[Federal Register Volume 60, Number 153 (Wednesday, August 9, 1995)]
[Rules and Regulations]
[Pages 40474-40498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18867]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 86

[AMS-FRL-5268-1]
RIN 2060-AE93


Control of Air Pollution From New Motor Vehicles and New Motor 
Vehicle Engines; Regulations Requiring Availability of Information for 
Use of On-Board Diagnostic Systems and Emission-Related Repairs on 1994 
and later Model Year Light-Duty Vehicles and Light-Duty Trucks

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final rule establishes requirements for the availability 
of emission-related service information for all light-duty vehicles 
(LDVs) and light-duty trucks (LDTs) beginning with the 1994 model year 
(MY). Section 202(m)(5) of the Clean Air Act (CAA or Act) requires EPA 
to promulgate rules mandating the availability of emission-related 
service information for such vehicles. This rulemaking requires vehicle 
manufacturers to provide to the service and repair industry information 
necessary to service on-board diagnostic (OBD) systems and to perform 
other emission-related diagnosis and repair.

EFFECTIVE DATE: This final rule is effective December 7, 1995.

ADDRESSES: Materials relevant to this rulemaking are contained in 
Docket No. A-90-35. The docket is located at The Air Docket, 401 M 
Street, S.W., Washington, D.C. 20460, and may be viewed in Room M-1500 
from 8:30 a.m. until 3:30 p.m. Monday through Friday. A reasonable fee 
may be charged by EPA for copying docket material.

FOR FURTHER INFORMATION CONTACT: Cheryl Adelman, Certification 
Division, U.S. Environmental Protection Agency, 2565 Plymouth Road, Ann 
Arbor, Michigan 48105, Telephone (313) 668-4434

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background and Development
II. Requirements of the OBD Final Rule
    A. Availability of Service Information
    B. Required Information and Emission-Related Information
    C. Cost of Service Information
    D. Distribution of Service Information and Timeliness
    E. Enhanced Diagnostic Information
    F. Enhanced Diagnostic Tools
    G. Recalibration/Reprogramming
III. Public Participation
IV. Discussion of Comments and Issues
    A. Definition of ``Emission-Related'' Information
    B. Information Used To Manufacture Aftermarket Parts 

[[Page 40475]]

    C. Guidelines
    D. Cost of Service Information
    E. Distribution of Service Information
    F. Timeliness
    G. Media/Format
    H. Enhanced Diagnostic Information
    I. Enhanced Diagnostic Tools
    J. Recalibration/Reprogramming
    K. Regulatory Flexibility Analysis
V. Administrative Requirements
    A. Administrative Designation
    B. Impact on Small Entities
    C. Unfunded Mandates Act
    D. Electronic Copies of Rulemaking Documents
    E. Paperwork Reduction Act
    F. Display of OMB Control Numbers
VI. Authority

I. Background and Development

    Section 202(m)(5) of the CAA, as amended by the Clean Air Act 
Amendments of 1990 (CAAA), directs EPA to promulgate regulations 
requiring vehicle manufacturers to provide to:

any person engaged in the repairing or servicing of motor vehicles 
or motor vehicle engines, and the Administrator for use by any such 
persons, * * * any and all information needed to make use of the 
[vehicle's] emission control diagnostic system * * * and such other 
information including instructions for making emission-related 
diagnoses and repairs.

    Such requirements are subject to the requirements of section 208(c) 
regarding protection of trade secrets; however, no such information may 
be withheld under section 208(c) if that information is provided 
(directly or indirectly) by the manufacturer to its franchised dealers 
or other persons engaged in the repair, diagnosing or servicing of 
motor vehicles.
    On September 24, 1991, EPA published a notice of proposed 
rulemaking 1 (NPRM) outlining the Agency's proposed service 
information requirements. EPA subsequently reopened the comment and 
held public workshops to further review aspects of these 
requirements.2 Today's document promulgates these regulations.

    \1\ 56 FR 48272 (September 24, 1991).
    \2\ 57 FR 24457 (June 9, 1992); 58 FR 34013 (June 23, 1993).
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    As of August 1990, 96 urban areas were in violation of the National 
Ambient Air Quality Standard (NAAQS) for ozone and 41 areas could not 
attain the NAAQS for carbon monoxide (CO). EPA estimates that currently 
60% of the total tailpipe HC emissions from LDVs and LDTs are caused by 
the 20% of vehicles with serious emission control system malfunctions 
or degradation.3 The more stringent new vehicle emission standards 
mandated by the Act are likely to increase further the proportion of 
total LDV emissions from malfunctioning vehicles.

    \3\ Regulatory Impact Analysis: On-Board Diagnostics, Appendix 
I; Air Docket No. A-90-35.
    The purpose of the OBD system and emission-control systems is to 
reduce emission levels of various pollutants. For such systems to 
achieve projected levels of emission reductions, it will be essential 
that they be adequately maintained and repaired. This will require 
automotive technicians to possess the knowledge necessary to identify 
and repair improperly operating emission-related systems and 
components. This knowledge is acquired, in part, by having access to 
information on the operation and repair of such systems and related 
components.4

    \4\ To properly service and repair vehicles, automotive 
technicians require both access to needed information and training. 
Direct training is beyond the scope of this rulemaking; however, the 
availability of manufacturer training information and materials is 
covered by these proposed regulations.
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    To date, automotive technicians employed by manufacturer 
franchisees have had access, through their employer, to needed 
emission-related service and repair information. The same is not always 
true for other individuals who repair and service vehicles. Some 
manufacturers do not make available to the public all the information 
needed to adequately service and repair motor vehicles. Further, when 
information is made available, it may be difficult to locate and time 
consuming to obtain.
    It is especially important for independent technicians to have 
access to needed emission-related service and repair information, 
including training instructions. It has been estimated that independent 
technicians are responsible for conducting up to 80% of all 
repairs.5 In addition, independent technicians are more likely to 
repair the vehicles which are the most likely to violate emission 
standards (older vehicles, in general). This conclusion is the result 
of a recent study which demonstrated that (1) the level of excess 
emissions increases as a vehicle's mileage increases, and (2) the 
percentage of nondealer repairs increased and dealer repairs decreased 
as a vehicle's mileage increased.6 Considering the large number of 
vehicles being serviced by independent technicians, it is essential 
that such individuals have access to adequate emission-related repair 
and service information.

