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1 i
if
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 2046 0
	oOo	
PUBLIC HEARING
on
CALIFORNIA WAIVER REQUEST
May 16 - May 20, 1977
Conference Rooms A-B-C
EPA Region IX Office
San Francisco, California
VOLUME I
Pages 1 - 212
May 16, 1977
Reported by:
THOMAS R. WILSON
19290
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(41M I4M1N/4I13IW

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2
HEARING PANEL
BENJAMIN R. JACKSON - Presiding Officer
Director, Mobile Source Enforcement Division
U. S. Environmental Protection Agency
Washington, D. C.
CHARLES GRAY
Chief, Standards Development and Support Branch
U. S. Environmental Protection Agency
Washington, D. C.
, EPA STAFF
DANIEL M. STEINWAY
Attorney-Advi sor
U. S. Environmental Protection Agency
Washington, D. C.
JAMES MC NAB, III
Attorney-Advisor
U. S. Environmental Protection Agency
Washington, D. C.
MARILYN J. HERMAN
Program Analyst
U. S. Environmental Protection Agency
Washington, D. C.
	oOo	
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS	(41S) S43-31#4/4ซ1-30#8

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3
Page
CALIFORNIA AIR RESOURCES BOARD	15
THOMAS AUSTIN
Deputy Executive Officer, Technical
KINGSLEY MACOMBER
Chief Counsel
DONALD DRACHAND
Chief, Engineering Branch
GARY RUBENSTEIN
Manager, Special Projects Section
GENERAL MOTORS CORPORATION	35
EDWIN E. NELSON
Assistant Director of Automotive
Emission Control
RICHARD I. PETERSEN
Attorney
HAROLD W. SCHWOCHERT
Staff Engineer, Automotive Emission Control
FORD MOTOR COMPANY	56
DONALD R. BUIST
Executive Engineer for Certification
Engineering and Testing Laboratory
HELEN PETRAUSKAS
Attorney
CALIFORNIA AIR RESOURCES BOARD	70
THOMAS AUSTIN
Deputy Executive Officer, Technical
KINGSLEY MACOMBER
Chief Counsel
DONALD DRACHAND
Chief, Engineering Branch
GARY RUBENSTEIN
Manager, Special Projects Section
> R. WILSON
SHORTHAND REPORTERS
1415) S43-31t4/481-3MB

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INDEX (Cont'd)	Page
HARLEY-DAVIDSON	8 8
JOSEPH R. AUSTIN
Attorney with Tuttle and Taylor
Los Angeles, California
LAIMONIS T. EMBREKTS
Director, Environmental Control and
Energy Resources Planning for AMF, Inc.
YAMAHA	130
RUSSELL JURA
Technical Staff Counsel
KAWASAKI	155
DENNIS DAVID
Manager of Legislative Section
DARRELL R. JOHNSON
Attorney with Paul, Hastings & Janofsky
Los Angeles, California
SUZUKI	198
JOHN WALSH
Supervisor, Ground Level Research
Safety and Legislation
	oOo	
5 R. WILSON
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(415) 543-31M/481-3096

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CHAIRMAN JACKSON: Good morning.
This is the United States Environmental Protection
Agency public hearing to consider a number of requests by the
State of California for a waiver of federal preemption under
Section 209(b) of the Clean Air Act for a series of past
actions taken by the California Air Resources Board.
I am Ben Jackson, Director of the Mobile Source
Enforcement Division of the Environmental Protection Agency. I
have been designated as Presiding Officer for the hearing.
My colleagues who will assist me at various times in
conducting the hearing are Mr. Charles Gray, Mr. Karl Hellman
and Mr. Mick Leiferman of the Office of Mobile Source Air
Pollution Control.
On Thursday, Dr. Norman Shutler, Deputy Assistant
Administrator for Mobile Source and Noise Enforcement, and
Mr. Eric Stork, Deputy Assistant Administrator for Mobile
Source Pollution Control, will join the Panel.
The Panel will also be assisted by Mr. Daniel
Steinway and Mr. James McNab III, who are attorney-advisors
with the Mobile Source Enforcement Division, and Ms. Marilyn
Herman, who is responsible for maintaining the record and
scheduling witnesses.
The CARB has submitted the requests under considera-
tion to the Administrator of the Environmental Protection
Agency in order to permit the State of California to enforce
the following provisions of its motor vehicle emission control
program:
(1) Compliance and inspection testing of 1977 and
5 R. WILSON
SHORTHAND REPORTERS
(41#) 543*3194/461-3098

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subsequent model year vehicles except 1977 and 1978 model
year gasoline-powered passenger cars and light-duty trucks
under Title 13 of the California Administrative Code,
(2)	The exhaust emission standards and test pro-
cedures for 1979 and subsequent model year passenger cars,
light duty trucks, and medium duty vehicles, including certi-
fication procedures applicable to these classes of vehicles
for 198 0 and subsequent models imposing a restriction on
allowable maintenance,
(3)	The November 23, 1976, amendments to the
California evaporative emission regulations for 1978 and
subsequent model year gasoline-powered motor vehicles except
motorcycles/ and also, evaporative emission standard and test
procedures (SHED test) applicable to these classes of vehicles
for 1980 and subsequent model years, and
(4)	Assembly-line testing of 1978 model year diesel-
powered light duty trucks and medium duty vehicles. During
this hearing the EPA will also consider whether California
continues to comply with the conditions of the October 1, 1976,
motorcycle waiver and whether California should be granted a
general waiver of Federal preemption for all standards and test
procedures (including accompanying enforcement procedures)
adopted by the CARB in the future relating to the control of
emissions from new motor vehicles or new motor vehicle engines.
Some further clarification of the items under con-
sideration at this hearing should also be made at this time.
First, with respect to California's compliance and inspection
testing procedures, EPA has been advised by the CARB that it
5 R. WILSON
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iAMI

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EPA
intends to modify these procedures for evaluating motorcycles
tested under this program at a later date. As a result, EPA
has decided to postpone consideration of this item as it
applies to motorcycles until such time as California has
adopted these modifications.
Secondly, in connection with the reconsideration of
the October 1, 1976, waiver, EPA will also consider the
question of granting California a waiver for the March 24,
1977, amendments to the California motorcycle regulations
effecting changes in the 1982 standards and te^t procedures.
EPA will also accept testimony during this hearing
on the provision of the March 24 amendments requiring the
submission of a completed copy of an application for certifi-
cation and a certificate of conformity to the Executive
Officer of the CARB. However, EPA will not consider any
testimony concerning those March 24 amendments which affect
the 1978-1981 standards and test procedures, since the
manufacturer's views on these amendments have already been
adequately presented in the context of the Federal regula-
tions.
Finally, by letter dated April 25, 1977, the CARB
has requested that EPA consider granting California a waiver
for a 0.39 grams per mile non-methane hydrocarbon exhaust
emission standard applicable to 1980 and subsequent model
year passenger cars, light duty trucks and medium duty
vehicles under 4000 pounds inertia weight in place of the
standard which had originally been adopted on November 23,
1976, for these classes of vehicles.
5 R. WILSON
SHORTHAND REPORTERS
(418) S43-31M/4t1-3QM

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EPA
8
We have decided to grant CARB1s request, and we will
accept comments on this matter both during the hearing and for
three weeks thereafter during which the record will remain
open.
For the record, the hearing is convened in the
Conference Room on the second floor of the Regional Office
of the United States Environmental Protection Agency, 100
California Street, San Francisco, California.
To complete the opening of the record and at the same
time to expedite the proceedings, I would like to insert into
the record as if read, the following documents:
The' following is a list of 16 documents, which I
will give to the reporter so he can insert them in the record,
but I will not read them at this time. A copy of this state-
ment is available for anyone who would care to have it for
their own record, the documents that I am referring to.
	oOo	
(1)	The letters of July 19, 1976, January 20, 1977,
and February 22, 1977, from Mr. William H. Lewis, Jr.,
Executive Officer of the CARB, to Mr. Russell Train, the
former Administrator of EPA, and Mr. Douglas Costle, the
present Administrator of the EPA, notifying Mr. Train and Mr.
Costle that California had taken a series of actions to
revise its motor vehicle emission control program and
requesting a waiver of Federal preemption for those actions
which in the Administrator's judgment required such a waiver;
(2)	The letters of November 1, 1976, and February 14,
1977, from Mr. Lewis to Mr. Train and Mr. Costle, informing
ปR. WILSON
SHORTHAND REPORTERS
Mis> S*s-siM/4ai-aoaa

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9
Mr. Train and Mr. Costie of the CARB's intentions to modify
the California vehicle emissions control program with respect
to motorcycles in light of the promulgation of emission
standards and test procedures by EPA for 1978 and subsequent
model year motorcycles;
(3)	A letter of February 16, 1977, from EPA to CARB,
soliciting the views of CARB on the question of granting
California a general waiver of Federal preemption;
(4)	The letters of April 8, 1977, and May 4, 1977,
from EPA to CARB, stating that a hearing would be convened to
address California's waiver requests in addition to the
questions of whether California should be granted a general
waiver and whether the October 1, 1976, waiver should remain in
effect;
(5)	A letter of April 15, 1977, from Mr. Lewis to
Mr. Costle notifying Mr. Costle that the CARB had amended the
California vehicle emissions control program with respect to
motorcycles;
(6)	A letter of April 25, 1977, from CARB to EPA,
requesting that EPA consider at this hearing a 0.39 grams/mile
non-methane hydrocarbon standard applicable to 1980 and
subsequent model year passenger cars, light duty trucks, and
medium duty vehicles under 4000 pounds inertia weight;
(7)	A May 2, 1977, mailgram from CARB to EPA,
requesting that EPA not consider the item of compliance and
inspection testing of motorcycles during this hearing;
(8)	The April 13, 1977, Federal Register notice of
this hearing, and the April 20, 1977, Federal Register notice
5 R. WILSON
SHORTHAND REPORTER8
(415) S43-31M/461-3098

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EPA	10
correcting the Table of Contents in the issue of the Federal
Register which included the announcement of the public hearing;
and
(9) The October 1, 1976, motorcycle waiver decision.
See 41 FR 44209 (October 7, 1976).
In addition, the following will be made a part of
the record:
(1)	Sections 2100 et seq., Title 13, California
Administrative Code,
(2)	Sections 1955.1, 1955.5, 1959, Title 13,
California Administrative Code, and "California Exhaust
Emission Standards and Test Procedures for 197 5 through 1979
Model Passenger Cars, Light-Duty Trucks, and Medium-Duty
Vehicles," adopted February 19, 1975, last amended November
23, 1976,
(3)	Section 1960, Title 13, California Administra-
tive Code, and "California Exhaust Emissions Standards and
Test Procedures for 198 0 and Subsequent Model Passenger Cars,
Light-Duty Trucks, and Medium-Duty Vehicles," adopted
November 23, 1976, as amended December 14, 1976,
(4)	Section 1976(b), Title 13, California
Administrative Code, and "California Evaporative Emission
Standards and Test Procedures for 1978 and Subsequent Model
Gasoline-Powered Motor Vehicles except Motorcyles," adopted
April 16, 1975, last amended November 23, 1976,
(5)	Section 2056, Title 13, California Administra-
tive Code, and "California Assembly-Line Test Procedures for
1978 Model-Year Passenger Cars, Light-Duty Trucks and
5 R. WILSON
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441 At	wm

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Medium-Duty Vehicles," adopted January 25, 1977, and
(6)	Section 1958, Title 13, California Administra-
tive Code, and "California Exhaust Emission Standards and Test
Procedures for 1978 and Subsequent Production Motorcycles,"
adopted July 15, 1975, as amended February 20, 1976, March 24,
1977, and
(7)	40 C.F.R. 86.4 01-78 et seฃ. (1977).
Furthermore, in considering whether to grant
California a general waiver from the prohibitions of Section
209 (a), the pertinent California standards and test procedures
can be found in Title 13 of the California Administrative
Code.
	oOo	
CHAIRMAN JACKSON: To assure that all parties are
aware of the substance of the correspondence mentioned
earlier, I will briefly review the issues that were addressed
in those letters.
In CARB's letters of July 19, 1976, January 20, 1977,
I
and February 22, 1977, CARB informed EPA that it had taken j
a series of actions to revise its motor vehicle emission
control program, and requested a waiver for those actions
which EPA determined required a waiver. In EPA's letter of j
April 8, 1977, CARB was informed that these actions required
a waiver before they could be effectuated by California.
This letter also informed CARB that a public hearing would be
convened to consider its requests for a waiver in connection
with those actions noted in the four CARB letters in addition
to the questions of whether to grant California a general
5 R. WILSON
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(416) 543-3104/461 <3006

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waiver and whether the October 1, 1976, waiver should remain
in effect.
In the CARB correspondence of November 1, 1976,
January 20, 1977, and February 14, 1977, the CARB informed EPA
of its intentions to modify the California vehicle emissions
control program with respect to motorcycles. Following this
correspondence, the CARB notified EPA in an. April 15, 1977,
letter that the CARB had adopted certain amendments to the
California motorcycle regulations. In this letter the CARB
also stated that it intended to enforce its compliance and
inspection testing program with respect to motorcycles
beginning in 1978, but on May. 2, 1977, the CARB requested
that EPA postpone consideration of this item until a later
date.
This hearing is intended to provide an opportunity
for interested persons to state their views or arguments, and
provide pertinent information relating to the determination
to be made by the Administrator with respect to these waiver
requests, the general waiver question, and the reconsideration
of the October 1, 1976, waiver. However, the determination of
the Administrator regarding the action to be taken with
respect to the subjects under consideration is not required
to be made solely on the record of the public hearing.
Since the notice was inserted into the record and
not read, I will now summarize the procedures and ground rules
for the hearing.
The hearing is being held pursuant to Section 209(b)
of the Federal Clean Air Act. It will be conducted in
i R. WILSON
SHORTHAND REPORTERS
(418) 94S-3194/461 30SB

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accordance with the rules which have been in effect at prior
hearings on California waiver applications. The agenda for the
hearing" has been previously outlined in the Federal Register
notice announcing this hearing.
Generally the procedures will be informal. Formal
rules of evidence will not be in effect. The Presiding Officer
is authorized, however, to strike from the record statements
which he deems irrelevant or needlessly repetitious, and to
impose reasonable limits on the duration of the statement
of any witness. No cross-examination will be permitted.
However, to the extent that time allows, the Presiding Officer
may permit brief questions of clarification from any partici-
pant to any other participant. Questions of a more explora-
tory nature may be submitted in writing to the Presiding
Officer through Ms. Herman, and such questions at the discre-
tion of the Presiding Officer may be posed to any witness
by a member of the panel.
A verbatim record of the hearing is being made, and
the transcript will constitute the sole official record of
this hearing. A copy of the record will be on file for public
inspection by any interested persons at the EPA Public
Information Reference Unit, Room 2922, in Washington, D.C.,
and at the regional office in San Francisco and the District
office in Los Angeles. Persons desiring copies of the
transcript should make arrangements with the reporter.
I would like to make one more comment in an attempt
to focus on the issues we will be concerned with today and foi
the rest of the week.
HOMAS R. WILSON
iRTIFIED SHORTHAND REPORTERS
(418) 343-3194/461-3098

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Section 209(b) of the Clean Air Act requires the
Administrator to waive Federal preemption of California
standards for new motor vehicle emissions unless he makes
certain findings. Findings which would cause a denial of the
waiver include a finding that California does not require more
stringent standards to meet compelling and extraordinary
conditions of air pollution in California, or that the
standards are not more stringent than Federal standards, or
that the California standards and accompanying enforcement
procedures are inconsistent with Section 202(a) of the Clean
Air Act.
With regard to whether California requires more
stringent standards to meet compelling and extraordinary con-
ditions of air pollution, that issue has not generally been
considered to be a close one in the past. On the relative
stringency issue, if the California standards and procedures
may result in some further reduction in air pollution in
California above and beyond that which can be achieved under
the Federal control program, then the relative stringency
test is met.
With regard to inconsistency with Section 202(a), the
issue of inconsistency relates to whether the Federal and
California test procedures are inconsistent, and whether the
California standards and enforcement procedures take effect
after such a period as the Administrator finds necessary to
permit the development and application of the requisite
technology, giving appropriate consideration to the cost of
complying within the period. Loosely put, this issue focuses
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C ARB/EPA	15
on whether the industry is faced with different methods of
obtaining certification, and whether adequate technology
and lead time are available for meeting the prescribed
standards. This issue has been the key one in the past.
With that, we can move on to the witnesses. We have
an order of appearance for those who have indicated that they
wished to appear. Copies of the agenda and witness list are
available from Ms. Herman.
There may have been additions to or deletions from
the agenda since it was printed. If it appears the order is
going to cause any one or more of you a hardship, please contac ;
Ms. Herman and she will relay this to me. We will attempt to
accommodate any time problems anyone has. We would also
appreciate it if all witnesses would confirm their positions
on the schedule with Ms. Herman.
The record will remain open until Friday, June 10,
1977, for the submission of any further information by any
interested persons.
The first witnesses of the day will be the
representatives of the California Air Resources Board.
MR. TOM AUSTIN: Good morning.
My name is Tom Austin, and I am Deputy Executive
Officer for the California Air Resources Board. With me today
are Kingsley Macomber, the Board's Chief Counsel, Don Drachand
and Gary Rubenstein from the Vehicle Emissions Control
Division. We are here seeking a waiver from EPA of Section
209(a) of the Clean Air Act in order to allow California to
implement more stringent emission standards and test
-iOMAS R. WILSON
RTIFI6D SHORTHAND REPORTERS
<419) M3-J104M61-3OW8

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CARB
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procedures for 1978 and subsequent model-year motorcycles,
passenger cars, light-duty trucks, and medium-duty vehicles.
In considering California's requests for waivers of
federal preemption, Section 209(b) of the Clean Air Act
allows the Administrator to consider all three issues:
1.	Whether compelling and extraordinary conditions
continue to exist in California;
2.	Whether California's standards and test pro-
cedures are more stringent than applicable Federal Standards;
and
3.	Whether California's standards and test and
enforcement procedures are consistent with Section 202(a) of
the Clean Air Act, in particular with respect to their tech-
nological feasibility within the remaining lead time, con-
sidering the cost of compliance.
Since the first issue has been considered many times
at previous waiver hearings, my discussion of it will be brief.
I will then present our comments on each of the specific
waiver items according to the schedule contained in your
hearing notice.
On compelling and extraordinary conditions, the
compelling and extraordinary need for stringent emissions
controls which exists in California has never been disputed by
the Administrator in previous waiver decisions. California
currently violates Federal Ambient Air Quality Standards for
every criteria pollutant except SO2 which is now at the
Federal standard and rising. Oxidant violations have recently
exceeded the Federal standard by over 400%. No other area
5 R. WILSON
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CARB
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of the country, and possibly the world, has such severe
oxidant problems. No set of control programs short of a
virtual shut down of vehicle and stationary source activity
throughout the greater metropolitan Los Angeles area has ever
allowed EPA to project compliance with the National Ambient
Air Quality Standard for oxidant. Both hydrocarbon and oxides
of nitrogen emissions contribute to California's oxidant
problem. Given this situation, ARB believes it is prudent to
pursue all hydrocarbon and oxides of nitro*gen control measures
which are technologically feasible and conomically practical.
Further control over motor vehicles consitutes one element of
ARB's program to eventually achieve and maintain the National
Ambient Air Quality Standard for oxidant.
If California's previously adopted standards were
maintained without change, we estimate that by 1990, motor-
cycle, passenger car, light-duty truck, and medium-duty
vehicle emissions would account for 432 tons/day, or 29%, of
the South Coast Air Basin NO inventory, and 358 tons/day, or
21%, of the hydrocarbon inventory, even though by that time,
almost all vehicles would meet those standards. We estimate
that the South Coast Air Basin would exceed the state's
ambient N02 standard by 170% in 1990 unless an additional
930 tons/day of NO control were achieved; the ambient oxidant
standard could still be exceeded by over 400% during stable
meteorological conditions unless an additional 1390 tons/day
of the hydrocarbon control were achieved.
While substantial reductions in emissions from
passenger cars, light-duty trucks, and medium-duty vehicles
J R. WILSON
8HORTHANO REPORTERS
(418) 543-31M/461-309S

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CARB
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have already been made, we believe that further reductions
in the emissions levels of this ever-increasing vehicle
population must be made as a significant part of our total
effort to improve California's air quality.
TO achieve further control over motor vehicle
emissions, the Board has recently adopted or modified several
standards and test procedures which we have asked to be
considered at this hearing. These items are:
1.	New vehicle inspection and compliance test
procedures for 1978 and subsequent model-year motor vehicles
and motor vehicle engines.
2.	Assembly-line test procedures for 1978 model-
year medium-duty vehicles and diesel-powered light-duty trucks.
3.	Exhaust hydrocarbon emission test procedure
changes for 1982 and subsequent model-year motorcycles.
4.	An evaporative emission standard of 2.0 grams per
test for 1980 and subsequent model-year motor vehicles except
motorcycles.
5.	More stringent hydrocarbon, carbon monoxide, and
oxides of nitrogen emissions standards for 1979 and subsequent
model-year passenger cars, light-duty trucks and medium-duty
vehicles.
6.	Idle air/fuel ratio adjustability regulations
for 1980 and subsequent model-year vehicles.
With all of the above regulations, we estimate furthe
South Coast Air Basin emission reductions in 1990 of approxi-
mately 160 tons/day of hydrocarbons, and 260 tons/day of oxides
of nitrogen. These regulations alone bring us 12% and 28%
3 R. WILSON
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closer to our goals for hydrocarbon and NO respectively.
The 108 tons/day reduction in CO emissions should be the last
step required for new vehicles to allow us to achieve the
carbon monoxide Ambient Air Quality Standard if vehicles meet
the nine gram per mile standard in use.
Following I have some specific comments on the
individual items, the six individual items being considered
today.
I have one question for the Hearing Officer, and
that's as to whether he prefers me to only cover the inspection
and compliance test procedures portion of my statement at
this time, or would you prefer to hear our statement on both
inspection and compliance and assembly line tests at the same
time?
CHAIRMAN JACKSON: Both at the same time. I don't
think we will have any trouble keeping the record straight.
MR. AUSTIN: Okay. They are separate issues, but
we think they are somewhat related and maybe it will be
helpful.
On inspection and compliance test procedures, the
inspection and compliance test procedures for which we are
seeking a waiver differ from our previous procedures in two
significant ways.
First, the new procedures incorporate a modified
sampling and data analysis technique which is statistically
more valid. Under the new procedures, testing continues until
we are approximately 90% confident that the engine family
either passes or fails, or until 20-24 vehicles have been
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tested. Our former procedures forced a decision after
triplicate tests on no more than five vehicles. Under the old
procedure it was possible for failing engine families to pass
because of inadequate confidence that the failure occurred-
The second change in the inspection and compliance
tests procedures is that the new procedures are restricted to
vehicles and pollutants subject to assembly-line testing.
The Federal Register notice of April 13, 1977,
indicated that California's inspection and compliance testing
requirements applicable to 1977 and 1978 model-year gasoline-
powered passenger cars and light-duty trucks are within the
scope of the waiver currently in effect for assembly-line
testing of such vehicles, based on the similarity of their
objectives and procedures. We concur with that finding.
As an extension of this finding, we ask that the
Administrator grant California a waiver for inspection and
compliance testing of any vehicles which in the future become
subject to assembly-line testing by California under a valid
waiver, provided the procedures are similar. For example,
the next item, California's waiver request for assembly-line
testing of 1978 model-year diesel-powered light-duty trucks,
and medium duty vehicles, would fall into this category.
We further ask that California be granted a waiver
for inspection testing, apart from its relationship to
assembly-line testing, for all vehicles, including motorcycles
not covered by the April 13 announcement. Since there is
currently no equivalent federal program, we believe inspection
testing is more stringent. Nor can we identify any issues of
IOMAS R. WILSON
tTlflED SHORTHAND r foci at* **
aAt *******

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feasibility or lead time, since the program is essentially one
to enforce quality control procedures.
In our mailgram of May 2, 1977, ARB stated that we
believe it is premature to request a waiver at this hearing
for motorcycle inspection and compliance test procedures, since
the Board has not specifically addressed this matter. After
the June Board meeting, when the Board is scheduled to consider
and draft its recommendations on motorcycle compliance test
procedures, we will request a waiver for specific regulations.
On the issue of assembly-line test procedures for
1978 diesel-fueled light-duty trucks and gasoline and diesel
medium-duty vehicles, assembly-line test procedures have always
been an important enforcement tool for the ARB. The increasing
sales of medium-duty vehicles and diesel-powered light-duty
trucks have created a need for the extension of assembly-line
test procedures to these vehicles. There is no essential
difference between the assembly-line procedures we have adopted
for these vehicles and the current procedures applied to
gasoline-powered passenger cars and light-duty trucks. EPA has
recognized that ARB's assembly-line test requirements add a
degree of stringency both to the California certification
requirements, and to Federal certification requirements com-
bined with the Selective Enforcement Audit testing program.
It appears therefore that the only issue before EPA at this
hearing is whether adequate lead time was provided for ARB's
extension of assembly-line test requirements to the additional
vehicle categories.
For 1978, the new regulations require that the
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medium-duty vehicle configurations selected for certification
testing be assembly-line tested for enforcement purposes.
Other vehicle configurations will be assembly-line tested for
information only. The data obtained from this second group
will not be used for enforcement of the standards. This
provision, which is applicable to medium-duty vehicles for
one year only, addresses the lead time problems brought to our
attention by the manufacturers.
There was consensus among the industry that these
procedures were feasible for the 1978 model-year, and conse-
quently we expect to hear little opposition on this issue
today.
As far as we know, only General Motors will be
manufacturing diesel vehicles subject to these assembly-line
test procedures in 1978. General Motors has verbally informed
ARB of potential instrumentation problems associated with
conducting the required idle test; however, they have not
notified us of this problem in writing. We expect to work
closely with GM to resolve any technical difficulties prior to
the start of 1978 production.
In conclusion, we believe that the assembly-line
test procedures for 1978 diesel-fueled light-duty trucks and
gasoline and diesel medium-duty vehicles are not materially
different from other California assembly-line test procedures,
and do not present any problems of either lead time or tech-
nological feasibility for the manufacturers. We believe that
EPA should grant California a waiver for these procedures,
since they are a necessary part of ARB's enforcement package.
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I have just one other comment to make.
In recent conversations with some of the manu-
facturers, we have heard the argument expressed that there is
an inconsistency between our assembly-line test procedures and
the proposed inspection and compliance test procedures because
of the fact that the inspection and compliance test procedures
look at the performance of subgroups and not just the family,
the entire family in toto. We don't think there is an incon-
sistency since the purpose of assembly-line testing is to
verify that the vehicles being mass produced are, in fact,
meeting the same standards which the certification prototypes
met.
The certification program requires that each and
every configuration meet the standard. Assembly-line testing
is a method that we employ to check on the performance of the
vehicles being mass produced. While we don't specifically
look at subgroups during the assembly-line testing program,
I believe we have that flexibility; and when we do find
failures of an entire family through our assembly-line
testing, we quite often allow corrections to be made to a
subgroup only if it can- be shown that a subgroup is causing
the problem for the entire family.
Given that fact, I think it's appropriate for us to
look at subgroups when we are doing our inspection and
compliance procedures, and we fail to see any significant
inconsistency in that area.
I don't have any further comments. I will be happy
to answer any questions.
'HOMAS R. WILSON
ERTIFIED SHORTHAND REPORTERS
(413) 543-3194/461 -3096

