DNMakinson

iTrader: (3)

The attached file was sent to me today. Here is cut an paste, but the PDF is probably easier to read. I guess it's real. The Miata pros may know something about it.

MEMORANDUM

TO: Jay Lamm, 24 Hours of LeMons

FROM: Pat Mulry

DATE: February 9, 2016

RE: EPA Rule Change Regarding Ban on Modifying Emissions of Certified

Vehicles & Potential Effect on Motorsport

Pursuant to our telephone conversation this morning regarding the so-called “LeMons Law”, I

have reviewed the existing applicable U.S. Code sections, the Code of Federal Regulations

(“CFR”) and the rules changes proposed by the EPA, as set forth in volume 80 of the Federal

Register. These are the rules changes referred to in the SEMA press release of February 8, 2016.

This memo will review the applicable law, explain the proposed changes in the law, and discuss

the likely impact these changes would have on motorsport in the United States.

1. Background

SEMA sent out a press release on February 8, 2016 stating that the EPA has proposed a

regulation to prohibit conversion of vehicles originally designed for on-road use into race cars. It

stated that the regulation would impact “all vehicle types,” including the light-duty passenger

cars and light-duty trucks typically modified for racing. The press release contained no citations

to the actual rules that the EPA is proposing to change, but noted that Congress has never

authorized nor extended the Clean Air Act to regulate competition motor vehicles.

2. Existing Law

In order to understand the current issue, we must begin with understanding the current state

of the law regarding emissions as it relates to competition motor vehicles.

1

As noted by SEMA in its official comment on the proposed rules, the Motor Vehicle Air

Pollution Control Act of 1965 (the “1965 Act”) was the first federal law to regulate motor

vehicle emissions. The 1965 Act first defined the term “motor vehicle” as “any self-propelled

1



For the purposes of this Memorandum, the discussion of “competition motor vehicles” is limited to those vehicles

that began their lives as passenger cars and light-duty trucks – street cars – which were certified for use on the

streets and highways of the U.S. This Memorandum is not concerned with purpose-built race cars, such as tubeframe

oval track cars, IndyCars, etc., as those are exempted from emissions regulations.

Jay Lamm

February 9, 2016

Page 2

vehicle designed for transporting persons or property on a street or highway.”

2 50 years later,

that remains the definition of “motor vehicle” contained in the United States Code.

3

In 1970, Congress passed the Clean Air Act Amendments (the “CAA”). The CAA did not

disturb the definition of “motor vehicle” as set forth in the 1965 Act, but it did mandate new

emissions standards and expanded the anti-tampering provision to require that no person render

emissions controls inoperative after first sale. While on first blush that would seem to require

emissions controls on all racing vehicles that are converted from their original street use, the

committee notes make it clear that the intent of the legislation was never to regulate racing

vehicles:

M

R. NICHOLS: “I would ask the distinguished chairman if I am correct in stating

that the terms “vehicle” and “vehicle engine” as used in the act do not include

vehicles or vehicle engines manufactured for, modified for or utilized in

organized motor racing events which, of course, are held very infrequently but

which utilize all types of vehicles and vehicle engines?”

M

R. STAGGERS: “In response to the gentleman from Alabama, I would say to the

gentleman they would not come under the provisions of this act, because the act

deals only with automobiles used on our roads in everyday use. The act would not

cover the types of racing vehicles to which the gentleman referred, and present

law does not cover them either.”

4

The CAA has been amended numerous times since 1970, including in 1977 and in 1990.

Neither amendment sought to include racing vehicles in the definition of “motor vehicle,” which

has remained the legal term for a motorized vehicle intended to carry people or objects on public

roads.

Motorized vehicles which are

not intended to carry people or objects on public roads—

bulldozers, farm tractors, snowmobiles, airplanes, etc. – are generally considered “nonroad

vehicles.” In 1990, Congress amended the definition of “nonroad vehicle” to permit the EPA to

regulate some nonroad vehicles such as locomotives, snowmobiles, and off-highway

motorcycles. However, Congress unequivocally excluded competition vehicles from the

definition of “nonroad vehicle” (“the term ‘nonroad vehicle’ means a vehicle that is powered by

a nonroad engine and that is not a motor vehicle or a vehicle used solely for competition”).

2



Motor Vehicle Air Pollution Control Act, Pub. L. No. 89-272, 79 Stat. 992 (1965) at §208 (2).

