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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2012-0123]

RIN 2127-AK16

Federal Motor Vehicle Safety Standards; Motorcycle Brake Systems

AGENCY: National Highway Traffic Safety Administration, Department of Transportation (NHTSA).
ACTION: Final rule.
SUMMARY: This final rule amends the Federal motor vehicle safety standard (FMVSS) on motorcycle brake systems to add and update requirements and test procedures and to harmonize with a global technical regulation (GTR) for motorcycle brakes. The GTR was developed under the United Nations 1998 Global Agreement with the U.S. as an active participant, and it was derived from various motorcycle braking regulations from around the world, including the U.S. motorcycle brake systems standard. This final rule includes numerous modifications to the test procedures for motorcycle brake systems, but does not change the scope, applicability, and safety purpose of the motorcycle brake systems FMVSS.
DATES: The various compliance dates for these regulations are set forth, as applicable, in SS 571.122, S3. Optional early compliance is permitted on and after October 23, 2012.

The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of October 23, 2012.

ADDRESSES: Petitions for reconsideration must be submitted to: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT: For legal issues:Mr. David Jasinski, Office of the Chief Counsel (NCC-112) (Email:david.jasinski@dot.gov) (Telephone: (202) 366-2992) (Fax: (202) 366-3820).

You may send mail to these officials at National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Background A. Current Requirements of FMVSS No. 122 B. Harmonization Efforts C. Comments Received in Response to the Notice of Proposed Rulemaking III. General Improvements to FMVSS No. 122 A. New Terminology B. Measurement of Performance Using Stopping Distance C. Motorcycle Test Speed and Corrected Stopping Distance D. Peak Braking Coefficient E. Test Sequence F. Brake Application Force Measurement G. Brake Temperature Measurement H. Burnishing Procedure I. Notice of Wear IV. Specific Performance Test Improvements to FMVSS No. 122 A. Dry Stop Test—Single Brake Control Actuated B. Dry Stop Test—All Service Brake Controls Actuated C. High-Speed Test D. Wet Brake Test E. Heat Fade Test F. Parking Brake System Test G. Antilock Brake System (ABS) Performance Test 1. Low Friction Surface for ABS Testing 2. Wheel Lock 3. Tests With ABS Electrical Failure 4. Other ABS-Related Comments H. Partial Failure Test—Split Service Brake System I. Power-Assisted Braking System Failure Test V. Other Comments and Technical Amendments A. Labeling Requirements B. Versions of ASTM Standards C. Terminology VI. Compliance Date VII. Costs and Benefits VIII. Regulatory Analyses and Notices I. Executive Summary

Currently, motorcycles must comply with a series of performance requirements established in Federal Motor Vehicle Safety Standard (FMVSS) No. 122,Motorcycle Brake Systems,in the early 1970's. While the current motorcycle brake performance requirements have ensured a minimum level of braking performance, they have not kept pace with the advancement of modern technologies. The National Highway Traffic Safety Administration (NHTSA) seeks to keep its standards up to date. This final rule updates FMVSS No. 122 based on the Motorcycle Brake Systems Global Technical Regulation (GTR), which reflects the capabilities of current in-use technologies. Updating the standard to reflect modern technologies would help prevent the introduction of unsafe motorcycle brake systems on the road. Moreover, benefits from harmonization, including decreased testing costs and ease of market entry, would accrue to current and new manufacturers, and would in turn get passed on to consumers.

The substantive performance tests and requirements of FMVSS No. 122 have not been updated since their adoption in 1972. Since that time, motorcycle brake system technology has significantly changed and improved such that FMVSS No. 122 no longer reflects the current performance of motorcycle brake system technologies. In order to address modern braking technologies, the agency sought to improve the requirements and test procedures of FMVSS No. 122. These efforts coincided with the 2002 adoption of the initial Program of Work under the 1998 United Nations' Economic Commission for Europe (UNECE) Agreement Concerning the Establishment of Global and Technical Regulations for Wheeled Vehicles, Equipment and Parts Which Can Be Fitted And/or Be Used On Wheeled Vehicles (1998 Agreement).1 That program included motorcycle brake systems as one of the promising areas for the establishment of a GTR. The agency sought to work collaboratively on modernizing motorcycle brake regulations with other Contracting Parties to the 1998 Agreement (Contracting Parties), particularly Canada, the European Union and Japan. Through the exchange of information on ongoing research and testing and through the leveraging of resources for testing and evaluations, the agency participated in successful efforts that culminated in the establishment of the Motorcycle Brake Systems GTR underthe 1998 Agreement. We believe that the provisions of the GTR NHTSA is adopting in today's final rule will improve the current requirements and test procedures of FMVSS No. 122 by updating them to more closely reflect the capabilities of modern technologies that are already being used in most motorcycles sold in the U.S.

1The 1998 UNECE Agreement Concerning the Establishment of Global and Technical Regulations for Wheeled Vehicles, Equipment and Parts Which Can Be Fitted And/or Be Used On Wheeled Vehicles (1998 Agreement) was concluded under the auspices of the United Nations and provides for the establishment of globally harmonized vehicle regulations. This 1998 Agreement, whose conclusion was spearheaded by the United States, entered into force in 2000 and is administered by the UNECE's World Forum for the Harmonization of Vehicle Regulations (WP.29).See http://www.unece.org/trans/main/wp29/wp29wgs/wp29gen/wp29age.html(last accessed September 28, 2011).

This final rule makes improvements to FMVSS No. 122, but retains many fundamental elements of the current standard. For example, this final rule adopts new terminology and includes definitions for terms used in the regulatory text, including adopting five categories for motorcycles based on the number of wheels and maximum speed of the motorcycle. This final rule retains stopping distance as the sole compliance criterion for several performance tests in FMVSS No. 122. The current FMVSS No. 122 is improved by specifying a tolerance for the initial test speed for compliance tests, recognizing that even professional test drivers cannot attain the exact speed specified in every test. This final rule incorporates by reference an ASTM International method for the measurement of the coefficient of friction of the test surface that is already used in NHTSA's other brake standards. This final rule, like the existing version of FMVSS No. 122, specifies the order in which NHTSA will conduct its compliance tests, but it moves the brake fade test to the end of the test sequence in order to eliminate a re-burnishing procedure, resulting in a more efficient test sequence. The procedure for the initial burnish is retained with minor alteration.

