The EPA is not coming for your racecar. The EPA is coming for the aftermarket companies that make parts to turn your street car into a racecar.
An alarming press release from the Special Equipment Market Association (SEMA) has exposed proposed changes to EPA regulations which would criminalize any modifications to street cars which affect their emissions, even for the express purpose of racing. The primary intent is not, as SEMA's headline suggests, to ban racecars, but to put out of business any company which makes parts that defeat emissions controls for racecars. The subsequent death of grassroots and club-level racing is merely a byproduct.
The EPA disputes this reading of the proposal. In a statement, the EPA said:
"People may use EPA-certified motor vehicles for competition, but to protect public health from air pollution, the Clean Air Act has since its inception specifically prohibited tampering with or defeating the emission control systems on those vehicles.
"The proposed regulation that SEMA has commented on does not change this long-standing law, or approach. Instead, the proposed language in the Heavy-Duty Greenhouse Gas rulemaking simply clarifies the distinction between motor vehicles and nonroad vehicles such as dirt bikes and snowmobiles. Unlike motor vehicles which include cars, light trucks, and highway motorcycles nonroad vehicles may, under certain circumstances, be modified for use in competitive events in ways that would otherwise be prohibited by the Clean Air Act.
"This clarification does not affect EPA's enforcement authority. It is still illegal to tamper with or defeat the emission control systems of motor vehicles. In the course of selecting cases for enforcement, the EPA has and will continue to consider whether the tampered vehicle is used exclusively for competition.
"The EPA remains primarily concerned with cases where the tampered vehicle is used on public roads, and more specifically with aftermarket manufacturers who sell devices that defeat emission control systems on vehicles used on public roads."
There are quite a number of claims to be investigated here. Perhaps the best place to start is with definitions, because at its core, this controversy revolves around what does or doesn't count as a "motor vehicle" or "nonroad vehicle" in the eyes of the law. How a vehicle is defined determines which regulations do or don't apply, and whether or not the EPA has the power to regulate them at all.
As established by the Motor Vehicle Air Pollution Control Act of 1965 (which was amended by the Clean Air Act of 1970 but is the basis of automotive emissions regulation), a "motor vehicle" is, in the eyes of the law, "any self-propelled vehicle for transporting persons or property on a street or highway." The Clean Air Act was amended in 1977 and in 1990, but this definition has not changed.
According to the same original act, a "nonroad vehicle" is defined as "a vehicle that is powered by a nonroad engine and that is not a motor vehicle or a vehicle used solely for competition." A "nonroad engine" is defined as "an internal combustion engine (including the fuel system) that is not used in a motor vehicle or a vehicle used solely for competition, or that is not subject to standards promulgated under section 111 or section 202." This definition was expanded in 1990 to allow the EPA to regulate some nonroad vehicles, but the exemption for dedicated competition vehicles has never been altered. In plain English, this means any vehicle or engine designed from the start to be a racecar is exempt from emissions laws.
This is where it gets fuzzy, and another definition comes into play. A "certified vehicle" is one which has been tested by the EPA or an authorized third party and conforms to emissions regulations. Section 206 of the Clean Air Act requires the EPA to test "any new motor vehicle or new motor vehicle engine submitted by a manufacturer" and issue a "certificate of conformity" if it passes. In practice, this means that every vehicle which meets the legal definition of "motor vehicle" must be tested and most conform. An example would be literally every car, truck, and van on the road. If it was designed to be a street car, it has been issued a certificate of conformity and is required by the Clean Air Act to have functional emissions equipment. Enforcement of this rule is left to the states, some of which don't bother (ex: Michigan) and some which are very strict (ex: California). Even if your state doesn't enforce emissions laws, you're still technically in violation of federal law. Don't worry, though, the EPA doesn't even try to enforce this as it has neither the manpower nor the funds.
Where, then, does that leave street cars, which started life intended for the street and carry a certificate of conformity, which have been converted into racecars? This is a legal gray area, and it's been understood by the racing community, the aftermarket industry, and the EPA for 46 years that the law allows a "certified" "motor vehicle" to be converted into an emissions-exempt racecar, as long as that car is never driven on the street again without emissions controls.
