By Joani Woelfel
Given the ease of acquiring the applications necessary to modify power and emissions features across the equipment and vehicle industry, many people seem surprised to find it’s a violation of the Clean Air Act (CAA) to manufacture, sell or install parts that bypass, defeat or render inoperative any emissions control device. This would include chipping or tuning machinery. Suppliers market these items “to achieve superior performance, more power, cleaner emissions or better fuel efficiency.”
Tuning modifies a vehicle’s electronic control unit (ECU), which is an erasable programmable read-only memory chip. When taking in trades or used equipment, dealers cannot always determine whether engines have been tuned, which creates challenges for customers who could unknowingly purchase a piece of equipment that’s been modified well beyond its performance capabilities.
As it relates to proposed “right-to-repair” laws, manufacturers say end users do not need to modify embedded code to perform repairs. Rather, equipment is designed to comply with applicable safety and emissions standards. “The ability to modify embedded code, in fact, is sought for inappropriate purposes such as circumventing safety and emissions standards and stealing intellectual property,” according to Natalie Higgins, vice president of government affairs and general counsel to the Equipment Dealers Association based in St. Louis, Mo.
Citing an increase in imports of non-compliant equipment and vehicles starting in 2008, the Environmental Protection Agency pursues various parties for CAA violations ranging from failure to provide a certificate of conformity (COC) or display compliant labeling, to importing compression-ignited (CI) nonroad engines that either do not meet emissions standards or are not exempt from the requirements. The Act and its implementing regulations provide for testing, reporting, recordkeeping, warranty, labeling, tampering, defeat devices, and vehicle and engine maintenance and alterations.
The EPA isn’t shy about targeting industry leaders for these violations: Briggs & Stratton, Caterpillar, Cummins, Toyota, Doosan, Nissan, Komatsu, Kubota, Krone, Claas, John Deere and Husqvarna are just a few that have paid fines and incurred expenses for non-compliance. In 2011, EPA settled a claim of violations with Caterpillar “for shipping more than 590,000 highway and non-road diesel engines without the correct emissions controls. Caterpillar also allegedly failed to comply with emission control reporting and engine-labeling requirements.” Caterpillar was fined $2.55 million that included a recall of non-compliant engines. In 2017, Husqvarna was fined $2.85 million for failing to provide EPA with “complete and accurate emissions testing information relating to engines used in handheld lawn, garden and forestry equipment.” And late last year, EPA set its sights on tuning when it penalized Derive Systems, maker of “Bully Dog” and “SCT” tuning software, asserting the company manufactures emissions defeat devices. Derive was fined $300,000 and will spend another $6.25 million bringing its products up to standards.
Thus, it’s no surprise the equipment industry operates in a heightened state of sensitivity when it comes to modifying embedded code, machinery performance and emissions. EPA regulations treat dealers selling new engines the same as manufacturers. The potential cost for violating the CAA is $45,000 for each piece of equipment in breach of the standards. EDA’s Industry Relations Task Force advises equipment dealers to avoid these penalties by employing best practices.
- Verify that each engine is covered by a Certificate of Conformity (COC).
- Confirm equipment has a label or tag signifying the COC on the engine or part.
- Do not alter or “improve” the new motor in any way prior to sale.
- Evaluate the engine to determine whether defeat devices or other items used to impair, disable or bypass emissions controls have been installed.
- Verify the equipment complies with CAA standards and has not been modified to violate EPA regulations from its original purchased state.
- Require owners to indemnify dealers for any claims arising from the resale of the equipment (as allowed by state laws).
- Maintain the engine in factory condition.
- Ensure that any change or parts substitution is supported by documentation verifying it does not affect emissions.
- Keep records to demonstrate compliance.
- Emissions labels on any device or part should not be altered or removed; instead keep them intact and up to date with accurate information.
- If a part must be replaced get a duplicate of the original label installed by the certifying manufacturer or another authorized person. Typically, these labels are permanently attached to parts that normally don’t need replaced.
The equipment industry has a vested interest in ensuring the integrity and life cycle of the machinery it sells and services. Dealers make significant investments in technology and training to support customers and provide prompt, reliable products and services to reduce downtime and increase productivity. The industry has committed to providing the necessary tools to diagnose and repair equipment.
Joani Woelfel is president and CEO of Far West Equipment Dealers Association, a nonprofit trade group representing agricultural, industrial, material handling, hardware, lumber, outdoor power and rental equipment dealers in Arizona, California, Colorado, Hawaii, Nevada, Utah and Wyoming. This comprises nearly 300 equipment dealerships across seven states whose contributions serve to enhance a healthy economy.