Public Hearing to Determine Whether ZAP Has Met Notification and Remedy Requirements, 56703-56708 [2012-22612]
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Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Notices
accelerated into motion, and may
include impact with another vehicle
including a vehicle moving at higher
speed. Therefore, in light of these safety
risks, the Agency finds that the door gap
on the subject vehicles is not an
acceptable replacement for a door
closure warning system.
Morgan Olson also asserts that the
sliding door standards were
‘‘particularly concerned with children
riding in the rear seats of passenger
vans.’’ Although the Agency did note in
the NPRM that it was ‘‘[a]dditionally
* * * concerned that the individuals
with the greatest exposure to sliding
door failures are children,’’ 69 FR
75025, the Agency never indicated that
child passenger safety was the only
safety concern addressed by the
standard. In short, the Agency believes
that there are valid concerns that
occupants other than children of the
subject vehicles are exposed to an
increased risk of accidents and injuries,
particularly those associated with
occupant ejection, compared to
occupants of compliant vehicles.
In addition, the Agency is aware of at
least one occupant ejection through an
open sliding side door of a commercial
vehicle similar to those that are the
subject of this petition. A walk-in vantype delivery truck was involved in an
accident in 2009 at an intersection in
Florida in which the driver of the
delivery truck was ejected through an
open sliding side door and sustained
injuries. The delivery truck, after being
stopped at a stop sign, entered the
intersection and struck the side of a
crossing vehicle causing the vehicles to
become engaged and spin together. The
delivery truck driver, who was not
wearing a safety belt, was ejected into
the roadway.4
As noted earlier, the subject
noncompliance was the result of
Morgan Olson’s previous
misunderstanding that the requirement
for either a primary door latch system or
door closure warning system applied
only to its vehicles having a GVWR
under 4,536 kg. Applicability of the
standard to vehicles Over 4,536 kg
GVWR was addressed by the Agency in
response to the Final Rule, Petitions for
Reconsideration (see 75 FR 7370). In
response to a question from TriMark
Corporation dealing with applicability
of the standard to Class 7⁄8 heavy trucks
in excess of a GVWR of 4,536 kg (10,000
lb), the Agency stated ‘‘Regarding Class
7⁄8 heavy trucks, these vehicles fall
under the definition of truck as defined
4 Florida Department of Highway Safety and
Motor Vehicles; HSMV Crash Report Number
90163273, dated January 6, 2009.
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in 49 CFR 571.3. FMVSS No. 206
applied to trucks, regardless of their
GVWR, prior to the February 2007 final
rule, as does the amended FMVSS No.
206. S2 of amended FMVSS No. 206
states that the standard applies to
‘‘passenger cars, multipurpose
passenger vehicles, and trucks, and
buses with a gross vehicle weight rating
(GVWR) of 4,536 kg or less’’ (emphasis
added). In other words, the February
2007 final rule applies to all passenger
cars, multipurpose passenger vehicles,
and trucks, regardless of their GVWR,
and is also applicable to buses with a
GVWR of 4,536 kg (10,000 lb) or less.’’ 5
Decision: In consideration of the
foregoing, NHTSA has decided that the
petitioner has not met its burden of
persuasion that the noncompliance
described is inconsequential to motor
vehicle safety. Accordingly, Morgan
Olson’s petition is hereby denied, and
the petitioner must notify owners,
purchasers and dealers pursuant to 49
U.S.C. 30118 and provide a remedy in
accordance with 49 U.S.C. 30120.
If Morgan Olson believes that vehicles
it will produce in the future should not
be subject to any currently applicable
FMVSS No. 206 requirements, Morgan
Olson may consider petitioning the
Agency for rulemaking. The appropriate
type of petition to request a change in
a rule is one filed under 49 CFR Part 552
Petitions for Rulemaking, Defect, and
Non-Compliance Orders.
Authority: 49 U.S.C. 30118, 30120:
delegations of authority at CFR 1.50 and
501.8.
Issued on: September 6, 2012.
Nancy Lummen Lewis,
Associate Administrator for Enforcement.
[FR Doc. 2012–22547 Filed 9–12–12; 8:45 am]
BILLING CODE 4910–59–P
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
[Docket No. NHTSA–2012–0133]
Public Hearing to Determine Whether
ZAP Has Met Notification and Remedy
Requirements
National Highway Traffic
Safety Administration (NHTSA), DOT.
ACTION: Notice of public hearing.
AGENCY:
NHTSA will hold a public
hearing on whether ZAP,1 a publicly
owned company based in Santa Rosa,
California, has reasonably met its
SUMMARY:
5 75
FR 7378.
also does business as ZAP Jonway. See
https://www.zapworld.com/.
1 ZAP
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56703
obligations to notify owners, purchasers,
and dealers of noncompliances with
Federal Motor Vehicle Safety Standard
(FMVSS) No. 122, Motorcycle brake
systems, and to remedy those
noncompliances in two recalls
involving Model Year (MY) 2008 ZAP
Xebra three-wheeled vehicles, which
ZAP imported from China.
DATES: The public hearing will be held
beginning at 10 a.m. ET on October 9,
2012 in the Oklahoma City room of the
U.S. Department of Transportation
Conference Center, located at 1200 New
Jersey Avenue SE., Washington, DC
20590. NHTSA recommends that all
persons attending the proceedings arrive
at least 45 minutes early in order to
facilitate entry into the Conference
Center. NHTSA cannot ensure that late
arrivals will be permitted access to the
hearing. Attendees are strongly
discouraged from bringing laptop
computers to the hearing, as they will be
subject to additional security measures.
If you wish to attend or speak at the
hearing, you must register in advance no
later than October 2, 2012 (and
September 28, 2012 for non-U.S.
citizens), by following the instructions
in the Procedural Matters section of this
notice. NHTSA will consider late
registrants to the extent time and space
allows, but cannot ensure that late
registrants will be able to attend or
speak at the hearing. To ensure that
NHTSA has an opportunity to consider
comments, NHTSA must receive written
comments by October 2, 2012.
ADDRESSES: You may submit comments
to the docket number identified in the
heading of this document by any of the
following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Mail: Docket Management Facility,
M–30, U.S. Department of
Transportation, West Building, Ground
Floor, Rm. W12–140, 1200 New Jersey
Avenue SE., Washington, DC 20590.
• Hand Delivery or Courier: West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue SE., between
9 a.m. and 5 p.m. ET, Monday through
Friday, except Federal holidays.
• Fax: (202) 493–2251.
Regardless of how you submit your
comments, you should mention the
docket number of this document.
You may call the Docket at 202–366–
9324.
Note that all comments received will
be posted without change to https://
www.regulations.gov, including any
personal information provided.
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Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Notices
For
registration to attend or speak at the
public hearing: Sabrina Fleming,
National Highway Traffic Safety
Administration, 1200 New Jersey
Avenue SE., Washington, DC 20590
(Telephone: 202–366–9896) (Fax: 202–
366–3081). For hearing procedures:
Kerry Kolodziej, Office of the Chief
Counsel, National Highway Traffic
Safety Administration, 1200 New Jersey
Avenue SE., Washington, DC 20590
(Telephone: 202–366–5263) (Fax: 202–
366–3820). Information regarding the
recalls is available on NHTSA’s Web
site: https://www.safercar.gov. To find
these recalls: (1) In the drop-down menu
under ‘‘Safety Recalls,’’ search for a
recall by vehicle; (2) select model year
2008; (3) select ZAP as the make; (4)
select Xebra as the model; and (5) click
‘‘Retrieve Recalls.’’ Once information on
the recalls is displayed, clicking on the
‘‘Document Search’’ buttons will
display recall-related documents.
SUPPLEMENTARY INFORMATION: 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, Motorcycle brake
systems (49 CFR 571.122), and to
remedy those noncompliances. The
noncompliances are the subject of two
recall campaigns, Recall Nos. 09V–177/
12V–230 and 09V–385/12V–363.
FOR FURTHER INFORMATION CONTACT:
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I. Initiation of a Recall
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
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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).
II. Notification Requirements
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); see
49 CFR part 573; 49 CFR part 577.2
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).3 If the
owner cannot be reasonably ascertained,
the manufacturer shall notify the most
recent purchaser known to the
manufacturer. 49 U.S.C. 30119(d); 49
CFR 577.7(a)(2)(i). As explained in
NHTSA’s Safety Recall Compendium:
‘‘It is critically important that owners be
informed promptly of unreasonable
risks to their safety and failures of their
products to meet minimum safety
standards, and even in those cases
where the manufacturer may not have
perfected its free remedy or may not
have sufficient parts to be able to
remedy all the recalled products for all
owners immediately. Accordingly, it is
expected that manufacturers issue their
owner notification letters within 60
days of making a safety defect or
noncompliance decision.’’ 4
Additionally, a manufacturer must
send notifications to dealers and
2 A manufacturer is required to furnish NHTSA
with a copy of each communication involving a
recall that the manufacturer issued to, or made
available to, more than one dealer, distributor,
lessor, lessee, other manufacturer, owner, or
purchaser, no later than five working days after the
end of the month in which it is issued. 49 CFR
579.5.
3 Among other things, the notification to owners
must contain a clear description of the
noncompliance, an evaluation of the risk to motor
vehicle safety reasonably related to the
noncompliance, the measures to be taken to obtain
a remedy of the noncompliance, and the earliest
date on which the noncompliance will be remedied
without charge. 49 U.S.C. 30119(a); see 49 CFR part
577.
