

[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]

BILLING CODE 4910-59-P
