51286 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

1 ‘‘A motorcycle with a motor that produces five 

brake horsepower or less’’ (49 CFR 571.3). 

Column A 

Approved critical uses 

Column B 

Approved critical user and location 

of use 

Column C 

Limiting critical conditions 

(c) Growers and packers who are 

members of the California Date 

Commission, whose facilities are 

located in Riverside County.

With a reasonable expectation that one or more of the following limiting critical conditions exists: rapid fumigation is required to meet a 

critical market window, such as during the holiday season, when a 

buyer provides short (2 days or less) notification for a purchase, or 

there is a short period after harvest in which to fumigate and there 

is limited silo availability for using alternatives. 

[FR Doc. 05–17191 Filed 8–29–05; 8:45 am] 

BILLING CODE 6560–50–U 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–03–15073] 

RIN 2127–AI67 

Federal Motor Vehicle Safety 

Standards; Motorcycle Controls and 

Displays 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), DOT. 

ACTION: Final rule. 

SUMMARY: In this document, we 

(NHTSA) amend the Federal motor 

vehicle safety standard on motorcycle 

controls and displays to require that the 

rear brake control on scooters without a 

clutch be located on the left handlebar. 

In doing so, we have selected the second 

of two alternative proposals that were 

set forth in a notice of proposed 

rulemaking published in November 

2003. This final rule also includes 

requirements for motorcycles with 

single-point (combined) braking for 

supplemental rear brake controls. 

This final rule also makes two 

additional minor changes to the 

standard. The first change removes a 

potentially confusing abbreviation, and 

the second change clarifies 

requirements for motorcycle 

speedometer labeling. 

DATES: This final rule takes effect 

August 30, 2006. Optional compliance 

is available as of August 30, 2005. 

Any petitions for reconsideration of 

today’s final rule must be received by 

NHTSA no later than October 14, 2005. 

ADDRESSES: Petitions for reconsideration 

of today’s final rule should refer to the 

docket number for this action and be 

submitted to: Administrator, National 

Highway Traffic Safety Administration, 

400 Seventh St., SW., Washington, DC 

20590. 

FOR FURTHER INFORMATION CONTACT: 

For non-legal issues, you may call Mr. 

Michael Pyne, Office of Crash 

Avoidance Standards at (202) 366–4171. 

His fax number is (202) 366–7002. 

For legal issues, you may call Ms. 

Dorothy Nakama, Office of the Chief 

Counsel at (202) 366–2992. Her fax 

number is (202) 366–3820. 

You may send mail to both of these 

officials at National Highway Traffic 

Safety Administration, 400 Seventh St., 

SW., Washington, DC, 20590. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What Does FMVSS No. 123 Require at 

Present? 

II. How This Rulemaking Began—Granting 

Vectrix’s Petition 

III. Notice of Proposed Rulemaking (NPRM)—

The Regulatory Alternatives for Rear 

Brake Control Location 

A. Alternative I 

B. Alternative II 

C. Supplemental Rear Brake Controls 

D. Motorcycles With Integrated Brake 

Controls 

1. The Honda Petition for Temporary 

Exemption 

2. Supplemental Controls on Integrated 

Braking Systems 

3. Request for Comments on New 

Developments in Motorcycle Integrated 

Braking Systems 

IV. Comments on the NPRM and NHTSA 

Response 

A. Comments on Alternative I 

1. Public Comments 

2. NHTSA’s Response to the Comments 

B. Comments on Alternative II 

1. Public Comments 

2. NHTSA’s Response to the Comments 

a. ECE Regulation No. 60 Definitions That 

NHTSA Reviewed 

b. Maximum Speed Characteristic 

c. Other Design Characteristics 

d. Need for an Enhanced Scooter Definition 

e. New Step-Through Architecture 

Criterion for Defining Scooters 

Criterion for Defining Scooters 

C. Other Issues 

1. Single-Point (Combined) Braking 

2. Supplemental Rear Brake Controls 

3. Minor Revision to Table 1 

4. Minor Revisions to Table 3 

V. Final Rule 

VI. Leadtime 

VII. Statutory Basis for the Final Rule 

VIII. Regulatory Analyses and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

B. Executive Order 13132 (Federalism) 

C. Executive Order 13045 (Economically 

Significant Rules Affecting Children) 

D. Executive Order 12988 (Civil Justice 

Reform) 

E. Regulatory Flexibility Act 

F. National Environmental Policy Act 

G. Paperwork Reduction Act 

H. National Technology Transfer and 

Advancement Act 

I. Unfunded Mandates Reform Act of 1995 

J. Plain Language 

K. Regulation Identifier Number (RIN) 

Regulatory Text 

I. What Does FMVSS No. 123 Require 

at Present? 

Federal Motor Vehicle Safety 

Standard (FMVSS) No. 123, Motorcycle 

Controls and Displays, specifies 

requirements for the location, operation, 

identification, and illumination of 

motorcycle controls and displays. The 

purpose of FMVSS No. 123 is to 

minimize accidents caused by operator 

error in responding to the motoring 

environment, by standardizing certain 

motorcycle controls and displays. 

Among other requirements, FMVSS 

No. 123 (at S5.2.1, Table 1) requires the 

control for a motorcycle’s rear brakes to 

be located on the right side of the 

motorcycle and be operable by the 

rider’s right foot. Section S5.2.1 at Table 

1 also requires the control for a 

motorcycle’s front brakes to be located 

on the right handlebar. 

Although the rear brake control is 

generally operated by the rider’s right 

foot, FMVSS No. 123 permits a ‘‘motordriven cycle’’ 1 to have its rear brake 

controlled by a lever on the left 

handlebar. FMVSS No. 123 also states 

that, if a motorcycle has an ‘‘automatic 

clutch’’ (i.e., a transmission which 

eliminates the need for a clutch lever) 

and a supplemental rear brake control 

(in addition to the right foot control), 

the supplemental control must be 

located on the left handlebar. If a 

motorcycle is equipped with a single 

control for both the front and rear 

brakes, that control must be located and 

operable in the same manner as a rear 

brake control. 

Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 51287 

II. How This Rulemaking Began—

Granting Vectrix’s Petition 

As described in the notice of 

proposed rulemaking (NPRM) published 

in the Federal Register (68 FR 65667) on 

November 21, 2003, this rulemaking 

began with NHTSA’s decision to grant 

a petition for rulemaking from Vectrix 

Corporation. We granted the petition in 

light of a number of petitions we 

received requesting temporary 

exemption from the rear brake location 

requirement of FMVSS No. 123, i.e., 

temporary exemptions from S5.2.1 

(Table 1) of FMVSS No. 123. These 

petitions have come from manufacturers 

of scooters with automatic 

transmissions and handlebar-mounted 

brake controls, which is a common 

arrangement for scooters sold in Europe, 

Asia, and other parts of the world 

outside of the United States. These 

manufacturers wished to sell their 

scooters in the United States but were 

prevented from doing so by the 

requirement that motorcycles be 

equipped with a right foot control for 

the rear brake. 

NHTSA then focused its discussion 

on the first manufacturer, Aprilia S.p.A. 

of Noale, Italy, to petition for a 

temporary exemption from S5.2.1 (Table 

1) of FMVSS No. 123. For the rear 

brakes, Aprilia’s Leonardo 150 

motorcycle had a left handlebar control, 

not the right foot control specified in 

FMVSS No. 123. Aprilia petitioned to be 

permitted to use the left handlebar as 

the location for the rear brake control for 

the Leonardo 150. The Leonardo’s 150 

cc engine produces more than the five 

horsepower maximum permitted for 

motor-driven cycles, so it was not 

permitted to have its rear brake 

controlled by a lever on the left 

handlebar. 

When NHTSA received Aprilia’s 

petition, there was little current 

information available on motorcycle 

crashes with adequate detail to identify 

relevant issues such as to what extent 

riders’ unfamiliarity with motorcycle 

controls results in crashes. As part of 

our consideration of the petition, we 

reviewed the available studies, and 

concluded that they did not show a 

connection between rear brake control 

location and crashes. Before we granted 

Aprilia’s petition for temporary 

exemption for the Leonardo 150, we 

asked Aprilia to comment on our 

concern that differing rear brake control 

locations may contribute to 

unfamiliarity with a motorcycle’s 

controls and thus degrade a rider’s 

overall braking reaction beyond what 

would exist on a motorcycle with a 

conventionally configured (right foot 

operable) control. 

