[Federal Register Volume 89, Number 20 (Tuesday, January 30, 2024)]
[Notices]
[Pages 5993-5995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01736]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2022-0058; Notice 2]


Polaris Group of America, Inc., Denial of Petition for Decision 
of Inconsequential Noncompliance

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

ACTION: Denial of petition.

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SUMMARY: Polaris Group of America, Inc., (Polaris), has determined that 
certain motorcycles manufactured by Indian Motorcycle Company do not 
fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 
108, Lamps, Reflective Devices, and Associated Equipment. Indian 
Motorcycle Company, on behalf of Polaris, filed an original 
noncompliance report dated April 13, 2022, and later amended the report 
on September 9, 2022. Polaris petitioned NHTSA on May 13, 2022, for a 
decision that the subject noncompliance is inconsequential as it 
relates to motor vehicle safety. This document announces the denial of 
Polaris's petition.

FOR FURTHER INFORMATION CONTACT: Leroy Angeles, Safety Compliance 
Engineer, Office of Vehicle Safety Compliance, NHTSA, (202) 366-5304.

[[Page 5994]]


SUPPLEMENTARY INFORMATION:

I. Overview

    Polaris determined that certain motorcycles manufactured by Indian 
Motorcycle Company do not fully comply with paragraph S7.3.5 and Table 
I-c of FMVSS No. 108, Lamps, Reflective Devices, and Associated 
Equipment (49 CFR 571.108).
    Indian Motorcycle Company, on behalf of Polaris, filed an original 
noncompliance report dated April 13, 2022, and amended it on September 
9, 2022, pursuant to 49 CFR part 573, Defect and Noncompliance 
Responsibility and Reports. Polaris petitioned NHTSA on May 13, 2022, 
for an exemption from the notification and remedy requirements of 49 
U.S.C. Chapter 301 on the basis that this 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 Polaris's petition was published with a 30-day 
public comment period, on July 3, 2023, in the Federal Register (88 FR 
42814). No comments were received. 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-2022-0058.''

II. Motorcycles Involved

    Approximately 12,619 of the following motorcycles manufactured by 
Indian Motorcycle Company between July 10, 2018, and April 1, 2022, 
were reported by the manufacturer:

 2019-2020, 2022 Indian FTR 1200
 2019-2020, 2022 Indian FTR 1200 S
 2020, 2022 Indian FTR 1200 Rally
 2022 Indian FTR R Carbon
 2020-2022 Indian Challenger
 2020-2022 Indian Challenger Limited
 2020-2021 Indian Challenger Dark Horse
 2022 Challenger Elite
 2022 Indian Challenger Dark Horse Icon
 2022 Indian Challenger JD Limited Edition
 2022 Indian Pursuit Limited
 2022 Indian Pursuit Limited Premium
 2022 Indian Pursuit Limited Premium Icon
 2022 Indian Pursuit Premium Dark Horse
 2022 Indian Pursuit Dark Horse Premium
 2022 Indian Pursuit Dark Horse Premium Icon

III. Noncompliance

    Polaris explains that the subject motorcycles are equipped with a 
specific Antilock Braking System (ABS) module that can cause the 
subject motorcycle to experience stop lamp illumination without the 
application of the service brakes or by a device designed to retard the 
motion of the vehicle during certain riding conditions when a loss of 
wheel contact with the ground occurs.

IV. Rule Requirements

    Stop lamps are lamps that give a steady light to the rear of a 
vehicle to indicate a vehicle is stopping or diminishing speed by 
braking. Paragraph S7.3.5 and Table I-c of FMVSS No. 108 include the 
requirements relevant to this petition. Stop lamps equipped on 
motorcycles must be steady burning. In addition, they must be activated 
upon application of the service brakes or by a device designed to 
retard the motion of the vehicle.

