5

require evaporative emission control on light-duty vehicles to
the prescribed standard, or superchargers, which would require
emission testing showing conformance to standards over the useful
life of the vehicle or engine. Clause (1b) will also protect the
dealer who installs retrofit devices to red. :e emissions at the
request of a State or local environmental control agency.

3. Clause (lc) applies to dealers performing necessary
adjustments or alterations, according to the vehicle or engine
manufacturer's instructions, of parts already on the vehicle or
engine, e.g., adjustment of the carburetor or ignition timing.
It also covers adjustments or alterations, as in the case of
altitude "fixes", if a "reasonable basis" exists as described

above.

4. This interim policy provides general guidance to dealers
as to those acts which do not constitute tampering and those acts
which may constitute tampering. It also allows aftermarket parts
manufacturers an opportunity to protect their markets by provi-
ding dealers with assurance that their parts do not cause
emissions standards to be exceeded. Vehicle and engine manu-
facturers also often function as aftermarket parts manufacturers.
For example, many vehicle and engine manufacturers provide
aftermarket parts for the in-use vehicle and engines of other
manufacturers as well as for their own in-use vehicle and
engines. In their aftermarket parts role, vehicle and engine
manufacturers may take the same steps (set forth in this
memorandum) as parts manufacturers who are not also vehicle or
engine manufacturers to provide dealers with assurances that they
are not in violation section 203(a)(3). However, in their role
as vehicle or engine manufacturers, procedures exist whereby they
may obtain approval for any emission related change in a vehicle
or engine from its certified configuration or parameters (See
MSAPC Advisory Circulars No. 2-B "Field Fixes Related to Emission
Control-Related Components" and No. 16-2 "Approval of Emission
Control Modifications for High Altitude on New Light Duty Motor
Vehicles", March 5, 1974). This Memorandum does not relieve
vehicle or engine manufacturers from complying with the
procedures set forth in the advisory circulars except in their
specific function as aftermarket parts manufacturers.

5. Any questions regarding this interim policy should be
addressed to the Mobile Source Enforcement Division (EG-240).,
Office of Enforcement and General Counsel.

ina LIFT.

Norman D. Shulter, Director
Mobile Source Enforcement Division
Office of Enforcement and General Counsel


.

4

(c) a Federal, State or local environmental
control agency expressly represents that
a reasonable basis exists. (This provision
is limited to the geographic area over
which the State or local agency has
jurisdiction).

4. For purposes of clauses (la), (1b), and (1c):

(a) except when necessarily done in conjunction
with acts under 1(b) or 1(c) which EPA does
not consider to constitute violations of
Section 203(a) (3), the permanent removal or
disconnecting or blocking of any part of the
original system installed primarily for the
purpose of controlling emissions will be
presumed to adversely affect emission
performance; and

(b) the proscription and appropriate publication
by EPA of an act as prohibited will be deemed
conclusive that such act will adversely affect

emissions performance.

c. §S10!

1. Clause (la) will apply to new or rebuilt replacement
parts, protecting the dealer when he uses such a part to conduct
necessary maintenance if a person familiar with the design and
function of motor vehicles and engines would reasonably believe
that such a part is designed to perform the same function as the
replaced part, or if there is written representation by the parts
manufacturer that the part is so designed. Other reasonable
bases (e.g., emissions test showing no adverse effect) may exist,
but these other bases will probably not occur often in the
replacement part context. If EPA gains information that certain
replacement parts do adversely affect emissions, a listing of

such parts will be published.

2. Clause (1b) will protect the dealer who installs add-on
parts if he knows, or if it has been represented in writing to
him by the part manufacturer, that emissions tests have been
performed according to Federal procedures which show that such a
part will not cause similar vehicles to fail to meet applicable
emission standards over the useful life of the vehicle. The
dealer is protected from prosecution even if the test results
have not been reported to EPA. However, the aftermarket parts
manufacturer who represents that such tests have been conducted
should have available the data from the tests, including where,
when, how and by whom the tests were conducted should EPA request
it. Such add-on parts might be auxiliary fuel tanks, whicn would



UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460

4c ape

Office of Enforcement and 3eneral Counsel
June 25, 1974
Mobile Source Enforcement Memorandum No. 1A
SUBJECT: Interim Tampering Enforcement Policy

A. Purpose

The purpose of this Memorandum is to state the interim
policy of EPA with regard to enforcement of the "tampering"
prohibition--Section 203(a)(3)--of the Clean Air Act. This
Memorandum cancels and supersedes Mobile Source Enforcement
Memorandum No. 1 of December 22, 1972.

