Daily Rules, Proposed Rules, and Notices of the Federal Government
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You may call the Docket at 202-366-9324.
Note that all comments received will be posted without change to
Pursuant to 49 U.S.C. 30118(e) and 30120(e), and 49 CFR 557.6(d) and 557.7, NHTSA has decided to hold a public hearing on whether ZAP has reasonably met its obligations under the National Traffic and Motor Vehicle Safety Act, as amended (Safety Act), to provide notifications regarding the MY 2008 ZAP Xebra's noncompliances with FMVSS No. 122,
A manufacturer of a motor vehicle that decides in good faith that the vehicle does not comply with an applicable FMVSS must notify NHTSA by submitting a Defect and Noncompliance Information Report, commonly referred to as a Part 573 Report. 49 U.S.C. 30118(c); 49 CFR 573.6. A Part 573 Report shall be submitted not more than 5 working days after a noncompliance with a FMVSS has been determined to exist. 49 CFR 573.6(b). The manufacturer must subsequently file quarterly reports with NHTSA containing information including the status of the manufacturer's recall notification campaign and the number of vehicles that have been remedied. 49 CFR 573.7.
Pursuant to the Safety Act, a “manufacturer” of a motor vehicle includes both a person manufacturing or assembling motor vehicles, and a person importing motor vehicles for resale. 49 U.S.C. 30102(a)(5). Both the importer of a motor vehicle and the vehicle's fabricating manufacturer are responsible for any noncompliance determined to exist in the vehicle. 49 CFR 573.5(a). As to imported motor vehicles, compliance with recall regulations by either the fabricating manufacturer or the importer of the vehicle shall be considered compliance by both. 49 CFR 573.3(b).
In addition to its notification to NHTSA, if the manufacturer of a motor vehicle decides in good faith that the vehicle does not comply with an applicable FMVSS, the manufacturer must notify owners, purchasers, and dealers of the vehicle of the noncompliance. 49 U.S.C. 30118(c);
The manufacturer must send a notification of the noncompliance, by first class mail, to each person registered under State law as the owner of the vehicle and whose name and address are reasonably ascertainable by the manufacturer through State records or other available sources. 49 U.S.C. 30119(d); 49 CFR 577.7(a)(2)(i).
Additionally, a manufacturer must send notifications to dealers and distributors, as specified by 49 CFR 577.13. These notifications must be sent within a reasonable time after the manufacturer first decides that a noncompliance exists. 49 U.S.C. 30119(c); 49 CFR 577.7(a). The notifications must include an advisory that it is a violation of Federal law for a dealer to deliver a new motor vehicle covered by the notification under a sale or lease until the noncompliance is remedied. 49 CFR 577.13;
On its own motion or on petition of any interested person, NHTSA may conduct a hearing to decide whether a manufacturer has reasonably met its notification requirements. 49 U.S.C. 30118(e). If NHTSA decides that the manufacturer has not reasonably met the notification requirements, it shall order the manufacturer to take specified action to meet those requirements and may take any other action authorized by the Safety Act, including assessing civil penalties.
A manufacturer of a noncomplying motor vehicle is required to remedy the vehicle without charge. 49 U.S.C. 30120(a). The manufacturer may remedy the noncompliance by repairing the vehicle, by replacing the vehicle with an identical or reasonably equivalent vehicle, or by refunding the purchase price, less a reasonable allowance for depreciation. 49 U.S.C. 30120(a). If a manufacturer decides to repair a noncomplying motor vehicle and the repair is not done adequately within a reasonable time, the manufacturer shall replace the vehicle without charge with an identical or reasonably equivalent vehicle, or refund the purchase price, less a reasonable allowance for depreciation. 49 U.S.C. 30120(c).
On its own motion or on application by any interested person, NHTSA may conduct a hearing to decide whether a manufacturer has reasonably met the remedy requirements. 49 U.S.C. 30120(e). If NHTSA decides that the manufacturer has not reasonably met
ZAP is the importer of the MY 2008 ZAP Xebra and the registered agent for the fabricating manufacturer, China Qingqi Group Inc./Qingqi Group Motorcycle Co. Ltd. (“Qingqi Group”) of China. The MY 2008 ZAP Xebra is an electric, three-wheeled vehicle with a sedan or truck body style. As a three-wheeled vehicle, the MY 2008 ZAP Xebra is subject to the FMVSSs for motorcycles.
In late 2008, NHTSA tested a NHTSA-owned MY 2008 ZAP Xebra for compliance with FMVSS No. 122,
NHTSA identified multiple apparent noncompliances with FMVSS No. 122. Two of the apparent noncompliances related to the stopping distance requirements of FMVSS No. 122. First, the vehicle did not comply with the first effectiveness requirement of FMVSS No. 122, S5.2.1,
At various times, NHTSA also observed three additional apparent noncompliances with other requirements of FMVSS No. 122. First, the vehicle did not comply with FMVSS No. 122, S18.104.22.168,
NHTSA notified ZAP of the apparent noncompliances with the stopping distance and reservoir labeling requirements on April 9, 2009.
