BHC Investment Corporation, Receipt of Petition for Decision of Inconsequential Noncompliance

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