vehicle, utilizing only 

the tools or equipment normally 

supplied with the vehicle. The removal 

of wheels is permitted for this purpose. 

V. Summary of Mercedes-Benz’s 

Petition: The following views and 

arguments presented in this section are 

the views and arguments provided by 

Mercedes-Benz. They do not reflect the 

views of NHTSA. Mercedes-Benz 

describes the subject noncompliance 

and states its belief that the 

noncompliance is inconsequential as it 

relates to motor vehicle safety. 

Mercedes-Benz submits that although 

the subject vehicles are equipped with 

a service brake system that does not 

indicate the wear condition of the rear 

service brakes, the front service brakes 

use an electrical brake pad sensor to 

monitor the wear status of the front 

brake pads. Mercedes-Benz explains 

that once the front service brakes reach 

a thickness of 1⁄8 inch or 3 mm, ‘‘a 

warning lamp will automatically 

display in the instrument cluster and 

will remain permanently illuminated 

until the vehicle is serviced.’’ MercedesBenz states a message will also appear 

in the instrument cluster stating: ‘‘Check 

brake pads. See Owner’s Manual.’’ 

Mercedes-Benz states that while the 

driver is able to manually extinguish the 

indicator and message, both the 

indicator and message will display at 

each ignition cycle until the brake 

linings are replaced. Mercedes-Benz 

states that the front brake lining will not 

become critical until 6,000 miles after 

the warning indicator and message first 

appears. 

Mercedes-Benz further explains that 

‘‘the brake force distribution is in a 

range of 71.9%–75.5% (front)/28.1%– 

24.5% (rear)’’ causing the lining on the 

front service brakes to wear faster than 

the lining on the rear service brakes. 

Therefore, Mercedes-Benz explains, 

when the driver goes to get the front 

brakes serviced, ‘‘the standard work 

instructions direct the technician to also 

inspect and evaluate the status of all 

other sets of brake pads’’ and the driver 

will be advised if the rear brake linings 

are ‘‘not sufficient to make it to the next 

service interval.’’ Accordingly, 

Mercedes-Benz argues the ‘‘vehicle’s 

rear brakes will be inspected by a 

trained professional technician a 

number of times before they ever need 

to be replaced.’’ 

Additionally, Mercedes-Benz states 

that in the event that the subject vehicle 

is ‘‘taken to an independent repair 

facility that did not follow MercedesBenz’s comprehensive brake pad 

inspection protocols, there is not an 

increased safety risk.’’ According to 

Mercedes-Benz, if the rear brake lining 

becomes fully worn, the subject vehicle 

‘‘would continue to meet the braking 

distance requirements of FMVSS [No.] 

135’’ due to the brake force distribution 

described above and the performance of 

the rear brakes. Furthermore, MercedesVerDate Sep<11>2014 17:01 Oct 24, 2023 Jkt 262001 PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 E:\FR\FM\25OCN1.SGM 25OCN1

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Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Notices 73393 

1Cf. 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). 

2See 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). 

3See 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’’). 

Benz argues that if a driver of the 

subject vehicle had completely worn 

rear braking linings, ‘‘the driver will 

hear the unmistakable sound of metal 

being pressed against the brake discs.’’ 

Mercedes-Benz states that it is not 

aware of any reports or complaints 

about the issue from the field and it has 

corrected the condition in production. 

Mercedes-Benz concluded by 

reiterating 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. 

Mercedes-Benz’s complete petition 

and all supporting documents 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. 

VI. Public Comment: NHTSA received 

one comment from the public. This 

comment was submitted by Ricquitta 

Johnson. The comment only states the 

docket number for the notice of receipt 

and does not provide any feedback or 

address the purpose of this petition. 

VII. NHTSA’s Analysis: The burden of 

establishing the inconsequentiality of a 

failure to comply with a performance 

requirement in an FMVSS—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

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.2 In general, NHTSA does not 

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.3

NHTSA has evaluated the merits of 

Mercedes-Benz’s petition and 

determined that Mercedes-Benz has not 

met its burden of persuasion that the 

subject noncompliance is 

inconsequential to motor vehicle safety. 

Paragraph S5.1.2 of FMVSS No. 135 

requires all vehicles to have an acoustic 

or optical warning device on all wheels, 

or a means of visually checking the 

degree of brake lining wear from the 

outside or underside of the vehicle by 

utilizing only the tools or equipment 

normally supplied with the vehicle. The 

removal of wheels is also permitted for 

this purpose. According to the petition’s 

description of the system at issue, the 

front wheels on the subject vehicles 

meet the brake requirement in that they 

are equipped with electrical brake pad 

sensors that monitor the front brake 

pads and provide an optical warning to 

the driver once the brake pads reach a 

certain OEM determined thickness. 