4 NHTSA, Safety Recall Compendium at 7–8,
https://www-odi.nhtsa.dot.gov/cars/problems/
recalls/documents/recompendium.pdf.
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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; see 49 U.S.C.
30112(a)(1) (prohibiting a person from
selling or offering for sale a vehicle that
does not comply with an applicable
FMVSS).
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. See 49 U.S.C. 30118(e),
30165(a)(1). A person that violates the
Safety Act, including the notification
requirements, or regulations prescribed
thereunder, is liable to the United States
Government for a civil penalty of not
more than $6,000 for each violation. A
separate violation occurs for each motor
vehicle and for each failure to perform
a required act. The maximum penalty
for a related series of violations is
$17,350,000. 49 U.S.C. 30165(a)(1); 49
CFR 578.6.
III. Remedy Requirements
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
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the remedy requirements, it shall order
the manufacturer to take specified
action to meet those requirements,
including by ordering the manufacturer
to refund the purchase price of the
noncomplying vehicles, less a
reasonable allowance for depreciation.
49 U.S.C. 30120(a), (c), (e). NHTSA may
also take any other action authorized by
the Safety Act, including assessing civil
penalties. See 49 U.S.C. 30120(e),
30165(a)(1). A person that violates the
Safety Act, including the remedy
requirements, or regulations prescribed
thereunder, is liable to the United States
Government for a civil penalty of not
more than $6,000 for each violation. A
separate violation occurs for each motor
vehicle and for each failure to perform
a required act. The maximum penalty
for a related series of violations is
$17,350,000. 49 U.S.C. 30165(a)(1); 49
CFR 578.6.
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IV. MY 2008 ZAP Xebra
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 threewheeled vehicle, the MY 2008 ZAP
Xebra is subject to the FMVSSs for
motorcycles. See 49 CFR 571.3(b).
A. NHTSA’s Investigation of the MY
2008 ZAP Xebra
In late 2008, NHTSA tested a NHTSAowned MY 2008 ZAP Xebra for
compliance with FMVSS No. 122,
Motorcycle brake systems, at
Transportation Research Center Inc.
(TRC) in East Liberty, Ohio.5
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, Service brake system,
because the service brakes were not
capable of stopping the motorcycle from
30 m.p.h. within 54 feet during
NHTSA’s testing. Second, following the
burnishing procedure specified in the
Standard, the vehicle did not comply
with FMVSS No. 122, S5.3, Service
brake system—second effectiveness,
because the service brakes were not
capable of stopping the motorcycle from
30 m.p.h. within 43 feet during
5 See NHTSA, Safety Compliance Testing for
FMVSS 122, Final Report No. 122–TRC–10–004
(Nov. 8, 2010). The test report is publicly available
by searching on https://www.nhtsa.gov/cars/
problems/comply/.
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NHTSA’s testing. Due to these apparent
noncompliances with the stopping
distance requirements, NHTSA
terminated its testing of the vehicle after
the second effectiveness test.
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, S5.1.2.1, Master cylinder
reservoirs, because it did not have a
separate reservoir for each brake circuit
with each reservoir filler opening
having its own cover, seal, and cover
retention device. Second, the vehicle
did not comply with FMVSS No. 122,
S5.1.2.2, Reservoir labeling, because the
label was not correctly worded and
some of the letters were not at the
minimum required height. Finally, the
vehicle did not comply with FMVSS
No. 122, S5.1.3.1, Failure indicator
lamp, because the vehicle did not have
a failure indicator lamp (which is
required to activate for pressure failure,
low fluid, and momentarily when the
ignition switch is turned to the ‘‘on’’ or
‘‘start’’ position).
NHTSA notified ZAP of the apparent
noncompliances with the stopping
distance and reservoir labeling
requirements on April 9, 2009.6 NHTSA
notified ZAP of the apparent
noncompliance with the master cylinder
reservoir requirement on August 21,
2009.7 NHTSA notified ZAP of the
apparent noncompliance with the
failure indicator lamp requirement on
approximately June 9, 2010.8
B. ZAP’s Notifications to NHTSA of
FMVSS No. 122 Noncompliances
1. Initial Recall Campaigns (Recall Nos.
09V–177 and 09V–385) 9
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,
2009.10 NHTSA assigned Recall Number
09V–177 to this recall campaign.
6 Letter from H. Thompson, NHTSA to G. Starr,
ZAP (Apr. 9, 2009).
7 Email from S. Seigel, NHTSA to J. Long, ZAP
(Aug. 21, 2009).
8 Phone call log of S. Seigel, NHTSA (June 9,
2010).
9 The Part 573 Reports and other documents
relevant to the recalls are available at
www.safercar.gov.
10 Recall No. 09V–177, Part 573 Report (prepared
May 18, 2009). Although ZAP submitted the Part
573 Report to NHTSA, it stated that Qingqi Group
decided on April 27, 2009 that the noncompliance
existed. Compliance with recall regulations by
either the fabricating manufacturer or the importer
of a vehicle is considered compliance by both. 49
CFR 573.3(b). Nothing herein limits Qingqi Group’s
responsibilities and liabilities for the
noncompliances of these vehicles.
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56705
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, Master cylinder
reservoirs.11 NHTSA assigned Recall
Number 09V–385 to this recall
campaign. ZAP subsequently submitted
an untimely petition for inconsequential
noncompliance, see 49 CFR 556.4(c),
which NHTSA denied on November 25,
2009.12 ZAP then submitted an
amended Part 573 Report, prepared on
December 9, 2009, for this
noncompliance.13
Most recently, ZAP reported that
there are 691 vehicles subject to the
recalls.14
2. Renewed Recall Campaigns (Recall
Nos. 12V–230 and 12V–363)
At NHTSA’s request, ZAP initiated
renewed recall campaigns for these
FMVSS No. 122 noncompliances. After
several months of delay,15 ZAP
submitted a new Part 573 Report,
prepared May 18, 2012, addressing the
noncompliance with the stopping
distance requirements.16 NHTSA
assigned Recall Number 12V–230 to this
renewed recall campaign (previously
designated as Recall No. 09V–177). ZAP
later submitted a new Part 573 Report,
prepared on July 18, 2012, for the
noncompliance with the master cylinder
reservoir requirement.17 NHTSA
assigned Recall Number 12V–363 to this
renewed recall campaign (previously
designated as Recall No. 09V–385).
3. Other Apparent Noncompliances
Identified by NHTSA
As discussed above, NHTSA also
identified apparent noncompliances
with FMVSS No. 122, S5.1.2.2,
Reservoir labeling, and with FMVSS No.
122, S5.1.3.1, Failure indicator lamp. To
date, ZAP has not submitted a Part 573
Report to notify NHTSA that it has
11 Recall No. 09V–385, Part 573 Report (prepared
Sept. 30, 2009). Based on this Part 573 Report, ZAP
decided that the noncompliance existed on
September 30, 2009.
12 Letter from C. Harris, NHTSA to J. Long, ZAP
(Nov. 25, 2009).
13 Recall No. 09V–385, Amended Part 573 Report
(prepared Dec. 9, 2009).
14 Recall 09V–177, Quarterly Report (dated July
30, 2012); Recall 09V–385, Quarterly Report (dated
July 30, 2012). ZAP initially reported there were
738 vehicles subject to the recalls, but has not
explained why the number has changed. See Recall
No. 09V–177, Part 573 Report II; Recall No. 09V–
385, Part 573 Report § II.
15 See Letter from S. Schneider, ZAP to H.
Thompson and S. Seigel, NHTSA (Dec. 10, 2011);
Letter from S. Schneider, ZAP to H. Thompson,
NHTSA (Apr. 2, 2012).
16 Recall No. 12V–230, Part 573 Report (prepared
May 18, 2012).
17 Recall No. 12V–363, Part 573 Report (prepared
July 18, 2012).
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decided in good faith that the MY 2008
ZAP Xebra does not comply with these
aspects of FMVSS No. 122.18 However,
as discussed below, ZAP’s repair
remedy does purport to address these
apparent noncompliances.
C. ZAP’s Recall Notifications to Owners,
Purchasers, and Dealers
1. Initial Recall Campaigns (Recall Nos.
09V–177 and 09V–385)
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ZAP used an internal customer
warranty database as its sole source of
contact information for its recall
notifications to owners and/or
purchasers.19 ZAP repeatedly
represented to NHTSA that it was
working to obtain information on
registered owners.20 However, as of its
July 30, 2012 response to a Special
Order from NHTSA seeking additional
information regarding the recalls, ZAP
stated that it still had not obtained
contact information for registered
owners of MY 2008 ZAP Xebras, from
State records or other available
sources.21 See 49 CFR 577.7(a)(2)(i).
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,
2010.22 However, in quarterly reports,
also dated July 30, 2012, ZAP indicated
that it began notifying purchasers of
both recalls in January of 2010. ZAP’s
owner letters indicated that owners
should contact a dealer as soon as
possible to arrange for repair.23
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
18 ZAP likewise has not notified owners,
purchasers, and dealers regarding these apparent
noncompliances.
19 See ZAP, Response to Special Order,
Interrogatory No. 6 (July 30, 2012).