Aprilia responded by hiring Carter 

Engineering of Franklin, Tennessee, to 

conduct a study comparing braking 

reaction times of riders on an Aprilia 

scooter without a foot brake and a 

conventional scooter with a foot brake. 

The report on that effort, ‘‘Motor Scooter 

Braking Control Study’’ (Report No. CE–

99-APR–05, May 1999), may be 

reviewed at http://dms.dot.gov, Docket 

No. NHTSA–98–4357. 

The Carter Engineering report 

appeared to show that American riders 

do not seem to hesitate in using a left 

handlebar-mounted rear brake control 

and that riders may actually gain some 

benefit in their braking response time. 

Based in part on the Carter Engineering 

study, we granted the Aprilia petition, 

interpreting the Carter Engineering 

report as an indication that the 

Leonardo 150 rider’s braking response 

was not likely to be degraded by the 

different placement of the brake 

controls. 

III. Notice of Proposed Rulemaking 

(NPRM)—The Regulatory Alternatives 

for Rear Brake Control Location 

With the motorcycle crash causation 

studies and Carter Engineering tests as 

background, in a notice of proposed 

rulemaking (NPRM) published on 

November 21, 2003 (68 FR 65667) [DOT 

Docket No. NHTSA–03–15075], we 

proposed two regulatory alternatives for 

the rear brake control location. We 

stated that after considering the 

comments on this proposal, we 

contemplated adopting one of the 

alternatives in the final rule. For a full 

description of each of the proposed 

alternatives, please see the NPRM at 68 

FR pages 65,669 through 65,670. 

A. Alternative I 

As the first alternative, we proposed 

that FMVSS No. 123 would specify two 

brake control configurations. The factor 

determining which of the two 

configurations the motorcycle 

manufacturer must use would be 

dependent on whether the motorcycle is 

equipped with a clutch lever. 

Motorcycles with a clutch lever would 

be required to have the rear brake 

control on the right side operated by the 

rider’s right foot. Motorcycles without a 

clutch lever would be required to have 

the rear brake control on the left 

handlebar and would have the option of 

a supplemental control on the right side 

operated by the rider’s right foot. For the 

front brake control, FMVSS No. 123 

would continue to require a lever on the 

right handlebar in all cases. 

B. Alternative II 

For the second alternative, we 

proposed a regulatory approach for the 

U.S. similar to that specified in 

European countries and in Japan. We 

proposed that FMVSS No. 123 would 

require that scooters without manual 

clutch levers have their rear brake 

control located on the left handlebar. 

This alternative would define ‘‘scooter’’

as a subset of motorcycles. We proposed 

to use the ‘‘platform’’ on a motorcycle 

as the characteristic distinguishing 

‘‘scooters’’ from ‘‘motorcycles.’’ As 

further explained below, the ECE 

regulation allows the left handlebar 

location that we proposed to require 

under this alternative. Specifying the 

left handlebar location for the rear brake 

control would result in greater 

international harmonization. 

We also discussed how scooters can 

be distinguished from other 

motorcycles. First, we noted that 

scooters have a step-through frame 

architecture that leaves the space 

directly in front of the rider’s seat 

largely open to allow the rider to mount 

the seat without having to swing a leg 

over it. In contrast, other motorcycles 

almost always have their gas tanks and 

engines located in the space forward of 

the seat and have rigid frame members 

located there. 

Second, scooters are characterized by 

having platforms or floorboards for the 

rider’s feet built into the body structure. 

The platforms are in contrast to the foot 

pegs used on other motorcycles. Some 

other motorcycles may be equipped 

with individual platforms or floorboards 

for each of the rider’s feet, but the 

individual platforms usually are not 

part of the body structure of the 

motorcycle as are the platforms on a 

scooter. 

We also noted that although they are 

usually smaller than full-sized 

motorcycles, scooters often have engines 

generating more than five horsepower. 

Because their engines may exceed five 

horsepower, scooters may not qualify as 

‘‘motor-driven cycles’’ as defined in 49 

CFR part 571.3. 

We also described how the approach 

taken in the second regulatory 

alternative would achieve a measure of 

international harmonization with 

existing global regulations that has 

previously been lacking. We noted that 

most of the scooter models which have 

been granted exemptions from FMVSS 

No. 123’s rear brake control placement 

requirements are identical to scooter 

models sold in Europe and Japan. 

51288 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

C. Supplemental Rear Brake Controls 

also addressed supplemental rear brake 

controls in the NPRM, noting that under 

the second alternative, the current 

requirement in S5.2.1 (‘‘If a motorcycle 

with an automatic clutch is equipped 

with a supplemental rear brake control, 

the control shall be located on the left 

handlebar.’’) would still be relevant 

because most motorcycles would 

continue to have a right foot pedal to 

control their rear brakes, and a 

supplemental rear brake control would 

be located on the left handlebar if no 

clutch lever was present. However, 

under the second alternative, it would 

be necessary to specify that, if a clutchless scooter has a supplemental rear 

brake control, it must be a right foot 

pedal. 

D. Motorcycles With Integrated Braking 

1. The Honda Petition for Temporary 

Exemption 

We also addressed an issue resulting 

from a request for temporary exemption 

from FMVSS No. 123’s right foot rear 

brake control requirements from 

American Honda Motor Company, Inc. 

for its NSS250 scooter, also called the 

‘‘Reflex.’’ The NSS250 scooter is 

equipped with an integrated braking 

system that replaces the dedicated rear 

brake control with a control connected 

to the rear brake caliper but also to one 

piston of the multi-piston front caliper, 

thus providing partial front brake 

application along with rear brake 

application. In accordance with FMVSS 

No. 123, a separate front brake control 

on the right handlebar activates the 

remaining front caliper pistons. 

At present, FMVSS No. 123 at S5.2.1 

specifies that, if provided, an integrated 

brake control must be located and 

operable in the same manner as a rear 

brake control. This provision addresses 

motorcycles which have only a single 

control for all braking functions, i.e., 

those without separate front and rear 

brake controls. It also addresses systems 

with two separate controls in which one 

of the two is a control that applies 

braking force to both brakes, as in the 

case of the NSS250. 

Under both proposed regulatory 

alternatives, on any motorcycle with a 

manual clutch, the control for an 

integrated brake system would be 

required to be on the right foot pedal 

since that would be the required 

location of the rear brake control. For 

motorcycles without clutches, the first 

alternative would require that a control 

for an integrated brake system be 

located on the left handlebar. Under the 

second alternative, for scooters without 

clutches a control for an integrated 

brake system would be required to be on 

the left handlebar. For all other 

motorcycles without clutches, the 

second alternative would require the 

integrated brake system control to be on 

the right foot pedal. 

On the Honda NSS250, for example, 

the integrated brake system control is in 

effect the rear brake control since the 

integrated system acts primarily on the 

rear brake caliper and is the only rear 

brake control provided. The NSS250 

and other motorcycles with integrated 

braking systems are designed such that 

the motorcycles would be able to 

comply with either regulatory 

alternative. 

2. Supplemental Controls on Integrated 

Braking Systems 

Since a motorcycle could be equipped 

with integrated braking as well as a 

supplemental brake control, it is 

necessary to specify that the 

supplemental control provide the same 

integrated braking effect that is provided 

by the primary rear brake control. 

In cases where the primary control is 

an integrated control, we proposed to 

add the following statement to S5.2.1: 

‘‘The supplemental brake control shall 

provide brake actuation identical to that 

provided by the required control of 

Table 1, Item 11, of this Standard.’’

Because an integrated control may be 

located either on the left handlebar or 

on the right foot pedal depending on 

whether a motorcycle is clutchless (first 

alternative) or is a clutchless scooter 

(second alternative), we believe that it is 

important to make the regulatory text 

clear on this issue. In order to clarify 

that an integrated brake control must be 

located as if it were a rear brake control, 

we proposed to modify the last 

statement in S5.2.1 under both 

regulatory alternatives as follows: ‘‘If a 

motorcycle is equipped with selfproportioning or antilock braking 

devices utilizing a single control for 

front and rear brakes, the control shall 

be located and operable in the same 

manner as a rear brake control, as 

specified in Table 1, Item 11, and in this 

paragraph.’’ (Italicized language is new 

language that would be added to the 

texts of both regulatory alternatives.) 

