60700 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Notices 

(ii) If a ‘‘low battery’’ indication is 

displayed during any westward train 

movement from Barstow through 

Summit, California, BNSF shall bring 

the train to a stop prior to departing 

Summit, California and change the 

battery. 

(iii) If a ‘‘low battery’’ indication is 

displayed during any westward train 

movement at or from Summit through 

Baseline, California, BNSF shall 

immediately bring the train safely to a 

stop in accordance with the railroad’s 

operating rules and change the battery. 

(iv) BNSF shall maintain a written or 

electronic record of each battery change 

made pursuant to paragraph (2)(D)(ii) of 

this Order. 

(3) The inspection, testing, and 

operational requirements contained in 

paragraph (2) of this Order will 

terminate, and this Order will no longer 

be in effect, on December 8, 2004 unless 

FRA finds a pattern of non-compliance 

by BNSF with either the provisions of 

this Order or of 49 CFR part 232, 

subpart E and issues a subsequent 

notice containing a finding that the 

emergency situation still exists and 

imposing any necessary requirements. 

Any such finding will be provided to 

the railroad in writing from FRA’s 

Associate Administrator for Safety 

before any extension in the above-noted 

date is effectuated. After December 8, 

2004, BNSF operations subject to this 

Order shall comply with all applicable 

portions of 49 CFR part 232, subpart E. 

If during the period covered by this 

notice, FRA determines that an 

emergency situation exists, as the term 

is used in 49 U.S.C. 20104, FRA reserves 

the right to issue an emergency order to 

address the situation if necessary. 

Relief 

Emergency Order 18 will be rescinded 

in accordance with the dates and 

procedures identified in paragraphs (1) 

and (3) of the Finding and Order section 

of this notice. FRA will, at any time, 

consider requests by BNSF to exclude 

certain train operations from the scope 

of this order based on satisfactory 

demonstration that those operations can 

be safely performed using other 

procedures. However, all aspects of this 

order apply to all westward trains 

departing Barstow unless and until 

written special approval is granted 

permitting other procedures for specific 

train operations. The Associate 

Administrator for Safety is authorized to 

issue such special approvals without 

amending this order. 

Penalties 

Any violation of this order shall 

subject the person committing the 

violation to a civil penalty of up to 

$20,000. 49 U.S.C. 21301. FRA may, 

through the Attorney General, also seek 

injunctive relief to enforce this order. 49 

U.S.C. 20112. 

Effective Date and Notice to Affected 

Persons 

This order shall take effect at 12:01 

a.m (P.s.t.) on October 8, 2004, and 

apply to all westward trains operating 

between Barstow milepost 745.9 and 

Baseline milepost 79.9. Notice of this 

Order will be provided by publishing it 

in the Federal Register. Copies of this 

Emergency Order will be sent by mail or 

facsimile prior to publication to the Vice 

President-Operations of BNSF, counsel 

for BNSF, officials of interested labor 

organizations, the California PUC, and 

the Association of American Railroads. 

Review 

Opportunity for formal review of this 

Emergency Order notice and the new 

requirements imposed herein will be 

provided in accordance with 49 U.S.C. 

20104(b) and section 554 of Title 5 of 

the United States Code. Administrative 

procedures governing such review are 

found at 49 CFR part 211. See 49 CFR 

211.47, 211.71, 211.73, 211.75, and 

211.77.

Issued in Washington, DC on October 6, 

2004. 

Betty Monro, 

Acting Administrator.

[FR Doc. 04–22941 Filed 10–8–04; 8:45 am] 

BILLING CODE 4910–06–P

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety 

Administration 

[Docket No. NHTSA 2004–18745] 

Grant of Applications of Three 

Motorcycle Manufacturers for 

Temporary Exemptions and Renewal 

of Temporary Exemptions From 

Federal Motor Vehicle Safety Standard 

No. 123

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), DOT.

ACTION: Grant of applications for 

temporary exemptions and renewals of 

temporary exemptions from a Federal 

motor vehicle safety standard. 

SUMMARY: This notice grants the 

applications by three motorcycle 

manufacturers (Honda, Piaggio, and 

Yamaha) for temporary exemptions, and 

renewal of temporary exemptions, from 

a provision in the Federal motor vehicle 

safety standard on motorcycle controls 

and displays specifying that a 

motorcycle rear brake, if provided, must 

be controlled by a right foot control. We 

are permitting each manufacturer to use 

the left handlebar as an alternative 

location for the rear brake control. Each 

applicant has asserted 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.’’

DATES: The grant of each application for 

temporary exemption expires September 

1, 2007.

FOR FURTHER INFORMATION CONTACT: For 

non-legal issues, you may contact Mr. 

Michael Pyne, Office of Crash 

Avoidance Standards at (202) 366–4171. 

His FAX number is: (202) 493–2739. 