20 See Letter from S. Schneider, ZAP to H.
Thompson and S. Seigel, NHTSA (Dec. 10, 2011);
Letter from S. Schneider, ZAP to H. Thompson,
NHTSA (Apr. 2, 2012); Letter from S. Schneider,
ZAP to J. Timian, NHTSA (May 28, 2012).
21 See ZAP, Response to Special Order,
Interrogatory No. 8 (July 30, 2012). ZAP represented
in its Special Order response that it had entered
into a contract with R.L. Polk to search for
registered owners of the vehicles, and that it would
take R.L. Polk approximately a month to complete
the work. ZAP, Response to Special Order,
Interrogatory No. 8 (July 30, 2012).
22 ZAP, Response to Special Order, Interrogatory
No. 6 (July 30, 2012).
23 ZAP, Response to Special Order, Sch. D–E (July
30, 2012).
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Nos. 09V–177 and 09V–385.24
Therefore, it is not known whether ZAP
sent a notification letter to each
individual or business listed in its
customer warranty database.25 In ZAP’s
most recent quarterly reports to NHTSA
for these recalls, dated July 30, 2012,
ZAP did not provide a date that its
notification to purchasers was
completed, instead responding that the
notification process was continuing.26
In its response to NHTSA’s Special
Order, ZAP explained that it plans to
send additional notifications once it
confirms through vehicle testing that it
has an effective repair remedy.27
In October 2011, NHTSA requested
that ZAP renotify owners of Recall Nos.
09V–177 and 09V–385.28 See 49 U.S.C.
30119(e). In its Special Order, NHTSA
asked ZAP to provide a list including
name, address, and date for each owner
to whom ZAP sent a renotification letter
for these recalls.29 ZAP failed to
respond.30 Thus, it appears that ZAP
has not sent out any renotification
letters, despite repeatedly promising to
do so.31
It also appears ZAP never sent MY
2008 ZAP Xebra dealers the required
notification of Recall Nos. 09V–177 and
09V–385. See 49 CFR 577.13. ZAP has
not sent NHTSA a representative copy
24 See NHTSA, Special Order to ZAP,
Interrogatory No. 6 (July 13, 2012). NHTSA’s
regulations require each manufacturer of a motor
vehicle to maintain a list of the names and
addresses of registered owners, as determined
through State motor vehicle registration records or
other sources or the most recent purchasers where
the registered owners are unknown, for all vehicles
involved in a noncompliance notification
campaign. The list shall include the VIN for each
vehicle and the status of remedy with respect to
each vehicle. Each vehicle manufacturer shall also
maintain a list of the names and addresses of all
dealers and distributors to which a noncompliance
notification was sent. 49 CFR 573.8(a).
25 ZAP’s customer warranty database only
appears to include contact information related to
approximately 116 MY 2008 ZAP Xebras (identified
by VIN). Based on its most recent quarterly reports,
dated July 30, 2012, there are 691 vehicles subject
to these recalls.
26 Recall 09V–177, Quarterly Report (dated July
30, 2012); Recall 09V–385, Quarterly Report (dated
July 30, 2012).
27 ZAP, Response to Special Order, Interrogatory
Nos. 8–9 (July 30, 2012).
28 See, e.g., Letter from R. Willard, NHTSA to S.
Schneider, ZAP (Oct. 6, 2011) (Recall No. 09V–177);
Letter from R. Willard, NHTSA to S. Schneider,
ZAP (Oct. 11, 2011) (Recall No. 09V–385).
29 NHTSA, Special Order to ZAP, Interrogatory
No. 6 (July 13, 2012).
30 See ZAP, Response to Special Order,
Interrogatory No. 6 (July 30, 2012).
31 See Letter from S. Schneider, ZAP to H.
Thompson and S. Seigel, NHTSA (Dec. 10, 2011);
Letter from S. Schneider, ZAP to H. Thompson,
NHTSA (Apr. 2, 2012); see also Letter from J.
Timian, NHTSA, to S. Schneider, ZAP (Mar. 9,
2012) (indicating that NHTSA had not received
draft renotification letters or evidence of
renotification).
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of any dealer notification. Although
ZAP’s customer warranty database
appears to include some dealers, it is
not clear whether it includes all MY
2008 ZAP Xebra dealers. Furthermore,
as noted above, NHTSA is not aware
whether ZAP sent each individual and
business listed in that database a
notification.32 Moreover, the
notifications ZAP sent were addressed
to owners and did not include
information required to be disclosed to
dealers, including the advisory
regarding sales or leases of
noncompliant vehicles.33 See 49 CFR
577.13. Dealers, including ZAP’s wholly
owned subsidiary, Voltage Vehicles,
have continued to offer for sale and sell
MY 2008 ZAP Xebras despite the
recalls.34
2. Renewed Recall Campaigns (Recall
Nos. 12V–230 and 12V–363)
ZAP has not sent out any notification
letters to owners, purchasers, or dealers
of the renewed recall campaigns.35 ZAP
represented in its July 30, 2012 response
to the Special Order that it does not
plan to send additional notifications
until it confirms through vehicle testing
that it has an effective repair remedy.36
ZAP did not indicate any plans to send
dealer notifications for the renewed
recall campaigns.
D. ZAP’s Repair Remedy
ZAP elected the remedy of repairing
the FMVSS No. 122 noncompliances
subject to the recalls. See 49 U.S.C.
30120(a). However, as of the end of July
2012, ZAP conceded none of the
vehicles subject to the recalls has been
fully and successfully repaired.37 While
32 ZAP’s customer warranty database indicates
that some vehicles are still for sale, despite the
prohibition against offering for sale a motor vehicle
that does not comply with applicable FMVSSs. See
49 U.S.C. 30112(a)(1); ZAP, Response to Special
Order, Sch. F (July 30, 2012).
33 ZAP, Response to Special Order, Sch. D–E (July
30, 2012).
34 See, e.g., https://www.voltagevehicles.com/;
Letter from S. Schneider, ZAP to J. Timian, NHTSA
(May 28, 2012) (indicating that ZAP has 9 vehicles
‘‘sold—in inventory,’’ which are reserved for certain
customers).
35 See ZAP, Response to Special Order,
Interrogatory No. 6 (July 30, 2012).
36 See ZAP, Response to Special Order,
Interrogatory Nos. 8–9 (July 30, 2012). In its Part
573 Reports initiating the renewed recalls, ZAP
indicated that it will send notices to purchasers of
the MY 2008 ZAP Xebra sedan once it has
confirmed through vehicle testing that it has an
effective repair remedy. According to those Part 573
Reports, 337 of the 691 vehicles subject to the
recalls are sedans. ZAP did not indicate that it
plans to send notifications to owners and
purchasers of MY 2008 ZAP Xebra trucks, which
are 354 of the 691 vehicles subject to the recalls.
37 See Recall 09V–177, Quarterly Report (dated
July 30, 2012) (indicating ‘‘[s]ince we have not
successfully passed the Testing, none of the
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ZAP previously reported that some
vehicles had been remedied, ZAP
acknowledged that those vehicles will
need to be re-remedied.38
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.39 ZAP elected
not to implement this remedy, and
contracted with Wilwood Engineering
(Wilwood) to develop a different repair
remedy. Wilwood provided ZAP with a
report in April 2010 recommending
certain modifications for the vehicle to
meet the requirements of FMVSS No.
122.40 Wilwood’s recommendations
addressed the stopping distance and
master cylinder requirements, which are
the subject of the recalls. Additionally,
Wilwood recommended that, to meet
FMVSS No. 122, the reservoirs or caps
need to have a warning statement
(FMVSS No. 122, S5.1.2.2), and the
indicator on the dash needs to have a
legend that reads ‘‘Brake Failure’’ and
needs to turn on momentarily when the
key is moved to the ‘‘on’’ or ‘‘start’’
position (FMVSS No. 122, S5.1.3.1).41
After receiving Wilwood’s
recommendations, between May and
December 2010, ZAP purported to
repair the NHTSA-owned MY 2008 ZAP
Xebra.42 Prior to retesting its vehicle,
NHTSA made repeated inquiries of ZAP
to confirm that ZAP performed its
proposed repair remedy on the vehicle.
After ZAP was unresponsive to
NHTSA’s informal requests,43 NHTSA
sent a formal Information Request (IR) to
ZAP on November 22, 2011.44 ZAP
responded on December 10, 2011.45
ZAP stated in its response that it was
unable to confirm what modifications
were made to the NHTSA-owned
vehicle and vehicles in the field, and
reported vehicles fixed can be reported as
successfully completed’’).
38 See ZAP, Response to Special Order,
Interrogatory No. 9 (July 30, 2012). NHTSA has also
received complaints from MY 2008 ZAP Xebra
owners that their vehicles were not repaired. See
www-odi.nhtsa.dot.gov/complaints (NHTSA ODI
Nos. 10320166 and 10415384).
39 Letter from S. Schneider, ZAP to H. Thompson,
NHTSA (Apr. 2, 2012).
40 See ZAP, Response to Special Order, Sch. C
(July 30, 2012).
41 ZAP, Response to Special Order, Sch. C at 6
(July 30, 2012).
42 See Letter from H. Thompson, NHTSA, to S.
Schneider, ZAP (Nov. 22, 2011).