    \5\ ``Service Job Analysis,'' Hunter Publishing Co., 1984.
    \6\ ``Survey of Vehicle Owners in the On-Board Diagnostics 
Program,'' Westat, Inc., July 18, 1990.
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    Today's regulations are intended to preserve freedom of choice by 
consumers in where they obtain service and repair of emission-related 
systems. This can only be achieved by ensuring that all sectors of the 
automotive service industry have access to the information needed to 
perform such service and repairs.

II. Requirements of the OBD Final Rule

A. Availability of Service Information

    Today's regulations require that manufacturers provide to any 
person engaged in the repairing or servicing of motor vehicles or motor 
vehicle engines all information necessary to make use of the OBD system 
and any information for making emission-related diagnosis and repairs, 
including any emission-related information that is provided by the 
manufacturer to franchised dealers or other persons engaged in the 
repair, diagnosing or servicing of motor vehicle engines.

B. Required Information and Emission-Related Information

    Manufacturers are required to make available to the aftermarket 
``any and all'' information needed to make use of the OBD system and 
such other information, including instructions for making emission-
related repairs, excluding trade secrets. The scope of the information 
that must be provided includes the direct and indirect service and 
repair information that a manufacturer provides to its authorized 
dealerships or other persons engaged in the repair, diagnosing, or 
servicing of motor vehicles or motor vehicle engines. Examples of 
direct information are service manuals, technical service bulletins 
(TSBs), training materials or information, diagnostic information, 
wiring diagrams, and any written memoranda or guidance provided to 
dealers. Indirect information is information provided to dealers 
through indirect means. Examples of indirect information include, but 
are not limited to, information made available through tools and 
equipment, such as emission-related reprogramming events, data stream 
information, and bi-directional control. Manufacturers are required to 
provide such information (or allow such information to be provided by 
others) to persons engaged in the repair and service of vehicles in the 
same or similar manner such information is provided to their dealers. 
Manufacturers are not required to provide such information directly 
without regard for protection of trade secrets.
    Information for making emission-related diagnosis and repairs does 
not include information used to design and manufacture parts, but may 
include 

[[Page 40476]]
manufacturer changes to internal computer calibrations. However, a 
manufacturer need only provide internal calibrations to the service and 
repair industry to the extent it has provided such information to its 
dealerships.
    Emission-related information includes, but is not limited to, 
information regarding any system, component or part of a vehicle that 
controls emissions and any system, component and/or part associated 
with the powertrain system, including, but not limited to, the engine, 
the fuel system and ignition system. Information must also be provided 
for any system, component, or part that is likely to impact emissions, 
such as transmission systems. In addition, EPA will monitor the results 
of inspection and maintenance (I/M) programs for failures resulting 
from systems, components or parts other than those described here. If 
EPA determines that a substantial number of I/M failures are occurring 
due to systems, components or parts other than those described here, 
the extent of emission-related service information will be expanded to 
include such items. EPA will notify any affected manufacturer(s) of its 
concerns and will allow such manufacturers to reply to these concerns 
prior to making any such determinations. Affected manufacturers will be 
notified of any such EPA determinations.

C. Cost of Service Information

    Emission-related service information is to be made available at a 
reasonable price. This means the fair market price taking into 
consideration factors such as the cost to the manufacturer of preparing 
and/or providing the information, the type of information, the format 
in which it is provided, the price charged by other manufacturers for 
similar information, the differences that exist among manufacturers 
(e.g., the size of the manufacturer), the quantity of material 
contained in a publication, the detail of the information, the cost of 
the information prior to publication of this final rule, volume 
discounts, and inflation. EPA is not requiring that manufacturers sell 
information to aftermarket service providers at the lowest price 
charged to their dealerships.

D. Distribution of Service Information and Timeliness
    Today's rule allows each manufacturer to distribute emission-
related service and repair information through the distribution 
mechanism it determines to be the most efficient and cost-effective. 
There is no requirement that manufacturers use the same distribution 
mechanism for dealers and aftermarket service providers. However, each 
manufacturer will be responsible for up-loading a complete index of 
required information to NTIS' (National Technical Information Service) 
FedWorld.7 Manufacturers are required to make available on 
FedWorld an index of all information that falls within the definition 
of emission-related service, diagnosis and repair information.8 
This includes, but is not limited to, manuals, TSBs, all training 
materials, and videos. Each manufacturer title listed in the index must 
adequately describe the contents of the document to which it refers. If 
a title does not adequately describe the contents, the manufacturer 
shall provide a brief description that enables the user to determine 
whether an item contains the information being sought. If requested to 
do so, FedWorld will accept orders for service information and transmit 
them to the manufacturer's designated information distributor. The 
party identified in FedWorld by a manufacturer as the distributor of 
the manufacturer's emission-related service information can be the 
manufacturer itself, a publisher/distributor, or other entity that can 
provide the information as required.

