Is there a new EPA Ban on racing parts?
No, it’s not a new EPA ban on racing parts
Lots of people are screaming about a new “EPA ban on racing parts.” But calling it a ban is actually incorrect. OBD tuning and emissions delete/defeat products that put a street vehicle out of compliance with emissions standards have ALWAYS BEEN ILLEGAL Here’s the exact language that has been around since the beginning of the Clean Air Act (CAA):
Section 203 of the clean air act prohibits the manufacture, selling, or installation of any device that Intentionally circumvents EPA emissions standards by bypassing, defeating, or rendering inoperative a required element of the motor vehicle’s emission control system.
The EPA has always defined a motor vehicle as any self-propelled vehicle designed for transporting a person(s) on a street or highway.
In 1974 the EPA issued Memo 1A that states:
The EPA typically does not take enforcement action for conduct that might be a violation of section 203(a)(3) of the Clean Air Act if the person engaging in the conduct has a documented reasonable basis to conclude that the conduct (or, where the conduct in question is the manufacturing or sale of a part or component, the installation and use of that part or component) does not and will not adversely affect emissions.
SEMAs position on reasonable basis
“The updated Policy reinforces that in exercising its discretion the EPA will forego enforcement action when a company has a documented “reasonable basis” that a product will not adversely affect vehicle emissions when installed. SEMA generally welcomed the revised Policy as it will now allow SEMA members to undertake emissions testing and maintain the test data to document a reasonable basis for demonstrating compliance. EPA has committed to consider the test data if and when the agency investigates and will typically forego enforcement if the data shows no adverse effect on emissions.— By SEMA Washington, D.C., Staff
What changed in 2020 that people are now calling it an EPA ban of racing parts?
The EPA issued a new policy statement in 2020 that further defines the term “reasonable basis.” In effect, the EPA will not take enforcement action if the manufacturer has a reasonable basis as follows:
Reasonable Basis D: Emissions testing demonstrates no adverse effect on emissions
The EPA will typically find that a person has a reasonable basis for conduct if: (1) that conduct alters a vehicle, engine, or piece of equipment; (2) emissions testing of an appropriate test vehicle, engine, or piece of equipment that had been identically altered by the conduct shows that the vehicle, engine, or piece of equipment will comply with all applicable regulations including emissions standards for its full useful life; and (3) (where the conduct includes the manufacture, sale, or offering for sale of a part or component) that part or component is marketed as suitable only to those vehicles, engines, or pieces of equipment that are appropriately represented by the tested product.
Is it an EPA ban on racing parts?
It’s not really a ban. It’s a ban only if the manufacturer of the race parts knows their parts will cause the vehicle to violate the emissions for the vehicle the parts are installed on. Or, in the alternative, the manufacturer of the part has done no testing to show that its parts won’t put the vehicle out of compliance.
Keep in mind that tampering with the existing emissions devices is an automatic violation of the clean air act. Does that mean an automatic enforcement action by the EPA? No. Here’s the exception that EPA has implemented.
If a manufacturer designs a part or software that alters the vehicle’s original emissions system and the manufacturer conducts emissions testing at an accredited facility or in-house lab that follows industry testing standards and has a reasonable belief that based on the test results, the vehicle can still meet the emissions standards that were established for that vehicle at the time it was manufactured, then the EPA will most likely not pursue enforcement action.
What prompted the latest EPA’s policy statement in 2020?
A recent EPA initial survey showed at least 550,000 trucks have had their emissions systems fully deleted since 2009. The extra pollution just from these 550,000 vehicles has the same negative air quality effect as adding 9,000,000 trucks to the U.S. Worse yet, that’s just an initial survey. The actual number of trucks that have these tune/defeat/delete devices is closer to around 15% of ALL truck sales in the U.S.
The defeat/delete device manufacturers basically have become so successful in promoting these illegal devices that they brought too much attention upon themselves and basically dared the EPA to bring down the hammer. They knew all along that what they were doing was illegal.
So unless those manufacturers can prove through testing that the installation of their devices maintains the vehicles’ emission compliance, they’re yeah, you won’t be able to buy those illegal tuning, delete and defeat devices for your street vehicle, even if you race it occasionally.
How have manufacturers been getting around this up until now?
Tuning, delete, and defeat manufacturers have been selling their devices with a disclaimer stating that the devices are for “off-road use only.” They basically sold hundreds of thousands of these devices with a wink. That’s no longer going to cut it with the EPA. A disclaimer will no longer get them a “get out of jail free” card.
To qualify for a racing exemption, the manufacturer must know the racing team and be reasonably certain that the device will be installed on a vehicle used solely for competition motorsports.
If you drive it on the street and race occasionally, your vehicle doesn’t count!
What’s the definition of a racing vehicle and EPA’s history with racing vehicles?
In 2015, the EPA pursued an interpretation of the Clean Air Act (CAA) as part of a draft rulemaking that would maintain that that once a vehicle has been certified as a street vehicle, it cannot be converted into a racing vehicle even if that vehicle is trailered to the track and is never driven on public roads. The racing community responded negatively.
In March 2016 H.R. 4715, the Recognizing the Protection of Motorsports Act of 2016 (RPM Act) was introduced to preserve the right to convert street vehicles for competition under the Clean Air Act. Shortly thereafter, a companion bill (S. 2659) was introduced in the Senate. The proposed legislation did not pass.