For legal issues, you may contact Ms. 

Dorothy Nakama, Office of the Chief 

Counsel at (202) 366–2992. Her FAX 

number is: (202) 366–3820. 

You may send mail to these officials 

at: National Highway Traffic Safety 

Administration, 400 Seventh St., SW., 

Washington, DC 20590.

SUPPLEMENTARY INFORMATION: 

I. Background 

49 U.S.C. 30113(b) provides the 

Secretary of Transportation the 

authority to exempt, on a temporary 

basis, motor vehicles from a motor 

vehicle safety standard under certain 

circumstances. The exemption may be 

renewed, if the vehicle manufacturer 

reapplies. The Secretary has delegated 

the authority for section 30113(b) to 

NHTSA. 

NHTSA has established regulations at 

49 CFR part 555, Temporary Exemption 

from Motor Vehicle Safety and Bumper 

Standards. Part 555 provides a means 

by which motor vehicle manufacturers 

may apply for temporary exemptions 

from the Federal motor vehicle safety 

standards on the basis of substantial 

economic hardship, facilitation of the 

development of new motor vehicle 

safety or low-emission engine features, 

or existence of an equivalent overall 

level of motor vehicle safety. 

Federal Motor Vehicle Safety 

Standard (FMVSS) No. 123, Motorcycle 

controls and displays (49 CFR 571.123) 

specifies requirements for the location, 

operation, identification, and 

illumination of motorcycle controls and 

displays, and requirements for 

motorcycle stands and footrests. Among 

other requirements, FMVSS No. 123 

specifies that for motorcycles with rear 

wheel brakes, the rear wheel brakes 

must be operable through the right foot 

control, although the left handlebar is 

permissible for motor-driven cycles (See

S5.2.1, and Table 1, Item 11). MotorVerDate jul<14>2003 20:38 Oct 08, 2004 Jkt 205001 PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 E:\FR\FM\12OCN1.SGM 12OCN1
Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Notices 60701

driven cycles are motorcycles with 

motors that produce 5 brake horsepower 

or less (See 49 CFR 571.3, Definitions).

On November 21, 2003, NHTSA 

published in the Federal Register (68 

FR 65667) a notice proposing two 

regulatory alternatives to amend FMVSS 

No. 123. Each alternative would require 

that for certain motorcycles without a 

clutch control lever, the rear brakes 

must be controlled by a lever located on 

the left handlebar. We also requested 

comment on industry practices and 

plans regarding controls for motorcycles 

with integrated brakes. If this proposed 

rule is made final, the left handlebar 

would be permitted as an alternative 

location for the rear brake control. 

II. Applications for Temporary 

Exemption From FMVSS No. 123 

NHTSA has received applications for 

temporary exemption from S5.2.1 and 

Table 1, Item 11 from three motorcycle 

manufacturers: Honda Motor Company, 

Ltd. (Honda); Piaggio & C. S.p.A. and 

Piaggio USA, Inc (Piaggio); and Yamaha 

Motor Corporation USA (Yamaha). 

Honda asks for a new temporary 

exemption for the PS250 (for Model 

Years (MYs) 2005 and 2006), and an 

extension of an existing temporary 

exemption for the NSS250 (for MYs 

2005–2006). Piaggio asks for new 

temporary exemptions for the Vespa 

GT200 (for MYs 2005–2006), the Piaggio 

BV200 (for MYs 2005–2006) and the 

Piaggio X9–500 (for MYs 2005–2006). 

Piaggio asks for an extension of an 

existing temporary exemption for the 

Vespa ET4 (for MYs 2004–2006). 

Yamaha asks for a new temporary 

exemption for the YP–400 (for MYs 

2005–2006), which Yamaha asserts is 

‘‘equivalent’’ to the Yamaha Vino 125. 

The Vino 125 is the subject of a grant 

of a temporary exemption from 

Standard No. 123 until March 1, 2005 

(See 68 FR 15552; March 31, 2003). All 

of these motorcycles are considered 

‘‘motor scooters.’’

The safety issues are identical in the 

case of all of these motorcycles. Honda, 

Piaggio, and Yamaha have applied to 

use the left handlebar as the location for 

the rear brake control on their 

motorcycles whose engines produce 

more than 5 brake horsepower (all of the 

motorcycles specified in the previous 

paragraph). The frames of each of the 

motorcycles that are the subject of these 

applications for temporary exemptions 

have not been designed to mount a right 

foot operated brake pedal (i.e., these 

motor scooters have a platform for the 

feet and operate only through hand 

controls). Applying considerable stress 

to this sensitive pressure point of the 

motor scooter frame by putting on a foot 

operated brake control could cause 

failure due to fatigue, unless proper 

design and testing procedures are 

performed. 

