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

American Government Special Collections Reference Desk

American Government Motorcycles Topics:  National Highway Traffic Safety Administration, CFMOTO V3, CFMOTO V5

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

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



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