3



42 U.S.C. §7550 (2) (2015).

4



House Consideration of the Report of the Conference committee, Dec. 18, 1970 (reprinted in A legislative history

of the Clean Air Amendments of 1970, together with a section-by-section index





, U.S. LIBRARY OF CONGRESS,

E



NVIRONMENTAL POLICY DIVISION, Washington: U.S. Govt. Print. Off. Serial No. 93-18, 1974, p.117).

Jay Lamm

February 9, 2016

Page 3

Similarly, a “nonroad engine” means an internal combustion engine that is not used in a motor

vehicle or a vehicle used solely for competition.

6

As a result, based on the statutory text and the legislative history,

competition vehicle

emissions have never fallen under the ambit of the EPA and the CAA, as amended



. As discussed

in the section below, the EPA shares this understanding and is seeking to end the emissions

control exemption for competition motor vehicles such as the light-duty motor vehicles

commonly used in motorsport.

3. EPA’s Proposed Changes: Bring Competition Motor Vehicle Emissions Within the

CAA and thus EPA Control

On Monday, July 13, 2015, the EPA published its proposed rules

7 entitled “Greenhouse Gas

Emissions and Fuel efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles –

Phase 2.” The stated purpose of the proposed rules is “to establish a comprehensive national

program to reduce greenhouse gas emissions and fuel consumption for new on-road heavy-duty

vehicles, particularly for tractor-trailers, heavy-duty pickups and vans, and vocational vehicles

(such as farm tractors).”

8 The EPA intends to publish the final rule in July 2016.

The EPA

9 recognizes that competition vehicle emissions do not fall squarely within the

purview of the CAA (as amended), and seeks to eliminate that exclusion beginning in 2018. As

the EPA states in the explanatory notes for “Miscellaneous EPA Amendments,”

EPA is proposing in 40 CFR 1037.601(a)(3) to clarify that the Clean Air Act does

not allow any person to disable, remove, or render inoperative (i.e., tamper with)

emission controls on a certified motor vehicle for purposes of competition.

10 An

existing provision in 40 CFR 1068.235 provides an exemption for nonroad

engines converted for competition use. This provision reflects the explicit

exclusion of engines used solely for competition from the CAA definition of

“nonroad engine.” The proposed amendment clarifies that this part 1068

exemption does not apply for motor vehicles.

6



42 U.S.C. §7550 (11) (2015) (“nonroad vehicle”); 42 U.S.C. §7550 (10) (2015) (“nonroad engine”).

7



Rules and regulations derive their legal authority from the original law passed by Congress. The CAA, as

amended, is a law passed by Congress in the way that we all remember from Schoolhouse Rock and/or high school

civics class. Rules and regulations promulgated by Federal agencies are published in the Code of Federal

Regulations (“CFR”) for the purpose of administering the laws enacted by Congress. Once the final rule is written

by the Federal agency and published in the CFR, it has the full weight and effect of a law of the United States. A

good tutorial on this process can be found at



https://www.archives.gov/federal-register/tutorial/tutorial_070.pdf

8



80 Fed. Reg. 40138 (2015).

9



More precisely, the proposed changes discussed herein to the CFR are jointly proposed by the EPA and the

NHTSA, as both have jurisdiction over rules regarding emissions and fuel consumption. Because the proposed rule

refers to both entities simply as the EPA, this memorandum will do so also.

10



The EPA’s use here of “clarify” seems Orwellian at best.

Jay Lamm

February 9, 2016

Page 4

Given the reference to various sections of the CFR, the provision above may benefit from

further explanation. The reference in the first sentence to 40 C.F.R. § 1037.601(a)(3) would

require that those who modify heavy-duty vehicles for competition use cannot tamper with

emissions controls.

11,12 While troublesome for some autosport enthusiasts of heavy-duty

vehicles and those who like to “roll coal” on their competition brodozers, it is likely that alone,

this would not be problematic for most motorsport activities.

However, the second sentence reveals the ultimate intent of the EPA to bring competition

motor vehicles – in particular, light-duty vehicles and light-duty trucks – within its regulatory

authority. As the EPA notes, 40 C.F.R. § 1068.235 provides an express exemption from the CAA

for nonroad engines in competition use

13, but not for street vehicles modified for use solely in

competition. The EPA repeatedly proposes to amend various sections of the CFR to clarify that

the 1068.235 exception for nonroad engines in competition use does not apply to competition

motor vehicles. Competition motor vehicles, which were necessarily once motor vehicles with

certified emissions control systems, can never acquire nonroad status in the EPA’s scheme.

