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The Role of Political Subdivisions

Most states allow their subdivisions to restrict vehicle noise by measuring noise emissions with sound level meters either passively (vehicle in use) or by ineffective stationary testing procedures. The EPA “label match-up” accomplishes the same thing by a higher equipment standard. This is, in effect, enforcing a noise emissions limit by requiring 1983 and newer motorcycles to be, as originally equipped, with mufflers that meet the federal standard. Authority to implement label match-up is given to states and political subdivisions, independent of each other, by section 4905(e)(2) of the Noise Control Act (NCA).

Political subdivisions (i.e., boroughs, cities, townships) are generally prohibited by their state’s department of transportation from imposing a stricter vehicle equipment standard unless authority is given. The NCA grants that authority.

The “supremacy clause^[1]” of the U.S. Constitution gives boroughs, cities, and townships the authority to conflict with state law, if it is Congress’s intent. The U.S. Supreme Court has repeatedly touched upon this issue of preemption in other noise and NCA litigation:

In reviewing an issue of preemption, this court must “start with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless there [is a] clear and manifest purpose of Congress^[2].”

“Preemption of state law is compelled if Congress’s command is explicitly stated in the federal statute’s language or implicitly contained in its structure or purpose^[3].”

When Congress passed the NCA in 1972, it did so for two reasons:

1. To “promote an environment for all Americans free from noise that jeopardizes their health and welfare^[4].”
2. To provide a level playing field of commerce for manufacturers of products designated as major sources of noise, by preempting states and their localities from enforcing their own standards on these manufacturers unless identical to the federal standard^[5].

Congress gave states and their subdivisions broad authority to control or regulate environmental noise from these products (motorcycles) as a condition when they are used within their jurisdiction. This was made quite apparent by many members of Congress in 1972.

“It is essential that states and local governments be afforded the opportunity to protect their citizens from particular noise conditions. …The legislative history now makes it clear that states and local governments have the right to regulate the licensing, use, operation and movement of noise sources by all means…^[6]“

“Being able to put a potential noise maker on the market does not mean that states and local governments are powerless to control the use to which that product may be put. On the contrary, it is expected that local units of government, having the overall problem of noise with which to contend, will make rules for the use of various equipment. For example, gasoline power mowers could be banned or regulated as to times of use. Outboard motors can be restricted in times and places of use. Trucks could be banned from certain areas. This is the real heart of noise control. It is not expected that all products can be made noiseless and do the job for which they were intended. Perhaps they can be made less noisy. But the bigger problem is the accumulation of noise sources in any given area. That can only be controlled locally and it is so recognized by this bill^[7].”

“…the committee intended to make it clear that states and cities, in pursuit of levels of environmental noise thought desirable locally, can impose any burden on the users of products covered by federal standards which it finds necessary. The committee found that the language of the bill [section 4905(e)(2)] allowing controls on environmental noise through licensing the use, operation, or movement of products would retain for states and local governments the power to establish and enforce limitations on noise emissions as a condition to use within their jurisdiction^[8].”

“…once a product is manufactured under the national standard and goes into commerce, and is located in a city, the local authorities can regulate its use.” He goes on to comment on the committee’s^[9] position: “The committee tried to balance this situation, to place all the authority and as much of the regulatory authority in the local authorities, in the state and local governments as was possible, consistent with a reasonable burden on commerce^[10].”

Further evidence of Congress’s intent to strengthen local-level regulation was the addition of the “Quiet Communities Act^[11]” to the NCA in 1978. This addition came about because, four years after the passage of the NCA, very little had been accomplished (at the local level) to provide an environment free of noise for all Americans. The Quiet Communities Act provided valuable information to cities and states as to the detection and enforcement of safe noise levels, and much-needed financial assistance to states and cities with help in drafting laws and ordinances and purchasing equipment and training personnel.

The assistant administrator of the EPA in the second hearing of the NCA (in 1978) clearly saw this severe problem within the NCA and that the original intent to “…promote an environment for all Americans free from noise that jeopardizes their health and welfare” was not being met. He and many others recognized and reported to the committee that, in order to achieve the desired purpose of the NCA, states and localities must be informed and included as one of the enforcement tools against the users of noisy products. That is to say, the owners of motorcycles who modify their exhaust systems to make them loud are at issue, not the vehicle manufacturers.

“…we are presently at a critical point in our national noise control effort. Congress clearly did not make EPA responsible for the strength and vitality of state and local noise control programs when it passed the 1972 act. The act’s section on state and local programs contains only seven lines of type and authorizes only a general technical assistance program. Nevertheless, we feel responsible for state and local programs if for no other reasons than that our efforts will be much less effective in controlling noise if these community programs do not exist or if they are weak. There simply must be strong state and local programs if the national noise control effort is to be successful^[12].”

