Noise Law FAQ, or Fact Versus Fiction
Updated on December 25th, 2011
The people promoting the "EPA label match-up program", state or local EPA label laws and other noise related laws, ordinances and rules eagerly speak of many things as if they were facts. Many of these "facts" are hyperbole, misinformation, scientifically improbable, utterly impossible, unsubstantiated, and in many cases simply made up. This document attempts to distinguish between anti-noise activists' flights of fancy, and reality. We do not believe in fighting propaganda with propaganda. Here we answer allegations with well researched facts. Think of this page as the Snopes.com of motorcyclists' rights arguments. Relevant sources and resources are listed at the bottom of this document.
This page is an ongoing work. Come back periodically to check for updates. Look carefully - the updates are often inserted near other relevant items rather than at the beginning or end of the page. If you have corrections to existing topics or further information to add to existing topics, or if you have additional topics and answers that you believe would be useful, please email them to firstname.lastname@example.org and mention this Noise Law FAQ page. You may also use that email address to supply other information that you think may help this web site's overall goals as an information clearinghouse on noise issues and on the people whose battles against noise have made them enemies of motorcycling and motorcyclists' civil rights as a result. If you wish to help keep this page going, you are encouraged to contribute any amount you're comfortable with via PayPal, thanks!
Summary of Fictions
Links and references
Fighting EPA label summonses
FICTION: The EPA label match-up program.
FACT: There is no match-up program.
The match-up concept may be found in the legislative intent (see indents below) behind Subchapter G of CFR Title 40, which took its current form in 1976 as a result of the Noise Control Act of 1972. The intent of Title 40 Part 205 was to eventually require muffler labeling on automobiles and trucks as well as motorcycles, and to eventually update Title 40 (which is a regulation governing manufacturing only) to make it suitable for adoption into local law. The Office of Noise Abatement and Control (ONAC) was dismantled in 1981, long before those intentions could be carried out, along with many others, leaving Title 40 only partially implemented and effectively abandoned.
"EPA's approach in developing tools which States and localities can adopt has three phases.
The first phase, which is currently in operation, is the development and publication of model legislation for vehicle operation controls (street pass-by-limits) and visual inspection of exhaust systems. This is being carried out in a Joint project with the National Association of Noise Control Officers (NANCO). As indicated earlier, a number of cities have already adopted these types of control. Assistance to communities and States in drafting this type of legislation and in carrying out enforcement is also provided through the ECHO program, Regional Technical Centers and the EPA Regional Offices.
In the second phase, which will precede the effective date of the national emission regulation, the EPA will develop model legislation to Implement the "label match-up" scheme and anti-tampering controls against new (regulated) vehicles. "
Notice the wording. It never happened.
"In the development of all model legislation (and particularly the label "match-up" and anti-tampering provisions) the EPA will seek extensive review by State and local noise central personnel, police and legal officials and the industry. If there are difficult points, it may be necessary to field test some of the model laws prior to publication for voluntary adoption by interested States and cities."
None of this ever happened.
Since Congress never repealed the Noise Control Act, the EPA continues to have a statutory responsibility to implement it. Three decades following the loss of ONAC, the EPA has done nothing with Part 205.
FICTION: EPA labels on motorcycles and their exhaust systems are intended to be used as a tool for local law enforcement.
FACT: The labels were intended to be used as controls against tampering. The EPA failed to follow through on model legislation and review by state and local authorities, which were also key parts of the legislative intent. The Federal regulations as they exist now are an incomplete work, abandoned by the EPA.
Laws are enforced on their word and on interpretation of their word. If their word has failed to conform to their intent it is the job of lawmakers and regulators to amend the laws accordingly.
FICTION: EPA label laws would be fair and easy to enforce; no more difficult than looking for an inspection sticker because all motorcycles are supposed to be equipped with easily visible EPA labels.
FACT: This opinion ignores the fact that motorcycle manufacturers do not reliably adhere to the Federal labeling regulations.
Title 40 Part 205 requires manufacturers to make the EPA labels in "block letters and numerals, which shall be of a color that contrasts with the background of the label" and "welded, riveted, or otherwise permanently attached in a readily visible position."
A recent survey of new, unmodified motorcycles on showroom floors confirmed that almost no motorcycles' exhaust systems complied to the color contrast requirement, the labels being nothing more than shallow stampings into the metal. Between one and two thirds of the motorcycles' labels were difficult to locate and read, to varying degrees. A few models' labels were literally impossible to inspect without partial disassembly of the motorcycles. Labels often faced down toward the ground or toward wheels, faced into heat shields, body panels, saddle bags or storage compartments, and/or were obscured by factory paint or powder coating.
When Part 205 was written, motorcycles were very different from what they are today. Mufflers were simple chromed or black metals cans that always hung to the side of a motorcycle in plain view. Nowadays they can be under the engine, under the seat or buried inside frame components. They can be chromed or they can be painted, powder-coated, polished, etc. The field provisions for exhaust labeling were never tested in the first place. They certainly have not kept up with changes in technology.
Since exhaust systems are traditionally installed in places where grease and road grime quickly accumulates and since label placement and visibility is not reliable, it may not even be possible to rely on inspection lights and mirrors to inspect labeling. Most motorcycle owners are not aware of the existence of this labeling much less its location, leaving them unable to assist.
Many proposed laws based on EPA labels have been aimed at parked, unattended motorcycles, which would leave law enforcement officers entirely on their own to locate the labels.
Attempts to locate these labels on idling or recently shut-off motorcycles puts law enforcement officers at risk of burn injuries from hot exhaust systems and on newer motorcycles, even hotter catalytic converters.
Attempts to locate these labels on parked motorcycles with saddlebags, side cases or other accessories in the vicinity of where labeling is thought to be, may require law enforcement officers to tamper with private property without reasonable suspicion of a violation.
Training to locate and correctly discern EPA -mandated exhaust labels will not be straightforward or simple.
Earnest efforts to locate EPA labels on motorcycle exhaust systems will involve messy, dangerous, unpleasant work, leaving motorcycle owners concerned about the likelihood of lazy quota driven law enforcement officers writing unjust summonses.
FICTION: All motorcycles manufactured since 1982 with legal, federally compliant exhaust systems must bear EPA labels.
FACT: Watch the wording. The EPA labels are a manufacturing and sale requirement only. The manufacturer is indeed obligated to label the exhaust systems of all motorcycles. Title 40 does not prohibit the end user or even licensed mechanics from removing, tampering with or obscuring the EPA labels. The EPA label under current Federal law is nothing more than a manufacturer's assurance of compliance with Federal noise regulations, much like the tag on your mattress is an assurance to the end user that it meets Federal safety regulations for toxicity, allergens, fire resistance, etc.
Per legislative intent, the EPA model ordinance states:
Under these provisions, manufacturers will be required to label both the motorcycles and the exhaust systems indicating the types and models of new (Federally regulated) motorcycles for which the exhaust system is designed, and whether the system is designed for pre-regulated or competition vehicles. The manufacturer has to assure that these systems when installed on a regulated motorcycle, will not cause that motorcycle to exceed the Federal standard."
FICTION: Even Australia requires motorcycle exhaust systems to have EPA labels.
FACT: It has been claimed that in Australia, "a permanent label must be affixed and remain on to signify legal pipes". This is both incorrect and outdated. In 2000, the Australian state of New South Wales (NSW) did introduce a labeling law pertaining specifically to aftermarket mufflers for motorcycles. That law was repealed in 2006 after many complaints of abuse by law enforcement and lack of due process. No other states in Australia are known to ever have had any kind of laws mandating the existence of exhaust labels on motorcycles. Australia does not have a national law governing motorcycle exhaust labeling.
FICTION: It would be easy to match frame labels to exhaust labels.
FACT: The regulations governing placement of the frame labels do not guarantee the visibility of those labels. The frame labels are not placed in consistent locations and are frequently not visible without partial disassembly of the motorcycle.
Just as motorcycle mufflers have evolved since the EPA regulations were written, so too have motorcycles themselves, and so too have consumers' inclinations toward customization. Motorcycles are no longer designed around simple twin-spar tubular steel frames, and many now feature fully enclosing bodywork that was unheard of thirty years ago. Even then owners would paint frames and now they even polish the frames. A few exotic motorcycle models don't even have frames!
No law or regulation has ever existed which compelled consumers to maintain the labels placed on motorcycle frames. By law the only required markings which may not be defaced or obscured are the VIN codes.
Does anyone believe law enforcement will back-trace VIN codes to vehicle model codes just to check if the muffler code matches?
FICTION: It is illegal to operate a motorcycle on the USA's highways without an EPA label.
FACT: The EPA labels are a manufacturing and sale requirement only. Title 40 does not prohibit the end user or even licensed mechanics from removing, tampering with or obscuring the EPA labels. The EPA label under current Federal law is nothing more than a manufacturer's assurance of compliance with Federal noise regulations, much in the way that the tag on your mattress is an assurance to the end user that it meets Federal safety regulations for toxicity, allergens, fire resistance, etc. There are no Federal or State laws anywhere in the United States requiring the presence or maintenance of the EPA exhaust label on a motorcycle after sale.
Part 205 expressly allows the motorcycle owner to make any exhaust system modifications which do not result in sound output in excess of that permitted by Part 205. Part 205 explicitly excludes from the definition of "tampering" and thus from their prohibitions, any such modifications. Since the label is cosmetic and is not a noise mitigating element of the exhaust system, tampering with that label is not prohibited. It is perfectly legal to operate a motorcycle without an EPA labeled muffer.