Indeed, notes from the committee which drafted the Clean Air Act in 1970, uncovered by a lawyer commissioned by the 24 Hours of LeMons racing series, prove the authors had no intention of regulating racecars of any type. The notes contain an exchange between committee members Representative William Nichols (D-Alabama) and Representative Harley Staggers Sr. (D-West Virginia), which reads:
"Mr. 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?
"Mr. 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."
This has been the understanding for nearly five decades, however the EPA appears to have now changed its interpretation of the law. The EPA says the proposed changes are only meant to "clarify" the rules, but the proposed clarifications make it explicitly clear that street vehicles which have been modified for racing are not exempt from emissions laws. This means any racecar which started life as a street car would be required to run all the factory emissions equipment. The EPA is not shy about this new distinction:
"Existing regulations are already explicit and clear that the nonroad exemption is not available for motor vehicles," an agency spokesperson told Motor Trend. "Despite this clarity, manufacturers of aftermarket defeat devices for motor vehicles have falsely claimed that motor vehicles are eligible for the nonroad exemption. Like those existing provisions, the proposed language would, going forward, draw a bright line to prevent confusion about whether the nonroad competition exemption is available for motor vehicles."
It should be noted that, had this interpretation always been in place as the EPA claims, NASCAR would've been illegal at the time the Clean Air Act became law, as in the 1970s, NASCAR racecars were still modified production cars used exclusively for competition.
Today, this new interpretation has far-reaching potential. As LeMons' attorney points out, this doesn't just mean a catalytic converter. It could be applied to every vehicle component which affects emissions, which could include everything from the camshafts to the gas tank. As nearly every race sanctioning body requires a fuel cell, this would make all production-based cars ineligible to be raced. It all depends on how far the EPA wants to take its interpretation of the law.
It's bigger than that, though. The biggest victims of this "clarification" would be the aftermarket companies which make performance parts. Not only would catalytic converter delete kits be illegal, but any part which affects the vehicle emissions could be considered illegal. That would mean no hot cams or computer flashes or turbo kits or the like. With their products made illegal, most will go out of business. Only the largest companies could possibly survive, if they have the necessary resources to certify all of their parts with an authority like the California Air Resources Board. Most hot rodding, the small-time operations which make up much of the aftermarket, is effectively regulated out of existence if EPA carries its enforcement activities far enough.
If this all sounds like an overreaction at first glance, let the EPA explain it:
"The EPA is concerned with aftermarket parts and software manufacturers who sell products that defeat emissions control systems on vehicles used on public roads," an EPA spokesperson said. "This is unequivocally prohibited by the Clean Air Act."
Indeed, a close reading of all the various rules the EPA wants to "clarify" reveals this end goal. By our count, the EPA has proposed 15 separate rule changes affecting the competition exemption, strewn across 202 pages of a 627-page document. More importantly, these "clarifications" are not limited to the document's topic, Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles Phase 2. Rather, the clarifications cover every possible base: light duty cars and trucks, medium- and heavy duty trucks, motorcycles, and nonroad vehicles.
A representative "clarification" can be found on page 429 of the PDF, which is numbered as page 40565 for purposes of inclusion in the Federal Register. It adds an all-new paragraph to Title 40 of the Code of Federal Regulations (Protection of the Environment), Chapter 1, Subpart C, Part 86, Subpart S, which currently prohibits manufacturers from selling cars without a certificate of conformity and from interfering with testing, and prohibits anyone from refusing to test their car, disabling or emissions equipment, or manufacture or sell parts designed to do so. Currently, this language is understood not to apply to vehicles used solely for competition. The new paragraph reads:
"(5)Certified motor vehicles 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 prohibitions of paragraph (a)(3) of this section and 42 U.S.C. 7522(a)(3)."
(The referenced prohibitions cover disabling emissions equipment and manufacturing or selling parts designed to do so.)
Here, and elsewhere, the EPA says loudly and clearly it no longer believes that street cars which have been modified for competition use only are exempt from smog laws. Moreover, it makes clear anyone modifying their car for racing in ways that affect emissions and anyone who manufactures or sells race parts which affect emissions is in direct violation of federal law.
Another proposed "clarification" to the same Code, Title, and Chapter, under Subpart B, which covers Prohibited Actions and Related Requirements, increases the fines for these violations. Manufacturing, selling, or installing a device that "bypasses, impairs, defeats, or disables the engine's control of the emissions of any pollutant" is subject to a fine of up to $3750, an increase of $1000. Tampering with or removing "any device or element of design installed on or in engines/equipment in compliance with the regulations prior to its sale and delivery to the ultimate purchaser" will net a manufacturer or dealer a fine of up to $37,500, increased from $32,500.