Although the label match-up did not yet exist in 1972, Congress, and a few years later the EPA, provided a way for states and localities to control or regulate motorcycle noise either with sound level meters or enforcement of the prohibited acts^[13] section of the NCA. This section prevents any person from operating a regulated product (motorcycle) with any “device,” “element of design,” or noise label removed or rendered inoperative.

The EPA’s “model community noise ordinance,” written specifically for counties and cities, and subsequent later EPA reports of the motorcycle noise emissions regulations written in 1980, clearly indicate that the regulation of vehicle equipment and the “label match-up” is within states’ and, more importantly, political subdivisions’ rights provided in section 4905(e)(2) of the NCA to regulate or license.

6.2.18 TAMPERING

The following acts or the causing thereof are prohibited:

(a) The removal or rendering inoperative by any person other than for purposes of maintenance, repair, or replacement of any noise control device [muffler] or element of design or noise label of any product identified under Section 4.3.6.

(c) The use of a product, identified under section 4.3.6, which has had a noise control device or element of design or noise label removed or rendered inoperative, with knowledge that such action has occurred^[14].

Section 4.3.6 is a list of products manufactured to meet federal, state, or community law for which “tampering” enforcement will be conducted.

This ordinance was written when the EPA had only promulgated one federal noise emissions standard, which is why there is reference to a list (section 4.3.6) that would be periodically updated by the city or municipality. This section of the ordinance is almost an exact copy of the prohibited acts section (4909(a)(2)) of the NCA. It appears that they also intended to allow states and communities to create their own versions of the NCA and regulate other sources of noise, provided the federal government did not already occupy the field and regulate the product.

The following quotes are from several of the EPA’s reports of subsequent motorcycle regulations:

“A second approach available to states and local jurisdictions is to adopt and enforce the federal labeling and anti-tampering provisions provided by these final regulations. For example, competition exhaust systems are required to be labeled as proper for use on competition motorcycles only; all other exhaust systems intended for regulated or unregulated motorcycles will be labeled as such. State and local jurisdictions will thereby have a means of keeping the competition-type exhaust systems off the street and out of non-competition events in off-road riding, and keep unregulated exhaust systems off the quieter regulated motorcycles^[15].”

“Original equipment and replacement exhaust system manufacturers will be required to label their products with a compliance statement which will include the following information: the manufacturer’s name, product serial number, the applicable noise emission standard, and a list of model-specific codes for motorcycles that the exhaust system is designed to fit. The model-specific code on the label of any exhaust system that is installed on a federally regulated motorcycle must be identical to the model-specific code on the label attached to the motorcycle. This labeling scheme provides a way for federal, state, and local enforcement officials to determine whether the correct exhaust system has been installed^[16].”

“Under these provisions, manufacturers will be required to label both the motorcycles and the exhaust systems indicating the types and models of new (federally regulated) motorcycles for which the exhaust system is designed, and whether the system is designed for pre-regulated or competition vehicles. The manufacturer has to assure that these systems, when installed on a regulated motorcycle, will not cause the motorcycle to exceed the federal standard. Thus, with proper legislation, state or community police could enforce “label match-up” controls against vehicle owners who replace original equipment with noisier exhaust systems. This will not require noise measurements and, indeed, will not require the vehicle to be in operation or the driver to be present in order for a citation to be made^[17].”

1. Article IV, clause 2, U.S. Constitution: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
2. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 91 L. Ed. 1447, 67 S. Ct. 1146 (1947).
3. Shaw v. Delta Air Lines, 463 U.S. 85 (1985).
4. 42 U.S.C. § 4901(b).
5. 42 U.S.C. § 4905(e)(1).
6. Comments of Representative Ryan (New York), regarding section 4905(e)(2). See Congressional Record, Vol. 118, p. 6045. This Congressman introduced in the 91st Congress one of the earlier versions of the NCA.
7. Comments of Representative Springer regarding section 4905(e)(2) in the Congressional Record, Vol. 118, p. 6048.
8. Comments of Senator Tunney on section 4905(e)(2) in the Congressional Record, Vol. 118, p. 35419.
9. Senate Committee on Interstate and Foreign Commerce.
10. Comments of Senator Boggs on section 4905(e)(2) in the Congressional Record, Vol. 118, p. 35419.
11. 42 U.S.C. § 4913 of the NCA, as well as several other additions throughout the NCA.
12. David G. Hawkins, Assistant Administrator, Air and Waste Management, EPA, Hearings Before Subcommittee on Environment and Public Works, Serial No. 95-H55, p. 103.
13. 42 U.S.C. § 4909(a)(2).
14. From EPA’s Model Community Noise Ordinance (1975).
15. 45 Fed. Reg. 86694, at 13.
16. Docket Analysis, supra (EPA 1980).
17. “National Motorcycle Noise Control Emphasis Plan,” in Appendix O of Regulatory Analysis, supra (EPA 1980).