The rule includes several tests that would enhance the safe operation of a motorcycle: Tests both at gross vehicle weight rating (GVWR) and lightly loaded vehicle weight, which ensure adequate braking performance at the two extremes of the loading conditions; a wet brake test that is more representative of the manner in which brakes are wetted during real world riding in wet conditions; a variety of ABS performance tests to ensure that motorcycles equipped with ABS have adequate antilock performance during emergency braking or on slippery road conditions; and a new requirement that addresses failure in the power-assisted braking system.

Specifically, the rule will improve the FMVSS No. 122 requirements in several areas. First, it will make the dry brake test requirement more stringent by specifying testing of each service brake control individually, with the motorcycle in the fully loaded condition. Second, the rule will implement a more stringent high speed test requirement by specifying a slightly higher rate of deceleration. Third, the rule replaces the existing wet brake test with one that better simulates actual in-service conditions, by spraying water onto the brake disc, instead of submerging the brake system before testing. Fourth, the rule specifies an improved heat fade test procedure based on European and Japanese national regulations, which share the same test procedure and performance requirements. Fifth, the rule specifies performance requirements for antilock brake systems (ABS), if present. Until now, FMVSS No. 122 did not contain performance criteria for ABS, where present on motorcycles.2 Finally, the rule contains a new test requirement to evaluate the motorcycle's performance in the event of a failure in the power-assisted braking system, if so equipped.

2Note, though, that we are not mandating in this rule that motorcycles be equipped with ABS brakes.

This final rule responds to public comments on the notice of proposed rulemaking3 (NPRM) and adopts the requirements, test procedures, and performance criteria of the NPRM without significant deviations from the proposal.

3 See Federal Motor Vehicle Safety Standards, Motorcycle Brake Systems, Notice of Proposed Rulemaking,73 FR 54020 (Sept. 17, 2008) (hereinafter “FMVSS No. 122 NPRM”).

Notably, we have retained labeling requirements for brake systems components that were in FMVSS No. 122, but were not in the GTR. NHTSA feels strongly that those required labels identify important safety features and safety-related information, and they have longstanding applicability in FMVSS No. 122. The parties involved in developing the GTR understood that national regulations would continue to apply labeling and warning requirements of this sort when each national regulatory body adopted the provisions of the GTR. Since the vast majority of benefits from harmonization are achieved because of the harmonization of test procedures and performance criteria, the retention of unique FMVSS No. 122 labeling requirements does not reduce the benefits of international harmonization.

Besides updating requirements and test procedures to help ensure the safety of motorcycle brake systems, today's final rule also provides benefits from harmonization. Motorcycle manufacturers, and ultimately, consumers, both here and abroad, can expect to achieve cost savings through the formal harmonization of differing sets of standards when the Contracting Parties implement the new GTR. Motorcycles are vehicles that are prepared for the world market. It will be more economically efficient to have manufacturers using the same test procedures and meeting the same performance requirements worldwide. This rule will help achieve these benefits and thus reduce the amount of resources utilized to test motorcycles.

Although this final rule adds and updates FMVSS No. 122 performance requirements and provides benefits from harmonization, we anticipate that virtually all motorcycles currently sold in the U.S. can meet the requirements, without the need for any changes to their brake systems. Thus, we are not able to quantify direct safety benefits from this final rule.

We have considered whether this final rule will impose additional costs on manufacturers, including costs associated with certifying motorcycles as compliant with these new tests. We expect that a limited number (approximately 8,000) of three-wheeled motorcycles will require upgraded brake systems at a cost of $13.38 per motorcycle. As a result, the total cost motorcycle manufacturers will incur as a result of today's final rule is approximately $107,040 per year. All costs that manufacturers may incur if they choose to certify compliance based on NHTSA's test procedures will be offset by cost savings from the elimination of test procedures under the current version of FMVSS No. 122. For those manufacturers that choose to certify compliance by following NHTSA's test procedures, we anticipate that this final rule would result in a cost savings of less than one-tenth of a cent per motorcycle.

While the agency has not been able to quantify safety benefits for this rule since virtually all motorcycles sold in the U.S. can currently meet the proposed requirements, the agency is considering taking several other actions to attempt to decrease motorcycle fatalities.4 Given the sources and magnitude of the safety problem posed by increased motorcycle fatalities, the Department of Transportation intends to address motorcycle safetycomprehensively, focusing on regulatory, as well as behavioral and roadway, countermeasures and strategies. In October 2007, the Department announced the “Action Plan to Reduce Motorcycle Fatalities,” which will help reduce motorcycle fatalities with new national safety and training standards, a curb on the use of counterfeit labeling on helmets, a new focus on motorcycle-specific road improvements, training for law enforcement officers on how to spot unsafe motorcyclists, and a broad public awareness campaign on rider safety.5

4 SeeU.S. Department of Transportation, “Action Plan to Reduce Motorcycle Fatalities,” (October 2007),available at http://www.nhtsa.gov/DOT/NHTSA/Communication%20&%20Consumer%20Information/Articles/Associated%20Files/4640-report2.pdf(last accessed April 10, 2012) (hereinafter “Action Plan to Reduce Motorcycle Fatalities”); National Highway Traffic Safety Administration (NHTSA) & Motorcycle Safety Foundation (MSF), “National Agenda for Motorcycle Safety,”available at http://www.nhtsa.gov/people/injury/pedbimot/motorcycle/00-NHT-212-motorcycle/index.html(last accessed April 10, 2012);see generally http://www.nhtsa.gov/Safety/Motorcycles(last accessed April 10,2012).