III. Why the Petitioners Claim the 

Overall Level of Safety of the 

Motorcycles Equals or Exceeds That of 

Non-exempted Motorcycles 

The applicants have argued that the 

overall level of safety of the motorcycles 

covered by their petitions equals or 

exceeds that of a non-exempted 

motorcycle for the following reasons. 

Each manufacturer stated that 

motorcycles for which application 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. 

Each manufacturer provided the 

following additional arguments: 

Honda—Honda provided separate 

applications for the new exemption for 

the PS250 and the renewal of the 

exemption for the NSS250. In both 

cases, Honda provided test data 

showing how each motorcycle met the 

FMVSS No. 122 Motorcycle brake 

systems test specified at S5.3, service 

brake system—second effectiveness test. 

Honda provided separate sets of data 

showing the results of a second 

effectiveness comparison test data for 

the NSS250 and the PS250 equipped 

with the combined brake system. The 

test results for the NSS250 and the 

PS250 were compared to results for 

similarly sized models without the 

combined brake systems. In all cases, 

the NSS250 and the PS250 had shorter 

braking stopping distances than did the 

models without the combined brake 

systems.

Honda also provided results of ECE 78 

test data for the NSS250 and PS250, 

equipped with the combined brake 

system, and provided test data 

comparing stopping distances on 

various surfaces using the rear brake 

control only between an NSS250 and a 

PS250 equipped with a combined brake 

system and a similar model without a 

combined brake system. 

Piaggio—Piaggio stated that brake 

tests in accordance with FMVSS No. 

122 Motorcycle brake systems, were 

conducted on all Vespa and Piaggio 

models and stated that all models 

‘‘easily exceed’’ the performance 

requirements of FMVSS No. 122. 

Piaggio also stated that Vespa and 

Piaggio vehicles fully meet the 93/14 

EEC brake testing requirements, and 

enclosed a copy of the brake testing 

report of the ‘‘Ministero dei Trasporti e 

della Navigazione’’ Italy or TUV/VCA. 

Piaggio cited several reasons why it 

believes the left handlebar rear brake 

actuation force provides an overall level 

of safety that equals or exceeds a 

motorcycle with a right-foot rear brake 

control. Among these reasons, Piaggio 

cited the ‘‘state of the art’’ hydraulically 

activated front disc brakes used on 

Vespa and Piaggio vehicles, as 

providing more than enough brake 

actuation force available to the ‘‘hand of 

even the smallest rider.’’ Piaggio 

explained that because of the greater 

physical size of a foot-powered brake 

pedal, mechanical efficiency is lower 

and inertia about the pivot is higher. 

This results in less effective feedback, or 

what Piaggio describes as ‘‘feeling’’ of 

the actuation system. Piaggio asserted 

that because there is more sensitivity to 

brake feedback from the hand lever, use 

of a hand lever reduces the probability 

of inadvertent wheel locking in an 

emergency braking situation. Piaggio 

stated that inexperienced riders may 

lose control of their motorcycle because 

of rear wheel locking, and that use of 

the hand lever reduces the possibility of 

rear wheel locking. 

Yamaha—Yamaha cited an August 

1999 study, ‘‘Motorcycle Braking 

Control Response Study’’ by T.J. Carter, 

as showing that handlebar-mounted rear 

brakes have an equivalent level of safety 

to that of right-foot control rear brakes, 

because handlebar-mounted rear brakes 

have equivalent reaction times to the 

foot control. Yamaha analogized 

motorcycle operators changing from the 

dual hand control wheel brakes to the 

hand/foot arrangement, to that of an 

automobile driver going from an 

automatic transmission to a stick shift. 

Yamaha asserted: ‘‘[t]here have been no 

required warnings of ‘change’ or 

‘difference in operating character’ to the 

automobile operator, nor has there been 

shown to be a lessened or lowered level 

of equivalent safety for the two different 

systems on the same platform 

(automobiles).’’

IV. Why Petitioners Claim an 

Exemption Would Be in the Public 

Interest and Would Be Consistent With 

the Objectives of Motor Vehicle Safety 

Each manufacturer offered the 

following reasons why temporary 

exemptions for their motorcycles would 

be in the public interest and would be 

consistent with the objectives of motor 

vehicle safety: 

Honda—For both the NSS250 and the 

PS250, Honda asserted that it is 

‘‘certain’’ that the level of safety of the 

two motorcycles ‘‘is equal to similar 

vehicles certified under FMVSS No. 

60702 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Notices 

123; therefore, we seek renewal of the 

[or a new] temporary exemption from 

this standard.’’ Honda noted that both 

the NSS250 and the PS250 are equipped 

with a combined brake system. The 

combined brake system uses both front 

and rear disc brakes and employs a 

unique three-piston front caliper. 

Applying the right handlebar brake 

lever activates the front brake caliper. 

