Control of Air Pollution From New Motor Vehicles and New Motor Vehicle Engines: Regulations Requiring On-Board Diagnostic (OBD) SystemsAcceptance of Revised California OBD II Requirements

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 86

[AMS-FRL-5302-3]

RIN 2060-AC65

Control of Air Pollution From New Motor Vehicles and New Motor

Vehicle Engines: Regulations Requiring On-Board Diagnostic (OBD)

Systems--Acceptance of Revised California OBD II Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: This notice of proposed rulemaking proposes to revise

requirements associated with on-board diagnostic (OBD) systems, as

specified by 40 CFR 86.094-17. The federal OBD rulemaking, published

February 19, 1993, allowed for compliance with California OBD II

requirements as satisfying federal OBD requirements through the 1998

model year. The California Air Resources Board has recently revised

their OBD II requirements. The federal OBD regulations require

appropriate revisions such that compliance with the recently revised

OBD II requirements will satisfy federal OBD.

DATES: Written comments on this document will be accepted until January

16, 1996. EPA will conduct a public hearing on this Notice of Proposed

Rulemaking on December 13, 1995, if a public hearing is requested by

November 16, 1995. If a hearing is requested, it will convene at 9 a.m.

and will adjourn at such time as necessary to complete the testimony.

Further information on the public hearing can be found in Supplementary

Information, Section III, Public Participation.

ADDRESSES: Written comments should be submitted (in duplicate if

possible) to: The Air Docket, room M-1500 (Mail Code 6102), Waterside

Mall, Attention: Docket No. A-90-35, 401 M Street, SW., Washington, DC

20460.

The public hearing, if requested, will be held at the Holiday Inn

North Campus, 3600 Plymouth Road, Ann Arbor, MI. Parties wishing to

testify at the hearing should provide written notice to the contact

person (see FOR FURTHER INFORMATION CONTACT).

Materials relevant to this rulemaking are contained in Docket No.

A-90-35, and are available for public inspection and photocopying

between 8:00 a.m. and 5:30 p.m. Monday through Friday. The telephone

number is (202) 260-7548 and the facsimile number is (202) 260-4400. A

reasonable fee may be charged by EPA for copying docket material.

FOR FURTHER INFORMATION CONTACT: Todd Sherwood, U.S. Environmental

Protection Agency, 2565 Plymouth Road, Ann Arbor, MI 48105, telephone

(313) 668-4405.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction and Background

II. Requirements of this Proposal

III. Public Participation

IV. Discussion of Issues

V. Cost Effectiveness

VI. Administrative Requirements

I. Introduction and Background

On February 19, 1993, the EPA promulgated a final rulemaking (58 FR

9468, February 19, 1993) requiring manufacturers of light-duty vehicles

(LDV) and light-duty trucks (LDT) to install on-board emission control

diagnostics (OBD) systems on such vehicles beginning in model year

1994. The regulations promulgated in that final rulemaking require that

[[Page 55522]]

manufacturers install OBD systems which monitor emission control

components for any malfunction or deterioration causing exceedances of

certain emission thresholds, and alert the vehicle operator to the need

for repair. That rulemaking also requires that, when a malfunction

occurs, diagnostic information must be stored in the vehicle's computer

to assist the mechanic in diagnosis and repair.

Additionally, that rulemaking makes an allowance for manufacturers

to satisfy the Federal OBD requirements through the 1998 model year by

installing systems satisfying the California OBD II requirements

pertaining to those model years. This allowance means that

manufacturers could concentrate on designing one system for OBD

compliance and installing that system nationwide during allowable model

years. As EPA regulations cannot be revised except through EPA

rulemaking, the OBD II requirements allowed under this provision were,

and have continued to be, those existing on the date of publication of

the federal OBD final rulemaking. This means that subsequent changes

made to the OBD II requirements by the California Air Resources Board

(ARB) may be inconsistent and potentially unacceptable for federal OBD

compliance. The provisions of this proposed rulemaking will allow

manufacturers to comply with federal OBD requirements by optionally

complying with more recent OBD II regulations, specifically those

contained in ARB Mail Out #95-03, made publicly available January 19,

1995.