    \7\ NTIS operates FedWorld, an online computer system that 
allows public access to government and other documents. FedWorld can 
be accessed for up to three hours a day at no charge by using a 
modem to dial (703) 321-3339 or by using the Internet telnet command 
to connect to fedworld.gov.
    \8\ This requirement does not apply to indirect information, 
which is discussed below.
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    In addition to the index, manufacturers are required to list a 
phone number and address where aftermarket service providers can call 
or write to obtain the desired information. Manufacturers must also 
provide the price of each item listed, as well as the price of items 
ordered on a subscription basis.
    Manufacturers are required to update the FedWorld index on the 
first and third Monday of each month or as otherwise specified by the 
Agency. A manufacturer may opt to update its FedWorld index more 
frequently. In addition, each manufacturer is responsible for paying 
its share of the annual cost of FedWorld. Such costs are to be paid by 
each manufacturer; however, payments can be made through various 
arrangements, e.g., a group of manufacturers can elect to determine 
what they would owe if paid individually and then divide that amount 
based on sales or other factors. The annual cost of maintaining the 
FedWorld database is approximately $70,000 to $75,000. To determine the 
cost to each manufacturer, FedWorld will divide the total cost by the 
number of participating manufacturers.
    Manufacturers are responsible for ensuring that the party shipping 
the information does so within a specified time period, i.e., within 
one regular business day of receiving an order. Distributors are 
encouraged to provide by fax items which, in their entirety, are less 
than 20 printed pages, such as TSBs. Also, the distributor is required 
to send the information by overnight delivery if the ordering party 
requests it and assumes the cost of delivery.
    The search format to be used by FedWorld, e.g., manufacturer, MY, 
vehicle make, and so forth, will be determined by FedWorld shortly 
after publication of this rule and, to the extent possible, will take 
into consideration suggestions from EPA, manufacturers, and aftermarket 
service providers.
    Each manufacturer has 120 days following publication of this rule 
to upload its index and meet the above requirements for providing all 
required service information to aftermarket service providers, 
facilities, and others for 1994 and later MY vehicles which have been 
offered for sale by that date. For vehicle models introduced more than 
120 days after promulgation of these regulations, manufacturers are 
responsible for providing service information to aftermarket service 
providers, facilities, and others, at the same time it is made 
available to dealerships. Thereafter, to the extent there are changes, 
emission-related service information for MY 1994 and later vehicles 
which becomes available shall be added to the index at the next 
scheduled mandated update period, i.e., first or third Monday of each 
month.
    Since independent technicians often work on many makes of vehicles, 
it is important for them to have access to condensed versions of 
service information. Therefore, EPA encourages the manufacturers to 
enter into agreements with information intermediaries in a manner which 
ensures that condensed information is available to aftermarket service 
providers in a timely manner and at a reasonable cost. Since 
information is available in its entirety from sources identified in 
FedWorld, manufacturers are not responsible for condensed information 
published by intermediaries or other third parties. Manufacturers are, 
however, responsible for errors in their own materials.
    EPA is not issuing any regulations in this rule that specifically 
require manufacturers to provide information to 

[[Page 40477]]
intermediaries (e.g., publishers of non-manufacturer service manuals) 
with emission-related information. However, EPA anticipates that 
manufacturers will continue to provide such intermediaries with 
information as they have in the past.
    FedWorld will make available a telephone number that aftermarket 
service providers can call to obtain a printed copy of the index. Since 
information can be downloaded without charge, EPA expects that some 
trade publications and associations may offer subscribers or members a 
printed copy if they provide a self-addressed stamped envelope.
    No waivers will be granted for any of the requirements related to 
FedWorld. Since EPA believes that FedWorld provides an adequate means 
of monitoring the information being made available, manufacturers are 
not required to submit a plan for distributing information as part of 
their certification requirements.

E. Enhanced Diagnostic Information

    All emission-related data stream information made available to 
manufacturer franchised dealers (or others in the service industry) is 
required to be made available to equipment and tool manufacturers. 
Vehicle manufacturers can, in the alternative, make such information 
available to independent technicians through provision of vehicle 
manufacturer equipment and tools. Beginning on January 1,1997, a 
manufacturer can only provide bi-directional control to its dealerships 
if it has provided equipment and tool manufacturers with information to 
make diagnostic equipment with the same bi-directional control 
capabilities available to the dealerships, or provided such 
capabilities directly to independent technicians through provision of 
their own tools. Manufacturers are required to make bi-directional 
control information available for all MYs beginning with MY 1994, if 
such information is provided to their dealerships. However, for MYs 
1994-1996, where a manufacturer can prove that safeguards for bi-
directional controls are only installed in tools, not in vehicle on-
board computers, then that manufacturer may receive a waiver from 
producing bi-directional controls for vehicles prior to the 1997 MY. 
However, no such waiver is available for other types of data stream 
information.
    This rulemaking does not require a manufacturer to supply any 
emission-related information to aftermarket service providers that it 
does not make available to its authorized dealerships or other third 
parties. For example, functional control strategies and waveform 
information are not required to be made available to aftermarket 
service providers except to the extent they are made available to 
authorized dealerships.
F. Enhanced Diagnostic Tools

    Manufacturers are required to either make available to aftermarket 
tool and equipment companies any and all information, except 
calibrations and recalibrations, needed to develop and manufacture 
generic tools that can be used by independent technicians to diagnose, 
service and repair emission-related parts, components and systems or 
they may sell their own diagnostic tools and equipment to independent 
technicians if the price of such tools is reasonable (e.g., 
competitively priced with aftermarket tools that would perform the same 
functions).
    As to emission-related diagnostic and service information utilized 
by aftermarket tool and equipment companies that make generic tools 
which perform the same or similar functions as those provided by 
manufacturers to their dealerships, the Agency is requiring that such 
information be provided at the time of model introduction. This should 
allow adequate time for its incorporation into tools and equipment by 
aftermarket tool and equipment companies.

