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###### Department of Transportation

###### National Highway Traffic Safety Administration

          - [Docket No. NHTSA-2011-0081; Notice 1]

# AGENCY:

National Highway Traffic Safety Administration, DOT.

# ACTION:

Receipt of Petition for Inconsequential Noncompliance.

# SUMMARY:

                        BMW of North America, LLC,[1]                                                  a subsidiary of BMW AG.[2]                                                  (collectively referred to as “BMW”) has determined that certain model year 2011 Mini Cooper Clubman and Mini Cooper S Clubman model passenger cars manufactured between February 8, 2011 and May 11, 2011, do not fully comply with paragraph S5.2.1 of Federal Motor Vehicle Safety Standard (FMVSS) No. 101,                         *Controls and Displays*                         and paragraphs S5.5.2 and S5.5.5 of FMVSS No. 135,                         *Light Vehicle Brake Systems.*                         BMW has filed an appropriate report pursuant to 49 CFR part 573,                         *Defect and Noncompliance Responsibility and Reports*                         (dated May 25, 2011).                    

Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule at 49 CFR part 556), 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 approximately 75 model year 2011 Mini Cooper Clubman and Mini Cooper S Clubman model passenger cars that were manufactured between February 8, 2011 and May 11, 2011.

                        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, these provisions only apply to the 75 [3]                                                  model year 2011 Mini Cooper Clubman and Mini Cooper S Clubman model passenger cars that BMW no longer controlled at the time it determined that the noncompliance existed.                    

Paragraph S5.2.1 of FMVSS No. 101 requires in pertinent part:

S5.2.1 Except for the Low Tire Pressure Telltale, each control, telltale and indicator that is listed in column 1 of Table 1 or Table 2 must be identified by the symbol specified for it in column 2 or the word or abbreviation specified for it in column 3 of Table 1 or Table 2. If a symbol is used, each symbol provided pursuant to this paragraph must be substantially similar in form to the symbol as it appears in Table 1 or Table 2. If a symbol is used, each symbol provided pursuant to this paragraph must have the proportional dimensional characteristics of the symbol as it appears in Table 1 or Table 2. 

Paragraphs S5.5.2 and S5.5.5 of FMVSS No. 135 requires in pertinent part:

S5.5.2. Function check. (a) All indicators shall be activated as a check function by either: (1) Automatic activation when the ignition (start) switch is turned to the “on” (“run”) position when the engine is not running, or when the ignition (“start”) switch is in a position between “on” (“run”) and “start” that is designated by the manufacturer as a check position, or (2) A single manual action by the driver, such as momentary activation of a test button or switch mounted on the instrument panel in front of and in clear view of the driver, or, in the case of an indicator for application of the parking brake, by applying the parking brake when the ignition is in the “on” (“run”) position. (b) In the case of a vehicle that has an interlock device that prevents the engine from being started under one or more conditions, check functions meeting the requirements of S5.5.2(a) need not be operational under any condition in which the engine cannot be started. (c) The manufacturer shall explain the brake check function test procedure in the owner's manual.

S5.5.5. Labeling. (a) Each visual indicator shall display a word or words in accordance with the requirements of Standard No. 101 (49 CFR 571.101) and this section, which shall be legible to the driver under all daytime and nighttime conditions when activated. Unless otherwise specified, the words shall have letters not less than 3.2 mm (1/8 inch) high and the letters and background shall be of contrasting colors, one of which is red. Words or symbols in addition to those required by Standard No. 101 and this section may be provided for purposes of clarity.

(b) Vehicles manufactured with a split service brake system may use a common brake warning indicator to indicate two or more of the functions described in S5.5.1(a) through S5.5.1(g). If a common indicator is used, it shall display the word “Brake.”

                        BMW explained that the noncompliance is that the telltales used for Brake Warning, Park Brake Warning and Antilock Braking System (ABS) failure warnings are displayed using International Organization for Standardization (ISO) symbols instead                               ( print page 51469)                            of the telltale symbols required by FMVSS Nos. 101 and 135.                    

BMW stated its belief that although the instrument cluster telltale symbols are displayed using ISO symbols the noncompliance is inconsequential to motor vehicle safety for the following reasons:

(1) If a problem is encountered in which a brake system warning or malfunction indicator symbol is displayed, it is believed that the driver will be able to understand the warning symbol and take any necessary actions required.

(2) The instrument cluster is mounted behind the steering wheel in direct sight of the driver, making any warning symbol or indicator visible.

(3) There is a “message center” within the tachometer which is also used to inform the driver that a problem exists and can be used to better clarify why the warning symbol is illuminated.

(4) Due to similarities between the symbols required by FMVSS Nos. 101 and 135 and ISO symbols, eventually the driver will come to associate the wheel depiction symbol with the brake system.

(5) In such an event where the driver is unable to identify the warning symbol the driver would be able to consult the owner's manual which depicts as well as explains each of the warning/malfunction indicator symbols.

(6) BMW has received no customer complaints regarding the issue of non compliant telltales.

BMW also explains NHTSA has previously granted similar petitions.

In summation, BMW believes that the described noncompliance of its vehicles is inconsequential to motor vehicle safety, and that its petition, to exempt it 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.

*Comments:*                         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:                    

a. By mail addressed to: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.

b. By hand delivery to 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 Federal Holidays.

                        c. Electronically: by logging onto the Federal Docket Management System (FDMS) Web site at                         *http://www.regulations.gov/​.*                         Follow the online instructions for submitting comments. Comments may also be faxed to 1-202-493-2251.                    

                        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 your comments were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to                         *http://www.regulations.gov*, including any personal information provided.                    

                        Documents submitted to a docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at                         *http://www.regulations.gov*                         by following the online instructions for accessing the dockets. DOT's complete Privacy Act Statement is available for review in the                         **Federal Register**                         published on April 11, 2000, (65 FR 19477-78).                    

                        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.                    

# DATES:

Comment closing date: September 19, 2011.

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

Issued on: August 12, 2011.

Claude H. Harris,

Director, Office of Vehicle Safety Compliance.

# Footnotes

1.                                 BMW of North America, LLC is a U.S. company that manufactures and imports motor vehicles.                        
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2.                                 BMW AG, is a German company that manufactures motor vehicles.                        
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3.                                 BMW's petition, which was filed under 49 CFR Part 556, requests an agency decision to exempt BMW as a vehicle manufacturer from the notification and recall responsibilities of 49 CFR Part 573 for 75 of the affected vehicles. However, the agency cannot relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after BMW notified them that the subject noncompliance existed. Those vehicles must be brought into conformance, exported, or destroyed.                        
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[FR Doc. 2011-21087 Filed 8-17-11; 8:45 am]

BILLING CODE 4910-59-P