ZAP first notified NHTSA that the MY 2008 ZAP Xebra was noncompliant with the FMVSS No. 122 stopping distance requirements by submitting to NHTSA a Part 573 Report prepared on May 18, 2009.
In a second Part 573 Report, prepared on September 30, 2009, ZAP notified NHTSA of its decision that the MY 2008 ZAP Xebra does not comply with FMVSS No. 122, S1.2.1,
Most recently, ZAP reported that there are 691 vehicles subject to the recalls.
At NHTSA's request, ZAP initiated renewed recall campaigns for these FMVSS No. 122 noncompliances. After several months of delay,
As discussed above, NHTSA also identified apparent noncompliances with FMVSS No. 122, S22.214.171.124,
ZAP used an internal customer warranty database as its sole source of contact information for its recall notifications to owners and/or purchasers.
ZAP provided NHTSA with inconsistent information on when it began notifying purchasers and/or owners of the recalls. In its July 30, 2012 response to the Special Order, ZAP stated that it sent its first owner notification letter for Recall No. 09V-177 on September 21, 2009, and for Recall No. 09V-385 on January 29, 2010.
Despite NHTSA's request in its Special Order to ZAP dated July 13, 2012, ZAP failed to provide NHTSA with a complete list of owners to whom it sent a notification letter for Recall Nos. 09V-177 and 09V-385.
In October 2011, NHTSA requested that ZAP renotify owners of Recall Nos. 09V-177 and 09V-385.
It also appears ZAP never sent MY 2008 ZAP Xebra dealers the required notification of Recall Nos. 09V-177 and 09V-385.
ZAP has not sent out any notification letters to owners, purchasers, or dealers of the renewed recall campaigns.
ZAP elected the remedy of repairing the FMVSS No. 122 noncompliances subject to the recalls.
After recalling the vehicles, ZAP claimed that, in 2009, it developed a successful repair remedy that was over engineered for stopping and not economically feasible.
After receiving Wilwood's recommendations, between May and December 2010, ZAP purported to repair the NHTSA-owned MY 2008 ZAP Xebra.
NHTSA sent a second IR to ZAP on March 9, 2012 to obtain additional information regarding the status of the recalls.
In May and June 2012, KARCO again tested a MY 2008 ZAP Xebra sent to it by ZAP, and that vehicle also failed to meet the stopping distance requirements of FMVSS No. 122.
After informally learning that the vehicle failed KARCO's most recent testing, NHTSA sent Special Orders to ZAP and to KARCO on July 13, 2012 to obtain additional information about the recalls and KARCO's testing. ZAP and KARCO each responded on July 30, 2012. ZAP represented in its response, made under oath, that it has developed a repair remedy to bring the MY 2008 Xebra into full compliance with FMVSS No. 122.
ZAP's Special Order response also provided contradictory information regarding the substance of its repair remedy. In one portion of its response, ZAP indicated that the repair remedy it contends will make the vehicles fully compliant with FMVSS No. 122 is the same remedy it performed on the vehicle which failed KARCO's testing.
ZAP provided a copy of procedures for its repair remedy in response to the
Furthermore, ZAP proposes to remedy the vehicles by either sending each customer an installation kit or having the customer send the vehicle to ZAP, to have ZAP complete the installation of the remedy.
Over three years has passed since ZAP initially recalled the MY 2008 ZAP Xebra. Although ZAP continues to elect a repair remedy, it has failed to successfully repair any vehicles. Moreover, contrary to its representation, under oath, in response to NHTSA's Special Order, ZAP has provided no evidence that it has developed a repair remedy that would bring the recalled vehicles into full compliance with FMVSS No. 122.
NHTSA has decided that it is necessary to conduct a public hearing to decide whether ZAP has reasonably met the notification and remedy requirements under 49 U.S.C. 30118 and 30120.
NHTSA will consider the views of participants in deciding whether ZAP has reasonably met the notification and/or remedy requirements under 49 U.S.C. 30118 and 30120, and in developing the terms of an order (if any) requiring ZAP to take specified action as the remedy for the noncompliances and/or take other action. 49 U.S.C. 30118(e), 30120(e); 49 CFR 557.8.
The hearing will be held at a site accessible to individuals with disabilities. Individuals who require accommodations, such as sign language interpreters, should contact Ms. Kerry Kolodziej using the contact information in the
Persons who wish to file written comments should submit them so that they are received by NHTSA no later than October 2, 2012. Instructions on how to submit written comments to the docket is located under the
49 U.S.C. 30118(e), 30120(e); 49 CFR 557.6(d), 557.7; delegations of authority at 49 CFR 1.95(a), 501.2(a)(1), and 49 CFR 501.8.