G. Recalibration/Reprogramming

    Effective December 1, 1997, manufacturers are required to:
    (1) make available to independent technicians all emission-related 
reprogramming events (including driveability reprogramming events that 
may affect emissions) that were issued prior to December 1, 1997 by 
manufacturers and made available to dealerships for MYs 1994 through 
1997; and
    (2) for reprogramming events that are issued on or after December 
1, 1997, make available to independent technicians all emission-related 
reprogramming events (including driveability reprogramming events that 
may affect emissions) issued by manufacturers for 1994 and later MY 
vehicles at the same time they are made available to dealerships.
    For all vehicles, reprogramming need not be provided for any 
recalibrations performed prior to vehicles entering the stream of 
commerce (i.e., sale to first purchaser).
    If a manufacturer can demonstrate, to the satisfaction of the 
Administrator, that hardware would have to be retroactively installed 
on vehicles to meet security measures implemented by the manufacturer, 
the manufacturer may request a waiver from the reprogramming 
requirements for MYs 1994 through 1996.
    EPA is providing manufacturers until December 1, 1997, to adopt and 
implement security measures, such as encryption or other measures, that 
address tampering concerns and concerns regarding proprietary 
information. This leadtime also provides manufacturers an opportunity 
to work out logistical issues related to making reprogramming available 
to the potentially large numbers of independent facilities that may be 
interested in receiving this capability. Though EPA is allowing 
security measures to be implemented by manufacturers, such measures are 
not being required by these regulations. EPA believes that 
manufacturers are best able to determine the extent to which the 
release of this information will endanger the proprietary nature of the 
underlying information and/or potentially lead to tampering.
    Manufacturers are required to either offer for sale at a 
competitive market price a reprogramming tool that interfaces with the 
vast majority of generic portable computers or make available to 
aftermarket tool and equipment companies information that would enable 
them to manufacture such a tool. In addition, manufacturers are 
responsible for assuring that those independent service providers who 
elect not to purchase reprogramming services have access to 
reprogramming services at a reasonable cost and in a timely manner.
    Any method adopted by a manufacturer by which reprogramming is made 
available to independent technicians cannot impose a significant burden 
on independent technicians beyond that experienced by dealerships. For 
example, manufacturers can sell reprogramming tools directly to 
independent technicians or enter into agreements with aftermarket tool 
companies whereby the manufacturers provide the tool companies with the 
information necessary to build reprogramming tools. In conjunction with 
one of these options, manufacturers could transmit reprogramming events 
directly to independent technicians by modem from a main frame computer 
or provide them with CD ROMs. In formulating its method of making 
reprogramming available to independent technicians, a manufacturer may 
request to meet with EPA to discuss whether the method comports with 
the requirements of this rule.

[[Page 40478]]

    Manufacturers are also responsible for ensuring that aftermarket 
service providers have an efficient and cost-effective method for 
identifying whether the calibrations on a vehicle are the latest to be 
issued.

III. Public Participation

    On September 24, 1991, EPA published a NPRM which set forth 
proposed requirements for emission-related service information for LDVs 
and LDTs. The period for submission of comments on the NPRM was 
scheduled to close on December 9, 1991.
    On November 6 and 7, 1991, a public hearing was held. The original 
comment period was then extended to January 10, 1992, for comments 
regarding the availability of service information. In addition, 
workshops were held on June 30, 1992, and July 14, 1993. The comment 
periods for these two workshops closed on July 31, 1992, and August 13, 
1993, respectively.
    The CAA requirements regarding the availability of service and 
repair industry information necessary to perform repair and maintenance 
service on OBD systems and other emission-related vehicle components 
elicited extensive comments. Comments were received from manufacturers 
and their associations, mechanics and their trade associations, motor 
vehicle dealerships, state agencies, and private individuals. Because 
of the scope of the issues involved and raised by these comments, the 
following sections only briefly summarize comments on the major issues. 
For the complete response to comments, see the Response to Comments on 
the Regulations Requiring the Availability of Service Information on 
1994 and Later MY Light-Duty Vehicles and Light-Duty Trucks contained 
in the public docket for this rule.

IV. Discussion of Comments and Issues

    Comments on a wide range of issues concerning the proposed service 
information requirements were received. Summarized here are the 
comments concerning the major or controversial issues and the rationale 
behind EPA's final decisions. These issues are considered in more 
detail in the supplemental Response to Comments document prepared for 
this final rule and included in the docket noted earlier. Also in the 
Response to Comments document is consideration of other issues whose 
resolution is reflected in this final rule.

A. Definition of ``Emission-Related'' Information

    Summary of Proposal: The proposed regulations required that ``all 
information'' needed to make emission-related repairs be made available 
to the automotive service industry. The scope of ``all information'' 
would include, but not be limited to, any emission-related service and 
repair information that a manufacturer provides to its authorized 
dealerships.
    Based on the comments received in response to the NPRM and the June 
30, 1992 workshop, EPA believed that clarification was warranted as to 
the systems, components and parts for which emission-related service, 
diagnostic and repair information must be provided by the manufacturers 
to aftermarket service providers. For purposes of this rule, EPA 
proposed that emission-related service, diagnostic and repair 
information would include, but not be limited to, any system, component 
or part of a vehicle that controls emissions and any system, components 
and/or part associated with the powertrain system, including, but not 
limited to, the fuel system and ignition system. Information would also 
have to be provided for any system, component, or part that could have 
a reasonably foreseeable impact on emissions, such as transmission 
systems.
    In addition, EPA proposed to monitor the results of I/M programs 
for failures resulting from systems, components, or parts other than 
those described here. If EPA determines that a substantial number of I/
M failures are occurring due to systems, components, or parts other 
than those described here, the extent of emission-related service 
information would be expanded in a subsequent rulemaking to include 
such items.
    Summary of Comments: Most manufacturers recommended that the extent 
of service information that they must make available be limited to all 
service information that is required to diagnose and repair emission-
related malfunctions that will cause an OBD code to be set and 
illuminate the ``check engine'' light. They stated that each 
manufacturer will determine which malfunctions will cause a significant 
impact on emissions, and thus, which malfunctions will store an 
emission-related fault code and illuminate the malfunction indicator 
light (MIL).
    Some manufacturers commented that the proposed language is 
deficient in defining the information that must be included in the 
provision for service information. They believe this could lead to 
subjective interpretations, resulting in manufacturers providing 
distinctly different levels of information. Saab asserted that EPA's 
proposal to use the I/M program to later expand the definition of 
emission-related systems and components unnecessarily burdens 
manufacturers with an ever-changing, and ever-expanding, set of rules.
    Generally, the aftermarket commenters endorsed the definitions of 
emission-related information proposed by EPA. Some aftermarket 
commenters responded that any attempt to distinguish between emissions-
related and non-emissions-related vehicle systems and devices is 
nonproductive and accomplishes nothing more than to direct attention 
away from the important issues. According to one commenter, a valid 
argument can be made that virtually every component of today's vehicles 
can affect the performance of the vehicle's emissions system. ASIA 
suggested that it may be more efficient for EPA to require 
manufacturers to release all vehicle-related service information.
    Analysis of Comments: EPA disagrees with the position that 
emission-related information is defined by and limited to information 
required to diagnose and repair malfunctions that will result in 
illumination of the MIL. Illumination of the MIL will not necessarily 
be triggered by every malfunction of emission-related parts, components 
and systems. To maintain air quality it is important that service and 
repair information on all such parts, components and systems be 
provided. In addition, the diagnostics requirements for OBD are limited 
to the engine and drivetrain, because they have the most direct impact 
on emissions. However, this does not alter the fact that malfunctions 
of other parts and components could impact emissions. Further, MIL 
illumination is only necessary when a single source of malfunction 
causes emissions to increase above the MIL threshold. As the OBD 
requirements and the MIL thresholds are generally designed to detect 
severe malfunctions, more limited malfunctions, which may still have an 
effect on emissions, may not trigger the MIL. Moreover, multiple 
malfunctions, when combined, can cause exceedance of emission 
thresholds even though each one individually may be insufficient to 
cause an emission problem severe enough to illuminate the MIL. Also, 
OBD only needs to flag that a problem exists and indicate the general 
cause (e.g., misfire)--it does not identify the precise cause of the 
problem which could be due to a myriad of factors, such 