5 Id.at 1.

II. Background

FMVSS No. 122,Motorcycle brake systems,49 CFR 571.122, took effect on January 1, 1974.6 FMVSS No. 122 specifies performance requirements for motorcycle brake systems. The purpose of the standard is to provide safe motorcycle brake performance under normal and emergency conditions. The safety afforded by a motorcycle's braking system is determined by several factors, including stopping distance, linear stability while stopping, fade resistance, and fade recovery. A safe system should have features that both guard against malfunction and stop the motorcycle if a malfunction should occur in the normal service system. FMVSS No. 122 was originally conceived to cover each of these aspects of brake safety by specifying equipment and performance requirements appropriate for both two-wheeled and three-wheeled motorcycles. Because motorcycles differ significantly in configuration from other motor vehicles, the agency established a separate brake standard applicable only to this vehicle category. Many of the FMVSS No. 122 test procedures are, however, similar to those for passenger cars.7

6Response to Petitions for Reconsideration, Motorcycle Brake Systems, 37 FR 11973 (June 16, 1972).

7 SeeBrake Systems on Motorcycles Proposed Motor Vehicle Safety Standard, 36 FR 5516 (Mar. 24, 1971).

Only a few changes have been made to the regulation since it was established. In response to petitions, a 1974 final rule changed the application of FMVSS No. 122 requirements for low-speed motor-driven cycles (motorcycles with 5-brake horsepower or less whose speed attainable in one mile is 30 miles per hour or less).8 In 1978, NHTSA amended the FMVSS No. 122 parking brake test to clarify the test conditions and incorporate an interpretation applicable to three-wheeled motorcycles.9 In 2001, the minimum hand lever force requirements for the heat fade test and water recovery test were decreased to facilitate the manufacture of motorcycles with combined braking systems.10 Except for the above changes, FMVSS No. 122 has not been amended to keep pace with the advancement of modern brake technologies.

8Final Rule, Motor-Driven Cycles, 39 FR 32914 (Sept. 12, 1974).

9Final Rule, Motorcycle Brake Systems, 43 FR 46547 (Oct. 10, 1978).

10Final Rule, Federal Motor Vehicle Safety Standards, Motorcycle Brake Systems, 66 FR 42613 (Aug. 14, 2001).

A. Current Requirements of FMVSS No. 122

FMVSS No. 122 applies to both two-wheeled and three-wheeled motorcycles. Among other requirements, the motorcycle manufacturer must ensure that each motorcycle can meet performance requirements under conditions specified in paragraph S6,Test conditions,and as specified in paragraph S7,Test procedures.The tests in S7 include pre- and post-burnishment effectiveness tests, a fade and recovery test, a partial failure test, a water recovery test, and parking brake test. At the end of the test procedure sequence, the brake system must pass a durability inspection. All stops must be made without lockup of any wheel.

Equipment.Each motorcycle is required to have either a split service brake system or two independently actuated brake systems. The former system encompasses a service brake system combined with a hand operated parking brake system for three-wheeled motorcycles. If a motorcycle has a hydraulic service brake system, it must also have a reservoir for each brake circuit, and a master cylinder reservoir label advising the proper grade of brake fluid. If the service brake system is a split hydraulic type, a failure indicator lamp is required. Additionally, three-wheeled motorcycles must be equipped with a friction type parking brake with a solely mechanical means to retain engagement. The service brake system must be installed so that the lining thickness of the drum brake shoes may be visually inspected, either directly or by using a mirror without removing the drums, and so that disc brake friction lining thickness may be visually inspected without removing the pads.

Pre- and post-burnish tests.The service brake system and each independently actuated service brake system on each motorcycle must be capable of stopping within specified distances from 30 miles per hour (mph) and 60 mph. The brakes are then burnished by making 200 stops from 30 mph at 12 feet per second per second (fps2). The service brake system must then be capable of stopping at specified distances from 80 mph and from a speed divisible by 5 mph that is 4 mph to 8 mph less than the maximum motorcycle speed. The post-burnish tests are conducted in the same way as the pre-burnish stops, and the service brakes must be capable of stopping the motorcycle within the post-burnish specified stopping distances.

Fade and recovery test.The fade and recovery test compares the braking performance of the motorcycle before and after ten 60-mph stops at a deceleration of not less than 15 fps2. As a check test, three baseline stops11 are conducted from 30 mph at 10 to 11 fps2, with the maximum brake lever and maximum pedal forces recorded during each stop, and averaged over the three baseline stops. Ten 60-mph stops are then conducted at a deceleration rate of not less than 15 fps2, followed immediately by five fade recovery stops from 30 mph at a deceleration rate of 10 to 11 fps2. The maximum brake pedal and lever forces measured during the fifth recovery stop must be within plus 20 pounds and minus 10 pounds of the baseline average maximum brake pedal and lever forces.

11The baseline check is used to establish a specific motorcycle's pre-test performance to provide a basis for comparison with post-test performance. This comparison is intended to ensure adequate brake performance, at reasonable lever and pedal forces, after numerous high speed or wet brake stops.

Partial failure test.In the event of a pressure component leakage failure, the remaining portion of the service brake system must continue to operate and shall be capable of stopping the motorcycle from 30 mph and 60 mph within specified stopping distances. The brake failure indicator light must activate when the master cylinder fluid level decreases below the minimum specified level.

Water recovery test.The water recovery test compares the braking performance of the motorcycle before and after the motorcycle brakes are immersed in water for two minutes. Three baseline stops are conducted from 30 mph at 10 to 11 fps2, with the maximum brake lever and pedal forces recorded during each stop, and averaged over the three baseline stops. The motorcycle brakes are then immersed in water for two minutes, followed immediately by five water recovery stops from 30 mph at a deceleration rate of 10 to 11 fps2. The maximum brake pedal and lever forces measured during the fifth recovery stop must be withinplus 20 pounds and minus 10 pounds of the baseline average maximum brake pedal force and the lever force.

Parking brake test.For motorcycles required to be equipped with a parking brake system, such system must be able to hold the motorcycle on a 30 percent grade, in both forward and reverse directions, for 5 minutes. A parking brake indicator lamp must be provided.

B. Harmonization Efforts

Globally, there are several existing regulations, directives, and standards that pertain to motorcycle brake systems. As all share similarities, the Contracting Parties to the 1998 Agreement under WP.29 tentatively determined that the development of a GTR under the 1998 Agreement would be beneficial.

