[Federal Register Volume 89, Number 180 (Tuesday, September 17, 2024)]
[Notices]
[Pages 76183-76185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-21065]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2019-0077; Notice 2]


Harley-Davidson Motor Company, Denial of Petition for Decision of 
Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration (NHTSA or the 
Agency), Department of Transportation (DOT).

ACTION: Denial of petition.

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SUMMARY: Harley-Davidson Motor Company (Harley-Davidson) has determined 
that certain model year (MY) 2018-2019 Harley-Davidson Softail 
motorcycles do not fully comply with Federal Motor Vehicle Safety 
Standard (FMVSS) No. 120, Tire Selection and Rims and Motor Home/
Recreation Vehicle Trailer Load Carrying Capacity Information for Motor 
Vehicles with a GVWR of more than 4,536 kilograms (10,000 Pounds). 
Harley-Davidson filed a noncompliance report dated June 20, 2019. 
Harley-Davidson subsequently petitioned NHTSA, on July 17, 2019, for a 
decision that the subject noncompliance is inconsequential as it 
relates to motor vehicle safety. This document announces and explains 
the denial of Harley-Davidson's petition.

FOR FURTHER INFORMATION CONTACT: Kamna Ralhan, Office of Vehicle Safety 
Compliance, NHTSA, (202) 366-7236.

SUPPLEMENTARY INFORMATION:

I. Overview

    Harley-Davidson has determined that certain MY 2018-2019 Harley-
Davidson Softail motorcycles do not fully comply with paragraph S5.3.1 
of FMVSS No. 120, Tire Selection and Rims and Motor Home/Recreation 
Vehicle Trailer Load Carrying Capacity Information for Motor Vehicles 
with a GVWR of More Than 4,536 Kilograms (10,000 Pounds) (49 CFR 
571.120). On June 20, 2019, Harley-Davidson filed a noncompliance 
report with NHTSA for the subject motorcycles, pursuant to 49 CFR part 
573, Defect and Noncompliance Responsibility and Reports. On July 17, 
2019, Harley-Davidson petitioned NHTSA for an exemption from the 
notification and remedy requirements of 49 U.S.C. Chapter 301, 
asserting that the noncompliance is inconsequential as it relates to 
motor vehicle safety, pursuant to 49 U.S.C. 30118(d) and 30120(h) and 
49 CFR part 556, Exemption for Inconsequential Defect or Noncompliance.
    Notice of receipt of Harley-Davidson's petition was published with 
a 30-day public comment period, on June 12, 2020, in the Federal 
Register (85 FR 35987). NHTSA did not receive any comments on the 
petition. To view the petition and all supporting documents, log onto 
the Federal Docket Management System (FDMS) website at https://www.regulations.gov/. Then follow the online search instructions to 
locate docket number ``NHTSA-2019-0077.''

II. Motorcycles Involved

    Approximately 12,931 MY 2018-2019 Harley-Davidson Softail FXBB 
Street Bob and FXLR Low Rider motorcycles, manufactured between June 
22, 2017, and June 11, 2019, are potentially involved.

III. Noncompliance

    Harley-Davidson explains that the noncompliance is that the subject 
motorcycles are equipped with a certification label which incorrectly 
states the recommended cold inflation pressure for the front tires and, 
therefore, does not fully comply with paragraph S5.3.1 of FMVSS No. 
120. Specifically, when a motorcycle's tires are set to the inflation 
pressure stated on the certification label, the load ratings of the 
front tires, according to the Tire and Rim Association Year Book (TRA 
Year Book), are less than the stated front gross axle weight ratings 
(GAWR) of the motorcycles.

IV. Rule Requirements

    Paragraphs S5.1.2 and S5.3.1 of FMVSS No. 120 set forth the 
relevant requirements for which Harley-Davidson is claiming an 
inconsequential noncompliance. Pursuant to FMVSS No. 120, S5.1.2, the 
sum of the maximum load ratings of the tires fitted to an axle shall 
not be less than the GAWR of the axle system as specified on the 
vehicle's certification label, which is required by 49 CFR part 567. 
Additionally, FMVSS No. 120, S5.3.1 requires that the sum of the load 
ratings of the tires on each axle, based on the tire size designation 
(not necessarily for the tires on the vehicle) and the recommended cold 
inflation pressure for those tires, is appropriate for the GAWR as 
calculated in accordance with S5.1.2.