V. Summary of Polaris' Petition

    The following views and arguments presented in this section, ``V. 
Summary of Polaris' Petition,'' are the views and arguments provided by 
Polaris. They do not reflect the views of the Agency. Polaris describes 
the subject noncompliance and contends that the noncompliance is 
inconsequential as it relates to motor vehicle safety.
    Polaris explains that the subject noncompliance occurs due to an 
inadvertent software logic error. Specifically, Polaris says the 
subject noncompliance occurs because a ``loss of wheel contact may 
result in a front and rear wheel speed differential that exceeds the 
calibration threshold within the ABS module software.'' This causes the 
ABS module to provide a signal to the ECM, which then illuminates the 
brake lights, even when there is no brake application by the motorcycle 
user.
    Polaris believes that the subject noncompliance is inconsequential 
to motor vehicle safety because the brake light is illuminated for 500 
milliseconds and only occurs under certain conditions. Polaris says 
that the resulting brake light illumination is ``analogous to a rider 
tapping the brake lever or pedal to cancel cruise control, thereby 
illuminating the lights, but not meaningfully engaging the brake system 
to decelerate.'' Other than the subject noncompliance, Polaris states 
that the affected motorcycles comply with FMVSS No. 108 requirements. 
Furthermore, Polaris says it is not aware of any crashes or injuries 
related to the subject noncompliance.
    Polaris references three previous petitions NHTSA has granted ``for 
lighting requirements where a technical noncompliance exists but does 
not create an adverse effect on safety.''
     In a petition submitted by Daimler Trucks North 
America,\1\ Polaris points to the following NHTSA statement: ``when a 
vehicle with air brakes experiences a low-air event and notifies that 
driver of a brake system malfunction, NHTSA believes that the driver 
would likely respond by pulling over to the side of the road and taking 
the vehicle out of service until the brake system can be repaired.''
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    \1\ Daimler Trucks North America, Grant of Petition for Decision 
of Inconsequential Noncompliance; 87 FR 14325 (March 24, 2022).
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     Polaris cited a decision notice for a General Motor's 
petition for inconsequential noncompliance \2\ and stated that, ``NHTSA 
noted that a number of factors led them to the conclusion that under 
the specific circumstances described in GM's Petition would have a low 
probability of occurrence and would neither be long lasting nor likely 
to occur during a period when parking lamps are generally in use.'' 
Polaris also points to a statement in this petition where NHTSA stated, 
``when the noncompliance does occur, other lamps remain functional. The 
combination of all of the factors, specific to this case, abate the 
risk to safety.''
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    \2\ General Motors, LLC, Grant of Petition for Decision of 
Inconsequential Noncompliance; 83 FR 7847 (February 22, 2018).
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     In a petition submitted by General Motors Corporation,\3\ 
Polaris points to the following NHTSA statement, ``[e]ven if a visible 
CHMSL illumination occurs upon hazard flasher activation, it would 
almost certainly have no adverse effect on safety. However, if a CHMSL 
illuminated due to this condition when the vehicle was on the road, a 
following driver would likely see a brief single flash of the CHMSL. As 
a practical matter, the following driver might not notice this flash at 
all. Even if he or she did, there would seem to be no likelihood of 
driver confusion or inappropriate responses.'' Polaris also points to 
another statement in this petition where NHTSA stated, ``[w]e can 
foresee no negative effects on motor vehicle safety if a vehicle's 
CHMSL is briefly illuminated as described upon activation of the hazard 
warning lamps. The intended use of a hazard warning lamp and the 
momentary activation of

[[Page 5995]]

the CHMSL do not provide a conflicting message. The illumination of the 
CHMSL is intended to signify that the vehicles brakes are being applied 
and that the vehicle might be decelerating. Hazard warning lamps are 
intended as a more general message to nearby drivers that extra 
attention should be given to the vehicle. A brief illumination of the 
CHMSL while activating the hazard warning lamps would not confuse the 
intended general message, nor would the brief illumination in the 
absence of the other brake lamps cause confusion that the brakes were 
unintentionally applied.''
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    \3\ General Motors Corporation; Grant of Application for 
Decision of Inconsequential Noncompliance; 66 FR 32871 (June 18, 
2001).
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VI. NHTSA's Analysis

