The new EPA (Environmental Protection Agency) motorcycle emissions rules have taken effect for the large manufacturers, those that produce over 3,000 units per year, beginning with the 2006 models. You know your shop is ready for the new year. Your techs have done their homework so they understand the changes in the new models. You have all the latest catalogs so you can get everything your customers will want to personalize their rides. You know the specs on all the latest engines, engine components, transmissions, wheels, and frames and what will fit what bike. You can even build your customer any bike he wants, right down to that righteous paint job and custom chrome plating on the parts your machine shop fabricates.
Your customers have already started coming in complaining about the performance of their new ride and asking you to make some improvements for them. They want you to change that restrictive stock air cleaner and filter. Oh, and get rid of the stock pipes, so their bike will look, sound, and run better. That means a new fuel injection control module will be needed, or the stock one altered, because the engine will not run right (lots of popping and spitting out of the intake) with the factory fuel injection map. Your customer does not want to buy the flash from the dealer because he’s not finished changing things yet. So you put on one of the aftermarket programmable fuel injection control modules because the owner wants to be able to adjust the mapping when he has you put in the new cam and rework the heads later on.
Does this sound familiar? Sure it does, this is your industry, your livelihood. Heck, this is how you’ve been doing business since you opened your doors. However, now there’s a big problem with doing business as usual. Have you noticed the disclaimers on all those engine products, including the new, high-flow air filters? You know, the ones that say “For closed course use only” or “Not legal for street use.” Those words are what may end business as you know it unless you’re working exclusively on pre-1979 motorcycles. That’s because if you work on later machines, any modification you do to the engine, intake, exhaust system, or driveline of a motorcycle puts you in violation of the federal Clean Air Act of 1979. Unfortunately, this is how many small shops, manufacturers, and bike builders currently make their living. If you want to preserve your livelihood, now is the time to get involved.
Tampering
There is a section in the Clean Air Act of 1979 concerning “tampering,” which makes it illegal to modify or remove any component designed to reduce or control exhaust emissions, including intake or exhaust noise. Removing the catalytic converter on a car, or a new motorcycle constitutes tampering. So does replacing an engine component with anything other than stock or direct replacement components. Violating this anti-tampering law opens you up to a fine of up to $10,000 per occurrence. An occurrence is logged each and every day the modified vehicle is operated on public streets. That means a possible fine of up to $10,000 per day for every modified motorcycle that comes out of your shop. (This is the maximum fine, not necessarily what the EPA will impose.)
What work can you do without violating the anti-tampering law? The EPA says that, by law, all you can change is accessories that do not affect how the bike performs emissions-wise, such as chassis improvements, color, and chrome changes. No engine, intake, exhaust, or driveline modifications allowed. Ditto for six-speeds, fat rear tires, and sprocket or pulley changes. Anything that can cause the engine to work harder, rev differently, etc. is not allowed. So how long can you stay in business if you lose the vast majority of your engine work or only work on pre-1979 motorcycles?
Most shops have not been concerned with the anti-tampering laws because the enforcement in the aftermarket motorcycle industry has been very lax. A large number of shops, individuals, and even some manufacturers do not even know these laws exist, much less that they apply to motorcycles. Manufacturing and selling components designed to defeat highway vehicle emission control devices has been illegal since the Clean Air Act was passed in 1977. The companies that make the parts you install put that disclaimer on the package to protect themselves. However, we’re not so sure it will protect them or you if the enforcement level rises, which it’s dong already. Case in point: On a recent trip out west, Editor Chris Maida talked with one California bike builder who has already been visited by CARB officials and has been slapped with violations for some of the bikes in his shop. And he’s not the only one. We also all know what starts in California soon finds its way across the country.