V. Summary of Harley-Davidson's Petition

    The following views and arguments presented in this section are the 
views and arguments provided by Harley-Davidson in its petition and do 
not reflect the views of the Agency.
    Harley-Davidson describes the subject noncompliance and states that 
the noncompliance is inconsequential as it relates to motor vehicle 
safety. In support of its petition, Harley-Davidson offers the 
following reasoning:
    The front wheel of the FXBB motorcycle is fitted with a Dunlop 
D401F 100/90-19 57H BW tire as original equipment. The model has a GAWR 
of 450 lbs., but when a motorcycle owner inflates the tire to the 
recommended inflation level that is shown on the certification label 
(i.e., 30 psi), the calculated load rating of the front tire, according 
to the TRA Year Book, is 386 lbs. Because the FXBB's GAWR is 450 lbs., 
the tire's load rating at its recommended inflation pressure is 64 lbs. 
below the required front tire GAWR.
    The front wheel of the FXLR motorcycle is fitted with a Michelin 
Scorcher ``31'' 100/90B19 62H BW tire as original equipment. The front 
axle has a GAWR of 450 lbs., but when a motorcycle owner inflates the 
tire to the recommended inflation level shown on the certification 
label (i.e., 30 psi), the calculated load rating of the front tire, 
according to the TRA Year Book, is 443 lbs. Because the FXLR's GAWR is 
450 lbs., the tire's load rating at its recommended inflation pressure 
is 7 lbs. below the required front tire GAWR.
    Harley-Davidson cites NHTSA as explaining that the GAWR 
``formalizes the decision each manufacturer makes about the load-
bearing ability of the tires, rims, axle, brakes, and suspension 
components (at a minimum) chosen to support and control the loaded 
vehicle.'' See 42 FR 7140 (February 7, 1977). FMVSS No. 120, S5.3.1 
seeks to ensure that the combination of the tire size designation and 
the recommended cold inflation pressure can support and control the 
loaded vehicle.
    In its views, despite the load rating of the tires at the 
recommended inflation pressure falling below the GAWR, Harley-Davidson 
contends that the noncompliant tires were designed to carry a greater 
load than specified. Harley-Davidson supports its position by 
submitting test results conducted by

[[Page 76184]]

its respective tire manufacturers (Michelin and Dunlop) to confirm that 
the subject tires could be safely operated on the motorcycles at 30 psi 
to support the required GAWR of 450 lbs. Accordingly, Harley-Davidson 
believes the noncompliance is inconsequential to motor vehicle safety.
    For the Dunlop tire, Harley-Davidson commissioned an endurance test 
that tracks the testing conditions in FMVSS No. 119, S7.2 and Table 
III. Tires for the test were set to the recommended tire pressure of 41 
psi. The test simulated the three phases of the endurance test detailed 
in Table III of FMVSS No. 119--beginning with maximum sidewall load and 
increasing the load at each phase. The test also added a fourth, 
extended phase that tested the tire at the recommended tire pressure of 
30 psi. The phases break down as follows:
    <bullet> Phase 1: 100% maximum sidewall load (507 lbs.) for 4 hours 
totaling 200 miles;
    <bullet> Phase 2: 108% maximum sidewall load (549 lbs.) for 6 hours 
totaling 300 miles;
    <bullet> Phase 3: 117% maximum sidewall load (594 lbs.) for 24 
hours totaling 1,200 miles; and
    <bullet> Phase 4: 125% of the gross axle load (495 lbs., derived by 
applying the 0.88 correction factor under the FMVSS No. 119 test 
procedure) for 8,300 miles at 30 psi.
    In total, the four-phase endurance test ran the tire for 10,000 
total miles at loads above the stated GAWR of the motorcycles. The tire 
passed all four phases of the endurance test. Based on the endurance 
test results--including the worst-case scenario of Phase 4--the load 
carrying capacity of the Dunlop tire at 30 psi would adequately support 
a GAWR of 450 lbs.
    For the Michelin Scorcher tire, which is the original fitment for 
the FXLR model and optional/replacement fitment for the FXBB model, 
Harley-Davidson worked with Michelin to confirm that the Scorcher 
``31'' could be operated safely at a recommended tire pressure of 30 
psi on both of these models when loaded to the full GAWR of 450 lbs. 
Michelin confirmed the performance of the tires through a high-speed 
test on a smooth drum by inflating the tire to 30 psi, applying a load 
of 450 lbs., and running the tire at a maximum speed of 130 mph. Based 
on its testing, Michelin provided Harley-Davidson with letters 
certifying that the tire would adequately support a GAWR of 450 lbs.
    Harley-Davidson adds that the above-referenced Dunlop and Michelin 
tires are the only fitments specified as original or replacement 
equipment for the two model types of motorcycles. Based upon this 
factor and the test results from its tire manufacturers, Harley-
Davidson concludes that the noncompliance does not expose the riders of 
the noncompliant motorcycles to a significantly greater risk than the 
riders of compliant motorcycles. While the recommended inflation 
pressure of 30 psi would reduce the tire's load rating as stated in the 
TRA Year Book, the tire's actual load carrying capacity is sufficient 
to allow the motorcycles to be safely operated at the full GAWR of 450 
lbs. Accordingly, Harley-Davidson believes that the difference is 
inconsequential to motor vehicle safety. Harley-Davidson also notes 
that NHTSA has previously granted a petition for inconsequential 
noncompliance where the recommended cold inflation pressure on the 
certification label was below the appropriate ``GAWR as calculated in 
accordance with S5.1.2.'' See 55 FR 49365 (November 27, 1990).
    Harley-Davidson concludes by again contending that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety, 
and that its petition to be exempted from providing notification of the 
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the 
noncompliance, as required by 49 U.S.C. 30120, should be granted.