43 ZAP has also repeatedly failed to file required
quarterly reports regarding the recalls. See, e.g.,
Letter from R. Willard, NHTSA to S. Schneider,
ZAP (Oct. 6, 2011) (Recall No. 09V–177); Letter
from R. Willard, NHTSA to S. Schneider, ZAP (Oct.
11, 2011) (Recall No. 09V–385).
44 Letter from H. Thompson, NHTSA, to S.
Schneider, ZAP (Nov. 22, 2011).
45 Letter from S. Schneider, ZAP to H. Thompson,
NHTSA (Dec. 10, 2011).
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that additional modifications may be
necessary to the vehicles to ensure full
compliance with FMVSS No. 122. ZAP
also indicated that it would use an
independent third-party testing facility
to confirm that its repair remedy would
make the vehicles compliant with
FMVSS No. 122.46
NHTSA sent a second IR to ZAP on
March 9, 2012 to obtain additional
information regarding the status of the
recalls.47 ZAP responded on April 2,
2012.48 ZAP stated that it had
contracted with KARCO Engineering
(KARCO) in January 2012 to test a
repaired MY 2008 ZAP Xebra, and that
the vehicle failed to meet the FMVSS
No. 122 stopping distance requirements
based on KARCO’s testing. KARCO
retested the vehicle in March 2012, and
it again failed to meet the stopping
distance requirements. ZAP indicated
that it had since made additional
modifications to the vehicle and would
send the vehicle back to KARCO for
further testing. ZAP represented that it
expected to be able to implement a
repair remedy by July 15, 2012.49
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. 122.50 KARCO’s test
report further indicated that the
vehicle’s brake failure indicator lamp
did not meet the minimum height
requirement of three-thirty seconds of
an inch.51 See 49 CFR 571.122,
S5.1.3.1(d).52
46 Letter from S. Schneider, ZAP to H. Thompson,
NHTSA (Dec. 10, 2011).
47 Letter from J. Timian, NHTSA, to S. Schneider,
ZAP (Mar. 9, 2012).
48 Letter from S. Schneider, ZAP to H. Thompson,
NHTSA (Apr. 2, 2012). At that time, ZAP
represented that if it has not developed a successful
repair remedy by September 30, 2012, it will
initiate a repurchase campaign. However, ZAP
subsequently claimed to have developed a repair
remedy that will bring the recalled vehicles into full
compliance with FMVSS No. 122. ZAP, Response
to Special Order, Interrogatory No. 1 (July 30, 2012).
49 Letter from S. Schneider, ZAP to H. Thompson,
NHTSA (Apr. 2, 2012). Although ZAP recognized
at that time that it had not yet developed a repair
remedy that brings the vehicles into full compliance
with FMVSS No. 122, it continued to report to
NHTSA that it had remedied vehicles. See Recall
No. 09V–177, Quarterly Report (May 7, 2012).
50 See KARCO, Response to Special Order,
Interrogatory No. 1 (July 30, 2012). According to
KARCO, the vehicle initially did not pass the first
effectiveness test. ZAP requested that KARCO make
modifications to the vehicle; through trial and error
modifications, the vehicle subsequently passed the
first effectiveness test. However, the vehicle could
not pass the second effectiveness test, and testing
was terminated. KARCO, Response to Special
Order, Interrogatory No. 1 (July 30, 2012).
51 KARCO, Response to Special Order, Ex. Test
Report for ZAP Jonway, 2008 ZAP Xebra at 3, 10
(test date: May 16, 2012–June 27, 2012).
52 As of July 30, 2012, KARCO indicated that no
further testing was planned. See KARCO, Response
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56707
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. 122.53 ZAP cited the
recommendations provided to it by
Wilwood in April 2010 as the basis for
its contention that this remedy will
bring the vehicles into full
compliance.54 ZAP did not provide any
test results or other information
demonstrating that its repair remedy
will make the vehicles fully compliant
with FMVSS No. 122, and instead
indicated that it planned further testing
at KARCO to confirm its belief that this
latest repair remedy is effective.55
However, according to KARCO’s
response to NHTSA’s Special Order, no
further testing was planned.56
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.57
However, another portion of ZAP’s
response indicated that additional
modifications are needed to the
vehicle.58
ZAP provided a copy of procedures
for its repair remedy in response to the
to Special Order, Interrogatory No. 3 (July 30, 2012).
ZAP, on the other hand, indicated in its July 30,
2012 response to NHTSA’s Special Order that it
planned to send its mechanic to KARCO between
August 6 and 20, 2012 to make further
modifications to the vehicle, which would then be
retested by KARCO. ZAP, Response to Special
Order, Interrogatory Nos. 4, 5 (July 30, 2012).
However, as of August 20, 2012, KARCO indicated
that ZAP had picked up the vehicle from KARCO’s
facility.
53 ZAP, Response to Special Order, Interrogatory
No. 1 (July 30, 2012). The repair remedy identified
by ZAP in response to the Special Order included
the heading ‘‘Xebra 2008—Dealer Power Brake
Recall Fix—Version 6.’’ See ZAP, Response to
Special Order, Sch. B at 3 (July 30, 2012). However,
a later version (Version 7) of this document was
attached as Exhibit A to ZAP’s earlier Part 573
Report for Recall No. 12V–230.
54 See ZAP, Response to Special Order,
Interrogatory No. 2 (July 30, 2012).
55 See ZAP, Response to Special Order,
Interrogatory Nos. 4–5 (July 30, 2012).
56 See KARCO, Response to Special Order,
Interrogatory No. 3 (July 30, 2012).
57 Compare ZAP, Response to Special Order,
Interrogatory Nos. 1–2 (July 30, 2012), with ZAP,
Response to Special Order, Request for the
Production of Documents Nos. 1–2 (July 30, 2012).
58 See ZAP, Response to Special Order,
Interrogatory No. 4 (July 30, 2012).
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Special Order.59 The repair remedy
purports to address the noncompliances
with the stopping distance and master
cylinder reservoir requirements, which
are the subject of the recalls. The
remedy also purports to address the
apparent noncompliances NHTSA
identified with FMVSS No. 122,
S5.1.2.2, Reservoir labeling, and FMVSS
No. 122, S5.1.3.1, Failure indicator
lamp, despite the fact that ZAP has
never submitted a Part 573 Report
acknowledging the MY 2008 ZAP Xebra
is noncompliant with those provisions.
However, ZAP’s procedures to address
the reservoir labeling and the failure
indicator lamp do not satisfy the
requirements of FMVSS No. 122.60
Moreover, ZAP has failed to provide
notifications to NHTSA and to owners,
purchasers, and dealers of these
noncompliances as required by 49
U.S.C. 30118 and 49 CFR Parts 573 and
577.61
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.62 Thus, an owner would
either need to bring its vehicle to Santa
Rosa, California (where ZAP is located),
or install the remedy based on ZAP’s
kit.63 The procedures for the repair
remedy are over twenty pages long and
require, among other things, placing the
59 ZAP, Response to Special Order, Sch. A–B (July
30, 2012).
60 The reservoir labeling is not worded as
required by FMVSS No. 122, S5.1.2.2. See ZAP,
Response to Special Order, Sch. B at 10. It also
appears that the labeling may not be permanently
affixed, as required. See KARCO, Response to
Special Order, Ex. Test Report for ZAP Jonway,
2008 ZAP Xebra at A6 (test date: May 16, 2012–June
27, 2012) (showing peeling label). The failure
indicator lamp also does not have the legend ‘‘Brake
Failure,’’ as required by FMVSS No. 122, S1.3.1(d).
See KARCO, Response to Special Order, Ex.
KARCO 036–KARCO 037 (July 30, 2010)
(photographs produced for ‘‘May 2012 Testing’’).
According to KARCO, the lamp’s lettering also does
not comply with the height requirements of the
Standard. KARCO, Response to Special Order, Ex.
Test Report for ZAP Jonway, 2008 ZAP Xebra at 3,
10 (test date: May 16, 2012–June 27, 2012).
61 The potential penalty for each violation of such
requirements is $6,000. 49 U.S.C. 30165(a)(1); 49
CFR 578.6.
62 See Recall No. 12V–230, Part 573 Report § VI
(prepared May 18, 2012); Recall No. 12V–363, Part
573 Report § VI (prepared July 18, 2012).
63 This conflicts with the notifications sent to
owners, which told owners: ‘‘Please contact your
ZAP/Voltage Vehicles dealer as soon as possible to
arrange a service date so the dealer may order the
necessary parts for the repair * * * Your ZAP/
Voltage Vehicles dealer is best equipped to obtain
parts and provide service to ensure that your
vehicle is corrected as promptly as possible.’’ ZAP,
Response to Special Order, Sch. D–E (July 30,
2012). While there was no mention of a repair kit
in the owner letters, ZAP indicated that it sent 56
kits out to customers. See ZAP, Response to Special
Order, Interrogatory No. 7 (July 30, 2012).
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Jkt 226001
vehicle on a car lift and removing all of
its wheels, removing and replacing
brake reservoirs, removing and
replacing brake pressure sensors,
replacing brake lines, replacing brake
pads, installing a proportioning valve,
and rewiring brake sensors and floats.64
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.
V. Decision to Conduct a Public Hearing
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. See 49 U.S.C. 30118(e), 30120(e);
49 CFR 557.6(d), 557.7. NHTSA will
conduct the public hearing in the
Oklahoma City room of the U.S.