The new emissions rules were published in the Federal Register, Volume 69, No. 10. Here’s the text about tampering from page 2,403: “F. Modification, Customization, and Personalization of Motorcycles. Many motorcycle owners personalize their motorcycles in a variety of ways. This is one of the aspects of motorcycle ownership that is appealing to a large number of motorcycle owners, and they take their freedom to customize their bikes very seriously. However, there are some forms of customization that are not legal under the provisions of Clean Air Act section 203(a), which states that it is illegal: for any person to remove or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under this title prior to its sale and delivery to the ultimate purchaser or … after such sale and delivery to the ultimate purchaser … or for any person to manufacture or sell … or install, any part or component intended for use with … any motor vehicle … where a principal effect of the part or component is to bypass, defeat, or render inoperative any device or element of design installed on or in a motor vehicle … in compliance with regulations under this title, and where the person knows or should know that such part or component is being offered for sale or installed for such use or put to such use. … In other words, under current law, owners of motor vehicles cannot legally make modifications that remove, bypass, or disable emission-control devices installed by the manufacturer. It is also illegal for part manufacturers and dealers to manufacture, sell, or install a part or component that the manufacturer or dealer knows or should know will be sold or used in a manner that defeats the emissions control system.”
What all that means is that it’s illegal, and has been since 1979, to change engine components like air cleaners, cams, pistons, heads, flywheels or crankshafts, carburetors, fuel injection modules, intake manifolds, or exhaust pipes on street motorcycles unless the finished bike has been tested and the amount of emissions the motorcycle produces did not increase. Changing gear ratios and putting on a fatter rear tire can also affect emissions because motorcycles are emissions-tested as a complete vehicle, not as individual components. Changing these components can alter how much a throttle is opened to get the motorcycle to a set speed, which may increase the emissions it produces. Almost every aftermarket motorcycle shop, in this country and many OEM shops as well, has made, or is making these modifications. As we stated in the beginning of this article, this is your way of business; this is how you make a living.
The New Rules
The rule goes on to say, “The new emission standards that we are adopting do not change this ‘tampering’ prohibition, which has been in the Clean Air Act for more than 20 years. Part manufacturers are still free to make parts, dealers are free to sell and install parts, and owners are free to customize their motorcycles in any way, as long as they do not disable emission controls or cause the motorcycle to exceed the emission standards. Owners are also free to perform routine maintenance on their motorcycles to restore or maintain the motorcycle engine and related components in their original condition and configuration.”
The key phrase here is “original condition and configuration.” That means an 88-cubic-inch Twin Cam engine, for example, cannot be stroked or bored out to make it a 95″ or larger engine unless the new engine configuration has been tested and certified to meet the emissions limits that were in effect when the motorcycle was new. And, as we all know, that is a very popular upgrade on a Twin Cam.
Do you build custom motorcycles in your shop and sell them for use on the road? Do you build your own bikes to ride? Do you take one of each of your bikes/models to an EPA-certified test facility for compliance testing before you offer them for sale or ride them on the public roads? The EPA even requires testing for noise levels as part of its vehicle certification process. Every motorcycle since 1979 has been required to display an EPA Certificate of Conformity. If you have not been having the bikes you build tested for compliance you are technically in violation of the federal Clean Air Act. The same anti-tampering fines apply to you unless you spend the thousands of dollars required for testing to certify that your bikes/models conform to the EPA standards for the year you built the motorcycle.
For the first time, starting in 2004, the EPA has allowed some exemptions that allow you to build highway motorcycles and ride them without having them tested. Here are some excerpts from the EPA release: Kit Bikes: An individual is allowed to build one motorcycle (kit bike) for personal use without an EPA certificate. The individual is allowed only one exempt kit bike per lifetime. Any other kit bikes that an individual decides to make must meet the emission standards and be certified with the EPA. The exempt kit bike may not be sold until five years after assembly.
Display Exemptions: A manufacturer may sell or lease 24 custom motorcycles per year for display purposes. These display motorcycles can only be operated on public streets and highways for the purpose of going to and returning from shows or other places where the motorcycle will be displayed. To qualify under the display exemptions, a tag must be permanently attached somewhere on the motorcycle stating that the motorcycle is exempt from EPA emissions requirements and that its use on public roads is limited. EPA must also be notified before the builder sells the motorcycle.
