Grant of Applications of Five Motorcycle Manufacturers for Temporary Exemption, and Requests for Extension of Temporary Exemption, From Federal Motor Vehicle Safety Standard No. 123

This notice grants the applications by five motorcycle manufacturers for either a temporary exemption of two years from a requirement of S5.2.1 (Table 1) of Federal Motor Vehicle Safety Standard No. 123 Motorcycle Controls and Displays, or for an extension of two years of an existing temporary exemption from such requirement. The applicants assert that “compliance with the standard would prevent the manufacturer from selling a motor vehicle with an overall level of safety at least equal to the overall safety level of nonexempt vehicles,” 49 U.S.C. Sec. 30113(b)(3)(iv).

The manufacturers who have applied for a temporary exemption are CPI Motor Co. of Ta-Li City, Taiwan (CPI), for the Motorrad JT 125 (Moskito); American Suzuki Motor Corporation, Brea, California, on behalf of Suzuki Motor Corporation of Japan, for the Suzuki AN650, and Malaguti USA, Miami, Florida, on behalf of Malaguti S.p.A. of Bologna, Italy, for the Ciak 150 cc and F-18 150 cc motor scooters. The manufacturers who have applied for an extension of an existing exemption are Aprilia, U.S.A. Inc., Woodstock, Ga. for the Aprilia Scarabeo 150 (NHTSA Temporary Exemption No. 99-9, expiring October 1, 2002 (see 64 FR 44264, 65 FR 1225, and 66 FR 59519)); and American Honda Motor Company, Inc., Torrance, California, for the Honda NSS250(NHTSA Temporary Exemption No. EX 2000-2, expiring November 1, 2002, 65 FR 69130).

Because the safety issues raised by petitions for renewal of exemptions are identical to those raised in the initial petitions by these manufacturers, and because these issues are identical to those raised by the manufacturers petitioning for an exemption for the first time, we have decided to address all the petitions in a single notice. Further, given the opportunity for public comment on these issues in the years 1998-2001 (which resulted only in comments in support of the petitions), we have concluded that a further opportunity to comment on the same issues is not likely to result in any substantive submissions, and that we may proceed to decisions on these petitions. See, e.g., most recently Aprilia and Honda (66 FR 59519) and Aprilia (65 FR 1225).

The Reason Why the Applicants Need a Temporary Exemption

The problem is one that is common to the motorcycles covered by the applications. If a motorcycle is produced with rear wheel brakes, S5.2.1 of Standard No. 123 requires that the brakes be operable through the right foot control, although the left handlebar is permissible for motor-driven cycles (Item 11, Table 1). Motor-driven cycles are motorcycles with motors that produce 5 brake horsepower or less. The five manufacturers petitioned to use the left handlebar as the control for the rear brakes of certain of their motorcycles whose engines produce more than 5 brake horsepower. The frame of each of these motorcycles has not been designed to mount a right foot operated brake pedal (i.e, these scooter-type vehicles which provide a platform for the feet and operate only through hand controls). Applying considerable stress to this sensitive pressure point of the frame could cause failure due to fatigue unless proper design and testing procedures are performed.

Absent an exemption, the manufacturers will be unable to sell the motorcycle models named above because the vehicles would not fully comply with Standard No. 123.

Arguments Why the Overall Level of Safety of the Vehicles To Be Exempted Equals or Exceeds That of Non-Exempted Vehicles

As required by statute, the petitioners have argued that the overall level of safety of the motorcycles covered by their petitions equals or exceeds that of a non-exempted motor vehicle for the following reasons. All vehicles for which petitions have been submitted are equipped with an automatic transmission. As there is no foot-operated gear change, the operation and use of a motorcycle with an automatic transmission is similar to the operation and use of a bicycle, and the vehicles can be operated without requiring special training or practice.

CPI is manufacturing the Moskito 125 (JT125) under contract with Motorrad und Zweiradwerk GmbH of Germany, which has completed certification testing of the vehicle. CPI will affix a certification of compliance with the Federal motor vehicle safety standards as the manufacturer of the Moskito 125, and then ship the motorcycles directly to Motorrad of North America for sale in the United States.

