82 FR 34977 - Notice of Lodging of Proposed Consent Decree Under the Clean Air Act

DEPARTMENT OF JUSTICE

Federal Register Volume 82, Issue 143 (July 27, 2017)

[Federal Register Volume 82, Number 143 (Thursday, July 27, 2017)]
[Notices]
[Pages 34977-34978]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-15780]


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DEPARTMENT OF JUSTICE


Notice of Lodging of Proposed Consent Decree Under the Clean Air 
Act

    On July 20, 2017, the Department of Justice lodged a proposed 
Consent Decree with the United States District Court for the District 
of Columbia in the lawsuit entitled United States v. Harley-Davidson, 
Inc., et al., Civil Action No. 1:16-cv-01687.
    The United States' Complaint, filed on August 18, 2016, Dkt. Nos. 
1, 4, alleges that Harley-Davidson, Inc. (and three related companies) 
manufactured and sold over 339,392 after-market devices (known as 
``Super Tuners'' and used with Harley-Davidson motorcycles) in 
violation of the Clean Air Act prohibition on the manufacture or sale 
of devices that defeat the functioning of the motorcycles' certified 
emissions control system. The Complaint also alleges, relatedly, that 
Defendants violated the provision of the Act that prohibits any person 
from removing or rendering inoperative a motor vehicle's certified 
emissions control system and from causing such ``tampering.'' Finally, 
the Complaint alleges that Defendants manufactured and sold more than 
12,000 motorcycles from model years 2006, 2007, and 2008 that were not 
certified by EPA as required by the Clean Air Act.
    The Consent Decree requires Defendants to stop selling the illegal 
tuners in the United States by August 23, 2016. Defendants will also 
offer to buy back all such tuners in stock at Harley-Davidson 
dealerships across the country and destroy them. The Decree requires 
Defendants to obtain an Executive Order from the California Air 
Resources Board (CARB) for any tuners Defendants sell in the United 
States in the future. These Executive Orders (EOs) will demonstrate 
that the CARB-certified tuners do not cause Defendants' motorcycles to 
exceed the EPA-certified emissions limits. Defendants must also conduct 
tests on motorcycles that have been tuned with the EO-certified tuners 
and provide the results to EPA to ensure that their motorcycles remain 
in compliance with EPA emissions requirements. In addition, for any 
uncertified Super Tuners that Defendants sell outside the United States 
in the future, they must label them as not for use in the United 
States.
    Under the Consent Decree, Defendants must also ensure that all of 
their future motorcycle models intended for sale in the United States 
are certified by EPA.
    Finally, Defendants will pay a civil penalty of $12 million.
    The Consent Decree lodged with the Court on July 20 is identical to 
a Consent Decree lodged with this Court on August 18, 2016, Dkt. 2, 
except that the Consent Decree lodged on July 20 (and on which comment 
is now being sought) does not include the requirement in the original 
Consent Decree for Defendants to ``fund a program'' (described in 
Appendix A of the original Consent Decree) that required Defendants to 
pay a third-party organization to mitigate emissions of hydrocarbons 
and oxides of nitrogen in the northeastern United States by replacing 
old, higher polluting woodstoves with emissions-certified woodstoves 
(``mitigation project''). As explained briefly below, certain new 
developments led the United States and Defendants to agree to revise 
the Consent Decree in this manner.
    On June 5, 2017, the Attorney General issued a policy, Prohibition 
on Settlement Payments to Third Parties, which prohibits a settlement 
that ``directs or provides for a payment or loan to any non-
governmental person or

[[Page 34978]]

entity that is not a party to the dispute[,]'' unless it is ``an 
otherwise lawful payment . . . that . . . directly remedies the harm 
that is sought to be redressed, including, for example, harm to the 
environment. . . .'' This policy became effective upon issuance and 
applies to, among other things, consent decrees entered into on behalf 
of the United States. The original Consent Decree would have required 
Defendants to pay a non-governmental third-party organization to carry 
out the mitigation project. Questions exist as to whether this 
mitigation project is consistent with the new policy.
    The United States and Defendants also became aware that the U.S. 
Government Accountability Office (``GAO'') is developing a legal 
opinion regarding the original Consent Decree, focusing on the 
mitigation project. On February 6, 2017, the United States received a 
letter from counsel for Harley-Davidson asking the United States to 
delay moving to enter the Consent Decree until GAO completed its 
evaluation. The United States has been informed by GAO that development 
of its legal opinion would likely not be concluded for many more 
months. The mitigation project was also the subject of public comment 
during the notice and comment period.
    In light of these facts, the United States and Harley-Davidson 
attempted to negotiate a substitute mitigation project, but were unable 
to reach timely agreement on a suitable alternative. The United States 
is mindful of the length of time this settlement has already been 
pending and, in the interest of moving forward with the important 
relief secured by the Consent Decree, has sought and received 
Defendants' approval to modify the Decree to remove the mitigation 
project.
    The United States has decided on balance that proceeding now with 
the substitute Consent Decree is in the public interest.
    The publication of this notice opens a period for public comment on 
the Consent Decree. Comments should be addressed to the Assistant 
Attorney General, Environment and Natural Resources Division, and 
should refer to United States v. Harley-Davidson, Inc., et al., D.J. 
Ref. No. 90-5-2-1-11333. All comments must be submitted no later than 
thirty (30) days after the publication date of this notice. Comments 
may be submitted either by email or by mail:

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         To submit comments:                     Send them to:
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By email............................  [email protected].
By mail.............................  Assistant Attorney General, U.S.
                                       DOJ-ENRD, P.O. Box 7611,
                                       Washington, DC 20044-7611.
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    During the public comment period, the Consent Decree may be 
examined and downloaded at this Justice Department Web site: https://www.justice.gov/enrd/consent-decrees. We will provide a paper copy of 
the Decree upon written request and payment of reproduction costs. 
Please mail your request and payment to: Consent Decree Library, U.S. 
DOJ-ENRD, P.O. Box 7611 Washington, DC 20044-7611.
    Please enclose a check or money order for $9.50 (25 cents per page 
reproduction cost) payable to the United States Treasury.

Karen Dworkin,
Deputy Section Chief, Environmental Enforcement Section, Environment 
and Natural Resources Division.
[FR Doc. 2017-15780 Filed 7-26-17; 8:45 am]
 BILLING CODE 4410-15-P