Note that sections 205.162, and more importantly, 205.173 - "In-use requirements" for the motorcycle and exhaust system respectively - make no mention of the labeling.
Section 10 of the Noise Control Act (42 USC 4909) prohibits "removal or rending inoperative by a person, other than for purpose of maintenance, repair, or replacement, of any device or element of design incorporated into any product in compliance with regulations under section 6, prior to its sale or delivery to the ultimate purchaser or while it is in use, or [...] removal by any person of any notice affixed to a product or container [...] prior to sale of the product to the ultimate purchaser."
The EPA label is the notice; it is not a device or a design element. The NCA is very clear on this matter.
FICTION: It is illegal to install an exhaust system that is not certified by the EPA.
FACT: Federal EPA law requires the owner's manuals of motorcycles manufactured after 1982 to incorporate the following warning:
"Tampering with Noise Control System Prohibited."
"Federal law prohibits the following acts or the causing thereof; (1) the removal or rendering inoperative by any person other than for purposes of maintenance, repairs, of replacement of any device or element of design incorporated into any new vehicle for the purpose of noise control prior to its sale or delivery to the ultimate purchaser or while it is in use, or (2) the use of the vehicle after such device or element of design has been removed or rendered inoperative by any person. Among those acts presumed to constitute tampering are the acts listed below: removing or puncturing the muffler, baffles, header pipes, screen type spark arrester (if equipped) or any other component which conducts exhaust gases; replacing the exhaust system or muffler with a system or muffler not marked with the same model specific code as the code listed on the Motorcycle Noise Emission Control Information label, and certified to appropriate EPA noise standards; removing or puncturing the air cleaner case, air cleaner cover, baffles, or any other component which conducts intake air."
The owner's manuals are not legally binding documents, nor can they be interpreted as a shrink wrap agreement. And Federal EPA law actually falls short of itself prohibiting the installation of exhaust systems which are not compliant with Part 205. Federal EPA law prohibits only the manufacturer of exhaust systems which are either not correctly labeled or fail to perform in accordance with their labeling.
Most states have laws requiring mufflers in good working order, etc.
The in-use provisions of the Noise Control Act only forbid "removal or rendering inoperative by any person, other than for purposes of maintenance, repair, or replacement, of any device or element of design incorporated into any product in compliance with regulations under section 4905".
FICTION: DOT labeling on motorcycle helmets is meant to be enforced in a similar fashion to the EPA labeling on motorcycle exhaust systems, including prohibitions on tampering with the helmet as well as the label. In both cases, the Federal regulation requires the labels to be "permanent". States are free to adopt Federal helmet regulations including its labeling requirements, and they do so, further proving that states may adopt 40 CFR Part 205 to enforce labeling of motorcycle exhaust systems.
FACT: A red herring and inaccurate both factually and legally.
In detail, helmets in the USA are governed by 49 CFR 571.218, a.k.a. FMVSS (Federal Motor Vehicle Safety Standard) 218. This is the standard for helmets approved by the US DOT, and the standard includes specifications for a DOT marking on such helmets. Any state which has a helmet law adopts by incorporation FMVSS 218 as the required standard for their motorcycle safety helmets.
In the case of FMVSS 218, this regulation requires helmet manufacturers to provide warnings to consumers about the perils of modifying helmets and using certain chemicals, but consumers are in no way prohibited from doing so. This is starkly different from 40 CFR 205, as Part 205 also requires warnings to consumers but does prohibit tampering which affects the functionality (only) of the regulated product, and carries penalties via the Noise Control Act.
While the Federal helmet regulation does require the manufacturer to apply a DOT label at the back of the helmet and even specifies its size and visibility, it has been proven that the DOT labels on motorcycle helmets are not required to be maintained by the consumer. New York State even repealed a DMV regulation requiring the presence of those labels.
Just as law enforcement recognizes that exhaust system noise can be objectively evaluated, so too can the difference between ineffective novelty helmets and DOT/FMVSS -compliant helmets.
FICTION: The EPA labels on motorcycle exhausts have no legal similarity mattress tags; that the word "permanent" used in Federal regulations to describe EPA mandated muffler labels and even DOT labels in helmets implies that those labels are meant never to be removed by anyone, ever.
FACT: The use of the words like "permanent" in either regulation does not implicitly prohibit consumers from defacing, obscuring or otherwise tampering with the labeling after purchase of the respective regulated product. In fact, the Federal law governing mattress labels (16 CFR 1632 - a Consumer Product Safety Commission law) also uses the word "permanent". And much like the law governing EPA exhaust labeling, the CPSC law also forbids removal or defacement of the label except by the ultimate consumer.
49 CFR 571.218 (applicable to motorcycle helmets)
S5.6.1 Each helmet shall be labeled permanently and legibly, in a manner such that the label(s) can be read easily without removing padding or any other permanent part, with the following:
(a) Manufacturer’s name or identification.
(b) Precise model designation.
(d) Month and year of manufacture. This may be spelled out (for example, June 1988), or expressed in numerals (for example, 6/88).
(e) The symbol DOT, constituting the manufacturer’s certification that the helmet conforms to the applicable Federal motor vehicle safety standards. This symbol shall appear on the outer surface, in a color that contrasts with the background, in letters at least 3⁄8 inch (1 cm) high, centered laterally with the horizontal centerline of the symbol located a minimum of 11⁄8 inches (2.9 cm) and a maximum of 13⁄8 inches (3.5 cm) from the bottom edge of the posterior portion of the helmet.
(f) Instructions to the purchaser as follows:
(1) ‘‘Shell and liner constructed of (identify type(s) of materials).
(2) ‘‘Helmet can be seriously damaged by some common substances without damage being visible to the user. Apply only the following: (Recommended cleaning agents, paints, adhesives, etc., as appropriate).
(3) ‘‘Make no modifications. Fasten helmet securely. If helmet experiences a severe blow, return it to the manufacturer for inspection, or destroy it and replace it.’’
16 CFR 1632 (applicable to mattresses and mattress pads)
Subpart B—Rules and Regulations
§ 1632.31 Mattresses/mattress pads—labeling, recordkeeping, guaranties and ‘‘one of a kind’’ exemption.
(1) All mattress pads which contain a chemical fire retardant shall be labeled with precautionary instructions to protect the pads from agents or treatments which are known to cause deterioration of their flame resistance. Such labels shall be permanent, prominent, conspicuous, and legible.
(2) If a mattress pad contains a chemical fire retardant, it shall be prominently, conspicuously, and legibly labeled with the letter ‘‘T’’.
(3) Each mattress or mattress pad subject to the Standard shall bear a permanent, accessible, and legible label containing the month and year of manufacture and the location of the manufacturer. (See § 1632.1(i) of the Amended Standard.)
(4) The information required on labels by this section shall be set forth separately from any other information appearing on such label. Other information, representations, or disclosures, appearing on labels required by this section or elsewhere on the item, shall not interfere with, minimize, detract from, or conflict with the required information.
(5) No person, other than the ultimate consumer, shall remove or mutilate, or cause or participate in the removal or mutilation of, any label required by this section to be affixed to any item.
40 CFR 205 (applicable to street motorcycle exhaust systems, post 1983)
Subpart E--MOTORCYCLE EXHAUST SYSTEMS
§ 205.169 Labeling requirements.
(a) The manufacturer of any product (including the manufacturer of newly produced motorcycles) subject to this subpart must, at the time of manufacture, affix a permanent, legible label, or mark of the type and in the manner described below, containing the information provided below, to all such exhaust systems or exhaust system components to be distributed in commerce.
(b) The labels or marks shall be affixed in such a manner that they cannot be removed without destroying or defacing them, and must not be applied to any part which is easily detached from such product.
(c) The label or mark shall be in a readily visible position when the exhaust system or exhaust system component is installed on all motorcycles for which it is designed and marketed.
(d) All required language shall be lettered in the English language in block letters and numerals in a color that contrasts with its background.
(e) The label or mark must contain the following information:
(1) For exhaust systems subject to the noise emission standards of §205.166:
(i) The label heading: Motorcycle Exhaust System Noise Emission Control Information;
(ii)(A) For original equipment and replacement exhaust system, the following statement:
This (manufacturer's name) exhaust system (serial number) meets EPA noise emission requirements of (noise emission standard) dBA for the following motorcycles: (list of model specific codes). Installation of this exhaust system on motorcycle models not specified may violate Federal law.
(B) For exhaust system components designed and marketed for motorcycles, and tested in accordance with §205.168 as a constituent of a complete exhaust system comprising non-original equipment components (other than itself), as provided for in §205.166(b)(3), the following statement:
This (manufacturer's name) (type of component) (serial number), when installed with a legal (type of component), meets EPA noise emission requirements of (noise emission standard) dBA for the following motorcycles: (list of model specific codes). Installation of this exhaust system components on motorcycle models not specified may violate Federal law.
(iii) The model specific code must be the same as used by the motorcycle manufacturer and described in §205.158(a)(6).
FICTION: Motorcycles with aftermarket exhaust systems exhibit increased air pollution output.
FACT: Partially correct, but a red herring when the discussion revolves around noise. Motorcycles with aftermarket exhaust systems which are designed for competition use, have not been designed for the specific application and/or which have not been matched with appropriate carburetion or EFI map modifications, will usually exhibit an increase in air pollution emissions.
Conversely, an appropriate aftermarket exhaust system attached to a properly adjusted engine should not yield an increase in air pollutants. Unburned hydrocarbons are a sign of lost efficiency and therefore lost performance, so qualified mechanics use HC measurements as a tool for successful engine tuning.