[[Page 40479]]
as lean fuel/air ratio, bad wiring or sparkplugs.
    Moreover, EPA believes that the language of section 202(m)(5) 
requiring manufacturers to provide ``all information needed to make use 
of the emission control diagnostic system * * * and such other 
information including instructions for making emission-related 
diagnosis and repairs'' [emphasis added] makes it clear that other 
information pertinent to making emission-related repairs, in addition 
to information needed to make OBD-related repairs, must be provided to 
aftermarket service providers. Had Congress wished to limit the 
information availability requirement only to those repairs necessary to 
make full use of the OBD system, it need not have included the second 
phrase of the requirement, relating to other information for making 
emission-related repairs, or could have limited the second phrase to 
those repairs necessary to make repairs related to MIL illumination. 
Instead the second phrase broadly refers to ``emission-related 
diagnosis and repairs.'' Therefore, EPA believes it is reasonable to 
require manufacturers to provide information required for any emission-
related repairs to be made available.
    EPA has adopted a description of emission-related information that 
is consistent with previous definitions of emission-related 
maintenance, as set forth in EPA's ``allowable maintenance'' 
regulations. See 40 CFR Sec. 86.088-2. Those regulations specify 
maintenance which may be performed on certification vehicles and 
establish an interpretation of ``properly maintained vehicle'' for use 
in the recall program. EPA made clear in those regulations that any 
maintenance that is likely to affect emissions would be considered 
emission-related:

Emission-related maintenance means that maintenance which does 
substantially affect emissions or which is likely to affect the 
emissions deterioration of the vehicle or engine during normal in-
use operation, even if the maintenance is performed at some time 
other than that which is recommended. 40 CFR Sec. 86.088-2

    Contrary to the suggestion of some manufacturers, EPA is not 
providing a specific or suggested list of parts, components or systems 
for which information must be provided. Such lists may be interpreted 
by some manufacturers as the maximum emission-related information that 
must be made available. In addition, continually evolving vehicle 
technology will result in ongoing changes as to what constitutes 
emission-related information. Therefore, it would not be reasonable to 
select a point in time and say that emission-related information is 
defined by what exists at that point.
    Contrary to comments from some aftermarket commenters, the Agency 
only has the authority to require manufacturers to provide emission-
related information. As previously indicated, this includes anything 
that is likely to affect emissions. If the Agency initially determines 
that a part, component or systems impacts emissions, it will notify the 
manufacturers who will be provided an opportunity to demonstrate 
otherwise if it disagrees.
    EPA Decision: Emission-related information includes, but is not 
limited to, information regarding any system, component or part of a 
vehicle that controls emissions and any system, components and/or parts 
associated with the powertrain system, including, but not limited to, 
the fuel system and ignition system. Information must also be provided 
for any system, component, or part that is likely to impact emissions, 
such as transmission systems. In addition, EPA will monitor the results 
of I/M programs for failures resulting from systems, components or 
parts other than those described here. If EPA determines that a 
substantial number of I/M failures are occurring due to systems, 
components or parts other than those described here, the extent of 
emission-related service information will be expanded to include such 
items. EPA will notify any affected manufacturer(s) of its concerns and 
will allow such manufacturers to reply to these concerns prior to 
making any such determinations. Affected manufacturers will be notified 
of any such EPA determinations.

B. Information Used To Manufacture Aftermarket Parts

    Summary of Proposal: EPA did not propose that vehicle manufacturers 
provide aftermarket parts manufacturers with information to design and 
manufacture parts.
    Summary of Comments: A group of aftermarket associations commented 
on the importance of information used to design and manufacture parts. 
According to these commenters, competition in the service industry 
would be threatened if parts manufacturers are not provided sufficient 
information to produce quality aftermarket parts which work with 
emissions control systems, OBD systems, and computers. They stated that 
independent service and repair facilities depend on the availability of 
affordably priced quality aftermarket parts to compete with dealers for 
service and repair. Without such competition, the associations believe 
that the only source of parts becomes the manufacturers which then have 
the ability to increase prices and limit availability. According to the 
commenters, in Japan, where an independently produced supply of 
replacement parts does not exist, repair prices are two and one half 
times more than what the U.S. car owner pays. The commenters believe 
that a failure to assure that parts producers can design and 
manufacture aftermarket parts will import the Japanese system to 
America and have a staggering effect on the ability of American 
motorists to properly maintain their vehicles.
    These commenters also argued that parts producers need access to 
information used to design and manufacture parts, including functional 
control strategies and component calibrations, to produce emissions-
related components that work within sophisticated emissions and 
diagnostic systems. The commenters indicated that engine calibration 
information also is required both to produce certain critical 
aftermarket parts and to test that the replacement parts will not cause 
failure of the emissions system or improperly trigger the MIL.
    Analysis of Comments: Information used to manufacture and design 
parts does not constitute information needed to make emission-related 
diagnosis and repairs as defined in section 202(m)(5). Therefore, such 
information is not addressed in this rulemaking. The purpose of section 
202(m)(5) is to ensure that independent technicians have access to 
information needed to service and repair vehicles, thereby ensuring 
consumers with freedom of choice in where to take their vehicles for 
repairs. Manufacturers are only required to provide information in 
order for persons to service and repair vehicles. They are not required 
to provide recalibration information that is not needed to make 
emissions-related diagnosis and repairs, even if such information may 
be useful for the manufacture of aftermarket parts. Nothing in the 
language of the statute itself or in the legislative history indicates 
that Congress intended section 202(m)(5) to assure access and 
information for the manufacture of aftermarket parts. On the contrary, 
the legislative history speaks only of the need to ensure equal access 
for vehicle repair facilities.
    It is important to note that Congress limited the manufacturers' 
information requirement such that trade secrets protected by section 
208(c) need not be made available. It is clear from the 