Simply put, making, selling, or installing any part that affects vehicle emissions will get you a $3750 per-part fine. If you're a vehicle manufacturer or a dealer caught doing the same, you'll get nailed with a $37,500 per-engine fine.
These fines have exactly one purpose: to make it prohibitively expensive for anyone to make, sell, or install any part that could affect a street vehicle's emissions. Such fines would easily put most aftermarket companies and hot rod shops out of business, or scare them away from producing, selling, or installing those parts. Considering such parts are the lifeblood of many aftermarket companies and hot rod shops, it would effectively put them out of business.
It doesn't stop there, either. EPA regulators were thorough, and have gone so far as to propose changes to referenced and tangentially related regulations in order close the competition exemption and any related loopholes. For example, Title 40, Chapter 1, Part 85, Subpart R, which deals with Exclusions and Exemptions of Motor Vehicles and Motor Vehicles Engines, would have its definition of "motor vehicle" amended to make it harder to claim a modified vehicle is exempt. Currently, that section states a vehicle will not be deemed a "motor vehicle" if it "lacks features customarily associated with safe and practical street or highway use, such features including, but not being limited to, a reverse gear (except in the case of motorcycles), a differential, or safety features required by state and/or federal law." Recognizing that part about safety features could be a loophole for a modified street car, the EPA is proposing to add an addendum, which reads:
"(b)Note that, in applying the criterion in paragraph (a)(2) of this section, vehicles that are clearly intended for operation on highways are motor vehicles. Absence of a particular safety feature is relevant only when absence of that feature would prevent operation on highways."
Perhaps at this point, you're hoping that, at the very least, these changes would only affect cars made after the regulation they're contained in goes into effect. While the EPA takes no clear stance on this question, LeMons' attorney points out that the following existing regulation found in Title 40, Chapter 1, Subpart U, Part 1068, Subpart B could be interpreted to apply retroactively:
"(1) Introduction into commerce. You may not sell, offer for sale, or introduce or deliver into commerce in the United States or import into the United States any new engine or equipment after emissions standards take effect for that engine or equipment, unless it has a valid certificate of conformity for its model year and the required label or tag."
In other words, if you've made any modifications to your racecar's engine which affect its emissions, you can never sell it. On top of that, it wouldn't just apply to new vehicles. That bit about the model year means this rule would apply to every street car engine built since the Clean Air Act went into effect in 1970. Taken to the extreme, it could, in the attorney's opinion, be read to prohibit any modification in the first place, even if you never sell it.
More than that, if the EPA does increase its enforcement under the proposed rules and begins driving aftermarket companies out of business, you won't have parts to modify your old car with anyway, and it'll still be in violation of federal law if you've already modified it.
How can the EPA justify this change in position? It explains thus:
"The existing prohibitions and exemptions in 40 CFR part 1068 related to competition engines and vehicles need to be amended to account for differing policies for nonroad and motor vehicle applications. In particular, we generally consider nonroad engines and vehicles to be ''used solely for competition'' based on usage characteristics. This allows EPA to set up an administrative process to approve competition exemptions, and to create an exemption from the tampering prohibition for products that are modified for competition purposes. There is no comparable allowance for motor vehicles. A motor vehicle qualifies for a competition exclusion based on the physical characteristics of the vehicle, not on its use. Also, if a motor vehicle is covered by a certificate of conformity at any point, there is no exemption from the tampering and defeat-device prohibitions that would allow for converting the engine or vehicle for competition use. There is no prohibition against actual use of certified motor vehicles or motor vehicle engines for competition purposes; however, it is not permissible to remove a motor vehicle or motor vehicle engine from its certified configuration regardless of the purpose for doing so."
Translated: the EPA defines a racecar based on how it's used and a street car based on its physical characteristics, and never the two shall meet. As long as it's a street car to begin with, it can never be a racecar. The competition exemption that exists for purpose-built racecars does not exist for street cars modified into racecars. All of the EPA's proposed "clarifications" reflect this position, even if the historical record doesn't.
