[Federal Register Volume 73, Number 235 (Friday, December 5, 2008)]
[Notices]
[Pages 74227-74228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28883]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2008-0189]


Initial Decision That Certain BMW Mini Cooper S Vehicles Contain 
a Safety-Related Defect Regarding the Exhaust Pipe Tips; and Scheduling 
of a Public Meeting

AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION: Notice of initial decision and public meeting.

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SUMMARY: NHTSA will hold a public meeting regarding its Initial 
Decision that model year (MY) 2007 and certain MY 2008 BMW Mini Cooper 
S vehicles (subject vehicles) contain a defect related to motor vehicle 
safety in the vehicle's exhaust pipe tips.

DATES: The public meeting will be held beginning at 10 a.m. on 
Wednesday, December 17, 2008.

FOR FURTHER INFORMATION CONTACT: AnnaLisa Nash, Office of Chief 
Counsel, National Highway Traffic Safety Administration, 1200 New 
Jersey Avenue, SE., Washington, DC 20590; (202) 366-5263. NHTSA's 
Initial Decision, and the information on which it was based, is 
available at NHTSA's Technical Information Services (TIS), Room E12-
100, 1201 New Jersey Avenue, SE., Washington, DC 20590; Telephone: 
(202) 366-2588. When visiting Technical Information Services or 
contacting it via telephone, refer to investigation EA08-020. In 
addition, the agency's initial decision is available on the agency's 
Web site at http://www.nhtsa.gov.

SUPPLEMENTARY INFORMATION: Pursuant to 49 U.S.C. 30118(a) and 49 CFR 
554.10, on November 26, 2008, NHTSA's Associate Administrator for 
Enforcement made an Initial Decision that MY 2007 and certain 2008 BMW 
Mini Cooper S vehicles manufactured by BMW of North America, LLC (BMW) 
contain a defect related to motor vehicle safety. The exhaust pipe tips 
on these vehicles cause and contribute to burns on the legs of people.

A. The Agency's Investigation and Request That BMW Conduct a Recall

    On April 28, 2008, NHTSA's Office of Defects Investigation (ODI) 
opened an investigation, Preliminary Evaluation (PE08-031), to 
investigate an alleged safety-related defect concerning burn injuries 
in MY 2007 Mini Cooper S (hardtop) vehicles. ODI requested information 
from BMW. After a review

[[Page 74228]]

of BMW's response, ODI upgraded PE08-031 to an Engineering Analysis 
(EA08-020) on August 29, 2008, and expanded the scope of the 
investigation to include MY 2008 Mini Cooper S vehicles.
    ODI and BMW have received numerous complaints indicating that 
consumers' legs have been burned while they access the rear cargo area 
of the subject vehicles via the rear hatchback shortly after the 
vehicles have been driven. As reflected by the complaints, people 
accessing the cargo area naturally place their legs at the rear of the 
vehicle. People are burned as they inadvertently contact either of the 
two hot exhaust pipe tips while removing items from, or placing items 
in, the rear cargo area. Some of the burn injuries are significant 
second degree burns, causing blistered skin or scarring, often in a 
half-moon shape pattern matching the approximately 2\3/4\-inch diameter 
of the exhaust tips.
    Prior to the redesign of the subject vehicles for MY 2007, there 
were relatively few instances of burns from the exhaust pipe tips of 
Mini Cooper S vehicles. As redesigned for MY 2007, the Mini Cooper S 
vehicles have much larger exhaust pipe tips than under the previous 
design, and the tips extend beyond the rear bumper cover. After the 
redesign, reports of burn injuries from Mini Cooper S vehicles 
increased dramatically. BMW has acknowledged that the exhaust tips have 
caused burn injuries. BMW redesigned the tips so they do not extend as 
far back as originally designed for MY 2007 vehicles. This redesign was 
incorporated into mid-year production on approximately July 1, 2008, of 
the MY 2008 subject vehicles.
    ODI advised BMW, by letter of October 10, 2008, of its belief that 
the subject vehicles contain a safety-related defect in the exhaust 
pipe tips of the subject vehicles within the meaning of the National 
Traffic and Motor Vehicle Safety Act, as amended. ODI requested BMW to 
initiate a safety recall, in accordance with 49 U.S.C. 30118-30120, to 
notify all owners, purchasers, and dealers of the defect and to provide 
a free remedy for each of the subject vehicles. In its October 27, 
2008, response to ODI, BMW declined to conduct the safety recall 
stating it is not warranted and informed NHTSA that, in the interest of 
customer satisfaction, it had instituted a Service Campaign concerning 
this issue.