On March 23, 1995, EPA published a direct final rule revising

specific federal OBD provisions, including the provision of today's

proposal. EPA believed that the March 23 direct final rule would not be

controversial. In that direct final rule, EPA stated that, ``If notice

is received that any person or persons wish to submit adverse comments

regarding some, but not all of the actions taken in this rulemaking,

then EPA shall withdraw this final action and publish a proposal only

with regard to the actions for which notice has been received.'' EPA

stated that it would make such a withdrawal if adverse comment was

received by April 24, 1995.

EPA received adverse comment from the Motor and Equipment

Manufacturers Association (MEMA). This adverse comment was been placed

in the public docket for viewing. The comments submitted by MEMA were

adverse with regard to the revision of 40 CFR 86.094-17(j) that would

allow manufacturers the option of complying with the recently revised

California OBD II requirements (California Air Resources Board Mail-Out

#95-03). (MEMA had initially objected to other specific provisions of

the direct final rule, but MEMA withdrew these objections in a letter

signed May 18, 1995.) Therefore, EPA subsequently removed the provision

of the March 23 direct final rule that pertained to optional compliance

with the revised OBD II requirements of ARB Mail-Out #95-03 (Final rule

published on July 25, 1995 at 60 FR 37945). The language of the prior

final rule published on February 19, 1993 (58 FR 9468) allowing

compliance with California OBD II requirements is reinstated in

Sec. 86.094-17(j).

II. Requirements of This Proposal

This proposed rulemaking allows manufacturers to comply with

federal OBD requirements by optionally complying with the revised and

recently adopted California OBD II regulations. The allowance for

optional compliance with California OBD II has already been established

in the federal OBD program and was incorporated into the federal OBD

final rulemaking in February, 1993. However, since that time, the ARB

has made several revisions to the OBD II regulations.

Because the Agency cannot simply accept the revised OBD II without

undergoing the federal regulatory process, any optional compliance with

California OBD II under the current federal regulations must be done

against the OBD II regulations as they existed in February, 1993 (ARB

Mail Out #92-56, November, 1992). However, the ARB has determined that

several manufacturers would have difficulty complying with the OBD II

regulations as they existed in February, 1993. The most notable

requirements that currently pose difficulties are those for engine

misfire detection under all positive torque engine speeds and

conditions and full OBD II implementation on alternative fueled

vehicles. Additionally, most manufacturers have indicated difficulty

meeting other aspects of the OBD II regulations due to, for example,

the complexity of the computer software requirements, and unpredictable

driver actions such as resting a foot on the gas pedal while stopped at

a traffic light. It is these additional difficulties that have prompted

ARB to provide a ``deficiency'' allowance in their revised OBD II

regulations whereby manufacturers can certify as OBD II compliant

despite some reasonably acceptable and unplanned deficiency in the OBD

system.

As a result of the ARB revisions to OBD II, and to remain

consistent with the original intent of providing for optional

compliance with OBD II for federal OBD purposes, and because EPA has

determined that OBD systems complying with the revised OBD II

requirements fully satisfy the intent of the 1990 Clean Air Act

Amendments and federal OBD regulations, this proposed rulemaking will

provide the same option but will require that manufacturers choosing

this option comply with the more recent OBD II regulations contained in

ARB Mail Out #95-03.

This means that any federal vehicles complying with federal OBD by

optionally complying with California OBD II are allowed the same

deficiencies as allowed under the OBD II provisions. This is consistent

with revisions deemed necessary by EPA and subsequently made to federal

OBD requirements through a direct final rulemaking published in March

of this year (60 FR 15242, March 23, 1995). Note, however, that a

manufacturer requesting certification of a deficient OBD II system must

receive EPA acceptance of any deficiency independently of an acceptance

made by ARB. The Agency will use the same criteria specified by the ARB

in the OBD II regulation,\1\ with the exception of providing deficiency

allowances for lack of catalyst monitors or oxygen sensor monitors as

the Clean Air Act specifically requires these monitors no later than

the 1996 model year. The Agency will make every effort to determine the

acceptability of OBD II deficiency requests in concert with ARB staff

to avoid the potential for conflicting determinations. However, the

extent to which the agencies can make concurrent and coordinated

findings will rely heavily on the manufacturer, who will be expected to

provide any necessary information to both agencies in parallel rather

than pursuing deficiency determinations on a separate basis.

\1\Those criteria being the extent to which the requirements are

satisfied overall on the vehicle applications in question, the

extent to which the resultant diagnostic system design will be more

effective than earlier OBD systems, and a demonstrated good-faith

effort to meet the requirements in full by evaluating and

considering the best available monitoring technology.

