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Notice

CFMOTO Powersports, Inc., Denial of Petition for Decision of Inconsequential Noncompliance

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Information about this document as published in the Federal Register.

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AGENCY:

National Highway Traffic Safety Administration, DOT.

ACTION:

Denial of petition for inconsequential noncompliance.

SUMMARY:

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) motorcycles that CFMOTO imported did not fully comply with paragraph S5.2.1 of 49 CFR 571.123 Federal Motor Vehicle Safety Standard (FMVSS) No. 123, Motorcycle Controls and Displays. CFMOTO filed an appropriate report, dated January 13, 2010, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports. Specifically, CFMOTO estimated that approximately 6,405 model year 2005-2009 CHG model CF250T-3(V3) and CF250T-5(V5) motorcycles, produced January 1, 2005, through December 31, 2009 are affected (hereafter referred to as “noncompliant vehicles”).

Pursuant to 49 U.S.C. 30118(d) and 30120(h), and 49 CFR Part 556, CFMOTO has petitioned for an exemption from the notification and remedy requirements of the National Traffic and Motor Vehicle Safety Act as amended and rectified, 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety. Notice of receipt of CFMOTO's petition was published, with a 30-day public comment period, on August 10, 2010, in the Federal Register (75 FR 49020). No comments were received.

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FOR FURTHER INFORMATION CONTACT:

For further information on CFMOTO's petition or this decision, contact Mr. Stuart Seigel, Office of Vehicle Safety Compliance, the National Highway Traffic Safety Administration (NHTSA), telephone (202) 366-5287, facsimile (202) 366-7002.

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SUPPLEMENTARY INFORMATION:

In October 2009, OVSC tested a model year (MY) 2009 V3 CF250T to the performance requirements of FMVSS No. 122 Motorcycle Brakes at Transportation Research Center (VRTC) in East Liberty, Ohio. At the conclusion of the testing,[2] it was noted that the vehicle appeared to not comply with S5.2.1 Control Location and Operation requirements of FMVSS No. 123. Specifically, according to Table 1 row 11 within that standard, the control for the rear wheel brake must be a right foot control unless the vehicle is a motor-driven cycle or a scooter with an automatic clutch in which case the left handlebar actuator is to be used. As the vehicle was equipped with only a left handlebar lever for rear brake actuation, but did not meet the definition of a scooter, and with an advertised 14 horsepower motor, did not meet the definition of a motor-driven cycle,[3] a non-compliance appeared to be present. NHTSA notified CFMOTO of the apparent noncompliance in a letter dated December 4, 2009.

CFMOTO's Analysis of Noncompliance

CFMOTO provided the following arguments to support its contention that the subject noncompliance, (i.e., that the rear wheel brake control is located on the left handlebar instead of a right foot control as required by paragraph S5.2.1 FMVSS No. 123), is inconsequential to motor vehicle safety:

The subject vehicles were manufactured and certified as scooters by 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 look” 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 Decision

Background of the Requirements for a Motorcycle

Federal Motor Vehicle Safety Standard (FMVSS) No. 123, Motorcycle Start Printed Page 66129Controls and Displays, specifies requirements for the location, operation, identification, and illumination of motorcycle controls and displays. The purpose of FMVSS No. 123 is to minimize accidents caused by operator error in responding to the motoring environment by standardizing certain motorcycle controls and displays. Among other requirements, FMVSS No. 123 (at S5.2.1, Table 1, Row 11) requires the control for a motorcycle's rear wheel brakes to be operable by a right foot control. However, if the motorcycle is a motor-driven cycle or a scooter with an automatic clutch, the rear wheel brake control must be located on the left handlebar. This requirement was delineated in a Final Rule amending FMVSS No. 123 published in the Federal Register (70 FR 51286) on August 30, 2005. Additionally, this notice defined the “scooter” style motorcycle as (1) having a platform for the operator's feet or has integrated footrests, and (2) has a step-through architecture, meaning that the part of the vehicle forward of the operator's seat and between the legs of an operator seated in the riding position is lower than the operator's seat. NHTSA has consistently held that standardization for motorcycle control locations is critical to the safe operation of these vehicles. Specifically, in order to lessen the risk of such crashes due to driver misapplication or non-application of the rear wheel brake there is an expectation by the operator that the control locations on a motorcycle with certain design characteristics, such as a scooter or a step-over traditional styled motorcycle, will for each style, be consistent from motorcycle to motorcycle. In the absence of this uniformity, the operator is at risk when operating a new or unfamiliar motorcycle.