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Mr. Drachand informs me that there is perhaps one
other point that's not entirely clear. We mentioned that for
assembly-line testing, it's our intention for 1978 only to
test the certified configurations of medium-duty vehicles.
We also intend to restrict our compliance testing, our Title
13 compliance testing, to the certified configurations of
medium-duty vehicles for the 1978 model year. Perhaps that
wasn't clear in the statement.
CHAIRMAN JACKSON: I assume all of them are going to
be certified.
MR. AUSTIN: What I am referring to are those
configurations that were actually subject to certification
testing. Recognizing that all configurations are supposed to
be covered by the certificate, in order to reduce the amount
of lead time associated with doing the compliance testing, for
doing the assembly-line testing for 1978, we agreed to restrict
the scope of the program to those specific configurations
which went through the certification process. Generally
these are the highest volume configurations but in order to
allow the manufacturers to avoid having to run specific
testing programs to verify the performance of each combination
of engine family, calibration, axle ratio, in order to avoid
that delay, we have for the 1978 model year only agreed to
conduct our enforcement testing on only those specific
configurations which actually went through certification and
testing.
Thev are all covered by the certificate, but for
'78 only, we intend to concentrate on the configurations which
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actually went through the prototype testing phase.
CHAIRMAN JACKSON: That has a terrible inference,
does it, in that if it wasn't tested in certification, it may
not meet the standards?
MR. AUSTIN: Yes, it does. That's why we have made
it very clear that it's going to be a one-year program only,
and in 1979, we revert to doing a random sampling of all
configurations.
CHAIRMAN JACKSON: Is it a volume issue of the
amount of testing that would have to be done, or is it just
the concern that these configurations might not meet the
standards?
MR. AUSTIN: No, it wasn't a volume issue. I think
it was Ford that made most of the arguments in this area. It
was their contention that it was difficult — it would be
difficult for them to assure themselves that each combination
of carburetor calibration, axle ratio and engine family was,
in fact, going to comply with the standards for 90% of
production, or on the average, with the deterioration factor
unless they ran a test program to verify that fact. They
laid out for us a schedule showing the remaining lead time and
the time estimates for conducting the testing on all their
combinations and concluded that if they were forced to test
every combination, they would have difficulty in starting
production at the normal time for the 1978 model year.
But if, however, their risk would be minimized by
having our assembly-line testing limited to those configura-
tions that went through certification, they saw no particular
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problem with the 1978 model year.
Other manufacturers seemed to agree with Ford's
position in order to limit their liability and not require
them to demonstrate in themselves that 90% or the average
with deterioration factor of each combination could meet the
standards. We agreed to restrict our enforcement testing to
only those combinationswhich were certified.
CHAIRMAN JACKSON: That troubles me a little bit in
that I would assume that the same confiqurations are subject
to testina via the federal assemblv-line test program.
MR. RUBENSTEIN: I don't believe so. These are
medium-duty vehicles which are for 1978 only and would be
/
considered by EPA to be heavy-duty vehicles.
CHAIRMAN JACKSON: Is this medium duty?
MR. RUBENSTEIN: Yes.
CHAIRMAN JACKSON: So we are just talking about
medium duty in the context of its limited —
MR. AUSTIN: Right.
CHAIRMAN JACKSON: — applicability of your program?
MR. AUSTIN: That's right.
MR. DRACHAND: Medium-duty Ford 1978. That's what
we are talking about. It falls back from the certification
lead time problem.
MR. AUSTIN: I think you should look at this as a
phase-in of assembly-line testing for this vehicle category
as currently these vehicles are covered by the heavy-duty
engine certificate. There is no:assembly-line testing
requirement for 1978. They become subject to assembly-line
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testing for the first time, and for that one model year, they
are going to be subject to a somewhat less stringent require-
ment than light-duty vehicles currently are. But for 1979,
we are planning to go ahead with the same program as we have
in effect for light duty.
It would still be our contention that all configura-
tions covered by the certificate should be subject to end-
use surveillance testing in the future, and they should be
able to demonstrate a degree of emission control that is
roughly comparable to the configurations which actually went
through certification testing.
But when we get into these high-volume sampling
programs like assembly-line tests or Title 13 surveillance on
new vehicles, we thought it was appropriate to give some
relaxation in the requirement for a one-year period.
CHAIRMAN JACKSON: But you are asking us, if I am
not mistaken, on Page 5, the last paragraph of your statement,
you are asking us to go ahead and grant the waiver with
respect to inspection compliance testing for models that will
be subject to assembly-line testing in the future; is that
right?
MR. AUSTIN: That's right.
CHAIRMAN JACKSON: Why don't you ask us for a waiver
at such time as they become subject to assembly-line testing?
MR. AUSTIN: Well, what we are saying is we think
that, when you make the determination that our assembly-line
procedures are consistent with 202 of the Act, that should
automatically give us the authority to conduct compliance
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testing. We are not saying make that determination now. We
are saying when you make the determination that, in fact, we
should be able to do assembly-line testing. That should
automatically give us the right to do compliance testing.
MR. MACOMBER: I might point out that that just
carries forward the same logic that I think that was applied
in the recent Federal Register announcement.
CHAIRMAN JACKSON: I agreevith you. I think it's
different if we look at the compliance and inspection test
procedure and trying to decide a waiver for that alone,
whereas if we are looking at it in the combination with
established test procedures on the assembly line, well, then,
it's a different issue.
MR. AUSTIN: Exactly. That's why we requested
that you postpone consideration of the inspection and com-
pliance procedures as they relate to motorcylces since we have
not firmed up our assembly-line testing procedures for motor-
cycles as yet.
CHAIRMAN JACKSON: On Page 6 of your statement, the
first paragraph, you want a waiver for inspection testing —
MR. AUSTIN: Yes.
*
CHAIRMAN JACKSON: — apart from its relationship
to assembly-line testing.
MR. AUSTIN: That's correct.
CHAIRMAN JACKSON: And inspection testing is now
using CVS?
MR. AUSTIN: That's correct. Inspection testing,
we do a lot of inspection testing when we visit vehicle
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dealerships. We will look at all the vehicles that are
offered for sale. If we find that the vehicles are being
sold in uncertified configuration — Let's assume, for
example, a vehicle was certified for sale with an air-injection
system, and there is one sitting there in the lot without an
air-injection system. Just by virtue of the fact that that
component which was supposed to be on the vehicle is absent
from the vehicle beina sold, we consider that a violation.
We believe we should have the authority to pursue enforcement
actions for those kinds of violations without having any
specific set of procedures and a waiver covering those
specific procedures, in effect because basically all they are
are quality control type of evaluations or determining whether
or not vehicles being sold are, in fact, similar to the
vehicles which were certified.
It's basically just enforcement of the certification.
It's looking at the vehicles being sold to see if, in fact,
they are the same configuration that appears in the Part 2
certification application.
CHAIRMAN JACKSON: But you would look at all vehicles
here, not just those that were tested; is that right?
MR. AUSTIN: Not just those that were subject to
assembly-line testing or our Title 13 compliance testing.
Specifically here we are saying that, even if we don't start
off the first of the year, 1978, with an assembly-line and
compliance testing program for motorcycles, we believe that we
should have the authority to visit a Kawasaki dealership, for
example, to inspect the vehicles being sold to see if, in
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fact, they are in conformance with the Part 2 certification
application. If we find out that Kawasaki told us they were
going to sell a vehicle with a certain type of carburetor
and, in fact, they are using last year's carburetor which has
a different calibration and is not of the same configuration
as they said they were going to sell, we think that should be
sufficient for us to pursue enforcement action. We don't
think any specific set of procedures or a specific waiver
should be required for us to pursue that enforcement action.
CHAIRMAN JACKSON: You are suggesting it just flows
from the —
MR. AUSTIN: From certification.
CHAIRMAN JACKSON: — from certification?
MR. AUSTIN: That's right.
MR. RUBENSTEIN: It's really based on language in
the Federal Register that both California and EPA have adopted
about the Administrator's and Executive Officer's authority to
request a certain number of vehicles for inspection after a
certain model year,
CHAIRMAN JACKSON: Do you actually plan on securing
these vehicles in any way or do you just go by and look at
them?
MR. AUSTIN: We just look at them. We don't secure
them.
CHAIRMAN JACKSON: And you have authority to go to
the dealership?
MR. AUSTIN: Yes.
CHAIRMAN JACKSON: So the issue is the authority to
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bring an action against the manufacturer?
MR. AUSTIN:- That's right. I guess the way we look
at it, it's kind of — it's a problem that we detected at a
dealership. For example, if someone is selling an uncertified
configuration of vehicle, that's essentially a violation of
the contract which the manufacturer has made with the state
during the certification process and for the certification to
have any meaning at all, it seems to me that we need to have
the authority to determine whether what's being sold is
identical to what the manufacturer guaranteed us would be sold.
So it's really part of the certification program
when you look at it that way.
CHAIRMAN JACKSON: Just a point of clarification.
In your documentation, is the inspection procedure separable
from the compliance and inspection package?
MR. DRACHAND: In the regulations, it is.
MR. RUBENSTEIN: Yes. In Section 2101 of Title 13,
Paragraph (a) of that section refers to both inspection and
compliance testing in terms of the Executive Officer's
authority to request vehicles. Paragraphs (b) and (c) refer
only to compliance testing. And Paragraph (d) refers only
to vehicles selected for inspection.
We would also like to clarify that the inspection
procedures, we have been concentrating mostly on dealerships,
but they also apply to vehicles that are brought to the Air
Resources Board either for compliance testing or simply for
the purpose of inspection by itself, or vehicles that are
brought to the Air Resources Board for compliance testing,
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for CVS testing are also tested for conformity, and even if
those vehicles do comply with the emissions standard and there
is a parts non-conformity for some reason, ARB still believes
it has the right to take enforcement action.
CHAIRMAN JACKSON: Is this brought to the lab for
CVS testing for what purpose?
MR. AUSTIN: For example, we have an end-use testing
program where we have contracted with an organization for
procuring vehicles from the general public for testing by the
Air Resources Board. I think that's similar to some programs
which EPA conducts. When we bring these vehicles in, we
not only test them in the as-received configuration to
determine emission factors from end-use vehicles, we tune them
to manufacturer's specs to see if they are performing as the
certification prototypes performed when they are properly
adjusted and tuned.
We are also inspecting them to see if, in fact, what
we are testing is identical to the configuration in which the
manufacturer promised to sell in making his application for
certification. If we find through that kind of testing
program that manufacturers are selling uncertified configura-
tions on motor vehicles, again we believe we should have the
authority to pursue enforcement actions.
CHAIRMAN JACKSON: Have you ever brought an action,
just for my own information, under that provision with regard
to licensing these vehicles?
MR. DRACHAND: Excuse me. What did you say? I
didn't understand what you said.
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CHAIRMAN JACKSON: I asked if you had ever brought
an action with regard to the vehicles that were brought in for
this type of CVS testing that Mr. Austin just described under
this authority?
MR. RUBENSTEIN: You are talking about end-use
vehicles?
CHAIRMAN JACKSON: Yes.
MR. RUBENSTEIN: No, I don't believe so.
MR. AUSTIN: Kingsley, Ben asked whether we had
ever taken an action against a manufacturer after finding that
a vehicle was not manufactured according to the certification
application.
MR. MACOMBER: Are you talking about end-use vehicles'
CHAIRMAN JACKSON: Yes.
MR. MACOMBER: Not to my knowledge. I think we have
detected some problems in the past, but we have solved them
without formal enforcement action.
MR. AUSTIN: A point of clarification. As far as
the waiver would be concerned, we would only be talking about
the inspection procedures as they affect new vehicles. And
under our current Title 13 regulations, we would have the
authority to request manufacturers to make vehicles available
to us at the Board's laboratory for the purpose of inspecting
them.
Quite often, usually we do our inspections at
dealerships. In the case of certain vehicles or certain
models, it may be difficult or impractical for us to do that.
And under our Title 13 regulations, we have the authority to
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CARB	J4
request those vehicles be made available to us.
CHAIRMAN JACKSON: Those are new vehicles?
MR. AUSTIN: New vehicles.
CHAIRMAN JACKSON: And you test it on your own?
MR. AUSTIN: That's right.
MR. DRACHAND: That's right.
CHAIRMAN JACKSON: Are you anywhere else indicating
in more detail what the inspection program is, will do, how
it's conducted?
MR. RUBENSTEIN: Well, the inspection program is in
Title 13. It's very broad, and it basically states that
vehicles will be inspected for conformity with any applicable
California law except for an emissions standard applied to
certification and to test procedures.
Examples of kinds of laws are sections in the Health
and Safety Code which require that new vehicles be identical
in all material respects to those that were tested during
certification. There is no specific inspection procedure,
but it is inspection for compliance with specific laws and
regulations.
MR. AUSTIN: We like the procedure to be broad so
that we can do a rather cursory examination of vehicles
routinely but go into much greater detail of examination when
we have an emission problem associated with the vehicles. And
we are making an attempt to determine why we have such a
problem.
So, generally, we restrict the inspection to visual
observation of the vehicle to see that the obvious pieces of
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hardware that are supposed to be part of the package are in
place. We check some part numbers to see that the proper
carburetor, exhaust gas recirculation valve and other equipment
is installed.
But when we have an emission problem with the family,
quite often we would carry the investigation further. Since
we are restricted to determining conformance with the certifi-
cation application, that kind of puts a boundary on what the
program can consist of, and with that boundary in place, we
see little need for more specific procedures.
CHAIRMAN JACKSON: Do you say anywhere what "in all
material respects" means?
MR. AUSTIN: I'm not sure if we have defined that.
MR. RUBENSTEIN: I don't believe that we have. I
believe that it would essentially be construed that all parts
identified in the certification documents are, in fact, what
is on the vehicle.
I would also like to point out that none of this
language with respect to inspection testing has been amended
as part of this last set of amendments and that this identical
language was covered under previous waivers.
CHAIRMAN JACKSON: Okay. Thank you, Mr. Austin.
MR. AUSTIN: Thank you.
MR. EDWIN E. NELSON: Mr. Jackson, members of EPA,
ARB, and ladies and gentlemen in the audience:
I am Ed Nelson, Assistant Director of Automotive
Emission Control, General Motors Environmental Activity
Staff.
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GM
36
With me today are Harold W. Schwochert, Staff
Engineer, California Activities Automotive Emission Control,
General Motors Environmental Activity Staff, and also with us
today is Richard I. Petersen, Attorney, General Motors Legal
Staff.
Now, Mr. Jackson, I believe I would like to ask the
order of these hearings you would like to address. Would you
like to address the assembly-line testing issue first?
CHAIRMAN JACKSON: I will admit that, on the agenda,
it's first. But I believe CARB inverted the order in their
comments, and it's acceptable to us either way you want to go.
MR. NELSON: We have no objection to discussing
either one of these items first.
CHAIRMAN JACKSON: Okay. Well, let's go with
assembly-line test procedures.
MR. NELSON: Okay. This morning, we would like to
present a statement to be given by Mr. Schwochert, and then
we will be happy to answer any questions that you may have.
MR. HAROLD W. SCHWOCHERT: General Motors offers
the following comments regarding EPA's consideration on
granting California a waiver that would modify the assembly-
line test procedures to include 1978 model year diesel-powered
light-duty trucks and medium-duty vehicles. The current
assembly-line test procedures apply only to gasoline-powered
vehicles.
Since California has established specific certifica-
tion requirements for light-duty trucks and medium-duty
vehicles effective for the 1978 model year, it is appropriate
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that the Air Resources Board consider assembly-line testing
of certain diesel-powered vehicles.
Several studies of diesel hydrocarbon measurements
at both EPA and GM have shown large differences in measured
hydrocarbon values over the past months. These differences
appear to be primarily associated with heating of the con-
tinuous hydrocarbon sampling line and the filter placed in
this line to remove particulate matter from the exhaust
sample. The elevated sample line temperature also requires
assurance that sample lines and analyzer plumbing does not
leak.
The above discussion suggests that measurement of
diesel emissions, primarily hydrocarbons, is still in process
of refinement compared to the vast amount of experience that
exists regarding gasoline exhaust emission measurements.
Considering these present uncertainties, GM recommends that
EPA grant California a waiver to extend the assembly-line
test requirements to diesel-powered light-duty trucks and
medium-duty vehicles, but the quality audit hydrocarbon test
data be used for informational purposes only for the 1978
model year. This year will serve as a learninq period to
better understand and qain experience using this hydrocarbon
measurement requirement, which differs considerably from
hydrocarbon measurement of gasoline engine emissions.
The California assembly-line test procedures also
require idle hydrocarbon and CO measurements of all diesel
light-duty trucks and medium-duty vehicles. The present
instrumentation used for gasoline engine hydrocarbon
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measurement, non-dispersive infrared analyzers with unheated
sample lines, is not applicable to meaningful measurements
of diesel engines. It is our understanding that this
instrumentation is also to be used for diesel engine idle
emission testing. To our knowledge, no shop equipment similar
to the gasoline equipment is commercially available for diesel
engines and, therefore, it is General Motors' further
recommendation that the waiver granted to California should
also exclude the idle emission test requirement because of
the present uncertainty of making a meaningful measurement.
CHAIRMAN JACKSON: Have you discussed these two
points with the CARB?
MR. SCHWOCHERT: In the ARB's testimony, they
indicated that we had verbally discussed the latter point with
them. I don't think we have discussed the first point
specifically with them, this measurement uncertainty on
quality audit test, or I shouldn't say "quality audit;" I
guess I should say certification testing has perhaps come to
the forefront in the last couple of months more prominently,
and that issue in itself has not been discussed with the
ARB.
CHAIRMAN JACKSON: Who's addressing this issue of
the uncertainty with regard to the hydrocarbon measurement?
Are you discussing that with EPA?
MR. SCHWOCHERT: Yes.
CHAIRMAN JACKSON: Is there a resolution in sight
or —
MR. NELSON: Mr. Jackson, we have discussed it
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GM
extensively with the EPA personnel at Ann Arbor and, in fact,
recently Mr. Stork asked us to work with Research Triangle
Park to see if we can understand the differences better,
especially related to heating of the sample line. And so we
think that the right types of activities have been started,
but we recognize that we are just in the infancy of learning
how to measure accurately diesel emission hydrocarbons, and
this is a subject which we do want to pursue with ARB a little
further what we think is a major problem, getting repeatable,
reproducible answers with today's understanding of the measure-
ment process.
CHAIRMAN JACKSON: But you are going to be able to
solve the problem for certification?
MR. NELSON: We will certainly do the best we can.
And we have been sharing our experience with EPA and going
through a refinement process the best we know how.
CHAIRMAN JACKSON: Let's see. Then if you solve
it. with regard to certification, it would automatically be
solved with regard to assembly-line testing; is that reasonable
MR. NELSON: I don't think you can conclude that,
Mr. Jackson, because the nature of the production line
measurement process doesn't necessarily agree with the official
certification process laboratories that are used. I wouldn't
want to conclude that it follows that you could do it on
assembly line testing instantaneously when you accomplish the
same result for certification purposes.
CHAIRMAN JACKSON: Are you making a lead time
argument about changes you may have to make on the assembly
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line? I'm trying to understand the nature of this problem
because it doesn't — it just doesn't jump out at me.
MR. SCHWOCHERT: In our case, it will be a different
laboratory than a certification laboratory to do the testing.
Right now we hope to have that laboratory on stream by the
start of production. We are not ready to test yet in that
laboratory, so we can't say for sure that we will have all of
the equipment ready to go.
And, of course, when you are talking about something
that you don't have a lot of experience in compared to gasoline
emission measurements, problems can come up that can take
longer to solve than you would anticipate.
So it is a different laboratory in our specific
case, but we hope to have the thing testing diesels when we
are ready to start producing.
CHAIRMAN JACKSON: Okay. So it's not arguably that
much of a lead-time problem, but somewhat of a technical
problem with regard to these differences in measurement, but
arguably it's as critical with regard to certification as it
is with regard to assembly-line testing, I would think.
MR. NELSON: Mr. Jackson, we do think it's a major
problem in complying with emission requirements.
And to address your earlier question just a little
further, we stated clearly in our statement that we think it's
appropriate for California to consider assembly-line testing
of medium-duty and light-duty trucks that have diesel-powered
engines. But we are concerned right now with the lack of
agreement when we try to get the same values from a given
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GM
41
vehicle at two or three different laboratories. And EPA has
recognized that there are problems in this respect.
There are some serious penalties that a manufacturer
must face if you test thousands of vehicles on the assembly
line and get different results than a different laboratory
obtains. It's a little different than the certification
process where it's a very select procedure of people, of
equipment and experience.
CHAIRMAN JACKSON: But that's just — I mean what
kind of a problem is that? I'm not trying to downplay it.
It's just that you have got to train some people to do the
testing on the assembly line. You are going to have to qualify
your labs, I assume, for testing on the assembly line. Once
you get the labs working for certification, then the normal
issues of lab correlation arise.
I'm trying to understand why this is any different
from any of the other kinds of correlations problems that we
have experienced all along. I mean there are problems. You
have got to solve them.
MR. PETERSEN: Well, we only use one lab, one
General Motors lab for certification, whereas with assembly-
line testing, we use several different labs. It's not a
question of whether or not there is a problem with regard to
certification or assembly-line testing. The problem exists
in both places. It's one of magnitude in that possibly it
will be — we will be able to come to some kind of agreement
for the certification process that won't apply to the assembly
line testing.
3 R. WILSON
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GM
And you are exposed to a lot more, a lot more testing
on the assembly line, different labs and a greater number of
labs. In other words, it's a larger problem with assembly-
line testing than it is for certification. You are dealing
with a handful of cars in certification and a couple of labs.
CHAIRMAN JACKSON: I just don't see what difference
the number of cars makes.
MR. PETERSEN: Well, from our standpoint, the
magnitude of the problem is pretty important in that a problem
with the assembly-line testing can potentially lead to closing
down our assembly line.
CHAIRMAN JACKSON: Well, if you never get your cars
certified, you never have to worry about the assembly line.
MR. PETERSEN: The technological problems ought to
be solved, you know, before we jump into that.
CHAIRMAN JACKSON: Are you certifying, are you
emission testing right now for '78 certification? Do you
anticipate that you are going to be certified for 1978?
MR. PETERSEN: I don't think the problem's resolved
yet.
CHAIRMAN JACKSON: Will it be resolved in time to
get a certificate for 1978?
MR. SCHWOCHERT: We can't say that for sure, but we
are — to answer your first question, we are presently testing,
yes, for 1978 certification.
CHAIRMAN JACKSON: But it just argues to me that
once you get the problems — and arguably you are going to be
certified for '78 or you don't have to worry about the problems
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_	ฃ3—
GM
of the assembly line. But once you get certified in '78,
what is it that makes it impossible to reproduce whatever you
are going to do in certification in the same labs or in the
labs that you are going to use for assembly-line testing?
And I presume that you don't have to use labs all
over the country. You could bring the cars to Milford and
test them, couldn't you, because you are going to be limited to
those you certified. You are talking about your high-volume
units only.
MR. SCHWOCHERT: What is true, Mr. Jackson, is as
far as the differences that are being observed on those, we
are seeing changes in the levels that are being measured at
various laboratories. And I guess at some point in time
someone will have to say, "Yes, that vehicle does certify."
For example, EPA Ann Arbor Lab will have to go with the levels
that are being measured at the point in time when they make a
decision on certification. The vehicle, the configuration,
certifies or does not certify.
If changes should continue to be made in instrumenta-
tion that would measure yet higher levels later on on that
model year production, then you would be subjecting the
rest of the production to some measurement changes that had
occurred as a result of the improvement in the technology
associated with hydrocarbon measurement that didn't exist at
the time of certification, or knowledge that did not exist
at that time.
And that's the point that we are trying to bring
up, I guess, that there is a little uncertainty about what the
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GM
true emission levels are or will be agreed upon. So while we
are trying to agree upon this, let's measure some production
vehicles, gain some background and use that information to
then do a better job in 197 9 in measuring what — you know,
agreeing on what the procedure should be to measure the level.
CHAIRMAN JACKSON: Now, with regard to the issue of
the idle test analyzer, you are of the opinion that there is
no equipment available for this, and you are making a
technological argument in that area, that it is technologically
infeasible to do it because the equipment to do it is not
available. Is that it?
MR. SCHWOCHERT: That's basically correct. One can
make the measurement with today's existing equipment. We
question whether this will have any meaning, and that's
basically what we are suggesting: that until there are some
manufacturers that do develop some equipment to measure idle
emissions from diesels, then we should consider excluding this
requirement1from diesel-powered vehicles.
CHAIRMAN JACKSON: Have you talked with the CARB
about this?
MR. SCHWOCHERT: Yes. They referenced this in
their discussion. We have talked to them about this over the
phone, but didn't resolve the issue, obviously. We just
discussed it.
And I think we both recognized that maybe today's
instruments do not respond equally between diesels and gasoline-
powered vehicles.
The certification test requirements were also
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GM
discussed with the ARB at a workshop, but this specific subject
of using one year's data for informational purposes only was
not discussed. The instrumentation discussion has gone on
between us and ARB, but not the —
CHAIRMAN JACKSON: This would go beyond your concern
about the one-year use of informational data on configurations
that were not subject to certification testing?
MR. SCHWOCHERT: The idle testing?
CHAIRMAN JACKSON: No, I'm jumping back to the other,
the other issue now.
In other words, they made the statement that for the
assembly-line testing that they are talking about in '78, that
they wouldn't make it applicable to those configurations that
were not certification tested. And does that particular
relief give you any kind of help for this situation?
MR. SCHWOCHERT: No, it does not, because the high
volume, the high-volume configuration, would still require
testing. And, of course, that's what we would be concerned
about.
CHAIRMAN JACKSON: How many vehicles are we talking
about?
MR. SCHWOCHERT: Total production.
CHAIRMAN JACKSON: Well, two percent of total
production is all we are really interested in.
MR. SCHWOCHERT: We will submit that information
for the record if you would like it, Mr. Jackson.
CHAIRMAN JACKSON: I'm just trying to understand the
magnitude of the problem here, which seems to be your basis for
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asking us to deny what they want to do in 1978. Seems like
some more detail would be appropriate in terms of what kind of
specific impacts you are talking about.
You are really talking about, as I see it, a
technological end feasibility argument with regard to the
measurement equipment and your ability to put it on the
assembly line. And, quite frankly, the argument has not been
made very well. It's not very convincing, as I see it now.
It may be there. There just doesn't seem to be a lot of
trappings on it.
MR. NELSON: Perhaps, Mr. Jackson, we could clear up
the problem a little better by explaining some of the exact
test results we have obtained when we compared General Motors
laboratory results with those of EPA. And some of this is
very, very concerning to us because, in a period of a month'3
time, we find different emission results from what appears to
be the same vehicle.
Mr. Schwochert will discuss some of those details.
MR. SCHWOCHERT: If we consider some correlation
testing that has gone on between our certification laboratories
and the Ann Arbor laboratory, we find that — well, if we go
back to September of '76 through April of '77, we find that
on several sets of vehicles, that the variation between
GM laboratory and EPA laboratory varied from 13 — EPA being
13% lower to 4 3% lower over the period of September to March.
The vehicle which was 13% lower at EPA in March was the same
vehicle that was tested in April at both laboratories. EPA
laboratory measured this specific vehicle about 10% higher in
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GM
April, and our laboratory measurements on this vehicle
remained constant.
And in all cases, we are talking about repeat tests
of two or more tests in each laboratory at each point in time.
So we have seen a change from considerably lower
emission levels at EPA to somewhat higher emission levels over
the last few months. And it's this type of change that we
are concerned about.
CHAIRMAN JACKSON: Are you doing any similar work
with the CARB?
MR. SCHWOCHERT: No. On diesels, we are not doing
any correlation work with them.
MR. PETERSEN: This kind of inconsistency can
possibly be clarified or corrected for certification purposes,
but we can't — we can't live with this kind of uncertainty on
assembly-line testing where you are dealing with a go/no-go
decision on the assembly line.
I think EPA has a great deal of flexibility in the
certification area. And this kind of inconsistency and lack
of correlation between data can be more easily resolved for
certification purposes than it can for assembly-line com-
pliance purposes.
CHAIRMAN JACKSON: Okay. What was the other topic
here?
MR. NELSON: Mr. Jackson, if you would like, we
would be happy to present our statement on California Title
13 testing. Or if you would like, we can come back and
submit that one whenever the subject comes up, if you want to
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GM	48
handle them separately.
CHAIRMAN JACKSON: You are talking about the com-
pliance and inspection testing —
MR. NELSON: Yes.
CHAIRMAN JACKSON: — of '77?
MR. NELSON: Yes.
CHAIRMAN JACKSON: We will listen to that right now
if you want.
MR. NELSON: First of all, Mr. Presiding Officer, I
would like to indicate that General Motors will submit a copy
for the record. We did not get copies available for this
particular hearing.
Although this is only one of the many subjects to
be covered in the next several days, General Motors is
appreciative of the opportunity to comment on Title 13, the
California Title 13 test procedure that is being considered by
EPA at this hearing.
General Motors has one major problem with this
Title 13 test procedure. That is, it is not consistent with
the other test procedures which govern certification and
assembly-line testing.
This comment is not new, but one which we made to
the California ARB on June 24, 1976.
Basically, we are concerned about the different
treatment of a vehicle engine family in the certification and
assembly-line test procedure and the use of subfamily or sub-
group in the present Title 13 test. We believe it is unfair
for a manufacturer who, in good faith, has complied with the
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first two test requirements to be later evaluated by a
different set of rules.
Perhaps some discussion of the details will help
explain the area of concern that we have.
The assembly-line test requires that the vehicle
manufacturer test, on the quality audit portion of the test
procedure, a sample size of at least two percent of the
vehicles built with engine families that have been certified
for California sale. This particular portion of the assembly-
line test, the quality audit test, also requires that the
sample must be representative of a hundred percent of the
vehicle configurations certified and built for California
sale.
The Title 13 test procedures, which are claimed to
be an ARB check on data submitted by various manufacturers,
would now permit ARB to select a small subgroup of vehicles
from an engine family for testing. This subgroup can be any
combination of engine, fuel system, drive train and vehicle
configuration.
Certainly, when the random two percent sample—
often a number of tests approaching several hundred — is
compared with test results from a small subgroup of vehicles,
the average test results may, in fact, be different because
of different sampling techniques. This is an apples-and-
oranges comparison. It does not provide the stated objective
of a cross-check of the manufacturer's data but, instead,
merely proves that a small subgroup may, and probably will,
be different than the average of the complete engine family
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Thus, the procedure being considered here does not
accomplish the main objectives stated by ARB, and it may also
subject the manufacturer to the loss of the right to build
vehicles which have passed California certification and
assembly-line tests.
We assume that EPA does not want to condone and
approve the use of a test procedure that potentially penalizes
a manufacturer unfairly.
If EPA grants the requested waiver, it should do so
with the condition that subfamily or subgroup be deleted from
the test procedure.
CHAIRMAN JACKSON: I think, just for purposes of
clarification, you are right in what you understood just
based on the testimony of the CARB earlier today, and that is
they do intend to apply their Title 13 compliance testing to
subgroups of vehicles.
MR. NELSON: That is the understanding we have, and
that's the basis for making the statement we made.
I am confused, Mr. Jackson, that ARB seems to be
asking for a waiver on additional things from what we under-
stood from the notice. The dealership inspection, for
example, we did not realize that it was going to be considered
at this hearing, and we would respectfully request the oppor-
tunity to supply written comments. This is a test procedure
that was billed as being consistent with the certification
process. It definitely is not. It disables a portion of
the emission control system and requires emission measurements
at idle that do not correspond to anything that's required in
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the certification process.
It seems to me to be a separate subject that ought
to be, in my opinion, appropriately announced for hearing.
We have had a little problem with a particular engine
that does not have an idle CO adjustment, and because the
value doesn't meet, the idle CO value doesn't meet a pre-
scribed level by ARB, the dealer has to make an adjustment.
And that's impossible, and we have not been able to get ARB to
agree that that idle CO value, which is the certified value,
is acceptable because it's above the value that was previously
determined as their guideline and test procedure.
We have comments such as those that we certainly
want to submit for the record because we did not understand
that that portion of the inspection was being considered.
The assembly-line test has an inspection procedure
that we did not object to because we assumed that that was
the inspection that was being discussed at today's hearing.
CHAIRMAN JACKSON: In other words, you didn't
realize that they were talking about the inspection portion of
their inspection and compliance testing procedure; is that
right?
MR. NELSON: That's correct.
CHAIRMAN JACKSON: As it was described by Mr. Austin
earlier, that was new to you?
MR. NELSON: That was new for the purpose of this
hearing, yes.
CHAIRMAN JACKSON: And you are suggesting that some
way the notice was deficient?
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MR. PETERSEN: I think we would be satisfied in
submitting comments for the record before the record closes
on this.
CHAIRMAN JACKSON: Fine. Well, we invite those
comments, whatever they are.
MR. PETERSEN: The dealership inspection program
specifically is what Mr. Nelson refers to where the Board
disconnects air pumps on cars and performs idle emission
tests.
CHAIRMAN JACKSON: No, we know that they do that.
MR. NELSON: Yes, sir, that's correct.
CHAIRMAN JACKSON: This is with regard to passenger
cars?
MR. NELSON: And light-duty trucks.
CHAIRMAN JACKSON: But you are talking about some-
thing they have done in the past, I assume.
MR. NELSON: It has been done, yes.
CHAIRMAN JACKSON: And you are talking about that
with respect to light-duty vehicles?
MR. NELSON: Yes.
CHAIRMAN JACKSON: Not anything else?
MR. PETERSEN: I'm not sure what you mean.
CHAIRMAN JACKSON: Well, light-duty passenger cars,
or does it include light-duty trucks or anything else?
MR. NELSON: I'm not sure of the exact categories.
It definitely applies to light-duty vehicles, light-duty cars
and trucks.
CHAIRMAN JACKSON: With regard to your concerns about
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the subgroup argument, what's your position? Are you
suggesting that some groups of cars don't have to meet the
standards and other groups do?
MR. NELSON: No, sir. The certification process
allows the regulatory authority to pick those cars they want
to evaluate.
It's a similar problem as we heard described earlier
on the truck issue: that the regulatory agencies have
recognized that there is a big burden associated with picking
a large number of vehicles, so they select the vehicles that
appear to have the highest emission potential from the certifi-
cation fleet; and then as long as the rest of the vehicles
have the same hardware and calibrations, it has been accepted
by EPA and ARB in the past that those vehicles are, therefore,
certified.
So that gives the manufacturer a license to, so to
speak, a license to do business. Now they come along to an
assembly-line test, and those requirements are very well
spelled out and the evaluation is spelled out. But it's on
the total engine family basis. Either 90 percent have to
comply or, as Mr. Austin mentioned earlier, the average for
that vehicle family times the deterioration factor must comply.
And then the third step of the test procedure is
a different evaluation where you can look at a small subgroup
and make a different determination than you do from the total
assembly-line test procedure.
CHAIRMAN JACKSON: Have you got some sort of an
argument, mathematical argument, that will show that in some
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GM
54
way this prejudices the manufacturer that's making cars and
meeting the standards?
MR. NELSON: We can certainly come up with a
mathematical argument that will illustrate the point very
clearly.
CHAIRMAN JACKSON: Is it realistic?
MR. NELSON: Sure. From samples of data that we
have already obtained, or theoretical textbook type of analysis,
that will accomplish the objective. And the problem that we
see is that the manufacturer who, in good faith, complied with
the first two steps, then has a different set of rules for the
third step.
CHAIRMAN JACKSON: What I get out of this is, what
you are telling me is that, unless in certification they test
each and every possible subgroup, that you shouldn't anywhere
else evaluate that particular subgroup for compliance?
MR. PETERSEN: I think what Mr. Nelson is saying is
that it seems fundamentally unfair to us that a manufacturer
can certify his vehicles under one set of rules, build
vehicles which are in all material respects substantially the
same design, specs as the certification vehicle, be subjected
to an assembly-line test and comply with that assembly-line
test, and still have to jump over another hurdle which has
inconsistent rules with the first two requirements.
CHAIRMAN JACKSON: Well, is it a technological
argument? I mean you can show that you are going to have to
make some sort of design changes that are going to have
implications of lead time and cost because of this alleged
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inconsistency?
MR. PETERSEN: I think it's basically a due-process
argument, and possibly a hardware argument, I mean.
MR. NELSON: Mr. Jackson, I would like to submit that
it would be a new requirement that involves the technical
capability and lead time to get there if you had to demonstrate
that each and every possible subgroup complies with the certi-
fication requirement. That would require additional time and
perhaps technology.
CHAIRMAN JACKSON: But can you show that? The issue
here is you are making a claim with regard to the testing of
subgroups and the Title 13 program, and you are alleging that
it will cause — will be inconsistent and somewhat prejudice
you. The issue is how? Is that for sure? Are we talking
about one in nine chances or one in a thousand that this will
ever happen in such a way that it will in some way prejudice
the manufacturer who has gone through certification and
assembly-line testing, or are we talking about one in two
chances? I don't have any kind of appreciation for the
magnitude of the concern we are talking about.
MR. NELSON: We would be glad to submit that for the
record, Mr. Presiding Officer. We have not looked at the
exact percent of time that there could be a problem. We say
that it's a different rule than what we took the first two
steps on and, therefore, it looks like the possibility of
having some very severe penalties and losses because we had
a third test requirement which, in fact, was different than
the first two.
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GM/FORD	30
But we can attempt to approach statistically the
problem you are describing.
CHAIRMAN JACKSON: I think that would be helpful.
Mr. Nelson, thank you very much.
MR. NELSON: Thank you.
CHAIRMAN JACKSON: Go ahead.
MS. HELEN PETRAUSKAS: Mr. Chairman, members of the
panel:
My name is Helen Petrauskas. I'm an attorney for
Ford Motor Company.
The issues raised by this portion of California's
request for a waiver of federal preemption, simply stated, are
as follows: Are unique California compliance and inspection
testing requirements, i.e., enforcement procedures relating
to emissions from new motor vehicles preempted by the Clean Air
Act as amended, and, if so, can preemption be properly waived
by the Environmental Protection Agency in the case where the
underlying standards and certification test procedures are
identical to those adopted by EPA?
Further, is a waiver proper if enforcement procedures
are inconsistent with CARB certification and assembly test
procedures, as well as Section 202(a) of the Clean Air Act?
It is Ford's view that a waiver is required, and
that no waiver cannot be granted for enforcement procedures
where the underlying standards are no more stringent than
EPA's or for enforcement procedures which are not consistent
with Section 202(a).
Section 209(a) of the Clean Air Act, as amended,
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FORD	57
clearly expresses a broad Congressional intent to preempt state
control of emissions of air pollutants from new motor vehicles.
The preemption applies to "any standard" and enjoins all states
from adopting "certification" or "inspection" or any other
"approval" relating to control of emissions from new motor
vehicles. Moreoever, Section 209(a) prohibits in the dis-
junctive the adoption or the enforcement of any form of new
motor vehicle emission requirements. The language of
Section 209 is so clear and unequivocal that no further con-
sideration of this issue should be necessary.
Even a superficial consideration of the effect of a
finding by EPA that enforcement procedures are not preempted is
sufficient to illustrate the disruption which could occur.
First, such a finding would not simply relate to
California but to all other states and political subdivisions
thereof.
Second, enforcement procedures could arguably
encompass a variety of measures — penalties, repairs,
recalls, limitations on future sales — limited only by the
imagination of state and local legislatures. An EPA finding
that enforcement procedures per se are not preempted could
create an impetus to each of the states to promulgate unique
enforcement procedures with respect to federal emission
standards. Under these circumstances it is conceivable that
enforcement measures adopted could be flatly inconsistent with
federal enforcement proceedings.
For example, in the case of a recall conducted
pursuant to Section 207(c) of the Clean Air Act, is it in the
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FORD	58
public interest to require manufacturers to secure approval of
a remedial plan not only from EPA — but also from as many
states cr state subdivisions as may elect to adopt unique
enforcement proceeding? The answer must be no. Yet Ford can
conceive no statutory or rational basis for distinguishing
between preemption of an enforcement proceeding adopted by
California and one adopted by any other state. Both are
preempted — with resepct to the one, California, under certain
conditions this preemption may be waived.
Ford has elsewhere recited in detail its views of
the findings which must be made by EPA before preemption may
be waived pursuant to Section 209(b). In this instance the
most important of these are the following:
(1)	Are the California standards and certification
test procedure in question more stringent than the federal
counterparts?
(2)	If so, are the accompanying enforcement pro-
cedure consistent with Section 202(a) of the Clean Air Act?
Insofar as the 1978 and subsequent medium-duty truck
standards are concerned, EPA has already found that the 1978
California standards applicable to medium-duty vehicles are
more stringent than corresponding federal standards.
I might add parenthetically that in connection with
that grant of waiver, EPA agreed that compliance with the
California certification procedure was deemed to constitute
compliance with the federal heavy-duty engine requirements
that may be applicable to the engines that are in those
vehicles.
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FORD	59
The federal standards and procedures applicable to
motorcycles, on the other hand, are, in California's words,
"equivalent in stringency to our own."
Because the first criterion noted above is not met,
it would appear that EPA's inquiry into the motorcycle portion
of this matter should be at an end.
Mr. Buist will now review the consistency problem
we have with the enforcement procedure insofar as it relates
to medium-duty vehicles.
MR. DONALD R. BUIST: In the case of the enforcement
procedures applicable to medium-duty trucks, one important
issue requires resolution. Understanding this issue requires
an understanding of the background of the 1978 model year
medium-duty truck standards adopted by California.
On March 31, 1976, CARB defined a new class of
medium-duty motor vehicles and adopted standards applicable to
this new class of vehicles. At the same time CARB directed
the staff to hold a workshop at which proposals could be
developed to deal with the lead time problems inherent in the
action taken by CARB.
On June 30, 1976, following the staff workshop,
California adopted the test procedures applicable to medium-
duty vehicles designed to alleviate, in part, these very
stringent lead time and technological problems. As described
by. EPA in the January 11th, '77, Federal Register.
"The purpose of these changes is to minimize the
certification effort and lead time problems by reducing
the need for special medium duty durability vehicles,
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FORD
60
provided that the medium duty and light duty truck
emission control systems are essentially the same. As
stated by representatives of the Ford Motor Company, these
changes permit 'carry-over* and 'carry-up' of California
light duty truck engine codes into the medium duty class,
and use of carry-over light duty truck deterioration
factors. The changes also limit certification and quality
audit testing to high volume transmission/inertia weight/
axle combinations of unique medium duty engine codes.
These amendments will permit Ford to significantly reduce
the number of unique, new engine codes or calibrations
which will have to undergo certification testing."
At the CARB staff workshop conducted one week prior
to the adoption of the medium-duty truck standards, and in
anticipation of this action, Ford recommended that the amend-
ments to Section 2101 of Title 13 of the California Adminis-
trative Code, adopted by CARB on June 24, 1976, expressly
provide that so-called "Title 13" testing of medium duty
vehicles be limited to the vehicles represented in the test
fleet on the basis of which certification was granted. CARB
declined to adopt this change and stated that this issue would
be considered at the time CARB amended the 1978 Assembly Line
Test Procedures.
On January 25, 1977, CARB amended the Assembly Line
Test Procedures applicable to 1978 and subsequent year
passenger cars, light-duty truck and medium-duty vehicles.
The staff report which accompanied the regulations acted upon
at this hearing stated:
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FORD
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"This revision adds medium-duty vehicles to the
assembly-line test procedures as this class of vehicles
has been added to the standards and test procedures for
the 1978 model-year. However, the selection of vehicles
will be biased toward and compliance will be based upon
configurations actually tested for certification."
Accordingly, Section 3 of the applicable test
procedure now provides:
"Of the medium-duty vehicles chosen for quality
audit testing, approximately two-thirds shall be from
those configurations tested for certification and
approximately one-third shall be from those configurations
not tested for certification. The data from the two-third
group will be used for evaluation according to Section
C.5. of these procedures and the data from theฆ 6ne-r third
group will be for information only."
Unfortunately CARB has not taken any action to
conform the so-called Title 13 compliance/inspection test
procedures to its assembly-line procedures.
This entire matter is further confused by the fact
that the Notice of this proceeding (42 Fed. Reg. 19372) and
Attachment "L" to CARB's letter of January 20, 1976 on its
face would appear to apply to medium-duty trucks even though
CARB's waiver request of January 20, 1977 nowhere mentions
medium-duty vehicles.
It is Ford's view that unless the test procedures
referenced in subsection 2101(c) of Attachment "Lw are amended
to restrict compliance testing rot 1978 and subsequent model
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62
FORD
year medium-duty vehicles in a manner consistent with the
1978 Assembly Line Testing and Certification Procedures no
waiver may be granted. The record before CARB and EPA
clearly demonstrates that in the absence of such amendment,
the lead time remaining prior to the 1978 model year is
inadequate to enable compliance with this requirement. In
this regard CARB's testimony before the EPA on August 25,
1976 is sufficient to illustrate this point.
"... the ARB held a workshop with the manu-
facturers which resulted in changes to the certification
vehicle selection procedures on June 30, 1976. These
changes minimized the certification burden and increased
the available lead time by virtually eliminating the
necessity for special medium-duty vehicle durability
vehicles provided that the medium-duty vehicle emission
control systems are essentially the same as the light-
duty truck systems."
The sole conclusion that can be drawn from the
above cited testimony by the CARB is that lead time is
inadequate to meet inspection tests which are different from
and substantially more burdensome than the applicable
certification requirements.
I would like to add, Mr. Jackson, that we were
very pleased that CARB entered into the record that they have
no intention of Title 13 testing of medium-duty vehicles that
are not of the same configuration that were used for certifi-
cation. However, this is for 1978 I'm speaking now.
CHAIRMAN JACKSON: I'm not sure they did that.
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FORD
63
MR. BUIST: It's our belief they did. They are
indicating they did.
CHAIRMAN JACKSON: Title 13 testing under the CARB
procedures would not apply to medium-duty trucks, '78, other
than those that were those configurations which were actually
tested for certification.
MS. PETRAUSKAS: The procedure on its face applies
to all motor vehicles. For example, if you look at Section
2101, it says "any vehicle," "The Executive Officer may, with
respect to any vehicle being sold, offered for sale," etc.
If you look at the test procedure that's cross-
referenced in Section 2101, that procedure likewise speaks in
terms of any vehicle and all vehicles.
At the time we made our recommendation to CARB to
make these requirements consistent with both certification and
assembly-line test requirements, we would have amended
Section 2101 to indicate that compliance testing and vehicle
selection should be limited to those vehicles which were
tested under certification.
The testimony this morning is a little bit confusing
because, as Mr. Buist pointed out, we understood, at least
in part, California to say that their intention is not to do
testing of these other vehicles, that is, those that weren't
tested for certification purposes. But the written testimony
speaks in terms of — And I am reading now from Page 6 of
the CARB testimony: "We further ask that California be
granted a waiver for inspection testing apart from its
relationship to assembly-line testing for all vehicles."
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FORD
64
And I'm not sure I understand what that means.
CHAIRMAN JACKSON: Inspection testing being that
part where a visual examination as opposed to compliance
testing, which is the CVS testing.
MS. PETRAUSKAS: I wonder if you can give me a
section reference on that, Mr. Jackson, because I don't know
where — I'm not aware of the procedure that spells it out.
CHAIRMAN JACKSON: That's the question I asked when
CARB was up here. That's why I asked it.
MS. PETRAUSKAS: I'm curious.
CHAIRMAN JACKSON: Mr. Austin, do you want to
clarify this point for us, or just let us keep on muddling
around?
MR. AUSTIN: Perhaps I can clarify one of the points
by referring to some language that's in our test procedures
adopted June 24th, 1976, referring to the compliance testing.
Ford has apparently looked at the first paragraph of those
procedures and concluded that we intend to apply Title 13
enforcement testing to all medium-duty vehicles for 1978.
That paragraph reads:
"These procedures are applicable commencing with
the '77 model year to any engine family or any subgroup
within an engine family selected for compliance testing
pursuant to Section 2101 of Title 13, California
Administrative Code."
That does seem to imply that we will be subjecting
all subgroups of medium-duty vehicles to testing. However,
the two following paragraphs read as follows:
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FORD
65
"The test procedure shall apply to any engine
family or subgroup if the engine family is evaluated
according to quality audit test procedure, Option 1,
90% pass rate, during assembly-line testing. Test
Procedure 2 shall apply to any engine family or subgroup
if the engine family is evaluated according to quality
audit test procedure, Option 2, during assembly-line
testing."
Well, for the subgroups of medium-duty vehicles
which were not subject to certification testing, neither one
of these paragraphs apply, and it was our understanding —
it was our intent, therefore, to have those subgroups not
subject to Title 13 testing. You only have two paragraphs
here telling you how you apply the Title 13 test procedure to
vehicles and if, in fact, Option 1 or Option 2 for assembly-
line testing does not apply to a subgroup, then the compliance
testing doesn?t apply to the subgroup.
CHAIRMAN JACKSON: That's certainly one way to get
there.
MS. PETRAUSKAS: I wonder if I can make a comment.
If I understand the 1978 assembly-line test
procedures correctly, it is a requirement of the test pro-
cedure that one test vehicles other than those selected for
certification, but the results of that test will not be used
in any compliance determination.
MR. AUSTIN: That's correct.
MS. PETRAUSKAS: So that all vehicles, including
those not tested for certification, are vehicles subject to
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FORD
66
assembly-line test requirements.
MR. AUSTIN: Right. But not for enforcement
purposes. And we have, I think, been assuming that, if the
manufacturer was in no jeopardy, they would have no particular
problem with subjecting subgroups to testing for informational
purposes only.
MS. PETRAUSKAS: Well, Mr. Austin, I don't think we
want to beat this one to death much more. I think it's
important that any waiver decision reflect the understanding
of what the requirements are.
MR. AUSTIN: Well, we have stated our intent for
the record. This language is not as clear as it probably
should be, but that is the way we intend to conduct the
program, not to jeopardize the subgroups which were not
subject to certification testing for the '78 model year.
CHAIRMAN JACKSON: Thank you, Mr. Austin.
Does that leave you with continuing concern about
the compliance testing for other groups of vehicles?
MS. PETRAUSKAS: The concerns we have — And they
are the ones that are discussed on the first several pages of
our statement — relate to the fact that California in its
January 2 0th letter, January 20th, 1977, letter to EPA puts
the issue in terms of need one obtain a waiver for enforcement
procedures. Put another way, that same issue is: Are
enforcement procedures preempted?
The purpose of the first three pages is to say yes,
enforcement procedures are preempted, and for the very
reasons stated, they must be preempted.
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FORD	0/
CHAIRMAN JACKSON: Okay. But getting back to the
question, which was: Do you still have problems with the
subgroup testing as it relates to other classes of vehicles
as opposed to just medium-duty trucks. We have found through
clarification by the CARB that they don't intend to use the
Title 13 testing on any subgroup that was not subject to
actual testing and certification, as well as assembly-line
testing.
MR. BUIST: Well, I guess we have concern with
subgroups. But we have discussed it with CARB at previous
workshops. It was our understanding from the workshop that
subgroups would be tested only if there was a reason, there
was cause to test them; that we would be notified prior to
the testing what that particular subgroup represented and
why CARB was going to test it, and that the determination of,
or the final judgment as a result of testing that subgroup
would be addressed under 2101(c), Title 13, which reads that,
"The Executive Officer shall consider quality audit test
results and any additional test data and other information
provided by the manufacturer, prior to reaching a decision."
And I guess under those conditions, we are satisfied.
CHAIRMAN JACKSON: But you don't have any problems
with it, though? It doesn't create the same problem in your
mind that General Motors articulated earlier?
MR. BUIST: No, I guess not.
CHAIRMAN JACKSON: Now, with regard to the question
of about whether it needs to be — whether it is subject to
preemption or not, I'm sure you have read our documents which
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FORD
(TSf
reflect on our view of this, that if — if these procedures
are in connection with the assembly-line test procedure, it,
indeed, is an additional compliance measure that should not
incur anymore — any technology problems or any lead time
problems. In other words, you can view it as sort of covered
under the concept of the assembly-line test procedure.
Taken by itself without the companion assembly-line
test procedure, if a rationale would have to apply — and,
yes, indeed, I would suggest that it would be the proper
subject for consideration for a waiver.
Taken in the context, though, of an assembly-line
test program in place, then these procedures are merely, as
they have pointed out, as the CARB has pointed out and as we
have agreed with them, a check procedure to assure what they
saw by virtue of the manufacturer's testing on the assembly
line is reflected in cars that actually get out to the dealer-
ships .
So I think if you companion the program, you have
got a different argument. Taken by itself, these compliance
testing procedures may be a true subject for consideration of
a waiver. And I think if, as long as we look at it like
that, we don't have to worry about your fear of other states
coming in and willy-nilly adopting such things, because they
weren't considered something that should have been preempted
and a waiver granted.
Do you follow me?
MS. PETRAUSKAS: Let me restate what I think I
understood you to say.
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FORD
69
First, you said that enforcement procedures may be
eligible for a waiver of preemption, depending on what the
underlying — if the underlying standard is eligible.
CHAIRMAN JACKSON: Right. Right. In other words,
you have embraced within the concept of a waiver a number of
different things that fall within it, starting with the
standards and then certification and then assembly-line
testing, and there are other things.
So there is only one state that can be granted a
waiver for those things, that broad waiver concept, and they
have been granted a waiver in that context. And in one
particular instance, not before us today, we have agreed that
the compliance inspection test procedures were covered, or
were a part of another waiver because they didn't involve an
additional burden. They were merely an enforcement-checking
technique.
Okay. Because they were in companionship with
certification and assembly-line testing, okay?
Now, if we were looking at compliance inspection
and testing by itself without these other measures for which
we have the umbrella we described, they may be proper subjects
for waiver consideration.
MS. PETRAUSKAS: I don't know if our difference is
really semantical. I'm saying that all of those requirements
are preempted. Some of them may be eligible for a waiver of
preemption.
CHAIRMAN JACKSON: They are preempted, correct, but
it depends on where they start from. If you start from
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compliance and inspection test procedures, then it may be a
subject for consideration of preemption. But if it's a part
of another program that's already been granted a waiver —
MS. PETRAUSKAS: But in any case, it6 eligibility for
a waiver would be determined the way it always is, and that's
namely by satisfying the requirements of Section 2101. I
don't think we are saying anything different, Mr. Jackson.
CHAIRMAN JACKSON: I don't think so, either. I just
thought it would be helpful to clarify with regard to the
first remark you made about where we are coming from on this
because there is a potential for confusion in the way that we
have handled this precise issue in connection with another
control program.
MS. PETRAUSKAS; All right.
CHAIRMAN JACKSON: Thank you very much.
We find ourselves in a most unusual predicament.
We find we are ahead of schedule. We have never been ahead
of schedule before. We don't know what to do.
We are going to ask that the California Air Resources:
Board present their statement with regard to reconsideration
of the October 1, 1976, motorcycle waiver. We will take
that testimony and then break for lunch.
MR. AUSTIN: On the subject of exhaust emission
standards for motorcycles, in our letter to you of November 1,
1976, we stated our position that since California's exhaust
emission stnadards and test procedures for 1978 through 1981
model-year motorcycles were identical to those adopted by EPA,
we would not require manufacturers to obtain a separate
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California approval prior to sale in California.
We also indicated that we intend to enforce the
federal and California emission standards pursuant to Section
43008 of the California Health and Safety Code. The enforce-
ment procedures which we will shortly adopt will be the
subject of a future waiver request. No waiver is required
for any actions taken to date with respect to 1978 through
1981 model-year motorcycles since California's standards are
now identical to EPA's.
And that, of course, is subject to the manufacturer
submitting certain documentation to the ARB and to continued
validity of EPA's standards and test procedures.
When we adopted it, adopted the EPA standards for
our own, recently we put a provision in our procedures that,
should the EPA procedures be struck down subsequent to legal
challenge, that the California test procedures would auto-
matically revert back to the old procedures for which we were
already granted a waiver; and should EPA decide that there is
no particular problem in us enforcing federal standards
in California, we would like some recognition of our language.
That reason states the procedures formerly granted a waiver in
that decision.
The only item we believe to be subject to discussion
regarding motorcycles is the issue of California's 1982 motor-
cycle emission standard of 1.0 gm/km, as defined under the new
test procedures. In our opinion, the Administrator can only
reconsider his waiver allowing California to implement the one
gram per kilometer standard in 1982 if he finds that the change
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from the original California test procedure to the new federal
test procedure impinges on lead time or technological feasi-
bility. However in his October 1, 1976 decision, the Administrc
tor indicated that he was granting California a waiver for the
198 2 hydrocarbon standard, even though he could not find that
the requisite technology existed at the time of his decision,
because he anticipated that there was sufficient lead time to
develop such technology and apply it to most motorcycles.
We fail to see how the test procedure changes adopted by
California could affect that judgment.
The test procedures adopted by EPA differed from
those used by California to obtain its motorcycle emissions
standard waiver in the definition of useful life, test
vehicle requirements, provisions concerning adjustability,
and minor test procedure changes. The differences in useful
life definitions were differences in language, and have no
effect on the period of time manufacturers are subject to the
emissions control warranty. The EPA test vehicle require-
ments are, if anything, less stringent than the ones
originally adopted by ARB, and consequently this change
should, if anything, improve the manufacturers' abilities to
meet California's 1982 standard.
EPA's provisions concerning adjustability of
emissions related components should not have any impact on
technological feasibility, since these provisions relate
primarily to adjustment technology, and are quite independent
of the basic emissions control system.
Finally, the technical test procedure changes are
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basically minor in nature, and should have no discernible
effect on the manufacturers* ongoing research and development
programs. Consequently, we believe that the Administrator
cannot withdraw the waiver previously granted to California
for the one gram per kilometer hydrocarbon standard for 1982
and subsequent model motorcycles.
I have not included a discussion of technological
feasibility of the one-gram standard in my prepared statement
for the reasons cited in the statement that we don't believe
that's necessarily an issue since the Administrator felt in
his decision of last year that it wasn't necessary to make a
finding of technological feasibility at this time because of
the amount of lead time remaining and the fact, I assume,
that the standard was significantly less stringent than
standards which already have been applied to similar types
of engines used in motor vehicles.
If, however, EPA believes it's necessary to have
some discussion of technological feasibility of a one-gram
standard in the transcript of this hearing, we would be
prepared to get into that to some extent, either now or
perhaps after we have had comments from the manufacturers.
CHAIRMAN JACKSON: I think it would be important to
provide your view with regard to that in a little more detail
than you have provided here, the effect of the changing
standards on your — or the change in test procedures on your
standard and technological feasibility thereof.
And I don't accept your restatement of the
Administrator's position with regard to his finding of
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technological feasibility, and I would refer that back — or
my interpretation back to the Federal Register notice of
precisely what he said just for purposes of clarification,
because I think your restatement was just a little bit
different than the way the Administrator stated it in his
decision.
With regard to your request for continued submission
of certification documents, what is your view on a manu-
facturer failing to make those submissions timely to the
CARB?
MR. AUSTIN: Our view is that a manufacturer who
fails to make that documentation available to us should not
be allowed, will not be allowed to market his product in
the State of California.
CHAIRMAN JACKSON: Under what authority?
MR. AUSTIN: We have under the — because of the
fact that we are adopting EPA's standards and procedures as
our own and intend to enforce those procedures, making our
motorcycle control program more stringent than the EPA program
and, therefore, allowable under 209 of the Clean Air Act as
an independently conducted program.
MR. MACOMBER: Mr. Jackson, our regulation,
Section 1958, also says, and I am quoting here from Subsection
(e) with reference to the document requirement, "The above
information," quoting now, "The above information shall be
submitted for each engine family prior to sale or offering
for sale of 1978. through '81 model year motorcycles in
California."
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CHAIRMAN JACKSON: So it is in this context a
prerequisite to sale?
MR. MACOMBER: Yes.
CHAIRMAN JACKSON: And, therefore, a matter subject
to preemption under Section 209?
MR. AUSTIN: Yes.
MR. MACOMBER: We would have to agree with that.
CHAIRMAN JACKSON: Now, this situation is somewhat
different than what we have talked about before where we have
talked about compliance and inspection test procedures after
or following on to assembly-line test procedures as a mere
means of checking on what the Administrator — what the
manufacturers have done pursuant to the assembly-line test
requirement. Here you are saying that you are going with these
compliance and inspection test procedures in the absence of a
CARB assembly-line test program? is that correct?
MR. AUSTIN: No, no, no. We are saying that we
have yet to act on the assembly-line test procedures and
compliance procedures for motorcycles, and we believe that
that will have to be the subject of a future waiver hearing.
CHAIRMAN JACKSON: So the basis for your request
for inspection, compliance testing and inspection, at least
compliance -testing, in this context is somewhat different
than it is in the case of passenger cars and heavy-duty
trucks?
MR. AUSTIN: We are not here seeking a waiver for
compliance testing of motorcycles at this time.
CHAIRMAN JACKSON: That's right. You asked us to
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put that off and consider it after you have made some sort of
amendment or change to the approach.
MR. AUSTIN: That's right. We believe that we will
have to — we will have to come up with a special package for
motorcycles because of the fact that they are handled
differently, they are prepared differently. We are going to
have to have a fairly detailed set of regulations addressing
how vehicles will be prepared for tests by the Air Resources
Board, and we think that should be the subject of a waiver
hearing.
CHAIRMAN JACKSON: Now, will that be in the context
of an assembly-line test program?
MR. AUSTIN: We are not planning to conduct an
assembly-line test program for motorcycles in the 1978 model
year. We are planning to conduct a compliance testing
program alone without assembly-line testing.	For that
reason, we believe it will probably be necessary for us to
seek a waiver of the compliance testing program because we
can't use the same approach that's been used on other motor
vehicles where the compliance program is little more than an
extension of the assembly-line program, because there won't
be an assembly-line program for motorcycles, at least not for
1978.
CHAIRMAN JACKSON: Do we need to make a decision on
the submission of the application now as opposed to after you
have come forward with your program for which the application
will be required?
MR. AUSTIN: I think now you have to make a
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decision on the appropriateness of the language we have
adopted in Title 13 which requires the submission of certain
documents to us and gives us the right to — I believe right
now, Kingsley — Correct me if I am wrong — we are also
seeking the right to be able to inspect vehicles which are
offered for sale in California to see if, in fact, they are
built in conformance with the certification documents which
we are requesting be submitted to us prior to sale.
We are not here seeking a waiver for any testing
program at this time. We are only here seeking a waiver of
the provisions which have been adopted in Title 13 requiring
submission of certain documentation to the State of California
and for our right to be able to inspect motorcycles sold in
California that were certified under the EPA procedures and
standards, which have also been adopted as our own.
CHAIRMAN JACKSON: But those procedures, those
inspection procedures, have not been finalized; they are not
before us.
MR. AUSTIN: We are not planning to — We are not
planning to put together specific inspection procedures for
motorcycles. Again, we want the — we intend to conduct
the inspection as we do with passenger cars and trucks. That
is we only intend to look at the vehicle visually to see if
proper part numbers are on the fuel metering system, if the
proper hardware is installed. Basically, we are just looking
for compliance with the Part 2 certification application.
That serves as the boundary for the inspection program.
CHAIRMAN JACKSON: And for what years is that?
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MR. AUSTIN: 1978 and subsequent.
CHAIRMAN JACKSON: Under what authority are you going
to conduct the inspection testing of California law?
MR. MACOMBER: Well —
CHAIRMAN JACKSON: Just your cite, Title 13, and
then what?
MR. MACOMBER: We would adopt regulations into
Title 13, make appropriate amendments there, but the references
will be to the Health and Safety Code. Do you want those
specific references now? I can give them to you in a minute.
CHAIRMAN JACKSON: It's not under 2101 of the —
Section 2101 of the existing regulation?
MR. MACOMBER: It's conceivable we would amend that
section to incorporate compliance testing procedures for
motorcycles. We could also add another section, 2101.5. We
just haven't decided the mechanics of how we are going to do
it yet.
CHAIRMAN JACKSON: And you don't have — you don't
believe you have, unless in the context of the — Under what
authority do you believe you have the right to conduct your
inspection tests?
MR. RUBENSTEIN: 2101 of Title 13, California
Administrative Code. 2101(a) and (d) in particular for
inspection testing.
MR. MACOMBER: Which, in turn, is based upon a
provision in the Health and Safety Code which requires that
all production vehicles be substantially the same in con-
struction in all material respects as the certification
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vehicles.
CHAIRMAN JACKSON: Your telegram of May 2nd, 1977,
asked that — states that:
"This will confirm that Item 1 for the May 16th,
1977, waiver hearing in San Francisco entitled Compliance
and Inspection Testing of '77 and subsequent model year
motor vehicles except *77 and '78 model year gasoline
passenger cars and light-duty trucks should not extend to
compliance and inspection testing of motorcycles. We
intend to hold a public hearing in June, 1977, to
establish specific procedures for guidelines and
inspection testing of motorcycles. Thereafter, we will
apply for a waiver with respect to compliance and
inspection testing of motorcycles."
MR. AUSTIN: Okay. The problem is that in that
context, we were talking about compliance and inspection
test procedures as the package of procedures that we use
during the — the Title 13 surveillance testing, the testing
that's conducted at the Board's laboratory. That's both
CVS testing in combination with a detailed review of the
hardware that's used on the vehicle.
Perhaps we didn't make ourselves clear, but we
believe that, when we are granted authority to or waiver of
federal preemption to conduct certification testing, that
implicit in that approval is the authority for us to inspect
vehicles that are sold subject to that certification or
approval to see if they are, in fact, similar to the certified
vehicles.
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In the context of our mailgram of May 2nd, we were
talking about compliance and inspection testing procedures as
a package referring to the program which is conducted on other
motor vehicles at the Board's laboratory wherein we require a
sample to be delivered for CVS testing. And as part of that
program, we also conduct some inspection tests of the vehicle,
usually inspections which are more detailed than the general
type of inspections that we think we implicitly should have —
we implicitly receive authority for when we are granted an
approval to conduct a certification program.
CHAIRMAN JACKSON: Okay. Then with regard to your
inspection activity, that's all we are talking about now is
just the comparison of the parts and the authority for them
to submit to you an application for certification?
MR. AUSTIN: Yes.
CHAIRMAN JACKSON: That's a matter subject to
consideration for waiver to give you that authority to
sanction them if they don't submit to you an application?
That's really what we are talking about here?
MR. AUSTIN: Basically. Kingsley, do you agree
with that?
MR. MACOMBER: Right. I think you can separate
it, the issue of compliance and inspection testing.
CHAIRMAN JACKSON: So really all you are trying to
do is confirm that certified vehicles— vehiclescertified by
the federal government for sale in California, indeed have
the parts on them in accordance with their application sub-
mitted to the federal government?
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MR. AUSTIN: Yes.
MR. RUBENSTEIN: That's correct.
MR. DRACHAND: Up to 1981.
CHAIRMAN JACKSON: Now, how do you argue that that's
more stringent?
MR. AUSTIN: The federal government does not have a
program for inspecting motorcycles sold in the State of
California to see if they are, in fact, built in conformance
with the certification application. At least we are not
aware of any program.
CHAIRMAN JACKSON: But you are suggesting that by
itself is a stringency measure?
MR. MACOMBER: Yes.
MR. AUSTIN: Yes.
CHAIRMAN JACKSON: There is no argument about the
standards. At least until 1982, the standards are the same
as the federal standards; the test procedures are the same
as the federal test procedures; it's just an additional
measure which looks at, at least for right now, comparison of
parts —
MR. RUBENSTEIN: That's correct.
CHAIRMAN JACKSON: — for the application?
MR. AUSTIN: That's correct.
CHAIKMAN JACKSON: Okay.
MR. AUSTIN: This reminds me — gets back to a
question you asked earlier about whether the Board had ever
taken enforcement action against a manufacturer for selling
vehicles which were not built in conformance with the
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certification application, and I think perhaps our answer on
that was inaccurate.
MR. RUBENSTEIN: No, we said no with respect to used
vehicles. The answer, I think, is probably yes with respect
to new vehicles. Again, it's not clear whether we ever, in
fact, got to court on the issue, but we have, in fact, taken
action and gotten to the manufacturer.
MR. AUSTIN: Yes, the State of California has taken
action against several people attempting to market vehicles in
the State of California which were not certified for sale in
the State of California; in fact, were not certified for sale
in the United States of America.
And under the sections of Title 13 we are talking
about here, we would have our authority to enforce the federal
certification requirements extended to motorcycles. And
that's an authority which we think has some significance. It
increases the effectiveness of the program because, in fact,
we know that without an enforcement program in this area,
vehicles do make their way into the state and are sold that
are not in compliance with the certification, with the
certified configurations of vehicles.
CHAIRMAN JACKSON: I have a question here submitted
by Mr. Bullwinkle.
MR. BULLWINKLE: That's right.
CHAIRMAN JACKSON: Is that correct?
MR. BULLWINKLE: Yes. Thank you.
CHAIRMAN JACKSON: Of Kawasaki Motors.
His question is — It's to Mr. Austin — isn't it
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ARB's burden to justify the one-kilogram — one-gram per
kilometer EC standard for 1982 in terms of feasibility, lead
time and economic reasonableness? Please do so so that the
manufacturers here will have something to respond to.
Before you respond, I might add that a waiver has
been granted for that standard. After deliberations in a
proceeding similar to this, the Administrator has made a
determination with regard to a one-gram per kilometer standard.
It's on the books. The issue here seems to be the change in
the test procedure that would — that has been adopted by the
CARB and its effect on the technological feasibility of that
standard. And that's the part that I asked Mr. Austin to
respond to in addition to what he has presented here in his
statement.
And if you want to go beyond that, you certainly
can. But I think it should be narrowed to the confines of
the effect on the technological feasibility of that standard
being brought about by the change in test procedure.
MR. AUSTIN: Well, I think the question is
irrelevant to the issue as to whether the change in test
procedure has any impact on the feasibility of a one-gram
standard.
Further, I might add —
CHAIRMAN JACKSON: The point being that the change
in test procedures doesn't make it more stringent or less
stringent?
MR. AUSTIN: Not in our opinion. I would not
accept — Further, I would not accept Mr. Bullwinkle's
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suggestion that, in setting all standards, the agency setting
the standards carries the burden of proof with respect to
feasibility. As long as the standard is within the realm of
the types of controls that are capable of being applied to
multiple mobile sources, I believe the manufacturers carry the
burden with respect to the feasibility of long-range standards
which are necessary to protect the public health.
MR. MACOMBER: I would like to expand on that
notion just a little bit.
In the context of this waiver hearing, I think it
should be emphasized from our point of view — And I think
that this is fully consistent with not only the wording of
the Clean Air Act, Section 209, but the legislative history —
and that is that California doesn't have the burden, in
effect, of disproving why it's entitled to a waiver. That's
what they seem to be suggesting.
As I read it, either the Administrator, through its
own information or through information submitted by the
manufacturers, must give us a waiver unless that information
shows that we are not entitled to one. So if there is a
burden on anyone, it's certainly not on California, as I think
was implied in the question. So I would like to emphasize
that.
I would also like to make it clear that we are
here to talk about the subject if EPA would like to talk about
it, and we are prepared to do that. If you think it's
important, we will.
CHAIRMAN JACKSON: I think it's important that you
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supply to the record your basis for believing that the changes
in test procedures do not change the stringency of the 1982
standard.
MR. AUSTIN: All right. We can give you some more
specific comments on that issue.
CHAIRMAN JACKSON: I'm not sure I understand. Maybe
you can help me a little bit on this articulation of the way
you see it working with regard to the preservation of the
California program in the event that the federal program is
struck down by some court action.
MR. AUSTIN: Well, basically, it's our position
that the development programs necessary to build cleaner
motorcycles will be unchanged by the differences between
California's old test procedure and the new federal procedure
for motorcycles; that those procedures are very similar, and
that the kinds of modifications necessary for bikes to meet
California's old standards on California test procedures are
essentially the same as the modifications necessary to meet
EPA's standards on EPA's test procedures.
That being the case, we believe that we should have
the right to revert back to our old standards and test pro-
cedures in the event that the EPA procedures are struck down
in the courts.
There's already been a hearing on the issue of
lead time associated with building motorcycles that comply
with the former California test procedures and standards.
There was a finding made that, in fact, those standards were
feasible, and lead time did remain.
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It's our contention that bikes which meet the new
EPA standards on the EPA procedure should also meet the old
California standards on the California procedure in most
cases. That being the case, we don't want to see the motor-
cycle control program collapse because of legal action that
we may have no control over that ends up in the federal pro-
cedures and standards being struck down or postponed in some
way.
CHAIRMAN JACKSON: Well, then, really what you are
saying, as I see it, isn't the mechanics of this thing, is
that you really want to keep the waiver that you have and the
program you have, but you are going to waive in deference to
the federal program.
MR. AUSTIN: That's right. This is something that
we believe we are doing in deference to manufacturers' concerns
and comments that have been expressed in the past, that it
would be burdensome on them to have to comply with two
separate sets of standards on two separate test procedures.
And we agree that the standards and procedures that EPA has
come up with are going to provide essentially the same
degree of control as California's former procedures did and,
therefore, there is no — there is no problem on our part
with modifying our procedures to be identical to those used
by EPA.
If that's going to reduce the cost of motorcycle
emission control in the United States, that's exactly what we
would like to see. We don't believe, however, that our
decision to go along with the federal procedures and standards
)MAS Ft. WILSON
IFISO shoathano reporters
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CARB	a '
should end up resulting in the loss of a motorcycle control
program for the State of California in 1978.
CHAIRMAN JACKSON: Got you. But the point is how
do you do that? Do you revoke the waiver presently in
existence and carve out some sort of mechanism by which you
can recognize its existence in the event that the federal
program is halted by legal challenge, or do you leave in
effect the waiver and let California move on its own to
modify its program in such a way as to accommodate the
manufacturers?
MR. MACOMBER: If you are looking for an explanation
as to how we would characterize what we are asking for, I
would say we are asking for a conditional revocation or
modification of our existing waiver.
CHAIRMAN JACKSON: Do you see a difference between
a conditional revocation and modification?
MR. MACOMBER: Not essentially, no. I think you
could use either term.
CHAIRMAN JACKSON: I think I do.
MR. MACOMBER: I would say that, if you have
questions about whether or not the term "revocation" would be
consistent with what we are intending to do, then perhaps the
term "modification" would be more appropriate.
MR. AUSTIN: Mr. Jackson, I'm giving some further
thought to your question about the difference between con-
ditional revocation and modification. I think they are
probably — you probably could argue that there is a
significant difference in those two actions. I think that
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(41ft ft4A.aift4iMl.SOM