The EPA’s approach reaches its zenith in two different sections of the proposed rule. 40 CFR

86.1854-12(b)(5)

14 states that

Certified motor vehicles

15 and motor vehicle engines and their emission control

devices must remain in their certified configuration even if they are used solely

for competition or if they become nonroad vehicles or engines; anyone modifying

a certified motor vehicle or motor vehicle engine for any reason is subject to the

tampering and defeat device prohibitions of paragraph (a)(3) of this section and

42 USC 7522(a)(3).

The proposed rule is more draconian in 40 CFR 1068.101

16, “What general actions does this

regulation prohibit?” The answer is “don’t modify your engine, ever.” It bans:

11



40 C.F.R. § 1037 is the section that contains the administrative rules for “Control of Emissions from Heavy-Duty

Motor Vehicles.”

12



Heavy-duty vehicles are generally defined as exceeding 8,500 pounds GVWR or having a curb weight in excess

of 6,000 pounds or a basic vehicle frontal area in excess of 45 square feet.

13



Racing snowmobiles, racing dirt bikes, racing ATV’s, etc.

14



40 C.F.R. § 86 is the section that contains the administrative rules for “Control of Emissions from New and In-

Use Highway Vehicles and Engines.”

15



A certified motor vehicle or engine/emissions system is a vehicle or system that has passed the EPA testing and

has received a certificate of conformity from the EPA Administrator – essentially every production car sold in the

U.S.

16



40 C.F.R. § 1068 is the section that contains the administrative rules for “General Compliance Provisions for

Highway, Stationary, and Nonroad Programs” The proposed rule also amends 40 C.F.R. § 1068.1 so that Part 1068

applies to light-duty vehicles and light-duty trucks (“vehicles we regulate under 40 CFR Part 86, subpart S….”), 80

Fed. Reg. 40714 (2015) (to be codified as 40 C.F.R. § 1068.1(a)(1)).

Jay Lamm

February 9, 2016

Page 5

•

Knowingly removing or rendering inoperative any device or element of design

installed on or in engines/equipment in compliance with the regulations after

such sale and delivery to the ultimate purchaser. Violation of same by a

manufacturer or dealer comes with a civil penalty of $37,500 for each engine

or piece of equipment in violation; violation by anyone else may be assessed a

civil penalty of up to $3,750 per engine or piece of equipment;

17

•

Knowingly manufacturing, selling, offering to sell, or installing any

component that bypasses, impairs, defeats, or disables the control of emissions

of any regulated pollutant. Violation of same may draw a civil penalty of up to

$3,750 for each component in violation;



*****Continued in next post *****

18psi

iTrader: (76)

there is nothing new under the sun:

https://www.miataturbo.net/current-e...acecars-87667/

DNMakinson

iTrader: (3)

******Continued with small overlap********

Jay Lamm

February 9, 2016

Page 5

•

Knowingly removing or rendering inoperative any device or element of design

installed on or in engines/equipment in compliance with the regulations after

such sale and delivery to the ultimate purchaser. Violation of same by a

manufacturer or dealer comes with a civil penalty of $37,500 for each engine

or piece of equipment in violation; violation by anyone else may be assessed a

civil penalty of up to $3,750 per engine or piece of equipment;

17

•

Knowingly manufacturing, selling, offering to sell, or installing any

component that bypasses, impairs, defeats, or disables the control of emissions

of any regulated pollutant. Violation of same may draw a civil penalty of up to

$3,750 for each component in violation;

18

•

Certified motor vehicles and motor vehicle engines must remain in their

certified configuration even if they are used solely for competition or if they

become nonroad vehicles or engines; anyone modifying a certified motor

vehicle or motor vehicle engine for any reason is subject to the tampering and

defeat device prohibitions of 1068.101(b): a civil penalty of $37,500 may be

subjected for each engine or piece of equipment in violation by a

manufacturer or dealer; violation by anyone else may be assessed a civil

penalty of up to $3,750 per engine or piece of equipment;

19

•

Importation of uncertified engines or equipment is prohibited if it is defined to

be “new.” The definition of “new” is broad for imported engines and

equipment; uncertified equipment, including used engines and equipment, will

generally be considered to be “new;” violators are subject to the

manufacturer/dealer penalty of $37,500 for each piece of equipment in

violation.

20

Perhaps most troubling is the provision in 40 CFR 1068.101(a) that states that it is prohibited

to sell, offer for sale, import, or introduce or deliver into commerce in the US any new engine or

equipment after emissions standards take effect for the engine or equipment unless it is covered

by a valid certificate of conformity for the model year and has the required label or tag.