NHTSA's Analysis of CFMOTO's Reasoning

The subject vehicles were certified as scooter style motorcycles by the CHG. CHG believed that the vehicles met all of the requirements for a scooter under FMVSS No. 123.

CHG made a fundamental error in concluding that the motorcycle was a scooter. The subject CFMOTO motorcycles in question have body cladding forward of the operators seat and have a similar step-over body configuration as a traditional motorcycle. It is quite obvious that the subject units do not have the step-thru architecture that is required for a scooter designation. It is the responsibility of the manufacturer to certify that the vehicles it manufacturers are compliant with all applicable FMVSS's and part of that process is ensuring that the vehicle is properly defined.

We will now address CHG's assertion that 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.[4] NHTSA notes however, that the absence of this data does not necessarily indicate the lack of a potential safety problem.

CHG asserted that 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. CHG asserted that aside from a lack of pass-through leg area, the vehicles are scooters in all technical respects, and that it is the scooter functionality that has been the driving force behind consumer demand for the vehicles.

In response, NHTSA notes that the subject vehicles have the appearance of a motorcycle which we interpret the petitioner as meaning the body styling of a traditional step-over motorcycle, yet the operation or function of a scooter, which we additionally interpret to mean automatic transmission and left handlebar brake and no right foot rear brake actuator. Not having the appearance of a scooter is the basis of the safety issue in question. A motorcycle that appears to be of standard configuration would be expected by operators to also have controls in the customary locations for a standard motorcycle. Thus, a safety scenario could arise as the operator riding on what they consider to be a standard motorcycle with commensurate standard control locations, during a braking event, would attempt to apply the traditional right foot brake lever when none was present, resulting in diminished braking capability and possible loss of vehicle control. CFMOTO has answered its own question as to why a motorcycle with a certain configuration yet with unexpected operational control locations presents a safety concern. Consequently, NHTSA is not persuaded by CFMOTO'S argument.

CFMOTO also asserted that individuals with disabilities prefer the left hand rear brake controls to those of a foot operated actuator, and that 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 response, NHTSA notes CFMOTO has provided no evidence backing its assertion regarding consumer preference or marketing strategies. However, if such consumer preference is true, the requirement for the right foot rear wheel brake actuator does not preclude incorporation of a supplemental left handlebar brake lever controlling the rear brake wheel for the CFMOTO units. Per S5.2.1 of the standard, “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.” Thus the motorcycles in question can continue to have the left hand brake lever provided the right foot lever is provided.

NHTSA Conclusions

The subject noncompliant vehicles do not qualify as either “motor-driven cycle” type or “scooter” style motorcycle. Because the noncompliant vehicles clearly do not resemble scooters or motor-driven cycles, an operator will very likely expect the motorcycle to be of traditional design with controls traditionally located as well. In the absence of the right foot brake lever, the operator will be precluded from the right foot rear wheel brake application thereby possibly increasing stopping distance and the likelihood of loss of vehicle control.

Lastly, CFMOTO has not produced any data to support its contention that the noncompliance does not present a significant safety risk.

Decision

After a review of CFMOTO's arguments and the final rule preamble language, NHTSA concludes that CFMOTO has not met its burden of demonstrating that the noncompliance does not present a significant safety risk. Therefore, NHTSA does not agree with CFMOTO that this specific noncompliance is inconsequential to motor vehicle safety.

In consideration of the foregoing, NHTSA has decided that the petitioner has not met its burden of persuasion that the noncompliances described are inconsequential to motor vehicle safety. Accordingly, CFMOTO's petition is hereby denied, and the petitioner must notify owners, purchasers and dealers pursuant to 49 U.S.C. 30118 and provide a remedy in accordance with 49 U.S.C. 30120.

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Start Printed Page 66130 Authority: 49 U.S.C. 30118, 30120; delegations of authority at 49 CFR 1.50 and 501.8.

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Issued on: October 19, 2011.

Claude H. Harris,

Acting Associate Administrator for Enforcement.

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Footnotes

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

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2.  NHTSA No. C91202.

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3.  CFR 49 571.3—Motor-driven cycle means a motor cycle with a motor that produces 5-brake horsepower or less.

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4.  We note no such consumer complaints, warranty claims or incident reports have been reported to NHTSA.

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[FR Doc. 2011-27565 Filed 10-24-11; 8:45 am]

BILLING CODE 4910-59-P