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CARB/HARLEY-DAVIDSON	88
we prefer to see a modification of our existing waiver rather
than any kind of revocation conditioned, as it might be, or
that the lead time clock continuing to run in an uninterrupted
fashion between now and the date for compliance being required
on 1978 motorcycles.
CHAIRMAN JACKSON: We are certainly not talking
about total revocation because we still haven't placed the
198 2 one-gram per kilometer standard which is more stringent
than anything on the federal books.
MR. MACOMBER: That's correct.
CHAIRMAN JACKSON: Thank you, Mr. Austin.
We will adjourn the hearing until 1:45.
(Noon recess.)
CHAIRMAN JACKSON: Gentlemen, if you are ready, I
think we are ready to start up here.
MR. JOSEPH R. AUSTIN: Thank you.
My name is Joseph R. Austin. I am counsel in this
matter to Harley-Davidson Motor Company, Inc., a motorcycle
manufacturing subsidiary of AMF Incorporated. With me at
the witness table is Mr. Laimonis T. Embrekts, Director,
Environmental Control and Energy Resources Planning, AMF
Incorporated.
Harley-Davidson, in numerous appearances before both
the United States Environmental Protection Agency and the
California Air Resrouces Board has consistently supported
reasonable regulation of emissions from motorcycles. That
support is reaffirmed here. Harley-Davidson does not, however,
support the duplicative motorcycle emission control regulation
for California now advocated by CARB. Given the stringent	
rHOMAS R. WILSON
lEATIFIED SHORTHAND REPORTERS
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HARLEY DAVIDSON
motorcycle emissions regulations promulgated by the EPA, there
is no longer any legal or practical justification for inde-
pendent CARB regulation.
Mr. Gray, on May 1st, as required by the notice, we
submitted a letter outlining the position of Harley-Davidson
in some detail. Subsequently to that, we were advised by EPA
that that letter which addressed itself to the CARB regula-
tions as amended on March 24, 1977, were not at issue at this
hearing. So Harley-Davidson revised its statement applicable
to the regulations which were in effect on October 1st, 1976,
when the original waiver was granted, and that's the statement
which has been distributed to you today.
I call this to your attention for two reasons:
1. By( reason of the confusion of what the notice
wanted Harley-Davidson to direct itself to, it may be that we
still have not touched on what you are really trying to decide
today.
But, secondly, I.wanted to urge that Inhere be
received in evidence at this hearing both the May 1st letter
from Harley-Davidson and the statement which we have provided
today. Each is different, and each is directed to a different
subject, apparently both of which were required by the notice.
I don't intend to read either of the statements, but
only to make a few comments and then to have primarily Mr.
Embrekts available to answer questions.
The first comment I would like: to make is. some-
thing that we perceive as having been an erroneous assumption
during this morning's hearings, ฃซ$	is tkat there is no
•houthanp reporters
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HARLEY DAVIDSON	90
need to decide anew whether a waiver should be granted for
1982 standards. The reason being suggested this morning was
that that waiver decision had already been made on that 1982
standard.
We would like to call to your attention that the
1982 standard for which the waiver was originally granted was
a standard which was based on a year-of-production criteria.
On March 24th, 1977, the California Air Resources Board
amended that 1982 standard to make the criteria model-year
criteria.
Harley-Davidson has a model year which begins in
July preceding the calendar year of that model year. In other
words, the new California 1982 standard affects Harley-
Davidson as of July, .1981. In other words, it's a six-months'
shorter period of time. That is a substantial amendment as
far as Harley-Davidson is concerned to the 1982 standard that
was originally granted a waiver, and Harley-Davidson believes
that this significant amendment requires a new decision as to
whether or not a waiver will be granted for the 1982 standard.
Now, it seems to us that whether or not — Whether
the decision before you is to continue in effect the October 1,
1976, standard for the standards and test procedures in
effect on October 1, .1976, or whether it's to grant a new
waiver for the standards adopted on March 24, 1977, the
question is basically the same for model years 1978 through
'81.
For the 1978-79 model year, the prior CARB regula-
tions would have resulted, by Harley-Davidson1s calculations,
>MAS R. WILSON	~	'		
IFIKD &HOATHANO IIBAITBM