Department of Transportation
Conference Center, located on the first
floor of the West Building at 1200 New
Jersey Avenue SE., Washington, DC
20590. Any interested person may make
written and/or oral presentations of
information, views, and arguments on
whether ZAP has reasonably met the
notification and/or remedy
requirements. There will be no crossexamination of witnesses. 49 CFR 557.7.
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.
Procedural Matters: Interested
persons may participate in these
proceedings through written and/or oral
presentations. Persons wishing to attend
must notify Sabrina Fleming, National
Highway Traffic Safety Administration,
1200 New Jersey Avenue SE.,
Washington, DC 20590 (Telephone:
202–366–9896) (Fax: 202–366–3081),
before the close of business on October
2, 2012 (and September 28, 2012 for
non-U.S. citizens). Each person wishing
to attend must provide his or her name
and country of citizenship. Non-U.S.
citizens must also provide date of birth,
64 ZAP, Response to Special Order, Sch. B (July
30, 2012).
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title or position, and passport or
diplomatic ID number, along with
expiration date. Each person wishing to
make an oral presentation must also
specify the amount of time that the
presentation is expected to last, his or
her organizational affiliation, phone
number, and email address. NHTSA
will prepare a schedule of presentations.
Depending upon the number of persons
who wish to make oral presentations
and the anticipated length of those
presentations, NHTSA may add an
additional day or days to the hearing,
and/or may limit the length of oral
presentations.
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 FOR FURTHER INFORMATION
CONTACT section above no later than
September 28, 2012. A transcript of the
proceedings will be placed in the docket
for this notice at a later date.
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 ADDRESSES
section of this notice.
Authority: 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.
Issued: September 7, 2012.
Daniel C. Smith,
Senior Associate Administrator for Vehicle
Safety.
[FR Doc. 2012–22612 Filed 9–12–12; 8:45 am]
BILLING CODE 4910–59–P
DEPARTMENT OF THE TREASURY
Submission for OMB Review;
Comment Request
September 10, 2012.
The Department of the Treasury will
submit the following information
collection request to the Office of
Management and Budget (OMB) for
review and clearance in accordance
with the Paperwork Reduction Act of
1995, Public Law 104–13, on or after the
date of publication of this notice.
DATES: Comments should be received on
or before October 15, 2012 to be assured
of consideration.
ADDRESSES: Send comments regarding
the burden estimate, or any other aspect
of the information collection, including
suggestion for reducing the burden, to
(1) Office of Information and Regulatory
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]]>Agencies
[Federal Register Volume 77, Number 178 (Thursday, September 13, 2012)]
[Notices]
[Pages 56703-56708]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-22612]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2012-0133]
Public Hearing to Determine Whether ZAP Has Met Notification and
Remedy Requirements
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Notice of public hearing.
-----------------------------------------------------------------------
SUMMARY: NHTSA will hold a public hearing on whether ZAP,\1\ a publicly
owned company based in Santa Rosa, California, has reasonably met its
obligations to notify owners, purchasers, and dealers of noncompliances
with Federal Motor Vehicle Safety Standard (FMVSS) No. 122, Motorcycle
brake systems, and to remedy those noncompliances in two recalls
involving Model Year (MY) 2008 ZAP Xebra three-wheeled vehicles, which
ZAP imported from China.
---------------------------------------------------------------------------
\1\ ZAP also does business as ZAP Jonway. See https://www.zapworld.com/.
DATES: The public hearing will be held beginning at 10 a.m. ET on
October 9, 2012 in the Oklahoma City room of the U.S. Department of
Transportation Conference Center, located at 1200 New Jersey Avenue
SE., Washington, DC 20590. NHTSA recommends that all persons attending
the proceedings arrive at least 45 minutes early in order to facilitate
entry into the Conference Center. NHTSA cannot ensure that late
arrivals will be permitted access to the hearing. Attendees are
strongly discouraged from bringing laptop computers to the hearing, as
they will be subject to additional security measures. If you wish to
attend or speak at the hearing, you must register in advance no later
than October 2, 2012 (and September 28, 2012 for non-U.S. citizens), by
following the instructions in the Procedural Matters section of this
notice. NHTSA will consider late registrants to the extent time and
space allows, but cannot ensure that late registrants will be able to
attend or speak at the hearing. To ensure that NHTSA has an opportunity
to consider comments, NHTSA must receive written comments by October 2,
---------------------------------------------------------------------------
2012.
ADDRESSES: You may submit comments to the docket number identified in
the heading of this document by any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Docket Management Facility, M-30, U.S. Department of
Transportation, West Building, Ground Floor, Rm. W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590.
Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.
Fax: (202) 493-2251.
Regardless of how you submit your comments, you should mention the
docket number of this document.
You may call the Docket at 202-366-9324.
Note that all comments received will be posted without change to
https://www.regulations.gov, including any personal information
provided.
[[Page 56704]]
FOR FURTHER INFORMATION CONTACT: For registration to attend or speak at
the public hearing: Sabrina Fleming, National Highway Traffic Safety
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590
(Telephone: 202-366-9896) (Fax: 202-366-3081). For hearing procedures:
Kerry Kolodziej, Office of the Chief Counsel, National Highway Traffic
Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590
(Telephone: 202-366-5263) (Fax: 202-366-3820). Information regarding
the recalls is available on NHTSA's Web site: https://www.safercar.gov.
To find these recalls: (1) In the drop-down menu under ``Safety
Recalls,'' search for a recall by vehicle; (2) select model year 2008;
(3) select ZAP as the make; (4) select Xebra as the model; and (5)
click ``Retrieve Recalls.'' Once information on the recalls is
displayed, clicking on the ``Document Search'' buttons will display
recall-related documents.
SUPPLEMENTARY INFORMATION: 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, Motorcycle brake systems (49 CFR
571.122), and to remedy those noncompliances. The noncompliances are
the subject of two recall campaigns, Recall Nos. 09V-177/12V-230 and
09V-385/12V-363.
I. Initiation of a Recall
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).
II. Notification Requirements
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); see 49 CFR part 573; 49 CFR part 577.\2\
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\2\ A manufacturer is required to furnish NHTSA with a copy of
each communication involving a recall that the manufacturer issued
to, or made available to, more than one dealer, distributor, lessor,
lessee, other manufacturer, owner, or purchaser, no later than five
working days after the end of the month in which it is issued. 49
CFR 579.5.
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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).\3\ If the
owner cannot be reasonably ascertained, the manufacturer shall notify
the most recent purchaser known to the manufacturer. 49 U.S.C.
30119(d); 49 CFR 577.7(a)(2)(i). As explained in NHTSA's Safety Recall
Compendium: ``It is critically important that owners be informed
promptly of unreasonable risks to their safety and failures of their
products to meet minimum safety standards, and even in those cases
where the manufacturer may not have perfected its free remedy or may
not have sufficient parts to be able to remedy all the recalled
products for all owners immediately. Accordingly, it is expected that
manufacturers issue their owner notification letters within 60 days of
making a safety defect or noncompliance decision.'' \4\
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\3\ Among other things, the notification to owners must contain
a clear description of the noncompliance, an evaluation of the risk
to motor vehicle safety reasonably related to the noncompliance, the
measures to be taken to obtain a remedy of the noncompliance, and
the earliest date on which the noncompliance will be remedied
without charge. 49 U.S.C. 30119(a); see 49 CFR part 577.
\4\ NHTSA, Safety Recall Compendium at 7-8, https://www-odi.nhtsa.dot.gov/cars/problems/recalls/documents/recompendium.pdf.
---------------------------------------------------------------------------
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; see 49 U.S.C. 30112(a)(1) (prohibiting a person from
selling or offering for sale a vehicle that does not comply with an
applicable FMVSS).
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. See 49 U.S.C.
30118(e), 30165(a)(1). A person that violates the Safety Act, including
the notification requirements, or regulations prescribed thereunder, is
liable to the United States Government for a civil penalty of not more
than $6,000 for each violation. A separate violation occurs for each
motor vehicle and for each failure to perform a required act. The
maximum penalty for a related series of violations is $17,350,000. 49
U.S.C. 30165(a)(1); 49 CFR 578.6.
III. Remedy Requirements
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
[[Page 56705]]
the remedy requirements, it shall order the manufacturer to take
specified action to meet those requirements, including by ordering the
manufacturer to refund the purchase price of the noncomplying vehicles,
less a reasonable allowance for depreciation. 49 U.S.C. 30120(a), (c),
(e). NHTSA may also take any other action authorized by the Safety Act,
including assessing civil penalties. See 49 U.S.C. 30120(e),
30165(a)(1). A person that violates the Safety Act, including the
remedy requirements, or regulations prescribed thereunder, is liable to
the United States Government for a civil penalty of not more than
$6,000 for each violation. A separate violation occurs for each motor
vehicle and for each failure to perform a required act. The maximum
penalty for a related series of violations is $17,350,000. 49 U.S.C.
30165(a)(1); 49 CFR 578.6.
IV. MY 2008 ZAP Xebra
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. See 49 CFR 571.3(b).