    The burden of establishing the inconsequentiality of a failure to 
comply with a performance requirement in an FMVSS is substantial and 
difficult to meet. Accordingly, the Agency has not found many such 
noncompliances inconsequential.\4\
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    \4\ Cf. Gen. Motors Corporation; Ruling on Petition for 
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899 
(Apr. 14, 2004) (citing prior cases where noncompliance was expected 
to be imperceptible, or nearly so, to vehicle occupants or 
approaching drivers).
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    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.\5\ 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.\6\ Further, because each inconsequential 
noncompliance petition must be evaluated on its own facts and 
determinations are highly fact-dependent, NHTSA does not consider prior 
determinations as binding precedent. Petitioners are reminded that they 
have the burden of persuading NHTSA that the noncompliance is 
inconsequential to safety.
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    \5\ 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).
    \6\ 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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    Polaris did not elaborate on the sensitivity of the lamp activation 
but did indicate that it can occur while going over a large bump like 
on railroad tracks and rumble strips. The Agency believes that the stop 
lamp illuminating for 500 milliseconds will be noticeable to other road 
users and going over a large bump on the road like railroad tracks or 
rumble strips is not an uncommon occurrence for motorists. Activation 
of the stop lamps for a purpose other than to indicate stopping or 
slowing will create confusion for the driver following the noncompliant 
vehicle as to the meaning of the signal, with the potential of causing 
the following driver to apply the brakes in his or her vehicle 
inappropriately. This is consistent with a decision on a petition by 
Daimler Trucks North America, and in response to a request for 
interpretation from General Motors.\7\ NHTSA continues to adhere to the 
position that inappropriate and misleading activation of stop lamps is 
consequential to safety.
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    \7\ See Daimler Trucks North America, Denial of Petition for 
Decision of Inconsequential Noncompliance, 85 FR 67812 (Oct. 26, 
2020); Letter from F. Seales, Jr., NHTSA, to C. Terry, GM (May 26, 
2000), https://isearch.nhtsa.gov/files/21281.ztv.html.
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    Polaris cited three separate Agency decisions to past petitions for 
inconsequential noncompliance in its petition. The Agency does not find 
any of these past decisions to be relevant to the subject petition. 
Each decision is addressed below:
    First, the Daimler Trucks North America petition granted by the 
Agency involved the automatic illumination of the stop lamps when the 
low air pressure warning indicator light illuminates, which is an event 
that will occur once and will need to be resolved by the operator 
before continuing operation of the vehicle.\8\ The affected vehicle is 
taken out of service until the brake system can be repaired, which 
distinguishes that decision from the subject petition.
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    \8\ See Daimler Trucks North America, Grant of Petition for 
Decision of Inconsequential Noncompliance, 87 FR 14325 (March 24, 
2022),
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    Second, the General Motors, LLC (GM) petition concerns the 
activation of parking lamps which distinguishes it from the subject 
petition because parking lamps and stop lamps serve completely 
different functions.\9\ Furthermore, other factors distinguish the two 
petitions including that the non-compliance in the GM petition only 
occurs during the daytime when parking lamps are generally not in use, 
requires a fairly high degree of unlikely user intervention for the 
non-compliance to occur, and the non-compliance will correct itself 
during operation. NHTSA believes that the noncompliance at issue here 
has the potential to occur more frequently because large bumps, 
railroad tracks, and rumble strips are obstacles found on roads 
throughout the United States.
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    \9\ 83 FR 7847 (February 22, 2018).
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    The third decision notice which was cited, which is also in 
response to a GM petition, involved the brief activation of the center 
high-mounted stop lamp (``CHMSL'') when the hazard warning lamp switch 
was depressed to its limit of travel.\10\ The Agency has previously 
concluded that this brief illumination of the CHMSL upon activation of 
the hazard warning signal did ``not provide a conflicting message'' and 
``would not confuse the intended general message.'' In contrast, 
noticeable activation of the stop lamps in the manner described in 
Polaris's petition would send a conflicting or confusing message since 
the vehicle appears to be braking when it is not.
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    \10\ See General Motors Corporation; Grant of Application for 
Decision of Inconsequential Noncompliance, 66 FR 32871 (June 18, 
2001).
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VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA has decided that Polaris 
has not met its burden of persuasion that the subject FMVSS No. 108 
noncompliance is inconsequential to motor vehicle safety. Accordingly, 
Polaris's petition is hereby denied and Polaris 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. 2024-01736 Filed 1-29-24; 8:45 am]
BILLING CODE 4910-59-P