CFMOTO Powersports, Inc., Denial of Petition for Decision of Inconsequential Noncompliance |
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Topics: National Highway Traffic Safety Administration, CFMOTO V3, CFMOTO V5
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Claude H. Harris
Federal Register
October 25, 2011
[Federal Register Volume 76, Number 206 (Tuesday, October 25, 2011)]
[Notices]
[Pages 66128-66130]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27565]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2010-0106; Notice 2]
CFMOTO Powersports, Inc., Denial of Petition for Decision of
Inconsequential Noncompliance
AGENCY: National Highway Traffic Safety Administration, DOT.
ACTION: Denial of petition for inconsequential noncompliance.
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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'').
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\1\ CFMOTO Powersports, Inc., a Minnesota Corporation, is an
importer of motor vehicles.
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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.
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.
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.
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\2\ NHTSA No. C91202.
\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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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
[[Page 66129]]
Controls 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.
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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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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.
[[Page 66130]]
Authority: 49 U.S.C. 30118, 30120; delegations of authority at
49 CFR 1.50 and 501.8.
Issued on: October 19, 2011.
Claude H. Harris,
Acting Associate Administrator for Enforcement.
[FR Doc. 2011-27565 Filed 10-24-11; 8:45 am]
BILLING CODE 4910-59-P