Prior to September 2005, we believed and had been told by the EPA that we were correct, that these exemptions did not come into effect until 2006. During a September 8, 2005, meeting with EPA officials it was discovered that, due to an arcane numbering system for the rule, these exemptions actually had been in effect since March 15, 2004.
New Possible Changes
The EPA and CARB (California Air Resources Board) are going to join forces for a Technology Progress Review in 2006. The EPA will use the results of this review to propose any changes to the rule it feels may be warranted. Your input is critical if you intend to stay in business. One possible change that has been requested is the development of a program that would apply emission standards to motorcycle engine manufacturers. In the rule, on page 2,404, the EPA suggests, “It is our view that a program could be structured such that small volume motorcycle manufacturers could purchase certified engines directly from an engine manufacturer. We believe that such a program could be structured such that it is both fair to the engine manufacturers and beneficial to small volume motorcycle manufacturers. Under one possible approach, small volume motorcycle manufacturers could choose to use certified engines and to accept the calibration or configuration of a certified engine that they purchase for use in their motorcycles. Small volume manufacturers would not be required to use certified engines, but if they chose either to use uncertified engines or to change the calibration or configuration of the certified engines they use, then they would have to independently certify their motorcycles to the applicable emission standards.”
While this sounds like an easy solution at first, it’s not once you think it through. To qualify, you would be required to use the certified engine’s complete package — from the air cleaner through the exhaust system, and possibly even the transmission, gearing, and tire sizes stated, as well as the finished motorcycle weight limits — in your custom-built motorcycle to qualify for the EPA Certificate of Conformity. If you change any of these parts, you could still be required to spend thousands of dollars to have your motorcycle tested for emissions compliance since your modifications could have changed the engine’s emissions.
Here’s another point to consider: If this change to the EPA law goes through, how much more are you going to have to pay to get a “certified” engine package? A package that will include the required non-programmable fuel injection module, exhaust system, and quite possibly the entire driveline except clutch, wheels, and tires. That answer will depend on how strict the enforcement is and what the individuals, shops, and manufacturers will stand for. It will also be influenced by how many engine and frame builders, manufacturers, shops, and bike builders can stay in business under this proposed new regulation. Also, if the proposed certified engine regulation becomes the only way to build a custom motorcycle, it’s very possible that each state will require an EPA certificate of conformity to register a custom-built motorcycle. In fact, some states, like California and Connecticut, are already requiring them.
The MIC, MRF, SBA & EPA
During the Motorcycle Riders Foundation’s (MRF) discussions with the EPA, it learned that the Motorcycle Industry Council (MIC), through its American V-Twin Aftermarket Committee, had asked for a “letter of guidance” from the EPA. The MIC, like the MRF, has been in negotiations with the EPA about these previously mentioned issues for some time, and it has been trying to get aspects of these rules changed. However, by requesting this process, the MIC would have stopped the normal EPA public hearing or comment period on the new rules.
The MRF also notified the EPA that the MIC only represents its members — some of the industry’s manufacturers and distributors — not the custom motorcycle industry as a whole and in no way does it represent or is it in discussions with many independent dealers, manufacturers, and local custom shops. Thankfully, the EPA agreed and has been very willing to talk with the MRF about other ways of achieving its goal of cleaner air, without putting small businesses in jeopardy. The MRF did this because, though the MIC did not request the letter of guidance to put other companies out of business (Editor Chris has many friends on the MIC and knows this to be true), the MRF believes the rules the MIC is trying to implement would inadvertently be detrimental to the industry, particularly small shops and builders. If the letter of guidance had been issued, the normal EPA public hearing or comment period on the new rules would have ended and the rest of the industry would not have been able to have its concerns and input heard by the EPA.
Unfortunately, many shop owners that we’ve talked with still do not realize what is going on. Many believe the EPA and state governments will not enforce the new laws, like they didn’t enforce the old laws, and it will be “business as usual.” However, if enforcement is ratcheted up, especially in response to noise complaints, the resulting penalties may be the financial ruin of the smaller shops, manufacturers, and bike builders in the motorcycle aftermarket industry. Innovation will suffer and product choices will go down drastically.
