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From Products Liability Law Daily, September 28, 2015

NHTSA opens investigation into BMW’s procedures for notification, recall campaigns

By John Dumoulin

The National Highway Traffic Safety Administration’s Office of Defects Investigation (ODI) has opened an audit query to better understand and evaluate BMW of North America, LLC’s process or processes for its notification procedures and for timely and efficient execution of its safety recall campaigns. The investigation is in response to Federal Motor Vehicle Safety Standard (FMVSS) compliance failures of model year 2014-15 Mini 2 Door Hardtop Cooper and Cooper S vehicles, and model year 2015 John Cooper Works vehicles, and safety recalls initiated in response to these failures (NHTSA ODI Investigation, No. AQ15-004, September 24, 2015).

Problem description. ODI is opening this audit query to determine whether BMW of North America, LLC, has complied with the National Traffic and Motor Vehicle Safety Act (Safety Act).

Background. In mid-2014, NHTSA’s New Car Assessment Program (NCAP) had side impact moving deformable barrier (MDB) tests performed on two model year 2014 Mini 2 Door Hardtop Coopers. These two tests were performed at a speed five miles per hour higher than required by FMVSS 214. These tests measured spine acceleration results for the rear seated 5th percentile female dummy in excess of the value permitted in FMVSS 214. NHTSA viewed these results as indicating a potential problem and believes BMW should also have been concerned with the compliance of the vehicles with FMVSS 214. In October 2014, NHTSA’s Office of Vehicle Safety Compliance (OVSC) had an FMVSS No. 214 MDB compliance test performed on a model year 2014 Mini 2 Door Hardtop Cooper. The subject Mini Cooper vehicles did not pass the test with respect to the spine acceleration value for the 5th percentile female dummy. BMW claimed that the certification for the model year 2014 Mini 2 Door Hardtop Cooper was based on the certification testing of the model year 2014 Mini 2 Door Hardtop Cooper S, a heavier vehicle. BMW further claimed that the Cooper model, as designed, could have the same weight rating as the Cooper S and would comply with the standard if tested at the higher vehicle test weight based on that weight rating.

In December 2014, BMW filed a Part 573 Report for a noncompliance with FMVSS 214 for model year 2014 Mini Hardtop 2 Door Cooper model vehicles manufactured between December 2013 and May 2014. See NHTSA Recall 14V-815 [Product’s Liability Law Daily’s January 7, 2015 analysis]. The remedy involved installing a small foam patch in the rear door panels. BMW also filed a Part 573 Report recalling model year 2014-2015 Mini 2 Door Hardtop Cooper models to raise the gross vehicle weight rating on the certification label and the vehicle capacity weight on the tire placard in late January of 2015. See NHTSA Recall 15V-034. [Product’s Liability Law Daily’s February 6, 2015 analysis]. In January 2015, BMW verbally committed that it would conduct a service campaign to add padding to the rear side panels of model year 2015 Mini 2 Door Hardtop Cooper models. However, BMW did not initiate the service campaign and failed to inform NHTSA of its failure to do so.

In early July 2015, OVSC had an FMVSS No. 214 MDB test performed on a model year 2015 Mini 2 Door Hardtop Cooper. BMW technicians installed a foam pad in the rear side panels of the Cooper model vehicle prior to the test, which was the modification contemplated in the service campaign. The test of the Mini 2 Door Hardtop Cooper with the additional padding and at the higher test weight passed the test. However, according to ODI, this was the only vehicle on which the service campaign was performed and thus was not representative of in-use vehicles.

In July 2015, OVSC also had a model year 2015 Cooper S tested to FMVSS 214. The MDB test of the Cooper S, which did not receive additional padding and at the test weight at which BMW claimed was significant to its test performance, showed a failure with respect to the spine acceleration value for the 5th percentile female dummy. On July 15, 2015, BMW filed a Part 573 Report for the model year 2014-15 Mini 2 Door Hardtop Cooper and Cooper S, and the model year 2015 John Cooper Works regarding a noncompliance with FMVSS 214. See NHTSA Recall 15V-450 [Product’s Liability Law Daily’s July 29, 2015 analysis].

BMW’s failures. NHTSA is concerned that BMW was aware or should have been aware of the non-compliance with FMVSS 214 and should have taken remedial action on the population of Mini Cooper vehicles identified in recall 15V-450 earlier than it did. According to ODI, it appears from a review of NHTSA’s databases that BMW may have failed to submit recall communications to NHTSA in a timely manner.

Companies: BMW of North America, LLC

MainStory: TopStory NHTSANews MotorVehiclesNews

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