Petitions for Decisions of Inconsequential Noncompliance:

Federal Register: August 12, 2010 (Volume 75, Number 155)

Notices

Page 49020-49022

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr12au10-104

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

Docket No. NHTSA-2010-0106; Notice 1

CFMOTO Powersports, Inc., Receipt of Petition for Decision of

Inconsequential Noncompliance

CFMOTO Powersports, Inc. (CFMOTO),\1\ agent for the Chunfeng

Holding Group Hangshou Motorcycles Manufacturing Co., LTD. (formerly known as Zhejiang CFMOTO Power Co., Ltd. (CHG)) has determined that certain model year 2005-2009 CHG Model CF250T-3(V3) and CF250T-5(V5)

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motorcycles that CFMOTO imported did not fully comply with paragraph

S5.2.1 of 49 CFR 571.123 Federal Motor Vehicle Safety Standards (FMVSS)

No. 123, Motorcycle Controls and Displays. CFMOTO has filed an appropriate report pursuant to 49 CFR Part 573, Defect and

Noncompliance Responsibility and Reports.

\1\ CFMOTO Powersports, Inc., a Minnesota Corporation, is an importer of motor vehicles.

Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule at 49 CFR part 556), CFMOTO 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 CFMOTO'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 6,405 model year 2005-2009 CHG model

CF250T-3(V3) and CF250T-5(V5) motorcycles,\2\ produced January 1, 2005, through December 31, 2009.

\2\ CFMOTO's petition, which was filed under 49 CFR Part 556, requests an agency decision to exempt CFMOTO as a manufacturer

(motor vehicle importers are defined as manufacturers by 49 U.S.C. 30102(5)(B)) of motor vehicles from the notification and recall responsibilities of 49 CFR Part 573 for all 6,405 of the affected vehicles. However, the agency cannot relieve CFMOTO's distributors 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 CFMOTO recognized that the subject noncompliance existed. Those vehicles must be brought into conformance, exported, or destroyed.

Paragraph S5.2.1 of FMVSS No. 123 requires in pertinent part:

S5.2.1 Control location and operation. If any item of equipment listed in Table 1, Column 1, is provided, the control for such item shall be located as specified in Column 2, and operable as specified in Column 3. Each control located on a right handlebar shall be operable by the operator's right hand throughout its full range without removal of the operator's right hand from the throttle. Each control located on a left handlebar shall be operable by the operator's left hand throughout its full range without removal of the operator's left hand from the handgrip. If a motorcycle with an automatic clutch other than a scooter is equipped with a supplemental rear brake control, the control shall be located on the left handlebar. If a scooter with an automatic clutch is equipped with a supplemental rear brake control, the control shall be on the right side and operable by the operator's right foot. A supplemental control shall provide brake actuation identical to that provided by the required control of Table 1, Item 11, of this Standard. If a motorcycle is equipped with self-proportioning or antilock braking devices utilizing a single control for front and rear brakes, the control shall be located and operable in the same manner as a rear brake control, as specified in Table 1, Item 11, and in this paragraph.

Item 11 from:

Table 1--Motorcycle Control Location and Operation Requirements

Equipment control--column 1

Location--column 2

Operation--column 3

11. Rear wheel brakes................... Right foot control............. Depress to engage.

Left handlebar for a motor-

Squeeze to engage. driven cycle and for a scooter with an automatic clutch.

See S5.2.1 for requirements for vehicles with a single control for front and rear brakes, and with a supplemental rear brake control.

CFMOTO explains that the noncompliance is that, the rear wheel brake control is located on the left handlebar instead of as a right foot control as required by paragraph S5.2.1 FMVSS No. 123.

CFMOTO provided the following arguments to support their contention that the subject noncompliance is inconsequential to motor vehicle safety:

The subject vehicles were certified as scooter type motorcycles by the CHG. CHG believed that the vehicles met all of the requirements for a scooter under FMVSS No. 123. As a result of the scooter certification the rear wheel brake was placed on the left handlebar.

The placement of the rear brake on the left handlebar should be deemed by the NHTSA as an inconsequential noncompliance, based on the history and safety records of the vehicles. No consumer complaints and no warranty claims or incident reports have been received by CFMOTO or CHG that relate to the lack of a right foot actuated rear wheel brake.

One of the main reasons consumers have been attracted to the subject vehicles is that they have the appearance of a motorcycle and the operation or function of a scooter. Aside from a lack of pass-through leg area, the vehicles are scooters in all technical respects. It is the scooter functionality that has been the driving force behind consumer demand for the vehicles.

Individuals with disabilities prefer the left hand rear brake controls to those of a foot operated actuator. Similarly, many consumers want to upgrade from a scooter to a motorcycle without the complexities of operating a motorcycle and therefore choose the subject vehicles.

In summation, CFMOTO believes that the described noncompliance is inconsequential to motor vehicle safety. Therefore, CFMOTO requests 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.

CFMOTO also stated that CHG has corrected the problem that caused these errors so that they will not be repeated in future production.

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.

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

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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.

Comment closing date: September 13, 2010.

Authority: 49 U.S.C. 30118, 30120: delegations of authority at

CFR 1.50 and 501.8.

Issued on: August 6, 2010.

Claude H. Harris,

Director, Office of Vehicle Safety Compliance.

FR Doc. 2010-19877 Filed 8-11-10; 8:45 am

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