It is true that many people choose aftermarket exhaust systems without regard to performance, or do not make the proper engine adjustments when installing properly designed aftermarket exhaust systems.
There are many other modifications often made to motor vehicles - completely unrelated to mufflers or the exhaust gas circuit - which may also result in increased pollutant output.
FICTION: The EPA noise label is also a pollution emissions certification.
FACT: The EPA exhaust label on a motorcycle's muffler is nothing more than a manufacturer's guarantee that the equipment is compliant with the Federal noise regulations set forth in CFR Title 40 Part 205. That label has no bearing whatsoever on pollutant emissions.
FICTION: EPA label laws are the only viable way to deal with the problem of excessive motorcycle noise.
FACT: There are potentially at least three ways to fight the problem of excessively noisy motorcycles. Viability is a matter of opinion.
One type of law, which most states already have, makes it illegal to use mufflers without any baffles at all - so called "open pipes" - as well as making it illegal to tamper with the baffles inside the muffler, such as drilling or punching holes. In some cases this may be tied to periodic vehicle inspection guidelines.
The second type of law is to set a specific, objective limit to the level of noise, measured in units called dB or decibels. Most states already have laws like this as well.
The third and most contentious type of law is one which requires the presence of EPA -mandated OEM labels on motorcycle exhaust systems. This would supposedly offer simple visual confirmation of the legality of the muffler.
In reality the problem of noisy motorcycles is not due to lack of effective laws but lack of enforcement. More and more legislation is not the way to solve poor enforcement.
Laws against open pipes and tampered baffles are the simplest and easiest to enforce. Law enforcement personnel only need tools which they already carry - baton and flashlight - and these laws are the easiest way to punish the noisiest offenders.
Laws which limit noise to specific levels are actually the most fair and objective but require tools - SPL (Sound Pressure Level) meters - that most law enforcement personnel do not normally utilize. Considering the growing backlash against noise from a wide variety of everyday sources, we believe that sound meters really should be added to the usual suite of modern law enforcement tools such as blood alcohol analyzers and speed measuring equipment.
Laws which focus solely on the presence of an EPA label are great in concept, but are dangerous because the federal regulation mandating the labels does not require consumers to maintain those labels after purchase or even know they exist. Motorcycle and exhaust system design has also changed greatly since the regulations were written, making proper compliance difficult for manufacturers. Many motorcycles' muffler labels are not readily visible and would offer challenges to law enforcement in the field. And the label is no guarantee that the muffler's baffling is in good working order.
Objections to the sound limit approach revolve primarily around the expense of sound (SPL) meters, concerns about training and skepticism of enforceability. As a practical law enforcement comparison, certified SPL meters suitable for enforcement are available for as little as one third the cost of breathalyzers and breathalyzers require at least as much training and end-user certification. There is still training involved in proper label location and identification and while radar, laser and even breathalyzer results are routinely challenged in court, refinements in officer training and procedures have made most of those challenges futile.
Other arguments focusing efforts toward EPA label laws involve the extraordinary difficulties in utilizing the federally incorporated J331A test in the field for enforcement purposes. The SAE - the same organization that designed J331A - have since created a new test procedure J2825 (commissioned by the AMA and the MIC) designed to greatly simplify field testing of motorcycle noise, and the AMA has written model legislation to allow utilization of the new field testing procedure. A similar procedure and law has been in effect for many years in New Hampshire, pre-dating J2825 and based on the SAE techniques used for testing off-road motorcycle noise, J1287. The J2825 procedure is actually more restrictive. Both J1287 and J2825 are also similar to J1169, which is incorporated into the vehicle and traffic laws of Maine, Washington State and California.
It is worth noting that CFR sections 205.154 and 205.167 specifically allow the consideration and approval of alternative test procedures if their results can be proven to correlate with the results from J331A test procedures. While these sections apply to manufacturers of motorcycles and exhaust systems respectively, as Part 205 governs only manufacture, these allowances indicate that field enforcement should also be able to successfully rely on equivalent alternative test procedures.
Conversely, the Noise Control Act prohibits local "regulations which conflict with those prescribed by the Administrator." That means that states and municipalities may not adopt regulations which are more (or less) restrictive than current federal regulations for noise.
FICTION: SPL meters are prohibitively expensive and police departments cannot afford them.
FACT: The cost of professional grade Type-1 sound pressure level meters today is competitive with the cost of NHTSA approved breath alcohol analyzers. SPL meters are also far less expensive than radar and laser speed measuring equipment, yet no police department has ever hesitated to invest in that. Additionally, the Noise Control Act provides for Federal funding to purchase SPL meters and related needs.
SPL meters should be considered an investment rather than a cost. The expenditures can be recovered via fines within months, if in fact the noise problems are as serious as complainants insist. The same meters can also be used for enforcement of other community noise standards, not just motor vehicle or motorcycle noise standards, thus yielding even more income and further improving community quality of life.
FICTION: Field sound measurements using SPL meters will be too easily challenged in court.
FACT: Perhaps in the beginning, but in our opinion this will not be a major hurdle. When radar was first adopted for proving speed violations, many successful challenges were mounted and many summonses were thrown out or discounted. Over time, law enforcement agencies refined their training and operational procedures, improved their testimonies and presentations in court, and in turn their conviction rates skyrocketed. Likewise, early adopters of breathalyzers encountered some challenges and those too have been largely overcome. There is no reason to believe that enforcement of noise ordinances using objective measurement standards would be any different.
FICTION: Police won't carry SPL meters all the time, so enforcement of noise laws will suffer.
FACT: Indeed, police officers are not likely to carry SPL meters everywhere at all times. Certainly not on their person and perhaps not in all patrol vehicles either. The anticipated impact on enforcement makes an assumption however, that police impulsively enforce all laws at all times, quality of life and/or environmental in particular. We know this not to be the case.
SPL meters are tools, just like any other tool at an officer's disposal, to be used if and when an officer feels its use is necessary or warranted. The availability of a new tool or even a new law will not magically compel all officers to spend every working day enforcing that law and/or using that tool.
FICTION: EPA label laws would be effective for all Harley-Davidson motorcycles because all of their exhaust systems are in plain view.
FACT: Only partially correct, and buys into the myths that only Harley-Davidson motorcycles are loud and that all aftermarket exhaust systems will not be compliant with Federal noise regulations.
Does it make sense to write and pass legislation that applies only to one brand of motorcycle, and not even all models?
FICTION: Federal laws governing motorcycle exhaust labeling are designed to be adopted by states and local governments.
FACT: That is a misapplication of CFR Title 40 § 205.58-2 and § 205.162-2, which states:
"The provisions of this section are not intended to preclude any State or local jurisdiction from adopting and enforcing its own prohibitions against the removal or rendering inoperative of noise control systems on vehicles subject to this part."
Specifically, that section is not an invitation to directly incorporate entire chapters of the CFR and it most certainly is not an invitation to adopt the EPA's labeling requirements.
Every state that we know of has already taken advantage of their rights as established in these sections and have adopted prohibitions against removing or compromising the functional elements of motorcycle mufflers.
In addition, the abilities of municipalities to adopt such laws are limited by their charters with their respective governing states. The EPA issued a letter to the town of North Hampton stating that neither the NCA nor Part 205 grant localities additional authority to control environmental noise beyond what is available to them via state and other local laws. A court subsequently decided that North Hampton was not entitled to pass their own laws governing motor vehicle noise levels.
FICTION: The EPA stamp requirement on motorcycles is Federal law, and states and municipalities have the right to enforce the law.
FACT: The EPA stamp requirement is indeed a Federal law. But read the law carefully...
According to that law, the stamp must be applied by the "manufacturer" ("any person engaged in the manufacturing or assembling of new products, or the importing of new products for resale, or who acts for and is controlled by any such person in connection with the distribution of such products") onto "new products" ("a product the equitable or legal title of which has never been transferred to an ultimate purchaser") and the stamp must be present through the time of sale to the "ultimate purchaser" ("first person who in good faith purchases a product for purposes other than resale"), along with all noise emissions controls as installed by the manufacturer.
States and municipalities do in fact have the right to enforce that law, as the law states: "The provisions of this section are not intended to preclude any State or local jurisdiction from adopting and enforcing its own prohibitions against the removal or rendering inoperative of noise control systems on vehicles subject to this part".
The Federal law does NOT expressly allow states or local jurisdictions to adopt and enforce the presence of the EPA labels. The label is not itself a noise control.
FACT: The Federal law does not require the consumer to maintain the presence, visibility or readability of the EPA stamp after purchase.
Nearly all EPA stamps on motorcycles sold in the USA do not conform to the requirements for visibility and readability prescribed in the Federal EPA laws (CFR Title 40 Part 205).
Prohibitions against tampering do not include the EPA label. The law describes tampering as "removal or puncturing the muffler, baffles, header pipes, or any other component which conducts exhaust gases" or more broadly, "removal or rendering inoperative ... any device or element of design incorporated into any new vehicle for the purpose of noise control". The EPA label conducts no exhaust gases and does not actively or passively control noise.
FICTION: J2825 is an attempt by the AMA and/or the MIC to divert attention away from attempts to locally adopt Federal EPA label laws.