3. Request for Comments on New 

Developments in Motorcycle Integrated 

Braking Systems 

Since the new type of braking system 

on the NSS250 has generated a high 

level of interest from members of the 

public, the agency sought information 

about alternative configurations for 

motorcycle brake controls and other 

anticipated developments that might 

influence future brake system safety 

requirements. We requested responses 

to six questions and asked for test data, 

crash data, simulation data, or other 

information that would support any 

suggested actions in this area. 

IV. Comments on the NPRM and 

NHTSA’s Response 

NHTSA received comments on the 

NPRM from the following seven parties: 

American Honda Motor Company, Inc. 

(Honda); American Suzuki Motor 

Corporation (Suzuki); Harley-Davidson 

Motor Company (Harley-Davidson), 

International Motorcycle Manufacturers 

Association (IMMA), Peugeot 

Motorcycles of PSA Peugeot Citroen 

(Peugeot); Piaggio USA, Inc., (Piaggio), 

and Yamaha Motor Corporation USA 

(Yamaha). The comments can generally 

be categorized as focusing on two major 

issues: (1) Whether manufacturers 

should have discretion in locating brake 

controls and (2) the definition of 

‘‘scooter.’’ The issues raised in the 

public comments, and NHTSA’s 

response to the comments, are discussed 

below. We have also addressed several 

additional comments, primarily on 

supplemental rear brake controls and on 

motorcycles with integrated braking. 

A. Comments on Alternative I 

1. Public Comments 

Regarding manufacturer choice in 

brake control location, the commenters 

noted that both versions proposed in the 

NPRM (i.e., Alternatives I and II), would 

mandate a particular control 

arrangement. The commenters all stated 

that manufacturers should be given 

some discretion in the arrangement of 

brake controls. The commenters differed 

on the extent to which discretion should 

be provided. For example, Suzuki stated 

that its main concern: 

[I]s that both alternatives would mandate, 

rather than permit, the left handlebar rear 

brake control location for certain 

motorcycles. Suzuki sees no safety benefit in 

prohibiting any motorcycle from using the 

rear brake control location currently required 

by FMVSS No. 123 * * * Suzuki 

recommends that NHTSA adopt a regulatory 

requirement that is based on the first 

proposed alternative, but which permits, 

rather than mandates, the left handlebar 

location for the rear brake control on 

motorcycles without a clutch lever. 

Harley-Davidson stated that 

Alternative I is unacceptable. That 

company does not presently sell 

motorcycles with a transmission 

without a clutch lever. The rear brake 

on Harley-Davidson motorcycles has 

been operated by the right foot pedal on 

all its vehicles since the early 1970’s. 

Harley-Davidson stated that the NPRM 

provided no ‘‘compelling reasons’’ why 

Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 51289 

2 (1) Left hand for rear and right hand for front 

operation of brake control levers; (2) right hand 

front brake operated brake lever and right foot rear 

brake pedal; and (3) left hand rear and right hand 

front operated brake control levers with 

supplemental right foot-operated rear brake pedal. 

the rear brake control location should 

change on the full-sized motorcycle 

offered by Harley-Davidson merely if a 

clutchless transmission motorcycle were 

to be offered for sale. Harley-Davidson 

further stated that the option that a rear 

brake control on clutchless transmission 

motorcycles could be supplemented by 

a second control for the right foot would 

prove ‘‘troublesome,’’ adding 

manufacturing complexity and creating 

differences that are not readily 

discernible between vehicles with and 

without a clutch lever. If HarleyDavidson should market a clutchless 

transmission motorcycle, Alternative I 

would require it to use an arrangement 

of brake controls unlike that on all other 

motorcycles it presently sells, and 

would be unfamiliar to its customers. 

IMMA stated that since 1984, 

manufacturers have been able to choose 

between either a left-hand or right-foot 

location for the rear brake control on 

scooters sold outside the U.S. IMMA 

stated that since it is not aware of any 

study showing a safety problem from 

manufacturers having a choice in the 

rear brake control location, 

manufacturers should continue to be 

free ‘‘to select whichever control layout 

best suits their vehicle concept.’’

Piaggio noted that the ECE regulation 

permits either the left hand or the right 

foot placement for the rear brake 

control. Piaggio stated: 

[M]any examples can be found of vehicles 

adopting both of the aforementioned 

configurations. To our knowledge, we are not 

aware of any study, which has shown that 

this particular policy has caused operator 

confusion or compromised safety in any way. 

On the other hand our experience has shown 

that whenever a rider is presented with a 

new scooter, he/she rapidly adapts him/ 

herself to the riding characteristics and input 

requirements of the new bike. It is therefore 

our opinion that the manufacturer should be 

allowed to adopt the layout which best 

satisfies the technical requirements for the 

vehicle. 

Yamaha did not specify whether it 

favored Alternatives I or II, but 

recommended three possible 

arrangements for motorcycle brake 

controls which were the most common 

ones.2 Yamaha stated that a 

manufacturer should be able to select 

any of the three at its discretion for any 

clutchless motorcycle. Peugeot went 

further, listing virtually every possible 

permutation of brake control 

arrangement, and indicating which 

arrangements it believes should be 

deemed acceptable, and which should 

be prohibited. 

Honda stated that Alternative I, which 

would create distinctions between 

motorcycles with and without clutch 

controls, would: 

[C]reate a condition where a single 

motorcycle * * * offered with both manual 

and automatic transmission would have 

different locations for the rear brake controls. 

Being similar in every other way, this 

difference in rear brake control location 

could lead to rider confusion if an individual 

were to ride both versions of this model. 

Honda concluded that based on the 

background of FMVSS No. 123 (to 

minimize confusion among motorcycle 

riders, caused by varying locations of 

brake and clutch controls from one 

manufacturer to another), mandating 

exceptions to the layout (depending on 

whether there is a clutch), will result in 

more variations from this arrangement, 

which ‘‘could lead to a greater number 

of crashes caused by critical confusion 

of riders.’’

2. NHTSA’s Response to the Comments 

In responding to comments on the 

issue of manufacturer discretion in 

determining rear brake control location, 

we begin by noting that no commenter 

presented any kind of crash data, 

research studies, or other quantitative 

information to support their arguments. 

Although there may not be any studies 

showing a safety problem in European 

or Asian countries where manufacturers 

are allowed to choose either brake 

control arrangement, and where similar 

motorcycles with different controls may 

co-exist, the absence of research is not 

the same as positive evidence of the lack 

of a safety effect. Therefore, the public 

comments have not persuaded us to 

permit manufacturer choice in rear 

brake control location. 

We further note that not all 

commenters agreed on how much 

choice should be provided. For 

example, Harley-Davidson did not 

support differing rear brake control 

location requirements, depending on 

whether the motorcycle had a clutch. 

Honda did not recommend a choice of 

brake control location for non-scooter 

motorcycles, stating that non-scooter 

motorcycles should not be allowed to 

have a rear brake control on the left 

handlebar. 

Some commenters, in particular 

Honda and Harley-Davidson, objected to 

the possibility of non-scooter 

motorcycles that they manufacture 

being equipped with left hand controls 

for their rear brakes under any 

circumstances, i.e., they did not voice 

support for Alternative I. We agree that 

such an arrangement would be 

markedly different from existing 

motorcycles and would be counter to 

the objective of standardization. While 

there is only one manufacturer (Ridley 

Motorcycle Company of Oklahoma City) 

currently marketing non-scooter 

motorcycles with automatic 

transmissions in the U.S., additional 

motorcycles of that kind might become 

available in the near future. 

FMVSS No. 123 was established to 

standardize motorcycle controls and 

displays, reducing the possibility of 

unfamiliarity with controls from 

contributing to motorcycle crashes. 

When NHTSA adopted FMVSS No. 123 

in the early 1970’s, the layout of 

controls specified in FMVSS No. 123 

was that used by the overwhelming 

majority of motorcycles sold in the U.S. 

at that time. The layout included a lever 

on the right handlebar for the front 

brake, and a foot control on the right 

side for the rear brake. 

Currently, our main objective in 

amending FMVSS No. 123 is to address 

the industry trend towards rear brake 

control placement on the left handlebar 

on certain motorcycles, resulting in 

many requests for temporary exemption, 

so that those motorcycles can comply 

with the rear brake control location 

requirements without redesign. At the 

same time, NHTSA believes there must 

be continued attention on maintaining 

standardization, which is the 

foundation of FMVSS No. 123. For these 

reasons, NHTSA is reluctant to consider 

amendments that reduce 

standardization of the controls and 

displays of similar motorcycles. 