In an effort to select the best of existing performance requirements for a GTR, the U.S. and Canada conducted analyses of the relative stringency of three national motorcycle brake system regulations. These were the UNECE Regulation No. 78, FMVSS No. 122, and the Japanese Safety Standard JSS 12-61. The subsequent reports, along with proposed provisions of a GTR, were presented at meetings of the Working Party for Brakes and Running Gear (GRRF),12 and were made available in the NPRM docket.13 While using different methodologies, the results from the U.S./Canada report were similar to an industry led report that examined the issue under the GRRF.14 These studies completed by the U.S., Canada, and the industry provided the basis for the development of the technical requirements of the GTR.

12The GRRF is made up of delegates from many countries around the world, and who have voting privileges. Representatives from manufacturing and consumer groups also attend and participate in the GRRF and informal working groups that are developing GTRs. Those that chose not to participate are kept apprised of the GTR progress from progress reports which are presented at the GRRF meetings and then posted on the UN's Web site.

13 SeeDocket Nos. NHTSA-2008-0150-0005.1, NHTSA-2008-0150-0006.1.

14 SeeDocket No. NHTSA-2008-0150-0007.1.

The informal group used the feedback from the GRRF presentations to assist with the completion of the proposed GTR, a copy of which can be found in the NPRM docket.15 Where national regulations or standards address the same subject, e.g. dry stop or heat fade performance requirements, the informal group reviewed comparative data on the relative stringency of the requirements from the research and studies and included the most stringent options. Additional testing was conducted to confirm or refine the testing and performance requirements. Qualitative issues, such as which wet brake test to include, were discussed on the basis of the original rationales and the appropriateness of the tests to modern conditions and technologies. In each of these steps, specific technical issues were raised, discussed, and resolved, as discussed in the NPRM and below. The informal working group held a total of eight meetings concerning the development of the GTR. In November 2006, WP.29 approved the GTR on Motorcycle Brake Systems, and established it in the Global Registry as Global Technical Regulation No. 3.

15 SeeDocket No. NHTSA-2008-0150-0002.1. The first formal proposal for a GTR concerning motorcycle brake systems was presented during the 58th GRRF session in September 2005. A more detailed report on the technical details, deliberations and conclusions, which led to the proposed GTR, was provided separately as informal document No. GRRF-58-16.SeeDocket No. NHTSA-2008-0150-0004.1.

As explained in the NPRM, the GTR on motorcycle brake systems consists of a compilation of the most stringent and relevant test procedures and performance requirements from current standards and regulations. As a result of the comparison process, the selected performance requirements of the GTR are mainly drawn from the UNECE Regulation No. 78, the FMVSS No. 122 and the Japanese Safety Standard JSS 12-61 (JSS 12-61). The GTR is comprised of several fundamental tests, each with their respective test procedures and performance requirements. These tests and procedures are listed below along with the national regulation on which they are based:

• Burnish procedure (FMVSS No. 122) • Dry stop test with each service brake control actuated separately (UNECE Regulation No. 78/JSS 12-61) • Dry stop test with all service brake systems applied simultaneously (FMVSS No. 122) • High speed test (JSS 12-61) • Wet brake test (UNECE Regulation No. 78/JSS 12-61) • Heat fade test (UNECE Regulation No. 78/JSS 12-61) • Parking brake test (UNECE Regulation No. 78/JSS 12-61) • ABS tests (UNECE Regulation No. 78/JSS 12-61) • Partial failure test—split service brake systems (FMVSS No. 122) • Power-assisted braking system failure test (new)

The GTR process was transparent to country delegates, industry representatives, public interest groups, and other interested parties. Information regarding the meetings and negotiations was publicly available through notices published periodically by the agency and UN Web site.16 See the NPRM for additional discussion of the harmonization process.17

16 SeeRecommendations for Establishing Global Technical Regulations Under the United Nations/Economic Commission for Europe 1998 Global Agreement, Motor Vehicle Safety, 66 FR 4893, Docket No. NHTSA-00-7538 (Jan. 18, 2001); NHTSA's Activities Under the United Nations Economic Commission for Europe 1998 Global Agreement, 69 FR 60460, Docket No. NHTSA-03-14395 (Oct. 8, 2004); NHTSA's Activities Under the United Nations Economic Commission for Europe 1998 Global Agreement, 71 FR 59582, Docket No. NHTSA-2003-14395 (Oct. 10, 2006);see also http://www.unece.org/trans/main/wp29/wp29wgs/wp29grrf/grrf-infmotobrake7.htmlfor a record of all GRRF meetings and documents presented therein (last accessed April 26, 2010).

17FMVSS No. 122 NPRM, 73 FR at 54022.

C. Comments Received in Response to the Notice of Proposed Rulemaking

The U.S., as a Contracting Party of the 1998 Agreement that voted in favor of establishing this GTR at the November 15, 2006 Session of the Executive Committee of the 1998 Agreement, is obligated under the 1998 Agreement to initiate the process for adopting the provisions of the GTR.18 On September 17, 2008, NHTSA published a notice of proposed rulemaking (NPRM) to update FMVSS No. 122 that was based on the Motorcycle Brake Systems GTR, which satisfied the U.S. obligations under the 1998 Agreement noted above.

18While the 1998 Agreement obligates such Contracting Parties to initiate rulemaking within one year of the establishment of the GTR, it leaves the ultimate decision of whether to adopt the GTR into their domestic law to the parties themselves.

In response to the NPRM, NHTSA received comments from the following parties: The Motorcycle Industry Council (MIC),19 American Honda Motor Company, Inc. (Honda),20 Harley-Davidson Motor Company (Harley-Davidson),21 Robert Bosch LLC (Bosch),22 the Insurance Institute for Highway Safety (IIHS),23 ASTM International (ASTM),24 SMO Group, L.L.C. (SMO),25 and the American Association for Justice (AAJ).26

19Motorcycle Industry Council Inc. Comments, Docket No. NHTSA-2008-0150-0017.1 (hereinafter “MIC Comments”).

20American Honda Motor Co., Inc. Comments, Docket No. NHTSA-2008-0150-0018.1 (hereinafter “Honda Comments”).

21Harley-Davidson Motor Company, Docket No. NHTSA-2008-0150-0012 (hereinafter “Harley-Davidson Comments”).

22Robert Bosch LLC Comments, Docket No. NHTSA-2008-0150-0016.1 (hereinafter “Robert Bosch Comments”).

