Notice of Availability of EPA Tampering Policy and Request for Information Regarding 1986 Catalyst Policy, 80782-80785 [2020-27433]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 85, Number 240 (Monday, December 14, 2020)]
[Notices]
[Pages 80782-80785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27433]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-10015-93-OECA]


Notice of Availability of EPA Tampering Policy and Request for 
Information Regarding 1986 Catalyst Policy

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability; request for information.

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SUMMARY: The United States Environmental Protection Agency's Office of 
Enforcement and Compliance Assurance has issued EPA Tampering Policy: 
The EPA Enforcement Policy on Vehicle and Engine Tampering and 
Aftermarket Defeat Devices under the Clean Air Act. This Policy states 
how the EPA intends to handle certain potential civil violations of the 
Clean Air Act's prohibitions on tampering with vehicle and engine 
emissions controls as well as the manufacturing, selling, offering to 
sell, and installation of parts and components that defeat emissions 
controls. The EPA Tampering Policy creates no obligations on regulated 
parties, and it is not a rule. Further, it is principally a restatement 
of currently applicable enforcement discretion policies. The EPA 
Tampering Policy supersedes and replaces former statements of 
enforcement policy, as specified in the Policy itself. The EPA 
Tampering Policy neither supersedes nor replaces a 1986 enforcement 
policy that is specific to replacement catalytic converters for light-
duty gasoline motor vehicles that are beyond their emissions warranty. 
Rather, with this Federal Register document, the EPA requests 
information to help the agency make a future decision on whether and 
how to update or withdraw the 1986 catalyst policy. EPA does not 
anticipate any measurable costs to be incurred by the affected entities 
associated with the Tampering Policy or the request for information 
regarding the 1986 catalyst policy.

DATES: The EPA requests information relevant to the agency's ongoing 
evaluation of the 1986 catalyst policy and potential future enforcement 
policy regarding replacement catalytic converters for light-duty 
gasoline motor vehicles that are beyond their emissions warranty. 
Comments must be received by February 12, 2021.

ADDRESSES: Submit comments, identified in the subject line by 
``Catalyst Policy,'' to [email protected].

FOR FURTHER INFORMATION CONTACT: Evan Belser, Air Enforcement Division, 
Office of Civil Enforcement, Office of Enforcement and Compliance 
Assurance, Mail Code 2242A, Environmental Protection Agency, 1200 
Pennsylvania Avenue NW, Washington, DC 20460, (202) 564-6850; 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Overview of EPA Tampering Policy

    Manufacturers employ various systems, technologies, and designs to 
control emissions of air pollution from their vehicles, engines, and 
equipment. They do so to comply with Part A of Title II of the Clean 
Air Act (Act or CAA), 42 U.S.C. 7521-7554. These emissions controls 
reduce emissions of harmful air pollutants and help prevent respiratory 
disease, premature death, and environmental harm. The Act prohibits 
tampering with these emissions controls, and also prohibits making, 
selling, and installing products that defeat emissions controls. CAA 
Sec.  203(a)(3), 42 U.S.C. 7522(a)(3). Violations of these prohibitions 
can severely impact air quality and prevent a level playing field in 
the aftermarket parts industry and among those who service vehicles and 
engines.
    The EPA's enforcement and compliance efforts to stop tampering and 
aftermarket defeat devices are the subject of an ongoing National 
Compliance Initiative. The agency has stepped up its enforcement in 
this area in response to the widespread removal of vehicle emissions 
controls that are essential for achieving and maintaining National 
Ambient Air Quality Standards. Agency enforcement personnel are holding 
accountable those who manufacture and sell aftermarket defeat devices, 
those who tamper with commercial fleets of vehicles, and those service 
shops that routinely delete emissions control equipment. Such conduct 
is illegal, and undercuts local, state, and federal efforts to improve 
air quality.

