[Federal Register: January 22, 2008 (Volume 73, Number 14)]
[Notices]
[Page 3801-3802]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ja08-124]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
Denial of Petition
AGENCY: National Highway Traffic Safety Administration, Department of
Transportation.
ACTION: Denial of petition for rulemaking, defect, and noncompliance
order, and denial of petition for hearing on notification and remedy of
a safety related defect.
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SUMMARY: This notice sets forth the reasons for the denials of two
petitions submitted by Mr. Robin R. Harrill (petitioner). The first
petition requested that the National Highway Traffic Safety
Administration (NHTSA) order Polaris Industries, Inc. (Polaris) to
assume all owner costs incurred to replace defective third gear
assemblies on certain model year 1999 through 2001 Victory V92
motorcycles it manufactured. The second petition requested the NHTSA
hold a hearing concerning the company's alleged failure to remedy the
defective third gear assemblies on those motorcycles. Both petitions
are denied as moot. Polaris has, since the filing of this petition,
notified the affected motorcycle owners of the defect, and has made a
free remedy available to those owners, including the petitioner, and
has reimbursed all owners who had the recall repair work completed
prior to the initiation of the recall.
FOR FURTHER INFORMATION CONTACT: Jennifer T. Timian, Recall Management
Division (NVS-215), Office of Defects Investigation, NHTSA, 1200 New
Jersey Ave., SE., Washington, DC 20590, telephone (202) 366-0209.
SUPPLEMENTARY INFORMATION:
[[Page 3802]]
Background
On August 4, 2006, Polaris filed a defect information report (06V-
298) with NHTSA, notifying it that some of its 2001 Victory V92
motorcycles and some of its 1999-2000 Victory V92 motorcycles that
received a transmission replacement last built in 2001 contained a
safety-related defect. According to Polaris, under certain conditions,
these motorcycles could experience third gear failures that could
result in a lock-up of the transmission. This, in turn, could cause a
loss of control and a crash. Polaris reported that it was planning to
install a rear sprocket damper assembly to correct for the possible
third gear failures, but that the schedule for implementing the remedy
campaign was still under development. Subsequently, on November 22,
2006, Polaris issued a letter to the affected owners notifying them of
the defect and stating that limited numbers of kits needed to repair
the motorcycles (referred to as ``Rear Sprocket Cushion Drive Kits'')
were expected to be distributed the week of December 18, 2006. Owners
were instructed to contact Victory dealers to schedule repair
appointments.
During the final stages of testing, however, Polaris found that the
remedy kits were not sufficient to address the risk of third gear
failures, and therefore additional work was needed to develop a better
remedy. Polaris advised the agency of its finding and the resulting
delay in delivery of remedy kits in January, 2007.
On March 8, 2007, NHTSA received a package containing two petitions
from Robin R. Harrill. The first petition, captioned a ``Petition for
Rulemaking, Defect, and Noncompliance Order,'' requested that NHTSA
order Polaris to assume all costs motorcycle owners may have incurred
to replace the third gear assemblies on the affected motorcycles. The
second petition, captioned a ``Petition for Hearing on Notification and
Remedy of Defects,'' requested a hearing to address Polaris's alleged
failure to meet its obligation to remedy those defective assemblies.
The crux of both petitions is that Polaris has been unreasonably
slow in making the Rear Sprocket Cushion Drive Kits available to owners
and dealers. In support of his petitions, Mr. Harrill provided a
timeline of events concerning the recall, an account of certain
conversations he had with various Polaris personnel, and summaries of
various communications Polaris had issued as to the status and
availability of the kits.
In the meantime, and at the agency's request, Polaris prepared
another notification letter for owners. On or about April 20, 2007,
NHTSA received a draft of this letter together with an amended defect
information report. Polaris stated in its report that this second owner
notification mailing was to start April 30, 2007. Polaris further
reported that it was going to simultaneously publish on its Web site a
reminder notification to dealers about the recall, together with a
parts availability date. Both of these actions took place.
In mid-May, 2007, the remedy kits for the affected motorcycles were
made available to dealers.
Decision
The filing and disposition requirements for petitions for
rulemaking, defect, and noncompliance orders, are found in 49 CFR part
552. The stated scope of part 552 is to, among other things, allow
interested persons to request the agency ``make a decision that a motor
vehicle * * * contains a defect which relates to motor vehicle
safety.'' 49 CFR 552.1. The stated scope of Part 552 does not include
ordering manufacturers to reimburse owners for their costs in remedying
defective motor vehicles, or taking any other action related to
repairing or replacing defective motor vehicles or motor vehicle
equipment.
Here, Polaris has already admitted that its vehicles have a defect
that relates to motor vehicle safety. Therefore, the issue of whether
the Polaris motorcycles in question have a safety-related defect has
been resolved, and so any agency determination mirroring the
manufacturer's decision would be meaningless.
The filing and disposition requirements for petitions for hearings
on notification and remedy of defects, are found in 49 CFR part 557.
One of the stated purposes of part 557 is to enable NHTSA to respond to
petitions for hearings on whether a manufacturer has reasonably met its
obligation to remedy a safety-related defect identified in its product.
49 CFR 557.2. Pursuant to 49 CFR 557.8, a manufacturer can be ordered
to take certain actions to ensure its compliance with the recall
requirements. One such action could be requiring the manufacturer to
reimburse owners' costs for their independent repairing or replacing of
equipment in order to fix a defect.
In deciding whether to grant petitioner's second petition, we have
taken into consideration the nature of his complaint and the
seriousness of the alleged breach of Polaris's obligation to remedy. We
have also considered that there have been approximately eight owner
complaints to NHTSA (including one the petitioner filed) about the
delays in repair due to the lack of availability of the Rear Sprocket
Cushion Drive Kits at local dealerships.
Based on our consideration of these factors, we have determined
that any hearing related to the reasonableness of the remedy would be
moot because the alleged problem--delays in repair kits needed to fix
the transmission defect--has been resolved. Polaris has delivered the
kits to its dealers and all owners have been notified of the defect.\1\
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\1\ In phone calls with the agency, the petitioner reported that
he had received a call from his dealer letting him know the repair
kits had arrived and offering to schedule an appointment for a
repair. He also reported that he no longer owns a motorcycle
involved in the remedy campaign addressed by this notice.
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For all of the reasons above, this petition is denied. This
decision does not, of course, prevent the agency from taking future
action if warranted.
Authority: 49 U.S.C. 30120; delegations of authority at 49 CFR
1.50 and 501.8.
Issued on: January 15, 2008.
Daniel C. Smith,
Associate Administrator for Enforcement.
[FR Doc. E8-951 Filed 1-18-08; 8:45 am]
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