21

Although another note indicates that the heavy-duty truck and engine categories would not begin

until 2021,

22 this provision could be interpreted to indicate that the proposed rule be applied to

any engine/equipment that was certified prior to the effective date of the rule – thus prohibiting

modification to any motor vehicle engine in competition that was ever certified for use by the

EPA – essentially every engine system sold in the US since the early 70’s.

17



80 Fed. Reg. 40720 (2015) (to be codified as 40 CFR 1068.101(b)(1)).

18



80 Fed. Reg. 40720 (2015) (to be codified as 40 CFR 1068.101(b)(2)).

19



80 Fed. Reg. 40720 (2015) (to be codified as 40 CFR 1068.101 (b)(4)(ii)).

20



80 Fed. Reg. 40720 (2015) (to be codified as 40 CFR 1068.101 (b)(5)).

21



80 Fed. Reg. 40719-40720 (2015) (to be codified as 40 CFR 1068.101 (a)(1)).

22



80 Fed. Reg. 40138 (2015).

Jay Lamm

February 9, 2016

Page 6

4. What Impact Would this Have on Motorsport in the US?

The proposed rules essentially ban the modification of any component of the engine, fuel,

and emissions systems. By placing draconian fines on anyone who could be considered a

manufacturer or dealer of aftermarket parts that would be used on production-based racing

vehicles, these proposed rules will have an incalculably chilling effect on the aftermarket parts

market. It is difficult to see how any aftermarket part manufacturer could continue to make and

market performance parts without running afoul of this proposed rule unless the part was

essentially identical to the factory-certified part.

The result of the die-off of aftermarket parts manufacturers will be dramatic. The proposed

rules would also ban users from doing many of the things that draw participants to motorsport –

including and in particular to mechanically creative series such as 24 Hours of LeMons. For

example, weird engine swaps will be a thing of the past if motor vehicles and motor vehicle

engines must remain in their certified configuration even if they are used solely for competition.

Cam swaps, different exhaust headers, different intake manifolds are among the equipment

which will be banned due to their impact on increased emissions. Not only will the fuel cell

manufacturers essentially cease to exist (other than by making fuel cells for purpose-built race

cars that are competition vehicles from the outset), it will become illegal to put a fuel cell into

the former street cars that comprise the vast majority of motorsport activity in the US. In short,

the impact would be devastating.

As we discussed this morning, I would be glad to work on coordinating 24 Hours of

LeMons’ response to this proposed rule. I will be in the office again all day on Wednesday if you

want to discuss this matter further.

DNMakinson

iTrader: (3)

OK. Thanks. Kill this thread is fine with me. I'm late to the game.

18psi

iTrader: (76)

No prob.

Sparetire

I think its great it got posted. LeMons sent out an email about it just this week, though I think the original doc mentioning this came out in the summer of '15. Pages 862 and 863, the relevant part laughably buried in a paragraph that starts with a totally unrelated topic about production numbers of motorcycles in the US and total numbers of motorcycles imported every year. Maybe accidental, but it sure looks like a petty tactic.

I think this might really shake the left-wing foundations of this forum

I would love to see the comparo of all the pollution from all the race tracks in the US in one year (however you want to quantify that) against one day of commuting from any major city like LA, NY, Boston, Seattle, etc.

Oh wait, nobody has that study. I read some of the stuff from EPA and they used the words 'significant' IIRC.

wannafbody

iTrader: (1)

Brought to us by the same people who put temperature monitoring stations next to asphalt parking lots and heater vents and then claim global temps are rising. Pure BS

Sparetire

Global temps are rising.

But racing is probably about .01% of the cause. That's a guess - I seriously would love some actual info on that but I don't even know where to look. I doubt Google-Foo is the solution on that one.

But since racing is a high profile .01%*, lots of people will howl until it dies so that they can feel better and convince themselves they are part of the solution while buying new cars, heating huge homes, eating meat with every meal, retiring with IRAs and 401Ks full of stocks from corporations that pollute far more than any individual or even any form or motorsport.

Its not about actually fixing an actual problem. Its about making people feel like it's being dealt with without impacting their lives in any meaningful way. Its really no different from any other proposal which is pushed by people who claim that there's no real downside except to the 'them' - who are selfish, evil, and need to be put in their place. Which describes pretty much everything proposed at any significant legislative level anymore. it's just 'we' are the 'them' in this case. By the time that everyone realizes that they are a part of 'them' in one way or another (if that ever actually happens) things will probably be pretty fucked up on a legal level among other things.