[[Page 80783]]

    To complement this enforcement effort, the EPA's Office of 
Enforcement and Compliance Assurance (OECA) has updated the agency's 
enforcement policy concerning potential violations of the Act's 
prohibitions on tampering and aftermarket defeat devices. The EPA 
Tampering Policy: The EPA Enforcement Policy on Vehicle and Engine 
Tampering and Aftermarket Defeat Devices under the Clean Air Act (EPA 
Tampering Policy, or Policy) will foster consistency in how EPA 
enforcement personnel approach this work. This Policy will also provide 
compliance assistance, for example, by describing measures that 
aftermarket parts companies, service technicians, and others may take 
to help prevent violations. This update is helpful in part because 
prior enforcement policies pre-date the 1990 amendments to the Clean 
Air Act that added the defeat device prohibition alongside the 
tampering prohibition and expanded the jurisdiction of the Act to 
include nonroad vehicles and engines. CAA Sec. Sec.  203(a)(3)(B) and 
213, 42 U.S.C. 7522(a)(3)(B) and 7547. Also, this Policy speaks in 
terms of today's technology, which has advanced considerably since the 
time of EPA's prior enforcement policies.
    The EPA Tampering Policy is a statement of EPA enforcement policy--
it is not a regulation--and so it establishes no performance standards, 
test methods, reporting requirements, or other features more 
characteristic of a regulatory certification program. This Policy does 
not purport to address every possible kind of conduct that may be 
subject to the Act's prohibitions.
    This Policy consolidates and restates the principles of the 
existing enforcement policies (as listed in the Policy's Introduction). 
Most notably, in this Policy the EPA reaffirms its longstanding 
practice of using enforcement discretion not to pursue conduct that 
could potentially constitute a violation of the Clean Air Act provided 
the person performing that conduct has a documented, reasonable basis 
to conclude that the conduct does not adversely affect emissions. The 
Policy includes six circumstances that help to illustrate what the EPA 
generally views to be a reasonable basis deserving of enforcement 
discretion, paraphrased here:

 Reasonable Basis A: Identical to the EPA-certified 
configuration
     Reasonable Basis B: Replacement after-treatment system 
that is as effective as the vehicle's or engine's original system and 
is durable enough to last for a period of time equal to at least half 
of the vehicle's or engine's useful life as defined in EPA regulations
 Reasonable Basis C: Addition of a new after-treatment system 
to decrease emissions
 Reasonable Basis D: Emissions testing demonstrates no adverse 
effect on emissions
 Reasonable Basis E: Aftermarket part certified or approved by 
EPA
 Reasonable Basis F: Aftermarket part exempted by the 
California Air Resources Board
    The EPA Tampering Policy may be viewed at the following website: 
Air Enforcement Policy, Guidance and Publications, https://www.epa.gov/enforcement/air-enforcement-policy-guidance-and-publications#Mobile.

II. Request for Information Relevant to the 1986 Catalyst Policy

    By this publication and as explained below, the EPA requests 
information relevant to the agency's ongoing evaluation of a 1986 EPA 
enforcement policy that specifically addresses the manufacture, sale, 
offering for sale, and installation of replacement catalytic converters 
(or catalysts) for light-duty gasoline motor vehicles that are beyond 
their emissions warranty. Sale and Use of Aftermarket Catalytic 
Converters, 51 FR 28114 and 51 FR 28132 (Aug. 5, 1986) (1986 catalyst 
policy), available at https://www.epa.gov/enforcement/air-enforcement-policy-guidance-and-publications#Mobile.

A. Background

    A catalyst is a device installed in the exhaust system of a 
vehicle. It treats and eliminates harmful pollution produced in the 
vehicle's engine, and is a type of device commonly referred to as an 
``after-treatment system.'' Automakers install catalysts in their new 
vehicles to meet tailpipe emissions standards (commonly referred to as 
``OEM catalysts'', which stands for original equipment manufacturer). 
The manufacture, sale, offering for sale, and installation of an OEM 
catalyst, or an identical catalyst, would not be a violation of the 
Act. However, manufacture, sale, offering for sale, and installation of 
a less effective catalyst may be a violation and, in the absence of any 
applicable EPA enforcement policy, subject to investigation and 
potential enforcement action.
    The EPA issued the 1986 catalyst policy in response to various 
challenges associated with the early generations of vehicles equipped 
with catalytic converters. In the 1986 catalyst policy, the EPA stated 
that the agency would generally take no enforcement action for the 
manufacture, sale, or installation of a replacement catalyst even if 
that catalyst was less effective than the OEM catalyst so long as it 
met certain criteria. The 1986 catalyst policy included performance 
criteria for replacement catalysts (e.g., control emissions of NOx with 
30% effectiveness for at least 25,000 miles). The criteria reflected 
the anticipated division between those situations where the EPA would 
likely investigate further and those situations where the EPA would 
likely take no further action. Replacement catalysts that met the 
criteria in the 1986 catalyst policy were with few exceptions less 
effective than the catalysts that automakers installed in their new 
vehicles in the 1980s. Catalyst technology has advanced markedly since 
1986, and now OEM catalysts are far more effective and durable than in 
the 1980s.