While the high profile of custom motorcycles has been good for business, it may also lead to the demise of portions of the aftermarket industry. If local shops are reluctant to install aftermarket components because of the possibility of EPA fines, what is going to happen to the businesses that build those parts? If more OEM shops refuse to work on modified motorcycles, or possibly not even take them in on trade, how many customers are going to have any of those modifications done? Where does that leave you? And if you have a modified motorcycle, what will it be worth, since no one can ride it without getting a severe fine if he’s caught on the road? If you are a small shop, builder, or manufacturer the time for action is now if you intend to preserve and protect your business. You need to band together to be fairly represented. Understandably, the large aftermarket players are looking out for their interests with the MIC, which is why the MIC was formed. That’s the smart way of doing and protecting your business, since there’s strength in joining forces. And although you cannot join the MIC, you can be represented by the MRF.
When the EPA was working on this rule it was required to consult with the Small Business Administration (SBA) to determine its impact on businesses like yours. SBA held a panel discussion with small business to see what needs to be done to insure they will not be regulated out of existence. Unfortunately, very few business owners showed up to talk with the SBA and express their concerns. The MRF is currently working with the SBA to see if there is any way it can help. The good news is that the SBA is the protector of small business in America and the EPA does not want to put people out of business, so it is willing to entertain ideas that will let it achieve its goal of clean air while allowing business to survive and thrive.
A Better Solution
There is one more option that the MRF is working on in conjunction with several aftermarket companies. We’re exploring the possibility of a “non-conformance payment.” This would be a pay-to-play type of variance to the rules. Under this type of rule, the EPA would collect a payment for each non-certified engine or motorcycle produced, either by a business or individual, to allow that motorcycle to be registered and used legally on the road. Ideally, if a small engine manufacturer can meet the certification requirements, he will not have to pay, but if a builder uses that engine in a non-conforming chassis or modifies the engine, the bike builder or engine modifier would then have to make the payment. This setup would allow for business as usual, as well as protect the garage builder, allowing for innovation and individualism while still going a long way toward protecting the air we all breathe.
American Iron Magazine is strongly supportive of the MRF taking the lead to represent its members and help the aftermarket industry’s small shops, manufacturers, and small-volume bike builders find a solution to this issue both through the EPA, SBA, and, if necessary, Congress. The MRF’s interest in this project is to preserve the lifestyle of motorcycling as we know it. The MRF does not have a financial interest in, nor does it want to be financially involved with, businesses. The MRF does feel, however, that the survival of the small shops, custom builders, and manufacturers is in the best interest of its members. The MRF is the only national organization that represents only street motorcyclists. Its funding comes from individual members and the State Motorcyclist Rights Organizations.
Conclusion
Now that we have the ear of the EPA, it’s time to make your voice heard. The MRF needs your input and support, so your business can be fairly represented and the motorcycling lifestyle we all currently enjoy can be protected. Instead of writing letters to just one government agency, put your concerns in a letter to the MRF. In the February issue of American Iron (and posted here on Bikernet tomorrow) there will be a questionnaire to fill out and send to the MRF so that it can get the answers to very important questions about the viability of your business. The February issue’s How It Works feature will also explain everything you need to know to fill out this form. Some of the questions it will ask are: What will the new rules do to your business? Will you have to lay off workers? Will you have to close your doors for good? What is the dollar value of the business you may lose compared to your total revenue? With this written information from you, the MRF will be able to use your input in a variety of forums, from federal agencies to Congress and the White House. Then the MRF can walk into a meeting and show the officials a compilation of concerns backing up what we have been telling them. With your timely and important input, the MRF will get the results it needs to protect your business and, thereby, the lifestyle and choices of our members.
If you as an individual want to keep building your own custom motorcycles without someone telling you what you can and cannot use, or even how long you have to own your custom motorcycle before you can sell it, the MRF needs to hear from you, too. Letters should be sent to: Motorcycle Riders Foundation, Dept. EPA/AIM, 236 Massachusetts Avenue NE, Suite 510, Washington, DC 20002-4980.