---------------------------------------------------------------------------

III. Public Participation

A. Comments and the Public Docket

The Agency welcomes comments on all aspects of this proposed

rulemaking. All comments, with the exception of

[[Page 55523]]

proprietary information, should be directed to the EPA Air Docket

Section, Docket No. A-90-35 (see ADDRESSES). Commenters who wish to

submit proprietary information for consideration should clearly

separate such information from other comments by:

Labeling proprietary information ``Confidential Business

Information'' and

Sending proprietary information directly to the contact

person listed (see FOR FURTHER INFORMATION CONTACT) and not to the

public docket.

This will help insure that proprietary information is not

inadvertently placed in the docket. If a commenter wants EPA to use a

submission labeled as confidential business information as part of the

basis for the final rule, then a nonconfidential version of the

document, which summarizes the key data or information, should be sent

to the docket.

Information covered by a claim of confidentiality will be disclosed

by EPA only to the extent allowed and by the procedures set forth in 40

CFR Part 2. If no claim of confidentiality accompanies the submission

when it is received by EPA, the submission may be made available to the

public without notifying the commenters.

B. Public Hearing

EPA will conduct a public hearing on this notice of proposed

rulemaking on December 13, 1995, if a public hearing is requested by

November 16, 1995. If a hearing is requested, it will convene at 9 a.m.

and will adjourn at such time as necessary to complete the testimony.

If requested the public hearing will be held at the Holiday Inn North

Campus, 3600 Plymouth Road, Ann Arbor, MI.

Should a public hearing be requested and subsequently held, anyone

wishing to present testimony about this proposal at that public hearing

should, if possible, notify the contact person (see FOR FURTHER

INFORMATION CONTACT) at least seven days prior to the day of the

hearing. The contact person should be given an estimate of the time

required for the presentation of testimony and notification of any need

for audio/visual equipment. A sign-up sheet will be available at the

registration table the morning of the hearing for scheduling those who

have not notified the contact earlier. This testimony will be scheduled

on a first-come, first-served basis, and will follow the testimony that

is arranged in advance.

The Agency recommends that approximately 50 copies of the statement

or material to be presented be brought to the hearing for distribution

to the audience. In addition, EPA would find it helpful to receive an

advance copy of any statement or material to be presented at the

hearing at least one week before the scheduled hearing date. This is to

give EPA staff adequate time to review such material before the

hearing. Such advance copies should be submitted to the contact person

listed.

The official records of the hearing will be kept open for 30 days

following the hearing to allow submissions of rebuttal and

supplementary testimony. All such submittals should be directed to the

Air Docket, Docket No. A-90-35 (see ADDRESSES).

The hearing will be conducted informally, and technical rules of

evidence will not apply. Written transcripts of the hearing will be

made and a copy thereof placed in the docket. Anyone desiring to

purchase a copy of the transcript should make individual arrangements

with the court reporter recording the proceeding.

IV. Discussion of Issues

As noted above, EPA published a direct final rulemaking on March

23, 1995, that contained a provision for optional compliance with

revised California OBD II regulations as satisfying federal OBD through

the 1998 model year. That provision was to become effective on May 22,

1995, unless EPA received notice of adverse comments by April 24, 1995.

EPA received adverse comment from one source, the Motor and Equipment

Manufacturers Association (MEMA), dated April 21, 1995. MEMA had

commented adversely on all but one provision contained in the direct

final rulemaking (sections II.A. through II.G.). The only provision not

commented on by MEMA was that provision deleting the federal OBD anti-

tampering requirements (40 CFR 86.094-18). In subsequent discussions,

MEMA agreed to withdraw all of their adverse comments, with the

exception of that comment pertaining to federal acceptance of compliant

revised California OBD II systems as satisfying federal OBD

requirements. As a result, EPA has removed the provision allowing

revised OBD II systems for federal OBD compliance.

The comments received from MEMA regarding federal acceptance of

compliant revised California OBD II systems as satisfying federal OBD

requirements can be categorized into three areas: (1) Delegation of

federal regulatory authority to the State of California; (2) Lack of an

OBD II waiver under Section 209 of the Clean Air Act (CAA); and, (3)

OBD II violates Section 202(m)(4) and 202(m)(5) of the CAA. These will

be addressed in order.

