E6-16200. BMW of North America, LLC, Receipt of Petition for Decision of Inconsequential Noncompliance

BMW of North America, LLC (BMW) has determined that certain vehicles that it produced in 2005 and 2006 do not comply with S4.5.1(b)(3) and S4.5.1(e)(3) of 49 CFR 571.208, Federal Motor Vehicle Safety Standard (FMVSS) No. 208, “Occupant crash protection.” BMW has filed an appropriate report pursuant to 49 CFR part 573, “Defect and Noncompliance Reports.”

Pursuant to 49 U.S.C. 30118(d) and 30120(h), BMW has petitioned 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.

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.

Affected are a total of approximately 27,975 model year 2006 BMW X5 vehicles produced between September 1, 2005 and June 28, 2006. The affected vehicles were produced according to FMVSS No. 208 S14, the advanced air bag requirements including air bag suppression and telltale. However, the affected vehicles were not equipped with the corresponding warning labels, specifically the FMVSS No. 208 S4.5.1(b)(3) sun visor label identified in Figure 11, and the S4.5.1(e)(3) removable label on dash identified in Figure 12. Instead, the affected vehicles were equipped with the “pre-advanced” air bag warning labels, specifically the FMVSS No. 208 S4.5.1(b)(1) sun visor label identified in Figure 6a, and the S4.5.1(e)(1) removable label on dash identified in Figure 7. This is shown as follows:

Sun Visor Label

Required label: S4.5.1(b)(3) Figure 11	Noncompliant label: S4.5.1(b)(1) fig. 6a
WARNING EVEN WITH ADVANCED AIR BAGS	WARNING DEATH or SERIOUS INJURY can occur.
Children can be killed or seriously injured by the air bag	Children 12 and under can be killed by the air bag.
The back seat is the safest place for children	The BACK SEAT is the SAFEST place for children.
Never put a rear-facing child seat in front	NEVER put a rear-facing child seat in front.
Always use seat belts and child restraints	ALWAYS use SEAT BELTS and CHILD RESTRAINTS.
See owner's manual for more information about air bags	Sit as far back as possible from the air bag.

Removable Label on Dash

Required label: S4.5.1(e)(3) figure 12	Noncompliant label: S4.5.1(e)(2) figure 7
This Vehicle is Equipped with Advanced Air Bags	WARNING.
Even with Advanced Air Bags
Children can be killed or seriously injured by the air bag	Children Can be KILLED or INJURED by Passenger Air Bag.
The back seat is the safest place for children	The back seat is the safest place for children 12 and under.
Never put a rear-facing child seat in the front
Always use seat belts and child restraints	Make sure all children use seat belts or child seats.
See owner's manual for more information about air bags

BMW has corrected the problem that caused these errors so that they will not be repeated in future production.

BMW believes that the noncompliance is inconsequential to motor vehicle safety and that no corrective action is warranted. BMW states that the labels it actually used are “more stringent” and “more emphatic, which would lead a consumer to act in a more cautious manner, and not in a less safe manner.” BMW says,

The difference in the warning message texts between the labels clearly indicates that the warning message on the affected vehicles' labels is stricter when compared to the advanced air bag labels. Therefore, even though the labels are incorrect, they would not result in a decrease in the safety message. Rather, they provide an increased emphasis.

BMW further states that the vehicles are equipped with passenger air bag telltale lamps, and therefore the owners will know from these lamps that the vehicles are equipped with an advanced air bag system.

BMW also says,

* * * [T]he Owners Manual of the affected vehicles contains a description of the advanced air bag system including a description of the passenger air bag system telltale lamp. Owners who consult the Owners Manual will be able to read a description of the advanced air bag system along with a description of the passenger air bag system telltale lamp. Therefore, owners will know from their Owners Manual that their vehicle is equipped with a FMVSS 208 advanced air bag system.

BMW states that it has no record that customers contacted the company with inquiries, complaints, or comments on the air bag warning labels.

Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited at the beginning of this notice and be submitted by any of the following methods. Mail: Docket Management Facility, U.S. Department of Transportation, Nassif Building, Room PL-401, 400 Seventh Street, SW., Washington, DC, 20590-0001. Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC. It is requested, but not required, that two copies of the comments be provided. The Docket Section is open on weekdays from 10 a.m. to 5 p.m. except Federal Holidays. Comments may be submitted electronically by logging onto the Docket Management System Web site at http://dms.dot.gov. Click on “Help” to obtain instructions for filing the document electronically. Comments may be faxed to 1-202-493-2251, or may be submitted to the Federal eRulemaking Portal: go to http://www.regulations.gov. Follow the online instructions for submitting comments.

The petition, supporting materials, and all comments received before the close of business on the closing date indicated below will be filed and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible. When the petition is granted or denied, notice of the decision will be published in the Federal Register pursuant to the authority indicated below.

Comment closing date: November 1, 2006.

Authority: 49 U.S.C. 30118, 30120: delegations of authority at CFR 1.50 and 501.8.

Issued on: September 27, 2006.

Daniel C. Smith,

Associate Administrator for Enforcement.