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Denial of Petition

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National Highway Traffic Safety Administration, Department of Transportation.


Denial of petition for rulemaking, defect, and noncompliance order, and denial of petition for hearing on notification and remedy of a safety related defect.


This notice sets forth the reasons for the denials of two petitions submitted by Mr. Robin R. Harrill (petitioner). The first petition requested that the National Highway Traffic Safety Administration (NHTSA) order Polaris Industries, Inc. (Polaris) to assume all owner costs incurred to replace defective third gear assemblies on certain model year 1999 through 2001 Victory V92 motorcycles it manufactured. The second petition requested the NHTSA hold a hearing concerning the company's alleged failure to remedy the defective third gear assemblies on those motorcycles. Both petitions are denied as moot. Polaris has, since the filing of this petition, notified the affected motorcycle owners of the defect, and has made a free remedy available to those owners, including the petitioner, and has reimbursed all owners who had the recall repair work completed prior to the initiation of the recall.

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Jennifer T. Timian, Recall Management Division (NVS-215), Office of Defects Investigation, NHTSA, 1200 New Jersey Ave., SE., Washington, DC 20590, telephone (202) 366-0209.

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On August 4, 2006, Polaris filed a defect information report (06V-298) with NHTSA, notifying it that some of its 2001 Victory V92 motorcycles and some of its 1999-2000 Victory V92 motorcycles that received a transmission replacement last built in 2001 contained a safety-related defect. According to Polaris, under certain conditions, these motorcycles could experience third gear failures that could result in a lock-up of the transmission. This, in turn, could cause a loss of control and a crash. Polaris reported that it was planning to install a rear sprocket damper assembly to correct for the possible third gear failures, but that the schedule for implementing the remedy campaign was still under development. Subsequently, on November 22, 2006, Polaris issued a letter to the affected owners notifying them of the defect and stating that limited numbers of kits needed to repair the motorcycles (referred to as “Rear Sprocket Cushion Drive Kits”) were expected to be distributed the week of December 18, 2006. Owners were instructed to contact Victory dealers to schedule repair appointments.

During the final stages of testing, however, Polaris found that the remedy kits were not sufficient to address the risk of third gear failures, and therefore additional work was needed to develop a better remedy. Polaris advised the agency of its finding and the resulting delay in delivery of remedy kits in January, 2007.

On March 8, 2007, NHTSA received a package containing two petitions from Robin R. Harrill. The first petition, captioned a “Petition for Rulemaking, Defect, and Noncompliance Order,” requested that NHTSA order Polaris to assume all costs motorcycle owners may have incurred to replace the third gear assemblies on the affected motorcycles. The second petition, captioned a “Petition for Hearing on Notification and Remedy of Defects,” requested a hearing to address Polaris's alleged failure to meet its obligation to remedy those defective assemblies.

The crux of both petitions is that Polaris has been unreasonably slow in making the Rear Sprocket Cushion Drive Kits available to owners and dealers. In support of his petitions, Mr. Harrill provided a timeline of events concerning the recall, an account of certain conversations he had with various Polaris personnel, and summaries of various communications Polaris had issued as to the status and availability of the kits.

In the meantime, and at the agency's request, Polaris prepared another notification letter for owners. On or about April 20, 2007, NHTSA received a draft of this letter together with an amended defect information report. Polaris stated in its report that this second owner notification mailing was to start April 30, 2007. Polaris further reported that it was going to simultaneously publish on its Web site a reminder notification to dealers about the recall, together with a parts availability date. Both of these actions took place.

In mid-May, 2007, the remedy kits for the affected motorcycles were made available to dealers.


The filing and disposition requirements for petitions for rulemaking, defect, and noncompliance orders, are found in 49 CFR part 552. The stated scope of part 552 is to, among other things, allow interested persons to request the agency “make a decision that a motor vehicle * * * contains a defect which relates to motor vehicle safety.” 49 CFR 552.1. The stated scope of Part 552 does not include ordering manufacturers to reimburse owners for their costs in remedying defective motor vehicles, or taking any other action related to repairing or replacing defective motor vehicles or motor vehicle equipment.

Here, Polaris has already admitted that its vehicles have a defect that relates to motor vehicle safety. Therefore, the issue of whether the Polaris motorcycles in question have a safety-related defect has been resolved, and so any agency determination mirroring the manufacturer's decision would be meaningless.

The filing and disposition requirements for petitions for hearings on notification and remedy of defects, are found in 49 CFR part 557. One of the stated purposes of part 557 is to enable NHTSA to respond to petitions for hearings on whether a manufacturer has reasonably met its obligation to remedy a safety-related defect identified in its product. 49 CFR 557.2. Pursuant to 49 CFR 557.8, a manufacturer can be ordered to take certain actions to ensure its compliance with the recall requirements. One such action could be requiring the manufacturer to reimburse owners' costs for their independent repairing or replacing of equipment in order to fix a defect.

In deciding whether to grant petitioner's second petition, we have taken into consideration the nature of his complaint and the seriousness of the alleged breach of Polaris's obligation to remedy. We have also considered that there have been approximately eight owner complaints to NHTSA (including one the petitioner filed) about the delays in repair due to the lack of availability of the Rear Sprocket Cushion Drive Kits at local dealerships.

Based on our consideration of these factors, we have determined that any hearing related to the reasonableness of the remedy would be moot because the alleged problem—delays in repair kits needed to fix the transmission defect—has been resolved. Polaris has delivered the kits to its dealers and all owners have been notified of the defect.[1]

For all of the reasons above, this petition is denied. This decision does not, of course, prevent the agency from taking future action if warranted.

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

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Issued on: January 15, 2008.

Daniel C. Smith,

Associate Administrator for Enforcement.

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1.  In phone calls with the agency, the petitioner reported that he had received a call from his dealer letting him know the repair kits had arrived and offering to schedule an appointment for a repair. He also reported that he no longer owns a motorcycle involved in the remedy campaign addressed by this notice.

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[FR Doc. E8-951 Filed 1-18-08; 8:45 am]