FACT: Chronology does not agree with this allegation. Anti-noise activists such as Richard Tur accuse the AMA of commissioning J2825 as a diversion from EPA label laws, but the AMA and MIC began work on funding and producing J2825 before the introduction of any known local or state legislation meant to adopt Federal EPA motorcycle exhaust label laws. Conception of J2825 also began shortly before the Spring 2006 publication of David B. Torrey & Jeffrey R. McCulley's paper, "Limiting Motorcycle Exhaust Noise Through Amendment of the Motor Vehicle Code and its Regulation" in the Temple Journal of Science, Technology & Environmental Law. That paper is the very basis for the strategy which Richard Tur and most other anti-noise factions follow regarding motorcycle noise.
That TJSTEL paper is literally a biblical text for the anti-noise coalitions' promotion of local laws attempting to incorporate Federal EPA label laws and promoting the EPA label match-up concept.
FICTION: EPA label laws are a simple, fair and equitable way to address excessive motorcycle noise.
FACT: The applicable sections of CFR Title 40 Part 205 amount to over FORTY printed pages. There is nothing simple about a law that is forty pages long.
FACT: EPA label laws address ONLY motorcycles, which seems to defy the concepts of fairness and equitability as they ignore the problems of other excessively noisy vehicles such as automobiles and especially trucks.
FACT: EPA label laws do not actually address noise at all. Highlighting this fact are the attempts to apply these laws to motorcycles which are parked and unattended. A parked motor vehicle makes no noise, and a factory label is not a realistic indication of how much noise a motor vehicle is capable of producing in the hands of the owner.
The only fair and equitable way to address excessive noise is to measure it. Consider if a police officer were permitted to write you a speeding ticket based on the largest number printed on your speedometer.
Between one third and one half of brand new motorcycles on the showroom floor today exhibit exhaust stamps that are not consistent with the Federal requirements for visibility, and/or which may be obscured by factory accessories and/or eventually, customer -installed accessories.
The positioning of readily visible muffler stamps makes those stamps vulnerable to damage from minor scrapes or tip-over incidents that motorcycle owners could otherwise easily ignore. We do not believe it is fair or reasonable to force those owners to spend hundreds of dollars to replace mufflers due to strictly cosmetic damage.
Stamps that are readily visible and even superficially consistent with Federal regulations may still be obscured by dirt and grease due to their location, and such laws would invite police officers to tamper with motorcycle equipment and risk burn injuries as they attempt to locate and read the EPA -mandated stamps.
We do not believe it is fair or reasonable to pass a law that has this much potential to punish honest, law-abiding citizens just because the manufacturer of their motorcycle failed to emboss a stamp in a sufficiently visible location or because natural designs result in the stamps being obscured.
FICTION: Many cities have have passed motorcycle noise laws based on the EPA labels.
FACT: First, note that NO states have passed working motorcycle EPA label related legislation since 1983 (see below). This we believe is not due to lack of constituents' pressures, but because state governments have access to more qualified, experienced legal resources than do small towns and cities, and larger governing bodies are more visible and are subject to the scrutiny of a much larger constituency. Those legal resources are able to see the myriad defects and complications involved in the citizens' attempts to adopt CFR Title 40 Part 205 into local law, and are justifiably reluctant to even attempt it.
FACT: As of this writing (Spring 2011), Denver is alleged to have an EPA label law pertaining to motorcycles but in reality, that law has a clause which provides for submitting to a field test for noise in lieu of an EPA label. Boston enacted an EPA label law but an injunction was filed. While the injunction was not granted, the city has refrained from enforcing the law due to fear of law suits. Myrtle Beach, Virginia Beach and Albuquerque repealed EPA label laws shortly after their enactment and EPA label legislation was firmly defeated in New York City, Chicago, Detroit, Portland, North Reading, Hingham, Portland and elsewhere. EPA label legislation proposals were also turned down by the National Park Service. East Greenwich unconstitutionally passed an "emergency ordinance" in July 2009 but it expired ninety days afterward. The wording incorporated into some legislation (Boston, North Hampton) alleges that an EPA label law was passed in Fairfax County, VA, but no such law has ever existed in that county's municipal code.
After more than five years of anti-noise factions promoting their EPA label strategy the only U.S. cities with unchallenged EPA label laws are Green Bay and Arvada.
North Hampton passed an EPA label law in May 2010 after the same law was rejected by the Massachusetts Legislature. It was enacted in July 2010 but the town's Chief of Police, Brian Page, refuses to enforce it and no summonses have been issued under the new law. An injunction was been filed against the town and the EPA Regional Counsel has responded to inquires from the town's attorneys as to whether a federal manufacturing requirement may be enforced by a municipality. The EPA's regional counsel stated that the town has indeed over-stepped its authority. Eventually Rockingham Superior Court decided that North Hampton's ordinance was in conflict with the state and was not legal.
In July 2010, motorcyclist Peter Odette was cited for violating Newport's EPA label requirements. With the help of attorney Paul Lancia, Odette's case was dismissed In March of 2011. The City of Newport conceded that their ordinance violates state statute. The Rhode Island Motorcyclists Association (RIMA) pledges to fight this ordinance until it is removed. What makes this case especially interesting is that Odette was using an exhaust system which was proven to comply with Rhode Island's motorcycle noise regulations, and was pulled over by an officer who thought the motorcycle was too noisy.
Also in 2010 the Village of Chimney Rock, NC passed an ordinance requiring an EPA label but like Denver's, it provides for submitting to a field test for noise in lieu of the EPA label. In November of 2010 the adjacent Town of Lake Lure, NC also revised their noise ordinance to require an EPA label.
The California Senate passed SB 435 in September 2010. This particular bill took life in February 2009 as a smog bill and Senator Fran Pavley turned into noise bill. Reportedly this was because of the bill's poor cost/benefit ratio relating to smog, but in reality it was due to the participation of NoiseOFF! members. Although SB 435 has passed, it will not take effect until 2013. We believe by then it will have been amended or overturned, as the bill's history and its two and a half year grace period acknowledges the EPA's lack of OEM enforcement but California has no actual plans - or even intent, as far as we can discern - to address the EPA problem.
Result: "Many cities" = TWO! Oh, and one town that reports only seven motorcycle noise citations for the summer of 2011.
Green Bay's law has been such a non-starter that seven months after the law was signed, the Lieutenant of GBPD issued a press release complaining that motorcycle noise complaints increased.
ADDENDUM: We have become aware of a few more instances of seemingly still-born or otherwise dead EPA label laws. One has been in the State of Oregon's Administrative Rules since 1983 and according to their Department of Environmental Quality, has not been enforced by their DEQ due to lack of funding. Another was adopted in 2004 in the city of Newport, Rhode Island and another in Salt Lake Valley, Utah. The Newport instance was based on the recommendations of Eric Zwerling, consulting to Newport as President of the Noise Consultancy. Eric is currently Director of the Rutgers Noise Technical Assistance Center at Rutger University's Department of Environmental Sciences.
It is worth noting that there are some remarkable similarities between the language discovered in Oregon, Newport and Salt Lake Valley. The most disturbing of the similarities is a paragraph found identical in OAR 340-035-0030(1)(f)(B), Newport Municipal Code 8.12.130(F)(1) and Salt Lake Valley Regulation 4.5.10(vii)(b), which states:
"No person shall remove or deface any noise label or mark required by federal law which is affixed to any motorcycle or motorcycle part for purposes of identifying the motorcycle or motorcycle part as a federally regulated product"
This is disturbing because it over-steps the authority of the state and local governments to supersede Part 205 of the Code of Federal Regulations, and because of the mattress tag corollary. That is, the CFR currently treats the labels of federally regulated products as a consumer assurance and does not prohibit consumers from disturbing the labels after purchase.
Outside Oregon, Newport Rhode Island is the earliest instance of such a law that we could find. We spoke to Newport and they mentioned that during discussions preceding the adoption of their law, Mr. Zwerling insisted that other communities used the same language. We are as yet unable to ascertain which communities those might be, leaving us wondering if these claims were fraudulent. Mr. Zwerling has not responded to phone calls or emails. This only cements our suspicions of fraudulent claims.
FICTION: EPA label laws have been effective in Denver, etc.
FACT: In spite of repeated requests to the people making these claims, we have seen no statistics from the City of Denver nor any other city that can support or defend the claims. A press release from the Green Bay Police Department seven months after Green Bay passed their EPA label law indicates that the law was a complete failure and that noise complaints actually increased.
FICTION: Non-compliant OEM exhaust equipment is subject to recall.
FACT: First, understand that this is aimed at manufacturers, not consumers. With respect to labels, Part 205 allows for the recall of non-compliant motorcycles and for relabeling, but the language refers only to relabeling vehicles found to be non-compliant with the noise regulations. However EPA law still requires the presence of the label through the time of sale. The EPA has in fact fined distributors for importing motorcycles which were missing the required labels altogether. We are not aware of any instances of the EPA penalizing manufacturers or distributors for labeling which merely failed to meet visibility requirements set forth in Part 205.
The EPA - still sans ONAC - now enforces labeling and other emissions -related requirements on imports via the US CBP (Customs and Border Patrol). This fairly recent ability was enabled by President Bush's Executive Order 13439 establishing an Interagency Working Group on Import Safety, signed July of 2007. The CBP is a division of DHS (Department of Homeland Security).
FICTION: A motorcycle with a modified exhaust system produces more pollutants than an automobile with a modified exhaust system.
FACT: All pollution controls or lack thereof being approximately equal, pollutant output from internal combustion engines in practical application is a product of engine displacement, typical running RPM and overall tuning quality. Average motorcycle engine displacement is under 1000cc in the US, while average automobile engine displacement remains over 3000cc - over three times as much. Average highway cruising RPM for motorcycles tends to be between 2 and 2.5 times that of automobiles, yielding the advantage to motorcycles for overall pollutant production volume.