VI. NHTSA's Analysis

    In determining inconsequentiality of a noncompliance, NHTSA focuses 
on the safety risk to individuals who experience the type of event 
against which a recall would otherwise protect.\1\ In general, NHTSA 
does not consider the absence of complaints or injuries when 
determining if a noncompliance is inconsequential to safety. The 
absence of complaints does not mean vehicle occupants have not 
experienced a safety issue, nor does it mean that there will not be 
safety issues in the future.\2\
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    \1\ See Gen. Motors, LLC; Grant of Petition for Decision of 
Inconsequential Noncompliance, 78 FR 35355 (June 12, 2013) (finding 
noncompliance had no effect on occupant safety because it had no 
effect on the proper operation of the occupant classification system 
and the correct deployment of an air bag); Osram Sylvania Prods. 
Inc.; Grant of Petition for Decision of Inconsequential 
Noncompliance, 78 FR 46000 (July 30, 2013) (finding occupant using 
noncompliant light source would not be exposed to significantly 
greater risk than occupant using similar compliant light source).
    \2\ See Morgan 3 Wheeler Limited; Denial of Petition for 
Decision of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 
12, 2016); see also United States v. Gen. Motors Corp., 565 F.2d 
754, 759 (D.C. Cir. 1977) (finding defect poses an unreasonable risk 
when it ``results in hazards as potentially dangerous as sudden 
engine fire, and where there is no dispute that at least some such 
hazards, in this case fires, can definitely be expected to occur in 
the future'').
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    Harley-Davidson explains the noncompliance is that, at the stated 
cold tire inflation front tire pressure listed on the vehicle's 
certification label, the load rating (according to the Tire and Rim 
Association yearbook) may be less than the stated vehicle's front 
GAWRs, and therefore may not comply with FMVSS No. 120, S5.3.1. 
Furthermore, Harley-Davidson asserts that although the certification 
label indicates an inflation pressure for the forward axle/wheel of 30 
psi, the operator is not at a significantly greater safety risk than if 
the front tire/wheel were inflated to the ``correct'' inflation 
pressure that is required to achieve the vehicle's stated GAWR. Harley-
Davidson enlisted both tire manufacturers that it utilizes to outfit 
its motorcycles to conduct additional tire testing to verify that its 
claims are correct.
    For the Dunlop brand tire used on Harley-Davidson's FXBB model 
motorcycles, Harley-Davidson commissioned the manufacturer to perform 
the endurance test of FMVSS No. 119, S7.2 and Table III consisting of 
four phases of various test loading conditions, tire pressures and 
testing miles. Phases 1 through 3 were run for a combined total of 34 
hours and 1,700 miles as well as with load up to 125 percent greater 
than the maximum sidewall load. While for the fourth phase test, Dunlop 
ran the test at a load of 125% of the GAWR (495 lbs.--derived by 
applying the 0.88 correction factor under the FMVSS No. 119 test 
procedures) for a total of 8,300 miles and at 30 psi.
    The Michelin tires used by Harley-Davidson (original fitment on the 
``FXLR'' model and optional/replacement fitment on the FXBB model) were 
also tested by Michelin on a smooth high-speed drum. The tire was 
inflated to 30 psi, run at 130 mph with an applied load of 450 lbs. 
This high-speed test resulted in a duration of 77 minutes and equated 
to a distance of 208 kilometers or 129 miles. Based upon these tests, 
Michelin certified that the tires would adequately support a GAWR of 
450 lbs.
    The supplemental tire testing conducted by the tire manufacturers 
utilized by Harley-Davidson on the subject motorcycles is significant 
and does help NHTSA understand the tire's potential durability at 
initial sale. However, these wheel dynamometer tests and live on-road 
usage over the entire useful life of the tires are not interchangeable. 
The nuances of a dynamic load on a tire combined with

