01-29515. Aprilia, S.p.A.; American Honda Motor Co., Inc.; Grant of Applications for Temporary Exemption and Request for Extension of Temporary Exemption From Federal Motor Vehicle Safety Standard No. 123

This notice grants the applications by Aprilia S.p.A. of Noale, Italy, and by American Honda Motor Co. of Torrance, California (“Honda”), for 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. This notice also grants Aprilia's request for an extension of NHTSA Temporary Exemption No. EX99-9 from the same requirement. Both Aprilia and Honda 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).

Notice of receipt of Aprilia's application for a temporary exemption of its Habana 150 model was published in the Federal Register on August 1, 2001, and an opportunity afforded for comment (66 FR 39825). Because the safety issues raised by the Honda petition and Aprilia extension request are identical to those raised by Aprilia's Habana 150 petition, and given the recent opportunity for public comment, 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 the Honda petition and Aprilia extension request. See our similar decision on Aprilia's previous request for an extension of NHTSA Temporary Exemption No. EX99-9 (65 FR 1225). See also our decisions on applications by Dan Hill & Associates and Red River Manufacturing, Inc., for temporary exemptions from Standard No. 224(66 FR 20028).

The Reason Why Aprilia and Honda Need a Temporary Exemption

The problem is one that is common to the two Aprilia motorcycles and the one Honda motorcycle 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). Aprilia petitioned to use the left handlebar as the control for the rear brakes of its Habana 150 motorcycle, whose 150 cc engine produces more than the 5 hp maximum that separates motor driven cycles from motorcycles. According to Aprilia, the Habana frame has not been designed to mount a right foot operated brake pedal (i.e, a scooter-type vehicle provides a platform for the feet and operates 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. The Habana 150 is described as a retro-style cruiser scooter, as contrasted with the Aprilia Leonardo 150 sport scooter and the Scarabeo 150 touring scooter which we have previously exempted from compliance with the rear brake location requirement of Standard No. 123 (see 64 FR 44264 and 65 FR 1225).

Honda has made a similar petition on behalf of its FJS600 motor scooter. Aprilia has also requested that the temporary exemption for its Scarabeo 150 (65 FR 1225) be extended from December 1, 2001, until October 1, 2002 on the basis that it did not begin importation of the Scarabeo 150 until October 2000.

Absent an exemption, Aprilia and Honda will be unable to sell the Habana 150, Scarabeo 150, and the FJS 600 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

Aprilia and Honda have argued that the overall level of safety of the Habana 150 and Scarabeo 150, and FJS 600, respectively, equals or exceeds that of a non-exempted motor vehicle for the following reasons. All three vehicles 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, as Aprilia argued, concluding that the vehicles can be operated without requiring special training or practice.

Although admitting that “the foot can apply more force than the hand,” Aprilia argues that this is not important with respect to operation of the Habana 150 because “even the smallest rider can apply more than enough brake actuation force.” 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 has provided copies of its own recent test reports on the Habana, dated March 1, 2001, and May 1, 2001, which have been placed in the docket.

Aprilia also points 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 informs us that “the FJS600 can easily meet the braking performance requirements of both [Federal Motor Vehicle Safety] Standard 122 and ECE 78,” and, therefore, that “This braking system provides the FJS600 with an overall safety level exceeding * * * nonexempted vehicles.”

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

In Aprilia's view, an exemption would be in the public interest because the Habana 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. Similar arguments are made in support of an extension of the exemption for its Scarabeo 150.

In support of its petition, Honda reiterates its certainty “that the level of safety of the FJS600 is equal to similar vehicles certified under Standard No. 123.”

NHTSA's Decisions on the Applications and Request

We received one comment on Aprilia's petition, from Jeff Saunders of Palo Alto, California. Mr. Saunders supported granting the petition.

It is evident that, until such time as Standard No. 123 is amended to extend the left handlebar brake control option to motorcycles with more than 5 hp, Aprilia and Honda will be unable to sell their Habana 150, Scarabeo 150, and FSJ600 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. Although the Honda FJS600, equipped with a 600cc engine, would be the most powerful scooter-type vehicle exempted to date, we do not believe that this fact alone is relevant to brake control location.

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. While Honda did not make a public interest argument per se, reiterating only its belief that overall the FJS600 is as safe as a conforming motorcycle, we note that its last previous request for exemption from Standard No. 123, for its NSS250 motor scooter, was supported by approximately 40 commenters (See 66 FR 69130). This 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 Aprilia and Honda 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. Aprilia SpA is hereby granted NHTSA Temporary Exemption No. EX2001-7 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 applies only to the Habana 150 model, and will expire on November 1, 2003.

2. Honda Motor Co. Ltd. is hereby granted NHTSA Temporary Exemption No. EX2001-8 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 FJS600 model, and will expire on November 1, 2003.

3. The expiration date of NHTSA Temporary Exemption No. EX99-9 is hereby extended from December 1, 2001 to October 1, 2002.

(49 U.S.C. 30113; delegation of authority at 49 CFR 1.50).

Issued on November 20, 2001.

Jeffrey W. Runge,

Administrator.