[[Page 40480]]
comments that much of the information requested for the manufacture of 
aftermarket parts is in fact information of a more proprietary nature 
than the information necessary to make diagnoses and repairs. Where 
information is not needed by repair personnel to repair vehicles and 
has not been disclosed to dealers, section 202(m)(5) does not require 
its disclosure.
    Aftermarket parts manufacturers have been making such parts for 
many years, even as cars have become more and more complicated. Though 
the introduction of new emission requirements, including OBD, will 
continue the trend of making cars more complex, parts manufacturers' 
speculation regarding the effects of such requirements on their ability 
to make aftermarket parts is contradicted by other statements that 
parts manufacturers will continue to make parts as they have in the 
past. In any case, parts manufacturers have not shown that Congress 
intended section 202(m)(5) to require disclosure of information 
required to make aftermarket parts.
    EPA Decision: Information for making emission-related diagnosis and 
repairs does not include information used to design and manufacture 
parts.

C. Guidelines

    Summary of Proposal: In the NPRM, EPA proposed that ``all 
information needed to make emission-related repairs'' be made available 
to the automotive service industry. EPA did not provide guidelines or 
specify the types of information that this would encompass. In the June 
1992 workshop notice, EPA indicated that interested parties would have 
an opportunity to present ideas regarding specific types of, or 
guidelines for determining the information that should be encompassed 
by the phrase ``all information needed to make emission-related 
repairs.''
    Summary of Comments: Several commenters responded that EPA should 
define or provide guidelines as to the information that must be 
provided. They asserted that failure to do so could result in 
manufacturers providing different levels of information due to 
different interpretations of the phrase ``all information.''
    Ford Motor Corporation (Ford) expressed concern that EPA may 
require more information than is necessary for utilizing the emissions 
diagnostic system and to perform effective diagnostics and repairs.
    Chrysler Motor Corporation (Chrysler) commented that it has and 
will continue to provide to the aftermarket the following type of 
service information related to the repair of emission-related failures: 
(1) diagnostic information relating to I/M exhaust and evaporative test 
failures; (2) service repair information for emissions components; (3) 
wiring diagrams; (4) specifications; and, (5) TSBs. Chrysler believes 
this information meets the requirements of the CAA.
    One manufacturer stated that if manufacturers demonstrate that the 
same information provided to dealers is made available to the 
aftermarket (excluding recalibration information), they have satisfied 
the intent of the law.
    Aftermarket commenters argued that EPA's regulations must not 
permit a closed-ended or specifically limited definition of information 
that would be available to the entire industry. The aftermarket 
industry asserted it does not have adequate technical information on 
future vehicle designs and systems to allow for limitations or 
restrictions through rules or definitions on the information that will 
be necessary to effectuate adequate repairs. The Automotive Parts and 
Accessories Association (APAA) commented that rapidly changing vehicle 
technology would force EPA to revisit the guidelines on a semi-annual 
or yearly basis to determine if the proper information is being 
provided.
    APAA indicated it might support guidelines that determine the types 
of information which must be provided to independent technicians. APAA 
assumed these guidelines would cover items, such as functional control 
strategies and wave diagrams, which are necessary elements if 
manufacturers are to provide all information needed for repair of 
emissions systems. APAA commented that its major concern is that any 
regulations regarding guidelines should direct that they be as 
comprehensive as possible and must explicitly state that such 
guidelines establish a minimum standard for information.
    Analysis of Comments: EPA believes that the concerns of 
manufacturers are unwarranted under the requirements of the final rule. 
The requirement to submit a certification plan has been deleted. 
Therefore, concerns regarding delays in the certification process are 
no longer pertinent.
    Ford stated that without guidelines, EPA could require proprietary 
and confidential information be made available to the public. EPA does 
not believe this is a problem. Subsection 202(m)(5) specifies that any 
information provided to authorized dealerships or others engaged in the 
service, repair or diagnosis of vehicles is not proprietary. EPA is not 
requiring that undisclosed proprietary emission-related information be 
made available as part of this rule.
    Regarding Chrysler's comment, other types of emission related 
information, such as data stream and bi-directional control, are not on 
Chrysler's list and are required as part of this rule. Contrary to 
Chrysler's assertion, EPA believes, as discussed elsewhere, it has the 
authority to require the dissemination of such information.
    EPA agrees with aftermarket comments that the regulations must be 
structured so as to carry out Congress' intent that all information 
needed to make emission-related diagnosis and repairs be provided, 
excluding trade secrets, to ensure that there are efficient and 
effective repairs of emission-related problems. However, EPA is not 
requiring at this time that manufacturers provide information to 
independent technicians that is not also supplied to authorized 
dealers, or other persons engaged in the diagnosis, repair, or 
servicing of motor vehicles or motor vehicle engines. Depending on the 
manufacturer, such information might include functional control 
strategies and wave diagrams, as discussed in section H below.
    EPA is concerned that the use of specific guidelines may be 
incorrectly interpreted as a limitation on the emission-related 
information that is required to be provided. The Agency is also 
concerned that such guidelines would require continual updating to 
ensure they reflect rapidly changing vehicle technology. EPA believes 
this would be a time-consuming and unnecessary process. At this time, 
EPA generally agrees with the commenter who stated that if 
manufacturers provide the same emission-related information to dealers 
and the aftermarket they will meet the requirements of this rule. The 
evidence presented did not indicate that any manufacturers withhold 
necessary information (excluding more complex and high level 
information, like functional control strategies) regarding emision-
related diagnosis and repair from their own dealers. If, through review 
of this program, it becomes apparent to EPA or others that a particular 
manufacturer is not providing nonproprietary information necessary to 
make emission-related diagnosis and repair to the service community 
(including its own dealers), EPA may take action against such 
manufacturer through these regulations.
    EPA Decision: Manufacturers are required to make available to the 