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HARLEY DAVIDSON	91
in a 46% lower control of hydrocarbon emissions. As amended,
the standards are the same as EPA's.
For model years 1980-81, both before and after the
amendments, the standards of five grams per kilometer were the
same. Also for those model years, California does not purport
to regulate anything other than hydrocarbons whereas EPA has
an overall regulatory scheme which regulates both carbon
monoxide and crank case emissions.
For 1978-79 model years, California regulated only
two-stroke motorcycles, whereas EPA regulated four-stroke
motorcycles.
In the 1982 model year, the standard has been
consistently one gram of hydrocarbon per kilometer. It was
Harley-Davidson1s testimony that that was not technologically
feasible nor cost-effective, and now that it's been amended to
reduce the lead time by six months, that problem is even more
difficult for Harley-Davidson.
What the real question, I submit, before you today
is whether Section 209 intended for the California Air
Resources Board to enforce regulations which were not more
stringent than those which had been adopted by the EPA.
For model years 1978 to 1981, the only real issue
here is whether California can maintain enforcement provisions
when it does not have a more stringent standard. It's the
position of Harley-Davidson that Section 209(a) which says
that no state can impose any impediment to the marketing of
new motorcycles applies to each model year and that, therefore,
if the California Air Resources Board is to impose any
5 R. WILSON
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HARLEY DAVIDSON
92
impediment to the sale of new motorcycles in California in
1978, there must be a finding along the lines required by
Section 209(b) of the Act, and that is a finding that
California's standards are more stringent and that they are
mandated by extraordinary and compelling circumstances.
It's our position that Section 209 was never
intended merely to have dual enforcement of a common regula-
tion. It was intended to allow California, where necessary,
to adopt a more stringent standard.
It's Harley-Davidson's position further that, for
model years 1978 to 1981, there can be no waiver under
Section 209(b) and, therefore, there can be no requirement of
enforcement procedures or of their filing of certification
documents with the California Air Resources Board.
For 1982, the question is whether it's premature
now to grant a waiver for a standard that doesn't become
effective until 1982 and whether the 1982 standard is
technologically feasible.
Now, we agree with CARB, I believe, that at the
time of the October 1, 1976, waiver decision, the Administrate!
said that he couldn't determine whether it was feasible or
not. But we submit that in the process that led up to the
promulgation of the EPA standard in December of 1976, that
the Administrator, in fact, found that a two-gram hydrocarbon
standard was feasible until 1983 and that it was also not
cost-effective. That decision, made in connection with the
promulgation of the EPA standards, has to affect the
California standard, and there has to be a new finding if —
$ R. WILSON
SHORTHAND MPOBTMB
(41S) S43-31 MMt1-3098

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HARLEY DAVIDSON
93
that, in fact, the one-gram per kilometer hydrocarbon standard
proposed by California is technologically feasible with the
lead time of the model year definition now adopted by
California.
Other than the change in the model year from
production year to model year definition, we agree with the
California Air Resources Board that the test procedures
originally promulgated by California, which were based on
EPA procedures, and the current ones are not of such signifi-
cant difference that that will affect materially the stringency
of the regulations.
Finally, in our May 1st letter, we requested to be
heard on May 19th, and I wish to advise you that neither
Mr. Embrekts nor myself will be able to be here on May 19th,
and we would like only our written submission to be taken as
evidence at that time.
We are ready to respond to any questions you may
have.
CHAIRMAN JACKSON: You conclude that the changeover
to the federal test procedure by California does not materially
affect the stringency of the 1982 standard, but that the
adoption of the federal rules which embody a model year
concept different from that which California had in their
rules has imposed a different time constraint on Harley-
Davidson, resulting in a lead time problem with the 1982
standards; is that correct?
MR. AUSTIN: Yes.
CHAIRMAN JACKSON: Now, does that mean that
5 R. WILSON
SHORTHANO REPOATCR8
MIS) M3-31I4/M1-3G9*

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HARLEY DAVIDSON
94
Harley-Davidson has got built into its model year production
scheduling some intractable, inflexible precondition that can't
be changed?
MR. AUSTIN: I'm not sure.
CHAIRMAN JACKSON: I mean there is nobody that says
you got to get into it until you have to, get into that model
year until you have to.
MR. AUSTIN: Well, if you are suggesting that
Harley-Davidson could change its model year designation from
July to January, it does have real financial problems with
that because it's built into the company-union contracts that
the plant closes down in the Summertime for model-year
changeover, and it's not something that they can just reverse.
In other words, currently they are financially and
contractually committed to the July model-year changeover
date.
MR. EMBREKTS: Yes.
CHAIRMAN JACKSON: And I'm not sure how this change,
in going with the federal definition of model year versus the
California model year, is involved in that kind of a problem.
MR. AUSTIN: Well —
CHAIRMAN JACKSON: Can you explain that a little
more?
MR. AUSTIN: Well, the testimony of Harley-Davidson
a little earlier was that, by January 1, 1982, it was
technologically infeasible to comply with a one-gram per
kilometer hydrocarbon standard. The effect of the amendment
by the California Air Resources Board is to tell
i R. WILSON
shorthand ntPORTtm


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HARLEY DAVIDSON	95
Harley-Davidson that they have to comply with the one-gram
hydrocarbon per kilometer standard as of July of 1981, which
means they have to comply six months earlier.
CHAIRMAN JACKSON: So it's obvious the decision was
made on testimony by Harley-Davidson anyhow, so its relevance
is at best marginal.
MR. AUSTIN: I'm not sure that I follow that, the
testimony —
CHAIRMAN JACKSON: Well, you said you could not do
it anyhow under any circumstances, right? So what difference
does it make if it's moved up six months?
MR. AUSTIN: Well, it makes it ~
CHAIRMAN JACKSON: Why should we revise it? The
issue —
MR. AUSTIN: Well, the reason you should revise it
is it's required by law.
CHAIRMAN JACKSON: If you follow —
MR. AUSTIN: Whether or not you should give any
favorable consideration to the fact that Harley-Davidson has
six months less time to try to comply is a matter of your
discretion, I imagine.
CHAIRMAN JACKSON: But that wasn't relevant the
first time around by your own admission.
MR. AUSTIN: The issue was decided adversely to the
testimony of Harley-Davidson.
CHAIRMAN JACKSON: Correct.
MR. AUSTIN: And I am not saying that you can't
decide it adversely to the position of Harley-Davidson again.
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(41S) 543-J1M/481-30S8

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HARLEY DAVIDSON
96
CHAIRMAN JACKSON: It's just more adverse now?
MR. AUSTIN: It's aggravated by the fact that you
have six months less time to do it. But I'm not saying as a
matter of law you can't say we have already decided the 1982
issue and we don't have to decide it again. I'm saying you
do have to decide it again because they materially changed the
ground rules.
CHAIRMAN JACKSON: In some way that Harley-Davidson
cannot effect any change to get themselves back? In other
words, it's something that Harley-Davidson does in the normal
course of business that keeps them from — keeps them from
doing what's required by the new regs as opposed to something
that's happened with regard to technology or something of
that nature?
MR. AUSTIN: Harley-Davidson is trying to develop the
technology. It has six months less time to do it within.
CHAIRMAN JACKSON: But that's of your own choosing.
These six months, there's nothing that says you have to have
it six months earlier, no requirement that says bikes on the
road have got to be meeting the standard, I mean the six months
earlier timeframe, is it?
MR. AUSTIN: Yes, it is. The law used to say that
as, you know, bikes manufactured after January 1, 1982, have
to meet certain standards. The law now says that, you know,
bicycles manufactured in a certain model year have to meet
those standards.
CHAIRMAN JACKSON: And you can define your model
year the way you want to?
i R. WILSON
SHORTHAND RIPORTgRS
(419) M3-3194/4W-MM

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HARLEY DAVIDSON
97
MR. AUSTIN: Yes.
CHAIRMAN JACKSON: Right. So it's up to you.
MR. AUSTIN: Well, it's up to us in the absolute
sense. It's beyond our control in the practical sense.
CHAIRMAN JACKSON: Now, let's get down to why it's
beyond your control in the practical sense.
In the normal course of business, it may be difficult.
That's the point you have been making; is that correct?
MR. AUSTIN: Yes.
CHAIRMAN JACKSON: In the normal course of business
MR. AUSTIN: Yes.
CHAIRMAN JACKSON: — why is it impractical to do?
Why is it you can't do it?
MR. AUSTIN: You mean technologically or —
CHAIRMAN JACKSON: I don't think the technological
issue is involved. You decided that it was some business
about union contracts or something like that that made it
difficult.
MR. EMBREKTS: No, no. What we said is that the
model year definition is the way we conduct business. But
the fact that we cannot comply with the standard is certainly
not influenced by that.
In other words, we say we didn't see a way to comply
with it by January 1, 1982, and this makes it almost certain.
It's a different standard is the way we see it, much different
from what it used to be.
CHAIRMAN JACKSON: Because?
MR. EMBREKTS: Because of a minimum of six months
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(411) S43-3194M41 -1096

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HARLEY DAVIDSON
98
taken out of complying with the standard. We are talking
an entirely new level of technology at these levels. These
are the so-called technology levels. It was proposed as a
goal by the Board itself. The Board itself, when it adopted
the standards, recognized the fact that they had nothing to go
on, but it was a goal that they thought could be achieved and
they would reconsider it again.
But this makes it less probable, much less probable.
CHAIRMAN JACKSON: Because of your unwillingness to
redefine your model year —
MR. EMBREKTS: No.
CHAIRMAN JACKSON: — to correspond —
MR. EMBREKTS: No.
CHAIRMAN JACKSON: — with the January 1 date?
MR. EMBREKTS: Let's look at the opposite of that.
I guess you say we are at liberty to define a model year.
It seems to me that, using that rationale, we could just
continue with the '79 model year ad infinitum.
CHAIRMAN JACKSON: You continue on until January 1 —
MR. EMBREKTS: Not anymore.
CHAIRMAN JACKSON: — 1980?
MR. EMBREKTS: No. It's a model year '82 now
standard.
MR. AUSTIN: But it has a limitation that, in any
event, after January 1, '82, you have to switch around.
MR. GRAY: Maybe a little easier way of getting at
the question is why could you not begin your 1982 model year
January 1, 198 2? Why is that impossible?
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(415) 54S-31M/4t1-30M

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HARLEY DAVIDSON
99
MR. AUSTIN: I think I answered that in terms of
absolutes, that's not impossible; but as a practical way of
the manner in which Harley-Davidson has traditionally done
business, as have all, you know, of the American automobile
manufacturers, the model year changeover is in the Summertime,
and they are committed to that legally as a matter of con-
tractual obligations to their employees as well as, you know,
physically in terms of the expense of retooling and things.
You know, they would incur that twice in one year, or just
forego a model change for a whole year in order to avoid the
expense of it.
So, in an absolute sense, yes, they could change
their way of doing business. But as a practical matter, you
have not required the automobile manufacturers to do that.
You know, why should the only American manufacturer of motor-
cycles be required to do it?
CHAIRMAN JACKSON: We didn't require them to, nor
did we prohibit them from doing it. Some manufacturers have
built later than normal for their own convenience. It's
their election. Whenever you start that depends upon how
one defines your model year, and that's entirely up to you.
MR. EMBREKTS: Well, it may not be a matter of
convenience at all. Just because you are — you have always
conducted your business that way, in other words, you gear up
your production for the next year's sales and you stock at
your dealers, you stock the warehouses, you have your
production going in anticipation of the sales, and I don't
think it's a matter of convenience.
5 R. WILSON
SHORTHAND MRORTER8
(418) M3-31M461-MM

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HARLEY DAVIDSON	100
CHAIRMAN JACKSON: Well, it's really not something
that we say you have got to start your model year in June or
July of the calendar year preceding that model year. There
is nothing that says that. It's tied to when you start
producing '82 model year vehicles, motorcycles.
MR. EMBREKTS: That's correct.
CHAIRMAN JACKSON: And you can do that anytime you
want.
MR. EMBREKTS: That's correct.
MR. GRAY: With regard to the 1982 standard, is it
your only concern relative to stringency, the shortening of
the lead time, from your perspective, from a practical
standpoint, of six months? Is that the only technical
feasibility issue in your mind?
MR. AUSTIN: No. It's our belief that that
aggravates an already-existing problem, and we believe the
Administrator of the Environmental Protection Agency concurred
in that when he found that a two-gram per kilometer standard
wasn't technologically feasible before 1983.
But certainly when you — you know, when you are
breaking your back to achieve a standard that you don't think
you can achieve, when you say you have to do it six months
more quickly, that aggravates the problem.
MR. GRAY: But is that the only problem that you
are concerned about relative to the 1982 standard regarding
technological feasibility?
MR. EMBREKTS: Well, the. problem is much different
than it normally comes up. In the case of motorcycle
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(416) S4941NMS1-30M

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HARLEY DAVIDSON
101
manufacturers, it is asked that we deal with three levels of
control simultaneously, three different levels of control.
It's asked that we today deal not only with the imminent
phase-in controls, but that we somehow also cope with the
ultimate levels at the same time, whereas just coping with the
imminent standards that we are about to certify to is a very
big task for a small company such as ours. We have no staff
that we can divert, you know, for different purposes. We
have the staff working on everything all the time.
And right now, we have to stay in business in '78
so that we will be around in '82 to attempt to deal with that.
Now, as we progress to that date, we have not yet
come upon anything on our existing designs that would lead us
to conclude that we may be able to achieve it with what we now
know. It probably requires a much different technology than
what we are looking at. But we still have to get past
January 1 of '79 — I mean '78, because then the burden, you
know, lifts somewhat, and then we can really concentrate on
the next phase.
This is a much different perspective than other
manufacturers have had in this area. They were able to deal
with the standards one at a time. They were able to plan
out. So in our case, particularly in a smaller company's
case, it's much, much more difficult, and the technical
feasibility is a much more complicated question.
CHAIRMAN JACKSON: In your statement just then,
you said you have got to get by January 1, *78—
MR. EMBREKTS: Yes.
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(419) S43-31M/4S1-30M

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HARLEY DAVIDSON
102
CHAIRMAN JACKSON: — before you even worry about
June. Does that mean for that particular model year you are
worried about —
MR. EMBREKTS: Pardon?
CHAIRMAN JACKSON: — meeting the standards, that
you are going to introduce your models on January 1, '78, for
the '79 model year?
MR. EMBREKTS: No.
MR. AUSTIN: Well, the first year that the regulations
take effect is for motorcycles manufactured after December 31,
1977, so that model year isn't relevant until after the first
year of the — In other words, what we will do on January 1,
'78, we will comply for the '78 model year. But in July of
'78, we will comply for the '79 model year, so that we, within
a six-month period, will have two certifications.
MR. EMBREKTS: Two model years. We would be
discussing two model years within six months. And that's a
unique feature of the motorcycle regulation.
MR. GRAY: Perhaps there is some confusion. December
of '77, you will be producing one bike; January, '78, you will
be producing a different bike?
MR. EMBREKTS: We are required to, as the regulation
presently stands, whether we like it or not.
MR. AUSTIN: I think the confusion, I might have
added to it. What I am saying is, for the first year of
regulation, that is '78, you don't have to be concerned about
the model year. In other words, we will start manufacturing
model year '78 motorcycles shortly. But they do not have to
5 R. WILSON
SHORTHAND RePOATERS
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HARLEY DAVIDSON
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comply with the regulations until January 1 of '78, so that
the '78 model year isn't relevant. It's just the January 1,
'78, date that's relevant for compliance for the '78 standards.
But for '79, it then becomes relevant when your model year
is, and our model year is in July, so that we — you know, we
hit two model — in effect, two certification stages in the
same year.
MR. GRAY: But it's not a problem of changing
technology in midstream because, for *78, you will be producing
one bike configuration in December of '77, and change to a
different configuration in January of '78? Is that clear?
In other words, will you start producing model year 1978
motorcycles in the Summer of '77?
MR. AUSTIN: Yes. But they don't have to comply
until January of '78.
MR. GRAY: And yet midyear in that production,
change of configuration model year 1978 motorcycle, so that
it will meet the '78 standards, I mean?
MR. EMBREKTS: You have to examine what does it take
to meet those standards in terms of the '78 model year. We
are still talking sort of add-on categories of devices, which
does not have a big implication on your basic design or your
basic tooling. However, at ultimate levels, we see a
fundamental redesign of engines as we make them. In other
words, we would — whereas you could say you have an uncon-
trolled vehicle, and with add-on control, you make it a
complying vehicle at the initial phase, provided you pass
certification and the other tests.
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS	(41st 543.3194/481.30*1

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HARLEY DAVIDSON
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At the ultimate control levels, that is not the
situation anymore. We are now going back, to the root source,
and we have to redesign from ground up.
MR. GRAY: So you are saying —
MR. EMBREKTS: It's an entirely different proposition.
MR. GRAY: You are saying that for the 1978 standards,
the answer is yes; but that for the more stringent standard,
you could not carry the same basic design from one year to the
next with the transition of the more stringent standards?
MR. EMBREKTS: Yes.
MR. GRAY: The only technical possibility would be
to begin the model year production later than is normal?
Independent of the issue of practicality, the only technical —
technically possible method is to do that?
MR. AUSTIN: I think the answer is yes, assuming
that we have got the technology developed by January 1, 1982.
MR. GRAY: Okay. In pursuing the question I asked
earlier about other possible technical issues that you might
have with respect to this waiver regarding the 1982 standard,
perhaps I can phrase my concern a little more specifically.
Do you see any problem in meeting a 12-gram CO
standard in '82 if you have achieved the one-gram HC standard?
MR. EMBREKTS: Probably not.
MR. GRAY: Okay.
MR. EMBREKTS: At that point, I think the HC standard
is more stringent for our — for our bread and butter type
motorcycle.
MR. GRAY: Okay. I want to go back and ask a
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(418) 543-3194^461-3098

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general question relative to the 1978 through '80 standards
prior to the '82 standard. I didn't get a very specific
indication in listening to your testimony as to whether or not
you were supporting the waiver request or not for those model
years.
MR. AUSTIN: Our specific position is that the
California standards are either less stringent or the same as
the EPA standards. The law requires that, to justify a waiver,
California have a more stringent standard. Therefore, it's
our feeling that the October 1, 1976, waiver has to be revoked
for the standards that were in effect on October 1, 1976,
and that a new waiver cannot be granted for model years 1978
through 1981 for the standards as amended on March 24th, 1977,
by CARB.
MR. GRAY: Okay. As you well know, there are a lot
of technicalities that might make that issue more complicated
than you just summarized it if we really got into the issue of
whether or not the existing California standards and test
procedures are more stringent or less stringent than the
federal standards. But since California took the initiative
and asked the Environmental Protection Agency to essentially
rescind that waiver and let them adopt federal standards, do
you support that request of the CARB?
MR. EMBREKTS: No.
MR. AUSTIN: Let me answer two things.
1. Maybe there is some confusion about what we
mean by test procedures. But it was the California Air
Resources Board's testimony, in which we concur, that the
THOMAS R. WILSON
CERTIFIE0 3HORTHANO REPORTERS
(418) S43-S1tซ4ซ1-30M

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HARLEY DAVIDSON
106
test procedures originally adopted by CARB and those adopted by
EPA are substantially identical and that, if anything, the
former CARB procedures might be slightly more stringent.
If you mean by test procedures, enforcement proced-
ures, that is compliance testing, which in the past CARB has
argued made their standards more stringent, you know, CARB has
specifically asked that that not be considered today because
they haven't adopted any enforcement procedures for motorcycles
and that won't be done until June, so it seems to me that the
test procedures can't be thought to be more stringent. I mean
that can't be a hook on which they could hang their hat.
To answer the second part of your question, no, we
don't support duplicate enforcement by California.
MR. GRAY: Well, I guess the test procedures do
define in part the stringency of the standard.
MR. AUSTIN: Yes.
MR. GRAY: The California test procedures now are
different than the federal test procedures. The issue of
whether that difference makes them less stringent or more
stringent is not clear on its face. So for that reason, I
wanted to see if I could direct, the question more specifically
and say relative to the requests that California made of the
Administrator of EPA regarding dealing with the pre-1982
standards and test procedures, do you support that California
request and, if not, specifically why not?
MR. AUSTIN: Okay. My understanding — And maybe
this is where we are not communicating. It is my understand-
ing that CARB has asked EPA to revoke -the waiver granted on
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
C41S) M3-31MM6130M

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HARLEY DAVIDSON
October 1st, 1976, because they have changed the rules. If
that's their request, we concur in that one.
I understand that they have asked, or are about to
ask, that CARB grant them a new — I mean that EPA grant them
a new waiver so that they can enforce EPA standards and test
procedures separately in California. We do not concur in
that request.
MR. GRAY: But in the former, you do concur?
MR. AUSTIN: Yes. That the original waiver should
be revoked, we agree with that.
MR. GRAY: According to the provisions of the
requests made of CARB —
MR. AUSTIN: No.
MR. GRAY: — which basically says that that is the
request subject to no changes to the federal procedure, I
think is the basic qualification.
MR. AUSTIN: Yes. As I understand the test procedure
adopted by, or certification procedure adopted by CARB on
March 24th, if for some reason that certification procedure
were found invalid, then they would revert to their prior
procedure. We are opposed to that on basically due-process
grounds.
And let me define that somewhat if I can.
As far as I know, the only challenge made to the
EPA test procedures relates to the definition of "useful life;"
that the same definition was utilized by CARB in its prior
regulations. If the EPA test procedures were found to be
invalid because the useful life definition wasn't in accordance
THOMAS R. WILSON
CERTIFIED SHORTHAND IMPORTERS
I41S) S44-31M/4S1-30M