B. Specific Policy Considerations

    The EPA broadly requests information that may inform the agency's 
ongoing evaluation of the 1986 catalyst policy and potential future 
enforcement policy regarding replacement catalytic converters for 
light-duty gasoline motor vehicles that are beyond their emissions 
warranty. This includes information and data on: potential costs and 
air quality benefits of withdrawing or changing the 1986 catalyst 
policy; the current state of the market of replacement catalysts, 
including the cost, volume of sales, frequency of installation, the age 
and mileage of vehicles on which replacement catalysts are installed; 
to what extent catalyst replacement is needed due to failure of the 
original catalyst, or other reason including theft; and the 
effectiveness of replacement catalysts at treating air pollution, 
including whether and to what extent replacement catalysts in the 
current market conform to the catalysts described in the 1986 catalyst 
policy.
    Further, the EPA specifically requests information relevant to the 
five following policy considerations.
    First, the EPA requests information on whether the agency has 
accomplished the goals of the 1986 catalyst policy. As detailed in that 
policy, the stated goals included: Supporting fledgling state and local 
vehicle inspection programs by encouraging them to require their 
citizens to replace catalysts that were missing, lead poisoned, or 
otherwise ineffective; and encouraging the development of inexpensive, 
multiple-application catalysts, and to confirm the effectiveness of 
these products.
    Second, the EPA requests information on whether EPA should 
establish a consistent enforcement policy for all types replacement 
after-treatment

[[Page 80784]]