In their comments, MEMA states an objection to , ``* * * EPA's use

of the rule to unlawfully delegate federal rulemaking authority to the

California Air Resources Board (``CARB'').'' The basis of this comment

is unclear. The Agency has determined that the California OBD II

regulation adequately encompass all requirements of the CAA section

202(m)(1), 202(m)(2), and 202(m)(4), and the regulatory intent of EPA's

federal OBD final rulemaking of February, 1993. In light of that

determination, the Agency has determined that it is beneficial to the

automobile industry, and it presents no loss of federal OBD program

benefits, to allow for optional compliance with California OBD II

regulations as satisfying federal OBD for the initial years of OBD

implementation. This issue was considered at length during development

of the federal OBD final rulemaking and was included in the CFR through

that rulemaking. In the March, 1995, direct final rulemaking, EPA

simply revised that regulatory provision to include recent revisions

made to the OBD II regulations that EPA had determined were necessary.

In fact, EPA made revisions to its own regulations providing measures

of relief similar to those contained in the revised OBD II regulations.

It should also be pointed out that EPA makes determinations of

regulatory compliance, whether that compliance is done against

California OBD II or specific federal OBD provisions, in conjunction

with but independently from the California Air Resources Board. The ARB

does not have the authority to implement federal regulations, nor the

authority to make certification decisions. Therefore, EPA is making all

implementation and certification decisions on vehicles produced for

sale outside the State of California.

If ARB makes any further changes to the OBD II regulations, such

changes will not automatically apply for federal certification

purposes. EPA will once again evaluate such revisions to determine

whether they are appropriate and will again provide for notice and

comment rulemaking to assure that the public can provide its input.

Another MEMA comment stated that EPA had not yet granted a CAA

Section 209 waiver to California for their OBD II program. MEMA argues

that the lack of such a waiver precludes EPA from accepting OBD II

systems for federal OBD compliance. However, the Agency's regulatory

provisions state that an OBD system meeting the requirements of the OBD

II regulations

[[Page 55524]]

effectively complies with federal OBD regulations. California's OBD II

program is in this case similar to any other set of procedures that EPA

incorporates by reference, for example, protocols developed by the

Society of Automotive Engineers (SAE). These protocols are generally

unenforceable by themselves, but are enforceable by EPA once they are

promulgated by rulemaking. The existence of a waiver to California for

their OBD II program is immaterial to this optional provision under

federal OBD. Even if the State of California were to discontinue their

OBD II program, the Agency could continue to allow optional compliance

against the ARB OBD II regulations.

MEMA also argues that OBD II, and federal OBD by allowing

compliance against the OBD II provisions, violates Sections 202(m)(4)

and 202(m)(5) of the CAA. Section 202(m)(4) requires standardization of

diagnostic connectors, OBD system access, and OBD data output, while

202(m)(5) requires that service information be made available to

interested parties. This comment seems to be directed to the anti-

tampering provisions of the OBD II requirements. Even if EPA believed

that such requirements violated section 202(m)(4) and 202(m)(5), such

requirements have expressly been excluded from EPA's incorporation of

OBD II. Thus, such arguments are inapplicable. Moreover, all

manufacturers will be required to comply with EPA's Service Information

Availability regulations (final rule published on August 9, 1995 at 60

FR 40474).

V. Cost Effectiveness

This proposed rulemaking alters an existing provision by allowing

optional compliance with the most recent California OBD II

requirements, as opposed to the November, 1992, ``Original'' OBD II

requirements, for the purposes of federal OBD compliance. Because this

proposed rulemaking alters an existing provision, there are no costs

associated with this specific proposed action. The costs and emission

reductions associated with the federal OBD program were developed for

the February, 19, 1993, final rulemaking. The proposed change being

made today does not affect the costs and emission reductions published

as part of that rulemaking.

VI. Administrative Requirements

A. Administrative Designation

Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more

or adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with

an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements,

grants, user fees, or loan programs or the rights and obligations of

recipients thereof; or,

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

It has been determined that this rule is not a ``significant

regulatory action'' under the terms of Executive Order 12866 and is

therefore not subject to OMB review.

B. Reporting and Recordkeeping Requirements

This proposed rulemaking does not change the information collection

requirements submitted to and approved by OMB in association with the

OBD final rulemaking (58 FR 9468, February 19, 1993; and, 59 FR 38372,

July 28, 1994).

