BHC Investment Corporation, Receipt of Petition for Decision of Inconsequential Noncompliance |
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Claude H. Harris
National Highway Traffic Safety Administration
July 15, 2013
[Federal Register Volume 78, Number 135 (Monday, July 15, 2013)]
[Notices]
[Pages 42155-42156]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16793]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2012-0145; Notice 1]
BHC Investment Corporation, Receipt of Petition for Decision of
Inconsequential Noncompliance
AGENCY: National Highway Traffic Safety Administration, DOT.
ACTION: Receipt of petition.
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SUMMARY: BHC Investment Corporation (BHC) \1\ has determined that
certain ``Choice'' brand reflective warning triangles that BHC
distributed to its dealers from June 2011 to August 27, 2012, do not
fully comply with paragraph S5.2.3 of Federal Motor Vehicle Safety
Standard (FMVSS) No. 125 Warning Devices. BHC has filed an appropriate
report dated August 30, 2012, pursuant to 49 CFR Part 573, Defect and
Noncompliance Responsibility and Reports.
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\1\ BHC Investment Corporation is registered under the laws of
the state of Delaware, and as the importer of record for the subject
noncompliant equipment is treated as a manufacturer of motor vehicle
equipment with respect to the subject petition.
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Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule
at 49 CFR part 556), BHC submitted a petition 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 BHC'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.
Equipment Involved: Affected are approximately 13,305 ``Choice''
brand reflective warning triangle kits. Each kit includes three warning
devices for a total of 39,915 devices. The affected kits were
manufactured by Torch Industrial Company, LTD (TORCH) in its plant
located in Fujin, China. The affected kits were imported to and
distributed in the United States from June 2011 to August 27, 2012 by
BHC.
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. Therefore, these provisions
only apply to the 39,915 \2\ warning devices that BHC no longer
controlled at the time it determined that the noncompliance existed.
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\2\ BHC's petition, which was filed under 49 CFR part 556,
requests an agency decision to exempt BHC as a motor vehicle
equipment manufacturer from the notification and recall
responsibilities of 49 CFR part 573 for the affected equipment.
However, a decision on this petition cannot relieve vehicle
distributors and dealers of the prohibitions on the sale, offer for
sale, introduction or delivery for introduction into interstate
commerce of the noncompliant motor vehicle equipment under their
control after BHC notified them that the subject noncompliance
existed.
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Ruled Text: Paragraph S5.2.3 of FMVSS No. 125 requires in pertinent
part:
S5.2.3 Each face of the triangular portion of the warning device
shall have an outer border of red reflex reflective material of
uniform width and not less than 0.75 and not more than 1.75 inches
wide, and an inner border of orange fluorescent material of uniform
width and not less than 1.25 and not more than 1.30 inches wide . .
.
Summary of BHC's Analyses: BHC explains that the only noncompliance
that it has confirmed is that the measurement of the inner orange
fluorescent material is only 1.23 inches versus 1.25 inches required by
paragraph S5.2.3 of FMVSS No. 125. The other discrepancies alleged in
the competitor's notice cannot be verified without supplying samples to
an independent testing laboratory and having them tested and confirmed.
[[Page 42156]]
Therefore BHC decided to suspend sales of the warning triangles
produced by TORCH.
BHC stated its belief that the minor discrepancy between the
measurements of the orange material and the luminance tests result has
an inconsequential effect on motor vehicle safety. The competitor's
test results also makes claims regarding whether the Torch triangles
meet the FMVSS No. 125 with regard to stability and reflectivity. BHC
has not independently verify these allegations.
BHC stated its belief that the subject noncompliance is
inconsequential to motor vehicle safety for the following reasons:
1. The triangles are not an integral part of vehicle operation, and
are limited to use as a visual warning to passing motorists of a
roadside incident.
2. Under FMVSS No. 125, a minimum of 1.25 inches of orange
fluorescent material (see page 18 of Industrial Testing Laboratory test
report number 120320-05C) must be present. Based on the laboratory
testing results and BHC's own measurements, the Choice triangles'
reflective material has been measured as 1.23 inches, a difference
inconsequential to vehicle safety.
3. The competitor's testing results allege that the reflectivity
and stability of the Choice triangles failed to meet NHTSA standards by
similarly small margins, which do not present a material safety risk to
vehicle operations. Although BHC has not independently verified the
competitor's testing results, it has discontinued selling this item.
4. BHC has received no reports from any dealer or end use purchaser
of the Choice triangle kits of any failure of these products,
accidents, injuries, or other incidents allegedly related to the
suspected non-compliance.
5. BHC believes that any recall campaign would be ineffective. BHC
is in the process of notifying its approximately 300 dealers of the
issue, and has offered to replace any unsold stock with DOT-compliant
products. Based on our best information, BHC believes that the
retailers of these products generally do not maintain records on end-
use purchasers. BHC cannot identify effective point-of-sale or public
notice strategies that would effectively notify and remedy the
suspected noncompliance.
BHC also, believes that the combination of minor and
inconsequential suspected deviations from the DOT standard, the lack of
any report of actual failure of the products in the field, and the
problems faced in formulating an effective recall program are
sufficient to support the granting of this petition. BHC hopes that
this application and attached materials fully illustrate the
seriousness with which BHC has taken this matter, including the
immediate cessation of sales, attempts to verify the suspected
deficiencies, and replacement of unsold stock with compliant equipment.
BHC believes that such steps are a reasonable and satisfactory step for
an importer in this position, and that a recall campaign would produce
no marginal benefit in terms of vehicle safety.
In summation, BHC believes that the described noncompliance of its
equipment is inconsequential to motor vehicle safety, and that its
petition, to exempt 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.
Comments: 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 must
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 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: August 14, 2013.
Authority: 49 U.S.C. 30118, 30120: delegations of authority at
49 CFR 1.95 and 501.8.
Issued on: July 2, 2013.
Claude H. Harris,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2013-16793 Filed 7-12-13; 8:45 am]
BILLING CODE 4910-59-P