MAX Update No. 42: Is MAX Illegal?

| 3/23/2010 4:09:40 PM

Tags: MAX, 100 mpg, safety, emissions, regulations,

“MAX is legal at the state level but illegal at the federal level.” 

Now that's a bold statement. Unless this is your first day on the Internet, you're probably aware that many bold statements are opinions presented as facts, and many unsupported statements lack the expected “LOL” at the end, but this particular example deserves our attention.

This bold statement is a reader comment from Update No. 39: Who Smoked the Electric Car? We were discussing electric cars back then, but the conversation did drift some. (In summary: I think small is beautiful for electric cars, too: Efficient EVs use fewer resources than inefficient EVs, and battery power is no excuse for driving oversized and inefficient vehicles.) This particular drift has come up before, and raises a question worth exploring: Did I violate a Federal law when I built MAX? A closely related and even more important question: Will you be violating a Federal law if you build a MAX of your own?

As best as I can tell (and believe me, I've looked hard and long for an answer to this question), the answer is no. MAX does not appear to be violating any Federal law, statute or regulation, nor does the EPA have regulations involving home built or experimental automobiles. It does have strict emissions regulations for mass-produced cars sold to the public in large quantities. The EPA raises the bar on those regulations every year, but the current (and future) production car rules are not applicable to America's vast used car fleet, much less to cars built one at a time for their owners' enjoyment.

The challenge comes from state regulations for home-built cars. Guess how many different sets of automobile registration and equipment regulations there are among the 50 states in the United States. Go ahead, take your time, give it a guess.

If you guessed 50, you’re a good guesser! Wow, 50 different sets of rules. Every state I've researched (and I've researched a bunch of 'em because Kinetic Vehicles customers come from all over the place) has a way to register a home-built car, but no two ways are the same.

jack mccornack
6/1/2010 10:34:35 AM

Hi Robert, there are a number of car engine possibilities, with various advantages and disadvantages. The late '70s early '80s VW diesel (found in the VW Rabbit and others) would be a shoe-in, there are adapter kits to mount that engine on a Suzuki Samurai transmission. Advantages: more power and (though the Kubota beats that era VW engine on emissions) an engine that met the EPA certification requirements of its day and thus has appropriate credentials. We're also (don't tell anybody yet, though, because I'm not ready to give a progress report) building another MAX with a Geo Metro engine, which has similar advantages plus it'll run on gasoline which is an advantage to some folks...and they can be found on the used market for about $3500 less than a Kubota. But the Kubota-powered MAX will get better fuel economy than either of these alternatives, I bet'cha.

5/29/2010 9:32:35 PM

There is no car engine being considered for this project ? An offroad engine is the only possibility ?

4/28/2010 1:30:28 PM

>I am asumming there is no VIN with MAX. You assume correctly, kinda. There was no VIN when I went in, but after MAX passed inspection, the State of Oregon assigned it a VIN and the DMV clerk pasted the VIN on the chassis with a tamper-proof sticker. >>>>what I mean is I am asumming there is no VIN from the manufacturer. If you have a VIN at the get go the process is easier. It helps your case when you have to go face these people.

jack mccornack
4/27/2010 5:52:21 PM

Robert Johnson, most states are like yours (NY): >If you have no VIN, then the state has to assign one which >they have to actually have to see the vehicle in person. If there's a VIN (Vehicle Identification Number) on the vehicle, they can read year of construction, manufacturer, all kinds of info from it, and the car may not require an on-site inspection when you register it. >I am asumming there is no VIN with MAX. You assume correctly, kinda. There was no VIN when I went in, but after MAX passed inspection, the State of Oregon assigned it a VIN and the DMV clerk pasted the VIN on the chassis with a tamper-proof sticker.

4/27/2010 5:06:21 PM

The emsissions standards are set for each year. The 1959 Rambler is subject to the standards in 1959. An emissions check for a 60s car was to shake the PCV valve and if it rattled, you were good. I think the first CAA was enacted in the 60s sometime. In 1959, they may not have even had a PCV valve. I don't call that an "exemption", I just call it meeting the standards for the model year in question. They could still not allow visible smoke. I don't think anything should be allowed to have visible smoke regardless of year. If you are building (mass producing at least) cars in 2010, then you have to meet 2010 standards. I don't think we have a definitive answer as to whether the EPA regulates homemade vehicles. I read most of Jason's links. I didn't find anything applicable. It all refered to deliberate satotage which of course should not be allowed. It specifically says aftermarket parts are OK, so you are ok with your pirated air cleaner. I didn't see anything about using off road engines in an on road vehicle. We do not yet have a Gestapo, so it is up to the states to enforce this. It hasn't happened yet and I am not holding my breath until it does. (I am in the Sierra Club, we have lobbyied for it) The bottom line is whether the states will probe the exhaust of the MAX and what model year gets inputted in the analayzer. In one of your updates it says it is considered a 1961 car, so 1961 emissions stanards apply.