A. NHTSA's Investigation of the MY 2008 ZAP Xebra
In late 2008, NHTSA tested a NHTSA-owned MY 2008 ZAP Xebra for
compliance with FMVSS No. 122, Motorcycle brake systems, at
Transportation Research Center Inc. (TRC) in East Liberty, Ohio.\5\
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\5\ See NHTSA, Safety Compliance Testing for FMVSS 122, Final
Report No. 122-TRC-10-004 (Nov. 8, 2010). The test report is
publicly available by searching on https://www.nhtsa.gov/cars/problems/comply/.
---------------------------------------------------------------------------
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, Service brake system, because the service brakes were not
capable of stopping the motorcycle from 30 m.p.h. within 54 feet during
NHTSA's testing. Second, following the burnishing procedure specified
in the Standard, the vehicle did not comply with FMVSS No. 122, S5.3,
Service brake system--second effectiveness, because the service brakes
were not capable of stopping the motorcycle from 30 m.p.h. within 43
feet during NHTSA's testing. Due to these apparent noncompliances with
the stopping distance requirements, NHTSA terminated its testing of the
vehicle after the second effectiveness test.
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, S5.1.2.1, Master cylinder
reservoirs, because it did not have a separate reservoir for each brake
circuit with each reservoir filler opening having its own cover, seal,
and cover retention device. Second, the vehicle did not comply with
FMVSS No. 122, S5.1.2.2, Reservoir labeling, because the label was not
correctly worded and some of the letters were not at the minimum
required height. Finally, the vehicle did not comply with FMVSS No.
122, S5.1.3.1, Failure indicator lamp, because the vehicle did not have
a failure indicator lamp (which is required to activate for pressure
failure, low fluid, and momentarily when the ignition switch is turned
to the ``on'' or ``start'' position).
NHTSA notified ZAP of the apparent noncompliances with the stopping
distance and reservoir labeling requirements on April 9, 2009.\6\ NHTSA
notified ZAP of the apparent noncompliance with the master cylinder
reservoir requirement on August 21, 2009.\7\ NHTSA notified ZAP of the
apparent noncompliance with the failure indicator lamp requirement on
approximately June 9, 2010.\8\
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\6\ Letter from H. Thompson, NHTSA to G. Starr, ZAP (Apr. 9,
2009).
\7\ Email from S. Seigel, NHTSA to J. Long, ZAP (Aug. 21, 2009).
\8\ Phone call log of S. Seigel, NHTSA (June 9, 2010).
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B. ZAP's Notifications to NHTSA of FMVSS No. 122 Noncompliances
1. Initial Recall Campaigns (Recall Nos. 09V-177 and 09V-385) \9\
---------------------------------------------------------------------------
\9\ The Part 573 Reports and other documents relevant to the
recalls are available at www.safercar.gov.
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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.\10\
NHTSA assigned Recall Number 09V-177 to this recall campaign.
---------------------------------------------------------------------------
\10\ Recall No. 09V-177, Part 573 Report (prepared May 18,
2009). Although ZAP submitted the Part 573 Report to NHTSA, it
stated that Qingqi Group decided on April 27, 2009 that the
noncompliance existed. Compliance with recall regulations by either
the fabricating manufacturer or the importer of a vehicle is
considered compliance by both. 49 CFR 573.3(b). Nothing herein
limits Qingqi Group's responsibilities and liabilities for the
noncompliances of these vehicles.
---------------------------------------------------------------------------
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, Master cylinder reservoirs.\11\
NHTSA assigned Recall Number 09V-385 to this recall campaign. ZAP
subsequently submitted an untimely petition for inconsequential
noncompliance, see 49 CFR 556.4(c), which NHTSA denied on November 25,
2009.\12\ ZAP then submitted an amended Part 573 Report, prepared on
December 9, 2009, for this noncompliance.\13\
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\11\ Recall No. 09V-385, Part 573 Report (prepared Sept. 30,
2009). Based on this Part 573 Report, ZAP decided that the
noncompliance existed on September 30, 2009.
\12\ Letter from C. Harris, NHTSA to J. Long, ZAP (Nov. 25,
2009).
\13\ Recall No. 09V-385, Amended Part 573 Report (prepared Dec.
9, 2009).
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Most recently, ZAP reported that there are 691 vehicles subject to
the recalls.\14\
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\14\ Recall 09V-177, Quarterly Report (dated July 30, 2012);
Recall 09V-385, Quarterly Report (dated July 30, 2012). ZAP
initially reported there were 738 vehicles subject to the recalls,
but has not explained why the number has changed. See Recall No.
09V-177, Part 573 Report II; Recall No. 09V-385, Part 573 Report
Sec. II.
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2. Renewed Recall Campaigns (Recall Nos. 12V-230 and 12V-363)
At NHTSA's request, ZAP initiated renewed recall campaigns for
these FMVSS No. 122 noncompliances. After several months of delay,\15\
ZAP submitted a new Part 573 Report, prepared May 18, 2012, addressing
the noncompliance with the stopping distance requirements.\16\ NHTSA
assigned Recall Number 12V-230 to this renewed recall campaign
(previously designated as Recall No. 09V-177). ZAP later submitted a
new Part 573 Report, prepared on July 18, 2012, for the noncompliance
with the master cylinder reservoir requirement.\17\ NHTSA assigned
Recall Number 12V-363 to this renewed recall campaign (previously
designated as Recall No. 09V-385).
---------------------------------------------------------------------------
\15\ See Letter from S. Schneider, ZAP to H. Thompson and S.
Seigel, NHTSA (Dec. 10, 2011); Letter from S. Schneider, ZAP to H.
Thompson, NHTSA (Apr. 2, 2012).
\16\ Recall No. 12V-230, Part 573 Report (prepared May 18,
2012).
\17\ Recall No. 12V-363, Part 573 Report (prepared July 18,
2012).
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3. Other Apparent Noncompliances Identified by NHTSA
As discussed above, NHTSA also identified apparent noncompliances
with FMVSS No. 122, S5.1.2.2, Reservoir labeling, and with FMVSS No.
122, S5.1.3.1, Failure indicator lamp. To date, ZAP has not submitted a
Part 573 Report to notify NHTSA that it has
[[Page 56706]]
decided in good faith that the MY 2008 ZAP Xebra does not comply with
these aspects of FMVSS No. 122.\18\ However, as discussed below, ZAP's
repair remedy does purport to address these apparent noncompliances.
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\18\ ZAP likewise has not notified owners, purchasers, and
dealers regarding these apparent noncompliances.
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C. ZAP's Recall Notifications to Owners, Purchasers, and Dealers
1. Initial Recall Campaigns (Recall Nos. 09V-177 and 09V-385)
ZAP used an internal customer warranty database as its sole source
of contact information for its recall notifications to owners and/or
purchasers.\19\ ZAP repeatedly represented to NHTSA that it was working
to obtain information on registered owners.\20\ However, as of its July
30, 2012 response to a Special Order from NHTSA seeking additional
information regarding the recalls, ZAP stated that it still had not
obtained contact information for registered owners of MY 2008 ZAP
Xebras, from State records or other available sources.\21\ See 49 CFR
577.7(a)(2)(i).
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\19\ See ZAP, Response to Special Order, Interrogatory No. 6
(July 30, 2012).
\20\ See Letter from S. Schneider, ZAP to H. Thompson and S.
Seigel, NHTSA (Dec. 10, 2011); Letter from S. Schneider, ZAP to H.
Thompson, NHTSA (Apr. 2, 2012); Letter from S. Schneider, ZAP to J.
Timian, NHTSA (May 28, 2012).
\21\ See ZAP, Response to Special Order, Interrogatory No. 8
(July 30, 2012). ZAP represented in its Special Order response that
it had entered into a contract with R.L. Polk to search for
registered owners of the vehicles, and that it would take R.L. Polk
approximately a month to complete the work. ZAP, Response to Special
Order, Interrogatory No. 8 (July 30, 2012).
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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.\22\ However, in quarterly
reports, also dated July 30, 2012, ZAP indicated that it began
notifying purchasers of both recalls in January of 2010. ZAP's owner
letters indicated that owners should contact a dealer as soon as
possible to arrange for repair.\23\
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\22\ ZAP, Response to Special Order, Interrogatory No. 6 (July
30, 2012).
\23\ ZAP, Response to Special Order, Sch. D-E (July 30, 2012).
---------------------------------------------------------------------------
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.\24\ Therefore, it is not known whether ZAP sent a notification
letter to each individual or business listed in its customer warranty
database.\25\ In ZAP's most recent quarterly reports to NHTSA for these
recalls, dated July 30, 2012, ZAP did not provide a date that its
notification to purchasers was completed, instead responding that the
notification process was continuing.\26\ In its response to NHTSA's
Special Order, ZAP explained that it plans to send additional
notifications once it confirms through vehicle testing that it has an
effective repair remedy.\27\
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\24\ See NHTSA, Special Order to ZAP, Interrogatory No. 6 (July
13, 2012). NHTSA's regulations require each manufacturer of a motor
vehicle to maintain a list of the names and addresses of registered
owners, as determined through State motor vehicle registration
records or other sources or the most recent purchasers where the
registered owners are unknown, for all vehicles involved in a
noncompliance notification campaign. The list shall include the VIN
for each vehicle and the status of remedy with respect to each
vehicle. Each vehicle manufacturer shall also maintain a list of the
names and addresses of all dealers and distributors to which a
noncompliance notification was sent. 49 CFR 573.8(a).