According to CPI, the JT125 provides an equivalent overall level of safety to a complying vehicle because its operation is similar to that of a bicycle, and the use of a left-hand lever for the rear brake is highly intuitive and easy to use. The use of the left handlebar for the rear brake control on scooters is more natural and quicker for a scooter rider than the rider's foot searching for the correct position on a pedal to operate the brakes. In addition, “additional benefit is provided by the reduced probability of inadvertent wheel locking in an emergency braking situation, which comes from increased sensitivity to brake feedback with the hand lever.”

American Suzuki informed us that its AN650 “can easily meet the braking performance requirements in FMVSS 122,” and enclosed a test report in support. It also compared the performance of the AN650 with the somewhat lighter GSF600S motorcycle, which is equipped with rear brakes that are operable using a right foot control, and found the braking performance “very similar.”

Malaguti submitted its models to Clark Engineering for braking performance tests, and enclosed a test report in support of its petition. It asserted that the Ciak 150 cc and F-18 150 cc meet the braking requirements of ECE 93/14 as well.

In its earlier petitions, Aprilia cited tests performed by Carter Engineering on a similar Aprilia scooter to support its statement that “a motor vehicle with a hand-operated rear wheel brake provides a greater overall level of safety than a nonexempt vehicle.” See materials in Docket No. NHTSA 98-4357. According to Aprilia, a rear wheel hand brake control allows riders to brake more quickly and securely, it takes a longer time for a rider to find and place his foot over the pedal and apply force than it does for a rider to reach and squeeze the hand lever, and there is a reduced probability of inadvertent wheel locking in an emergency braking situation. Aprilia provided copies of its own test reports on a similar exempted model, the Habana, dated March 1, 2001, and May 1, 2001, which have been placed in Docket No. NHTSA-01-10257. In its latest petition, it stated that it has received no written complaints relating to the brake operation of the Scarabeo 150s which it has imported and sold under NHTSA Temporary Exemption No. 99-9.

Aprilia also pointed out that European regulations allow motorcycle manufacturers the option of choosing rear brake application through either a right foot or left handlebar control, and that Australia permits the optional locations for motorcycles of any size with automatic transmissions.

Honda informed us that “the NSS250 can easily meet the braking performance requirements of both FMVSS 122 and ECE 78,” and, therefore, that “This braking system provides the NSS250 with an overall safety level exceeding * * * nonexempted vehicles.” Honda will also offer the NSS250 with optional ABS for the purpose of a marketability evaluation.

In support of its petition, Honda enclosed copies of a second effectiveness service brake system test conducted in accordance with S5.3 of Standard No. 122, demonstrating that the NSS250 easily stopped within the maximum distances specified at speeds of 30 and 65 mph, as well as a test showing compliance with ECE 78.

Arguments Why an Exemption Would be in the Public Interest and Consistent With the Objectives of Motor Vehicle Safety

CPI argued that its scooter is intended for low speed urban use and that it expects that these vehicles will be used mostly in congested traffic conditions. The JT125 provides a more natural braking response because of its automatic transmission and platform configuration. The vehicle provides “enhanced safety, environmentally clean and fuel efficient, safe, convenient urban transportation. The emissions of the JT125's “very small engine” have been demonstrated to be lower than large motorcycles, an alternative means of transportation.

American Suzuki argued that the level of safety of the AN650 is at least equal to that of vehicles certified to meet Standard No. 123. In its opinion, scooters like the AN650 “are of interest to the public [as] evidenced by * * * the favorable public comment on [similar] exemption requests and the number of scooters sold under the granted exemptions.”

In Malaguti's opinion, its scooters provide a “much more natural braking response by the rider than non-exempted vehicles.” The exemption would also be in the public interest “because Malaguti is promoting environmentally clean and efficient urban transportation.”

Aprilia asserted in its initial requires for exemption that “the public interest would be served with the granting of the exemption because the Scarabeo 150 provides enhanced safety as well as environmentally friendly, fuel-efficient, convenient urban transportation.” According to Aprilia, its initial assertion is supported by feedback from initial customers. It has enclosed comments from Scarabeo 150 customers touting the speed and handling of the motorcycle, and a magazine article commenting that it is “the perfect vehicle for stop-and-go traffic.”

An exemption would be in the public interest because the Scarabeo 150 is intended for low-speed urban use, and “it is expected that it will be used predominantly in congested traffic areas.” Further, the design of the vehicle has been tested by long use around the world, and “neither consumer groups nor government authorities have raised safety concerns about this design.” For this reason, Aprilia argues that an exemption would also be consistent with the objectives of motor vehicle safety.