Therefore, we decline to implement 

the left hand rear brake control location 

as an optional location to the existing 

right foot location. Permitting 

manufacturers to choose between two 

different arrangements could result in 

similar or even identical clutchless 

motorcycles having different rear brake 

controls. While some commenters 

asserted that such an outcome would 

not have any safety consequences, 

without probative data, we continue to 

believe that the goal of standardization 

is better served if FMVSS No. 123 

specifically requires one brake control 

arrangement over another. Thus, this 

final rule makes the left hand rear brake 

control a requirement, not an option, on 

certain motorcycles. 

In summary, we have decided to 

amend FMVSS No. 123 so that scootertype motorcycles with automatic 

transmissions (i.e., scooters without a 

clutch) are required to have a left hand 

rear brake control. Non-scooter 

motorcycles are not subject to any new 

or different requirements. In the next 

51290 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

section, ‘‘Definition of a Scooter,’’ we 

discuss our decision to adopt the 

regulatory text of Alternative II (in the 

NPRM), so that the left hand rear brake 

control is required only on ‘‘scooters’’ as 

defined in the regulatory text, and not 

on clutchless non-scooter motorcycles. 

B. Comments on Alternative II 

1. Public Comments 

The second major issue in this 

rulemaking is the proposed definition in 

Alternative II for ‘‘scooter.’’ As 

discussed in the NPRM, NHTSA derived 

the definition of ‘‘scooter’’ from the 

regulatory text of United Nations ECE 

Regulation No. 60, Addendum 59. 

Honda favored Alternative II, but 

several commenters stated that 

NHTSA’s proposed definition was 

ambiguous and would lead to difficulty 

in interpreting the Standard. 

Harley-Davidson stated that the 

proposed definition is ‘‘troublesome’’

and needs to make clear that nonscooter motorcycles are not included. 

Harley-Davidson stated that if NHTSA is 

to define ‘‘scooter,’’ it needs to use 

terms that are ‘‘unambiguous and clear.’’

Suzuki stated that the ‘‘scooter’’

definition ‘‘could quickly become 

outdated as motorcycle designs 

continue to evolve.’’

IMMA described the deliberations 

that went on during the development of 

ECE Regulation No. 60, recounting that 

a debate had occurred among the 

attendant parties over whether a 

‘‘scooter’’ category should be defined. 

IMMA stated that the argument in favor 

of defining ‘‘scooter’’ was that typical 

scooters were a type of motorcycle 

which had particular features to make 

them appropriate for new riders 

uninterested in non-scooter 

motorcycles. 

IMMA stated that the arguments 

against defining ‘‘scooter’’ were: It 

would cut across existing categories, 

i.e., moped and motorcycle, in ECE 

regulations; a practical definition is 

difficult to develop; and such an 

approach is design-based rather than 

performance-based. IMMA further 

stated: 

The outcome of these discussions was a 

compromise which was designed to unblock 

the discussion and yet increase the freedom 

for the manufacturer to provide new vehicles, 

which were designed to attract a new class 

of customer. Hence, the Regulation [ECE 

Regulation] refers to both the absence of a 

clutch and to footrests integrated into a 

platform. 

Piaggio urged the agency to abandon 

its attempt to categorize ‘‘scooters’’ and 

instead to adopt a definition that used 

functional characteristics, such as 

whether the motorcycle has pedals for 

propulsion or a manual versus 

automatic transmission. 

Honda recommended adopting 

Alternative II, but with appropriate 

revision to allow, but not require, a left 

handle bar-mounted rear brake control 

instead of the right foot control. Honda 

stated that this would ‘‘permit more 

freedom of design in the event future 

developments lead to designs that 

advance safety beyond current levels.’’

However, Honda also stated its concern 

that ‘‘the line between scooter and 

motorcycle will continue to blur’’ as 

new scooters acquire more of the 

features associated with non-scooter 

motorcycles. Honda stated that a 

‘‘scooter’’ definition must therefore be 

clear in prohibiting a non-scooter 

motorcycle from having a left hand rear 

brake control. Honda stated that such a 

design would be contrary to convention 

and would introduce the potential for 

‘‘critical confusion’’ of controls. Honda 

stated: ‘‘We discourage allowing this 

design at all for fear of the potential 

safety hazards, and have no current 

plans of selling a motorcycle with such 

a configuration.’’

Some commenters stated that a 

separate definition of ‘‘scooter’’ would 

not serve the interests of global 

harmonization of motor vehicle safety 

standards. IMMA and Piaggio both 

indicated that a U.S. regulation with a 

‘‘scooter’’ category would complicate 

harmonization efforts under the 1998 

Global Agreement at Geneva which has 

the intended purpose of influencing 

signatory nations to make their 

corresponding standards as alike as 

possible when amending them. Honda 

on the other hand, stated that 

Alternative II would more closely align 

FMVSS No. 123 with impending 

changes to ECE Regulation No. 60, that 

are ‘‘due this calendar year.’’ Honda 

requested FMVSS No. 123 to allow the 

same latitude in design for scooters as 

ECE 60 allows. 

2. NHTSA’s Response to the Comments 

In responding to the comments on the 

definition of ‘‘scooter,’’ we begin by 

noting that there is no regulatory or 

statutory definition in U.S. motor 

vehicle safety laws or regulations, nor 

any voluntary industry standard, to 

distinguish scooters from other 

motorcycles. In our attempt to define 

‘‘scooter,’’ we have reviewed the most 

relevant current regulation, United 

Nations ECE Regulation No. 60, 

Addendum 59, which is the basis for 

national regulations concerning 

motorcycle controls in many European 

countries and Japan. The following 

sections discuss issues considered by 

NHTSA in its consideration of a 

‘‘scooter’’ definition. 

a. ECE Regulation No. 60 Definitions 

That We Reviewed 

ECE Regulation No. 60 does not 

define ‘‘scooter’’ but refers in paragraph 

6.2.2.2 to ‘‘vehicles equipped with a 

platform or footrests integrated into a 

platform * * * [Emphasis added.]’’ ECE 

Regulation No. 60 allows a vehicle of 

that description, i.e., a scooter, to have 

its rear brakes controlled by a lever on 

the left handlebar if it has an automatic 

transmission. This arrangement is 

allowed unless the scooter is also a 

moped, in which case it is required. If 

the motorcycle has a manual 

transmission, it must have a foot pedal 

on the right side for the rear brake. 

ECE Regulation No. 60 defines 

‘‘platform’’ (one of the attributes of a 

‘‘scooter’’ proposed in NHTSA’s NPRM) 

as: ‘‘that part of the vehicle on which 

the driver places his feet, when seated 

in the normal driving position, in the 

case that the vehicle is not equipped 

with riding pedals or footrests for the 

driver.’’ The term ‘‘riding pedals’’ refers 

to the pedals on mopeds used for 

human-powered propulsion. 

‘‘Footrests’’ are defined in the ECE 

standard as ‘‘the projections on either 

side of the vehicle on which the driver 

places his feet when seated in the 

driving position.’’ Footrests are usually 

in the form of foot pegs, although many 

motorcycles use small platforms which 

are mounted like foot pegs but are 

elongated to support the entire foot. 

b. Maximum Speed Characteristic 

We noted in the NPRM that ECE 

Regulation No. 60 limits the use of a left 

handlebar lever for the rear brake to 

motorcycles which, in addition to 

having a platform, ‘‘have a maximum 

design speed not exceeding 100 km/h.’’

Modern, clutch-less scooters almost 

universally have their rear brake control 

located on the left handlebar even if 

they can exceed 100 km/h because 

directives of the individual nations 

where most scooters are sold do not 

adhere to the 100 km/h maximum speed 

limit of the ECE regulation. We also 

noted that most of the scooter/ 

motorcycles (intended to be sold in the 

U.S) granted exemptions from FMVSS 

No. 123 brake control placement are 

capable of exceeding 100 km/h (62 

mph). Ultimately, this inconsistency 

means that a speed-based definition was 

not likely to be practical. 

c. Other Design Characteristics 

In the past, scooters could be 

distinguished from non-scooter 

motorcycles by a number of design 

Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 51291 

3We acknowledge that some motorcycles, and in 

particular, one popular model of touring bike, have 

a storage compartment in place of the fuel tank, the 

latter being located under the seat; nevertheless, in 

overall appearance and layout, they are essentially 

like non-scooter motorcycles. 

