Regulation Masterclass

Recently we reported that ETRA the European Two wheel Retailers’ Association had announced that it had developed a fully-fledged European motorcycle department. We welcomed ETRA as a new “player” in the field of motorcycle representation to contribute to the debate at this critical time of the European Commission’s proposals on anti-tampering and type-approval.

On April 14th ETRA announced its position paper on motorcycles and scooters.

Right to Ride intended simply to report on ETRA’s position on anti-tampering and the regulations on type-approval, but reading ETRA’s position in conjunction with recent announcements from the Commission on anti-tampering, a new can of worms has been opened and hacking our way through the jungle of the Commission’s proposal has led us down another path.

ETRA

While it welcomes the Commission’s proposal ETRA says that it, “Fears that some of the new technical and administrative requirements included in the proposal, might constitute a serious challenge for both the motorcycle industry and type-approval authorities in the Member States.”

ETRA continues, “As a result, ETRA calls on the legislator to ensure sufficient lead-time to put in place the new administrative system at affordable cost. This becomes even more relevant in the current difficult economic context.”

“The European PTWs market is confronted with an unprecedented crisis with a loss in registrations of some 25% compared to 2008, putting high pressure on a sector made up of a very large number of SMEs. Next to the manufacturers and the components suppliers, the distribution sector has just as well been suffering greatly over the last 24 months. This has had an adverse effect on employment. ETRA believes that the legislator should set goals that are achievable for the sector, thus ensuring flexible solutions for industry and hence a smaller increase in costs for the consumer.”

Yes we all know that this is Euro Blah Blah and the translation is simply that ETRA believes the Commission’s proposals are complicated, there is not enough time to put them into place and the cost of implementing the proposals will effect employment in the motorcycle sector and for motorcyclists as the consumer, a significant cost to owning a motorcycle.

ETRA has set out its position in fifteen bullet points many of which are aligned to positions from ACEM (the motorcycle industry representative in Europe), FEMA (Federation of European Motorcyclists Associations) and ourselves.

While ETRA calls on the Commission to provide for the same access to repair information for both authorized and independent dealers, our view is that this information should be made available to repairers in general as it is mainly at present.

Where we disagree with ETRA is their support for the introduction of mandatory fitting of combined braking systems (CBS), and antilock braking system (ABS) – even though they believe that exemptions are needed for certain types of motorcycles, such as trial and enduro. (NB: It must be noted that our understanding of trial and enduro are that these are competition machines and not what would classed as “dual purpose” primary designed for the road but with off road capabilities e.g. BMW 1200GS – Yamaha Super Ténéré).

We also disagree with ETRA’s support for the introduction of mandatory automatic headlights, because there is no evidence that DRL (Dedicated Running Lights) will save lives, and this is simply another get out clause for the car and insurance industries, moving liability to vulnerable road users.

Anti-tampering

ETRA supports the anti-tampering measures for the categories L1Be (mopeds) – anti-tampering measures that are already in place for mopeds – and anti-tampering measures for L3 A1 (light motorcycles) that are already in place for motorcycles less that 125cc.

However, they believe that the anti-tampering measures for the other categories (L3 A2 and L3 A3) – that’s medium and full powered motorcycles – should not be dealt with by a regulation on type-approval.

Thus ETRA has called for the deletion of article 52 (and as a result also article 53) from the current proposal.

(NB: Proposal for a Regulation of the European Parliament and of the Council on the approval and market surveillance of two- or three-wheel vehicles and quadricycles – October 2010 – Click Here– pdf 436kb)

Regulation on Accessories Type-Approval (articles 52/53)

Our interpretation is that according to the Commission’s proposal, after market parts that may pose a significant risk to the correct functioning of systems that are essential for the safety of the vehicle or for its environmental performance will have to be type-approved before being allowed to be sold.

Article 52 (1) says that: “Systems, components or separate technical units that may pose a significant risk to the correct functioning of systems that are essential for the safety of the vehicle or for its environmental performance may not be sold, registered or enter into service shall be prohibited unless they have been authorised by an approval authority.”