In support of its argument that an exemption would be in the public interest and consistent with the objectives of motor vehicle safety, Honda reiterated its certainty “that the level of safety of the NSS250 is equal to similar vehicles certified under FMVSS No. 123. * * *”

NHTSA's Decisions on the Applications and Request

It is evident that, unless Standard No. 123 is amended to permit or require the left handlebar brake control on motorscooters with more than 5 hp, the petitioners will be unable to sell their motorcycles if they do not receive a temporary exemption from the requirement that the right foot pedal operate the brake control. It is also evident from the previous grants of similar petitions by Aprilia, Honda, and others, that we have repeatedly found that the motorcycles exempted from the brake control location requirement of Standard No. 123 have an overall level of safety that equals or exceeds that of nonexempted motorcycles.

CPI argued that an exemption would be in the public interest because it would make available a low-emission, fuel efficient, convenient means of urban transportation in congested traffic conditions. Thus, it appears to us that use of the JT125 would reduce both pollution and congestion on city streets. We note its remark, too, that “neither consumer groups nor governmental authorities have raised any safety concerns as a result of this design.”

American Suzuki's argument that an exemption would be in the public interest because of the comments in support of previous exemption requests for similar scooter-type vehicles is a valid one, absent any data indicating that the overall level of safety is not at least equal to that of complying vehicles.

Malaguti's arguments are similar to those of other petitioners regarding braking response and enhancing the environment and urban transportation.

Aprilia's argument that an exemption for the Habana 150 would be in the public interest because of its probable use in congested urban areas is equally applicable to the Scarabeo 150, as is its arguments that use of such vehicles worldwide has raised no vehicle safety issues related to location of brake controls. Honda reiterated its belief that overall the NSS250 is as safe as a conforming motorcycle. We note that its original request in 2000 for exemption from Standard No. 123 for this model was supported by approximately 40 commenters (See 66 FR 69130). This response to our request for comments indicates a great public interest in scooter-type vehicles and a belief of the commenters that such vehicles have a place in the nation's overall private-vehicle transportation fleet.

In consideration of the foregoing, we hereby find that the petitioners have met their burden of persuasion that to require compliance with Standard No. 123 would prevent these manufacturers from selling a motor vehicle with an overall level of safety at least equal to the overall safety level of nonexempt vehicles. We further find that a temporary exemption is in the public interest and consistent with the objectives of motor vehicle safety. Therefore:

1. CPI Motor Co. is hereby granted NHTSA Temporary Exemption No. EX02-1 from the requirements of item 11, column 2, table 1 of 49 CFR 571.123 Standard No. 123 Motorcycle Controls and Displays, that the rear wheel brakes be operable through the right foot control. This exemption covers only the Motorrad JT125 (Moskito) and expires on October 1, 2004.

2. Suzuki Motor Corporation is hereby granted NHTSA Temporary Exemption No. EX02-2 from the requirements of item 11, column 2, table 1 of 49 CFR 571.123 Standard No. 123 Motorcycle Controls and Displays, that the rear brakes be operable through the right foot control. This exemption applies only to the Suzuki AN650, and will expire on October 1, 2004.

3. Malaguti S.p.A. is hereby granted NHTSA Temporary Exemption No. EX02-3 from the requirements of item 11, column 2, table 1 of 49 CFR 571.123 Standard No. 123 Motorcycle Controls and Displays, that the rear wheel brakes be operable through the right foot control. This exemption covers only the Ciak 150 cc and F-18 cc, and expires on October 1, 2004.

4. NHTSA Temporary Exemption No. 99-9, exempting Aprilia USA Inc. from the requirements of item 11, column 2, table 1 of 49 CFR 571.123 Standard No. 123 Motorcycle Controls and Displays, that the rear wheel brakes be operable through the right foot control, is hereby extended to expire on October 1, 2004. This exemption applies only to the Aprilia Scarabeo 150.

5. NHTSA Temporary Exemption No. EX2001-8, exempting American Honda Motor Co., Inc., from the requirements of item 11, column 2, table 1 of 49 CFR 571.123 Standard No. 123 Motorcycle Controls and Displays, that the rear brakes be operable through the right foot control, is hereby extended to expire on October 1, 2004. This exemption applies only to the Honda NSS250.