FICTION: Motorcycles produce more pollutants than automobiles.
FACT: Outdated but partially correct. Until fairly recently, catalytic converter technology did not lend itself well to compact, predominantly exposed applications such as motorcycles. The EPA's restrictions reflected this problem by relaxing emissions limits on motorcycles compared to automobiles. These rules began to change substantially in 2006, resulting in many motorcycles becoming available with dual-stage catalytic converters in 2007 and greatly reducing pollutant yields. More EPA changes approved for the next year or two will make motorcycle pollution allowances roughly comparable to those for passenger automobiles. We use the term "roughly" because the EPA still utilizes different methods to measure pollutants from passenger cars versus motorcycles, making direct comparisons impossible, even with the guidance of EPA officials.
Environmentally conscious motorcyclists in the "greater 49" have the option of ordering CARB -compliant California market models of their desired motorcycle, whose pollutant yield should be roughly comparable to automobiles sold in the United States.
The pollutant claim against motorcycles completely disregards the growing availability and popularity of plug-in electric motorcycles, which have no tailpipes and feature zero emissions. With the exception of the $100,000 Tesla Roadster, there are NO production plug-in electric automobiles currently for sale in the United States. Most so-called plug-in electric cars in the US are actually hybrids equipped with gasoline engines, such as the Chevrolet Volt. There are currently no hybrid motorcycles.
Note that many SUVs are classified as "trucks" and are not subject to the EPA restrictions on automobile exhaust pollutants. Many do comply voluntarily to appeal to environmentally conscious consumers; some do not.
In practical application, particularly in city environments where scarce parking is always an issue, motorcycles have a clear advantage in overall pollutant generation. Motorcycles are not forced to circle destinations in search of elusive automobile -sized parking spaces. It is estimated that 30% of all motor vehicle miles traveled in Manhattan are not travel from origin to destination, but are accumulated while searching for parking. Motorcycles will not be found idling and interfering with other traffic so their occupants can enjoy air-conditioned comfort while waiting for parking or for passengers.
FICTION: Local EPA label laws have survived constitutional challenges.
FACT: This is a red herring usually used in the context of Denver's motorcycle noise ordinance, which contrary to popular belief still allows for SPL testing in lieu of the presence of an EPA label. The challenges we know about had nothing to do with any constitution and even so, a poorly conceived law based on misinformation and on torches and pitchforks mentality does not have to be unconstitutional to be repugnant.
FICTION: The Noise Control Act allows citizens to file civil suits against violators, up to $10,000.
FACT: Partially correct. Citizens may not sue for any part of the Noise Control Act they choose. The can however sue manufacturers for violations which apply to manufacturers, and sue citizens for violations which apply to citizens.
Section 12 (42 USC 4911) of The Noise Control Act states in summary:
"Any person may commence a civil action on his own behalf against any person (including the United States) for violation of this act or against the Administrator of EPA for failure to perform any non-discretionary duty under this act."
The monetary number comes from Section 11 (42 USC 4910) which states:
"Any person who violates paragraph (1), (3), (6) or subsection (a) of Section 10 of this Act shall be subject to a civil penalty not to exceed $10,000 per day of such violation."
FACT: There are no known cases of any motorcyclist ever being subjected to civil action for violating the NCA.
Practically speaking, the problem is that the zeal to sue tends to be aimed at motorcycle owners or riders but most of the NCA applies to manufacture and sale. Manufacturers are not liable for the use or misuse of what they legally sell and there are no agencies left to mete out punishment for the OEMs' poor labeling practices. This leaves complainants in a near stalemate against excessive noise produced by other consumers.
42 USC 4911 does permit citizens to sue for post-sale violations only of 4909(a)(2), which prohibits "removal or rendering inoperative by any person, other than for purposes of maintenance, repair, or replacement, of any device or element of design incorporated into any product in compliance with regulations under section 4905 of this title."
The plaintiff must first issue a notice of violation, and may not commence legal action until 60 days thereafter.
Since the exhaust label is defined as a notice and not a device or design element, the plaintiff will have to prove that tampering had been performed which resulted in willful non-compliance of noise regulations. If the plaintiff loses the case, they could be liable for all legal fees.
The EPA has the right to intervene at any time.
FICTION: 106dB, or 100dB, or 96dB, etc. is louder than 80dB.
FACT: A decibel, or dB SPL, is a measurement of sound intensity that is completely meaningless without specifying the distance from the sound source at which the measurement is taken.
Sound intensity decays over distance, so unless all the above numbers represented measurements taken at identical distances from the sound sources, direct comparisons of those numbers are impossible. In other words, "80dB" is impossibly vague but "80dB at 50 feet" is a useful measurement.
In the context of claims most often made by proponents of noise laws, 80dB at 50 feet is the Federal sound limit for motorcycles, 106dB at 20 inches is the sound limit in New Hampshire, and 100dB and 96dB at 20 inches are sound limits specified for four- and two-cylinder motorcycles respectively in the SAE J2825 test procedure. In order to compare the Federal measurements to the rest, it is necessary to calculate the difference in dB between fifty feet and twenty inches caused by normal attenuation or decay of sound over distance.
Some high-school physics calculations tell us that 80dB at 50' is equal to 109dB at 20". Therefore, "106dB" really could be less than "80dB"!
In practical application this is still a vast over-simplification because different measurement practices involve different engine crankshaft rotation speeds, different vehicle speeds and different throttle settings, and because sound decay rates are affected by many factors including predominant frequencies, resonator directionality, perspective to axis of sound emissions, physical field characteristics, temperature, humidity, barometric pressure and even Doppler effects (in moving tests), but the original point remains. Proclamations like "106dB is too loud!" are defective and ignorant.
FICTION: 80dB is too loud.
FACT: 80dB at what distance? See above, and the Asia and Europe argument below for relevant discussion.
FICTION: The World Health Organization recommends a 50dB limit to outside noise.
FACT: 50dB at what distance? Sadly even the WHO documents we have reviewed make it difficult to determine the distance so we're assuming "at the ear". In the context of J331A's prescribed fifty feet, a 50 dB WHO guideline would literally prohibit rainfall.
FICTION: Asia and Europe have stricter regulations for motor vehicle noise.
FACT: The noise standards across Asia are not consistent and not all EU countries participate in the standards set by the EU. Either way, the measurement practices are substantially different, making valid comparisons difficult. But this may be partially true. Some educated guesswork puts relevant EU and Japan standards between 3dB and 6dB more strict than the US, which according to expert opinion ranges from barely noticeable to noticeable.
Just the same, any desired changes to motor vehicle noise limits in the US must be made at the Federal level.
FICTION: The standard for motorcycle noise should be based on standards that protect health and well being.
FACT: This insinuation that motorcycle noise standards were created in a vacuum conflicts explicitly with the Noise Control Act, which mandates that standards and regulations respecting noise must "protect public health and welfare." The NCA stipulates:
"[42 U.S.C. 4904] Identification of Major Noise Sources; Noise Criteria and Control Technology.
(a)(1) The Administrator shall ... develop and publish criteria with respect to noise. Such criteria shall reflect the scientific knowledge most useful in indicating the kind and extent of all identifiable effects on the public health or welfare which may be expected from differing quantities and qualities of noise.
(2) The Administrator shall ... publish information on the levels of environmental noise the attainment and maintenance of which in defined areas under various conditions are requisite to protect the public health and welfare with an adequate margin of safety.
The existing Federal standard for motorcycle (and other vehicular) noise was in fact established with the cooperation of public health officials and is based on standards designed to protect the public's health and well being. In the WHO's words, "the noise exposure levels identified in [the EPA's Levels Document] were determined by a negotiated scientific consensus and were chosen without concern for their economic and technological feasibility." The Levels Document, published by the EPA's ONAC in 1974, is actually titled "Information on Levels of Environmental Noise Requisite to Protect Public Health and Welfare with an Adequate Margin of Safety" and is the basis for today's environmental noise policy in the USA.
FICTION: Relying on the SAE and MIC for a motorcycle noise measurement standard is a conflict of interest
FACT: The SAE is the same independent, non-profit organization that was commissioned by the Federal government to design the existing J331A test for OEM motor vehicle noise measurements. All the SAE did with J2825 was arrive at a more practical field test to be used for field enforcement of the existing Federal noise standards.
FICTION: The only noise coming from a properly muffled motorcycle is through the exhaust.
FACT: Motorcycles - muffled or not - generate noise from many sources. There is intake "honk" generated by the pulses of air being drawn through the intake and in some cases resonating in the intake air box or snorkel. There is mechanical clatter produced by cam chains and tensioners, valve trains, pumps for water, oil and gas and in some cases, clutch assemblies and cooling fans. There is the noise of combustion itself, never damped entirely by the engine cases and not obscured by hoods or other fascia. When in motion, noise is produced by drive chains and sprockets. There is even the whoosh of brake pads against rotors and the hum of tires as their treads adapt to and break free of the surface underneath.
It might be more accurate to claim that exhaust noise is usually the most prominent component of motorcycle noise, but we have heard motorcycles with dry clutches whose idle rattle far exceeded their exhaust noise amplitude.
FICTION: Exhaust noise is only projected backward from the motorcycle.
FACT: Exhaust gases are propelled in the direction of the exhaust outlet but the noise is not constricted to the general direction of the exhaust gases. Consider the example of a person speaking. When that person turns away from you, you can still hear that person.