jack mccornack
4/27/2010 2:33:43 PM

Jason Hinton, you are so right! I'm in communication with an engineer at the EPA, and man, as far as the letter of the law goes, you've got it nailed! I'm sorry I ever doubted you. Fortunately the EPA has bigger fish to fry, but as far as the proverbial "strict interpretation" of the Clean Air Act of 1970 goes, you are right and I was wrong, and one of the EPA's bigger fish to fry is getting the states into compliance with the CAA...and even that is not their biggest fish. My discussions with their engineer will likely take a while, but I can tell you right now that most cars on the road today are in violation of the Clean Air Act, since any change that can effect exhaust emissions, whether for better or worse, is a violation. If you've ever had your car's air cleaner replaced at anywhere but the dealership, you're in violation, since you have modified your car from its original form.

4/27/2010 2:05:21 PM

How is the intake or exhaust being "tampered with" on the MAX ?

4/27/2010 1:45:25 PM

I have looked up the procedure on regristering a unique vehicle in NY. There is a fair amount of red tape. I noticed that if you have a VIN, you are in better shape. You can go directly to step 2. If you have no VIN, then the state has to assign one which they have to actually have to see the vehicle in person. I am asumming there is no VIN with MAX.

jack mccornack
4/14/2010 9:22:48 AM

Jason, my main pleasure from this blog for me is the feedback. I learn a lot from the comments, and yours sure have me thinking--I know the EPA's position on kit cars but don't know if it applies to cars built from plans. I've written the EPA for clarification and I'll post the results here when I get them.

jason hinton
4/10/2010 6:52:53 PM

Max is legal in Oregon and has a valid registration, I'm not disputing that. However, the state of Oregon does not enforce the Federal Clean Air Act. If you want to know if the Max meets the requirements of the Clean Air Act you need to contact the EPA. Whether or not you have changed in intake or exhaust since you registered Max with the State of Oregon has no bearing on compliance to the Clean Air Act. What matters to the EPA is how your engine was classified when it was manufactured. Your 1959 Rambler is not effected in any way by the Clean Air Act. The Clean Air Act was not retroactive, so any engine build prior to implementation is completely unregulated. You can do anything you what to your Rambler. This is one reason the 60’s muscle cars are so popular. An owner can legally do anything they want and not have to worry about emission requirements. Race cars are also not regulated by the Clean Air Act. Any vehicle used for competition on a closed course can have all emission equipment removed. However, as soon as that car turns a wheel on a highway it must be in compliance. The "Competition Only" clause is how aftermarket part companies get away with selling non-compliant parts. Under the Clean Air Act companies that manufacture, sell, or install parts that make a vehicle non-compliant are in violation and subject fines. However, they stamp their parts "For Competition Only" and claim that as far as they know, all the parts they sell are only used on race

jason hinton
4/10/2010 6:52:14 PM

Vehicles being tested by manufactures are not required to be certified to the Clean Air Act but they are registered with the EPA. I used to work as an Application Engineer for a company that manufactures transaxles and drivetrains for agricultural equipment. I was in charge of testing prototype vehicles, many of which were not sold in the US and had engines that were not EPA compliant. Before we could begin testing I had to fill out pages of information for the EPA. I had to certify that the vehicle would used only for testing, give the duration of testing, certify that it would never be sold, etc. After testing we had to document that the engine was destroyed and keep that documentation on file in cause we were audited. I have also worked as a Product Manager in charge of a family of ATV's and UTV's for a domestic OEM. EPA and CARB certification were a huge consideration during the design and testing of a new vehicles. We couldn't even change an elbow in the intake or change a bend in the exhaust without recertifying the vehicle. One of the biggest things I ran into from dealers was pushback on EPA issues. They wanted to know why we didn't sell certain accessories, why I wouldn't give them information on how to defeat emission equipment or tune the engines for more power. I simply had to remind them that any modification of the engines violated company policy and they alone would be liable for EPA fines that start @ $10K per violation.

jack mccornack
4/9/2010 5:01:08 PM

Hi Jason, I'm glad you find the MAX project cool, and I appreciate you chiming in and keeping me honest. I spent much of yesterday talking with folks at the Oregon Department of Motor Vehicles and they are convinced MAX is legal as it sits and my registration is valid. I discussed points specific to your comment, plus a few of my own, and here's some of what I took away from the conversations. --Re "these modifications are illegal": Unlike a motorcycle with race exhaust or a tuner car with a chipped ECU, MAX's engine and exhaust system are unmodified. They are exactly as they were the day MAX was registered. I've added equipment (from so I can use vegetable oil as a fuel, but as long as I keep away from high sulfur canola oil*, I'm in the clear. --Re "using the engine in an application that it was not certified": There are plenty of exemptions to that one. My '59 Rambler Station Wagon had an uncertified engine under the hood, as did every car made that year, including the ones still on the road. Every "stock car" on the grid at Talladega has an uncertified engine. And when Detroit rolls out the first example of a new car model with a new engine design, that car has an uncertified engine. We wouldn't have any progress in automobile engine design at all if research and development engines weren't allowed to be exceptions to the EPA production car rules. *That's a joke; I doubt there is such a thing as high sulfur canola oil