[[Page 40481]]
    aftermarket ``any and all information'' needed to make use of the OBD 
system and to make emission-related repairs, excluding trade secrets. 
The scope of information that must be provided includes any direct and 
indirect service and repair information that a manufacturer provides to 
its authorized dealerships or other persons engaged in the repair, 
diagnosing, or servicing of motor vehicles or motor vehicle engines. 
Examples of direct information are service manuals; TSBs; training 
material or information; diagnostic information; wiring diagrams; and 
any written memoranda or guidance provided to dealers. Examples of 
indirect information are emission-related reprogramming events; data 
stream information; and bi-directional control. (Indirect information 
is discussed below.)
    At this time, manufacturers are not required to supply any 
emission-related information to the aftermarket that they do not make 
available to their authorized dealerships or other third parties, 
subject to the requirements regarding specific types of information, 
like data stream information, that must be provided under these 
regulations. For example, if a manufacturer does not supply functional 
control strategies to its dealers, directly or indirectly, it is not 
required to supply them to the aftermarket service industry.

D. Cost of Service Information

    Summary of Proposal: The proposed rule required that emission-
related information be made available at a reasonable price (i.e., what 
would be expected if the suppliers of information were acting as 
competitors). In determining whether the price of information is 
reasonable, EPA indicated it would consider all relevant factors, 
including, but not limited to, the cost to a manufacturer of preparing 
and/or providing the information, the type of information, the format 
in which it is provided, and the price charged by other manufacturers 
for similar information.
    The proposed regulations further required that when manufacturers 
provide the same information to independent technicians and 
dealerships, the price to independent technicians for such information 
would not exceed the lowest price charged to any of a manufacturer's 
authorized dealerships.
    Summary of Comments: Comments from manufacturers focused primarily 
on the authority of EPA to regulate the cost of emission-related 
information, determination of the ``reasonable'' cost of service 
information, and the proposed requirement that the cost of service 
information sold by manufacturers to the aftermarket ``shall not exceed 
the lowest price at which it is provided to any authorized 
dealerships.''
    Analysis of Comments: Section 202(m)(5) of the CAA requires that 
vehicle manufacturers make emission-related information available. 
Available is defined as ``that which can be got, had or reached or that 
one can avail oneself of.''\9\ A prerequisite to getting an item is 
having the ability to afford it. The Agency is concerned that if 
emission-related service information is priced in a manner that 
precludes its purchase and subsequent use then it is unavailable as 
that term is commonly defined. Further, the cost of service information 
was of concern to Congress as evidenced by the statement of then 
Senator Gore, the Senator that introduced the ``information 
availability'' provision of the CAAA.\10\

    \9\ Webster's New World Dictionary, 3rd ed., p 94, 1988.
    \10\ The Senator stated that ``when we require [manufacturers] 
to promptly provide information needed, we recognize that we do not 
want to require somebody to provide a lot of expensive manuals 
absolutely for free, but we do not want the kind of charges that 
make this a profit center. We want them to provide the information 
which will allow competition in the aftermarket and allow small 
business operators to get in the repair business. Otherwise, you 
force vehicle owners to go only to the major automobile 
manufacturers' places of business.'' 36 Cong. Rec. 3272 (1990).
    Thus, cost is an integral part of availability and, therefore, 
within the purview of the Agency to consider in determining whether 
manufacturers make information available as required to the 
aftermarket.
    The Agency believes that establishing factors to serve as reference 
points to evaluate whether the cost of information is reasonable, will 
serve as guidance for manufacturers, and help reduce the possibility 
that inappropriate pricing would occur in an effort to prevent the 
purchase of information and, thereby ensure that information is 
available at a reasonable cost. Manufacturers commented on several 
factors they believe should also serve as reference points for 
evaluating the cost of information. EPA agrees with some of the factors 
suggested and has incorporated them into the regulations. For a 
discussion of each factor, see the Response to Comments document.
    EPA also believes that the burden of proof to demonstrate that the 
price of manufacturer service and repair information is unreasonable 
should be on the purchaser of that information.
    As to the ``lowest cost'' requirement, EPA agrees with some of the 
commenters that such a provision could have unanticipated effects on 
direct aftermarket sales and on dealerships that distribute 
information. Therefore, this requirement has been deleted.
    EPA Decision: On the basis of the comments and further EPA 
analysis, emission-related service information is to be made available 
at a reasonable price. This means the fair market price taking into 
consideration factors, such as the cost to the manufacturer of 
preparing and/or providing the information, the type of information, 
the format in which it is provided, the price charged by other 
manufacturers for similar information, the differences that exist among 
manufacturers (e.g., the size of the manufacturer), the quantity of 
material contained in a publication, the detail of the information, the 
cost of the information prior to publication of this final rule, volume 
discounts, and inflation. EPA is not requiring that manufacturers sell 
information to aftermarket technicians at the lowest price charged to 
their dealerships.