1. Section 203(a)(3) of the Clean Air Act provides:

"The following acts and the causing thereof are
prohibited--

(3) 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 for any
manufacturer or dealer knowingly to remove or render
inoperative any such device or element of design
after such sale and delivery to the ultimate
purchaser."

Section 205 of the Act provides for a maximum civil penalty of
$10,000 for any person who violates Section 203(a) (3).

2. This "tampering" provision of the law has created a
great deal of uncertainty, primarily among new vehicle dealers
and automotive aftermarket parts manufacturers, regarding what
actions and/or use of what parts are prohibited. The terms
"manufacturer" and "dealer" in 203(a)(3) refer only to motor
vehicle and engine manufacturers and new motor vehicle dealers;
however, the law impacts indirectly on aftermarket parts
manufacturers through its applicability to vehicle dealers who
are customers for their products. Other provisions in the Act
establishing manufacturer warranties and authorizing compulsory
recall of properly maintained vehicles also have a potential for
anti-competitive effects in the aftermarket.

Printed on Recyced Paper

2753


2

3. In general, it is clear that EPA's primary objective
in enforcing the statutory prohibition on "tampering" must be
to assure unimpaired emission control of motor vehicles through-
out their useful life. It is EPA's policy to attempt to achieve
this objective without imposing unnecessary restraints on
commerce in the automotive aftermarket.

4. The long range solution to minimizing possible anti-
competitive effects that could result from implementation of
these statutory provisions may lie in some type of certification
program for at least certain categories of aftermarket parts.
EPA is currently studying the technical, administrative and
legal problems which such a program presents. EPA has yet to
develop the policy, procedures, or facilities attendant to any

long range solution.

5. In the absence of a long-term solution, and in the
absence of proof that use of nonoriginal equipment parts will
adversely affect emissions, constraining dealers to the use of
only original equipment parts would constitute an unwarranted
burden on commerce in the automotive aftermarket. Pending
development of a long range solution, the following statement
reflects EPA's interim policy in the tampering area. This policy
is intended to which dealers now face by
providing criteria by which dealers can determine in advance
that certain of their acts do not constitute tampering.

6. New vehicle and engine manufacturers have also requested
that they be treated, in their aftermarket parts role, similarly
to other aftermarket parts manufacturers. Memorandum No. 1 was
intended to avoid unnecessary adverse impacts on all aftermarket
manufacturers; this revision, therefore, makes it clear that
EPA's interim policy extends to vehicle and engine manufacturers.

B. Interim Policy

1. Unless and until otherwise stated, the Environmental
Protection Agency will not regard the following acts, when
performed by a dealer, to constitute violations of Section

203(a) (3) of the Act:

(a) Use of a nonoriginal equipment aftermarket
part (including a rebuilt part) as a replace-
ment part solely for purposes of maintenance
according to the vehicle or engine manufac-
turer's instructions, or for repair or
replacement of a defective or worn out part,
if the dealer has a reasonable basis for
knowing that such use will not adversely
affect emissions performance;. and



3

(b) Use of a nonoriginal equipment aftermarket
part or system as an add-on, auxiliary,
augmenting, or secondary part or systen,
if the dealer has a reasorable basis for
knowing that such use wil: not adversely
affect emissions performance; and

(c) Adjustments or alterations of a particular
part or system parameter, if done for purposes
of maintenance or repair according to the
vehicle or engine manufacturer's instructions,
or if the dealer has a reasonable basis for
knowing that such adjustment or alteration
will not adversely affect emissions
performance.

2. For purposes of clause (la), a reasonable basis for
knowing that a given act will not adversely affect emissions
performance exists if:

(a) the dealer reasonably believes that the
replacement part or rebuilt part is designed
to perform the same function with respect
to emission control as the replaced part,
or

(b) the replacement part or rebuilt part is
represented in writing by the part manufacturer
to perform the same function with respect to
emission control as the replaced part.

3. For purposes of clauses (1b) and (lc), a reasonable
basis for knowing that a given act will not adversely affect
emissions performance exists if:

(a) the dealer knows of emissions tests which
have been performed according to testing
procedures prescribed in 40 CFR section 85
showing that the act does not cause similar
vehicles or engines to fail to meet applicable
emission standards for their useful lives
(5 years or 50,000 miles in the case of
light-duty vehicles); or

(b) the part or system manufacturer represents
in writing that tests as described in (a)
have been performed with similar results;
or