[[Page 76185]]

varying road conditions, weather and driver reactions/abilities is not 
representative of the laboratory tests commissioned by Harley-Davidson. 
In addition, the reductions in tire pressure and load-carrying 
capacities for the given labeling error are significant. At a tire 
pressure of 30 psi for Dunlop 100/90-19 57H tire, there is a 26.8% 
reduction in the required recommended tire pressure of 41 psi, and the 
load-carrying capacity reductions range up to 17% compared to the GAWR 
of the vehicle. Also, the 2023 TRA book suggests that the load-carrying 
capacity of the Dunlop tire (100/90-19 57H) at the recommended tire 
pressure of 35 psi should be able to withstand 450 lb, which is a 14.3% 
difference in the tire pressure. That being said, if the Dunlop tire 
can hold up to 450 lb then the recommended tire pressure on the 
certification label should be 35 psi instead of 30 psi. This 5 psi 
change is significant because it reduces the tire's load carrying 
capacity by 64 lb which is a 17% reduction. In avoiding certain 
crashes, even the slightest change in tire pressure effects vehicle 
safety. If the recommended tire pressure on the certification label is 
30 psi then the GAWR should be 386 lb.
    Furthermore, three out of four of the laboratory endurance tests 
performed to FMVSS No. 119, S7.2 and Table III conducted by Dunlop, 
were set to a recommended tire pressure of 41 psi and not 30 psi. Only 
one endurance test performed by Dunlop was conducted at 30 psi--
representing the pressure the tires would likely experience on-road. 
However, during this test, despite using loading ranging from 11.7% to 
28.2% greater than the GAWR of the vehicle and conducted for 10,000 
miles, these conditions are well below the expected tread life of the 
tires. This factor is heightened given that additional tire pressure 
losses are expected during normal use of the vehicle will reduce the 
load carrying capacity of a tires as the inflation pressure decreases 
from 30 psi. At these pressures, the loading can cause premature tire 
wear and possible failures.
    Consequently, NHTSA disagrees with Harley-Davidson's conclusion 
that the subject noncompliant certification label is inconsequential to 
motor vehicle safety. Without additional notification and/or follow-up, 
it is reasonable to assume motorcycle operators may simply observe and 
fill their tires to the significantly less safe cold tire pressure 
displayed on the incorrect motorcycle's certification label. Combined 
with the lack of real world testing, owner-operators of the subject 
Harley-Davidson motorcycles may be considered to be at increased risk 
of increased bodily harm than those owner-operators which receive a 
unit with the correct compliant certification label.

VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA has decided that Harley-
Davidson has not met its burden of persuasion that the subject FMVSS 
No. 120 noncompliance is inconsequential to motor vehicle safety. 
Accordingly, Harley-Davidson's petition is hereby denied and Harley-
Davidson is consequently obligated to provide notification of and free 
remedy for that noncompliance under 49 U.S.C. 30118 and 30120.

(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49 
CFR 1.95 and 501.8)

Eileen Sullivan,
Associate Administrator for Enforcement.
[FR Doc. 2024-21065 Filed 9-16-24; 8:45 am]
BILLING CODE 4910-59-P