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Old March 29th, 2016, 12:52 PM
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The Latest Fight Over Car Importing

From The Latest Fight Over Car Importing

The Latest Fight Over Car Importing




Last year U.S. Army Chief Warrant Officer Charles Overby set out to legally import his 1985 Land Rover Defender from his station in Germany to the U.S. Now the truck’s trapped at an impound lot, and could potentially set a whole new precedent for automotive importing because of one arbitrary discrepancy.

If you want to import a car from a foreign country that wasn’t intended for American consumption, there are a few basic rules most people can’t get around: the vehicle must be 25 years old or older to be exempt from regular import restrictions (up to and including crash testing), and it must be 21 years old or older to be exempt from emissions testing.

So why would the Environmental Protection Agency care about one 31-year-old Defender?

It’s because this particular Defender showed up on our shores with an engine it wasn’t built with. Overby’s ’85 Defender left the Solihull, England factory with a 2.5-liter diesel engine; at some point in the truck’s long life, it was swapped for a 2.5-liter turbodiesel engine from 1991.

Given that the new engine is old enough to import, the car sounds like a no-brainer. But the Environmental Protection Agency takes issue here.

Deep in their stacks of stipulations for how a car can be imported or registered for road use here in the U.S. is a line that says cars coming in without their original engine can’t come in at all, according to Overby and his attorney. That is, unless certain criteria are satisfied.

Now this case is about to go before the Court Of International Trade in New York City, and the outcome could lay down precedents for the importing of engine-swapped cars. Federal officials were not able to comment, but we spoke at length with this Land Rover’s owner and his representative.

The War On Old Land Rovers



Like the Nissan Skyline and original Mini Cooper, the Land Rover Defender—a trucklike vehicle built for safaris and farm work—is both a popular car to import and a common target for federal authorities.

In the summer of 2014, federal law enforcement officials conducted a series of early morning raids to confiscate 40 vintage Land Rovers from ordinary citizens. Federal prosecutors suspected the trucks were brought to the U.S. illegally by importer Aaron Richardet; in seizing the cars, they were reportedly building a case against him. Agents effectively “arrested” the vehicles, which law enforcement can do thanks to civil forfeiture.

Almost a year later, the trucks were returned to their owners, and the case against Richardet was dropped.

That result was due in large part to the efforts of North Carolina attorney Will Hedrick; a Land Rover-loving lawyer who was made aware of the vintage Defender mass-confiscation via online forums and stepped up to represent their owners pro bono. Hedrick’s case against the government succeeded in getting all the seized trucks returned to their owners.

Naturally, Hedrick is now a bit of a legend in Land Rover fan circles, which is why Overby reached out when the EPA refused to let his 31-year-old Defender 110 through customs—after it’d been shipped here all the way from Europe, at the expense of the United States Army.

A Man And His Rover



Overby is an active-duty officer in the U.S. Army. While stationed in Europe he bought himself a longbody Defender for the same reasons anyone else does: they’re fantastic adventure vehicles, old-school trucks capable of conquering the wilderness in ways few others can.

But the Defender is not known for its reliability, especially when they’re almost old enough to run for president. It probably won’t shock anyone to read that at some point during the truck’s long life, its 2.5-liter diesel engine went kaput and was swapped out for a newer one. The replacement was another 2.5-liter Rover diesel, but with a turbo. This engine is known as the 200Tdi.

Land Rover introduced the 200Tdi in the Defender 110 in 1989. Overby told me that the swap is from a 1991 truck.

But since the vehicle remained architecturally identical through all those years, the engine is a direct drop-in replacement. In fact, Overby explained that it’s pretty commonly performed on the earlier vehicles.

With the truck running well—or as well as a Thatcher-era Land Rover ever does—Overby was enjoying the good life greenlaning with his family in the sweet rig his young son had named “Alice the Zombie Slayer.”

Coming To America

Then in the summer of 2015, Overby said he was given new orders, and he and his family relocated to the United States. Naturally he wanted to bring the Rover too because while it’s a decent work truck in Europe, it’s a rare and coveted collectable on this side of the Atlantic.