4Except for some three-wheeled models with 

enclosed cabins similar in function to an 

automobile. 

characteristics. For example, scooters 

were generally smaller in overall size 

and engine displacement, were lighter, 

and had smaller wheels. For scootertype motorcycles today, many of those 

distinctions are no longer universal. The 

largest scooters are now as big and 

heavy as non-scooter motorcycles, with 

equal or greater engine displacement 

and wheel size. In addition, scooters 

often have engines in excess of five 

horsepower, and so do not qualify as 

motor-driven cycles by the definition in 

49 CFR 571.3. Scooters with engines in 

excess of five horsepower is the reason 

why many modern scooters have had to 

be exempted from FMVSS No. 123 

requirements, and why this rulemaking 

is necessary. 

d. Need for an Enhanced Scooter 

Definition 

The regulatory text of Alternative II in 

the NPRM, which is the basis for the 

final rule, was derived in large part from 

ECE Regulation No. 60, but focuses on 

the ‘‘platform’’ characteristic instead of 

the maximum speed characteristic. 

Scooters are generally characterized by 

having a continuous platform or 

floorboard, or right and left floorboards, 

built into their body structures, or some 

other built-in accommodation for the 

operator’s feet. This contrasts with the 

foot pegs used on non-scooter 

motorcycles. 

As earlier indicated, several 

commenters, expressing dissatisfaction 

with the NPRM definition, indicated a 

potential for misunderstanding about 

how some motorcycles should be 

classified, due to crossover models 

between the scooters and non-scooter 

motorcycles. NHTSA has recognized 

that many non-scooter motorcycles are 

now equipped with individual platformstyle footrests for each of the rider’s feet. 

Although such footrests are not usually 

part of the body structure of the 

motorcycle (as they typically are on a 

scooter), we recognized the potential for 

confusion. 

e. New Step-Through Architecture 

Criterion for Defining Scooters 

Because it is critical that ‘‘scooter’’ be 

defined as accurately as possible, we 

have decided it is appropriate to add an 

additional criterion in this final rule to 

distinguish between scooters and nonscooter motorcycles. As discussed in the 

NPRM, we note that scooters can be 

differentiated from other motorcycles by 

the step-through frame architecture that 

leaves the space directly in front of the 

operator’s seat largely open, allowing 

the rider to mount the seat by stepping 

through the scooter, rather than having 

to swing a leg over it. The scooter 

configuration also provides the operator 

with room to adjust his or her leg 

position for comfort. In contrast, for 

non-scooter motorcycles, the engine and 

fuel tank occupy the space forward of 

the seat, and there are usually rigid 

frame members located in the space 

forward of the seat.3

Although traditional scooter 

construction adheres closely to this 

step-through architecture, some modern 

scooters have become more like nonscooter motorcycles. Still, on all 

scooters of which NHTSA is aware, the 

section of the vehicle forward of the seat 

that is between the operator’s legs is 

always lower than the seat itself. In 

contrast, the corresponding part of a 

non-scooter motorcycle is higher than 

the seat in all models that we have 

observed. We believe this difference 

provides another obvious way to 

distinguish between scooters and other 

motorcycle types. 

Therefore, in response to NPRM 

comments, we have added regulatory 

language referring to the step-through 

architecture characteristic to enhance 

the proposed S4 ‘‘scooter’’ definition. 

The final rule’s definition now reads as 

follows (the italicized text has been 

added to the definition that was 

proposed in the NPRM): 

‘‘Scooter’’ means a motorcycle that (1) has a 

platform for the operator’s feet or has 

integrated footrests, and (2) has a stepthrough architecture meaning that the part of 

the vehicle forward of the operator’s seat and 

between the legs of an operator seated in the 

riding position is lower in height than the 

operator’s seat. 

NHTSA notes that under this 

expanded definition, a motorcycle must 

have both platforms and the stepthrough characteristics in order to be 

considered a ‘‘scooter.’’ Thus, this 

definition will allow for easier 

differentiation between scooters and 

other types of motorcycles. NHTSA 

believes the definition presented in this 

final rule ensures that all existing 

scooter designs can be adequately 

differentiated. 

C. Other Issues 

1. Single-Point (Combined) Braking 

In response to the NPRM, Honda 

reiterated ‘‘our strongly held belief that 

a single-point control for a combined 

braking system must be located in one 

or the other of the current locations—

either on the right handlebar or for 

operation by the right foot.’’ HarleyDavidson stated that it does not offer 

motorcycles with single-point braking 

for sale, and had no opinion on where 

the single brake control on such 

motorcycles should be located. 

However, it urged caution, noting that 

FMVSS No. 123 at present 

‘‘contemplates offering’’ a single brake 

control, operated by the right foot. 

Harley-Davidson stated it was not aware 

of any motorcycles using a single-point 

brake control.4 Harley-Davidson also 

noted that although one may use the left 

foot on a car’s brakes if necessary, that 

would not be possible on a motorcycle. 

After considering the comments, in 

this final rule, we have decided not to 

amend the S5.2.1 requirement for 

motorcycles with combined brake 

systems and for manual transmission 

scooters with combined brake systems. 

Both types of motorcycles with 

combined brake systems will continue 

to have their single-point control 

located at the right foot. 

For clutchless scooters, however, this 

final rule requires that a single-point 

control for a combined brake system be 

located on the left handlebar. In its 

comments, Honda asserted that a singlepoint control should be located on the 

right side. However, NHTSA believes 

that a single-point control on the left 

handlebar is acceptable for the 

following reason. On a clutchless 

scooter with combined braking, the 

operator would be freed from the task of 

shifting gears and of controlling front 

and rear brakes separately. Therefore, 

the driving task would be reduced to 

throttling with the right hand and 

braking with the left. It is NHTSA’s 

belief that such inherently 

uncomplicated operation would 

safeguard the operator from confusion 

over controls. 

In order to further clarify that a singlepoint brake control must be located as 

if it were a rear brake control, NHTSA 

has modified the last statement in S5.2.1 

as follows (new text italicized): 

If a motorcycle is equipped with selfproportioning or antilock braking devices 

utilizing a single control for front and rear 

brakes, the control shall be located and 

operable in the same manner as a rear brake 

control, as specified in Table 1, Item 11, and 

in this paragraph. 

2. Supplemental Rear Brake Controls 

In response to the NPRM, Honda 

stated its view that the right foot 

activated rear brake control is primary, 

and the left hand control for the rear 

51292 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

brake is supplemental. Honda stated 

that its preferred control location is 

more in keeping with FMVSS No. 123 

in its current form, and ‘‘is more 

supportive of the consistent location of 

brake controls.’’ No other commenter 

provided views on this issue. 

After considering Honda’s comment 

(which essentially recommended 

maintaining the status quo), with regard 

to supplemental rear brake controls, 

under this final rule, we have decided 

that all non-scooter motorcycles will 

continue to have right foot pedal control 

of their rear brakes, and a supplemental 

rear brake control would be located on 

the left handlebar if no clutch lever 

were present, as the standard currently 

requires. 

However, it is necessary to specify 

that, on a clutch-less scooter with a 

supplemental rear brake control, that 

control must be located at the right foot 

pedal. This change is reflected in S5.2.1 

of the regulatory language of the final 

rule. 

To ensure that a supplemental brake 

control provides the same braking 

function as a primary rear brake control 

in cases where the primary control is a 

single-point control, NHTSA has added 

the following statement to the regulatory 

text: ‘‘The supplemental brake control 

shall provide brake actuation identical 

to that provided by the required control 

of Table 1, Item 11, of this Standard.’’

3. Minor Revision to Table 1 

In three places in Column 2 of Table 

1 of FMVSS No. 123, the abbreviation 

‘‘do.’’, a shortening of ‘‘ditto,’’ is used to 

indicate that the previous entry in the 

column is repeated. The text that is 

replaced by the abbreviation is ‘‘Left 

handlebar’’ in the first instance where 

the abbreviation appears, and ‘‘Right 

handlebar’’ in the two subsequent 

instances. This abbreviation is 

potentially confusing, and it is also 

unnecessary since the replaced text can 

be expressed in full without difficulty. 

Therefore, in this final rule, in Table 1, 

the ‘‘do.’’ abbreviation is replaced with 

the full text, ‘‘Left handlebar’’ or ‘‘Right 

handlebar’’ as appropriate. The revised 

regulatory text in Table 1 is that of 

Column 2, Items 4, 9, and 10. 