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HARLEY DAVIDSON	-LUO
with what was required by law, then you would automatically
revert to the CARB test procedures which used the same
"useful life" definition, and the motorcycle manufacturers
would have to be foreclosed from ever having an opportunity to
challenge those regulations because they didn't exist until
such time as the EPA's didn't exist.
So you have sort of a springing — in real property
terms, kind of a springing use. In other words, you have no
procedure, and all of a sudden, it springs up and affects you
without any opportunity to be heard with respect to it and
without any opportunity to find out whether they are really
valid regulations.
MR. GRAY: Then, in essence, what you are saying is
that you feel that the earlier waiver should be revoked on
the basis that the federal standards, the pre-1982 standards,
are less stringent than the federal standards?
MR. AUSTIN: No. We feel that they should be
revoked because the California standards are not more stringent
than EPA's, and we believe that's the statutory requirement.
MR. GRAY: You believe that, for example, the ten-
gram per mile HC standard in 1982 is — for large two-stroke
bikes is not more stringent than 14, I think it is, that the
federal standard allows for the large bikes?
MR. AUSTIN: Well, that's the '78 standard. If you
look at Table I, which is the table which was submitted with
our testimony, it shows the calculation of Harley-Davidson,
which shows overall there would be a 46% less reduction in
hydrocarbons if you use the CARB standards than if you use the
$ R. WILSON
SHORTHAND REPORTERS
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HARLEY DAVIDSON	-Luy
EPA standards.
Now, you could go by motorcycle-by-motorcycle and
pick out some where CARB's were more stringent and some where
EPA's is more stringent. But I don't think, that's the — you
know, the regulation wasn't adopted on a motorcycle-by-motor-
cycle basis, nor was the waiver granted on that basis.
MR. GRAY: What about with regards to the durability
testing? Do you feel that the so-called half-life testing
required by the federal regulations is not more stringent than
the requirement for full-life testing by the CARB?
MR. EMBREKTS: Excuse me. As a matter of fact, at
the present time, that's an option; it's not a requirement.
In other words, if you somehow can show that, by
testing up to that point, you can project that you would meet
the standards, only then you would be allowed to stop the test
and say you have demonstrated the capability of doing that.
But I think, as you will go on later, that this may or may not
become cut off at that half point. And, indeed, the federal
test procedure envisions the entire test to be conducted until
such a time where, at the so-called final distance, you have
demonstrated by actual testing that you "have met the standards.
So it's not really a requirement? it's an option
provided you can meet certain criteria.
In that sense, both test procedures are the same,
except with this attached option that the federal procedure
carries, which shows if it can be demonstrated beyond a
reasonable doubt, that the other half of the test will
demonstrate nothing to oppose the conclusion arrived at from
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HARLEY DAVIDSON
110
the previous half, then you stop, and it's been certified.
And I think it's an option that was not considered by CARB
because traditionally their test procedures have been one or
two revisions behind the federal test procedures.
As a matter of fact, the CARB test procedure was
designed to be identical, was intended to be identical, a mirror
image of the federal test procedure, because they did not want
to put themselves in a position of rewriting EPA test pro-
cedures. They said so repeatedly on the record, and they
said they would never entertain any questions on that subject
because they wanted not to be in a position to rewrite EPA —
what they considered EPA's test procedure.
CHAIRMAN JACKSON: I have two questions here,
gentlemen, from the CARB to Harley-Davidson.
One is, based on your statement, the second paragraph,
Page 7, I believe, that EPA and the CARB test procedures are
virtually identical, and we presume that the change in test
procedures does not have a significant impact on Harley-
Davidson' s ability to meet the 1.0 grams per kilometer
standard.
MR. AUSTIN: What we said in our testimony was that
the two test procedures were intended to be the same. CARB's
got set in place prior to the time that EPA made certain
additional amendments. And that since they were slightly
different, you would have to have a period of time and
experience with both test procedures before you could make a
determination that one was more stringent than the other. And
we feel the burden is on the Administrator to decide
THOMAS R. WILSON
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HARLEY DAVIDSON	111
affirmatively that one test procedure is more stringent than
the other one. We haven't had any experience with the test
procedures, either, enough to form an absolute opinion that
it's easier to meet the 1982 standard with one procedure or
the other procedure.
Now, to the extent that, you know, the concept of
production year that's written into the procedures as well as
the standards, then it's going to be harder to comply with the
CARB procedures because that gives us less time to do it in.
But, other than that, as Mr. Embrekts has said and
as I have said, we don't think that anybody's had enough
experience actually working through these test procedures to
form an opinion that one is going to be more stringent than
the other.
MR. EMBREKTS: Excuse me. You see, relating to test
procedures, it's a document, really a forecasting document,
on which you need statistical data to find out what effective-
ness did it have on what you attempt to do, and you need
historical data to reach any conclusion, whereas in the case
of standards, you know at the moment you adopt them which of
the two would be more stringent.
In terms of test procedures, let's assume now that
both result in meeting the standard, what would be the
conclusion? Would you count the number of pages? So I think
what you have to look at, if both result, even though written
perhaps differently, in achieving the standard, then you really
have no conclusion on that point.
So I think you need some historical background, some
THOMAS R. WILSON
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HARLEY DAVIDSON
112
statistical data, that shows under this set of circumstances
you have an indication like this, and under another set of
circumstances, you have a slightly different set of con-
clusions, and then you compare the two.
But you need time to draw that conclusion. No one
has any experience with it right now. We don't; EPA doesn't,
nor does CARB. I think we will all know a few yeari from
now.
CHAIRMAN JACKSON: Can you say, then, what specific
changes to the test procedures significantly affect your
ability to meet the one-gram per kilometer standard?
MR. AUSTIN: I think that's the same question asked
another way, and maybe I can answer it another way.
Just reading the test procedures doesn't tell you.
There is nothing in any one particular sentence in the test
procedure that will tell you a yes-or-no answer to that
question. And merely changing one sentence here or there
probably won't affect it. They both have for the goal, for
a common goal, the meeting of the standards. Whether one
achieves the goal and the other one doesn't, you don't know.
CHAIRMAN JACKSON: Another question from the CARB is:
is it your opinion that the technology used to achieve a one-
gram per kilometer standard will result in compliance with
the federal 12-gram per kilometer carbon dioxide standard
without any additional hardware or change in design?
MR. AUSTIN: I don't know if that was asked before
you had an opportunity to ask your question. Seemed to me
that had already been answered.
THOMAS R. WILSON
CERTIFIED SHORTHANO REPORTERS
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HARLEY DAVIDSON
113
CHAIRMAN JACKSON: Maybe it had. I was out of the
room for a minute.
MR. AUSTIN: Yes.
MR. EMBREKTS: The response to that was we considered
the one-gram hydrocarbon standard to be more stringent, but
we now are really, under the present circumstances, regulated
by two agencies simultaneously.
For instance, if you consider the waiver, the
October 1 waiver, we essentially — we could market unregulated
motorcycles in the state because it — and these would be our
four-stroke motorcycles, whereas we would have to have con-
trolled motorcycles to meet the carbon monoxide standard.
So in one case we are talking about an unregulated
motorcycle marketed in the states as of, say, manufactured
after January 1, '78, and in the other case, a regulated
motorcycle with controlled hardware.
As an example, the EPA zero conformity, in the
instance of the four-stroke motorcycle would entirely relate
to hardware in achieving carbon monoxide control. So if the
state wanted to inspect whether or not the hardware that was
specified on the certificate exists on the marketed motorcycles
it would be relating to an entirely different matter, one for
which they don't even have a standard.
MR. AUSTIN: In part, the answer is that, you know,
the standards measure what comes out the tail pipe. But that
in developing an engine that meets those standards, you don't
necessarily put on one piece of equipment and say this piece of
equipment relates entirely to hydrocarbons and this one relates
THOMAS R. WILSON
CERTIFIfD SHORTHANO REPORTERS
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HARLEY DAVIDSON
entirely to carbon monoxide. You try and develop an engine
that burns in such a fashion that you meet both standards.
And so it's hard — it's hard, you know, the question
sort of asks you to play off carbon monoxide against hydro-
carbons. It's got to be a merger of the two technologies to
achieve an engine that doesn't produce either one, and it's
hard to answer that, you know, by adding something that reduces
hydrocarbons or that's going to increase carbon monoxide.
It can't, and vice versa.
CHAIRMAN JACKSON: Is it fair to say that you don't
know? Is that your answer?
MR. EMBREKTS: I beg your pardon?
CHAIRMAN JACKSON: Is it fair to say that you don't
know?
MR. GRAY: I believe you said a minute ago, as far as
you know, you thought the one-gram HC per kilometer level,
HC control is limiting and not a 12-gram CO standard.
MR. EMBREKTS: Of the two —
MR. GRAY: That's what I understood you to say
earlier.
MR. EMBREKTS: At the present time, based on the
knowledge that we have today within the confines of, say, our
own organization, and there may exist conflicting evidence to
that, but within —
MR. GRAY: Yes. Based on what you know at the
present time.
MR. EMBREKTS: Because that is the second level of
the federal standard.
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CERTIFIED SHORTHAND REPORTERS
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HARLEY DAVIDSON	-1"
MR. GRAY: Right.
MR. EMBREKTS: And we don't see the fundamental
implications to our design such as a new engine, radical design,
which essentially is the lead time constraint. It's not the —
Once we depart from the add-on type technologies, we depart
into lead time as a real constraint. You know, talking engine
fundamental blocks, huge blocks of design time.
CHAIRMAN JACKSON: With regard to the question
submitted by CARB in terms of the stringency of the standard in
terms of the change in the test procedures, CARB has asked
again whether your answer was yes or no to that question. The
reason they are doing that is because, when this testimony
first started, I asked the question that you are not really
concerned about the change in test procedures being making
this the '82 standard more stringent; all you are really
concerned about is the model year definition and the lead time
it takes away from you, given that you want to continue
business as in the past. And you made it very clear, at
least to me, in response to that question that you didn't feel
that the changes in the test procedure were going to make any
difference at all on the stringency of the standard. And I
think that question was virtually reproduced by the CARB, and
your answer came out appearing to be somewhat different. You
started talking about this experience and the statistics and
other things.
MR. AUSTIN: Let me try again. I don't think that
we were different.
What I intended to say was that the test procedures
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(411) S4M1S4/4S1-MS8

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HARLEY DAVIDSON	ฆL"LO
were not the important factor in evaluating the stringency
question. You know, as far as we know now, you know, it's
the technological feasibility of the one-gram standard. The
test procedures are both designed — assuming that EPA also
had a one-gram standard, everybody's test procedure would be
designed to make sure that the manufacturer was really
achieving the one-gram standard. You can't read the test
procedure, the words put down in the test procedure, assuming
they are carefully drafted and there are no glaring errors,
and determine that one is going to do it and the other one is
not going to do it. You just have to have experience with
those.
And it's our position that the Administrator, faced
with the obligation of making an affirmative finding that one
test procedure is more stringent than the other to support a
waiver, cannot make that decision unless there's been
experience and, therefore, all I intended to say was that the
Administrator cannot, given these two procedures, make a
finding that the CARB procedure was more stringent than the
EPA procedure and, therefore, the Administrator could not
base a waiver decision on -the test procedures.
CHAIRMAN JACKSON: Okay. Now, aside from what you
are telling us that the Administrator has to do, can you tell
us what your opinion is about the changes in the procedures
as it relates to the ability to meeting the one-gram standard?
MR. EMBREKTS: Well, before we get to the one-gram
standard, we really have to worry about the 1978 standards,
Phase 1, for which California wants us to go through a
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HARLEY DAVIDSON
117
certification as it relates to their specific purposes, even
though the uncontrolled vehicles that we make meet and would
not require any control hardware. And to some extent, for
some models, that is also true for the '78 standards. And
then it would propose to enforce, when they start looking at
what essentially amounts to the federal standard to which they
have no standard, that's the carbon monoxide standard, and
essentially we wind up regulated by dual authority.
The test procedure itself offers far less flexibility
for comparison than a staff choice, for instance, on an engine
family or the configuration that needs to be tested. That
alone could override this entire discussion because the staff,
the staff decision — Let's assume now California were to
certify independent of EPA, or perhaps they would disagree with
EPA on what the engine family ought to be, or perhaps what
configuration it ought to be or what add-on items ought to —
as options to be tested. That probably has as much, if not
more, influence, and we are now talking about certification
testing, the test procedure for certification.
CHAIRMAN JACKSON: You make the presumption that
they all have to meet the standards. How can that make any
difference? We are not talking about bikes that are selected
* that meet the standards and bikes that aren't selected that
don't meet the standards. They all got to meet the standards.
MR. EMBREKTS: That's right.
CHAIRMAN JACKSON: So how can that make any differ-
ence?
MR. EMBREKTS: I think that's —
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HARLEY DAVIDSON
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CHAIRMAN JACKSON: The one thing common about the
whole exercise is the standard. They got to meet the
standards. All of them got to meet the standards.
MR. EMBREKTS: That's what we say. I think we have
been saying it all along, that you really — the conclusion on
the test procedure alone, in our mind, CARB did not change test
procedures; they changed standards and the times when these
standards are effective.
CHAIRMAN JACKSON: I got the point about the time,
but I don't know how they have changed the standard as it
relates to the change in test procedures.
MR. AUSTIN: Maybe I can answer your question. I'm
not sure. But as far as we know from reading and comparing the
two test procedures, there is no one, you know, sentence or
paragraph or particular requirement of the CARB procedures
which would make it any more or less difficult to meet the
1982 standard than of the EPA procedures.
MR. GRAYs I have one more question. As far as the
lead time is concerned, the lead time difference with respect
to the CARB requesting to adopt the model year instead of the
calendar year for the effective date of the '82 standard. If
I understand your process, the process that you described
earlier, you would begin production of 1982 motorcycles,
model year motorcycles, in the late Summer of 1981.
MR. EMBREKTS: Certified production. We would be
conducting certification tests presumably earlier that year.
MR. GRAY: Right.
MR. EMBREKTS: So we would have to be ready. There
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(418) MM1MH61-MM

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HARLEY DAVIDSON
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would be certified production approximately July 1.
MR. GRAY: But the key is that you are ready to
begin production on a certain date, and you target for July 1
of 1981.
MR. EMBREKTS: That's what we are talking about.
MR. GRAY: I still have a hard time understanding the
practical real difference between the existing situation that
exists with the existing CARB regulations and the situation
that would exist with the implementation of a model year
standard relative to your concerns. That is as the CARB
regulations now stand, you would still have to begin production
of 1982 model year motorcycles in July, and then beginning
January 1, 1982, you would be faced with a one-gram standard.
And earlier you said for the kind of technology required to
meet that standard, you would require a different design
entirely, necessitating the introduction of that design at the
beginning of the model year.
So that's almost circular. It brings you back to
say that, from a practical standpoint, the existing requirement
is that you begin to introduce the '82 technology on January 1,
1981. Is that logic faulty?
MR. AUSTIN: '82, I think you meant to say.
MR. GRAY: No, '81.
MR. EMBREKTS: Well, are we saying that one kills
and the other kills dead?
MR. GRAY: No. I'm asking you to clarify that
course of logic, which is what I summarized from the previous
discussion that was still troubling me. That is that in any
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(4IS) M341M/4S1-30M

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HARLEY DAVIDSON
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case you have to start model year of 1982 production beginning
July 1, 1981, and yet earlier you had said that the technology
required to meet that level would be so significantly different
than the technology of the 1981 motorcycles that it would
essentially require the introduction of that technology
beginning with the introduction of the model year production.
So what I am saying is it's difficult for me, there-
fore, to see any practical difference between the current
CARB requirement and the requirement that the standard begin
with the model year as it deals with Harley-Davidson.
MR. EMBREKTS: The practical difference is that you
people appear to be telling us in 1977, why don't you plan
now on your model year beginning January 1, 1982, because
that will give you six more months just in case you can't
make it, and we — and that if that were — the difference
between the two, I guess it would — it could be entertained,
you know, but it seems to me that you have to look at the
requirement itself, that one is different from the other in
the sense that what it requires us to do, what one required us
to do and what does the other require us to do. And to say
that it's no change is not even supported by your own commen-
tary because you say you ought to change to accommodate it.
MR. GRAY: But granted —
MR. EMBREKTS: So there is a significant change.
Perhaps we may not agree as to its — you know, depending on
the side of the argument you pursue, but it is a very
significant change.
MR. GRAY: It's definitely a change in terms of the
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CERTIFIED SHORTHAND REPORTERS
(41S) 543-31*4/461-3098

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HARLEY DAVIDSON
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requirement. But as I understood your discussion, it seems a
bit academic with respect to the type of technology required
to meet that level of control and the constraints, the
practical constraints, that Harley-Davidson has on the intro-
duction of a model year, of a new model year bike.
In other words, it seemed to'be saying that the
technology required for the 1982 standards is such a departure
from previous technology that that in itself would require that
technology to be introduced at the beginning of a model year as
opposed to, for example, the earlier standards, which you said
were more typical of add-on technology and, as such, they
could be introduced in the middle of a model year's production.
And it just seemed to me like that the current
requirement that says that the '82 standards become effective
January 1, 1982, is little different as it relates to Harley-
Davidson 's situation than the requirement that the standards
become effective with the introduction of the model year 1982
because you said that, for that technology, you will have to
introduce it at the beginning of the model year anyway. And
that's the — you know, the difficulty that I had with under-
standing, you know, the practical aspects of the argument.
Certainly on its face, it's a very different
requirement.
MR. AUSTIN: I think the only practical aspect, if
I understand what you are saying, is that we should, since we
have to put out a new motorcycle anyway, we ought to put it
out January 1, 1982, instead of July, 1981.
CHAIRMAN JACKSON: You may put it out anytime you
THOMAS R. WILSON
CERTIFIED SHORTHANO REPORTERS
(41S) 343-31MMSMOM

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HARLEY DAVIDSON
want to.
MR. AUSTIN: As a practical matter, you know, by
contract and otherwise, the Harley-Davidson plant shuts down
in July. And what you are suggesting is that, you know, they
shut down for a month in July, but you don't change over your
tooling until the end of the year, and then do the tooling
changeover at the end of the year. That's just two shutdowns
and, you know, it's not feasible practically. But it's
possible, yes. We conceded that.
MR. GRAY: Really what I was saying is a little
different than that argument, and it's just simply that you
had made the statement that the technology required for that
level of control would be so new that it would require its
introduction at the beginning of the model year. And you
had, in addition, said that your model year, for practical
considerations, must begin July lf .1981, in this case. And
so those two facts seem to go together and say that, inde-
pendent of when the '82 regulation goes into effect, that
Harley-Davidson will produce 1982 motorcycles meeting the
1982 standards beginning on January 1, 1981.
MR. THOMAS AUSTIN (CARB): July.
MR. GRAY: I'm sorry. July 1.
CHAIRMAN JACKSON: Either with the CARB reg or the
changed reg.
MR. GRAY: Either you can wait or you can't. And
if you can't, you have got to introduce it in July in either
case. And that was the sort of circular logic that I was
brought to in listening to the statements. And I was just
THOMAS R. WILSON
CERTIFIED SHORTHANO REPORTERS
(41S) MS-SIMMtl-SOM

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HARLEY DAVIDSON	123
asking for a practical situation, has it really changed with
respect to Harley-Davidson, because it didn't appear to.
MR. EMBREKTS: As a legal requirement, on the face of
it, it doesn't appear to, either, using that analysis to the
end because you are saying that January 1 would be the effec-
tive date.
MR. GRAY: Well, I'm saying that if we were to
analyze that issue with respect to Harley-Davidson, we would
have the one bit of testimony that said for the technology
required, we would have to introduce it in January no matter
what — I mean July of '81 no matter what.
MR. EMBREKTS: I think that's what we are saying,
yes.
MR. GRAY: And so I — for that reason, it's
difficult for me to. see how that would impact Harley-Davidson
in any case, that is how the effective date model year
introduction versus January 1 of 1982 would, in a practical
sense, impact what you can or cannot do.
MR. EMBREKTS: Well, it could, in the sense that
it is conceivable that under those circumstances, the
practical — you would be conducting your certification
testing and, say — let's assume now that you were to fail it.
I think the difference between the two would be that perhaps
some time — some type of tuning, assuming that it would not
be a fundamental flaw such that cannot be corrected, then in
one case we are talking about an introduction of the certifica-
tion would be attempted in any case earlier in that same year.
Let's say the fundamental technology is in place,
I R. WILSON
SHORTHAND REPOHTIRS
<41ซ) 543-31MV461-30W

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HARLEY DAVIDSON
but for some reason the certification itself cannot be
accomplished up to July 1 for some reason. Now, let's further
assume that some adjustment allows that to be accomplished.
Then we now say you now have to continue certification to what
already is your basic '78 — say your new model year motorcycle.
Meanwhile, all of your projections for that particular year
you have geared up your entire organization for this new
introduction, that all goes into abatement and you now continue
certification, the cut-off point in any case appears to be
January 1, '82. So this is — these are the extra six months
that we are talking about.
CHAIRMAN JACKSON: But they are not extra under
either — they are not different under either program.
MR. AUSTIN: I think what you were saying is that
you can market your 1982 model year motorcycle, which would
be the new motorcycle, from July until December 31st, 1981,
in compliance with 1981 production year standards, whereas
when you switch to a model year, you cannot market it during
that period of time because you have to meet a model year
standard.
MR. GRAY: I think you can as long as you continue
to call it the 1981 model year.
CHAIRMAN JACKSON: That's right, but they are not
going to do that. They are trying to make this argument
about the organization gearing up to selling new model year
and all that stuff, right?
MR. AUSTIN: Well, it's a matter of good faith.
I suppose anybody could lie and say that, you know, this is
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SHORTHAND REPORTERS
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HARLEY DAVIDSON	125
our 1982 model, but it's really 1981.
CHAIRMAN JACKSON: No, no, no.
MR. AUSTIN: You know, that's — certainly the
purpose of the law isn't to encourage manufacturers to be
basically dishonest.
CHAIRMAN JACKSON: No, that's not what we were
asking and certainly not what we mean. We are saying if you
call it a 1982, it's a 1982 instead of a 1981 standard.
MR. AUSTIN: Yes.
CHAIRMAN JACKSON: I'm saying if you don't call it
a 1982 and you say you haven't started your Job 1 for 1982,
then it's not going to be meeting the '81 standards until
January 1.
MR. AUSTIN: Right.
CHAIRMAN JACKSON: Then your option's gone away.
MR. AUSTIN: All I think Mr. Embrekts was saying
was that the major point for a production year, you could
market your 1982 vehicles honestly. We could say this is our
1982 motorcycle even though it didn't yet comply with the
1982 certification plans, even if you got certification before
1982, whereas if you go by a model year requirement, you can't
honestly start selling your 1982 model until it gets certified
as a 1982 model. That's the only difference.
CHAIRMAN JACKSON: I don't really think you could
have done that because of the umbrella of the federal law as
it would apply to those bikes that were being made in 1981.
MR. AUSTIN: That's right.
CHAIRMAN JACKSON: In other words, then you would
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
<ซ1t) MJ-31S4M81-30M

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HARLEY DAVIDSON
126
have the feds to deal with as opposed to just California.
MR. AUSTIN: I think that's why the question was
asked whether it was the CO standard or the hydrocarbon
standard that was the difficult one to meet.
CHAIRMAN JACKSON: Well, I don't think I have heard
an adequate explanation in response to the point that's been
raised here about the difference just by virtue of what you
have said. Mr. Gray has made a good point, I think, that
there doesn't seem to be any real difference between trying to
meet the 1982 standards under the California definition of
model year versus the federal definition of model year. I
think he's made that point very vividly, that you make the
point about your contractors' shutdown. Going with the
scenario that we have been presenting here, you would have to
do that anyhow under a planned basis. Have you started
negotiating with the labor unions to change those contracts?
MR. AUSTIN: I don't think it adds to the record to
say over again what we have said. I thought Mr. Gray agreed
with us that there was a legal difference between the productior.
year and the model year. Perhaps he doesn't.
MR. GRAY: You can delay your model year introduction
to the end of a calendar year and it would be the same situa-
tion. If you ran into certification problems in the Summer of
1981, then you could continue to produce 1981 model year
bikes until the end of that year, at which point you would have
to have certified a 1982 bike or cease production essentially.
So, you know, in the ultimate/ the definition would
become one.
THOMAS R. WILSON
CERTIFIID 3HORTHANO REPORTERS
(418) 543-3194/481-3098

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HARLEY DAVIDSON
127
MR. AUSTIN: The only difference is in the situation
you have last hypothecated, Harley-Davidson would have, you
know, to shut down for a month in July for no purpose, whereas
if you reverse the situation, they could switch over their
model year as planned during that shutdown and still have the
six months to try and get that production year into compliance
with the standard that became effective six months later.
CHAIRMAN GRAY: But you would have another shutdown.
You would have the shutdown associated with the introduction
of the new technology to meet the '82 standards January 1
under the CARB procedure.
MR. AUSTIN: Yes. I think what Mr. Embrekts
hypothesized, though, was a situation where you developed a
new motorcycle which you thought would satisfy the '82
standards, but because of minor, you know, adjustment problems
with the new motorcycle, you didn't get your certification
until July of '81, and you could mess with those adjustments
for a six-month period and get your certification by January 1,
which is the date you are required to have it. That doesn't
require any shutdown. It just means that, you know, you make
the adjustments that you need to make.
CHAIRMAN JACKSON: What bikes would you be producing?
MR. AUSTIN: What?
CHAIRMAN JACKSON: You would be producing 1981 bikes
and calling them 1981 bikes?
MR. AUSTIN: You would be producing '82 bikes and
calling them '81, but you don't have to comply with the '82
standards until the 1st of January,
5 R. WILSON
shorthand reporters
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HARLEY DAVIDSON	128
CHAIRMAN JACKSON: Not the way the umbrella of the
federal law folds over that.
MR. AUSTIN: That's why I said I thought CARB had
asked the question whether CO standards are harder to meet
than the hydrocarbons. We said the hydrocarbon standards
would determine that. Presumably we would meet the five-gram
EPA hydrocarbon standard and the 12-gram EPA CO standard, and
the only standard we have left to meet is the one-gram
hydrocarbon, which is the California edition.
MR. GRAY: You would have to recertify for the
federal levels for the new bikes for the '82 model year
production for the few months that you would produce it, and
then have to recertify again for the introduction of the
change required for January 1, 1982.
MR. AUSTIN: Oh, yes, that's the basic reason we
have objected to duplicate certification in California and the
federal levels. You always run the risk of having to do
things twice.
Now, in *82, there is some reason for that because
they have a different hydrocarbon standard. In other years,
there isn't. And we would have to take that risk assuming we
couldn't — you know, we couldn't meet the tightest standard
initially. But at least we would have the legal option of
trying to meet it for another six months.
MR. EMBREKTS: In earlier years, really a certificate
of conformity for our bikes is not really necessary for sale in
California if it were a hydrocarbon standard alone. It is
required to meet the carbon monoxide standard, and California
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(415) S43-31M/441-30M

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HARLEY DAVIDSON
is out of that anyway. But certainly we could market
bicycle configurations that failed the EPA tests all the time
if it were the hydrocarbon standard alone, so why not?
CHAIRMAN JACKSON: Where are you going to market
them?
MR. EMBREKTS: I beg your pardon?
CHAIRMAN JACKSON: Where are you going to market
them?
MR. EMBREKTS: Say in California.
CHAIRMAN JACKSON: That's still the United States.
MR. EMBREKTS: Well, we sometimes ask that, too.
Well, you see —
CHAIRMAN JACKSON: That's why we had the question
about the CO standard is because, even though California is
given a waiver, or even if they don't have a waiver, you have
to meet the federal standard all the time everywhere.
MR. EMBREKTS: That's why we don't see the waivers
at this time anymore because there are two fundamental
different control strategies. California deliberately embarked
to control two-stroke motorcycles, and the record is quite
clear on that and how they did it,, and the fact that they had
philosophical differences with the EPA on non-standard dis-
placement, sliding and all that, whereas the EPA strategy is
to control all motorcycles. So essentially now we — we
would be discussing a part of the standard with both agencies,
and then the configuration on the other half of the same
emissions with one agency alone, and we would be under juris-
diction of both.
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(41S) S43-31M/4C1-30M

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HARLEY DAVIDSON/YAMAHA
130
CHAIRMAN JACKSON: Mr. Austin, given that we have
had a considerable amount of discussion on this business about
the effects of the difference in model year versus calendar
year for application of the standards, if you feel any need to
supplement the record with any more expanded explanation, we
would certainly welcome it, showing in greater detail what
kind of implication it would have on Harley-Davidson1s ability
to deal with their union, economic impacts, those kinds of
things that you could quantify such that we could better
assess the impact of that particular aspect of the reg.
MR. AUSTIN: That's prior to June 10th, did I hear
you say?
CHAIRMAN JACKSON: That's right.
MR. AUSTIN: All right. Thank you very much.
CHAIRMAN JACKSON: Thank you, sir.
MR. RUSSELL JURA: Good afternoon. My name is
Russell Jura. I'm representing Yamaha Motor Corporation - USA.
On July 15, 1975, the California Air Resources Board
(CARB) adopted exhaust emissions regulations for motorcycles.
The Environmental Protection Agency (EPA) granted the CARB a
waiver to enforce these standards on October 7, 1976. In
January of 1977, the EPA promulgated national motorcycle
exhaust emissions standards, and in consideration of those
national standards the CARB. revised its motorcycle standards an
procedures on March 24, 1977.
Based upon events subsequent to the October 7 grant
of the CARB waiver, the EPA indicated that it would hold an
additional waiver hearing to consider continued California
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
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YAMAHA
131
compliance with the original, October 7 waiver. This hearing
is this additional hearing to consider that continued com-
pliance .
At this hearing Yamaha would like to comment upon:
(1)	The continued validity of the waiver for the
1978-81 model years, and
(2)	The continued validity of the waiver for the
1982 and subsequent model years.
Section 2 09(b) of the Clean Air Act states that a
waiver may be granted only if certain conditions are met. One
of these conditions is that the California standard be more
stringent than the applicable federal standard.
In the initial waiver grant the Administrator found
that there were no federal standards, and thus the California
standards were obviously more stringent than the non-existent
federal standards. However, with the promulgation of federal
standards and the adoption by California of those standards
for the 1973-81 model years, it is questionable if a finding
of greater stringency can still be supported for the 1978-81
model years.
The first reason why such a finding of greater
stringency fails is that California has adopted only a hydro-
carbon standard while the EPA has promulgated hydrocarbon
and carbon monoxide standards. Since a greater total
reduction of all pollutants will result from the control of
both carbon monoxide and hydrocarbons than just from the
control of hydrocarbons, the EPA standard is more stringent
as a whole than the CARB standard. Thus, the Clean Air Act
5 R. WILSON
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132
YAMAHA
requires that there be no CARB waiver.
Further, in terms of technological modifications,
greater modification is required to meet the EPA standard than
the CARB standard. Uncontrolled four-stroke motorcycles
average 2-3 grams per kilometer hydrocarbons, and 20-30 grams
per kilometer carbon monoxide. No modification is required
of these vehicles for the 1978-81 model year to meet the CARB
standards. This fact is reflected in a statement made by Dr.
Robert Sawyer at the July 15, 1975 hearing at which CARB
adopted motorcycle exhaust emission standards. If I may quote
from Dr. Sawyer, he stated:
"What we are saying is that we are going to have
some standards for '78 that all 4-strokes will meet,
and half the motorcycles on the road ought to meet that
standard. Then for '80 we are going to have a standard,
even if it requires (inaudible) of two-thirds. Again,
all 4-strokes are going to meet that 1980 standard.
They meet it today. So it will not be until 1983 that
the 4-strokes get any suggestion of control."
Some control is necessary, however, for four-strokes
to meet the EPA carbon monoxide standard of 17 grains per
kilometer. This standard is below the average four-stroke
uncontrolled carbon monoxide emission, and engine modification
is necessary to meet the standard. Thus, technologically, the
EPA standard is more difficult or stringent than the CARB
standard as regards four-stroke motorcycles? and thus the EPA
standard is, within the meaning of Section 209(b), more
stringent than the CARB standard.
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(41#)

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133
YAMAHA
For many two-stroke motorcycles the modifications
necessary to meet the CARB hydrocarbon standard also will
enable the vehicles to meet the EPA carbon monoxide standard.
However, this is not true for all two-strokes. Some two-
strokes, particularly the large vehicles require additional
modifications to those done for hydrocarbon control to meet
the 17 gram carbon monoxide standard. This situation again
emphasizes that the EPA standard is technologically more
stringent than the CARB standard; and thus continuation of the
CARB waiver would violate Section 209(b).
A second reason for finding that continuation of
the waiver will violate the Clean Air Act is that the CARB and
EPA hydrocarbon standards are identical for 1978-81. If the
standards are identical then the only basis for a finding of
greater CARB stringency must be based upon a more stringent
CARB compliance and inspection procedure. Such a finding is
based upon reasoning that a more stringent compliance and
inspection procedure results in lower emissions levels for the
vehicle population.
It cannot be said that the California procedure,
for which there is not a specific and more stringent com-
pliance and inspection procedure, is more stringent than the
federal procedure. Such a specific procedure will be proposed
by the CARB staff in June. As stated in the staff report to
the CARB on March 24, Page 10, "The staff plans to propose
production motorcycle enforcement procedures and evaluation
techniques for consideration at the June Board meeting".
However, a future proposed procedure cannot be
THOMAS R. WILSON
CERTIFIED SHORTHANO REPORTERS
(41ft) S43-3194M61-30M

