By Colleen Kave, J.D.
In a settlement agreement stemming from a complaint filed by the Department of Justice and the U.S. Environmental Protection Agency (EPA), Harley-Davidson Inc., Harley-Davidson Motor Company Group LLC, Harley-Davidson Motorcycle Company Inc. and Harley-Davidson Motor Company Operations Inc. (collectively Harley-Davidson) consented to pay a $12 million civil penalty for its sale of illegal devices that increase air pollution from their motorcycles. The company also agreed to stop selling and to buy back and destroy the defeat devices, to sell only models of the devices that are certified to meet Clean Air emissions standards, and to dedicate $3 million to a clean air project that will mitigate air pollution by replacing conventional woodstoves with cleaner-burning substitutes (U.S.A. v. Harley-Davidson, Inc., August 18, 2016).
According to the government’s complaint, Harley-Davidson manufactured and sold approximately 340,000 "super tuners," or illegal devices that, when hooked up to Harley-Davidson motorcycles, allow users to modify certain aspects of the vehicles’ emissions control system. These modified settings increase power and performance, but also increase the motorcycles’ emissions of hydrocarbons and nitrogen oxides (NOx) to a level higher than what the company certified to the EPA. Aftermarket defeat devices like these super tuners are prohibited under the Clean Air Act for use on vehicles that have been certified to meet EPA emissions standards. Harley-Davidson also made and sold more than 12,000 motorcycles that were not covered by an EPA certification that ensures a vehicle meets federal clean air standards. EPA discovered the violations through a routine inspection and information Harley-Davidson submitted after subsequent agency information requests.
The Clean Air Act requires motor vehicle manufacturers to certify to EPA that their vehicles will meet applicable federal emissions standards to control air pollution, and every motor vehicle sold in the U.S. must be covered by an EPA-issued certificate of conformity. The Clean Air Act prohibits manufacturers from making and selling devices that bypass, defeat, or render inoperative a motor vehicle’s EPA-certified emissions control system. The act also prohibits any person from removing or rendering inoperative a motor vehicle’s certified emissions control system and from causing such tampering. The complaint against Harley-Davidson alleged violations of both these provisions.
Terms of the agreement. Under the settlement, Harley-Davidson will stop selling the illegal aftermarket defeat devices in the United States by August 23 and will buy back all such tuners in stock at Harley-Davidson dealerships across the country and destroy them. The settlement also requires the company to obtain a certification from the California Air Resources Board (CARB) for any tuners it sells in the United States in the future to demonstrate that the CARB-certified tuners do not cause Harley-Davidson’s motorcycles to exceed the EPA-certified emissions limits. The company will be required to test its motorcycles that have been tuned with the CARB-certified tuners and provide the results to EPA to ensure that its motorcycles remain in compliance with EPA emissions requirements. Additionally, any super tuners that Harley-Davidson sells outside the United States must be labeled as not for use in the United States.
Noting the impact of the settlement, Assistant Attorney General John C. Cruden, head of the Justice Department’s Environment and Natural Resources Division said, "Given Harley-Davidson’s prominence in the industry, this is a very significant step toward our goal of stopping the sale of illegal aftermarket defeat devices that cause harmful pollution on our roads and in our communities. Anyone else who manufactures, sells, or installs these types of illegal products should take heed of Harley-Davidson’s corrective actions and immediately stop violating the law."
The case is Civil Action No. 16-1687.
Attorneys: Leslie Allen, U.S. Department of Justice, for the United States. David T. Buente (Sidley Austin, LLP) for Harley-Davidson, Inc., Harley-Davidson Motor Co. Group, LLC and Harley-Davidson Motor Co. Operations, Inc.
Companies: Harley-Davidson, Inc.; Harley-Davidson Motor Co. Group, LLC; Harley-Davidson Motor Co. Operations, Inc.
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