Now, in 2021, the Specialty Equipment Manufacturers Association (SEMA) is pushing for new legislation referred to again as the Recognizing the Protection of Motorsports Act (RPM). It is my personal opinion that this legislation will fail as well. I’ll go into my reasons below.
The EPA’s position on racing parts
The EPA recognizes competitive racing and makes allowances for devices for racing vehicles, but not through official regulation. This is where it gets a bit tricky. The new EPA policy does not specifically address EPA-certified motor vehicles that are converted Into a vehicle used solely for competition motorsports, nor aftermarket parts purportedly manufactured or sold for that purpose. However, the EPA has issued statements to Congress that state:
The EPA “declines to proceed against companies that can demonstrate that the vehicle for which a part or component is manufactured, sold, or installed is in fact used solely for competition motorsports.” Letter from Susan Bodine, EPA, to Congressman Roe, at 2 (Sept. IA, 2020)
What’s going on here is that the EPA still maintains that you cannot convert a street vehicle into a racing vehicle while also deleting or defeating the emissions controls. The CAA is clear that you cannot tamper with emissions controls. The EPA can’t legally change their position on this because the law is the law.
What they are willing to say is, if we’re convinced that the vehicle will be used solely for competitive racing, we won’t initiate an enforcement action against the racing parts manufacturers. That’s not good enough for the parts manufacturers. They want the ability to convert street vehicles into race care codified by law. That’s what the latest RPM legislation is all about.
Why I think the RPM legislation will fail
As I’ve said above, the aftermarket manufacturers have been incredibly successful at selling tuning, delete and defeat devices that put the owner’s vehicles out of compliance with emissions standards. In fact, they’ve been so successful that their devices are now having a measurable negative effect on air quality. This is exactly what the CAA was designed to prevent; an increase in air pollution.
The EPA isn’t fooled by these vehicles being referred to as race vehicles. These are street vehicles equipped with racing parts. The owners may occasionally race, but the owners have installed these devices solely to get more power from their street vehicles.
The proposed RPM act is really just an attempt to establish a loophole for the manufacturers and vehicle owners to skirt the intent of the CAA.
People were outraged that VW developed software to defeat federal emissions standards on VW diesel vehicles and the EPA was successful in fining VW for those deceptive efforts in “Dieselgate.”
What’s been going on with current aftermarket defeat/delete devices is far worse for the environment than Dieselgate. The vast number of trucks and vehicles that have been modified by these devices has already resulted in more pollution than Dieselgate vehicles would have emitted.
In the RPM legislation is enacted, the delete/defeat manufacturers would be off the hook for knowingly manufacturing devices that put the vehicle out of emissions compliance by simply alleging that the vehicle in question will be used for competition racing.
Keep in mind that SEMA represents these manufacturers. They have a huge horse in the race and have no interest in protecting the environment.
Another reason why I don’t think the RPM Act will pass
If the RPM Act passes, it creates an immediate conflict with the Clean Air Act and every state’s own EPA standards since there’s no exemption for race cars. That can’t stand for long, so it will end up in Court.
Worse yet, it opens the floodgates for every muscle car owner to tune, delete and defeat their emissions systems simply by claiming that they race. Here’s what that means.
Many states have abandoned emissions testing based on the fact that the OBDII systems are pretty much self-diagnosing. The states that stopped emissions testing found that when drivers saw the check engine light on in their vehicles, they usually had the vehicle checked out and fixed. If the RPM Act passes and people mod their cars in large numbers and states start to notice air quality issues, they’ll be forced to re-institute mandatory smog testing.
In other words, a blank check for modders will cause all of us to be forced into smog testing again. And, since most states laws are at least as strict as the CAA, the legal conflicts will be enormous.
The RPM act isn’t really about race cars
It’s about diesel trucks
Less than 5% of all EPA actions so far have been against manufacturers of race parts for cars. The vast majority of EPAs actions have been against parts for defeating/deleting emissions devices on diesel-powered trucks that are used for street use.
The Union of Concerned Scientists reports that the pollution produced by these modified diesel trucks is at least ten times the pollution produced by Dieselgate vehicles.
Where does that leave you, the dealers and distributors?
The EPA can enforce against a manufacturer or makes a defeat/delete device or an installer who actually tampers with the emissions system. If you install the tune, defeat, or delete product yourself on a street vehicle, you’re in violation of the Clean Air Act and subject to enforcement action. If you then take your vehicle to the shop and the shop works on any part of the system you’ve tampered with, they are required to return that system to its original condition OR decline to work on it at all. In other words, if you delete an A.I.R. system or delete the catalytic converter and then take the car into a shop where it needs repair of the emissions system or exhaust, the shop is required to put the vehicle back into its original condition or decline to work on it at all.
What’s the bottom line?
Aftermarket tuners, delete, and defeat manufacturers have been producing their products for decades knowing that the owners’ vehicles would be out of emission compliance after installation. Trucks, modified trucks have become so popular that they’ve drawn the attention of the EPA. The EPA is cracking down on devices that have always been illegal. The manufacturers are now trying to reframe as a “right to race,” when, in fact, the vast majority of these converted vehicles are never used solely for racing. Nobody is fooled here and that’s why I think the RPM act will fail.
©, 2021 Rick Muscoplat