As part of his reassignment deal with the military, Overby said the Army paid moving costs up to a certain amount, which included the transportation of privately owned vehicles (POVs.)

An outfit called International Auto Logistics was selected to picked up the Land Rover in Ansbach, Germany and lug it all the way to Charleston, South Carolina, which Overby said went off without a hitch.

When you’re trying to bring a foreign car into the United States, there’s a big stack of forms to flip through and boxes to tick. One of them is from the EPA, and if you’re working with a vehicle as old as Overby’s you get to check “Code E,” which, according to the agency, means:

“A vehicle at least 21 years old (calendar year of manufacture subtracted from year of importation) and in original unmodified configuration is either exempted or excluded from EPA emission requirements, depending on age.

Vehicles at least 21 years old with replacement engines are not eligible for this exemption unless they contain equivalent or newer EPA certified engines. Customs may require proof of vehicle age.”
2016 began and Overby’s Rover was safely sitting in a parking lot at the Charleston port. The Department Of Transportation was ready to welcome it to our roads with open arms and the National Highway Traffic Safety Administration had no issue with truck being naturalized, Hedrick told me.

But as the U.S. Customs and Border Protection team went through it, they decided they weren’t too sure about this “Code E”, business and with a call to the EPA, the truck was imprisoned at the port.

The EPA’s issue

A close read of “Code E” reveals what went wrong: that bit about “original unmodified configuration.”

Thanks to the engine swap, the “original” clause no longer applicable. And so the EPA said “good day, sir” and shut Overby down.



What might be the most frustrating fact here is that the newer engine is 25 years old, and would be perfectly legal to import if only the whole truck it belonged to were coming in too—to say nothing of the fact that the replacement engine is likely less polluting than the original.

In other words, the EPA is vetoing an engine-swapped vehicle on a technicality, even though both car and engine would be eligible to import on their own.

Overby, hoping logic would prevail, brought the issue to his local congressman, South Carolina Rep. Mick Mulvaney. Mulvaney’s office passed the complaint up to EPA Assistant Administrator Cynthia Giles, and while they haven’t achieved the resolution Overby’s looking for yet, they did manage to get a response.

Giles maintained the EPA’s decision to keep the truck out of the U.S. She cited the “original equipment” language as a condition of the 21-year exemption. She went on to explain that exceptions could only be issued if the vehicle was specifically granted a “Certificate Of Conformity” by the EPA and/or imported by “Certificate Holder” in the letter she sent in reply to Congressman Mulvaney.

And Giles wrote that only automakers and registered companies “that specialize in converting uncertified vehicles to meet the EPA’s requirements” could be “Certificate Holders.” Since Overby is neither, he’s out of luck.

As far as the EPA is concerned, Overby can abandon the truck where it sits for the U.S. government to crush or put it on a ship to “anywhere but here.” Meanwhile, it’s racking up parking fees at $10 a day while its tires go flat and sea birds defecate on its paint.

The Defense

This is where Hedrick comes in. Since the Land Rover case last year, he’s started specializing the laws surrounding vehicle imports, with particular interest in off-road vehicles from England. He’s currently representing Charles Overby.

As far as Hedrick’s concerned, the truck’s old enough to be here. And the engine’s old enough to be here. But the key argument in allowing Overby’s Rover in is the fact that it effectively is an unmodified age-exempt vehicle.

The 1991 Defender 110 was essentially the same as Overby’s ’85, so putting a ’91 200Tdi engine in the truck should only make it a ’91 model in the eyes of the EPA, which should be legal to import.

Now, a key difference between Overby’s case and the dozens of Land Rovers that were taken in 2014 is that the truck we’re talking about now wasn’t seized, it was simply “denied entry.”

“If they had seized it, we could have taken the matter to a U.S. District Court right away,” Hedrick explained to me over the phone, “but in this case we are limited to the court of international trade.”

That basically means Overby’s options for restitution are more limited.