\25\ ZAP's customer warranty database only appears to include
contact information related to approximately 116 MY 2008 ZAP Xebras
(identified by VIN). Based on its most recent quarterly reports,
dated July 30, 2012, there are 691 vehicles subject to these
recalls.
\26\ Recall 09V-177, Quarterly Report (dated July 30, 2012);
Recall 09V-385, Quarterly Report (dated July 30, 2012).
\27\ ZAP, Response to Special Order, Interrogatory Nos. 8-9
(July 30, 2012).
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In October 2011, NHTSA requested that ZAP renotify owners of Recall
Nos. 09V-177 and 09V-385.\28\ See 49 U.S.C. 30119(e). In its Special
Order, NHTSA asked ZAP to provide a list including name, address, and
date for each owner to whom ZAP sent a renotification letter for these
recalls.\29\ ZAP failed to respond.\30\ Thus, it appears that ZAP has
not sent out any renotification letters, despite repeatedly promising
to do so.\31\
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\28\ See, e.g., Letter from R. Willard, NHTSA to S. Schneider,
ZAP (Oct. 6, 2011) (Recall No. 09V-177); Letter from R. Willard,
NHTSA to S. Schneider, ZAP (Oct. 11, 2011) (Recall No. 09V-385).
\29\ NHTSA, Special Order to ZAP, Interrogatory No. 6 (July 13,
2012).
\30\ See ZAP, Response to Special Order, Interrogatory No. 6
(July 30, 2012).
\31\ See Letter from S. Schneider, ZAP to H. Thompson and S.
Seigel, NHTSA (Dec. 10, 2011); Letter from S. Schneider, ZAP to H.
Thompson, NHTSA (Apr. 2, 2012); see also Letter from J. Timian,
NHTSA, to S. Schneider, ZAP (Mar. 9, 2012) (indicating that NHTSA
had not received draft renotification letters or evidence of
renotification).
---------------------------------------------------------------------------
It also appears ZAP never sent MY 2008 ZAP Xebra dealers the
required notification of Recall Nos. 09V-177 and 09V-385. See 49 CFR
577.13. ZAP has not sent NHTSA a representative copy of any dealer
notification. Although ZAP's customer warranty database appears to
include some dealers, it is not clear whether it includes all MY 2008
ZAP Xebra dealers. Furthermore, as noted above, NHTSA is not aware
whether ZAP sent each individual and business listed in that database a
notification.\32\ Moreover, the notifications ZAP sent were addressed
to owners and did not include information required to be disclosed to
dealers, including the advisory regarding sales or leases of
noncompliant vehicles.\33\ See 49 CFR 577.13. Dealers, including ZAP's
wholly owned subsidiary, Voltage Vehicles, have continued to offer for
sale and sell MY 2008 ZAP Xebras despite the recalls.\34\
---------------------------------------------------------------------------
\32\ ZAP's customer warranty database indicates that some
vehicles are still for sale, despite the prohibition against
offering for sale a motor vehicle that does not comply with
applicable FMVSSs. See 49 U.S.C. 30112(a)(1); ZAP, Response to
Special Order, Sch. F (July 30, 2012).
\33\ ZAP, Response to Special Order, Sch. D-E (July 30, 2012).
\34\ See, e.g., https://www.voltagevehicles.com/; Letter from S.
Schneider, ZAP to J. Timian, NHTSA (May 28, 2012) (indicating that
ZAP has 9 vehicles ``sold--in inventory,'' which are reserved for
certain customers).
---------------------------------------------------------------------------
2. Renewed Recall Campaigns (Recall Nos. 12V-230 and 12V-363)
ZAP has not sent out any notification letters to owners,
purchasers, or dealers of the renewed recall campaigns.\35\ ZAP
represented in its July 30, 2012 response to the Special Order that it
does not plan to send additional notifications until it confirms
through vehicle testing that it has an effective repair remedy.\36\ ZAP
did not indicate any plans to send dealer notifications for the renewed
recall campaigns.
---------------------------------------------------------------------------
\35\ See ZAP, Response to Special Order, Interrogatory No. 6
(July 30, 2012).
\36\ See ZAP, Response to Special Order, Interrogatory Nos. 8-9
(July 30, 2012). In its Part 573 Reports initiating the renewed
recalls, ZAP indicated that it will send notices to purchasers of
the MY 2008 ZAP Xebra sedan once it has confirmed through vehicle
testing that it has an effective repair remedy. According to those
Part 573 Reports, 337 of the 691 vehicles subject to the recalls are
sedans. ZAP did not indicate that it plans to send notifications to
owners and purchasers of MY 2008 ZAP Xebra trucks, which are 354 of
the 691 vehicles subject to the recalls.
---------------------------------------------------------------------------
D. ZAP's Repair Remedy
ZAP elected the remedy of repairing the FMVSS No. 122
noncompliances subject to the recalls. See 49 U.S.C. 30120(a). However,
as of the end of July 2012, ZAP conceded none of the vehicles subject
to the recalls has been fully and successfully repaired.\37\ While
[[Page 56707]]
ZAP previously reported that some vehicles had been remedied, ZAP
acknowledged that those vehicles will need to be re-remedied.\38\
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\37\ See Recall 09V-177, Quarterly Report (dated July 30, 2012)
(indicating ``[s]ince we have not successfully passed the Testing,
none of the reported vehicles fixed can be reported as successfully
completed'').
\38\ See ZAP, Response to Special Order, Interrogatory No. 9
(July 30, 2012). NHTSA has also received complaints from MY 2008 ZAP
Xebra owners that their vehicles were not repaired. See www-odi.nhtsa.dot.gov/complaints (NHTSA ODI Nos. 10320166 and 10415384).
---------------------------------------------------------------------------
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.\39\ ZAP elected not to
implement this remedy, and contracted with Wilwood Engineering
(Wilwood) to develop a different repair remedy. Wilwood provided ZAP
with a report in April 2010 recommending certain modifications for the
vehicle to meet the requirements of FMVSS No. 122.\40\ Wilwood's
recommendations addressed the stopping distance and master cylinder
requirements, which are the subject of the recalls. Additionally,
Wilwood recommended that, to meet FMVSS No. 122, the reservoirs or caps
need to have a warning statement (FMVSS No. 122, S5.1.2.2), and the
indicator on the dash needs to have a legend that reads ``Brake
Failure'' and needs to turn on momentarily when the key is moved to the
``on'' or ``start'' position (FMVSS No. 122, S5.1.3.1).\41\
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\39\ Letter from S. Schneider, ZAP to H. Thompson, NHTSA (Apr.
2, 2012).
\40\ See ZAP, Response to Special Order, Sch. C (July 30, 2012).
\41\ ZAP, Response to Special Order, Sch. C at 6 (July 30,
2012).
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After receiving Wilwood's recommendations, between May and December
2010, ZAP purported to repair the NHTSA-owned MY 2008 ZAP Xebra.\42\
Prior to retesting its vehicle, NHTSA made repeated inquiries of ZAP to
confirm that ZAP performed its proposed repair remedy on the vehicle.
After ZAP was unresponsive to NHTSA's informal requests,\43\ NHTSA sent
a formal Information Request (IR) to ZAP on November 22, 2011.\44\ ZAP
responded on December 10, 2011.\45\ ZAP stated in its response that it
was unable to confirm what modifications were made to the NHTSA-owned
vehicle and vehicles in the field, and that additional modifications
may be necessary to the vehicles to ensure full compliance with FMVSS
No. 122. ZAP also indicated that it would use an independent third-
party testing facility to confirm that its repair remedy would make the
vehicles compliant with FMVSS No. 122.\46\
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\42\ See Letter from H. Thompson, NHTSA, to S. Schneider, ZAP
(Nov. 22, 2011).
\43\ ZAP has also repeatedly failed to file required quarterly
reports regarding the recalls. See, e.g., Letter from R. Willard,
NHTSA to S. Schneider, ZAP (Oct. 6, 2011) (Recall No. 09V-177);
Letter from R. Willard, NHTSA to S. Schneider, ZAP (Oct. 11, 2011)
(Recall No. 09V-385).
\44\ Letter from H. Thompson, NHTSA, to S. Schneider, ZAP (Nov.
22, 2011).
\45\ Letter from S. Schneider, ZAP to H. Thompson, NHTSA (Dec.
10, 2011).
\46\ Letter from S. Schneider, ZAP to H. Thompson, NHTSA (Dec.
10, 2011).
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NHTSA sent a second IR to ZAP on March 9, 2012 to obtain additional
information regarding the status of the recalls.\47\ ZAP responded on
April 2, 2012.\48\ ZAP stated that it had contracted with KARCO
Engineering (KARCO) in January 2012 to test a repaired MY 2008 ZAP
Xebra, and that the vehicle failed to meet the FMVSS No. 122 stopping
distance requirements based on KARCO's testing. KARCO retested the
vehicle in March 2012, and it again failed to meet the stopping
distance requirements. ZAP indicated that it had since made additional
modifications to the vehicle and would send the vehicle back to KARCO
for further testing. ZAP represented that it expected to be able to
implement a repair remedy by July 15, 2012.\49\
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\47\ Letter from J. Timian, NHTSA, to S. Schneider, ZAP (Mar. 9,
2012).
\48\ Letter from S. Schneider, ZAP to H. Thompson, NHTSA (Apr.
