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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Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Notices 73395 

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). 

4See 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’’). 

5https://www.nhtsa.gov/interpretations/ 

aiam3524. 

6An 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. 

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

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

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 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

[Docket No. NHTSA–2020–0064; 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). 


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