systems for vehicles and engines. After-treatment systems are devices 
that treat exhaust from the engine in order to reduce the amount of 
pollution emitted into the ambient air. Vehicle and engine 
manufacturers employ after-treatment systems in order to comply with 
EPA emissions standards for a wide range of types of vehicles and 
engines, including gasoline and diesel products for the on-road and 
nonroad sectors. Common after-treatment systems include catalytic 
converters, diesel particulate filters, selective catalytic reduction 
systems, and diesel oxidation catalysts. These systems vary in their 
applications and technologies, but the question of whether such parts 
are legal is the same in all cases: do they violate the prohibitions on 
tampering and aftermarket defeat devices in section 203(a)(3) of the 
Clean Air Act?
    Note that the EPA Tampering Policy includes provisions that 
generally address replacement after-treatment systems. These provisions 
are primarily stated in ``Reasonable Basis B'' in the EPA Tampering 
Policy (other pertinent provisions are stated in Reasonable Bases A and 
F). In the agency's ongoing evaluation of the 1986 catalyst policy, the 
agency is considering whether to withdraw the 1986 catalyst policy and 
instead apply these general provisions from the Tampering Policy to 
replacement catalysts for light-duty gasoline motor vehicles that are 
beyond their emissions warranty. As applied, Reasonable Basis B would 
say that the EPA would typically find there is a reasonable basis where 
a catalyst is as effective as the vehicle's original catalyst (which, 
for example, controls emissions of NOx with more than 90% effectiveness 
in recent model year vehicles) and will remain as effective for at 
least half of the vehicle's ``useful life'' as defined in EPA 
regulations (e.g., 60,000 miles for many vehicles on the road whose 
useful life in the regulations is 120,000 miles).
    Third, the EPA requests information on whether and how the 1986 
catalyst policy affects the market for aftermarket catalysts. Over 
time, that market has seen demand for increasingly effective catalysts. 
This follows the same basic progression by vehicle manufacturers which 
have installed increasingly effective catalysts in their new motor 
vehicles in order to comply with increasingly stringent tailpipe 
emissions standards. Manufacturers have also used increasingly advanced 
on-board diagnostic (OBD) systems to monitor the performance of a 
vehicle's emissions-related components and provide owners with an early 
warning of malfunctions through the dashboard ``check engine'' light 
(also known as a Malfunction Indicator Light). Catalysts that control 
emissions significantly less effectively than OEM catalysts may fail 
entirely at keeping the ``check engine'' light off, or may keep the 
light off for only a short period of time. Note that whether or for how 
long a replacement catalyst successfully keeps the ``check engine'' 
light does not determine whether that catalyst is compliant, but state 
and local vehicle inspection and maintenance programs require the light 
be off in order for the vehicle to qualify for registration. Over time, 
aftermarket catalyst manufacturers have supplied increasingly effective 
catalysts to help their customers who want to keep the ``check engine'' 
light off and to ensure protection of air quality. In meeting this 
demand, aftermarket catalyst manufacturers commonly make their 
catalysts more effective than the performance criteria set forth in the 
1986 catalyst policy and these more effective catalysts may last 
longer.
    Another market condition relates to the fact that the California 
Air Resources Board (CARB) requires all aftermarket catalysts sold in 
California to control air pollution with an effectiveness that is 
similar to the vehicle's OEM catalyst. Other states including New York 
and Maine have adopted California's catalyst requirements, at least for 
those motor vehicles that were originally certified to meet 
California's emissions standards (which sometimes vary from federal 
emissions standards depending on the vehicle application). This has 
created a kind of patchwork where there are significant differences 
among states in the effectiveness of catalysts for some vehicle 
applications. The EPA requests information on whether this creates 
confusion among vehicle owners or challenges for companies that 
manufacture and supply catalysts, and if so, how. The EPA further 
requests information on whether and how these conditions might change 
if the EPA were to withdraw the 1986 catalyst policy and instead employ 
the EPA Tampering Policy for replacement catalytic converters for 
gasoline light-duty motor vehicles that are beyond their emissions 
warranty.
    Fourth, the EPA requests information on the effect of EPA 
enforcement policy on catalyst costs. This includes information on the 
effect on the cost of catalysts of the 1986 catalyst policy. This also 
includes information on the effect on the cost of catalysts that may 
result if the EPA instead applies the EPA Tampering Policy to 
replacement catalytic converters for gasoline light-duty motor vehicles 
that are beyond their emissions warranty. Such information may include 
price to the ultimate purchaser of catalysts, the frequency of the need 
for catalyst replacement for the same vehicle, cost considerations for 
distributors and retailers, and cost considerations for catalyst 
manufacturers, as well as any non-confidential information on sales 
volume. More effective catalysts cost more than less effective 
catalysts because they are manufactured with better materials, better 
design, and higher amounts of the expensive precious metals that are 
needed to reduce air pollution. Like many aftermarket automotive parts, 
catalyst costs vary widely and depend on the catalyst manufacturer, 
distributor, retailer, and the application (i.e., make, model, and year 
of the light-duty motor vehicle that needs the catalyst). OEM catalysts 
are generally the most expensive option for any given application.
    Finally, the EPA requests information regarding an appropriate 
timeline for an orderly transition to a new enforcement policy in the 
event the EPA replaces the 1986 catalyst policy. The EPA acknowledges 
that catalyst manufacturers, distributors, retailers, and installers 
may require time to transition away from catalysts subject to the 1986 
catalyst policy. The EPA requests information on what changes may be 
required for participants in this industry. The EPA specifically 
requests information regarding an appropriate timeline, or timelines, 
for manufacturers, distributors, and retailers to transition in the 
event that the EPA withdraws the 1986 catalyst policy and instead 
applies the EPA Tampering Policy (specifically Reasonable Bases A, B, 
and F).

C. Submit Information

    Submit comments, identified in the subject line by ``Catalyst 
Policy,'' to [email protected]. Comment must be received by February 
12, 2021. Once submitted, comments cannot be edited or removed. The EPA 
may publish any comment received. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full

[[Page 80785]]

EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets.

Susan Parker Bodine,
Assistant Administrator, Office of Enforcement and Compliance 
Assurance.
[FR Doc. 2020-27433 Filed 12-11-20; 8:45 am]
BILLING CODE 6560-50-P