Hedrick thinks that while the situation may end up in a court setting, the EPA will do everything it can to settle the matter before a judge can hand down a ruling. If that were to happen, the EPA would effectively be handing over control of the interpretation of their rules to someone else. Not a good look for them.

“This regulation has never been tested in court, which is why i think the EPA wants to settle and also why it was denied entry [rather than seized],” Hedrick said.

The stakes are high because there’s potential for precedent. Once the EPA okays Overby’s engine swap they’ll have to allow others. And why shouldn’t they? If a vehicle is imported in a completely legal configuration, the fact that the dates on the engine and sheetmetal don’t match seems like a ridiculous reason to keep cars out.

But as Hedrick explained to me, this should be a really easy case for everybody to walk away happy from. Overby’s Land Rover and its engine are not only both old enough to satisfy the EPA’s requirements, but the engine and vehicle combination is identical to a configuration of the truck that would be legally importable were it not for the fact that it was assembled over a few extra years.

It seems all the EPA would have to do to maintain the status quo would be to clarify their regulation, stating that vehicles with engines outside a standard configuration would remain beholden to the agency’s right of refusal.

The Fight Continues



Hedrick explained to me that he filed a formal petition to the U.S. Customs and Border Protection office at the port of Charleston in February, and that the agency had 30 working days to respond.

That deadline came and went, and last week he found out what the agency’s first response was. Or lack-thereof.

“They did not respond, and in failing to respond, the default under CBP regulation is to rule our protest denied,” Hedrick said in an e-mail. That doesn’t mean he’s giving up, but the situation he laid out is enough to make any would-be importer want to eat a stress ball:

“In truth, I do not think it was ever genuinely considered. To paint a picture for you, I had to file the protest in quadruplicate (4 copies x 100+ pages). When I spoke with the CBP officer in Charleston today I asked her who had received each of the four copies. Her answer: only her. One was reported to be on her desk, while the other three were reported to be in a file in her drawer.

When I asked her whether she had provided a copy to the EPA, the response I received was ‘no.’ She went on to state that they ‘couldn’t respond in 30-days anyway,’ and that ‘only people who want to take their issues to court request for expedited 30-day review.’”
At this point Hedrick does not think that the CBP gave his protest any attention, and apparently the EPA may not have even been aware that it was filed.

Now, Hedrick will bring the case before the Court Of International Trade with a formal protest to get that ratty old truck onto American roads.

Hedrick, once again, is representing the Land Rover owner for free. Overby emphasized how grateful he was for this to me. “I would have no recourse without Will,” he told me.

And this is what normally happens to hapless “importers” of relatively low-value vehicles. Once the government says no, it quickly becomes too expensive for the average person to litigate or arbitrate the issue.

As frustrating as the lack of a truck obviously is, Overby said he is more bothered by the principle of the situation. He said he thinks it’s ridiculous that the government is refusing to realize that the truck does in fact satisfy their entry requirements, simply because it fails an arbitrary boilerplate mandate to be “unmodified.”

We’ll keep you apprised of what the result is, and what this will mean for everybody else who wants to import a car in the future.


Andrew P Collinsandrew@jalopnik.com@andr3wcollins
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  #2  
Old March 29th, 2016, 01:33 PM
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Wow. This will be very interesting to hear how it plays out. Potentially a new precedent, or worst case is status quo. Bad about this particular status quo is the guy doesn't get his truck.
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  #3  
Old March 29th, 2016, 01:40 PM
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Great write up…but the reality is he lied on the EPA Form and to quote from the article:

“A vehicle at least 21 years old (calendar year of manufacture subtracted from year of importation) and in original unmodified configuration is either exempted or excluded from EPA emission requirements, depending on age.

Vehicles at least 21 years old with replacement engines are not eligible for this exemption unless they contain equivalent or newer EPA certified engines. Customs may require proof of vehicle age.”



So…is a 200tdi the equivalent to the 2.5td
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Old March 29th, 2016, 02:11 PM
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It is probably considered equivalent, but not "EPA certified" so it would not matter.