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YAMAHA	J--i*
considered. Just as at.the first waiver hearing when the Hearin
Officer refused to consider whether the proposed EPA motor-
cycle standard would be more stringent than the actual
California motorcycle standard because a proposed standard has
no force in law, so must the Hearing Officer at this hearing
refuse to consider the proposed California compliance and
inspection procedure, because the California proposal has no
force in law. And, without a special California compliance
and inspection procedure the waiver is not being fulfilled
because the CARB standard is not more stringent than the EPA
standard. The CARB has indicated that it recognizes this
point, and will apply for a waiver after it has adopted its
compliance and inspection procedure for motorcycles in June
of this year.
The CARB has adopted the. viewpoint that the 1978-81
model year waiver should be revoked. The only condition to
such revocation that CARB requests is that if the federal
procedure is determined to be unenforceable, that CARB be
allowed to revert to the pre-March 1974 — Excuse me — the
pre-March 24, 1977, CARB procedures.
Yamaha objects to this condition and possible
reversion. Such a reversion could put ฃamaha in an untenable
position because Yamaha could not have the necessary time to
complete the CARB testing if the EPA procedure were voided.
Such position is precluded by the Clean Air Act, which requires
adequate lead time before a CARB standard may be enforced.
Yamaha does not object, to such reversion with a provision that
CARB may enforce its standards only after Yamaha has had the
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CERTIFIED SHORTHAND REPORTERS
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necessary lead time to comply with the reverted CARB procedure.
Dealing with the 1982 and subsequent model year
standards, we would like to state the following:
On March 24, 19 77, when the CARB adopted the federal
hydrocarbon standards for the 1978-81 model years, the CARB
replaced its calendar year designations for the applicability
of emissions standards with model year designations. One
result of this action was for CARB to change the applicability
of its one gram hydrocarbon per kilometer standard from motor-
cycles manufactured on and after January 1, 1982 to 1982
model year motorcycles.
The importance of this change is that motorcycle
model year production usually begins nine to ten months prior
to the calendar year. Thus, 1982 model year production will
begin in approximately March of 1981. By changing the
applicability of the one gram standard to the 1982 model year
the CARB has thus advanced the applicability of the one gram
standard and reduced the lead time to comply with the standard
by approximately nine to ten months.
According to the requirements of Section 209(b) a
waiver may not be granted if either the necessary technology is
not available, or if there is insufficient lead time to apply
technology to production vehicles. The Administrator has
found in his October 7, 1976 decision that the technology to
meet a one gram standard requires conversion to four stroke
motorcycles. The Administrator in the first waiver decision
found that it was possible to convert sufficient models
to four stroke by January 1, 1982 to meet the basic California
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market demand for motorcyles after that date.
However, Yamaha does not feel that the basic market
demand can be met by the 1982 model year by conversion to four
stroke. Based upon the Administrator's previously accepted
figure of the conversion of two modesl to four stroke per year
(beginning three and one-half —
There is an error in my typed copy here. We will
just skip that.
Since an incomplete half conversion cannot be
produced or marketed, this one and a half models really means
two models per manufacturer that cannot be converted by the
1982 model year. As there are three major Japanese two stroke
manufacturers which must convert to four strokes, this means
that six total models will not be converted by the 1982 model
year that would be converted by January 1, 1982.
This alone should be a basis for not advancing the
one gram standard to the 1982 model year. The lack of these
six models, particularly when combined with the lack of models
that will not be converted even by January 1, 1982, will create
gaps in the three product lines, which will leave the basic
market demand unfulfilled.
This lack of models will be especially acute in the
dual purpose market. To date, only one new four-stroke dual
purpose motorcycle has been introduced by the three major
two-stroke manufacturers. The other four-stroke introduction
by these manufacturers have been on-road bikes only.
The dual purpose market represents approximately
35% of the total street legal market', quoting from the 1976
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CfflTIPIRD SHORTHAND REPORTERS
<41ป) 543-31M/481-309*

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R. L. Polk registration figures, so availability of this type
of vehicle is essential to the basic market demand. Further,
a street only vehicle is not a substitute for a dual purpose
vehicle because the dual purpose vehicle has an off-road
capability which the street only vehicle does not have.
The lack of our four-stroke dual models will be
alleviated by some conversion. But some models will not be
converted by the 1982 model years, and this lack of conversion
will result in the basic market demand for this type of
vehicle being unmet. And since the basic market demand is
unmet, the condition for a waiver that it be met is violated;
and the waiver must not go into effect until January 1, 1982.
In addition to these prepared comments, I would like
to make one additional comment on what was discussed this
morning regarding whether Title 13 testing waiver was
requested for motorcycles or not. I got rather confused in
that discussion as to exactly what the CARB was asking for
in terms of a waiver..
As the waiver publication in the Federal Register
indicated, Title 13 testing was being requested for all non-
passenger vehicles. However, as in the May 2nd mailgram that
the EPA received, the CARB apparently specifically excluded any
waiver for compliance and inspection testing of motorcycles
or especially — specifically requested that no Title 13
waiver be considered for compliance and inspection testing for
motorcycles. And yet today the CARB seemed to be requesting
some sort of Title 13 authorization for a compliance, or for
at least for inspection of motor vehicles.
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
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YAMAHA
And I wonder if I could get some clarification on
that because we may wish to comment on that by June 10th.
CHAIRMAN JACKSON: I don't know whether you can get
clarification on that from me or not. I'm having a little
trouble with it myself. Seems like, or at least the impres-
sion I got was that California had requested a delay on con-
sideration of their compliance and inspection testing program
until they had some sort of meeting in June or something and
made some changes. And seems to me like that would go hand in
glove with the requirement to submit the application and to do
the inspection work that they intended to do.
And at such time as that whole package is ready,
that would be what we would consider.
MR. JURA: Well, if that's your understanding, then
we will act on that assumption.
CHAIRMAN JACKSON: If the CARB disagrees with that,
they are welcome to submit clarification to the record.
This argument you make about the lead time change —
MR. JURA: For the 1982 model, you mean?
CHAIRMAN JACKSON: Right. What's Yamaha's position
with regard to delaying the model year until January 1 of
seventy — January 1, '82?
MR. JURA: We have several problems with that. The
first of those problems is a marketing problem that we have in
that motorcycles sell — the retail marketing period for
motorcycles tends to be April, May, June and July. If we are
to begin our model year process or building our model years
beginning January 1st, we will have insufficient models to meet
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CERTIFIED SHORTHAND REPORTERS
(418) S4S-31MSM1-30M

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YAMAHA	J--33
the basic market demand for that calendar year and will be
forced to sell previous year's models, which would be a great
economic sacrifice to ourselves.
CHAIRMAN JACKSON: How great, assuming everybody else
does the same thing?
MR. JURA: Well, you must admit that a 1982 motorcycle
is more attractive in 1932 than a 1981 motorcycle is in 1982
and as is currently —
CHAIRMAN JACKSON: Now wait. In 1982, we are talking
about only '82 bikes either way.
MR. JURA: Right. No, no. I understand that. We
are not talking about producing 1981 motorcycles in 1982.
What we are talking about is whether we will have a sufficient
supply of 1982 motorcycles during the peak market demand in
1982 or whether we will only have a few 1982 models during the
peak market demand of 1982 and have leftover 1981 models
primarily.
CHAIRMAN JACKSON: Well, are you talking about
production capacity over a period of time? In other words,
you need these extra months of production to get you up to the
point where you have enough to react to the market?
MR. JURA: Yes, yes. We normally begin producing
many, many months in advance so that we will have a warehouse
full of motorcycles of the new model year which we can sell to
our dealers because they are economically more attractive.
CHAIRMAN JACKSON: But that's just a matter of
shifting down, isn't it? I mean couldn't you just shift
that, retain the concept, but you would just have to delay
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YAMAHA
everything by a certain amount of time?
MR. JURA: Well, we could delay everything, but we
would be left, since the peak marketing periods are in May,
June, July and April, we would be left, since we do not have
sufficient production capacity to build sufficient 1982
motorcycles in January, February, March, and then to transport
them — them over the country, we do not have sufficient
1982 motorcycles to meet the peak marketing demand period.
MR. GRAY: Is it possible that you will produce all
of your model year 1982 motorcycles before the effective date
of the existing CARB 1982 standards?
MR. JURA: In other words, would we produce all of
our 1982 model motorcycles by December 31st, 1981?
MR. GRAY: Yes.
MR. JURA: I suppose it's possible, I don't think
that we have any plans to do so right now.
MR. GRAY: If you don't, then for the remaining
small production volume, would you have the same type problem
that Harley-Davidson mentioned in terms of the changing
technology required to meet the more stringent one-gram
standard and it might, therefore, be very difficult to change
over your production process to that limited small production?
MR. JURA: What we will probably do, if we have
any models that can meet the one-gram standard, is we will
produce those models either after January 1st, 1982; or if we
have enough demand for that model that we need to produce
some before January 1st, 1982, we will produce them in 1981
with the same configuration that we would produce them with in
rHOMAS R. WILSON
:bntified shorthand reporters
<41S> 949-3104/441-3OM

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YAMAHA	141
1982. In other words —
MR. GRAY: What if you —
MR. JURA: — let us say we had a four-stroke
motorcycle that can meet the one-gram standard. Then we would
produce — in 1981, we would produce 1982 models that were
one-gram configuration rather than five-gram configuration if
we were also to produce that motorcycle after January 1st,
1982.
MR. GRAY: What if you have a motorcycle that can
only meet the five-gram level and you are producing it up
until the end of December, 1981? Will you continue to produce
it in 1982 if it requires significant revision?
MR. JURA: We could possibly produce it beginning
January 1st, 1982, for the rest of the United States. We
would not, I would think, produce a five-gram motorcycle until
January 1st, 1982, and then take that same model and turn her
into a one-gram motorcycle for the remainder of the 1982
production run.
MR. GRAY: So you are saying that generally you
would not anticipate changing a motorcycle configuration
during the production process, especially that late in the
production process, if it was — if it had emissions greater
than the one-gram level?
MR. JURA: That's correct.
MR. GRAY: So the issue that Harley-Davidson raised
relative to needing to introduce that technology at the
beginning of the model year production in your case doesn't
really apply because, if it's needed, you are not going to
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CERTIFIED SHORTHAND REPORTERS
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produce it; you are going to produce all your 1982 motorcycles
before the standards go into effect; if it doesn't need it,
you are sure you can produce it after the effective date?
MR. JURA: Harley-Davidson speaks for Harley-
Davidson, and they may have peculiar problems to themselves.
I cannot say whether — I cannot really comment on the
accuracy of their statements as regards Yamaha or as regards
the entire motorcycle industry.
MR. GRAY: But as far as their problem of significant
conversion, it is just that you would experience a similar
problem, but your solution would be just to build all of your
motorcycles before the effective, date of the standard?
MR. JURA: Yes.
MR. GRAY: That's pretty clear.
From your discussion of the 1982 standards, it
appears that it's limited specifically to: the issue of lead
time and the applicability of the standards model year versus
calendar year.
MR. JURA: If you would like —
MR. GRAY: It almost emphasizes that point to the
extent that it's saying that, in your judgment, it is feasible
to meet the 1982 standard January 1, 1982,. but it's not in —
what did you say — May 1, 1981, when you began production of
that model year; is that correct?
MR. JURA: That would not be a correct interpreta-
tion of our message. The position of Yamaha has consistently
been that it is too early to discuss whether it's feasible or
not to meet the one-gram standard in 1982. The reason the
3 R. WILSON
shorthand reporters
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argument is worded the way it is is because the Administrator
has already made a determination that it is feasible to meet
the one-gram standard beginning January 1st, 1982.
MR. GRAY: Well, I guess the point is does this
lead time difference impact upon the feasibility, in Yamaha's
opinion, of meeting the standard?
MR. JURA: It most certainly could because it's
an additional nine to ten months less lead time that we have
to develop motorcycles to meet the standard.
CHAIRMAN JACKSON: Just a point of clarification
before we leave that point.
Have you construed what the Administrator did in his
waiver decision in your own words — and I think they leave
something to be desired in terms of the accuracy of what he
actually did, and as far as this proceeding is concerned,
we will rely on that decision waiver as to what he did.
MR. JURA: Well, all I can say in response to that,
if the Administrator does not feel that the one-gram standard
is, indeed, feasible beginning January 1st, 1982, then he
should not have granted the waiver.
CHAIRMAN JACKSON: He did not find that it was
infeasible. That's different than saying it's feasible.
MR. GRAY: Does Yamaha support the specifics of the
time it requires to convert from two strokes to four strokes
that was offered in the waiver decision in the background
information and that you also summarized in your testimony?
Do you consider that as a valid estimate of the time it takes
for that conversion?
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(41S) S43-31ป4Mซ1-30M

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MR. JURA: The three-and-one-half year per model
figure came from an original Yamaha submission to the
Administrator, and I see no reason to change it at this time.
MR. GRAY: Will Yamaha be making that conversion at
a more rapid pace?
MR. JURA: More rapidly than one model every three
and a half years?
MR. GRAY: Yes.
MR. JURA: I can't say that they would. It might
be possible, but I will stick with our original estimate that
it takes three and a half years to convert.:
MR. GRAY: You are making the conversions now, and
I just asked the question do you plan to be able to better
that time frame for conversion from two strokes to four
strokes?
MR. JURA: I can't comment on that.
MR. GRAY: And in your discussion, .you did not
mention the possible technical concern of a CO standard. Is
it also your judgment that at the one-gram HC level that that
standard would be controlling when compared to a 12-gram
CO level?
MR. JURA: We intend to meet the 12-gram CO level
beginning in 1980 models, and I don't anticipate at this time
that we would have additional problems in meeting the
standard if we were to go to one-gram hydrocarbon.
MR. GRAY: Okay. I have got one question regarding
the pre-198 2 standards.
It seemed that you were making the argument that
3 R. WILSON
'shorthand reporters
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the test procedures between the federal and the California
standards and regulations were — the differences were minimal,
and yet in the last paragraph of your discussion, you conclude
that you object to the possibility of CARB reverting back to
their old procedures in the event of a — some change in the
federal procedure because there would be insufficient time in
order to certify by that procedure. Would- you elaborate on
if they are so similar, why would it require more time and
why would it be more difficult?
MR. JURA: As of March 24, the test procedures are
identical. The Air Resources Board on March 24th adopted a
resolution adopting the EPA standards and test procedures.
And I think the question here is since the notice
was whether California continues to comply with the October
waiver of last year, whether the March 24th — the question is
whether the March 24th CARB action continues to comply with
that waiver. So, therefore, our feeling is that the standards
presently and test procedures presently are identical.
MR. GRAY: With respect to the test procedure that
the California Air Resources Board has a waiver for, do you
consider those tests procedures more stringent than the
federal procedures because those would be the procedures that
the CARB would revert back to?
MR. JURA: Our point as regards the reversion is
that the CARB procedures that — for which the waiver in
October was granted and which the CARB removed — rather
changed on March 24th require —were modeled after the
notice of proposed rule making that the EPA published. They
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require a full useful life to run the emissions test vehicle.
So our point is that, if the EPA standards are invalidated,
it's going to require us a certain amount of time to start all
over again and go back to the zero point, run an emissions
test data vehicle and then run the durability. It takes a
certain amount of time to do this.
Now, if we find out on December 31st, 1977, that
the EPA test procedures have been invalidated and we then have
to run the California Air Resources Board procedures, it's
going to take us a certain amount of time to comply, and that's
what our point is, that the reversion should not be allowed
until we have had sufficient time to comply with the California
procedures.
MR. GRAY: I understand your point. But the question
was do you consider, the test procedures that are covered under
the waiver, existing waiver, more stringent than the existing
federal procedures?
MR. JURA: I don't think that we can comment on —
I can't comment on that today.
MR. GRAY: You can't comment at all. I mean —
MR. JURA: I don't know if that's the answer you
want me to say. I can't say right now. X don't know. I
don't think it's relevant because I think that the question is
whether the March 24th standard . . .
CHAIRMAN JACKSON: Seems to me like whoever it is
that's challenging the federal standards in this procedure
ought to think about that a little bit. I hope they don't
win.
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SHORTHAND REPORTERS
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MR. JURA: Well, our point is that the Clean Air
Act prohibits the Administrator from granting an automatic
reversion without giving us sufficient time.
CHAIRMAN JACKSON: You are just saying, procedurally
speaking, that issue ought to be addressed at such time as a
reversion should occur?
MR. JURA: I think it should be addressed now. If
you grant CARB an automatic reversion, it may take several
months for the EPA and us and CARB to get together at another
hearing and address the problem. In the meantime, we are
stuck with motorcycles we can't certify or sell.
CHAIRMAN JACKSON: Then it's primarily because of
this durability thing?
MR. JURA: Yamaha is not involved in any lawsuit
on invalidating the federal test procedure and, you know,
we can't comment on these lawsuits.
MR. GRAY: Do you think that the California waiver
should be revoked?
MR. JURA: The Yamaha position is that we are
better off with one test procedure than with two test
procedures. However, our position is that, since the CARB
adopted the federal test procedures, which is identical —
adopted the federal test procedure on March 24th, and since
the standards are identical, that the California waiver
should be revoked for the 1978 — from January 1st, 1978, to
January 1st, 1982.
MR. GRAY: Doesn't seem to me to be that's very
forward. The California, March the 24th, revised test
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CERTIFIED SHORTHAND REPORTERS
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procedures are not just simply that we adopt the federal
standards. They were qualified to the extent that, without
that qualification, the ARB may very well feel that the
previous test procedures are more appropriate than the federals
alone — the federal alone. So it is a basic issue, it
appears, as to whether or not that waiver should be revoked,
and you are in favor of it, you know, what's — what's the
basis of your support for revoking the waiver? Do you think
it's — it's not more stringent and, if so, why, or what basis
do you have for supporting or —
MR. JURA: I think we —
MR. GRAY: — revoking the waiver, I guess?
MR. JURA: I think the first part of my discussion
regarding the absence of a CO standard in the CARB standard,
which applies both to the old CARB standard and the new
CARB standard, is valid in both cases. The fact is that you
must do additional modifications on four strokes and some
two strokes in order to comply with the EPA standards that are
not necessary just to comply with the CARB standards.
In addition to that, the CARB hydrocarbon standard,
at least for the 1980 and '81 model years in the case of the
old CARB standard, and for the 1978 and '79 model years in
the case of the March 24th standard, are absolutely identical
to the EPA standards. The Clean Air Act specifically states
that the California standards must be more stringent. Now,
they can be more stringent if California adopts a more
severe compliance and inspection testing program. However,
it has not done so and will not do so until June.
THOMAS R. WILSON
certified shorthand reporters
<ซ1S) S43-31M44S1-30M

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MR. GRAY: As far as the test procedures go, the
argument for the federal standard, including a CO — CO
control, is the basis for your feelings and for your recommenda-
tion that the waiver should be revoked in total?
MR. JURA: As regards — Yes, as regards the old
standard. When, you get to the March 24th standard, in addition
to the CO standard, the EPA standards are identical.
And I may add that the EPA-CARB standards are
identical for the 1980 and *81 models so that would — objec-
tion would also be raised for that point under the old CARB —
MR. GRAY: You had finished your discussion with a
statement that Yamaha does not object to such reversion with a
provision that CARB may enforce its standard only after
Yamaha had the necessary lead time to comply with the reverted
CARB procedure. What is the necessary lead time?
MR. JURA: That would depend upon what was invalidatec
and where we are.
MR. GRAY: Say everything, how much lead time would
be necessary to —
MR. JURA: If it's December 31, 1977, we are going
to require what the Administrator in his waiver finding
described as 15 months of lead time to certify.
MR. GRAY: And you are saying it would take
Yamaha 15 months to certify by the California procedure? I'm
asking --
MR. JURA: No. The Administrator said that in the
waiver decision.
MR. GRAY: But my question was what did you mean by
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CERTIFIED SHORTHAND REPORTERS
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that statement? What is the necessary lead time with respect
to Yamaha?
MR. JURA: Well, once again, all I can say is it
depends on the date and it depends on what was invalidated.
For instance, if the durability testing were
invalidated, perhaps it would taJce two or three months. If
the entire procedure were invalidated and we had to start over
again with a Part 1 application, perhaps it would take eight
or nine months. I can't give you an exact period of time
because it will depend upon what is invalidated and what must
be reverted.
If you read the CARB resolution, what they say is
that they will revert to the old CARB procedure only for what
is invalidated in the EPA procedure. So, since different
amounts in the EPA procedure could be invalidated, the amount
of lead time would vary.
MR. GRAY: What is it in the limit if the entire
procedure was invalidated? I mean how much lead time would
you have to have in that limit?
MR. JURA: To completely certify a year's production
of motorcycles?
MR. GRAY: Yes.
MR. JURA: I would say that we would like at least
a year.
I may add that the Administrator did quote a 15-month
period in his waiver decision.
MR. GRAY: I think in terms of quoting the
Administrator and his judgments, it's fair to make the
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statement that the Administrator might often be conservative
since he did not have the same knowledge of factors affecting
lead time that the motorcycle manufacturers themselves have.
So, of necessity, that might require a more conservative
estimate.
I guess one other point relative to the 1982
standards, from the discussion, at least implied, that right
now Yamaha plans to have converted all of its two-stroke
motorcycles to four-stroke motorcycles by 1982 —
MR. JURA: I did not say that. I said that the
Administrator has found that conversion is necessary to meet
the 12-gram standard. We, of course, would prefer to develop
some means of certifying a two-stroke motorcycle to that
standard because we do worldwide production, and it's better
for us to continue to sell two strokes in this country.
MR. GRAY: That's true, but your whole argument was
based upon the lack of your four-stroke models will be
alleviated by some conversion. The whole argument was based
upon conversion from two strokes to four strokes. If you
don't need to convert that many two strokes to four strokes,
doesn't that change your lead time picture?
MR. JURA: It would change the lead time picture.
But at this point we have no way of producing a two-stroke
motorcycle and we anticipate no way of producing a two-stroke
motorcycle that can meet a one-gram standard by 1982, 1983,
1985 or any other date. At the present time, we don't feel
that it can be done.
MR. GRAY: So, with that statement, is it fair to
3 R. WILSON
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assume that Yamaha plans to have a full offering of four-
stroke motorcycles beginning in 1982?
MR. JURA: We will have as full a line as — If we
cannot have two-stroke motorcycles — if we cannot produce
two-stroke motorcycles to meet the one-gram standard, we will
convert to as many models as possible. However, as the
Administrator has indicated, the criteria is whether the
basic market demand can be met and not whether every model can
be converted. And as the Administrator and his staff found
and recommended, a two-gram standard would require conversion
to four-stroke motorcycles, and that cannot be done until the
1983 model year.
MR. GRAY: I don't think the conclusion was that it
required a conversion; it just said a conversion would allow
it to be done. I think there is a big difference there. It
appears there's been a lot of quoting out of context what the
Administrator found, required and/or determined. And in that
case, it just doesn't seem to be appropriate.
The question is simply are you making an argument
that you can't convert all your two-strokes to four-strokes
by 1982?
MR. JURA: It cannot be done.
MR. GRAY: It cannot?
MR. JURA: By the 1982 model year, no.
MR. GRAY: By 1982?
MR. JURA: By January 1st, 1982?
MR. GRAY: Yes. Surely you have made plans. You
plan to sell motorcycles in 1982. You know whether you are
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going to two strokes or four strokes., if you have made some
commitment to convert lines, or else the Administrator's
judgment was very conservative if you can wait this long to
decide how many models you are going to convert. Where does
it all come out?
MR. JURA: Well —
MR. GRAY: Are you planning to convert? Are you
not planning to convert?
MR. JURA: We certainly are planning to offer a
full line of motorcycles for sale in California in 1982 and,
if necessary, we will convert.
MR. GRAY: And you have not yet made your decision to
convert?
MR. JURA: Well, we are hoping we don't have to
convert fully.
MR. GRAY: But at this point, you previously said
that you did not know of any technology that you could use on
two strokes to meet those standards. So in light of that
and not making plans to convert, and if that's —
MR. JURA: I didn't say we weren't making plans to
convert. I realize what you are trying to say, but, you
know, I'm not going to say here and now so it can be quoted
back to me two years later yes, we will completely convert to
four strokes if we can develop some sort of two-stroke
technology to meet a one-gram standard.
MR. GRAY: There is a lot of lead time regarding the
decision of going from two to four strokes, converting to —
MR. JURA: Not necessarily. It could be that we
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could be going along with parallel development at this point in
time. I don't think that we could.
CHAIRMAN JACKSON: You could be?
MR. GRAY: Are you?
MR. JURA: We are working on development of new
four-stroke engines, yes. I think we would be foolish not
to be, because if we cannot change our two-stroke motorcycles
to meet the standard, we will have to produce four-stroke
motorcycles.
MR. GRAY: And you can produce them in that lead
time, yet you aren't making plans to do it?
MR. JURA: We are making plans, if necessary, to
produce four-stroke motorcycles.
MR. GRAY: How many have you converted thus far?
MR. JURA: We would say that we really have not
converted any thus far because of the differences between
two-stroke and four-stroke motorcycles and the market demand
for two-stroke motorcycles and four-stroke motorcycles. The
Administrator and the CARB would probably take a different
point of view. We have a two-stroke 400 cc street motor-
cycle. We also have a four-stroke 400 cc street motorcycle.
I'm certain the Administrator and the CARB would say that's
a conversion. We would say that they appeal to different
markets, and that's not a conversion.
If I may add just one more point, I think it's
important to remark to the Administrator that Yamaha did
support the adoption of a unified test procedure if California
is, indeed, to have its own — its own standard or its own
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(41S) 943-11V4MS1-3098

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YAMAHA/KAWASAKI	155
enforcement because, you know, it's just — it's uneconomical
for us to convert, to run two certifications. However, that
doesn't change the fact that we don't believe that California
should have separate enforcement authority until it adopts a
more stringent compliance inspection procedure.
CHAIRMAN JACKSON: Thank you, sir.
(Short recess.)
CHAIRMAN JACKSON: We are ready if you are.
MR. DENNIS DAVID: I'm ready.
Good afternoon.
CHAIRMAN JACKSON: I remember you from before. You
were the one that had the trouble with —
MR. DAVID: Yes.
CHAIRMAN JACKSON: — the recorder.
MR. DAVID: I'm back in second gear today.
CHAIRMAN JACKSON: I don't think it will happen
today.
MR. DAVID: My name is Dennis David. I'm the
Manager of the Legislative Section of Kawasaki Motors Corp.,
U.S.A. With me today is Darrell Johnson, counsel to
Kawasaki.
I will depart substantially from our prepared
testimony as it has been almost totally rewritten. So I will
suggest that you need not refer to. it during our testimony.
I'm here today to testify in opposition to any waiver
to California to enforce separate emission regulations for
motorcycles.
Before I address those specific points that are
5 R. WILSON
SHORTHAND REPOftTCM
(41S) M9-31MMS1-30M

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KAWASAKI
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germane to the issue before this hearing panel, I will
summarize our feelings regarding the situation that now
surrounds motorcycle emission regulations.
It was California's inability to develop a state
implementation plan that caused the courts to direct EPA to
develop the plan for California. To avoid the drastic
adverse effects that would have resulted from EPA's plan,
which included, among other things, restrictions on motor-
cycle usage and registrations in California, our company, as
well as other members of the motorcycle industry, suggested
that a more appropriate action would be the establishment of
emission standards for motorcycles. EPA agreed and began
the standards development process that has already resulted in
national exhaust emission standards for motorcycles.
However, during that development process, the
California Air Resources Board expressed its concern that EPA
would not adopt timely controls for motorcycles that would be
sold in California. Therefore, the Air Resources Board
adopted EPA's draft regulations, inserting its own hydrocarbon
standards. EPA was compelled to grant California's subse-
quent request for a waiver of federal preemption for those
standards because at that time EPA had not published its
motorcycle regulations, and any standard is more severe than
no standard. EPA granted the waiver but reserved the right
to reconsider its validity. Federal standards were issued in
January, 1977.
Subsequently, the Air Resources Board has modified
its regulations to be the same as EPA's except for a one-gram
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
M1S> S43-S1M4S1-30M

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KAWASAKI
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per kilometer hydrocarbon standard for 1982 motorcycles. It
is those revised California regulations that are the subject
of today's hearing.
The Air Resources Board staff report of March 24th,
1977, states:
"EPA's efforts in controlling motorcycle emissions
have been made primarily to assist air pollution control
in extremely polluted areas such as the Los Angeles Basin.
California adopted motorcycle emission standards on its
own due to administrative delays on the part of EPA. At
present the federal and California standards commence at
the same time, and the difference between the levels of
control imposed by the two agencies is minimal."
We agree with this statement except that "administra-
tive delays" on the part of EPA did not prevent the adoption of
regulations which are effective on January 1, 1978, the same
date that California's regulations became effective. The only
significant difference is California's one-gram per kilometer
hydrocarbon standard for 1982 models.
Based on the nature of motorcycle manufacturing and
the background that has led us to today's hesuring, we sincerely
believe that EPA is the proper agency to regulate motorcycle
emissions and that EPA should be the sole agency to establish
emission controls for motorcycles.
We oppose motorcycle emission regulations being
administered by two separate governmental agencies, EPA and
the Air Resources Board. We honestly do not believe that it
is in anyone's best interests thait this situation continues.
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
<4tS> S4341M/4S1-30M