C. Impact on Small Entities

The Regulatory Flexibility Act of 1980 requires Federal agencies to

identify potentially adverse impacts of federal regulations upon small

entities. This proposed rulemaking will provide regulatory relief to

both large and small volume automobile manufacturers by maintaining

consistency with California OBD II requirements. This proposed

rulemaking will have no impact on businesses which manufacture,

rebuild, distribute, or sell automotive parts, nor those involved in

automotive service and repair.

Therefore, as required under section 605 of the Regulatory

Flexibility Act, 5 U.S.C. 601 et seq., I certify that this regulation

does not have a significant impact on a substantial number of small

entities.

D. Unfunded Mandates Act

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, or $100 million or more. Under Section 205, EPA

must select the most cost effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the proposed approval action promulgated

today does not include a Federal mandate that may result in estimated

costs of $100 million or more to either State, local, or tribal

governments in the aggregate, or to the private sector.

E. Electronic Copies of Rulemaking Documents

Electronic copies of the preamble and the regulatory text of this

proposed rulemaking are available on the Office of Air Quality Planning

and Standards (OAQPS) Technology Transfer Network Bulletin Board System

(TTN BBS). Users are able to access and download TTN BBS files on their

first call. After logging onto TTN BBS, to navigate through the BBS to

the files of interest, the user must enter the appropriate command at

each of a series of menus. The steps required to access information on

this rulemaking are listed below. The service is free, except for the

cost of the phone call.

TTN BBS: 919-541-5742 (1,200-14,400 bps, no parity, eight data

bits, one stop bit). Voice help: 919-541-5384 Internet address: TELNET

ttnbbs.rtpnc.epa.gov Off-line: Mondays from 8-12 Noon ET.

1. Technology Transfer Network Top Menu: GATEWAY TO TTN

TECHNICAL AREAS (Bulletin Boards) (Command: T)

2. TTN TECHNICAL INFORMATION AREAS: OMS--Mobile Sources

Information (Command: M)

3. OMS BBS === MAIN MENU FILE TRANSFERS: Rulemaking & Reporting

(Command: K)

4. RULEMAKING PACKAGES: Inspection and Maintenance (Command: 7)

5. Inspection and Maintenance Rulemaking Areas: File area #2 On-

Board Diagnostics (Command: 2)

At this stage, the system will list all available FTP Review files.

To download a file, select a transfer protocol which will match the

terminal software on your computer, then set your own software to

receive the file using that same protocol.

[[Page 55525]]

If unfamiliar with handling compressed (i.e., ZIP'd) files, go to

the TTN topmenu, System Utilities (Command: 1) for information and the

necessary program to download in your computer. After getting the files

you want onto your computer, you can quit TTN BBS with the oodbye

command.

List of Subjects in 40 CFR Part 86

Environmental protection, Administrative practice and procedure,

Air pollution control, Gasoline, Incorporation by reference, Motor

vehicles, Motor vehicle pollution, Reporting and recordkeeping

requirements.

Dated: October 20, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, it is proposed to amend

part 86 of title 40 of the Code of Federal Regulations as follows:

PART 86--CONTROL OF AIR POLLUTION FROM NEW AND IN-USE MOTOR

VEHICLES AND NEW AND IN-USE MOTOR VEHICLE ENGINES: CERTIFICATION

AND TEST PROCEDURES

1. The authority citation for part 86 continues to read as follows:

Authority: Secs. 202, 203, 205, 206, 207, 208, 215, 216, 217,

and 301(a), Clean Air Act, as amended (42 U.S.C. 7521, 7522, 7524,

7525, 7541, 7542, 7549, 7550, 7552, and 7601(a)).

Subpart A--[Amended]

2. Section 86.094-17 is amended by revising paragraph (j) to read

as follows:

Sec. 86.094-17 Emission control diagnostic system for 1994 and later

light-duty vehicles and light-duty trucks.

* * * * *

(j) Demonstration of compliance with California OBD II requirements

(Title 13 California Code section 1968.1), as modified pursuant to

California Mail Out #95-03 (January 19, 1995), shall satisfy the

requirements of this section through the 1998 model year except that

compliance with Title 13 California Code section 1968.1(d), pertaining

to tampering protection, is not required to satisfy the requirements of

this section.

[FR Doc. 95-27070 Filed 10-31-95; 8:45 am]

BILLING CODE 6560-50-P