However, I would think that if he has documentation that the engine is from 1991.... wouldn't that exempt the engine anyway?

I know... I know........ It's the EPA, it's ICE.... I know....... The simple fact that an exempted engine and an exempted car happen to be bolted together means the two are not exempted. I know....
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Old March 29th, 2016, 02:16 PM
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Quote:
Originally Posted by mongosd2 View Post
Great write up…but the reality is he lied on the EPA Form and to quote from the article:

“A vehicle at least 21 years old (calendar year of manufacture subtracted from year of importation) and in original unmodified configuration is either exempted or excluded from EPA emission requirements, depending on age.

Vehicles at least 21 years old with replacement engines are not eligible for this exemption unless they contain equivalent or newer EPA certified engines. Customs may require proof of vehicle age.”



So…is a 200tdi the equivalent to the 2.5td
Yeah, I appreciate Will's effort to get an update on this, but in all my research I did find IPGregorys Conversation (in thehomeland security thread you posted in) with the EPA and found it to be helpful as to what is legit, I was concerned as my truck was an army truck which have engine replacements often.

Quote:
Originally Posted by mongosd2 View Post
It's not clear what the guidelines are for once the vehicle is here according to DOT/NHSTA or any state DMV regarding safety issues. Once again I'm not going to debate that because this conversation is about what is legal to import. If the frame swap was done once it's here, I'd save all the receipts and document the process with photo's

However it is clear from the EPA on what you can do once the vehicle is here. This came from the EPA and go ahead and ask him (EPA guy) for clarification. This info has been posted in the past…

From: Hurlin.David@epamail.epa.gov [mailto:Hurlin.David@epamail.epa.gov] On Behalf Of Imports@epa.gov
Sent: Friday, April 05, 2013 05:12
To:
Subject: Re: Rules regarding Imported Vehicles?

Ian Gregory,


My 1st question regards what I can do with the imported vehicle once it is here in the US and legally titled and in use. I understand that from the EPA point of view the vehicle will be issued an exemption from emissions rules based on being older than 21 years and that its original engine type is OK even though it’s likely not to be a US type approved engine as it is covered by the exemption. I also understand that if I want to change that engine once the truck is here for a US Approved engine then I may do so as long as the new engine is approved for use in a vehicle sold here in the US, is the same age or newer than the vehicle and I transfer any emissions related equipment as well. The question is whether I can fit a non-type approved engine to the vehicle as it is considered exempt from the rules being over 21yrs? A Non-type approved for example would be something such as the Land Rover 300TDi Diesel or TD5 Diesel engines that were fitted to later models that are not yet eligible for import. A 2nd part to that question would be if the new engine itself was over 21yrs old but still not type approved? An example for that would be the Land Rover 200TDi Diesel engine fitted overseas from 1989.

If the vehicle is at least 21 years old (the age of the vehicle is determined by subtracting the calendar year of manufacture from the calendar year of importation). If the calendar year of manufacture is unavailable, the importer may substitute the model year or year of first registration. For instance, to qualify in 2001, the vehicle must have been manufactured in 1980 or earlier. The vehicle must be in its original unmodified configuration. Vehicles at least 21 years old with replacement engines are not eligible for this exemption unless they contain equivalent or newer EPA certified engines. This means that the engine needs to be a direct replacement (original replacement engine from the OEM) or an after market engine that was built to be identical to the original engine.

If a vehicle is imported under this rule and you change the engine to a different engine than what it was originally manufactured with then it would no longer be exempt under the age exemption and you would be manufacturing a new configuration (new motor vehicle) and would require the vehicle be certified to current EPA Federal emission standards. Once the vehicle is in the U.S. and governed by U.S. regulations then it would fall under engine tampering.






My 2nd question may not really be import related but does also relate to the 21 year exemption. I own a Land Rover Defender 90 that I am going to be refurbishing. This vehicle was originally imported by the manufacturer and sold new here in the US in the 1994 model year. In 2 years’ time it will be 21yrs old and I am considering changing the engine on this vehicle also. Again I understand I can fit a US engine the same age or newer with its emissions equipment intact. Can I however fit a non-type approved engine of a similar type to the ones above as the vehicle will now be exempt? I know the older 200TDi engine cannot be fitted.

