BMW of North America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance

Topics:  Mini Cooper

Jeffrey M. Giuseppe
National Highway Traffic Safety Administration
November 5, 2015

[Federal Register Volume 80, Number 214 (Thursday, November 5, 2015)]
[Notices]
[Pages 68602-68603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28130]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2015-0053; Notice 2]


BMW of North America, Inc., 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, Inc. (BMW) has determined that certain 
model year (MY) 2015 MINI Cooper, Cooper S hardtop 2 door, and Cooper S 
hardtop 4 door passenger cars do not fully comply with paragraph 
S4.2.3(a) of Federal Motor Vehicle Safety Standard (FMVSS) No. 226, 
Ejection Mitigation. BMW has filed an appropriate report dated May 20, 
2015, pursuant to 49 CFR part 573, Defect and Noncompliance 
Responsibility and Reports.

ADDRESSES: For further information on this decision contact Karen 
Nuschler, Office of Vehicle Safety Compliance, the National Highway 
Traffic Safety Administration (NHTSA), telephone (202) 366-5829, 
facsimile (202) 366-3081.

SUPPLEMENTARY INFORMATION: 
    I. Overview: Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see 
implementing rule at 49 CFR part 556), BMW submitted a petition for an 
exemption from the notification and remedy requirements of 49 U.S.C. 
Chapter 301 on the basis that this noncompliance is inconsequential to 
motor vehicle safety.
    Notice of receipt of the petition was published, with a 30-day 
public comment period, on September 1, 2015 in the Federal Register (80 
FR 52845). No comments were received. To view the petition, and all 
supporting documents log onto the Federal Docket Management System 
(FDMS) Web site at: http://www.regulations.gov/. Then follow the online 
search instructions to locate docket number ``NHTSA-2015-0053.''
    II. Vehicles Involved: Affected are approximately 4,208 MY 2015 
MINI Cooper, Cooper S hardtop 2 door, and Cooper S hardtop 4 door 
passenger cars manufactured from February 25, 2015 to April 24, 2015.
    III. Noncompliance: BMW explains that written information 
describing the ejection mitigation countermeasure installed in the 
vehicles was not provided to the vehicle consumers as required by 
paragraph S4.2.3(a) of FMVSS No. 226.
    IV. Rule Text: Paragraph S4.2.3 of FMVSS No. 226 requires in 
pertinent part:

    S4.2.3 Written information.
    (a) Vehicles with an ejection mitigation countermeasure that 
deploys in the event of a rollover must be described as such in the 
vehicle's owner manual or in other written information provided by 
the vehicle manufacturer to the consumer. . . .

    V. Summary of BMW's Arguments: BMW stated its belief that the 
subject noncompliance in the affected vehicles is inconsequential to 
motor vehicle safety. A summary of its reasoning is provided as 
follows. Detailed explanations of its reasoning are included in its 
petition:
    1. The vehicles are equipped with a countermeasure that meets the 
performance requirements of FMVSS No. 226.
    2. The owner's manuals contain a description of the ejection 
mitigation countermeasure in the context of side impact.
    3. The owner's manuals contain precautions related to the [ejection 
mitigation] system even though not required by FMVSS No. 226.
    4. The [ejection mitigation] system uses the FMVSS No. 208 required 
readiness indicator, as allowed by FMVSS No. 226.
    5. BMW has not received any customer complaints due to this issue.
    6. BMW is not aware of any accidents or injuries due to this issue.
    7. NHTSA may have granted similar manufacturer petitions re owner's 
manuals.
    8. BMW has corrected the noncompliance so that all future 
production vehicles will comply with FMVSS No. 226.
    In summation, BMW believes that the described noncompliance of the 
subject vehicles is inconsequential to motor vehicle safety, and that 
its petition, to exempt BMW from providing recall notification of 
noncompliance as required by 49 U.S.C. 30118 and remedying the recall 
noncompliance as required by 49 U.S.C. 30120 should be granted.

NHTSA's Decision

    NHTSA's Analysis: NHTSA believes that while written information was 
not provided to vehicle owners describing the installed head air bags 
(side curtain) as vehicle occupant ejection mitigation countermeasures 
that deploy in the event of a rollover, the owner's manuals for the 
affected vehicles otherwise effectively describe, and illustrate the 
location of, the head air bags. NHTSA also believes that the status of 
the head air bags is monitored by the vehicle's air bag readiness 
indicator intended to show operational readiness of the entire airbag 
system. Therefore, drivers should be alerted to a malfunction of the 
head air bags that are intended to provide ejection countermeasures in 
the event of a rollover event, and occupant protection in the event of 
a significant side impact event.
    BMW has also reported that they have not received any complaints 
from vehicle owners regarding the subject noncompliance and that 
vehicle production was corrected so that the noncompliance did not 
occur in subsequent vehicles. NHTSA's Decision: In consideration of the 
foregoing, NHTSA has decided that BMW has met its burden of persuasion 
that the subject FMVSS No. 226 noncompliance in the affected vehicles 
is inconsequential to motor vehicle safety. Accordingly, BMW's petition 
is hereby granted and BMW is exempted from the obligation of providing 
notification of, and a 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 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 introduction into interstate commerce of 
the noncompliant vehicles under their control after BMW notified them 
that the subject noncompliance existed.


[[Page 68603]]


(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49 
CFR 1.95 and 501.8)

Jeffrey M. Giuseppe,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2015-28130 Filed 11-4-15; 8:45 am]
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