23Insurance Institute for Highway Safety Comments, Docket No. NHTSA-2008-0150-0015.1.

24ASTM International Comments, Docket No. NHTSA-2008-0150-0011.1.

25SMO Group, L.L.C. Comments, Docket No. NHTSA-2008-0150-0013.1.

26American Association for Justice Comments, Docket No. NHTSA-2008-0150-0014.1.

All comments received were timely, and they are each considered in this final rule and discussed below, with one exception. The AAJ commented on the language of the preamble concerning implied preemption, and its comment was neither related to the proposed regulatory text, nor to motorcycle braking nor to motorcycle safety.27 Because that comment did not specifically relate to the proposal, and because NHTSA has already responded to a similar AAJ comment in the context of anotherFederal Registernotice,28 we do not address the AAJ comment any further here.

27The AAJ has submitted to several other rulemaking dockets similar comments regarding the agency's preamble discussions of preemption.

28See Federal Motor Vehicle Safety Standards; Electric-Powered Vehicles; Electrolyte Spillage and Electrical Shock Protection, 75 FR 33515, 33524-25 (Jun. 12, 2010).

Comments were generally supportive of NHTSA's intent to harmonize FMVSS No. 122 with other nations' and regulatory bodies' standards through the adoption of the GTR. The substantive comments received were concerned mainly with test procedures rather than with brake system design requirements. Specifically, Harley-Davidson, Honda, and the Motorcycle Industry Council (MIC) all commented on each of the following three issues, which were the main issues in their submittals:

• The NHTSA proposal in the NPRM specified stopping distance as the sole compliance criterion for several performance tests in FMVSS No. 122 while leaving out the option to use Mean Fully Developed Deceleration (MFDD) where applicable. Commenters requested that NHTSA include MFDD as an alternative compliance option for measuring stopping performance.

• The NPRM specified that Peak Braking Coefficient (PBC) be measured by an ASTM skid-trailer method only. It did not include other methods that were stated in the GTR for measurement of test surface friction coefficient. Commenters requested that the agency allow manufacturers the option to choose which test method it uses to measure PBC.

• The NHTSA proposal changed “nominal PBC” as it appears in the GTR to just “PBC,” i.e., NHTSA removed the word “nominal” in specifying the friction coefficient of test track surfaces used for motorcycle brake testing. Commenters requested that NHTSA retain the GTR term “nominal,” based on best engineering practices.

III. General Improvements to FMVSS No. 122

Here, we discuss the proposed general amendments and improvements to FMVSS No. 122, any comments received on these proposed improvements, and the agency's response to those comments. Where no comments were received on a proposed amendment, or a certain aspect of an amendment, NHTSA has generally adopted those proposals in accordance with the rationale detailed in the NPRM. Although this final rule states as such for each amendment, we generally will not repeat the rationale and justification for aspects of the proposal that did not receive comment. We refer readers to the NPRM for the basis for those amendments.29

29 SeeFMVSS No. 122 NPRM, 73 FR at 54023-54027.

A. New Terminology

The NPRM proposed to revise or add definitions in FMVSS No. 122 (paragraph S4) where necessary to define terms used in the proposed regulatory text, and we are largely retaining the definitions as proposed in the NPRM. In order to streamline the proposed regulatory text to more closely reflect the GTR text, some of the new proposed terms were common terminology and definitions based on the UN document titled “Special Resolution No. 1 Concerning the Common Definitions of Vehicle Categories, Masses and Dimensions (S.R.1)”30 (UN Doc. S.R.1) developed for the purposes of the GTRs. Thus, the NPRM proposed to add certain new definitions to § 571.122 S4,Definitions,that may be similar to existing 49 CFR Part 571 definitions. For example, current FMVSS No. 122 specifies that performance requirements must be met when the “motorcycle weight is unloaded vehicle weight plus 200 pounds.”31 This is effectively equivalent to the mass term “lightly loaded” in the proposed rule, which is the testing condition specified for the proposed dry stop test (all service brake controls actuated), the high-speed test, the antilock brake systems tests, and the partial failure test.32 These proposed terms, some of which may be similar or equivalent to existing terms defined elsewhere in 49 CFR Part 571, are used in the motorcycle brakes GTR in an effort to streamline the GTR and maximize harmonization benefits.

30World Forum for Harmonization of Vehicle Regulations (WP.29),Special Resolution No. 1 Concerning the Common Definitions of Vehicle Categories, Masses and Dimensions (S.R.1),U.N. Doc. TRANS/WP.29/1045 (Sept. 15, 2005),available at http://www.unece.org/trans/doc/2005/wp29/TRANS-WP29-1045e.pdf(last accessed April 26, 2010).

3149 CFR 571.122, S6.1. “Unloaded vehicle weight” is defined under 49 CFR 571.3(b) to mean “the weight of a vehicle with maximum capacity of all fluids necessary for operation of the vehicle, but without cargo, occupants, or accessories that are ordinarily removed from the vehicle when they are not in use.”

32Lightly loaded means the sum of unladen vehicle mass (mass of the vehicle with bodywork and all factory fitted equipment, and fuel tanks filled to at least 90 percent) and driver mass “plus 15 kg for test equipment, or the laden condition, whichever is less.” FMVSS No. 122 S4,Definitions(proposed).

Additionally, the proposed rule divided motorcycles into five categories, which are referenced in the GTR. These motorcycle categories are based on number of wheels and maximum speed, and were originally defined in the UN Doc. S.R.1, as amended in May 2007.33 We included these categories in the definitions portion of proposed FMVSS No. 122 because under the GTR some performance tests do not apply to certain motorcycle categories, and certain motorcycle categories have different performance requirements than others.

33 SeeWP.29,Amendment to Special Resolution No. 1 Concerning the Common Definitions of Vehicle Categories, Masses, and Dimensions,U.N. Doc. ECE/TRANS/WP.29/1045/Amend.1 (May 9, 2007),available at http://www.unece.org/trans/main/wp29/wp29wgs/wp29gen/wp29fdoc/1000/ECE-TRANS-WP29-1045a1e.pdf(last accessed April 26, 2010).