The overall exhaust noise picture consists of components over a broad range of frequencies, and the predominant frequencies tend to vary according to engine size and configuration as well as to exhaust system design. It is important to note that exhaust gas pulses create reverberations through the entire exhaust system and its mounting fixtures and those reverberations generate sound traveling in many directions. It is also important to note that lower frequencies tend to propagate more omni-directionally than higher frequencies, and that all sounds can reflect in many directions from any nearby surfaces including the roadway underneath.
This frequency/directionality relationship is why, for example, audiophile -quality speakers might have multiple tweeter elements pointed at slightly different angles or even toward nearby reflecting surfaces, and why the subwoofers can be hidden in a corner or behind furniture with little attention to transducer or vent direction.
Paradoxically, the engines which produce the most low-frequency and therefore least directional noise, are V-twin engines such as those featured on Harley-Davidson motorcycles, which appear to be the most prominent subjects of unnecessary noise complaints.
In the context of arguing that exhaust noise cannot contribute to "noise visibility" as a safety feature, motorcycles with comparatively large V-twin engines are a definitive exception.
It can also be argued that in urban environments, reflections of higher frequency components (from nearby vehicles and roadside features) can also be easily identified in front of and to the sides of the motorcycle.
Note that a common counter response is that the reflections and lack of directionality of the sound may obfuscate the positional identification of the sound source, mitigating its usefulness as a safety feature. This is a logical assumption to the layman but human hearing and instinct is still sufficiently advanced to distinguish sound source direction in most cases.
FICTION: Only Harley Davidson motorcycles are loud.
FACT: V-twin engines - which H-D uses almost exclusively - may be perceived as being louder than others, even though they conform to the same noise regulations as any other motorcycles. This is due to the use of "A-weighting" of the dB measurement curve which is designed to mimic the responsiveness of the adult human ear to a range of audible frequencies. The A scale discounts lower frequency energies because the ear is not as sensitive to them. An unanticipated side-effect of this scale is that lower frequency sounds can be felt rather than heard, and that engines whose predominant sound components reside in the lower range of frequencies are actually entitled to produce more overall sound energy.
Scientists involved in creating noise policies still substantially agree that the dB A scale for SPL is the most accurate (of the available standard weightings) for correlation of sound amplitude and frequency to its biological effects. Detailed discussions can be found in WHO documents and elsewhere.
FICTION: Only motorcycles are loud, or all motorcycles are loud, or there is no such thing as a quiet motorcycle.
FACT: Ridiculous ignorance. The Federal EPA regulates the noise or sound produced by motorcycles and trucks. The EPA does not at all regulate or even set official guidelines for the noise produced by passenger automobiles or light trucks. Amazingly, at the Federal level cars are permitted to make any amount of noise and car manufacturers may do as they please. This was a result of ONAC being discontinued.
Most states do regulate automobile noise, which generally follow the SAE passby test J986 "Sound Level for Passenger Cars and Light Trucks." Those laws and typically allow a 2dB greater SPL from motorcycles than they allow from passenger automobiles.
Most authoritative sources agree that 3dB is the minimum increment (or decrement) in SPL that an adult human with normal hearing is capable of discerning. This means that most people would not be able to clearly discern the difference in noise levels between a motorcycle and a car, both producing their respective legally permitted amounts of noise.
The relatively small 2dB allowances are granted in light of the extra mechanical noise produced by motorcycles' predominantly uncovered engines and drive-trains.
Allowance under Federal and State regulations does not necessarily correlate to actual noise output from individual vehicles and models, and this remains true for all types of motor vehicles. All one has to do is place a stock Honda Gold Wing next to a stock Ford Mustang for a clear illustration of this fact. Manufacturer's design goals are ultimately the governing factor in the noise output of unmodified motor vehicles.
There are valid psychological reasons for people feeling comfortable with making such broad assumptions. Part of it is not the quiet vehicles simply aren't noticed. The loud ones stand out. Another aspect is that the commonality of motorcycle noise causes motorcycles to get blamed for all noise after a while.
FICTION: SAE J2825 is a noise standard, or law, or regulation.
FACT: SAE J2825 is a noise measurement standard, not a noise standard.
The SAE is the Society of Automotive Engineers. J331A, J2825, etc. are the SAE's codes for the measurement practice specifications or methods they have designed. In the case of J331A, this is the measurement specification adopted into Title 40 Part 205 which is a regulation governing the manufacturer's measurements of sound produced by all motor vehicles to which the title applies. For example, Federal law for motorcycle noise may be summarized as being limited to "80dB(A) using the J331A test procedure".
The SAE is a non-profit engineering organization. They write specifications and conduct conferences and symposiums in the aerospace and motor vehicle industries. They do not legislate. References to their work can be found in regulations governing many facets of motor vehicle construction.
J2825 is a specification for measuring motorcycle noise in the field, whose goal is to mimic the results of existing Federal noise standards which are not easily field enforceable. It is not an attempt to supersede existing Federal noise standards, and it would not permitted to do so by Federal law. What makes J2825 alarming to laymen is its incorporation of target noise values which seem inflated because of people's misunderstandings of how sound is measured. The limits incorporated into J2825 are actually slightly more strict than current Federal noise regulations and anti-noise activists should be pleased by the fact that it imposes a limit that is 4dB more strict for two-cylinder engines, which would apply to V-twin engines from Harley Davidson, etc.
FICTION: SAE J2825 allows more noise.
FACT: From a purely mathematical standpoint, SAE J2825 appears to be more strict than J331A. The SAE was commissioned to design a test whose results in the field would be sufficiently equivalent to the federally incorporated J331A test procedure so as to be legally acceptable as an alternative test per CFR Title 40 §205.154 and §205.167 and not in conflict with the Noise Control Act. The goal was strictly to achieve a test equivalent to current federal standards that could be administered in the field with minimal resources, not to achieve a test with more liberal sound limits.
There is absolutely no direct, scientific evidence that J2825 allows more noise than the J331A pass-by test or similar tests.
FICTION: SAE J2825 does not accurately measure motorcycle noise.
FACT: The SAE J2825 was not designed or intended to evaluate overall vehicle noise.
Tests like SAE J331A and SAE J47 were designed to be used in controlled test environments by vehicle manufacturers in the process of measuring adherence to the federal noise standards set forth in 40 CFR 205, which limit the sound produced by the motorcycle as a whole under particular test conditions. These tests will measure all the noise generated by the motorcycle including exhaust noise, mechanical engine, drive-train and accessory noise, intake noise and even tire hum.
The SAE J2825 test procedure came about as a result of the impracticality of administering federal noise compliance tests in the field (whether for law enforcement or regulatory compliance), without there being substantial doubts over the accuracy of such a test due to ambient noise, reflected sounds and weather conditions. SAE J2825 answered the need for an objective method of performing roadside sound measurements on motorcycles suspected of being excessively loud.
The SAE J2825 test procedure focuses on exhaust noise specifically as the exhaust system is the most prominent source of noise from most motorcycles, the single component most capable of producing noise (or more accurately, not limiting noise) on any vehicle, overwhelmingly the single most commonly altered component in terms of modifications which could alter the noise picture of a vehicle, and the only element of a motorcycle's running gear that has ever been the subject of citizens' complaints.
The question being proposed by skeptics of the efficacy of the SAE J2825 procedure is wrong. The question should not be "why are we not seeking laws to test for overall vehicle noise" but "why would we need law enforcement to test for overall vehicle noise". Everyone agrees that exhaust system modifications always have been and will continue to be the sole concern of local law enforcement in the battle against excessively loud motor vehicles. All other noise sources are fairly constant and are hugely outweighed by the potential of exhaust noise.
FICTION: SAE J2825 only permits up to 92 dB or 96 dB.
FACT: The SAE J2825 testing standard proposes different limits for motorcycles with different numbers of cylinders. The standard recommends a 92 dB limit for all motorcycles at idle, and depending on the number of cylinders, up to 100 dB at 5000 RPM or 75% of indicated maximum RPM, whichever is less. It also recommends an additional 2 dB allowance for exhaust systems with labeling in compliance with federal manufacturing regulations for street use. This brings the limit to as much as 102 dB not including further tolerances for environmental conditions and the accuracy of measuring equipment.
This argument is usually heard in discussions of New Hampshire's 106 dB limit, from people attempting to punctuate their displeasure with a number they believe to be excessive or attempting to direct suspicion toward the people who initially created the law. When you add up the numbers J2825 amounts to being approximately 2 dB more strict the the NH law. 2 dB is at the threshold of humans' ability to differentiate any difference at all in the amplitude of a sound. In other words, a barely consequential difference.
J2825 does impose substantially greater burdens on 2-cylinder motorcycles with non-OE mufflers or exhaust systems.
FICTION: The J2825 procedure is suitable for inspection stations but not necessarily field enforcement.
FACT: The SAE's J2825 procedure was created specifically to mitigate the effects of ambient noise, nearby reflective surfaces and mechanical engine sounds. This makes it ideal for both inspection stations and field enforcement.
FICTION: The J2825 procedure requires at least three officers to administer safely.
FACT: The SAE's J2825 procedure may be safely performed by a single individual. If the owner of the vehicle is cooperative, he or she may be relied upon to handle throttle settings. In some cases, law enforcement officers may even be prohibited from operating the controls of someone else's motor vehicle. The officer only has to watch the tachometer and confirm the sound meter reading. For convenience, the sound meter may (and should) be placed on a stand. A $25 reed tachometer may be used to confirm RPM without using the meter on the motorcycle.