jack mccornack
4/7/2010 8:21:09 AM

Car cost per gallon...a concept I'd never considered before. gardner and Michael made some points of interest, and gave me something to think about. First thought is, if comparing a car's purchase price (or construction cost, in MAX's case) with it's lifetime fuel use, which is better, a high ratio or a low ratio? The better the mileage, the worse the cost-per-gallon. gardner is right regarding the time commitment, but fortunately I'm enjoying the project and not expecting UAW wages as I work. As for the materials cost of building MAX, I figure the only fair way to judge that is to count everything from Kinetic Vehicles (and everything else where interested companies have given me a price break) at its regular retail price, and even at that, I only have about $8000 in MAX's materials to date. Best of all, and unlike most store-bought cars, MAX isn't depreciating -- I could sell MAX for $8000 in a heartbeat, and until the electric car revolution prevails, the pricier fuel gets, the more valuable MAX gets.

jack mccornack
4/6/2010 11:42:52 AM

gardner, if you don't count what it would take to make an engine/trans adapter, the rest of it (figure out what pressure plate and clutch disc would work, make some hose adapters for the cooling and fuel systems, make a pair of motor mounts, an exhaust system, and a few wiring mods) would be a walk in the park BUT a Miata weighs twice as much as MAX and performance would take quite a hit. By the way, the majority of Kinetic Vehicles clients are doing the opposite of what you describe--they're tearing the guts out of Miatas and putting the motors and suspension parts in MAX chassis. Their reward is a very serious sports car with twice the power to weight ratio of a Miata. Re the $100 per gallon, I'll take my calculator with me when I go to the DMV. More later.

jack mccornack
4/6/2010 10:50:43 AM

Hi Nancy K, sorry for the delayed response. There's a reader building himself a MAX from a draft of the plans (and adding his own feedback) right now, I consider that the last step before general release. If you get in a hurry and get brave, e-mail me at and I'll put your family on the Beta Test program. 'Course, the slippery body isn't done yet so you'd be taking a gamble, but the worst that would happen is you'd be stuck with a "classic MAX" until the streamlining is finished up.

jason hinton
4/5/2010 3:08:54 PM

First I think your project is very cool. However, I'll stick by my "bold statement" that MAX is illegal. Just like a motorcycle with race exhaust or a tuner car with a chipped ECU. These modifications are illegal though chance of prosecution is minimal. Engines are certified as complete assemblies for a specific usage. Your Kubota engine was certified as a nonroad engine for use in a tractor. If you change any component from the intake to the exhaust you are in violation of the clean air act. You have not only modified the engine but also are using the engine in an application that it was not certified. In section 203(a)(3) of the Clean Air Act the following acts are prohibited: (3)(A) for any person to remove or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under this title prior to sale and delivery to the ultimate purchaser, or for any person knowingly to remove or render inoperative any such device or element of design after such sale and delivery to the ultimate purchaser; More EPA links: (Look in 89.100 Prohibited Acts)

4/3/2010 4:19:42 PM

I am sure that if the cost of building Max is amortized over its useful life span it will cost over 100 dollars for every gallon used for the life of the car? Any car well taken care of Gas or Diesel should easily last over 200,000 miles, and assuming someone built it themselves, it could last longer! Assuming, oh, lets say 60 mpg, that would be 3,333 gallons. Multiply that by the $100 per gallon you suggest comes out to $333,333 dollars! Of you can put one together out of used parts for #30,000, that comes out to .15c per gallon used for the whole price of the car! My last Diahatsu (3 cylinder 999cc engine) lasted almost 300,000 miles before the EX killed it after the divorce! Same original stock engine and trans (not overhauled), just struts, brakes, clutches and a few gaskets that got hard over the years and once pulling the intake off to clear out the EGR passages. Once I had to pull the head to smooth the piston top and combustion chamber when one spark plug insulator broke and bounced around a while before exiting the exhaust dinging things up.

4/2/2010 6:28:30 PM

I wonder how long it would have taken me to get a used Miata, rip the engine out and slap in the same diesel engine Max has?? Cost and time commitment would be a fraction of what has been put into Max. I am sure that if the cost of building Max is amortized over its useful life span it will cost over 100 dollars for every gallon used for the life of the car.

nancy k.
3/31/2010 5:22:25 PM

I'm sure enjoying the updates! Any goals/plans for when MAX will be available for purchase? We're a homeschool family and are looking forward to building it as a family/school project.

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