Category 3-1 and category 3-3 motorcycles are two-wheeled motorcycles. Category 3-1 motorcycles are two-wheeled motorcycles with an engine cylinder capacity not exceeding 50 cm3and a maximum design speed not exceeding 50 kilometers per hour (km/h). Category 3-3 motorcycles are two-wheeled motorcycles with an engine cylinder capacity exceeding 50 cm3or a maximum design speed exceeding 50 km/h. Category 3-2 motorcycles are three-wheeled motorcycles of any wheel arrangement with an engine cylinder capacity not exceeding 50 cm3and a maximum design speed not exceeding 50 km/h. Category 3-4 motorcycles are those manufactured with three wheels asymmetrically arranged in relation to the longitudinal median plane with an engine cylinder capacity exceeding 50 cm3or a maximum design speed exceeding 50 km/h. Finally, category 3-5 motorcycles are motorcycles manufactured with three wheels symmetrically arranged in relation to the longitudinal median plane with an engine cylinder capacity exceeding 50 cm3or a maximum design speed exceeding 50 km/h.

Motorcycle categories.Based on comments from both Harley-Davidsonand the MIC regarding inconsistencies between category 3-4 and category 3-5 requirements, NHTSA has identified a series of mistakes in the proposed regulatory text relating to the identification of these two categories. For example, Harley-Davidson and the MIC commented that the stopping distances for category 3-4 and 3-5 motorcycles listed in Table 2 (Performance requirements, Dry stop test—single brake control actuated) appear to have been incorrectly reversed in the first two sections of the table: Single Brake System—Front Wheel(s) Braking Only, and Single Brake System—Rear Wheel(s) Braking Only.34 Proposed regulatory text Table 2 listed these tests as inapplicable to category 3-4 motorcycles and listed a stopping distance for category 3-5 motorcycles. These commenters noted that under the proposed regulatory text, stopping distances would be inapplicable for category 3-5 vehicles in these two sections because those vehicles are required to have a combined or split service brake. However, as noted by the commenters, motorcycle-sidecar combinations of category 3-4 would still be permitted to be equipped with separate brakes.

34Harley-Davidson Comments, Docket No. NHTSA-2008-0150-0012 at 4; MIC Comments, Docket No. NHTSA-2008-0150-0017.1 at 3.

These commenters further stated that it similarly thought the reference to category 3-5 in Table 4 (Performance requirements, Power-assisted braking system failure test) should be category 3-4 because category 3-5 vehicles will carry split service systems or combined break systems (CBS) and are covered in the subsequent section of Table 4.35

35 Id.

Agency Response:The regulatory text of the NPRM was based on a version of the GTR in which the definitions for category 3-4 motorcycles and category 3-5 motorcycles were listed incorrectly. Specifically, the category 3-4 and 3-5 notations were actually interchanged with each other. This error was addressed in the GTR by a correction document which stated that the text “3-4” as it appears throughout the GTR shall be replaced with “3-5,” and the text “3-5” shall be replaced with the text “3-4.”36 This correction results in the GTR associating category 3-4 requirements with sidecar-equipped motorcycles and category 3-5 requirements with symmetric three-wheeled motorcycles, or “trikes,” as intended.

36 See Global Technical Regulation No. 3, Corrigendum 1, Motorcycle Brake Systems,U.N. Doc. ECE/TRANS/180/Add.3/Corr.2 (Jan. 29, 2008),available at http://www.unece.org/trans/main/wp29/wp29wgs/wp29gen/wp29registry/gtr3.html(last accessed April 26, 2010).

Because the regulatory text of the NPRM corresponded closely with that of the GTR, this mix-up was carried forward in the NPRM. Thus, there are a variety of inconsistencies in the requirements for category 3-4 and category 3-5 motorcycles throughout the NPRM regulatory text. This includes Table 2 as noted by the commenters. Although the definitions of “Category 3-4 motorcycle” and “Category 3-5 motorcycle” given in paragraph S4 of the proposed regulatory text are correct, most of the subsequent occurrences throughout the regulatory text are incorrect. This mistake is easily remedied by replacing “3-4” with “3-5,” and vice versa, in each place where requirements apply to one or the other category. We have corrected the final rule regulatory text by applying these corrections in each appropriate instance. Concerning Table 2, to maintain the desired ordering of categories, we have moved each stopping distance specification listed for category 3-5 to the corresponding category 3-4 row, and listed “not applicable” in each category 3-5 row. Finally, we have made a related clarification in subsection S6.5.2.2(d)(3) of the regulatory text, to add a specification of category 3-5.

“Lightly loaded” definition.The MIC commented that in the parenthetical included in this definition, it was unclear as to which paragraphs the text was intending to refer.37 The proposed definition of “lightly loaded” referred to “paragraphs 4.9.4 to 4.9.7” in a parenthetical, and no such paragraphs existed in the proposed regulatory text.

37MIC Comments, Docket No. NHTSA-2008-0150-0017.1 at 3.

Agency Response:The proposed range quoted above was referring to the requirements as they were listed in the GTR. The proposed rule should have listed the paragraphs as they were associated with the proposed regulatory text. The GTR paragraphs referenced are a series of the ABS test procedures. The corresponding paragraphs in NHTSA's proposed regulatory text were S6.9.4 through S6.9.7. We have made this change in the final regulatory text.

“Unladen vehicle mass” definition.The MIC suggested that the proposed definition of “lightly loaded” should use the term “motorcycle,” as opposed to the term “vehicle” in the definition.38 They suggest that perhaps “motorcycle” should be used in place of the term “vehicle” elsewhere in the proposed standard as well.

38 Id.

Agency Response:Although the term “motorcycle” is used throughout the current FMVSS No. 122, we are not making this change as the commenter suggested. The term “vehicle” is the one used in the GTR's regulatory definitions as well as in the UN Doc. S.R.1, which is the source document for the vehicle categorization used in the GTR. For these reasons, and in order to streamline the GTR and to maximize the benefits of harmonization, we are in favor of keeping the term “vehicle” as used throughout the proposed regulatory text.

CBS.Bosch commented that electro-mechanical CBS (eCBS) should be distinguished from conventional CBS because the failure mode for eCBS is different from CBS.39 Bosch suggested that the paragraph S4 definitions should exclude eCBS and that this could be accomplished by rewording the definition for each motorcycle category to say that CBS is “A service brake system * * *mechanically linked andactuated by a single control.”