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KAWASAKI
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It is overkill and unnecessarily increases the cost of
government and motorcycle retail prices.
Now, I will address the specific issues for which
this hearing is being held.
The Air Resources Board — The Air Resources Board's
amended motorcycle regulations are, in essence, identical to
EPA's with two exceptions.
First, the Air Resources Board will require that
manufacturers submit to the Executive Officer a complete copy
of the application for certification submitted to EPA, together
with a copy of the Certificate of Conformity issued by EPA.
Second, the Air Resources Board has adopted a new
one-gram per kilometer 1982 hydrocarbon standard. In order
for EPA's October 1, 1976, waiver to remain valid, the Air
Resources Board's amended regulations must continue to meet
the waiver requirements contained in Section 209 (b) of the
Clean Air Act. As the amended California regulations contain
standards that vary in stringency according to model year,
each level of control must be considered separately.
California's revised regulations applicable to
1978 model year motorcycles manufactured on or after January 1,
1978, and 1979 model year motorcycle, and California's revised
regulations applicable to 1980 and 1981 model year motorcycles
fail to continue to comply with the conditions of the October ]
1976, waiver.
Section 209 (b) of the Act requires that the state
standards for which a waiver is being sought be more stringent
than applicable federal standards. California's '78 through
THOMAS R. WILSON
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KAWASAKI
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'81 standards are the same as those contained in EPA's regula-
tions. The test procedures currently proposed for determining
compliance with the California standards are EPA's test pro-
cedures. The Air Resources Board has advised EPA that the
Title 13 compliance testing and inspection program have been
withdrawn and will be the subject of further action by the
Air Resources Board and further waiver proceedings. However,
the Air Resources Board also states it has the right to inspect
motorcycles, which right emanates from:
1.	Section 2101(a) and (d) of Title 13, and
2.	Is implicit in California's right to certify.
With regard to California's implicit right to
inspect because of its certification rights, since California
no longer has standards and test procedures more stringent
than EPA's standards and test procedures for '78 through '81,
the Air Resources Board no longer qualifies for the waiver
granted October 1st, 1976 and, therefore, no longer has
certification rights from which the alleged implicit right
to inspect may flow.
Secondly, the very sections in Title 13 which the
Air Resources Board states are the authority to test are what
the Air Resources Board said in its mailgram of May 2nd, 1977,
would not be considered today.
Finally, to the extent that the Air Resources Board's
inspection rights pursuant to Sections 2101(a) and (d) are to
be considered, EPA has substantially the same rights in its
own test procedure. Please refer to Section 86.441.78 of
EPA's regulations. It gives EPA the right of entry, including
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KAWASAKI	16o
in Subparagraph (b), (d) and (e) the right to inspect produc-
tion motorcycles at any facility, whether owned or controlled
by the applicant, for the purpose of determining that produc-
tion vehicles are the same in all material respects as the
vehicle which has been certified.
One further point regarding California's '78 through
'81 standards, with regard to the proposed requirement that
ftianufacturers submit copies of their application for certifica-
tion and the certification — the Certificate of Conformity
to the Air Resources Board Executive Officer, Section 209(a) of
the Act specifically prohibits any state from requiring:
"certification/ inspection, or any other approval
relating to the control of emissions from any new motor
vehicle or new motor vehicle engine as condition precedent
to the initial retail sale, titling, if any, or registra-
tion of such motor vehicle, motor vehicle engine, or
equipment."
California's proposed requirement that manufacturers
submit copies of their EPA documents is a mandatory prerequisite
to the sale or offering for sale of motorcycles in California,
and is specifically prohibited by Section 209(a) of the Act.
Therefore, California's standards and regulations for
*78 through '81 motorcycles fail to continue to comply with the
requirements of Section 209(b) of the Act. EPA's October 1,
1976, waiver must be found to be invalid and should be revoked.
The sole remaining item is California's modified
one-gram per kilometer HC standard, for 1982 and subsequent
model year motorcycles. We submit that the California
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
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KAWASAKI
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one-gram hydrocarbon standard for 1982 and thereafter is a new
standard requiring EPA's consideration of technological
feasibility, cost of compliance and lead time because the
implementation date has now been changed by California from
that which existed in the prior waiver hearing.
We have previously stated that a one-gram per
kilometer standard in the 1982 time frame is technologically
infeasible. We have no new evidence that changes that
opinion. A one-gram per kilometer standard will probably
mean the demise of all two-stroke motorcycles.
Further, large four-stroke models could not achieve
such a level without the addition of bolt-on technologies,
such as catalytic converters or thermal reactors. Automotive
control technology could not be transplanted onto motorcycles
due to the inherent differences in the vehicle and their
operation, size, weight, vibration, cost, etc., all are very
different.
To date, we have not been successful in developing
workable technology that would permit compliance with the
one-gram per kilometer standard, and we have grave concern
that acceptable technology could not be developed by 1982.
There is no evidence in this record, or in the
records of the ARB's previous hearings that there is sufficient
lead time giving consideration to costs to meet the 198 2 one-
gram per kilometer HC standard, either as originally proposed
or with the Air Resources Board's new shortened effective
date. Regardless, California's one-gram per kilometer
standard as now amended no longer complies with the conditions
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KAWASAKI	162
of the October 1st, 1976, waiver. In making that waiver
decision, the Administrator was considering a standard
applicable to new motorcycles manufactured after January 1st,
1982. California's amended standard now applies to 1982 and
subsequent model year motorcycles. This difference in the
implementation date of the standard decreases the lead time
remaining, thereby creating a new one-gram hydrocarbon
standard, and changes the conditions of the October 1st, 1976,
waiver. On that basis, the waiver for California's 1982
one-gram per kilometer standard must be revoked.
I also must comment on the Air Resources Board's
proposed qualification that, if all or part of the federal
test procedures are found to be invalid or unenforceable,
then the old California exhaust emissions standards and test
procedures for 1978 and subsequent production year motorcycles,
as amended February 20th, 1976, or the equivalent portion
thereof, shall govern.
Not only would the granting of the waiver for such
a contingency plan be outside the permissible boundaries of
Section 209(b), but it represents a physical impossibility to
manufacturers.
To illustrate, we are a little over seven months
away from the initial implementation of EPA's standards of
January 1st, 1978. Our EPA certification efforts are well
underway. If for any reason the Air Resources Board is
permitted to require certification testing that differs in any
material respect from that required by EPA, it would be
physically impossible for us to obtain certification in
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California before January 1st, 1978.
New proceedings are required before a waiver can be
granted to California to enforce motorcycle emission standards.
Thank you.
CHAIRMAN JACKSON: Would you care to clarify the
points you made at the very last, why the — if the change
occurred, the reversion back to California's standards, why you
could not possible certify for '78?
MR. DAVID: Certainly. The California exhaust
emissions standards and test procedures as amended February 20,
1975, are a working draft EPA document. It differs substan-
tially from the existing document that EPA has published. If
for any reason California were to enforce that regulation,
there just isn't time to go back, start all over with the
Part 1 application, do the testing and end up in 1978 with
certified motorcycles.
CHAIRMAN JACKSON: It's not anything different about
the way the two procedures are; it's just having to start over?
MR. DAVID: They are entirely different.
CHAIRMAN JACKSON: Well, how are they entirely
different?
MR. DAVID: They are entirely different.
CHAIRMAN JACKSON: What's different, significantly
different?
MR. DAVID: Probably the biggest significant
difference is the EPA's draft regulations, which became the
February 20th, '76, California test procedures, parallel to
the automotive certification requirements in that they require
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KAWASAKI
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an emission data vehicle and a durability data vehicle. The
method of testing goes to vehicles and all of the various
ins and outs of submitting applications, etc., are totally
different than the current existing EPA test procedures.
I don't know if I need to expand on that much more.
They are just not the same document.
CHAIRMAN JACKSON: Well, is there anybody that —
What's the basis for assuming that anything would happen to
the federal test procedures, test procedure itself?
MR. DAVID: What's the basis for assuming that
something could happen to it?
CHAIRMAN JACKSON: Yes. There is no legal challenge
to that, is there?
MR. JOHNSON: Maybe, Mr. Jackson, I can be of some
assistance there.
There currently is a — there are two petitions
filed with the D.C. Circuit Court of Appeals, one of which
addresses itself to EPA's regulations, and the other of which
addresses itself to the grant by EPA of the October waiver.
As you know, if there is any doubt about whether a
person would like to address one of — one who is affected by
those regulations would like to address an issue under there,
he must file in a timely manner his petition with that circuit.
And so certain precautionary measures have been taken.
Now, the basis, at least one of the bases of the
action taken addresses useful life and the manner in which
it's been defined in both the EPA test procedure and in the
California test procedure as waived in October. The basis of
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(419) 543-3194/481-30M

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KAWASAKI
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the challenge in the EPA waiver was that, in order to be
consistent with Section 202(a), "useful life" had to be
defined in a certain manner, and EPA allowed it to be defined
in a manner contrary to that.
So specifically, the useful life issue is one way in
which both the federal procedure and the California procedure
possibly could be invalidated.
CHAIRMAN JACKSON: Not the test procedure.
MR. JOHNSON: Well, at least that aspect of it.
CHAIRMAN JACKSON: That's not a part of the test
procedure.
MR. DAVID: Perhaps I should say here that the
concern that the federal test procedures, or a portion thereof,
would be found to be invalid is not ours; it's the Air Resources:
Board's. The requirement of reversion was inserted into their
amended regulations on March 24th, 1977.
CHAIRMAN JACKSON: But I'm just trying to get to the
point of your concern about if it did go to a reversion, what
the effect would be, and you were talking about the test
procedures, and I am asking — my question relates to what's
the likelihood of anything happening to the test procedures
under some challenge that was hypothesized by the CARB. And
I don't see that there is any challenge to the test procedure
per se.
Now, there may be a challenge to some of the
definitional approaches that are used in certification under
the regs, but not the test procedure. The test procedure
thing, that measures exhaust emissions.
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(415) 543-3194/4$ 1-3098

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KAWASAKI
166
MR. JOHNSON: You are quite right. I mean other
than the actions which I have just mentioned, I'm not aware of
the basis of California's concern.
MR. DAVID: When we use the term "test procedures,"
we refer in general to the certification requirements, which
include not only the CVS testing methods, but also the
certification requirement, the submission of data, submission
of annual reports, preparation of your Part 1 application,
the method by which the vehicles are tested under the CVS
procedure.
So really Subparts (e) and (f) of Part 86 have to be
considered as a test procedure. If we revert to the old
California test procedure, that is EPA's old working draft,
it's much different.
CHAIRMAN JACKSON: I see. If we grant the waiver,
or if we could, what would be the situation if their con-
ditional reversion was based on reverting to the federal
program?
MR. DAVID: Well, I think that the only way that the
federal test procedures could be considered, could be found by
courts to be invalid, is that they are not consistent with
Section 202.. I'm not sure I understand how that would all
hang together there, but —
CHAIRMAN JACKSON: Your problem —
MR. DAVID: — that's not the way California's
regulations —
CHAIRMAN JACKSON: I understand.
MR. DAVID: — amended regulations read.
ฃ R. WILSON
SHORTHAND REPORTERS
(418) S43-31MMS1-30M

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CHAIRMAN JACKSON: I'm just trying to understand
the cause for concern here. If their reversion read revert
back to the federal program, which they have adopted,
essentially adopted, they have adopted the federal test
procedure and the federal approach for certification, and
they conclude that they are ostensibly equal and, therefore,
that they no longer need a waiver for them, but you say that,
because the reversion goes back to the old California program,
that causes you a lot of problems?
MR. DAVID: It's an impossibility.
CHAIRMAN JACKSON: It's an impossibility. But if
the reversion went back to the federal program, the federal
test procedures and the federal certification procedures,
then it wouldn't cause.you any problem because you would be
where you were at the time such a court action, adverse court
action, came down with regard to the federal approach; is that
right? Is that fair?
MR. JOHNSON: I think that's probably a fair
statement. I don't think that's what's before us —
CHAIRMAN JACKSON: I understand.
MR. JOHNSON: — but I think that's fair.
CHAIRMAN JACKSON: I understand. I understand.
MR. DAVID: I'm troubled by how a court could find
that some portion of the federal test procedures could be
invalid and then California could revert to those same test
procedures.
CHAIRMAN JACKSON: I haven't reviewed your petition.
I don't know.
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(415) 943-3194/461-SON

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MR. DAVID: Okay.
MR. GRAY: With regard to the 1982 standards —
MR. DAVID: Yes.
MR. GRAY: — you discussed primarily the issue of
lead time again, the concern over the definition of model
year versus the applicability beginning with the first day of
1982.
MR. DAVID: Yes.
MR. GRAY: Do you have a similar situation to
Yamaha or the Harley-Davidson, or do you have a different
production situation?
MR. DAVID: Well, I think, based on listening to
their testimony this morning and knowing our situation, I
can't comment on where they are at. We do not consider that
the one-gram per kilometer standard in the 1982 time frame
is technologically feasible. So I guess our position may be
somewhat different than the others. I'm. not sure.
MR. GRAY: Would you change a production line
beginning January 1, 198 2, to incorporate a different
technology? Could you do that in your process?
MR. DAVID: No, we wouldn't.
MR. GRAY: You would not?
MR. DAVID: We would not. That's virtually
impossible. We can do that once.
MR. GRAY: So it means that, similar to the other
manufacturers, that you would have to incorporate that
different technology at the beginning of the model year, which
for you is when?
3 R. WILSON
9HORTHANO REPORTERS
H1S) 544-3194/461-3096

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MR. DAVID: May, actually for us.
MR. GRAY: Similar to Yamaha?
MR. DAVID: Similar to Yamaha. I think the man
from Yamaha said nine to ten months earlier. Actually, our
next year's model year begins roughly with May production.
MR. GRAY: Would you have a similar strategy as
Yamaha explained relative to stockpiling, if you will, of
model year production prior to the beginning of that year,
calendar year?
MR. DAVID: I'm not aware of any strategy that we
would consider like that.
MR. GRAY: If you could not meet the standard, you
would not plan to produce ahead of time for that model year?
MR. DAVID: Well, we can't meet the standard now,
and we don't foresee any technology being forthcoming which
would permit us to meet that standard.
MR. GRAY: Are you planning conversions to four
strokes?
MR. DAVID: I'm bothered by the word "conversion."
We build four strokes and two strokes. You don't convert a
two-stroke motorcycle to a four-stroke engine. You build a
new four-stroke motorcycle.
MR. GRAY: Can you offer a full product line
offering of four-stroke motorcycles in this time frame?
MR. DAVID: No, we cannot.
MR. GRAY: How would you qualify that? What part
could you not offer in the California market in 1982?
MR. DAVID: Well, I think essentially in the area of
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CERTIFIED SHORTHAND REPORTERS
(~18) 843-31941491-30M

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the lightweight single-cylinder two-stroke Enduros, which are
a unique vehicle configuration, we could not offer any of
those models under a one-gram standard. Those are a sizeable
part of our marketplace in all states.
MR. GRAY: That's an exception to the one gram?
MR. DAVID: That would be one exception. We are not
positive that we will eliminate all of our larger two-stroke
multi-cylinder machines.
MR. GRAY: What do you mean? You think you can
have technological fixes on those motorcycles that could meet
the standards?
MR. DAVID: Well, we would hope so, but we haven't
developed any technology which would make those motorcycles
come down to one gram per kilometer. I think one gram per
kilometer means the end to two-stroke motorcycles in the
United States, or at least in California, if that's their
standard.
MR. GRAY: You will have four-stroke also to compete
with those for similar purposes to satisfy that market?
MR. DAVID: No. They don't compete for similar
purposes. I think that's the misnomer that we have going
here today. A 125 single two-stroke Enduro does not really
compete with a 125 single four-stroke Enduro. They are really
quite different motorcycles. I .think we all know that.
MR. GRAY: They may be different motorcycles, but
the question is will the same customers buy a four-stroke
instead of a two-stroke. If they won't — If they won't
compete or won't substitute, then why build them?
THOMAS R. WILSON
CERTIFIED SHORTHANO REPORTERS
(418) S49-31M/481-30M

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MR. DAVID: Are you asking me why we wouldn't build
them? If we couldn't sell them, we wouldn't build them. That
would be the answer.
MR. GRAY: I don't know. You say a four-stroke is
not a viable alternative to a two-stroke in certain areas.
You mentioned specifically the Enduro. What about the other
areas, I'm asking.
MR. DAVID: Can you satisfy basic market demand in
that area. I mean in the absence of specific marketing
statistical information to show you, I can relate my own
feelings in that area. Different strokes for different
folks. Two strokes are not four strokes. And I think the
editor of "Cycle News" at one of these hearings says the guy
who buys that two stroke probably won't buy that four stroke
if it's sitting side by side. In fact, he may not buy the
four stroke if the two stroke is absent.
MR. GRAY: That may very well be, but you do plan to
have four-stroke offerings across the full range —
MR. DAVID: No.
MR. GRAY: — of bike sizes except for the two-
stroke Enduro?
MR. DAVID: I think what's being confused here is
this question of conversion to four-stroke engines.
MR. GRAY: Well, my question didn't touch on
conversion. Do you plan to have four strokes across the
general same product mix size that you have today with two
strokes?
MR. DAVID: Well, that's confidential information.
5 R. WILSON
SHORTHAND MPORTERS
(415) 545-3184/4ซ1-30M

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If you prefer, we would like to submit that in a confidential
submission.
MR. GRAY: I mean it's relative to the feasibility
of the '82 standards.
MR. DAVID: That's right. But our future product
planning in regards to engine types and sizes is confidential
information. I would be happy to submit that under a
request for confidential treatment.
MR. GRAY: If there is no question that you can't
do it, there is no need to say you are doing it confidentially.
Regarding the —
CHAIRMAN JACKSON: Excuse me. If you feel it's
necessary to submit something that's otherwise — that you
can't submit here because of a confidential nature, to amplify
upon your point, you may — I hasten to say that anything
that you submit to us upon which we rely that's of a confi-
dential nature is not going to get a whole great deal of
reliance. It's very difficult to make — to rely on it if
it's something that can't be made public.
MR. DAVID: I appreciate that.
CHAIRMAN JACKSON: I can't deny you ... We
can't — I don't think we can allow an adverse inference to
be drawn because of your claim for confidentiality. On the
other hand, I will point out to you that it's very, very
difficult for us to make any kind of a decision on information
that can't be made generally available to the public.
But it's your judgment. We would have to play on
how important you think that is to whatever position you may
THOMAS R. WILSON
CtRTIFIfO SHORTHAND HCPOftTERS
(419) M4-31M/M1-30M

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have taken.
MR. DAVID: I sympathize with your position. You
must understand that information regarding our future product
planning by engine type, size, use of motorcycles, etc., is
extremely confidential information.
MR. GRAY: I guess it will suffice to say that you
are not arguing that you will not be able to be competitive
in '82 in a general sense, at least?
MR. DAVID: What we said is we can't make the —
we won't sell anything in California in '82 under a one-gram
standard with the technology we know today or what we can
forecast with this compliance by that time. And I suppose if
no one else is selling motorcycles, that's competitive.
MR. GRAY: Well, I guess we will see how that goes.
Do you consider the federal test procedures more stringent,
less stringent, equal to the test procedures covered under the
existing California waiver?
MR. DAVID: I don't know. If you talk about just
the test procedures, in other words, how you certify using
these two vehicles or one vehicle over here, I don't know;
I don't have any experience at that. We don't have any
experience testing using both procedures. So if you measure
up two motorcycles, two certification vehicles using both
test procedures, I don't know.
MR. GRAY: Put a different way, you would not argue
that the one-gram HC standard by the federal test procedure is
more stringent than the one-gram standard by the existing
California waived test procedure?
i R. WILSON
8HORTHANO ftCPORTERS
(419) 543-3194/461-3098

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MR. DAVID: I don't know.
MR. GRAY: But you would not make that argument at
this hearing?
MR. JOHNSON: We can't make it.
MR. GRAY: You can't make it?
MR. JOHNSON: No.
MR. GRAY: Or you won't?
MR. JOHNSON: We can't.
MR. GRAY: You have also not mentioned anything about
the limiting potential of CO control at the 12-gram level.
Do you share the technical judgment of the previous witnesses
regarding the fact that HC will likely be limiting at the
one-gram level, as compared to CO at 12 grams?
MR. DAVID: I don't know. I really don't know the
answer to that question. I think in the interim time frame,
we know for EPA's '78 standards, we know that the 17-gram
CO standard will be a limiter for big four stroke, not the
hydrocarbon standard. For the future, we don't know. We
don't know what is the limiting factor at that point. We
believe we can make the 12-gram per kilometer 1980 model to
EPA standard. If that's an answer to it.
MR. GRAY: Is it fair to say, then, that you are
not arguing that at that level, the one-gram HC and the 12-ปgram
CO is not more stringent than a one gram alone? Is that an
issue with respect to your company?
MR. DAVID: Would you say that again?
MR. GRAY: I said would you consider a one-gram
HC plus the 12-gram CO in any way more stringent than a
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
<ซ1S> S4341MMS1-3QM

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one-gram HC•alone? Would you make that argument? Can you
foresee how that could happen?
MR. DAVID: I really don't know how to answer that
question, and I really don't know what the purpose of asking
it is. I guess I'm confused.
CHAIRMAN JACKSON: He's saying if you are going to
if you are going to one gram per kilometer for HC, the fact
that already meets the 12, do you anticipate that going to
one gram will cause CO to go up?
MR. DAVID: I don't know. We haven't gotten to one
gram yet with anything that's workable. I don't know if it
will cause CO to go up or not. We have no NO standards for
motorcycles,; so we have a reasonable latitude in that area.
CHAIRMAN JACKSON: Excuse me?
MR. DAVID: I say we have no NO standards currently
for motorcycles, so we have some latitude in those areas.
CHAIRMAN JACKSON: You are not suggesting that we
do?
MR. DAVID: No, I'm not suggesting that you do, but
I don't know the exact relationship of CO and hydrocarbons,
and I don't think it's been well established in our testing.
CHAIRMAN JACKSON: Let's see. You made the point
about this, you made it quite obviously that the new standards
for which a waiver — the 1982 standard is a new standard for
which the California is — CARB is seeking a new waiver —
MR. DAVID: That's correct.
CHAIRMAN JACKSON: — is that correct?
MR. DAVID: That's correct.
5 R. WILSON
8HOMTHANO REPORTERS
(418) 843-3194/461-3096

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CHAIRMAN JACKSON: That's based on this lead time
argument with the production date being something like eight to
ten months sooner than what it might have been.
MR. DAVID: Well, it's based on the fact that the
regulation applies to different motorcycles than it did before
it was amended. In our case, that has the effect of moving
the implementation date forward about eight months. But on
paper, the two previous revisions, the one for which a waiver
has been granted and the March 24th regulation, which is the
purpose of this hearing, are not the same regulation. They
are a different regulation.
CHAIRMAN JACKSON: But what I am getting at is that
which makes it a new — a new standard. You have said
earlier in your testimony here —
MR. DAVID: Yes.
CHAIRMAN JACKSON: ~ that you didn't think there
was any differences in the test procedure.
MR. DAVID: No.
CHAIRMAN JACKSON: The test procedure, that which
measures exhaust emissions, not certification procedures.
That's the reason I asked that point.
MR. DAVID: Okay.
CHAIRMAN JACKSON: And you said you didn't think
there were —
MR. DAVID: I think there have been a number of
minor and somewhat, in some cases, probably fairly major
changes to Subpart (f) of the federal regulations from the
original working draft to the final document which was issued
5 R. WILSON
SHORTHAND REPORTERS
(418) 943-1194M61-3MS

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in January. Whether those changes have the effect of making
that test procedure more stringent or not, I don't know. I
know that EPA decided not to publish the original working
draft because they made amendments which are more appropriate
for motorcycle emission testing.
CHAIRMAN JACKSON: Well, what I am trying to get at
here is what is the scope of your basis for saying that it's
a new standard? Now, it's either because of the lead time
problems —
MR. DAVID: Yes, sir.
CHAIRMAN JACKSON: — it's because of the test
procedures are different and there is something significant
about that difference —
MR. DAVID: Yes.
CHAIRMAN JACKSON: — but you haven't said yet.
MR. DAVID: I don't know that there is any
significant difference in the test procedures, but the lead
time has changed tremendously.
CHAIRMAN JACKSON: So the basis of your contention
for making this argument that it's new. is the earlier day
when the standards will be applicable.
MR. DAVID: The standards are applicable on a date
different than before they were revised.
CHAIRMAN JACKSON: It's the lead time. You just
don't have the same amount of lead time now that you had
before?
MR. DAVID: That's true.
CHAIRMAN JACKSON: Everi though you still don't know
THOMA8 R. WILSON
CERTIFIBO SHORTHAND REPORTERS
(41S) 543-31W/401-30M

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whether you can meet the one-gram standard at all?
MR. DAVID: We don't think so.
CHAIRMAN JACKSON: But at least the lead time's
been cut down according to your view of the newly adopted
California procedures?
MR. DAVID: Yes. I don't know how you can slice it
any other way.
CHAIRMAN JACKSON: And you, I think, have extended it
to something like eight months, is that it?
MR. DAVID: Our model year begins in May, our model
year production for the following model year.
MR. GRAY: Are you opposed to EPA revoking the
existing California waiver for the HC standard?
MR. DAVID; We would support EPA revoking the entire
waiver to California as far as any motorcycle emission
standards. I think it's against the public interest. It's
overkill, and that's the best way I can explain it.
California adopted their standards to make sure EPA
would. EPA did. We really think the waiver should be
revoked. We expected California to drop the regulations far
before then.
MR. GRAY: I can appreciate your broad answer but,
you know, the specific question I want to follow up with is
why relative to what we are considering here?
MR. DAVID: I think in our testimony we made it
very clear. California fails to continue to comply with
conditions of that waiver. Their '78 through '81 standards
do not meet the requirements of Section 209(b).
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(41S) 943-3184/461-30M

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MR. GRAY: How about the 1982?
MR. DAVID: The 1982 standards, we honestly believe
that it's not feasible, that it's infeasible from a tech-
nological standpoint. I don't know how — we believe that
waiver should be revoked. It should not have been granted in
the first place.
MR. GRAY: Well, is it more stringent somehow by
the federal test procedures than it is by the test procedures
that California would use under the present waiver? What
would be the specific basis that can be considered here? I
mean revisiting the technology issue seems like a separate —
MR. DAVID: Well, it's moved in effective date
which varies by manufacturer. In our case, it's about eight
months earlier. That is one specific point that we can
actually say has changed.
MR. GRAY: Well, seems like the different effective
date is the result of a separate action. That's a result of
California adopting the federal test procedures, compliance
strategy in total. That's where this model year lead time
issue came up. I mean it goes away if they retain their
existing strategy.
So I guess, you know, more specifically, relative to
the waiver they have now, under what basis should the federal
government revoke that waiver for 1982? What would be the
argument that would support it?
MR. DAVID: Well, I think the argument would be
that insufficient lead time exists to develop the technology
necessary to comply with the one-gram per kilometer standard.
THOMA8 R. WILSON
CERTIFIED SHORTHAND REPORTERS
(419) 843-31M4S1-308S

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CHAIRMAN JACKSON: We have already dealt with that.
MR. DAVID: We know that you have already dealt with
that.
MR. GRAY: So nothing —
MR. DAVID: It's our position hasn't changed.
MR. JOHNSON: Just for the record, I think we do
take the position that EPA is required to deal with it again
as a result of California's recent action/ just so that we are
communicating correctly on that.
In other words, the one-gram standard in '82, we
feel must be reconsidered by EPA as it was back in the Summer
months of last year.
CHAIRMAN JACKSON: Let me get it clear. You are
basing this on the change in model year introduction appli-
cability?
MR. JOHNSON: Yes, sir.
MR. DAVID: I think that's the major change.
CHAIRMAN JACKSON: Okay.
MR. DAVID: The changes in the test procedures, we
have not analyzed those to the point where we could make an
informed judgment.
CHAIRMAN JACKSON: So they, can't be the basis for
your position here?
MR. DAVID: No.
CHAIRMAN JACKSON: Okay.
MR. DAVID: The fact is that California received a
waiver for it which no longer exists.
CHAIRMAN JACKSON: And now you want us to reconsider
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(419) 543-3194M61'3093

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whether or not it is a new standard by virtue of that. Now,
how about on your side: what measures can you take to extend
your production year until December 31st, 1981?
MR. DAVID: I don't think we can take any measures
to extend our production year to the end of the year.
CHAIRMAN JACKSON: Why?
MR. DAVID: Well, there are really probably two
reasons, and I haven't thought this all through yet. I think
in the same vein that the other manufacturers have testified
to. And I would amplify that and say that we are, by com-
petitive position and the expectations of the marketplace,
locked into providing the next model year vehicles very
early in the calendar year. In fact, in almost all cases,
those vehicles are available in the late Pall of the preceding
year. This is common practice and typical and would be
unacceptable to the marketplace if it didn't occur that way.
CHAIRMAN JACKSON: Even less unacceptable than not
having them on there at all?
MR. DAVID: That's a speculative question.
CHAIRMAN JACKSON: Well, I think it's all speculative
That's the point. That's why I am going into this.
MR. DAVID: If I were to speculate on that point,
I would have to say that it would be better to have some
motorcycles than no motorcycles.
CHAIRMAN JACKSON: Even if they were late. Okay.
MR. DAVID: What can I say? It's always better to
have something than nothing.
CHAIRMAN JACKSON: I'm glad you agree.
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SHORTHANO REPORTERS
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MR. DAVID: I think one of the other things that
might relate to that point, and I haven't thought it through,
is that EPA regulations are five model years, and once those
have been fixed, they are fixed.
CHAIRMAN JACKSON: It's up to you, though, to
initiate your Job 1 date, and that's at your election.
MR. DAVID: It's an annual production period. It
can't be more than one year.
CHAIRMAN JACKSON: Absolutely. We are not saying it
should be any more than one year.. We are just saying it
could start on January 1, 1982. And if your basis, if your
contention for stating that there is something different here
that should be considered to do, it seems like you would be
prepared to tell us what kind of implications that has to you
as a corporation as opposed to speculating about it. I mean
if you can show us why that's significant as opposed to why I
shouldn't just say move your introductiondate, everybody
else is going to be doing it, it's not a competitive issue
because, if we stick with it like it is, we have already had
some other manufacturers testify that they are going to have
to do the same thing, they got the same problem.
So it's not a competitive issue because we are
talking about the marketplace being affected by the same
problem.
MR. DAVID: Well, it was our understanding that
the purpose of today's hearing was to consider whether the
consideration of the October waiver is still, valid and if that
waiver should remain in effect, and that waiver was granted for
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SHORTHAND REPORTERS
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a specific regulation which has been amended. The regulations
for which the waiver was granted no longer exist. It's a
new regulation. It's a different regulation by implementation
date and test procedure. And that change, we believe, should
cause EPA to reevaluate. In fact, the word isn't "reevaluate."
You must make a determination on the technological feasibility,
giving the appropriate consideration to courses under Section
209(b).
CHAIRMAN JACKSON: Wait a minute. I would still like
to know what are the practical implications of this change to
the corporation other than the fact that it's not business
as usual? I mean you are making a case for — for saying it's
new. There has been precedent in the past where we have said
changes to existing waivers are minutia covered within the
waiver previously granted, and we could look at this under
that context. Unless you can come forward and say it's not
minutia, look at the impact here that we are talking about with
regard to the corporation and what's going to happen to it.
Now, you tell me that it's an eight-month lead time
that you are not going to have —
MR. DAVID: Right.
CHAIRMAN JACKSON: — but it's by your own choosing.
MR. DAVID: Not by our own choosing. We are locked
into it by the way we build motorcycles.
CHAIRMAN JACKSON: That's business as usual. Here
we are talking about the implications of the change, what are
the implications of having to do business according to the way
you have to do business so you can sell cycles in '82.
IR. WILSON
SHORTHAND REPORTERS
<ซ18) M3-31MS4C1-30M

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MR. JOHNSON: Mr. Jackson, to properly address your
question, it's going to require us to communicate with a nuiriber
of people that aren't here today. And I appreciate the
thrust of your question. We will respond to it by June 10th in
a communication once we have our facts assembled.
CHAIRMAN JACKSON: I think that may be most
appropriate in some sort of detail where we can understand
the significance of what it is you claim to be a problem with
regard to the lack of lead time for the '82 models.
MR. JOHNSON: We will do that.
MR. GRAY: I'm a little bit confused about the
various issues that we may be jumping around to try to cover
here.
It appears to me that there is a basic subject that
was announced in the hearing notice. That is that, as a
result of EPA action establishing federal motorcycle emission
standards, EPA intends to consider whether California
continues to comply with the conditions of the October 1st,
1976, waiver, from the hearing notice.
MR. DAVID: Yes.
MR. GRAY: That's one issue.
Another issue is California has adopted new
regulations, to use your terminology —
MR. DAVID: Yes.
MR. GRAY: — which puts forth a new requirement.
That's another subject.
If we can try to keep the question constrained just
to the reconsideration of the existing California waiver, why
3 R. WILSON
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should EPA revoke that waiver for 1982?
MR. DAVID: Those regulations aren't there anymore.
They don't exist.
MR. GRAY: As far as the California waiver, you know,
at one time you argued that the California regulation doesn't
exist until it's a federal waiver. And here you are arguing
that the federal waiver has been preempted because of a
California action. I think by the very notice that we put
forth in the Federal Register that EPA intends to consider
whether California continues to comply with that requirement.
MR. DAVID: I think the requirements that you
mentioned are contained in Section 209(b) of the Act, and we
do not believe that the California regulations, as amended,
continue to comply with the requirements of Section 209(b) and,
therefore, the conditions of the October 1st, 1976, waiver are
not met.
MR. GRAY: As a result of the federal government
establishing motorcycle emissions standards?
MR. DAVID: That's part of it.
MR. GRAY: What changed with respect to the
California waiver that should compel the EPA to revoke the
waiver for 1982? Anything?
MR. DAVID: Lead time changed.
MR. GRAY: Not with respect to the waiver. I mean
that's why I wanted to separate the two. I mean what aspect?
The only — it can be argued that the new test procedures,
the federal test procedures somehow —
MR. DAVID: Well, I think —
i R. WILSON
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(41S) 543-3194/46MOM