2, 2012). At that time, ZAP represented that if it has not developed
a successful repair remedy by September 30, 2012, it will initiate a
repurchase campaign. However, ZAP subsequently claimed to have
developed a repair remedy that will bring the recalled vehicles into
full compliance with FMVSS No. 122. ZAP, Response to Special Order,
Interrogatory No. 1 (July 30, 2012).
\49\ Letter from S. Schneider, ZAP to H. Thompson, NHTSA (Apr.
2, 2012). Although ZAP recognized at that time that it had not yet
developed a repair remedy that brings the vehicles into full
compliance with FMVSS No. 122, it continued to report to NHTSA that
it had remedied vehicles. See Recall No. 09V-177, Quarterly Report
(May 7, 2012).
---------------------------------------------------------------------------
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.\50\ KARCO's test report further
indicated that the vehicle's brake failure indicator lamp did not meet
the minimum height requirement of three-thirty seconds of an inch.\51\
See 49 CFR 571.122, S5.1.3.1(d).\52\
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\50\ See KARCO, Response to Special Order, Interrogatory No. 1
(July 30, 2012). According to KARCO, the vehicle initially did not
pass the first effectiveness test. ZAP requested that KARCO make
modifications to the vehicle; through trial and error modifications,
the vehicle subsequently passed the first effectiveness test.
However, the vehicle could not pass the second effectiveness test,
and testing was terminated. KARCO, Response to Special Order,
Interrogatory No. 1 (July 30, 2012).
\51\ KARCO, Response to Special Order, Ex. Test Report for ZAP
Jonway, 2008 ZAP Xebra at 3, 10 (test date: May 16, 2012-June 27,
2012).
\52\ As of July 30, 2012, KARCO indicated that no further
testing was planned. See KARCO, Response to Special Order,
Interrogatory No. 3 (July 30, 2012). ZAP, on the other hand,
indicated in its July 30, 2012 response to NHTSA's Special Order
that it planned to send its mechanic to KARCO between August 6 and
20, 2012 to make further modifications to the vehicle, which would
then be retested by KARCO. ZAP, Response to Special Order,
Interrogatory Nos. 4, 5 (July 30, 2012). However, as of August 20,
2012, KARCO indicated that ZAP had picked up the vehicle from
KARCO's facility.
---------------------------------------------------------------------------
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.\53\
ZAP cited the recommendations provided to it by Wilwood in April 2010
as the basis for its contention that this remedy will bring the
vehicles into full compliance.\54\ ZAP did not provide any test results
or other information demonstrating that its repair remedy will make the
vehicles fully compliant with FMVSS No. 122, and instead indicated that
it planned further testing at KARCO to confirm its belief that this
latest repair remedy is effective.\55\ However, according to KARCO's
response to NHTSA's Special Order, no further testing was planned.\56\
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\53\ ZAP, Response to Special Order, Interrogatory No. 1 (July
30, 2012). The repair remedy identified by ZAP in response to the
Special Order included the heading ``Xebra 2008--Dealer Power Brake
Recall Fix--Version 6.'' See ZAP, Response to Special Order, Sch. B
at 3 (July 30, 2012). However, a later version (Version 7) of this
document was attached as Exhibit A to ZAP's earlier Part 573 Report
for Recall No. 12V-230.
\54\ See ZAP, Response to Special Order, Interrogatory No. 2
(July 30, 2012).
\55\ See ZAP, Response to Special Order, Interrogatory Nos. 4-5
(July 30, 2012).
\56\ See KARCO, Response to Special Order, Interrogatory No. 3
(July 30, 2012).
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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.\57\ However, another portion of ZAP's response indicated that
additional modifications are needed to the vehicle.\58\
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\57\ Compare ZAP, Response to Special Order, Interrogatory Nos.
1-2 (July 30, 2012), with ZAP, Response to Special Order, Request
for the Production of Documents Nos. 1-2 (July 30, 2012).
\58\ See ZAP, Response to Special Order, Interrogatory No. 4
(July 30, 2012).
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ZAP provided a copy of procedures for its repair remedy in response
to the
[[Page 56708]]
Special Order.\59\ The repair remedy purports to address the
noncompliances with the stopping distance and master cylinder reservoir
requirements, which are the subject of the recalls. The remedy also
purports to address the apparent noncompliances NHTSA identified with
FMVSS No. 122, S5.1.2.2, Reservoir labeling, and FMVSS No. 122,
S5.1.3.1, Failure indicator lamp, despite the fact that ZAP has never
submitted a Part 573 Report acknowledging the MY 2008 ZAP Xebra is
noncompliant with those provisions. However, ZAP's procedures to
address the reservoir labeling and the failure indicator lamp do not
satisfy the requirements of FMVSS No. 122.\60\ Moreover, ZAP has failed
to provide notifications to NHTSA and to owners, purchasers, and
dealers of these noncompliances as required by 49 U.S.C. 30118 and 49
CFR Parts 573 and 577.\61\
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\59\ ZAP, Response to Special Order, Sch. A-B (July 30, 2012).
\60\ The reservoir labeling is not worded as required by FMVSS
No. 122, S5.1.2.2. See ZAP, Response to Special Order, Sch. B at 10.
It also appears that the labeling may not be permanently affixed, as
required. See KARCO, Response to Special Order, Ex. Test Report for
ZAP Jonway, 2008 ZAP Xebra at A6 (test date: May 16, 2012-June 27,
2012) (showing peeling label). The failure indicator lamp also does
not have the legend ``Brake Failure,'' as required by FMVSS No. 122,
S1.3.1(d). See KARCO, Response to Special Order, Ex. KARCO 036-KARCO
037 (July 30, 2010) (photographs produced for ``May 2012 Testing'').
According to KARCO, the lamp's lettering also does not comply with
the height requirements of the Standard. KARCO, Response to Special
Order, Ex. Test Report for ZAP Jonway, 2008 ZAP Xebra at 3, 10 (test
date: May 16, 2012-June 27, 2012).
\61\ The potential penalty for each violation of such
requirements is $6,000. 49 U.S.C. 30165(a)(1); 49 CFR 578.6.
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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.\62\ Thus, an owner would either need to bring its vehicle to
Santa Rosa, California (where ZAP is located), or install the remedy
based on ZAP's kit.\63\ The procedures for the repair remedy are over
twenty pages long and require, among other things, placing the vehicle
on a car lift and removing all of its wheels, removing and replacing
brake reservoirs, removing and replacing brake pressure sensors,
replacing brake lines, replacing brake pads, installing a proportioning
valve, and rewiring brake sensors and floats.\64\
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\62\ See Recall No. 12V-230, Part 573 Report Sec. VI (prepared
May 18, 2012); Recall No. 12V-363, Part 573 Report Sec. VI
(prepared July 18, 2012).
\63\ This conflicts with the notifications sent to owners, which
told owners: ``Please contact your ZAP/Voltage Vehicles dealer as
soon as possible to arrange a service date so the dealer may order
the necessary parts for the repair * * * Your ZAP/Voltage Vehicles
dealer is best equipped to obtain parts and provide service to
ensure that your vehicle is corrected as promptly as possible.''
ZAP, Response to Special Order, Sch. D-E (July 30, 2012). While
there was no mention of a repair kit in the owner letters, ZAP
indicated that it sent 56 kits out to customers. See ZAP, Response
to Special Order, Interrogatory No. 7 (July 30, 2012).
\64\ ZAP, Response to Special Order, Sch. B (July 30, 2012).
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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.
V. Decision to Conduct a Public Hearing
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. See 49 U.S.C. 30118(e),
30120(e); 49 CFR 557.6(d), 557.7. NHTSA will conduct the public hearing
in the Oklahoma City room of the U.S. Department of Transportation
Conference Center, located on the first floor of the West Building at
1200 New Jersey Avenue SE., Washington, DC 20590. Any interested person
may make written and/or oral presentations of information, views, and
arguments on whether ZAP has reasonably met the notification and/or
remedy requirements. There will be no cross-examination of witnesses.
49 CFR 557.7.
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.
Procedural Matters: Interested persons may participate in these
proceedings through written and/or oral presentations. Persons wishing
to attend must notify Sabrina Fleming, National Highway Traffic Safety
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590
(Telephone: 202-366-9896) (Fax: 202-366-3081), before the close of
business on October 2, 2012 (and September 28, 2012 for non-U.S.
citizens). Each person wishing to attend must provide his or her name
and country of citizenship. Non-U.S. citizens must also provide date of
birth, title or position, and passport or diplomatic ID number, along
with expiration date. Each person wishing to make an oral presentation
must also specify the amount of time that the presentation is expected
to last, his or her organizational affiliation, phone number, and email
address. NHTSA will prepare a schedule of presentations. Depending upon
the number of persons who wish to make oral presentations and the
anticipated length of those presentations, NHTSA may add an additional
day or days to the hearing, and/or may limit the length of oral
presentations.
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 FOR FURTHER INFORMATION CONTACT section
above no later than September 28, 2012. A transcript of the proceedings
will be placed in the docket for this notice at a later date.
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 ADDRESSES section of this notice.
Authority: 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.
Issued: September 7, 2012.
Daniel C. Smith,
Senior Associate Administrator for Vehicle Safety.
[FR Doc. 2012-22612 Filed 9-12-12; 8:45 am]
BILLING CODE 4910-59-P