However, the rear wheels are neither 

equipped with an optical or audible 

sensor to alert the driver once the rear 

brake pads are below the OEM 

recommended thickness nor are the 

vehicles supplied with a visual means 

of checking the degree of brake lining 

wear from the outside or underside of 

the vehicle. Specifically, the vehicle is 

lacking an inspection gauge with the 

necessary instructions to check the wear 

of the brake pads on the rear axle from 

the outside or underside of the vehicle. 

In its petition, Mercedes-Benz states 

that the front brakes provide 72–75% of 

the braking force. Due to this unequal 

brake force distribution, the front brake 

pads will wear out faster than the rear 

brake pads. Mercedes-Benz contends 

that anytime the front brake pads are 

serviced at a Mercedes-Benz workshop 

or an independent work facility, the 

standard work instructions are to 

inspect both the front and rear brake 

pads to determine if the rear brake pads 

also need to be replaced. Mercedes-Benz 

also states that if the rear brake pads are 

not serviced at the time when the front 

pads are inspected and the rear brake 

pads wear out, even completely, before 

the next scheduled brake inspection, the 

front brakes and brake distribution will 

always be adequate to meet the stopping 

requirements of FMVSS No. 135. 

Mercedes-Benz claims that in the case 

where the rear brake pads are 

completely worn out, the driver will 

hear an unmistakable sound of metal 

being pressed against the brake discs 

which will alert them that the pads are 

worn out. 

NHTSA finds that the repair scenario 

described by Mercedes-Benz does not 

account for all drivers of Mercedes-Benz 

vehicles. Some drivers may not follow 

brake service or maintenance schedules. 

Without receiving a warning that the 

brake pads need to be replaced, these 

drivers could continue to operate the 

vehicle for an extended period once the 

rear brake pads reach the OEM 

determined minimum thickness. In 

addition, the ‘‘do it yourself (DIY)’’ 

customers who may not have the 

technical expertise of a Mercedes-Benz 

technician, could potentially miss 

checking the condition of the rear brake 

pads during brake servicing and, 

without a warning, continue to operate 

the vehicle for an extended period once 

the rear brake pads reach the OEM 

determined minimum thickness. 

Although Mercedes-Benz claims that 

the brake force distribution described 

above and the performance of the front 

brakes are enough to meet the stopping 

requirements of the regulation in the 

event the rear brake lining is completely 

worn, Mercedes-Benz provided no data 

to support this assertion. Additionally, 

with regard to Mercedes-Benz’ claim 

that the driver would hear the 

unmistakable sound of metal on the rear 

disc once the rear pads completely wear 

out, no data was provided to support 

this contention and further, the purpose 

of the standard is to notify the driver 

prior to reaching such an extreme brake 

pad wear state that most of the brake 

power on that wheel is lost. MercedesBenz has not met its burden of 

persuasion and for the reasons 

described herein NHTSA does not find 

that the subject noncompliance is 

inconsequential to motor vehicle safety. 

VIII. NHTSA’s Decision: In 

consideration of the foregoing, NHTSA 

has decided that Mercedes-Benz has not 

met its burden of persuasion that the 

subject FMVSS No. 135 noncompliance 

is inconsequential to motor vehicle 

safety. Accordingly, Mercedes-Benz’s 

petition is hereby denied, and 

Mercedes-Benz is consequently 

obligated to provide notification and a 

free remedy for that noncompliance 

under 49 U.S.C. 30118 and 30120. 


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73394 Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Notices 

1 Details of BMW’s analysis can be found in its 

petition at https://www.regulations.gov/document/ 

NHTSA-2021-0037-0001. 

2Cf. 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). 

3See Gen. Motors, LLC; Grant of Petition for 

Decision of Inconsequential Noncompliance, 78 FR 

(Authority: 49 U.S.C. 30118, 30120; 

delegations of authority at 49 CFR 1.95 and 

501.8) 

Cem Hatipoglu, 

Acting Associate Administrator for 

Enforcement. 

[FR Doc. 2023–23527 Filed 10–24–23; 8:45 am] 

BILLING CODE 4910–59–P 

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. 

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. 

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

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 


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