The EPA maintains these clarifications are not a new interpretation, despite the evidence to the contrary. Asked to provide examples of past enforcement in line with this disputed interpretation, an EPA spokesperson pointed to a settlement against Casper's Electronics. Casper's produced an "O2 Sim" which fooled a vehicle's computer into believing a post-catalytic converter oxygen sensor was present when it had in fact been removed. Such a device is typically used in conjunction with the removal of the catalytic converter, which would otherwise cause a "Check Engine" light and possibly a "limp" mode. It's an inexpensive alternative to a proper computer reflash, which would account for the higher exhaust flow and altered emissions. Casper's was accused of designing and marketing the device for use in street vehicles, even though it was advertised for "off road use only" and "non-road use only."
Now that the EPA's intentions are clear, the question is why. Why, after nearly 50 years of turning a blind eye, has the EPA suddenly decided to regulate the racing aftermarket? The answer can be found in the EPA's statement to the press at the beginning of this story: "The EPA remains primarily concerned with cases where the tampered vehicle is used on public roads, and more specifically with aftermarket manufacturers who sell devices that defeat emission control systems on vehicles used on public roads." The EPA is concerned car enthusiasts are ripping out their cars' emissions systems or installing off-highway use only parts on their cars.
We reached out to the EPA for comment, and it reinforced this position.
"These manufacturers have claimed their products are used only on competition vehicles. However, their products are designed for EPA-certified vehicles motor vehicles and in reality the vehicles are used on public roads."
The thing is, the EPA is right. Anyone can go online right now and order a catalytic converter delete kit (as an example). The seller will put a disclaimer on the website and in the package which clearly says it's for off-highway use only, but the seller has no control over what happens to that part once it leaves the warehouse. It is up to the buyer to use it legally, but there is virtually nothing stopping the buyer from using that part on the street.
How many people actually run off-highway only parts on their street cars, or drive their racecars on the street, is unclear. We asked the EPA, and a spokesperson told us "In the course of taking enforcement cases concerning tampered vehicles used on public roads, the EPA estimates the amount of pollution from the illegal tampering. That work has shown that the use of aftermarket defeat devices has resulted in tens, if not hundreds of thousands of tons of excess emissions into the nation's air." The spokesperson did not elaborate on the methodology or exact figures.
Unfortunately, the EPA's solution to this problem is to ban these kinds of parts for street cars, including ones modified for legitimate competition. In an effort to crack down on the relatively small number of people running race parts on the street, the EPA wants to give itself the unquestionable power to put aftermarket manufacturers out of business, thus eliminating the supply of parts which could be used inappropriately.
This is deeply concerning for the aftermarket industry, but what does it mean for the enthusiast and the grassroots racer? For the moment: nothing. Because the EPA has limited resources and manpower, it tends to target the biggest offenders. We asked the EPA if it would target individual racers and enthusiasts. This was the reply:
"The EPA has not taken an enforcement action for tampering against a vehicle owner where the owner has proven the vehicle was used exclusively for racing. In the course of selecting cases for enforcement, the EPA has and will continue to consider whether the vehicle is used exclusively for competition. The EPA is primarily concerned with cases where the vehicle is used on public roads."
The spokesperson later added: "The EPA has not taken an enforcement action for tampering against a vehicle owner where the owner has proven the vehicle was used exclusively for racing."
While the individual racer or enthusiast is unlikely to be targeted, EPA provisions provide for fines only, not the confiscation of vehicles, so your racecar is most likely safe. Your ability to modify your car for racing purposes, however, is clearly in jeopardy should the EPA successfully expand its powers and increase its enforcement activities. While the EPA maintains its "approach to enforcement has not changed," it made no mention of its frequency of enforcement.
This leaves one pressing question: is it the EPA's intent to use the clarified rules to increase enforcement against the automotive aftermarket on grounds of emissions tampering? The EPA says no:
"The proposed rulemaking creates no new law or policy, and absolutely is not a statement of any change in direction of our enforcement efforts," a spokesperson said.
While this statement is reassuring, it does not preclude the possibility of a "change in direction" of enforcement in the future, which is at the heart of SEMA's and the racing and enthusiast communities' concerns. SEMA has initiated lobbying efforts aimed at the EPA, Congress, and the White House to convince the government to act by officially codifying the competition exemption for motor vehicles into law and preventing future enforcement by the EPA.