FICTION: Police are reluctant to chase noise offenders for safety reasons, and EPA stamp laws can be used to safely punish the owners of offending motorcycles while the vehicles are parked.
FACT: Police are reluctant to chase noise offenders because they view it as a low priority.
Police are historically enthusiastic about chasing speeding vehicles, which is a far more dangerous endeavor. The majority of the loudest motorcycles are "cruisers" according to the anti-noise factions. Those types of motorcycles are not typically performance -oriented and are easy to apprehend safely.
Targeting parked motorcycles achieves no relief from the noise generated by through-traffic. A parked motorcycle makes no noise and its capacity to make noise cannot be legitimately evaluated. Even the presence of a correct label does not guarantee that the owner did not alter the parts within.
We believe the push to ticket parked motorcycles is a vindictive anti-motorcycle ploy aimed at circumventing the owners’ abilities to defend themselves, with the added incentive of presenting an attractive cash cow to the municipalities.
FICTION: The Acoustical Assurance Period only guarantees compliance for 3279 miles, and/or the EPA exhaust label expires after one year or 3279 miles.
FACT: CFR Title 40 §205.166 states: "Exhaust systems and exhaust system components that are designed and marketed for use on any Federally regulated street motorcycle shall be designed and built so that, when installed on any such motorcycle which is in compliance with the requirements of subpart D of this part, and when both the motorcycle and the exhaust system are properly maintained and used, they will not cause that motorcycle to produce noise emissions in excess of the levels specified in paragraph (a)(1) of this section, for an Acoustical Assurance Period of one year or a distance of 6000 km (3729 mi) after the time of sale to the ultimate purchaser, whichever occurs first.
This means the manufacturer must guarantee noise regulation compliance for a year or 3279 miles from the time of sale, if the consumer uses and maintains the system properly. It does not mean that the EPA label expires.
While the consumer is not required by federal law to maintain perfect compliance with noise regulations, the consumer may still be obligated to maintain compliance with state laws which incorporate parts of the federal noise regulations, and the consumer is prohibited by federal law from tampering with the exhausts so as to increase noise emissions.
Legal arguments over label expiration would be tricky. It would be a tangential argument to a local law requiring the presence of an EPA label. Against a local law requiring conformance to specific sound limits, attempts to redirect personal responsibilities to the manufacturer is typically a non-starter. The only hope would be in argument against a summons under Federal environmental protection laws.
FICTION: Noise visibility does nothing to improve the safety of motorcyclists. Or, Loud Pipes DON'T Save Lives.
FACT: There is absolutely no published research denying or confirming the usefulness of noise visibility for motorcycle rider safety. There has never been any research that even attempted to conclude whether or not noise visibility had any bearing on rates of collisions with motorcycles.
This allegation is a corollary to the incorrect assertion that motorcycles only project noise backward, making them audibly invisible to motorists to the front and sides. Taken to its logical conclusion, this allegation would require us to completely ignore all rear-end collisions involving motorcycles.
The Hurt report (a.k.a. NHTSA report DOT HS-5-01160) stated that noise visibility didn't appear to have an effect but stated that more research was required. There are no published statistics supporting the claims that noise visibility is ineffective. There is a huge amount of empirical and anecdotal evidence that noise visibility may indeed be effective.
The Hurt report did mention a slight over-representation of motorcycles with modified exhaust systems in collisions with other vehicles. Some people have mis-interpreted this to mean that loud pipes not only don't save lives, but introduce motorcycle riders to even more danger. The report made no effort to draw any such conclusion, and Harry Hurt never made any such statements in subsequent interviews.
Evidence of the effectiveness of noise visibility is sufficient enough that some police departments specify loud aftermarket exhaust systems for their motorcycle fleets.
EDITORIAL: IT IS OUR OPINION that loud pipes are a selfish, disproportionate and unacceptable response of motorcyclists' feelings of vulnerability to distracted, careless drivers on today's busy roadways. Stories like "I blipped my throttle and the cager swerved back" only mean that a motorcyclist could have (and should have) just as easily used his or her horn and/or evasive action to avoid a collision or mitigate its outcome. While noise visibility may indeed be effective, it is also disturbing to everyone who isn't a motorcyclist, and even to some other motorcyclists. It is the motorcyclists' responsibility to pilot their vehicles defensively and attentively. If a motorcyclist feels his or her horn is not sufficiently loud, it should be replaced with one that is. Horns can be replaced for far less money than an aftermarket exhaust system. We acknowledge that some motorcyclists simply like the sound or like the looks, or both, and that since personal gratification is not constitutionally guaranteed, other arguments must be used. In that vein it should also be considered that the citizens who prefer peace and quiet outnumber motorcyclists who prefer noise, for whatever reason, and that forcing noise upon a majority who find it undesirable is in fact a violation of their rights. That is how the US' constitution works. Your freedom and desire to make noise must not infringe the rights of others to be free of undesirable noise. Please be as respectful of others as you expect them to be respectful of you.
FICTION: Loud pipes actually cause accidents due to "startle effect".
FACT: There is no evidence supporting this allegation. Any logical inferences drawn to support it would require assumptions which would paint the owners of loud pipes as reckless and dangerous drivers, paint motorists as entirely incompetent, inattentive or engrossed in distracting activities, or all of the above.
In fact, there is very little actual research on startle reactions or panic responses and most of the currently available research revolves around responses to catastrophic equipment failures, safety restraint deployment and other unexpected influences such as road hazards or weather anomalies.
It seems logical to us that a driver would be more likely to be startled by a sudden horn blast than by the more or less steady, or in the case of an approaching motorcycle, gradually increasing, noise from a loud exhaust system.
We have in fact witnessed startle effect first-hand. An adjacent motorist nearly hit a guard rail and spun out of control after over-reacting to the stock horn on a quiet, stock motorcycle during a right-of-way incursion. It is an unfortunate and grim reality that driver instruction and testing in the United States is almost entirely based on the most basic traffic skills and makes no attempt to filter out or even predict drivers who cannot or will not react reliably in dangerous situations.
FICTION: Motorcyclists use ear plugs to protect themselves from their own loud pipes.
FACT: Motorcyclists utilize earplugs to protect their hearing from noise caused by turbulent air flow around their helmets or, in the case of un-helmeted riders, passing directly over their ears when traveling at highway speeds. The noise from airflow alone greatly exceeds OSHA standards for even brief exposures.
Ear plugs are frequently used by the riders of stock motorcycles with quiet exhaust systems. Skydivers and glider pilots also utilize ear plugs for the exact same reasons as do motorcyclists.
FICTION: Loud pipes reduce safety by preventing motorcyclists from hearing emergency vehicles.
FACT: Possible but unlikely. There is no research proving this allegation, nor is there any such conjecture from first responders backing this up.
It is also worth noting that some motorcyclists cite similar arguments when arguing against helmet laws, alleging that helmets interfere with their hearing.
The warbling and/or scaling sound of sirens, the staccato blasts of air horns and more recently, devices like the Rumbler are designed to stand out against the relatively steady drone of noises from engine and exhaust, wind roar, radios, headphones, etc.
In our personal experience, the wind blast alone at 75MPH and above is enough to obliterate the sound of sirens from behind.
It is interesting to note that there are no laws prohibiting deaf people from operating motor vehicles.
FICTION: If motorcyclists are concerned about their safety they should be equipped with air bags, wearing full-face helmets, high-visibility vests, flags, etc. or shouldn't be riding a motorcycle at all.
FACT: These are red herrings from Ralph Nader types who would just as soon dispense with motorcycles altogether, and attempt to question the sincerity of concerns about personal safety just because some people don't wish to be encumbered by heavy, expensive helmets that are designed to standards that haven't been updated in several decades and which actually conflict with superior EU and Snell standards, or don't wish to sweat uncontrollably from within layers of safety gear, or choose to wear practical and/or attractive colors of their choice rather than feeling or becoming obligated to look like six foot tall highlighter pens.
We cannot ignore the hypocrisy in attitudes like this. Automobile seatbelt compliance is a constant challenge for law enforcement, but you don't hear a public outcry for reluctant motorists to sign organ donor cards. Motorists meanwhile insist on the "freedom" to talk and text on cell-phones, play with their satellite radio receivers and GPS receivers, eat their meals and groom themselves while plowing along at 50+ MPH in two- and three-ton vehicles and feel perfectly happy transferring the responsibility for safety to absolutely everyone else around them. There is nothing acceptable about this.
FICTION: High-visibility clothing is a better approach to rider safety than loud pipes.
FACT: The European MAIDS study revealed that high visibility clothing was determined to have been helpful in roughly 5% of collisions with other motor vehicles. That does not mean there was a 5% improvement in collision rates! While there are absolutely no studies evaluating loud pipes' effectiveness or ineffectiveness as a safety measure, it is clear that conspicuous clothing is only fractionally useful.
FICTION: The AMA's noise mitigation efforts are ineffective and insincere.
FACT: These allegations stem from unrealistic outsider opinions of how the American Motorcyclist Association should utilize their limited nationwide advertising budget. The complainants would prefer the AMA focus strictly on noise issues in lieu of their current strategy, promoting overall safety and motorists' awareness.
We tend to believe that if motorists could be convinced to be more careful, motorcyclists' inclinations to be noisy might address themselves. We find no fault in the AMA's judgment.
The AMA began their campaign against excessive noise back in 1948 and they routinely use space in their monthly publication to members to remind them to ride politely, quietly, etc. The AMA's position statement reflects this.