If you change the engine to a different engine than what it was originally manufactured with then it would no longer be a certified configuration and you would be manufacturing a new configuration (new motor vehicle) and would require the vehicle be certified to current EPA Federal emission standards. This would also fall under engine tampering.




David C. Hurlin
URS, Contractor
EPA Imports Line
Imports Group
Compliance Division
Phone: (734) 214-4100
Fax: (734) 214-4676
2000 Traverwood Drive
Ann Arbor, MI 48105


Please call and debate this with the EPA, not me, 'cause I'm just looking to cover my A$$...
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Old March 29th, 2016, 02:27 PM
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Quote:
Originally Posted by RBBailey View Post
It is probably considered equivalent, but not "EPA certified" so it would not matter.

However, I would think that if he has documentation that the engine is from 1991.... wouldn't that exempt the engine anyway?

I know... I know........ It's the EPA, it's ICE.... I know....... The simple fact that an exempted engine and an exempted car happen to be bolted together means the two are not exempted. I know....
It's stupid…but the rules are what they are and it clearly states original configuration and other stipulations. Please correct me if I'm wrong
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Old March 29th, 2016, 02:28 PM
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Keep fighting Will! Be great if he is able to set a precedent here..
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Old March 29th, 2016, 02:43 PM
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Quote:
Originally Posted by RBBailey View Post
It is probably considered equivalent, but not "EPA certified" so it would not matter.

However, I would think that if he has documentation that the engine is from 1991.... wouldn't that exempt the engine anyway?

I know... I know........ It's the EPA, it's ICE.... I know....... The simple fact that an exempted engine and an exempted car happen to be bolted together means the two are not exempted. I know....
you can swap a 12J for a 12J (2.5 diesel), 19J for a 19J (2.5TD), etc. going from a 12J to a 200TDI is a jump.

I know of 2 such swaps (12J and a 19J) that have been imported in the last year or so, no issues getting through. When I was looking to import my truck, I called US Customs and asked some specific questions as I was wanting to upgrade seats (Puma) as mine were shot and engine was shot. Found out the engine needed to be the same (equivalent) as it was built with. Pretty straight forward, if it was built with a 12J then anything other than a 12J is going to raise a red flag.

Best of luck with your fight!
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Old March 29th, 2016, 02:47 PM
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let me take this time to say : Aaron Richardet is a flaming piece of shit
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  #10  
Old March 29th, 2016, 02:52 PM
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We all know the drill, the rules are what they are ... we simply cannot change them.

I wish Will all the best in his efforts.

SOLUTION : Get customs to release the truck and ship back where it came from, they will release if it is exported again. Ship it back to Europe, I can collect in port, removed the incorrect engine, install the correct engine and ship straight back to the US. Then it will clear since it has the original type engine installed.

We have done this for several board members who all had issues with customs e.g. stick shift to auto box, RHD to LHD conversion, Tdi to 2.5 Petrol . 2.5 NA
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Old March 29th, 2016, 04:33 PM
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Land Rover actually offered a 200tdi factory drop in kit to replace the 2.5 /2.5 td due to the issues with the factory motor.

I always wondered if the fact that they offered a factory replacement kit would have any bearing if someone were to have a 2.5 td that was replaced with a factory 200tdi...

Not the original configuration but a manufacturer approved part / configuration. Kind if like the lt77 to r380 they found a defect and improved it with a factory certified / authorized / approved configuration.

So does that mean that if I buy a mid nineties defender that had the lt77 replaced by the manufacturer with an r380 (approved factory configuration installed by the manufacturer) that is is no longer the original configuration and can be rejected? GO Will GO
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Old March 29th, 2016, 09:39 PM
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It is just a shame that you cannot remove the offending part (the engine) from the truck at the port and just complete the import process of the age-appropriate truck.