B. Initial Decision

    Based on the available information, NHTSA's Associate Administrator 
for Enforcement has made an Initial Decision, pursuant to 49 U.S.C. 
30118(a) and 49 CFR 554.10, that MY 2007 and certain 2008 BMW Mini 
Cooper S vehicles manufactured by BMW of North America, LLC (BMW) 
contain a safety-related defect. The exhaust pipe tips, which are 
located at the center of the rear of the vehicle and protrude rearward 
beyond the bumper cover, are situated in such a way that persons 
conducting completely foreseeable tasks at the rear of the vehicle may 
experience significant and painful burns on their legs. An initial 
decision is not a final agency action.
    This initial decision reflects the agency's rejection of BMW's 
proffer of a service campaign instead of a recall. The subject vehicles 
built prior to the production modification in 2008 pose a significant 
risk of burn injuries to persons accessing the rear cargo area via the 
hatchback. It is unreasonable for people, who engage in the routine 
activity of standing near or against the back of a vehicle with the 
hatch up to remove items from or place items in the rear cargo area, to 
be subject to a significant risk of painful burns. The National Traffic 
and Motor Vehicle Safety Act as amended provides for a safety recall 
when there is a safety-related defect. In that situation, the 
manufacturer has a duty to provide a defect notice to the agency and 
proper notice to the vehicle owner. The statute does not give the 
manufacturer the option of choosing a different course of action. A 
safety recall would assure that vehicle owners have the proper 
statutory notice of the safety risks along with a free remedy, thus 
presenting the greatest opportunity for preventing a significant risk 
of any further burn injuries. Unlike a manufacturer's service campaign, 
a notice to the vehicle owner pursuant to 49 CFR 577.5(f) must explain 
the risk to safety related to the defect and the type of injury that 
can result from the defect. Additionally, pursuant to 49 CFR 573.7, 
after initiating a recall BMW would be required to provide quarterly 
reporting to the agency to ensure that all vehicles have been remedied.
    Pursuant to 49 U.S.C. 30118(b)(1) and 49 CFR 554.10(b), NHTSA will 
conduct a public meeting, beginning at 10 a.m., Wednesday, December 17, 
2008, in Room W40-302, Department of Transportation Building, 1200 New 
Jersey Avenue, SE., Washington, DC, at which time the manufacturer and 
other interested parties will be afforded an opportunity to present 
information, views, and arguments on the issue of whether MY 2007 and 
certain 2008 BMW Mini Cooper S vehicles contain a safety-related defect 
in the exhaust pipe tips.
    Interested persons are invited to participate in this proceeding 
through written and/or oral presentations. Persons wishing to make oral 
presentations must notify Ethel Hayden, National Highway Traffic Safety 
Administration, W45-206, 1200 New Jersey Avenue, SE., Washington, DC 
20590; Telephone: (202) 366-3217, or by fax at (202) 366-3081, before 
the close of business on Friday, December 12, 2008. The notifications 
should specify the amount of time that the presentation is expected to 
last. The agency will prepare a schedule of presentations. Depending 
upon the number of persons who wish to make oral presentations, and the 
anticipated length of those presentations, the agency may add an 
additional day or days to the meeting/hearing and may limit the length 
of oral presentations. This will not be an adjudicatory proceeding. 
Although the agency may ask questions of those who make oral 
presentations, there is no cross examination of witnesses by other 
participants in the public meeting.
    Persons who wish to file written comments should submit them to the 
same address, no later than Friday, December 12, 2008.

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

    Issued on: November 26, 2008.
Daniel C. Smith,
Associate Administrator for Enforcement.
 [FR Doc. E8-28883 Filed 12-4-08; 8:45 am]
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