Article 52(4) says: “The Commission shall lay down the requirements which such components must fulfil, the marking, packaging and the appropriate tests by means of delegated acts in accordance Articles 76, 77 and 78.”

Article 52(2) also says: “The Commission shall establish a list of the systems, components or separate technical units covered by paragraph 1 by means of delegated acts in accordance with Articles 76, 77 and 78.”

However, “Paragraph 1 shall not apply to original systems, components or separate technical units and to systems, components or separate technical units that are type-approved in accordance with the provisions of one of the acts listed in Annex II, except where the approval relates to aspects other than those covered in paragraph 1.”

“Paragraph 1 shall not apply to systems, components or separate technical units produced for vehicles intended exclusively for racing on roads. If systems, components or separate technical units on a list in a delegated act to this Regulation have a dual use, for vehicles intended exclusively for racing on roads and for vehicles intended for use on public roads, they may not be sold or offered for sale to consumers.”

Moving Swiftly On

If we go to article 53 of the proposal then, “the manufacturer of systems, components or separate technical units shall submit to the approval authority a test report drafted by a designated technical service which certifies that the systems, components or separate technical units for which authorisation is sought comply with the requirements referred to in Article 52(4)”.

In plain speak this seems to mean the breaking down whole vehicle type approval into the type approval of individual parts.

Confused so far?  While this covers systems, components or separate technical units that may pose a significant risk to the correct functioning of systems that are essential for the safety of the vehicle or for its environmental performance, it does not say what these are but it does mention “delegated acts in accordance with Articles 76, 77 and 78.”,

Hold that thought! – Back to Anti-Tampering and Modifications – The Dreaded Article 18

Article 18 of the proposal covers “Measures regarding modifications to the powertrain of vehicles”.

1. ‘Powertrain’ means the components and systems of a vehicle that generate power and deliver it to the road surface, including the engine(s), the engine management systems or any other control module, the pollution control devices, the transmission and its control, either a drive shaft or belt drive or chain drive, the differentials, the final drive, and the driven wheel tyre (radius).

2. L-category vehicles shall be equipped with designated measures to prevent tampering of a vehicle’s powertrain, to be laid down in a delegated act by means of a series of technical requirements and specifications with the aim:

(a) to prevent modifications that may prejudice safety, in particular by increasing vehicle performance through tampering with the powertrain in order to increase the maximum torque and/ or power and/or maximum designed vehicle speed as declared by the manufacturer of a vehicle upon type-approval, and/or

(b) to prevent damage to the environment.

3. The Commission shall lay down the specific requirements regarding the measures referred to in paragraph 2 by means of a delegated act adopted in accordance with Articles 76, 77 and 78.

4. After a modification of the powertrain, a vehicle shall comply with the technical requirements of the initial vehicle category and subcategory, or, if applicable, the new vehicle category and subcategory, which were in force when the original vehicle was sold, registered or entered into service, including the latest amendments to the requirements.

This is where it gets interesting, because it also mentions (apart from safety and damage to the environment), that the aim is to prevent modifications regarding -torque/power/maximum designed speed and compliance from the original vehicle type approval.

As previously mentioned, this delegated act mentions that the Commission will set out the technical requirements and specifications and the delegated act will be adopted in accordance with Articles 76, 77 and 78 in the proposal.

These are the caveats that are supposed to be used by the Commission to adopt amendments, to notify on final decisions or objections to or from the European Parliament and to the Council.

Article 76 confers on the Commission the power to adopt the delegated acts in various articles within the proposal for an indeterminate period of time.

Slight of Hand

However – on the one hand while the Commission and TRL run a competition to prevent harmful modification while protecting harmless modification (anti-tampering by any other name), on the other they want to put into place a system of type approval for all components – other than original components – that “may have a significant safety or emissions risk to the motorcycle”.

This safety and environmental protection has been the whole tack of the Commission’s proposals.  Previous committee meetings in Parliament have looked at safety and emissions and MEPs in those committees have concentrated on the safety and environmental effects.