39Bosch Comments, Docket No. NHTSA-2008-0150-0016.1.

Bosch differentiates eCBS from conventional CBS because eCBS systems have no mechanical or hydraulic link between the front and rear brake circuits. With eCBS, the activation of a front or rear service brake by a rear or front brake control, respectively, is accomplished by purely electronic means. Bosch stated that the distinction between eCBS and conventional CBS is important because the failure mode for eCBS is different than for CBS, i.e., failed eCBS performs just like conventional, separate front and rear brakes. Bosch explained that “[a]n eCBS is subject to system failure, deactivation, and degradation, which results in a system that is functionally equivalent to a non-CBS with the corresponding performance limits.”40

40 Id.at 2.

Bosch commented that their proposed re-definition to make eCBS subject only to the performance requirements for single brake systems (outlined above) is appropriate because of unique characteristics of eCBS that are not accounted for in the proposed rule. Bosch pointed out that an eCBS, unlike a CBS, may be equipped with a deactivation switch, a low-speed mode, speed-dependent brake force distribution, or a variety of rider-selectable modes that tune the system for riding conditions. Bosch stated that, “[t]hese additional eCBS characteristics differentiate an eCBS from a CBS and prescribe that the performancerequirements for a CBS are not always applicable for an eCBS.”41

41 Id.

Bosch suggested that, as an alternative to excluding eCBS from the regulatory definitions, NHTSA could instead define eCBS separately from CBS and provide separate performance requirements to account for the different eCBS failure modes, similar to the way that ABS electrical failure is treated in S6.9.8 of the proposed FMVSS No. 122 regulatory text.42 According to Bosch, this would have to include an exception to the performance requirements defined in Table 2.

42 Id.at 3.

Agency Response:Bosch's comment suggests that NHTSA should include specific test procedures to address the possibility of a failed eCBS system. As Bosch acknowledges, this would entail defining eCBS separately from CBS, and/or adding separate test procedures for eCBS. If separate test procedures were added, eCBS would be treated similarly to ABS, for which the NPRM has special procedures, including the electrical failure test of S6.9.8.

Bosch seems to suggest that system failure is more likely in the case of an eCBS than a conventional, mechanical CBS, which would seem logical because of the purely electronic link between front and rear brake circuits. Certainly, eCBS could be designed so as to be readily deactivated, such as by equipping the motorcycle with an on/off switch for that purpose. In contrast, deactivation would not necessarily be easily accomplished with conventional CBS, but much would depend on the details of the CBS system design.

Since eCBS systems currently are not in use, it is difficult for us to evaluate whether adding specific test procedures to address eCBS system failure is appropriate. Furthermore, in the FMVSS No. 122 proposal, there were no CBS-specific requirements that an eCBS would or should be incapable of meeting, nor is eCBS addressed in the GTR separately from CBS. Since the GTR does not include any proposal for failed CBS performance and since no eCBS system is currently available commercially, the agency believes that establishing failed systems performance requirements for eCBS would be premature. Therefore, we are electing not to make any changes related to eCBS at this time, but we will evaluate in the future whether such accommodations are necessary.

B. Measurement of Performance Using Stopping Distance

The GTR specifies stopping performance requirements in terms of both stopping distance and MFDD. The NPRM proposed stopping distance as the sole compliance criterion for several performance tests in proposed FMVSS No. 122 because, as noted in the proposal, stopping distance is a longstanding compliance criterion in FMVSS No. 122 as well as in NHTSA's standards for brake performance of both light vehicles and heavy vehicles.43 We further stated that the Executive Committee of the 1998 Agreement and WP.29 are aware that the U.S. intended to make these choices as allowed in the GTR.

43FMVSS No. 122 NPRM, 73 FR at 54034.

Harley-Davidson, Honda, and the MIC each suggested that the agency should include the alternative criterion of MFDD, which is a calculated value based on both speed and stopping distance measurements.44 MFDD and stopping distance are both included in the GTR as alternative performance measures in several of the performance tests.

44 SeeHonda Comments, Docket No. NHTSA-2008-0018.1 at 2; MIC Comments, Docket No. NHTSA-2008-0150-0017.1 at 2; Harley-Davidson Comments, Docket No. NHTSA-2008-0150-0012 at 2.

Harley-Davidson commented that, based on its significant experience with MFDD, a vehicle that passes the stopping distance measure will also pass MFDD. Harley-Davidson also commented that the GTR and the UNECE Regulation No. 78 allow either measure to be used. Further, Harley-Davidson stated that some of the international inspection agencies prefer MFDD, and that MFDD removes human factors from brake performance testing. Harley-Davidson pointed out that an MFDD-like procedure is already incorporated into the proposed regulatory text, specifically in proposed section S6.7.3.2(d)(1) pertaining to heat fade tests.45 Harley-Davidson stated that as a result of inclusion of MFDD into the heat fade test requirements, manufacturers and test facilities will be required to apply MFDD for some measures. Finally, Harley-Davidson noted that the commentary accompanying the GTR recommends using the MFDD measure “to maintain consistency in the results.”

45Although Harley-Davidson's comments referred to this provision as part of the “wet fade tests,” we will refer to the referenced proposed tests as the “heat fade tests,” consistent with the NPRM.

Honda likewise requested that MFDD be included in NHTSA's final rule. Honda commented that the GTR did not give individual regulating bodies the discretion to exclude MFDD. Honda stated that the “GTR does not specify the option for each region to select only one method of measurement.” Further, Honda noted that “the MFDD method has been utilized by Honda as the primary method for determining stopping performance and has found it to be more reliable and repeatable than the distance method.”

Similarly, the MIC pointed out that the GTR includes both MFDD and stopping distance as alternative performance criteria, which allows the manufacturer to choose to measure brake performance by either deceleration or stopping distance. It also noted that deceleration-based performance tests are already part of NHTSA's proposal, in proposed paragraphs S6.6.3et seq.,and in paragraph S5.3.2, which refers to “continuous deceleration recording.” The MIC took issue with the rationale NHTSA gave for excluding MFDD:

The reason given [in the NPRM] for mandating brake performance measurement exclusively by stopping distance is “to enhance the enforceability of the Standard as opposed to providing optional performance measures,” and that “this is consistent with how performance requirements are stated in other Federal Motor Vehicle Safety Standards.” We don't agree that either is sufficient to justify departure from the GTR and not in the best interest of harmonization.