It should be noted that not all motorcyclists belong to the AMA or care to belong to the AMA, and not all AMA members are in lockstep with the AMA's stances on various issues. It is unrealistic for anyone to expect all motorcyclists or even all AMA members to follow the AMA's recommendations and/or agree with the AMA's published opinions and positions.
FICTION: A regulated motorcycle that has an exhaust system installed without the correct label (i.e. competition use, pre regulation, export only, or no label at all) or has an exhaust system from a different make and model of motorcycle (un-matching model specific codes), is in violation of federal regulations and section 4909a(2) of the Noise Control Act (NCA).
FACT: 4909a(2) ACTUALLY STATES: (a) Except as otherwise provided in subsection (b) of this section, the following acts or the causing thereof are prohibited: (2) (A) The removal or rendering inoperative by any person, other than for purposes of maintenance, repair, or replacement, of any device or element of design incorporated into any product in compliance with regulations under section 4905 of this title, prior to its sale or delivery to the ultimate purchaser or while it is in use, or (B) the use of a product after such device or element of design has been removed or rendered inoperative by any person.
The EPA label is not a device or element of design. It has no function - actively or passively - in the control of noise or other emissions. The label is specifically defined as a notice only.
The EPA has published several documents which outline what modifications an individual may and may not make to motorcycle exhaust systems. Those documents expressly allow cosmetic modifications and allow anything which does not cause the motorcycle to produce noise in excess of Federal regulations.
FICTION: The NCA additionally gives states and political subdivisions wide ranging authority, such as the right to restrict the operation and movement of federally regulated motorcycles within neighborhoods, at times of day or night, or the number of federally regulated motorcycles operating together.
FACT: This allegation appears to be an exceptionally broad interpretation - not backed by any case law - of 4905(e)(2) of the Noise Control Act which actually states:
"(e) State and local regulations (1) No State or political subdivision thereof may adopt or enforce— (A) with respect to any new product for which a regulation has been prescribed by the Administrator under this section, any law or regulation which sets a limit on noise emissions from such new product and which is not identical to such regulation of the Administrator; or (B) with respect to any component incorporated into such new product by the manufacturer of such product, any law or regulation setting a limit on noise emissions from such component when so incorporated. (2) Subject to sections 4916 and 4917 of this title, nothing in this section precludes or denies the right of any State or political subdivision thereof to establish and enforce controls on environmental noise (or one or more sources thereof) through the licensing, regulation, or restriction of the use, operation, or movement of any product or combination of products."
We believe that quite a leap is being made here. In the past, such attempts have been ruled unconstitutional. This includes NYC's ousted Council Member Alan Gerson's attempt in the 1990s to restrict motorcycles from the Greenwich Village area.
FICTION: The NCA gives every citizen of the U.S. (regardless of whether their state adopts and enforces the NCA) the option of commencing a "citizens suit" (11-7) against motorcyclists, motorcycle manufacturers, and their agents (dealerships), and aftermarket motorcycle exhaust system manufactures that violate the NCA (11-8).
FACT: People parroting this allegation also state: "This option was clarified to Congress by the EPA at the Senate hearing in 1982 (with the closing of the Office of Noise Abatement and Control (ONAC)) as a replacement legal option available to states, cities, and citizens, in the absence of ONAC, as this was one of its duties: "...under the citizens suit provisions of the act [NCA], any person including any state or local government, may bring a civil suit against a manufacturer or other person who is allegedly in violation of an existing regulation (11-9)."
The NCA applies primarily to manufacturers of goods which are identified as major sources of noise, and to those goods. In terms of motorcycles, there is only one small section which applies to consumers of those goods.
Nowhere in any of the secondary allegations are there cites to actual law.
There are no known cases of citizens suits against motorcycle consumers for NCA violations.
FICTION: Bikers use charity rides to make up for their abuse of noise laws, bad behavior, etc.
FACT: Another red herring used to denigrate motorcyclists and depreciate their charitable activities. We wonder why similar logic isn't used to abuse the images of bicyclists and pedestrians in their charity rides and walkathons. The public relations benefits can't be ignored, of course. Mainstream motorcyclists have long been trying to shake the stereotypical sensational Hollywood images.
FICTION: Most owners of street motorcycles install illegal exhaust systems.
FACT: According to a 2003 MIC survey, that number would be 38% nationwide. Not insignificant we admit, but substantially short of the definition of "most" (definition: nearly all or a majority of).
2006 paper by Administrative Law Judge David B. Torrey and
mechanic Jeffery R. McCulley:
U.S. Code of Federal Regulations (CFR) Title 40 Part 205:
U.S. Noise Control Act of 1972:
Denver Colorado City Council Bill 242A (2007) and resulting noise code Section
http://www.denvergov.org/Portals/253/documents/Chapter 36 Noise Control.pdf
Arvada Colorado City Council Bill 09-013 (2009) and Ordinance 38-62 ("Noises Regulated"):
Green Bay Wisconsin City Ordinance 38-09 (2009) and
Municipal Code 29.308:
http://www.ci.green-bay.wi.us/codebook/chp29.pdf (see Subchapter III, 29-308)
Town of North Hampton New Hampshire Article 26 (2010)
motorcycle noise ordinance:
(law not yet published by the town or enforced)
EPA position regarding North Hampton's attempt to
incorporate Federal EPA label regulations:
California Senate Bill 435, history and current:
Newport Rhode Island Ordinance 2004-17 Adopted May 12
Title 8 Chapter 12 Section 130 (8.12.130)(F) (1)-(4)
Newport's Council Meetings, Ordinances, etc. may be found here:
Salt Lake Valley Health Department Community Noise
Pollution Control Regulation:
Oregon Administrative Rules, Dept. of Environmental
Quality - Division 35 - Noise Control Regulations 340-035-0030(1)(f):
Chimney Rock Village NC Noise Ordinance Title XIII Chapter
Town of Lake Lure NC Noise Ordinance Chapter 84.04/84A
Independent survey of new stock motorcycle exhausts from
Web -based calculator to determine sound level decay over
J331A is the noise test procedure incorporated into CFR Title 40 Part 205. See Part 205 Appendix I for details as applicable to Part 205 Subparts D and E. The full text of J331A may be purchased from the SAE or viewed at the Library of Congress. :-(
The full text of J2825 is not freely available but may be purchased from the SAE. :-(
AMA official position on noise:
Examples of police departments ignoring noise laws in the
name of safety:
FIGHTING SUMMONSES ISSUED UNDER LOCAL EPA LABEL LAWS *
It is our opinion that the wording of EPA label laws in certain jurisdictions may actually allow for the presence of ANY EPA label on the exhaust system of a motorcycle, including labels which indicate the exhaust system is intended for competition, off-road use, export or for pre-1982 motorcycles.
It is imperative that you become an expert on Part 205 in its entirety in order to defend yourselves against these actions. It is inevitable that the accusing officer, the DA and/or ADAs and the judge will not have sufficient familiarity with Part 205 to respond intelligently to a good defense. It is our opinion that it is your civic responsibility to defend yourselves against these laws and to do so skillfully, in order to set useful precedent for future cases.
Boston's ordinance (as an example) states:
"No person shall park, use or operate a motorcycle, within the City of Boston, manufactured subsequent to December 31, 1982 that does not bear the required applicable Federal EPA exhaust system label pursuant Code of Federal Regulations Title 40, Volume 24, Part 205, Subparts D and Subpart E."
Applicability is not defined or put into context. This will become important in the Subpart E discussions.
Since Part 205 is a manufacturing and sale requirement only - we believe that the prosecution should be burdened with proving that the motorcycle was not correctly labeled at the time of sale. We add that the "in-use requirements" sections (§ 205.162, § 205.173) of Part 205 make no mention of exhaust system labeling and that no section of Part 205 obligates the owner to maintain the presence or visibility of the mandated labeling.
CFR Title 40 Part 205 Subparts D and E require labeling of motorcycles and their exhausts respectively (§ 205.158, § 205.169). Subpart D does not apply to motorcycle exhaust systems, making the ordinance's wording curious.
Subpart D § 205.162-2 allows local jurisdictions to prohibit removal of or rendering inoperative noise control systems but does not allow jurisdictions to prohibit replacement of exhaust systems outright. This section also excludes from the definition of tampering acts which do not result in the increase of noise levels or which result in the vehicle still being able to meet noise emission standards. Legally, we believe the jurisdiction must allow the defendant to demonstrate that the vehicle can comply with noise emission standards.
Subpart E § 205.169 requires exhaust component labeling at the time of manufacture. The regulation prescribes labeling for OEM exhausts in (e)(1)(ii)(A) as well as for OEM and non-OEM replacements in (e)(1)(ii)(B), for competition in (e)(2), for pre-1982 motorcycles per (e)(3) and for export per (e)(4). Even if the jurisdiction can successfully require the owner to maintain the labeling post-sale, in contradiction with Federal regulations, the vehicle owner can still demonstrate that any label complying with the regulations of Subpart E is actually in compliance with the above ordinance.
Additionally, Boston's ordinance was passed on false pretense. It states:
"Other local governments, including Denver and Fairfax County, Virginia, have enacted ordinances requiring exhaust system labels to combat excessive noise pollution;"
Fairfax County, VA never enacted any law or ordinance relating to the presence of EPA labels on motorcycles. This claim is fraudulent and misleading.
That last matter won't help defendants fight summonses but may help MROs get the EPA label ordinances repealed. The exact same wording is present in North Hampton's recent ordinance.
* We are not lawyers. This
information does not constitute legal advice.
We cannot guarantee the success of defenses based on this information
and we cannot be held responsible for any losses based on this information.