So while we as motorcyclists are looking at the proposal in detail for assurances that we will not lose the power to modify; contemplating about positive and harmless modifications (anti-tampering); the freedom to modify; freedom of choice; the ins and outs of on mandatory ABS; time frames on introduction of the proposal; access to repair information; On Board Diagnostics (OBD), cost to riders, yada yada, the Commission has, under the umbrella of “simplification of regulations” used its toolbox of tricks to introduce proposals.  According to them, these solutions will be effective to help reduce the high numbers of fatalities and injuries among riders of powered two-wheel vehicles in road accidents in the Union and drive down pollution.

This thrust of “safety” and “pollution” is absolutely fundamental.  Because the whole proposal is being pushed on safety and emissions by the Commission – what MEP will stand up and vote against saving lives and reducing pollution?

The complexity of the Commission’s proposals aside, within the proposals themselves, it appears that on top of the Commission having their cake and eating it, they also want to adopt the contents and amend them without requiring Parliament’s approval, by means of delegated acts.

But this is also where there is confusion, because at the last IMCO meeting Mr van de Camp (rapporteur) stated that he wanted it all to go to Comitology (with noddings of heads in the room from the other MEPs) the reason being – it’s too complicated for your average MEP.

Comitology is a combination of national experts and the Commission. The problem thus far is that if it gets to the Comitology stage, it means that it will already have been voted on in the plenary session (in EU Parliament) and given the grunts and nods by Mr van de Camp et al on anti-tampering, ABS and OBD, at this stage the MEPs in that Committee (IMCO) are indicating that they will vote in favour of the proposals – with some modifications and/or amendments which we will see in the IMCO final report in June.

So back to delegated acts and the regulations on L category vehicles. Delegated acts are an entirely new world, notably with the abolition of Comitology Committees – although it is clear that the Commission will simply use another form of group for discussions, i.e. expert groups and EU agencies.

“The powers of the legislators are now considerable with the discretionary right to revoke either an individual measure or the delegation altogether. Whilst the revocation of an individual measure remains a drastic thing to do, the fact that the legislators can now object on any grounds will open the doors to an increased number of objections – more likely from the Parliament on the back of heavy lobbying.” – Delegated and Implementing Acts: The New Comitology – Click Here

Wanted! A Master Class

As motorcyclists we are very good at saying what we do not want, we are good at debating the issue and good at offering solutions and alternatives.

Perhaps what we are not the best at is the legislative process.

If we called for the deletion of article 52 and article 53 regarding type-approval of systems which are essential for the safety of the vehicle or for its environmental performance from the current proposal, then what solutions as alternatives would be put in place?

MEPs and the Commission would want to know, there is no point in just saying no!

If we look through the proposal and the various articles, then Article 18 which sets out “Measures regarding modifications to the powertrain of vehicles”. which in our opinion is the fundamental basis for the European Commission regarding all motorcycles (L-category vehicles). These would be equipped with designated measures to prevent tampering of a vehicle’s powertrain that may prejudice safety.  In particular by increasing vehicle performance through tampering with the powertrain in order to increase the maximum torque and/ or power and/or maximum designed vehicle speed as declared by the manufacturer of a vehicle upon type-approval, and/or to prevent damage to the environment.

This Article also sets out in point 4 that “After a modification of the powertrain, a vehicle shall comply with the technical requirements of the initial vehicle category and subcategory, or, if applicable, the new vehicle category and subcategory, which were in force when the original vehicle was sold, registered or entered into service, including the latest amendments to the requirements.”

It would be a hard job to simply ask for the deletion of article 18 considering that the IMCO rapporteur has already indicated that he favours tough anti-tampering measures.  What would be put in place as an alternative?

Perhaps the article could be amended to delete point 3, however, as a consequence, this would remove from the legislative process the delegated act, thus “attacking” the fundamentals or power of the European Commission.

This may bring on board MEPs that hold views on the way the EU functions who may have their own political agendas. You could easily move the campaign and lobbying into a new territory for motorcyclists, with the danger of being forced to favour one ideology over another.

It is a delicate path to tread and one where we need a “Master Class”, a combination of Yoda and Obe-Wan-Kanobe to progress towards a cleverer form of lobbying into the legislative process. If not, we may end up with egg on our faces.

May the Force be with you!