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The EPA and the States

With motorcycle manufacturers building EPA noise emissions–compliant motorcycles for the last twenty-six years, why are there so many loud motorcycles on the roads today? Because states and localities were never made aware of the simple “label match-up” plan created by the EPA.

When the EPA was faced with a restricted budget in 1981, it was forced to cut funding for its noise control programs. This left the Office of Noise Abatement and Control (ONAC), which provided states and localities with information, educational materials, financial support for equipment and training, and further research for new noise control technologies, without any means to carry out its duties. However, due to many pleas from manufacturers, Congress chose to leave the federal regulations for manufacturers in place to create a nationwide standard for interstate commerce.

Loud aftermarket exhaust system manufacturers are aware of the fact that there are no states^[1] enforcing the Noise Control Act (NCA) and motorcycle noise emissions regulations, so these manufacturers intentionally make simple and crude exhaust systems that barely meet states’ ineffective and antiquated muffler laws. They do so to give this group of motorcyclists what they want: noise.

Although it is a violation of federal law to operate a federally regulated motorcycle with a loud competition-use exhaust system installed^[2], the federal government (EPA) is powerless to remedy this problem^[3]. This is not merely because of the loss of ONAC, but more so because only states have the authority and appropriate police powers to enforce this federal law (if they choose to do so) against the real cause of this problem: motorcyclists who modify their vehicles into loud, noisy machines.

When Congress drafted the NCA, it decided that “primary responsibility for control of noise rests with states and local governments^[4].” That is to say, it chose to let states and their subdivisions be the primary tools to enforce the NCA and the “label match-up.” And since ONAC was defunded before it had the chance to inform the states of this fact, the makers of loud aftermarket exhaust systems will continue to build and market loud exhaust systems for this group of motorcyclists until states and localities put a stop to this practice.

Although the manufacture of a loud aftermarket exhaust system for a regulated, street-use motorcycle may be legal in the eyes of state law, the same cannot be said regarding federal law. Federal regulations^[5] permit aftermarket exhaust system manufacturers to make competition-use exhaust systems, but only for unregulated (competition-use) motorcycles^[6], provided they are labeled as such. “The motorcycle exhaust system regulation will make it illegal to manufacture or sell non-complying exhaust systems for regulated [street and off-road use] motorcycles, thereby precluding many of the consumer modifications.”^[7]

However, one would never know this fact from the marketing and advertisements for loud aftermarket exhaust systems. Manufacturers boldly showcase non-EPA-compliant, loud competition-use exhaust systems installed on regulated (1983 and newer) street-use motorcycles, complete with turn signals, mirrors, and license plates, which is in violation of the NCA.

Why not field-test all motorcycle exhaust systems, or rely on in-use vehicle pass-by testing?

Although states are preempted by section 4905(e)(1) of the NCA from enforcing their own noise emissions limits (maximum noise levels) on manufacturers of regulated motorcycles and exhaust systems unless identical to the federal standard, they are free to establish their own noise emissions standards for competition-use motorcycles and loud aftermarket exhaust systems. This is because the EPA has no noise emissions standards for these products—only labeling to show intent.

The only easily applicable testing procedure police could use is a stationary measurement type such as SAE J1287. Unlike the EPA’s test (J331a), this test does not measure the in-use noise levels encountered while the vehicle is moving under heavy load and large throttle openings. The J1287 test is part-throttle, no-load, and has a very poor correlation to real-world, in-use conditions, as commented on by the EPA: “the simple stationary tests usually offer such poor correlation that they would seem to be highly ineffective in actual use^[8].” This would also require police and inspection shops to purchase expensive testing equipment and would create an additional burden on socially responsible motorcyclists who do not modify their exhaust systems to increase noise.

Some states utilize a method commonly referred to as a “vehicle pass-by” testing procedure. This method of vehicle noise control measures the noise levels of vehicles in use as they pass by the testing area. The pass-by method of noise control has many faults that hinder its adoption by police departments.

• It requires $1,000 to $1,500 worth of equipment (per patrol unit) and training for personnel.
• It requires noisy vehicles to be in motion and police to be set up in advance with measurement equipment at the side of the road, waiting for the violation to occur. Although police might hear many loud motorcycles within earshot, unless they enter the testing area they cannot be cited, thus wasting valuable time and resources.
• Because of the conspicuity of the police and equipment setup at the test site, the operator of the vehicle can simply ease up on the throttle until out of the testing area.
• Most importantly, it does not require or provide for a higher equipment standard, as the label match-up does.

The current pass-by test that many states use was created by ONAC and field-tested in a pilot program in Allentown, PA, in the mid-1970s. The pass-by method was only intended to be used to bring immediate control of major noise sources until federal regulations could be promulgated for them^[9]. The pass-by testing method is only the first phase of a three-phase EPA national plan. The second phase of the national plan is what this legislative proposal addresses. As intended by the EPA, the second phase eliminates the need for sound measurement equipment by allowing states and subdivisions to use the federal motorcycle exhaust system labeling requirements as an enforcement tool^[10].

1. Excluding California. See infra note 11-6.
2. 42 U.S.C. § 4909(a)(2).
3. The Environmental Protection Agency has more recently addressed this noise issue and replied that it is aware of a problem but does not have the funding from Congress to deal with it at this time. See Summary and Analysis of Comments: Control of Emissions from Highway Motorcycles (EPA No. 420-R-03-106) (Dec. 2003); and Summary and Analysis of Comments: Control of Emissions from Unregulated Nonroad Engines (EPA No. 420-R-02-023) (Sept. 2002).
4. Congressional Findings and Statement of Policy, 42 U.S.C. § 4901(a)(3) of the NCA.
5. 40 C.F.R. § 205.169(a)(2).
6. See definition of “competition motorcycle,” supra note 9-3.
7. 45 Fed. Reg. 86694, at 6.
8. 45 Fed. Reg. 86694, at 13.
9. Toward a National Strategy for Noise Control, p. 24 (EPA Office of Noise Abatement and Control 1977).
10. See Regulatory Analysis, supra, Appendix O (Appendix IV of this work).