The MIC, Harley-Davidson, and Honda each requested that NHTSA incorporate the MFDD as an alternative performance measure in all appropriate tests in the final rule.

Agency Response:We are declining to adopt these commenters' suggestions to allow manufacturers a choice of performance measures in certain performance tests. As explained below, providing manufacturers with an option for compliance in FMVSS test procedures is not common because it presents a substantial enforcement difficulty for the agency. Moreover, NHTSA participated in the development of the GTR and during that process reached agreement with the other parties that we would continue to use stopping distance in all appropriate FMVSS No. 122 test procedures. The inclusion of a stopping distance measurement procedure was an important factor in U.S. approval of the GTR.

When NHTSA stated in the NPRM that specifying stopping distance enhances enforceability and referenced other FMVSSs to explain how performance criteria are specified elsewhere by the agency, we meant that for various reasons (detailed below)NHTSA believes stopping distance is a better performance criteria than a measurement of deceleration, and we do not ordinarily provide manufacturer options for compliance because it can create an enforcement problem for the agency. For example, if we allow two different measures of braking performance in FMVSS No. 122 and, when testing for compliance, NHTSA measures stopping distance and finds a failure to meet the minimum stopping distance requirement test, NHTSA would then be required to conduct additional testing to calculate MFDD.

Additionally, we believe that stopping distance is a preferable measurement of performance because MFDD assumes a certain level of brake system responsiveness and does not consider performance over the entire braking event. We believe the stopping distance measure is less design-restrictive because it allows a manufacturer to develop brake performance for the entire range of a braking event. Similarly, since it accounts for the distance traveled between the time a brake lever or pedal is applied and the time the motorcycle actually begins to decelerate, stopping distance addresses the potential problem of slow-acting brake systems.

Further, none of the commenters presented any new information on this issue. Nor did any commenter present data to support assertions about accuracy of MFDD, for example, that MFDD is “more reliable and repeatable than the distance method.”46 Since stopping distance is used as one of the measured values in the equation for calculating MFDD, the accuracy of MFDD depends to a great extent on stopping distance accuracy. MFDD is not a measured value but is calculated using measurements of speed and stopping distance. Because it is a factor in the MFDD calculation, stopping distance still would have to be measured even if MFDD was the specified compliance criterion in the NHTSA standard. Consequently, there is little additional test burden in having to collect stopping distance data.

46Honda Comments, Docket No. NHTSA-2008-0018.1 at 2.

In response to the commenter that stated that the commentary accompanying the GTR recommends using the MFDD measure “to maintain consistency in the results,” we point out that this GTR preamble language was referring to the difference between the UNECE Regulation No. 78 specification of MFDD, and the JSS 12-61 specification of vehicle mean saturated deceleration (MSD). In the relevant portion of the GTR preamble, the text was discussing the difference between MFDD and MSD, and then stated that “[i]n order to maintain consistency in the results, the MFDD was adopted [instead of MSD] to measure braking deceleration performance.”47 Thus, NHTSA does not believe this phrase should be taken out of context and used to characterize the GTR preamble discussion of MFDD versus stopping distance. In the GTR, the performance requirements for the different tests were as specified in the respective national regulation on which the test was based. However, based on U.S. insistence, where the basis of a test was performance measured by MFDD, the GTR also specified a stopping distance equivalent performance measure, since the U.S. would not support a GTR that specified only measurement of performance using MFDD. All GTR performance requirements refer to both measurements of stopping distance and MFDD in the table in paragraph 4.3.3 of the GTR.48

47 SeeDocket No. NHTSA-2008-0150-0002.1 at 11-12.

48 Id.at 40.

In response to Harley-Davidson's observation that the heat fade test measures performance by referring to MFDD, we do not agree. The commenter referenced proposed paragraph S6.7.3.2(d)(1), which describes the force that is to be applied to the brake lever when actuated during the heating stops: “For the first stop: The constant control force that achieves a vehicle deceleration rate of 3.0-3.5 m/s2while the vehicle is decelerating between 80 percent and 10 percent of the specified speed.” Since this specification is a way to determine force, stopping distance is not appropriate here. Further, the specified braking force to heat the brakes is not a performance requirement. In that paragraph, the test rider is just heating the brake. Paragraph S6.7.4,Hot brake stop—test conditions and procedure,then specifies how to test the hot brakes and paragraph S6.7.5,Performance requirements,specifies the comparative performance requirements between the baseline stop measurements and the hot brake stop measurements, in terms of stopping distance. Therefore, the use of a deceleration specification to describe the actuation force that a test rider is to use in the heat fade test is not inconsistent with the use of stopping distance for all performance measurements.

The MIC similarly commented that proposed paragraph S5.3.2 describes “continuous deceleration recording,” and stated that proposed paragraphs S6.6.3et seq.reference deceleration measurements for wet and heat fade conditions even though it is not called MFDD. As explained above, the heat fade test does not describe performance requirements in terms of deceleration, but merely uses deceleration to specify how to determine how much force to apply to a brake when a test rider is actuating the brake for the purpose of heating it. The deceleration measurement specified in section S6.6.3 (wet brake test) is for average deceleration over the whole duration of the stop in accordance with paragraph S5.3.2. This is not the same as MFDD as the MIC suggested. MFDD is the vehicle deceleration calculated between 80 and 10 percent of the vehicle initial speed, not the deceleration from initial speed to full stop.

NHTSA notes that the 100 km/h dry stop test that was developed from the current FMVSS No. 122 specifies performance in terms of stopping distance only. It does not specify a deceleration-based criterion like MFDD. Similarly, the ABS stopping distance performance tests on low and high friction surfaces specify performance measures in terms of stopping distance only. Hence, in these tests, there is no alternative to measuring and recording stopping distance.

Finally, we note that the use of stopping distance in the FMVSS does not preclude the use of MFDD by manufacturers or other