The cost to ship it back to Europe, replace the motor, and ship it back has got to be a huge amount - probably more than acquiring a 200Tdi stateside post import.

But all of this is mindless musing. The GOV will stand firm on the "wisdom" of their decision until forced to do otherwise.

Godspeed Will.
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Old March 29th, 2016, 10:40 PM
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It would be nice if one of these Federal Judges would actually see this STUPID corporatist law for what it really is - a foreign corporate automobile manufacture's profit protection law. Bought and paid for by Mercedes and BMW.

Highway safety and environmental protection have absolutely nothing to do with this law. Protecting the profits of Mercedes Benz, BMW, JLRNA, Nissan et al is what the core purpose of this law is about. It is damn sure not about whether a fucking 21 year old motor is in a fucking 25 year old truck!

So to all you tools who are banging on this solder for having the gall to pursue his happiness and "lying" about whether or not his motor and truck cut into the profits of JLRNA - edit off!
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Old March 29th, 2016, 10:55 PM
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Quote:
Originally Posted by mongosd2 View Post
Customs may require proof of vehicle age.” So…is a 200tdi the equivalent to the 2.5td
Words have meaning, both in the law and in everyday use. "Equivalent" does not mean "identical". This is simply how the EPA interprets its regulation, but this is not what the law actually says. The EPA's own written interpretation actually take into account that fact that a petrol and diesel engine may be considered equivalent to each other.

Equivalency isn't clearly defined under this particular section of regulation, but it is defined elsewhere in the EPA regs. Equivalency may be defined as having matching "displacement". If this definition is used, then the 2.5NA and the 200Tdi may be considered equivalent. They share identical displacements, and they were both machined utilizing the same tooling and the same basic design.

The bottom line question though is whether the 200Tdi produces more emissions than the 2.5NA? That's what it is all about right, achieving lower emissions? My research shows that the 200Tdi is a cleaner burning engine that produces lower emissions than the 2.5NA. The EPA has stated it believes otherwise, but it has offered no proof to support its assertion.

I have more evidence and arguments to support our position, some of which are even better than what I have just outlined above, but I'm going to hold off on sharing those for the time being. There is something to be said for the element of surprise when it comes to going to court with the government. Just understand that this case could have far reaching implications for the entire automotive industry, not just the Land Rover World. And, I look forward to joining my client to stand with him for his day in court.

Thanks to everyone for their support! And, if you're someone who thinks they have a better grasp on this area of law than I do, then by all means please feel free to PM your argument and we'll see if it holds water.
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  #15  
Old March 29th, 2016, 11:02 PM
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I'm amazed if this point of law (and mechanical status) has not been litigated previously.
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Old March 30th, 2016, 12:41 AM
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Cudos Will, its great you're championing the cause…I just posted the info available at the time. No bullshit, just facts gathered without the benefit of a legal background…

My sources are in DHS, not the EPA...
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Old March 30th, 2016, 01:25 AM
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you aren't kidding about "far reach implications" for all other imports - Keep going its the good fight
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Old March 30th, 2016, 06:48 AM
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94' D90 ST & 06' LR3
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Quote:
Originally Posted by Willh View Post
Equivalency may be defined as having matching "displacement". If this definition is used, then the 2.5NA and the 200Tdi may be considered equivalent. They share identical displacements, and they were both machined utilizing the same tooling and the same basic design.
By the OEM manufacturer and ^^this^^ is the most plausible definition to any rational person. Lots of information available on the superior emissions and efficiencies from common rail diesels.
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  #19  
Old March 30th, 2016, 09:59 AM
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John
1985 LR 90 200Tdi
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Somebody asked a question about replacement engine kits offered by LR.
Looking way back into part numbers these are 200Tdi kits offered at the time I belive.

V8 TWIN CARB TO TDI, STC8397
EFI to Tdi, STC8558
VM to Tdi, STC8374

I must add the above come from my old Range Rover files.
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  #20  
Old March 30th, 2016, 10:25 AM
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John B.
1991 Defender 90, 200TDI
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The Defender kit was STC939D for converting a TD to a 200TDI.
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