Applying the left handlebar brake lever 

activates one piston in the front brake 

caliper and the rear brake caliper.

Honda asserted that with the 

combined brake system, the rider is able 

to precisely control brake force 

distribution, depending on which 

control is used. Applying the right 

handlebar lever activates the outer two 

pistons in the front caliper. In this case, 

the front wheel receives a larger portion 

of the braking force. Applying the left 

handlebar lever activates the center 

piston in the front caliper and the single 

piston in the rear caliper. A valve has 

been installed in this system to slightly 

delay the brake force at the front wheel. 

This delay improves braking by 

allowing the rear of the scooter to settle, 

which helps to minimize front nose dive 

and weight shift. Honda further noted 

that using both controls at once 

activates all pistons in both calipers for 

maximum braking force. 

For the NSS250, Honda plans to offer 

some models with an optional antilockbrake system. 

Piaggio—Piaggio stated that with the 

introduction of automatic transmission 

engines on motorcycles, ‘‘the Code of 

Federal Regulations is completely out of 

harmonization with the majority of 

countries in the world as far as the 

FMVSS 123—S5.2.1 is concerned.’’

Piaggio asserted all European 

Community countries permit 

motorcycle manufacturers to make their 

own decision whether to use a left 

handlebar control or a right foot control 

for rear wheel brakes. 

Yamaha—Since there have been 

many previous exemptions to Standard 

No. 123, S5.2.1, and Table 1, Item 11 

granted, Yamaha asserts that ‘‘the 

grounds and precedent are clear and a 

redundant reiteration of same is not in 

order to preserve precious Agency 

time.’’ Yamaha concluded that its 

‘‘request is consistent with the intent of 

the National Traffic and Motor Vehicle 

Safety Act and offers an equivalent level 

of safety for consumers and other 

motorists/highway users.’’

V. Notification of Receipt of 

Applications and Public Comments 

On August 2, 2004 (60 FR 46205) 

(Docket No. NHTSA–2004–18745), we 

published a Federal Register notice 

announcing the receipt of applications 

for temporary exemptions and of 

renewals of exemptions from Honda, 

Piaggio, and Yamaha. We published 

each applicant’s reasons why the overall 

safety of the motorcycles equals or 

exceed that of non-exempted 

motorcycles, and why each applicant 

claimed an exemption would be in the 

public interest and would be consistent 

with the objectives of motor vehicle 

safety. We asked for public comment on 

each application. 

In response to the August 2, 2004, 

document, we received eight comments. 

All commenters except for one, favored 

granting the applications for temporary 

exemption from the requirements of 

item 11, column 2, table 1 of FMVSS 

No. 123. The commenter who did not 

favor granting the applications wrote 

that placing the rear brake control on 

the left handle bar would be ‘‘confusing 

to the rider’’ because historically the 

clutch release has been in that location. 

The commenter did not state if the 

confusion has been his personal 

experience, and did not cite specific 

instances where such confusion may 

have led to a rider losing control of the 

motorcycle or led to a crash. Five of the 

commenters wrote in favor of a specific 

manufacturer’s product. 

VI. NHTSA’s Decisions on the 

Applications 

It is evident that, unless Standard No. 

123 is amended to permit or require the 

left handlebar brake control on motor 

scooters 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 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 at 

least equal to that of nonexempted 

motorcycles.

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. NHTSA Temporary Exemption No. 

EX–2002–2, exempting Honda Motor 

Company, Ltd. 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 September 1, 2007. This 

exemption applies only to the Honda 

NSS250. 

2. Honda Motor Company, Ltd. is 

hereby granted NHTSA Temporary 

Exemption No. EX–04–2 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 wheel brakes be operable 

through the right foot control. This 

exemption applies only to the Honda 

PS250. This exemption will expire on 

September 1, 2007. 

3. NHTSA Temporary Exemption No. 

EX–2002–3 exempting Piaggio & C. 

S.p.A. and Piaggio 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 September 1, 

2007. This exemption applies only to 

the Vespa ET4. 

4. Piaggio & C. S.p.A. and Piaggio 

USA, Inc. are hereby granted NHTSA 

Temporary Exemption No. EX–04–3 

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 applies only to 

the following Piaggio models: Vespa 

GT200, Piaggio BV200, and the Piaggio 

X9–500. This exemption will expire on 

September 1, 2007. 

5. Yamaha Motor Corporation USA is 

heregy granted NHTSA Temporary 

Exemption No. EX–04–4 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 Yamaha YP–400 

model. The exemption will expire on 

September 1, 2007.

Authority: 49 U.S.C. 30113; delegations of 

authority at 49 CFR 1.50 and 501.4.

Issued on: October 5, 2004. 

Jeffrey W. Runge, 

Administrator.

[FR Doc. 04–22852 Filed 10–8–04; 8:45 am] 

BILLING CODE 4910–59–M