All of which is basically an outgrowth of modern society (not even just western society)that has elevated the comfort and validation seeking self to the status of sacred cow.

Savington

iTrader: (31)

Are you actively trying to earn the record for the most negatively propped member of the forum?

Mobius

iTrader: (2)

It's not his fault, Sav. It's the autism. He had all of his vaccines as a child, and is autistic now. Fortunately, he has The Food Babe's book, and is eating only organic kale sprouts and is doing a lemon cleanse every day, and so his prognosis is good. Once he gets in his order of Healing Crystals from David Avocado Wolfe, his chi flows will be re-orientated to their proper paths, and his life path will be back on track.


Nobody needs to get all social justice warrior on me about autism.

hector

Speaking of cows, aren't the mad scientists trying to put catalytic converters on cows?

glade

iTrader: (2)

While I agree that there is significant overreach happening, I has a serious question: current built race cars not-withstanding, wouldn't this mandate make racing a little more competitive in the future?

Imagine spec miata where everyone has to run EXACTLY what the factory tuned engine can run. I know that its not optimal, nor even perfect, but couldn't iit result in a little more competitive class? A class that truly demonstrates driver ability over checkbook size?

Besides, suspension, brakes, and tires don't affect emissions.

bahurd

iTrader: (8)

Not sure how.

Depending on classing, current SCCA & NASA rules pretty much spell out factory equipment in SPEC classes. Done that way to more or less even out the equipment field.

When it comes to the MOD type of classes it's more a how much money/ingenuity do you have vs the other guy. Frankly IMO I don't really need the government to direct/mandate competitiveness in auto racing.

glade

iTrader: (2)

I counter with the spec miata cheater head debacle.

What I envision is a 100% untouched factory driveline being the rule, rather than a selection of the best factory components sourced from multiple years, built to the ragged edge of the rules

bahurd

iTrader: (8)

That has nothing to do with this issue. The EPA is about emissions and your talking about some engine builder who either stepped outside the rules, or the rules weren't clear enough, and built heads that were ruled illegal to the rules.

Someone else can comment (I'm not a SPEC racer) but I think the rules, as written, make for pretty competitive racing as it is.

If you forced a SPEC class racer to only buy a new "unopened" engine from Miata (or an authorized builder like Formula Mazda) you'd pretty much drive the low budget racer out of the game. That would really help...

Otherwise, how would you source (unopened) engines? Troll the yards for "low mileage" engines and hope they never had the head pulled for any reason? I guess this is getting off topic.

Sparetire

LOL when a lot of factory emissions gear presents safety issues, like engine bay temp issues due to horribly designed EGR systems and charcoal canisters that start bursting into flames.

The truth is that this is/was the heyday of auto racing as we know it. Electric and hybrid will change it in some incredible ways.

But this would accelerate that process and screw up a wonderful thing for a lot of people. Not to mention demolish things in such a way that historic series are jeopardized too.

And it has a great chance of passing because while SEMA might sick its legislators on it, the OEMs just might love this one. Its hilarious that Scion is being killed off just as a piece of legislation is being proposed that would defacto make it's model of factory upgrade path the law. Just imagine the kinds of profit margins parts counters might realize with this. Their speedy parts are from the factory and EPA approved. So run this $750 intake tube with the hologram/serialized sticker that has roughly the same performance characteristics as a Pringles can, because you might wind up 3500 down if you make one yourself.

What's really sad is that personally I understand that I am a dinosaur. I get it. I get that with 7+ billion people on the planet the things I love are not really feasible in the long run across the whole population. I've already made a lot of changes in my life to proactively adjust to that reality. But living and working in Denver, I can tell you that that's just not enough for people in this (and probably most other) culture anymore. Not only do I have to give up on things I really enjoy and adjust my life, in the eyes of self-righteous ******** of the majority, I have to enjoy it. I have to be happy that I make these changes while some fat **** with a huge mcmansion and hybrid SUV who has 2 kids and consumes 10 times what I do feels like he's saving the world because he votes Democrat and drives a hybrid. Since I drive a used vehicle that not flashy, and I go hunt my own meat rather than buy it from some organic free range cruelty free farm where the cow is thrilled to die, I am part of the problem.

I'd say rant mode off but honestly I don't think it ever will be. **** the human race.