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MR. GRAY: Well, you wouldn't even have to argue
that. I guess the only thing I can conceive of is the fact
that a requirement of a 12-gram CO on top of the one-gram
HC level might now be — result in the existing waiver being
superseded by something more stringent and, therefore, there
would have to be a new finding on technological feasibility.
So I'm just putting it forth. What basis is there
that EPA would have to revoke that existing waiver?
MR. DAVID: I'm not quite sure I understand how you
relate the one and 12 grams together. You are saying is a
one hydrocarbon and a 12 CO more severe than one hydrocarbon by
itself?
MR. GRAY: I'm simply asking what consequence of the
federal action should necessitate the federal government
revoking the existing California waiver relative to 1982?
MR. JOHNSON: Perhaps I can be of some assistance.
With regard to 1978 through '81, we don't believe
the conditions are the same anymore as a result of what
happened in March of this year, i.e., the same standards are
no longer in force as far as California is concerned.
With regard to 1982, we don't believe — we believe
that a new standard has also been adopted as we have already
testified on the lead time, on a lead time problem, and,
therefore, we don't think that condition that existed in
October now exists.
But it's a result of the action taken by the Air
Resources Board in each case.
CHAIRMAN JACKSON: Maybe I can share this conversatio:
S R. WILSON
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KAWASAKI
187
with you. We are talking about the concept of waiver in some-
what different terms than we have sort of been communicating
back and forth here with you and that the — we gave
California a waiver which said you can do these things.
MR. DAVID: Yes.
CHAIRMAN JACKSON: Okay. And whether they do it or
not is up to them.
MR. DAVID: Yes.
CHAIRMAN JACKSON: Okay. But if they ever choose
to do that, they can do it, because we made certain findings
with regard to the 1982 model year. And if they should
choose to do it, then the authority for them to do it is
there.
Okay. So that's one issue.
MR. DAVID: Yes.
CHAIRMAN JACKSON: They do have a waiver. And
what Mr. Gray was getting at here is what's changed that
would say that they don't have that waiver anymore. We made
certain findings with regard to that program.
Now, what you are saying is well, they have changed
that program and now you have got to go back, and look at it
again to decide whether or not they still should have a waiver
in the context of the changed program, right?
MR. DAVID: Two things have happened. That's
all. EPA adopted regulations. California amended theirs.
Other changes would have to be internal to the industry, or
in the US marketplace., or whatever .
CHAIRMAN JACKSON: But the only thing that's really
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188
at issue, the only thing that's really changed, is the federal
government went in and promulgated regulations. With regard
to those things that applied that the federal government took
under consideration when it granted the waiver, none of those
things have changed: stringency, technological feasibility.
We said if you want to have those standards in 1982, you can.
MR. DAVID: I think there have been some things that
have changed. I think for one thing, the Environmental
Protection Agency has entered into a contract to decide
technological feasibility questions with the Southwest Research
Institute. There will be some additional information forth-
coming, already is forthcoming, that's different from what
existed in October.
I don't know if that's one of the changes that you
would suggest here. I'm not quite sure.
MR. JOHNSON: One of the changes obviously is that
EPA has adopted its own regulations.
MR. GRAY: Yes.
MR. JOHNSON: That's changed. Also what's changed
is back in October, if my understanding is correct, you decided
that California's standards, its old standards, were more
stringent than federal standards, and there were none.
Now, California has taken those old standards and
put those on the shelf and has said now we have EPA's
standards. I'm talking about '78 through '81, and that
condition changes the validity, in quotes, of the waiver that
was granted back in October.
CHAIRMAN JACKSON: And we grant you that. But
} R. WILSON
SHORTHAND REPORTERS
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KAWASAKI	189
that's the point Mr. Gray was making. What aspect of the
federal action was there that applied to the 1982 standards?
MR. DAVID: The 198 0 model year and subsequent
regulations also apply to 1982. Those include five grams per
kilometer, a 12-gram per kilometer CO standard. That's why
I was a little confused. You kept talking one and 12, and
I can't put those two together.
CHAIRMAN JACKSON: You have to meet both standards.
MR. DAVID: You have to meet the five and the 12 at
the same time for EPA.
CHAIRMAN JACKSON: You have to meet a five and 12
with a bike that meets one.
MR. DAVID: Okay.
CHAIRMAN JACKSON: That's the way it goes. In
other words, the federal standards umbrella the California
program.
MR. DAVID: Yes. Okay. I think I would like to
reserve judgment on whether a five and 12 in combination is
less or more stringent or equal in stringency to the one-gram
per kilometer; is that right?
CHAIRMAN JACKSON: That's not the question.
MR. DAVID: Well, that's one of the things that
has changed, that would change the reading.
CHAIRMAN JACKSON: We are talking about one bike —
MR. DAVID: Yes.
CHAIRMAN JACKSON: — that has got to meet —
MR. DAVID: I understand.
CHAIRMAN JACKSON: — the one —
rHOMAS R. WILSON
JIBTIFIBD SHORTHAND REPORTERS
MIS) 549-31M/491-30M

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KAWASAKI	190
MR. DAVID: As well as the 12.
CHAIRMAN JACKSON: — as well as the 12 because
that's what the feds did. They came in and changed things
for 1982.
MR. DAVID: Right.
CHAIRMAN JACKSON: And if you are coming to us and
saying meeting that 12 in combination with that one changes
the conditions under which that waiver was granted, then we
would have an issue with regard to that waiver, and it's
granting authority for California to do something.
MR. DAVID: Yes. I don't know the answer to that
question, but I will find out and have it to you by June 10th.
I really don't Jcnow the answer to. that question.
I think that one of the things that has happened,
though, and I think that this should be considered from a
policy standpoint, and this is that the motivation for EPA's
regulations are the major urban areas of the United States.
It is the cause of EPA's regulations. That is the need
which dictated national emissions standards for motorcycles.
EPA's regulations are in answer to that need.
MR. GRAY: Would you support a situation where,
especially considering the situation where you are right now,
wherein the CARB adopted the federal procedures, tests,
compliance, the whole regulatory program, but the applicability
of those standards was unchanged from their existing standard,
waived standard.
MR. DAVID: Would you repeat that? Would I support
it?
J R. WILSON
SHORTHAND REPORTERS
(418) 543-3194/461-30M

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KAWASAKI
191
MR. GRAY: Would you support — The current
situation is that California has a waiver for a one-gram
HC standard —
MR. DAVID: Right.
MR. GRAY: — in 1982 by the test procedures that
involve, among other things, useful life testing and durability
emission data vehicles, bikes.
MR. DAVID: 220 ARB test procedures, not the current
ones, what they got in October?
MR. GRAY: What they have already got is what we are
dealing with here. That's what they have the authority to
enforce.
MR. DAVID: Okay.
MR. GRAY: That being the situation now, and we
say is that — you know, can there be a better situation
within those constraints? Let's say would that situation be
the federal test procedures and compliance procedures with
the compliance date the same as it was in the existing waiver,
that is January 1, 1982.
MR. DAVID: We will have to speculate in that whole
area because the one-gram per kilometer standard looks like
an impossibility to us.
MR. GRAY: Well, that's why I wanted to say within
the constraints of getting something constructive out of what
we are dealing with today.
MR. DAVID: I think it should be obvious that the
development work that EPA did in Ann Arbor to develop the
final test procedures which were published in January did
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(41S) S4341MM1-30M

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KAWASAKI
192
improve those test procedures so that they would fit motor-
cycle testing a lot better than the old draft, which is the
220 '76 CARB regulation.
So I can, from that standpoint, just purely from
the technical standpoint, EPA's, or the federal test procedures,
are more appropriate. In fact, from a technological stand-
point, are more accurate than the original working draft.
MR. GRAY: Then as far as you —
MR. DAVID: As far as the effective date goes, it
makes a difference to our company of about eight months.
MR. GRAY: All right.
MR. DAVID: So given the assumption that the one-
gram per kilometer standard is feasible, which we don't believe
that it is, yes, I would agree with that.
MR. GRAY: But you could not see any technical
constraint that would make that — that would be worth not
granting such a revised waiver, if you will? In other words,
if California requested a waiver for a revised program which
was revised with the federal procedures and the applicability
beginning with the beginning of 1982, would you support that
particular kind of a revised waiver as opposed to the current
situation?
MR. DAVID: You mean effective on the same old date,
the old January 1st, 1982, production?
MR. GRAY: Yeah. It seems like that California
came forward here with a mood to help out the motorcycle
industry, the certifying agencies, and the extent that they
took the initiative to say, "Okay. Let's have one compliance
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KAWASAKI
193
program, one methodology, but we don't want to — you know,
this should not be a reflection upon the standard that we have,'
i.e., that it should not result in us having to have a new
waiver, if you will, can you see any way that there is — that
it could be more technically difficult to meet the one-gram
HC standard with the existing situation using the federal
test procedures and the old applicability data?
MR. DAVID: Boy, that's a hard one to answer because
I don't know what the difference in test procedures makes in
the — the difference in testing a vehicle because we never
dealt with EPA's working draft or the ARB test procedures. I
don't know anyone that's tested a motorcycle under the old
procedures, except perhaps EPA in-house.
So our history in that area is very weak. We would
have to actually sit down and take a look at the CARB's pre-
March 24 test procedure versus — you know, rate those up
against EPA's current test procedures, which are the federal
test procedures, to see which one is more stringent.
I would suspect that EPA's test procedures, from a
technological standpoint, are more accurate and more appropri-
ate, tailored to fit motorcycle operation closer. All the
development work between EPA's working draft and this final
regulation is in those final regulations.
But I would like to submit further information on
that point if I could. To my knowledge, no one has ever
tested a motorcycle using ARB's draft ~ ARB's regulations as
they existed February 20th, '76.
MR. GRAY: If these are among the possibilities as a
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
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KAWASAKI	194
result of these hearings, one, to not revoke the existing
waiver; two, accept a revised or issue a revised waiver as
requested by the California Air Resources Board, which would
include the revised compliance date, or perhaps a third option,
which would be a revised waiver with the old compliance date,
are there other ways that we could come out in these hearings
that would be reasonable?
MR. DAVID: We like Option 1, revoke the waiver.
MR. JOHNSON: Did you say revoke the waiver?
MR. GRAY: I retained the waiver in the first
instance.
MR. DAVID: I thought you said revoke the waiver.
MR. GRAY: I may have..
MR. JOHNSON: And you are talking solely about a
waiver for 1982?
MR. GRAY: Yes. I mean setting aside the issue of
whether or not the standards are more stringent and the
different test procedures or whether the standards are so
similar, since there is not a comparable HC standard to the
1982 California HC standard, it appears that there are several
options, I guess, that could result after these hearings.
One is to leave the waiver as it is, retain that
waiver because it's already been granted.
Two. Revise it as requested by the California Air
Resources Board, which would include a revised implementation
date, or
Three. I would think it reasonable to revise the
waiver similar to the request by the CARB, but not change the
3 R. WILSON
SHOMTHANO R1PORTERS
<416) 943-3194/4)1-30M

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KAWASAKI
195
implementation date and set infringes upon the area of
technological feasiblity.
And I guess to the extent EPA can make the finding
that it's feasible, a second option is very real, but I mean
is there any of those that you can say you would support? Is
there anything that —
MR. DAVID: Support? Well —
MR. GRAY: You are opposed to all three of those?
MR. DAVID: We think you should revoke the waiver.
We think that EPA should regulate motorcycles, not CARB.
That's the thing.
MR. GRAY: I don't see how that's something we can
consider here relative to the —
MR. DAVID: Yes.
MR. GRAY: — constraints of these hearings. That's
why I am trying to focus the discussion to something we can
deal with within those constraints.
MR. JOHNSON: Another option you have, however, is
to revoke the waiver in its entirety. That's one option that
we see, and we see it as acceptable.
But all three of the options you referred to impose
a standard by 1982 with our present knowledge we consider
technologically infeasible. So I don't know how we choose
between which way we want to go out of business, assuming that
it continues that way.
MR. DAVID: I guess what we would say is that EPA
designed its control program to satisfy California,
specifically Los Angeles' air pollution problem caused by
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KAWASAKI
196
motorcycles. Those circumstances are sufficient to satisfy
the compelling and extraordinary need in California for regu-
lation of motorcycles.
Since EPA designed its program, its program was
motivated by that requirement. Anything more severe than that
is a conclusion that I can't reach logically in my head, and
I'm at a loss as to where to go with that particular feeling.
I would like to submit further information regarding
the lead time question, which is the effective date of the
regulation, the changes which the test procedure made to that,
and also the question of having a CO and HC standard as
opposed to having just an HC standard or having a five and
12 standard and then seeing a one-gram standard come in.
We have not addressed that subject here, and I would like to
address that in writing before June 10th.
MR. GRAY: Among the three options at least that I
discussed, do you have a preference, if we can't go beyond the
constraints of these hearings, which is a real possibility?
MR. DAVID: I think I would take — If I had to
select from any three of those things, which are all
unacceptable to us, I would probably select the circumstance
where you would revise the waiver which would require you to
make a new determination of cost-effectiveness, whatever.
To revise the waiver, you have to make a determination. You
can't just revise it. There's got to be a justification,
logic and rationale employed and —
CHAIRMAN JACKSON: Says according to what?
MR. DAVID: Pardon me?
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197
CHAIRMAN JACKSON: According to what?
MR. DAVID: It says the Administrator shall determine
in Section 209 of the Act. It doesn't say he shall revise.
He needs to make a determination of what's happening. So I
think if you were to use the word "revise", the waiver, we
would think that that statement means that you would have to
make a revised determination also.
And so of those three unacceptable solutions,
obviously the one where you would revise it, and at least take
a look at it again to determine if it is worthwhile, that
would be our preferred unacceptable solution, especially where
you are picking up the EPA's final test procedures and
implementation date.
MR. GRA.Y: If there was nothing that is changed
relative to the constraints of the hearing process that would
impact upon the findings made earlier, then it appears beyond
the scope of the hearings to consider revoking the waiver or
to make those findings anew. That's why we are trying to
focus the discussion on what can we do within those constraints
that is more meaningful than the situation we have now.
And instead of a lot of confusion resulting after
these hearings, seemed like it would be in the best interests
of the motorcycle manufacturers, CARB and EPA to at least
cover the ground we can that we would all consider as
reasonable.
MR. DAVID: Well, I think, Mr. Gray, there is no
question in my mind that the '78 to '81 standards, as the
waiver applies to those standards, should be revoked in total.
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KAWASAKI/SUZUKI
198
Regarding the 1982 standard, we have previously
testified that it's not technically feasible, but the testimony
of one manufacturer, Kawasaki, was not used in the administra-
tive determination. We would like to provide further
information on that regarding the impact that change in
effective date would have on our company. We would like to
analyze the test procedures, the old California test pro-
cedures and the final EPA regulations, to find out if there
is any significant differences in those test procedures.
The determination of technological feasibility of
that one-gram per kilometer standard was essentially EPA.
What can I say? I would like to provide more information to
you. That information is not here with us today. I don't
have that in my head. I don't know the differences between
those two test procedures. I have never worked — We have
never dealt with the working draft EPA test procedure, but
would like to reserve the right to be able to take a hard
look at it, analyze it very thoroughly, and submit our
comments on that particular item as well as the combination
standards interreaction and also the effective date change
in the California '82 standard.
CHAIRMAN JACKSON: Thank you very much.
MR. DAVID: Thank you.
CHAIRMAN JACKSON: Mr. Walsh?
MR. JOHN WALSH: Thank you.
Good evening. My name is John Walsh, and I am
here representing Suzuki Motor Company.
Suzuki Motor Company would like to offer the
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CtRTIFICO SHORTHAND REPORTERS
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SUZUKI
199
following comments to EPA's reconsideration of the October 1,
1976, waiver of federal preemption of California exhaust
emission standards and test procedures for motorcycles.
Since October 1, 1976, there have been two signifi-
cant changes in the motorcycle exhaust emission control area.
First, the Environmental Protection Agency promul-
gated hydrocarbon and carbon monoxide exhaust emission
standards for motorcycles.
Second, the California Air Resources Board amended
California's motorcycle exhaust emission regulations, adopting
the EPA hydrocarbon limits for 1978 through 1981 model year
motorcycles while maintaining a l.Og/km standard applicable
to 1982 model year motorcycles. The ARB also adopted the EPA
test procedures for motorcycle emission testing.
Suzuki believes, based on these actions by EPA and
ARB, that the October 1, 1976 waiver must be reconsidered.
The ARB has adopted the EPA hydrocarbon standards
and test procedures for the 1978-1981 model years. ARB did not
adopt EPA's CO standards for these model years. Because of
this, ARB's standards and test procedures are less stringent
than the EPA regulations. ARB wants to receive copies of Part
I and Part II applications and EPA Certificates of Conformity.
EPA has review authority in this area so this part of the
ARB program does not add any stringency to the ARB program.
ARB also wants to retain authority to perform compliance
testing of motorcycles. ARB might argue that this increases
the risk that motorcycle manufacturers would be caught selling
non-complying motorcycles and thus manufactxirers would use
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(41S) S43-31MMS1-MM

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better quality control measures to reduce emissions so this
would make ARB's program more stringent. This argument is not
persuasive for two reasons:
First, the manufacturers are already required to meet
the emissions standards, and will use strict quality control to
keep the motorcycles below the limits; and
Second, ARB could perform testing at any time and
report the results to EPA for EPA enforcement action.
In either case, ARB's enforcement authority will not
result in lower motorcycle exhaust emissions in California.
Air Resources Board Chairman Quinn stated at the
24 March 1977 public hearing that ARB has no intention of
merely duplicating EPA enforcement action. Mr. Quinn stated
that ARB has been dissatisfied with EPA enforcement action
in the past. While we can understand Mr. Quinn's concern that
only complying vehicles are sold in California, Congress did
not give ARB the authority to review EPA enforcement action.
Congress, and Congress only, can review EPA's enforcement
activities and direct the Administrator to take specified
actions. The Air Resources Board should appeal to Congress
if they feel more EPA enforcement action is necessary;
development and implementation of an ARB enforcement program
just because of ARB dissatisfaction with EPA is both unwise,
because the EPA program exists, and not permitted under the
Clean Air Act unless California has a more stringent emission
control program for the source in question.
Overall, the ARB program for 197B-1981 model year
motorcycles is less stringent in the emission standards chosen
i R. WILSON
shorthand reporters
(ซ't) S43-31MS461-S0M

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and the review and enforcement authority sought by ARB will
not reduce emissions in California, and not add any stringency
to the ARB program. If ARB is permitted to maintain an
emissions program which is merely parallel to EPA's, the
manufacturers will be forced to waste time and effort dealing
with a duplicative California program, and the consumers will
be forced to bear this cost.
At the ARB meeting of 24 March, the Board changed
the effective date of the 1.0 g/km standard from the 1982
production year to the 1982 model year. In effect, this is
about a nine month reduction in lead time to meet the 1.0
g/km standard.
Almost one year has passed since the EPA waiver
hearing in 1976. In this year, no significant advances have
been made which indicate that Suzuki would be able to meet the
1.0 g/km HC standard for its 1982 model year motorcycles.
Perhaps a review of Suzuki's situation would help
to show that a 1.0 g/km HC standard for 1982 model year
motorcycles is not consistent with Section 202(a) of the
Clean Air Act, and that federal preemption of California's
standards therefore cannot be waived.
Suzuki is currently in the process of certifying
our 1978 model year motorcycles produced on and after
January 1, 1978. We will meet these standards by a combina-
tion of engine modifications for some two-stroke models and
conversion to four-stroke for other models. In order to meet
the 1980 model year emission standards, conversion of more
models to four-stroke engine designs will be required. We
I Ft. WILSON
SHORTHAND REPORTERS
WIS) 543-3194/461-30M

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estimate that this conversion would not be completed until
after April 1979, and might not be completed until August
or September of 1979.
Even if conversion is completed by April 1979 for
our 1980 models, this leaves only slightly more than one year,
until June 1980, to complete research and development to meet
the 1982 model year standard of 1.0 g/km. Research and
development for 1982 models must be completed by June 1980 to
allow for certification of 1982 models to be completed by
April 1981, when 1982 model production will begin. For Suzuki
to meet a 1.0 g/km standard, this will require conversion of
all models to a four-stroke engine design.
Clearly, .it will be impossible for Suzuki to convert
the rest of its product line to four-stroke engine designs
between April 1979 and April 1981,. considering the engineering
which is involved in designing new motorcycle models, con-
sidering the additional engineering required for exhaust
aftertreatment and/or other additional emission control tech-
nology required in addition to four-stroke conversion, and
considering the great cost involved for conversion of models
to four-stroke designs. Suzuki is only now becoming familiar
with four-stroke emission control technology, having only
recently started producing four-stroke motorcycles.
The problem of meeting a 1.0 g/km HC standard for
the 1982 model year is not only a problem of unavailability of
technology to Suzuki within the remaining three year lead time,
but also a problem of unavailability of engineers to work on
these programs. In addition to four-stroke conversion and
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTER8
(418) 543-3194MS1-30M

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four-stroke emission control programs, we have recently
embarked on a motorcycle evaporative emission control study
program and a fuel fill pipe specification program due to
recent actions by the California Air Resources Board.
Expected action by the U. S. Environmental Protection Agency
regarding motorcycle sound level control will place addi-
tional major demands on our engineering staff in the same
time frame as the 1980 and 1982 emission standards. Our
staff will find this burden especiallydifficult not only
because of the workload burden but also because of the
adverse interaction between emission control technology and
sound level control technology.
Regulation-related engineering requirements have
expanded so greatly and rapidly within the past several years
that Suzuki is, quite frankly, overloaded with engineering
work. We need more engineers, but our engineers who have
been recently assigned to those programs have only limited
experience in emission control or sound control problems,
and new engineers, like recently reassigned engineers, are
limited in availability, and in experience in these areas.
In summary, Suzuki cannot meet a 1.0 g/km HC
standard for 1982 model year motorcycles taking into account
the time necessary for research and development of the
technology necessary for us to fulfill market demand for 1982
model year Suzuki motorcycles in California, taking into
account the cost of compliance.
At the Air Resources Board public hearing of
24 March 1977, the Board adopted the EPA test procedures to
i R. WILSON
SHORTHANO REPORTERS
(419) M3-31M/46i.;joM

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determine compliance with their HC limits. Section 1958(f)
of the amended Title 13, California Administrative Code,
provides, however, that if all or part of the EPA test
procedures are found to be invalid or unenforceable, then the
1976 California test procedures shall be. used to determine
compliance. This Section 1958(f) creates the possibility
that all of the mileage accumulation and emission data testing
for California motorcycles might be made invalid in the middle
or near the end of such testing. This could occur if part of
the EPA test procedure is ruled invalid and testing must be
redone using the California procedures. Clearly, such a risk
is not consistent with Section 202(a) when "... giving
appropriate consideration to the cost of compliance...". The
cost of compliance could be as expected, or could be much
higher if massive retesting is required by a test procedure
change.
The October 1 waiver must also be reconsidered in
its application to ARB's previous HC standards of 10, 5, and
1.0 g/km. The 10 g/km standard for 1978-1979 model motor-
cycles is less stringent than applicable federal standards.
The five g/km standard for 1980-1981 model motorcycles is
identical to the applicable federal HC standard, but is less
stringent than the applicable federal regulations of both
HC and CO. The waiver for the 1.0 g/km standard for 1982
and later model motorcycles must be withdrawn because, as
discussed earlier, it is not consistent with Section 202(a)
of the Clean Air Act. The entire October 1, 1976 waiver must
be withdrawn since the Administrator's finding No. 2 can no
THOMAS R. WILSON
CERTIFIED SHORTHAND REPORTERS
(416) S43-3194MS1-30M

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SUZUKI
longer be made for the 1978-1981 standards and finding No. 4
can no longer be made for the.1982 standard.
In closing, Suzuki feels the October 1, 1976 waiver
must be withdrawn since the requisite findings can no longer
be made. Suzuki further believes that the existing waiver
cannot be modified, and no new waiver can be granted, to
waive preemption for the 1978-1981 standards because the
California standards are less stringent than applicable
federal standards. We feel that the existing waiver cannot
be modified, and no new waiver can be granted, for the 1982
and later model year standards at least for the 1982 model
year because this standard is not consistent with Section
202(a) of the Clean Air Act. Finally, we feel that the
existing waiver cannot be modified, and no- new waiver can be
granted, for the entire California program because Section
1958(f) of Title 13, California Administrative Code, makes
the California program inconsistentwith Section 202(a) of the
Clean Air Act.
Thank you. I would be happy to answer any
questions that you might have, or ask our staff to supply
any information that might be helpful.
MR. GRAY: Would you try stating in somewhat
different words the basis of your recommendation that the
existing waiver for California for the '82 standard should be
withdrawn?
MR. WALSH: What different words would you like me
to use?
MR. GRAY: You said it cannot be made. Would you
HOMAS R. WILSON
KRTIPICD SHORTHAND REPORTERS
(418) 543-3194/461-3098

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explain why it cannot be made?
MR. WALSH: The findings required under Section
209?
MR. GRAY: With respect to the constraints, you know,
of these hearings, yes.
MR. WALSH: For the 1982 model year standard?
MR. GRAY: Yes, with respect to the changes that
have occurred since that time that would impact upon whether
that waiver stays in effect or is revoked, what basis is there
to suggest that waiver should be revoked?
MR. WALSH: Okay. This is for the one-gram
kilometer standard for 1982 model year motorcycles after
January 1st, 1982, production?
MR. GRAY: Yes.
MR. WALSH: Okay. Well, a year has gone by since
the last waiver hearing. In this time, Suzuki has made no
significant progress towards accelerating our compliance with
the one-gram standard. Since the time has passed, the time is
closer to implementation of such a program, and the Administra-
tor is closer — can make a nearer-term finding that the
available technology does not exist within the lead time
remaining, taking into account the cost of compliance to make
that standard consistent with Section 202(a) of the Clean Air
Act.
MR. GRAY: Since such findings appear to be beyond
the factors we can consider here, is there anything else —
Those findings were made prior to October, 1976 and were the
basis of that waiver. Is there anything changed that would
THOMA8 R. WILSON
CIWIFIID SHORTHAND REPORTINS
(418) S4S-31MU61.3QM

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make that decision improper at that time that we can consider
here?
MR. WALSH: Well, if the Administrator is going to
reconsider his October 1st, 1976, waiver, I think he certainly
could, and should, consider the available technology situation
as it exists at the time of the new determination.
MR. GRAY: I guess I'm — I'm at least a bit con-
fused in regard to, once again, what we are trying to deal
with here. Has the adoption of federal regulations made some
aspect of the previous waiver more stringent?
MR. WALSH: With regard to 1982?
MR. GRAY: Yes.
MR. WALSH: No. My comments regarding reconsideratior
of the 1982 waiver at this hearing are based on EPA's stated
intent of reconsidering this waiver. And so I thought the
Administrator would reconsider his waiver in the light of
available technology.
CHAIRMAN JACKSON: In the light of a federal action,
federal action being adoption of standards up to '81, which
were encompassed by, or that were paralleled by California
standards, and after '81 there was a standard on California
books that was different, and we didn't say that we were
reconsidering that one.
But it's only in light of the federal action. What
aspects of the federal action makes the 1982 standard require-
ment any different?
MR. WALSH: Okay. Well, this federal action, this
hearing, seems to me to open for reconsideration the validity
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SHORTHAND REPORTERS
(418) 543-31S4/461-30M

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SUZUKI
208
of the preexisting waiver for the 1982 production year
standard. And I thought the Administrator would want to take
the opportunity to reexamine the 1982 standard in light of the
situation as it currently exists.
If that is incorrect, then my comments are not
perfectly within line.
CHAIRMAN JACKSON: What we are looking for is some
more concrete indicia of a different situation that has been
created as a result of the federal action other than your
desire to ask the Administrator to reconsider anew the whole
issue of an '82 standard. What aspect of the federal action
has changed the situation with regard to the conditions under
'which the waiver was granted to California for 1982 model year
standards?
MR. WALSH: Okay. Well, the waiver was granted
under the condition that the Administrator might review the
waiver once he promulgated federal regulations. He has pro-
mulgated federal regulations, and the time has come now to
reexamine the existing waiver.
CHAIRMAN JACKSON: Reexamine it from the point of
view is it still more stringent than applicable federal
requirements?
MR. WALSH: The 1982?
CHAIRMAN JACKSON: Yes.
MR. WALSH: The older 1982 standards?
CHAIRMAN JACKSON: Is the California program still
more stringent in 1982 than the recently promulgated federal
program?
THOMAS R. WILSON
C8RTIPICD SHORTHAND REPORTERS
(418) 545-3194/461-309ฎ

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MR. WALSH: Which California program? The 1982
production year standard or the 1982 —
CHAIRMAN JACKSON: The one-gram per kilometer.
MR. WALSH: It's more stringent in either case, but
there is a difference in the date of implementation.
CHAIRMAN JACKSON: Okay. Now, what argument are you
making with regard to the day of implementation?
MR. WALSH: It's lead time.
CHAIRMAN JACKSON: Is that a lead-time argument?
MR. WALSH: Especially with regard to those models
which could comply if the program was effective on a production
year basis. It's related to market demand as far as our
competitive position goes and being able to meet the standard.
It's related to the year of elapsed time since the last waiver
hearing as having no significant — as there being no signifi-
cant technology developments in that time, and in being
related to the manufacturers marketing plans in the same way
as if the standard had been changed almost by a full model
year.
CHAIRMAN JACKSON: This questioning has proceeded
on this line. What has — What impact would it be on
Suzuki to change its model year introduction date from normal
business to something that comports with the calendar year
requirement for 1982 standards?
MR. WALSH: Are you looking for a specific impact or
• a general impact?
CHAIRMAN JACKSON: Whatever impact it is upon which
you base your contention that you have got a problem now that
HOMAS R. WILSON
ERTIPIED 8HOHTHANO REPORTERS
(418) M-31MM61-30M

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SUZUKI
210
you didn't have before?
MR. WALSH: There would be a significant problem that
we would have in offering a full line of motorcycles for sale,
198 2 motorcycles for sale, in California, and that would affect
our competitive position.
CHAIRMAN JACKSON: Why? Everybody else is going to
be in the same situation.
MR. WALSH: I think it would be hasty to assume that
just because Harley-Davidson, Kawasaki, Yamaha and Suzuki might
be in that position, that everybody would be in that position.
CHAIRMAN JACKSON: Do you know of somebody that
won't be?
MR. WALSH: I don't work for anybody else.
CHAIRMAN JACKSON: I just asked you if you knew
there was anybody else in that position?
MR. WALSH: No, sir.
CHAIRMAN JACKSON: Well, you still haven't given me
anything that is very lucid on why you are going to have this
competitive problem and what economic effect it's going to
have, if any, on the corporation. In other words, if that's
the sole difference between the preexisting conditions with
regard to the California '82 standards and what they have now,
and there is some reason for that impact to be analyzed, you
should give us some information upon which we could make some
sort of a determination other than you believe that there will
be competitive impacts, or it will affect in some way your
offerability.
MR. WALSH: Okay. We suspect that it's foreseeable
I R. WILSON
SHORTHAND REPORTERS
(418) 543-3194/461-30M

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211
that in the 1982 model year, if the ARB program as revised
went into effect that we would have competitors who would have
models available for which we had no competing model and that
these models — and we would, therefore, lose that part of the
market for which we did not have models available.
CHAIRMAN JACKSON: Is that related to the 1982
standards and your inability to meet it with your full model
line, or is it related to the introduction date?
MR. WALSH: It's related to both, depending on the
model.
CHAIRMAN JACKSON: Would you tell me how it's
related to the introduction date?
MR. WALSH: In terms of the date at which a model
is introduced?
CHAIRMAN JACKSON: In terms of the difference
between the amended California procedures which requires the -
now requires the federal model year definition as opposed to
the previous definition that was calendar year?
MR. WALSH: Because we have limited production
capacity, there would be some 1982 models which we would
manufacture entirely in 1981 in all likelihood. If this was
the case, we would not plan a major change on January 1st,
1982, unless those models would be introduced complying with
five and 12 regulations of EPA and the five-gram standard of
ARB if a waiver is granted for that standard. If the ARB
program is changed strictly to a model year program, we would
not be able to introduce that model at all, and that could
impact us greatly.
I R. WILSON
SHORTHAND REPORTERS
(419) M3-3194f461-MM

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CHAIRMAN JACKSON: Can you explain to us how that's
going to impact you some way or another, definitive way?
MR. WALSH: By lost sales to competitors.
CHAIRMAN JACKSON: That's sort of a speculative
kind of a thing, isn't it?
MR. WALSH: As speculative as meeting a one-gram
standard in 1982, I suppose.
CHAIRMAN JACKSON: Okay. Mr. Walsh, thank you very
much.
MR. WALSH: Thank you.
CHAIRMAN JACKSON: We will reconvene the hearing at
10:00 o'clock in the morning.
(Whereupon the hearing was recessed at the hour of
5:55 o'clock p.m.)
	oOo	
JR. WILSON
SHORTMAMO MHWtTXM
(ซ1ป S4341S4/441-30M

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