4. Minor Revisions to Table 3 

Motorcycle manufacturers or 

importers have asked NHTSA whether 

motorcycle speedometers in the U.S. 

must indicate speed in miles per hour, 

or if kilometers per hour suffices. 

‘‘Motorcycle Control and Display 

Identification Requirements’’ are listed 

in Table 3 of FMVSS No. 123 and 

include speedometer labeling 

specifications. A potential source of 

confusion about speedometer labeling 

appears to be that Item 8 in Table 3 lists 

‘‘M.P.H.’’ and ‘‘km/h’’ to denote the 

required display units. For comparison, 

FMVSS No. 101, which in Table 2 has 

corresponding requirements for 

passenger vehicles, lists ‘‘MPH’’ and 

‘‘MPH and km/h’’ to denote the required 

display units. As with FMVSS No. 101 

for passenger vehicles, FMVSS No. 123 

is meant to require motorcycle 

speedometers in the United States to 

read in either miles per hour alone or 

in miles per hour with kilometers per 

hour. The rulemaking history of FMVSS 

No. 123 makes clear that NHTSA never 

intended to allow a motorcycle 

speedometer to read only in kilometers 

per hour. 

In order to minimize any confusion 

about motorcycle speedometer labeling, 

we are making the following minor 

revision to Table 3 of FMVSS No. 123. 

In Columns 2 and 4, the display 

specifications for ‘‘Speedometer’’ (Item 

No. 8) are modified as follows (changes 

indicated in bold text): 

MOTORCYCLE CONTROL AND DISPLAY IDENTIFICATION REQUIREMENTS

No. Column 1 

Equipment 

Column 2 

Control and Display Identification Word 

Column 3 

Control and Display Identification Symbol 

Column 4 

Identification at Appropriate 

Position of Control and Display 

* * * * * * * 

8 Speedometer MPH or 

MPH, km/h 

llllllllllll MPH 4

MPH, km/h 5

In addition, in No. 5, ‘‘Headlamp 

Upper-Lower Beam Control,’’ Column 4 

is corrected to read ‘‘Hi, Lo’’. All other 

items in Table 3 and associated 

footnotes remain unchanged. 

V. Final Rule 

As discussed in the previous sections, 

in this final rule, we adopt Alternative 

II proposed in the NPRM, and define a 

‘‘scooter’’ category that is different from 

other motorcycles. In addition to the 

feature of platforms proposed in the 

NPRM, in this final rule, we add the 

feature of the step-through architecture, 

so the scooter definition consists of two 

parts, a motorcycle that has (1) a 

platform for the operator’s feet or has 

integrated footrests, and (2) has a stepthrough architecture, meaning that the 

part of the vehicle forward of the 

operator’s seat and between the legs of 

an operator seated in the riding position 

is lower in height than the operator’s 

seat. Scooters with automatic 

transmissions (i.e., motorcycles without 

a clutch) are required to have a left hand 

rear brake control. 

In this final rule, FMVSS No. 123 

continues to require non-scooter 

motorcycles with combined brake 

systems, and to require manual 

transmission scooters with combined 

brake systems, to have their single-point 

control be located at the right foot, the 

required location for the rear brake 

control. For clutchless scooters, 

however, this final fule requires that a 

single-point control for a combined 

brake system be located on the left 

handlebar. 

With regard to supplemental rear 

brake controls, under this final rule, all 

non-scooter motorcycles will continue 

to have right foot pedal control of their 

rear brakes, and a supplemental rear 

brake control would be located on the 

left handlebar if no clutch lever were 

present, as the standard currently 

requires. On a clutchless scooter with a 

supplemental rear brake control, that 

control must be located at the right foot 

pedal. 

Finally, we have made minor changes 

to Tables 1 and 3. 

VI. Leadtime 

In the NPRM, we proposed to make 

the amendments effective 12 months 

after the final rule is published, but to 

allow optional early compliance 30 days 

after the final rule is published. We 

stated our belief that because this 

proposal would permit controls for rear 

motorcycle brakes to be placed on left 

motorcycle handlebars, a regulatory 

restriction would be lifted, and 

motorcycles that do not presently meet 

FMVSS No. 123 would be permitted. All 

Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 51293 

5 ‘‘A motorcycle with a motor that produces five 

brake horsepower or less’’ (49 CFR section 571.3). 

other existing motorcycles would also 

meet the provisions of the proposed 

rule. 

Except for Honda’s recommending 

‘‘early compliance’’ with the final rule, 

urging us to make the final rule effective 

as soon as possible, we received no 

comments on the leadtime issue. Thus, 

as NHTSA proposed in the NPRM, this 

final rule takes effect one year after the 

date of publication in the Federal 

Register. Optional compliance is 

available as of the date of publication of 

this final rule in the Federal Register. 

VII. Statutory Basis for the Final Rule 

We have issued this final rule 

pursuant to our statutory authority. 

Under 49 U.S.C. Chapter 301, Motor 

Vehicle Safety (49 U.S.C. 30101 et seq.), 

the Secretary of Transportation is 

responsible for prescribing motor 

vehicle safety standards that are 

practicable, meet the need for motor 

vehicle safety, and are stated in 

objective terms. 49 U.S.C. 30111(a). 

When prescribing such standards, the 

Secretary must consider all relevant, 

available motor vehicle safety 

information. 49 U.S.C. 30111(b). The 

Secretary must also consider whether a 

proposed standard is reasonable, 

practicable, and appropriate for the type 

of motor vehicle or motor vehicle 

equipment for which it is prescribed 

and the extent to which the standard 

will further the statutory purpose of 

reducing traffic accidents and deaths 

and injuries resulting from traffic 

accidents. Id. Responsibility for 

promulgation of Federal motor vehicle 

safety standards was subsequently 

delegated to NHTSA. 49 U.S.C. 105 and 

322; delegation of authority at 49 CFR 

1.50. 

As a Federal agency, before 

promulgating changes to a Federal 

motor vehicle safety standard, NHTSA 

also has a statutory responsibility to 

follow the informal rulemaking 

procedures mandated in the 

Administrative Procedure Act at 5 

U.S.C. Section 553. Among these 

requirements are Federal Register 

publication of a general notice of 

proposed rulemaking, and giving 

interested persons an opportunity to 

participate in the rulemaking through 

submission of written data, views or 

arguments. After consideration of the 

public comments, we must incorporate 

into the rules adopted, a concise general 

statement of the rule’s basis and 

purpose. 

The agency has carefully considered 

these statutory requirements in 

promulgating this final rule to amend 

FMVSS No. 123. As previously 

discussed in detail, we have solicited 

public comment in an NPRM and have 

carefully considered the public 

comments before issuing this final rule. 

As a result, we believe that this final 

rule reflects consideration of all relevant 

available motor vehicle safety 

information. Consideration of all these 

statutory factors has resulted in the 

following decisions in this final rule. 

At present, FMVSS No. 123 requires 

the control for a motorcycle’s rear 

brakes to be located on the right side of 

the motorcycle and be operable by the 

rider’s right foot. FMVSS No. 123 

requires the control for a motorcycle’s 

front brakes to be located on the right 

handlebar. For rear brakes on a ‘‘motordriven cycle 5,’’ FMVSS permits the 

control on the left handlebar. If a 

motorcycle has an automatic clutch 

(eliminating the need for a clutch lever) 

and a supplemental rear brake control 

(in addition to the right foot control), 

the supplemental control must be 

located on the left handlebar. Finally, if 

a motorcycle is equipped with a single 

control for both the front and rear 

brakes, that control must be located and 

operable in the same manner as a rear 

brake control. 

Since 1999, we have granted several 

petitions for temporary exemption from 

the brake control location requirements. 

These petitions have come from 

manufacturers of scooters with 

automatic transmissions (without clutch 

levers) and handlebar-mounted brake 

controls, which is a common 

arrangement outside of the United 

States. These manufacturers could not 

sell their scooters in the U.S. because 

the scooters could not meet the 

requirement that motorcycles be 

equipped with a right foot control for 

the rear brake. We reviewed a study that 

American riders do not appear to 

hesitate in using a left handlebarmounted rear brake control and that 

riders benefit in their braking response 

time. 

In the NPRM, we proposed to amend 

FMVSS No. 123 by proposing two 

regulatory alternatives for the location 

of the rear brake control. The first 

alternative would require the rear brake 

control to be located on the left 

handlebar for any motorcycle that lacks 

a clutch, regardless of the motorcycle’s 

configuration. The second alternative 

would require the left handlebar 

location only for clutchless motorcycles 

that are ‘‘scooters,’’ a newly defined 

subset of motorcycles. Under either 

alternative, all other motorcycles would 

meet present FMVSS No. 123 rear brake 

location requirements that the rear brake 

is operated by a right foot control. 

In general, the public comments 

stated that manufacturers should be 

given some discretion in the 

arrangement of brake controls. In 

response to the comments, we reiterated 

that FMVSS No. 123 was established to 

reduce the possibility of unfamiliarity 

with controls contributing to motorcycle 

crashes. When NHTSA adopted FMVSS 

No. 123 in the early 1970’s, the layout 

of controls specified in FMVSS No. 123 

was that used by the overwhelming 

majority of motorcycles sold in the U.S. 

at that time. The layout included a lever 

on the right handlebar for the front 

brake, and a foot control on the right 

side for the rear brake. 

Our current objective is to address the 

industry trend towards rear brake 

control placement on the left handlebar 

on certain motorcycles, resulting in 

many petitions for temporary 

exemption, so that those motorcycles 

can comply with the rear brake control 

location requirements without redesign. 

At the same time, we believed there 

must be continued attention to 

maintaining standardization, which is 

the foundation of FMVSS No. 123. 

Thus, we were reluctant to consider 

amendments that reduce 

standardization for similar vehicles. 

Therefore, we decided not to 

implement the left hand rear brake 

control location as an optional location 

to the existing right foot location. 

Permitting manufacturers to choose 

between two different arrangements 

could result in similar or even identical 

clutchless motorcycles having different 

rear brake controls. While some 

commenters asserted that such an 

outcome would not have any safety 

consequences, without probative data, 

we continue to believe that the goal of 

standardization is better served if 

FMVSS No. 123 specifically requires 

one brake control arrangement over 

another. Thus, this final rule makes the 

left hand rear brake control a 

requirement, not an option, on certain 

motorcycles. 

In summary, we have decided to 

amend FMVSS No. 123 so that scootertype motorcycles with automatic 

transmissions (i.e., motorcycles without 

a clutch) are required to have a left hand 

rear brake control. Non-scooter 

motorcycles need not meet any new or 

different requirements. 

As indicated, we have thoroughly 

reviewed the public comments and 

amended the final rule to reflect the 

comments, consistent with meeting the 

need for safety. We believe that this 

final rule meets the need for safety. 

51294 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

VIII. Regulatory Analyses and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ (58 FR 51735, 

October 4, 1993), provides for making 

determinations whether a regulatory 

action is ‘‘significant’’ and therefore 

subject to Office of Management and 

Budget (OMB) review and to the 

requirements of the Executive Order. 

The Order defines a ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

We have considered the impact of this 

rulemaking action under Executive 

Order 12866 and the Department of 

Transportation’s regulatory policies and 

procedures. This rulemaking document 

was not reviewed by the Office of 

Management and Budget under E.O. 

12866, ‘‘Regulatory Planning and 

Review.’’ The rulemaking action is also 

not considered to be significant under 

the Department’s Regulatory Policies 

and Procedures (44 FR 11034; February 

26, 1979). 

For the following reasons, we have 

concluded that this final rule will not 

have any cost effect on motor vehicle 

manufacturers. This rule will have no 

substantive effect on motorcycles that 

are already manufactured for the U.S. 

market, and will facilitate the import of 

motorcycles that do not meet present 

requirements for the location of 

motorcycle rear brake controls. This 

final rule will have a slight economic 

benefit to manufacturers of the import 

motorcycles, which will now not have 

to design and build separate 

motorcycles for the U.S. market and for 

Europe and Japan. 

Because the economic impacts of this 

rule are so minimal, no further 

regulatory evaluation is necessary. 

B. Executive Order 13132 (Federalism) 

Executive Order 13132 requires us to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ is 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, we may not issue a 

regulation with federalism implications, 

that imposes substantial direct 

compliance costs, and that is not 

required by statute, unless the Federal 

Government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or unless we consult with 

State and local governments, or unless 

we consult with State and local officials 

early in the process of developing the 

proposed regulation. We also may not 

issue a regulation with federalism 

implications and that preempts State 

law unless we consult with State and 

local officials early in the process of 

developing the proposed regulation. 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. The reason is 

that this final rule applies to motorcycle 

manufacturers, not to the States or local 

governments. Thus, the requirements of 

Section 6 of the Executive Order do not 

apply. 

C. Executive Order 13045 (Economically 

Significant Rules Affecting Children) 

Executive Order 13045 (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under E.O. 

12866, and (2) concerns an 

environmental, health or safety risk that 

NHTSA has reason to believe may have 

a disproportionate effect on children. If 

the regulatory action meets both criteria, 

we must evaluate the environmental 

health or safety effects of the planned 

rule on children, and explain why the 

planned regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives considered by us. 

This rule is not subject to the 

Executive Order because it is not 

economically significant as defined in 

E.O. 12866 and does not involve 

decisions based on environmental, 

health or safety risks that 

disproportionately affect children. This 

final rule makes changes affecting only 

motorcycle manufacturers. Many States 

do not permit children under 18 years 

of age to be licensed to drive 

motorcycles, or to be passengers on 

motorcycles. 

D. Executive Order 12988 (Civil Justice 

Reform) 

Pursuant to Executive Order 12988, 

‘‘Civil Justice Reform,’’ we have 

considered whether this rule will have 

any retroactive effect. We conclude that 

it will not have such an effect. 

Under 49 U.S.C. 30103, whenever a 

Federal motor vehicle safety standard is 

in effect, a State may not adopt or 

maintain a safety standard applicable to 

the same aspect of performance which 

is not identical to the Federal standard, 

except to the extent that the state 

requirement imposes a higher level of 

performance and applies only to 

vehicles procured for the State’s use. 49 

U.S.C. 30161 sets forth a procedure for 

judicial review of final rules 

establishing, amending or revoking 

Federal motor vehicle safety standards. 

That section does not require 

submission of a petition for 

reconsideration or other administrative 

proceedings before parties may file suit 

in court. 

E. Regulatory Flexibility Act 

Pursuant to the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq., as amended by 

the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996) whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small governmental 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of an agency certifies the rule 

would not have a significant economic 

impact on a substantial number of small 

entities. SBREFA amended the 

Regulatory Flexibility Act to require 

Federal agencies to provide a statement 

of the factual basis for certifying that a 

rule would not have a significant 

economic impact on a substantial 

number of small entities. 

The Agency Administrator considered 

the effects of this rulemaking action 

under the Regulatory Flexibility Act (5 

U.S.C. § 601 et seq.) and certifies that 

this final rule will not have a significant 

economic impact on a substantial 

Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 51295 

number of small entities. The factual 

basis for this certification is that this 

final rule will have no effect on small 

U.S. motorcycle manufacturers. The 

small manufacturers already 

manufacture motorcycles that meet the 

present motorcycle rear brake control 

requirements and that meet this final 

rule’s amendments to the rear brake 

control requirements 

F. National Environmental Policy Act 

We have analyzed this final rule for 

the purposes of the National 

Environmental Policy Act and 

determined that it will not have any 

significant impact on the quality of the 

human environment. 

G. Paperwork Reduction Act 

NHTSA has determined that this final 

rule will not impose any ‘‘collection of 

information’’ burdens on the public, 

within the meaning of the Paperwork 

Reduction Act of 1995 (PRA). This 

rulemaking action will not impose any 

filing or recordkeeping requirements on 

any manufacturer or any other party. 

H. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104–

113, section 12(d) (15 U.S.C. 272) 

directs us to use voluntary consensus 

standards in our regulatory activities 

unless doing so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies, such as the Society of 

Automotive Engineers (SAE). The 

NTTAA directs us to provide Congress, 

through OMB, explanations when we 

decide not to use available and 

applicable voluntary consensus 

standards. 

After conducting a search of available 

sources, we have found no applicable 

voluntary consensus standards. 

I. Unfunded Mandates Reform Act 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

requires Federal agencies to prepare a 

written assessment of the costs, benefits 

and other effects of proposed or final 

rules that include a Federal mandate 

likely to result in the expenditure by 

State, local or tribal governments, in the 

aggregate, or by the private sector, of 

more than $100 million in any one year 

(adjusted for inflation with base year of 

1995). Before promulgating a NHTSA 

rule for which a written statement is 

needed, section 205 of the UMRA 

generally requires us to identify and 

consider a reasonable number of 

regulatory alternatives and adopt the 

least costly, most cost-effective or least 

burdensome alternative that achieves 

the objectives of the rule. The 

provisions of section 205 do not apply 

when they are inconsistent with 

applicable law. Moreover, section 205 

allows us to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if we 

publish with the final rule an 

explanation why that alternative was 

not adopted. 

This final rule will not result in costs 

of $100 million or more to either State, 

local, or tribal governments, in the 

aggregate, or to the private sector. Thus, 

this final rule is not subject to the 

requirements of sections 202 and 205 of 

the UMRA. 

J. Plain Language 

Executive Order 12866 requires each 

agency to write all rules in plain 

language. Application of the principles 

of plain language includes consideration 

of the following questions: 

—Have we organized the material to suit 

the public’s needs? 

—Are the requirements in the rule 

clearly stated? 

—Does the rule contain technical 

language or jargon that is not clear? 

—Would a different format (grouping 

and order of sections, use of headings, 

paragraphing) make the rule easier to 

understand? 

—Would more (but shorter) sections be 

better? 

—Could we improve clarity by adding 

tables, lists, or diagrams? 

—What else could we do to make this 

rulemaking easier to understand? 

In the November 21, 2003 NPRM, we 

asked for public comment on whether 

the NPRM meets Plain Language 

principles. We received no comments 

on the Plain Language issue. 

K. Regulation Identifier Number (RIN) 

The Department of Transportation 

assigns a regulation identifier number 

(RIN) to each regulatory action listed in 

the Unified Agenda of Federal 

Regulations. The Regulatory Information 

Service Center publishes the Unified 

Agenda in April and October of each 

year. You may use the RIN contained in 

the heading at the beginning of this 

document to find this action in the 

Unified Agenda. 

List of Subjects in 49 CFR Part 571 

Imports, Motor vehicle safety, Motor 

vehicles, Rubber and rubber products, 

Tires. 

■ In consideration of the foregoing, the 

Federal Motor Vehicle Safety Standards 

(49 CFR part 571), are amended as set 

forth below. 

PART 571—FEDERAL MOTOR 

VEHICLE SAFETY STANDARDS 

■ 1. The authority citation for part 571 

continues to read as follows: 

Authority: 49 U.S.C. 322, 30111, 30115, 

30117, and 30166; delegation of authority at 

49 CFR 1.50. 

■ 2. Section 571.123 of Title 49, Code of 

Federal Regulations is amended by 

adding a definition of ‘‘scooter’’ in the 

correct alphabetical order to S4, by 

revising S5.2.1, by revising table 1, and 

by revising table 3 to read as follows: 

§ 571.123 Motorcyle Controls and 

Displays. 

* * * * * 

S4. Definitions. 

* * * * * 

Scooter means a motorcycle that: 

(1) Has a platform for the operator’s 

feet or has integrated footrests, and 

(2) Has a step-through architecture, 

meaning that the part of the vehicle 

forward of the operator’s seat and 

between the legs of an operator seated 

in the riding position, is lower in height 

than the operator’s seat. 

* * * * * 

S5.2.1 Control location and operation. 

If any item of equipment listed in Table 

1, Column 1, is provided, the control for 

such item shall be located as specified 

in Column 2, and operable as specified 

in Column 3. Each control located on a 

right handlebar shall be operable by the 

operator’s right hand throughout its full 

range without removal of the operator’s 

right hand from the throttle. Each 

control located on a left handlebar shall 

be operable by the operator’s left hand 

throughout its full range without 

removal of the operator’s left hand from 

the handgrip. If a motorcycle with an 

automatic clutch other than a scooter is 

equipped with a supplemental rear 

brake control, the control shall be 

located on the left handlebar. If a 

scooter with an automatic clutch is 

equipped with a supplemental rear 

brake control, the control shall be on the 

right side and operable by the operator’s 

right foot. A supplemental control shall 

provide brake actuation identical to that 

provided by the required control of 

Table 1, Item 11, of this Standard. If a 

motorcycle is equipped with selfproportioning or antilock braking 

51296 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

devices utilizing a single control for 

front and rear brakes, the control shall 

be located and operable in the same 

manner as a rear brake control, as 

specified in Table 1, Item 11, and in this 

paragraph. 

* * * * * 

BILLING CODE 4910–59–P 

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ER30AU05.000</GPH>
51298 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

* * * * * 


ER30AU05.001</GPH>
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ER30AU05.002</GPH>
51300 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

Issued on: August 23, 2005. 

Jacqueline Glassman, 

Deputy Administrator. 

[FR Doc. 05–17103 Filed 8–29–05; 8:45 am] 

BILLING CODE 4910–59–C 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 041126333–5040–02; I.D. 

082405B] 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pollock in Statistical 

Area 620 of the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for pollock in Statistical Area 

620 of the Gulf of Alaska (GOA). This 

action is necessary to prevent exceeding 

the C season allowance of the 2005 total 

allowable catch (TAC) of pollock for 

Statistical Area 620 of the GOA. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), August 29, 2005, through 

1200 hrs, A.l.t., October 1, 2005. 

FOR FURTHER INFORMATION CONTACT: Josh 

Keaton, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

The C season allowance of the 2005 

TAC of pollock in Statistical Area 620 

of the GOA is 4,446 metric tons (mt) as 

established by the 2005 and 2006 

harvest specifications for groundfish of 

the GOA (70 FR 8958, February 24, 

2005). In accordance with 

§ 679.20(a)(5)(iv)(B), the Administrator, 

Alaska Region, NMFS (Regional 

Administrator), hereby decreases the C 

season pollock allowance by 1,357 mt, 

the amount by which the A and B 

season allowance of the pollock TAC in 

Statistical Area 620 was exceeded. The 

revised C season allowance of the 

pollock TAC in Statistical Area 620 is 

therefore 3,089 mt (4,446 mt minus 

1,357 mt). 

In accordance with § 679.20(d)(1)(i), 

the Regional Administrator has 

determined that the C season allowance 

of the 2005 TAC of pollock in Statistical 

Area 620 of the GOA will soon be 

reached. Therefore, the Regional 

Administrator is establishing a directed 

fishing allowance of 3,039 mt, and is 

setting aside the remaining 50 mt as 

bycatch to support other anticipated 

groundfish fisheries. In accordance with 

§ 679.20(d)(1)(iii), the Regional 

Administrator finds that this directed 

fishing allowance has been reached. 

Consequently, NMFS is prohibiting 

directed fishing for pollock in Statistical 

Area 620 of the GOA. 

After the effective date of this closure 

the maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the closure of pollock in 

Statistical Area 620 of the GOA. NMFS 

was unable to publish an action 

providing time for public comment 

because the most recent, relevant data 

only became available as of August 22, 

2005. 

The AA also finds good cause to 

waive the 30 day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

This action is required by § 679.20 

and is exempt from review under 

Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: August 24, 2005. 

Alan D. Risenhoover, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 05–17222 Filed 8–25–05; 2:40 pm] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 041126333–5040–02; I.D. 

082405A] 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pollock in Statistical 

Area 630 of the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for pollock in Statistical Area 

630 of the Gulf of Alaska (GOA). This 

action is necessary to prevent exceeding 

the C season allowance of the 2005 total 

allowable catch (TAC) of pollock for 

Statistical Area 630 of the GOA. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), August 27, 2005, through 

1200 hrs, A.l.t., October 1, 2005. 

FOR FURTHER INFORMATION CONTACT: Josh 

Keaton, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

The C season allowance of the 2005 

TAC of pollock in Statistical Area 630 

of the GOA is 6,274 metric tons (mt) as 

established by the 2005 and 2006 

harvest specifications for groundfish of 

the GOA (70 FR 8958, February 24, 

2005). In accordance with 

§ 679.20(a)(5)(iv)(B), the Administrator, 

Alaska Region, NMFS (Regional 

Administrator), hereby decreases the C 

season pollock allowance by 2,547 mt, 

the amount by which the A and B 

season allowance of the pollock TAC in 

Statistical Area 630 was exceeded. The 

revised C season allowance of the 

pollock TAC in Statistical Area 630 is 

therefore 3,727 mt (6,274 mt minus 

2,547 mt). 

In accordance with § 679.20(d)(1)(i), 

the Regional Administrator has 

determined that the C season allowance 

of the 2005 TAC of pollock in Statistical 

Area 630 of the GOA will soon be 

reached. Therefore, the Regional