E. Distribution of Service Information

    Summary of Proposal: EPA proposed that emission-related service and 
repair information, whether distributed by the manufacturer or an 
intermediary, be reasonably accessible to all persons who service and 
repair motor vehicles. To qualify as reasonably accessible, the 
information must be available to independent technicians upon request 
without substantial delay. Further, manufacturers would be required to 
utilize reasonable means to make independent technicians aware that the 
information is available. Also, manufacturers would need to provide 
intermediaries with emission-related information in a timely manner in 
order that their products or services be available to independent 
technicians when needed. In all cases, manufacturers would retain full 
responsibility for compliance with section 202(m)(5). Failure to an 
intermediary to properly provide information does not relieve the 
manufacturer from responsibility to provide the information.
    EPA subsequently suggested the use of the NTIS as a clearinghouse 
for service information. Manufacturers would be required to provide 
initial service, repair, diagnostic and parts information to the NTIS 
within thirty days of providing it to their franchised dealerships or 
other persons engaged in the repair, diagnosing, or servicing of motor 
vehicles or motor vehicle engines. Service, repair, diagnostic and 
parts information, such as TSBs and troubleshooting manuals, issued to 
dealerships during any subsequent 

[[Page 40482]]
thirty day period would be sent to the NTIS at the end of each such 
thirty day period.
    EPA suggested that each manufacturer provide the required 
information to the NTIS free of charge pursuant to a copyright release 
or other agreement. The NTIS would reproduce information in the form in 
which it was received and distribute it upon request. Manufacturers 
would receive royalties from the distribution of the information by the 
NTIS based on prearranged agreements. To determine what information the 
NTIS has available, purchasers could either access the NTIS' on-line 
bulletin board or request a printed list.
    By using the NTIS as a clearinghouse, several requirements which 
were proposed to be the responsibility of the manufacturers would be 
deleted or amended. First, manufacturers would not be responsible for 
information distributed by intermediaries or other parties. Second, 
manufacturers would not be required to continually inform the 
aftermarket about the availability of their service information through 
advertisements or other efforts. Third, by using the NTIS as a 
clearinghouse, manufacturers would not be required to submit a detailed 
certification plan. Fourth, the requirement that manufacturers provide 
information in a timely manner would be satisfied by providing 
information to the NTIS on a designated schedule. Last, the requirement 
that information be provided at a reasonable cost could, at least in 
part, be addressed by the NTIS' sale of information. Whether the cost 
requirement would be satisfied would depend on whether and to what 
extent royalties are paid to manufacturers and the ability of the NTIS 
to provide its services at an affordable price.
    Summary of Comments: EPA received numerous comments, particularly 
on distribution of information by intermediaries and the use of NTIS as 
a clearinghouse for information. As to the use of intermediaries to 
distribute information, a few manufacturers and MVMA commented that it 
is illogical, unreasonable and unfair to hold manufacturers liable for 
the failure of intermediaries to disseminate information. They asserted 
that past experience has shown that independent parties contracted to 
prepare written service information for manufacturers do not always 
comply with deadlines established by the manufacturer. They stated that 
EPA should not hold manufacturers liable for the actions of third 
parties over which they have no control. One commenter indicated that 
even though a manufacturer contracts with an intermediary to distribute 
information and the method of such distribution is satisfactory to EPA, 
a third party which has no contractual agreement with the manufacturer 
could repackage and resell the information in a manner that does not 
meet EPA requirements. Manufacturers suggested that the regulations be 
amended to hold a manufacturer responsible for an intermediary only 
when information is provided solely through an intermediary.
    General Motors (GM) argued that EPA does not have the authority to 
require manufacturers to provide information to intermediaries. 
Chrysler objected to any regulation that would require it to deal 
directly with entities outside its normal chain of distribution of 
goods and services. The National Automobile Dealer's Association (NADA) 
commented that different manufacturers have a substantial investment in 
a variety of different distribution mechanisms, all of which are well 
understood by the entire vehicle maintenance industry. So long as 
necessary information is provided through one or more of these 
mechanisms, NADA believes a manufacturer's obligation should be 
satisfied.
    Several aftermarket associations commented that manufacturers 
should be responsible for the distribution of emission-related repair 
information. Alldata Corporation (Alldata), however, commented that 
holding manufacturers responsible for the content and accuracy of 
information would add substantial delays to the distribution process 
and reduce the accuracy and usefulness of information.
    Responses to the use of a clearinghouse to distribute emission-
related service information were mixed. However, representatives of 
manufacturers and aftermarket associations raised several substantial 
issues regarding the use of a clearinghouse, and EPA's particular plan 
for using NTIS as a clearinghouse. In addition, information 
intermediaries and hotline services generally opposed the use of NTIS 
as a clearinghouse.
    Analysis of Comments: EPA recognizes that the effectiveness of 
information distribution mechanisms may be affected by various factors, 
including manufacturer size, the amount and format of a manufacturer's 
service information, established distribution mechanisms, and the 
demand for information. Based on the differences that may occur as a 
result of these factors, EPA agrees with the comments that 
manufacturers should be afforded flexibility in determining the most 
appropriate method of distributing information.
    Therefore, EPA is allowing each manufacturer to fulfill its 
regulatory responsibility to distribute emission-related service and 
repair information through the distribution mechanism it determines to 
be the most efficient and cost-effective. Further, there is no 
requirement that manufacturers use the same distribution mechanism for 
dealers and the aftermarket. However, each manufacturer is responsible 
for up-loading a complete index of required information on NTIS' 
FedWorld, as discussed above in section III.C. Since EPA believes that 
FedWorld provides an adequate means of monitoring the information being 
made available, manufacturers are not required to submit a plan for 
distributing information as part of their certification requirements.
    Regarding use of intermediaries for distribution, EPA's position is 
that manufacturers are responsible for making sure that information is 
provided to the aftermarket as required by the regulations. If a 
manufacturer chooses to allow an intermediary to be its contractor, the 
manufacturer must ensure that the contractor meets the manufacturer's 
obligations. Transferring obligations to a third party does not remove 
a manufacturer's own legal requirements, though manufacturers may 
require intermediaries to be responsible for any damages a manufacturer 
incurs as a result of the intermediary's error. EPA agrees with 
manufacturers that where a manufacturer provides its own information 
directly to independent technicians, or contracts with a specific 
intermediary to distribute the manufacturer's information, the 
manufacturer is not responsible for the availability or accuracy of 
information provided by any other intermediaries to independent 
technicians.
    EPA is not issuing any regulations specifically requiring 
manufacturers to provide intermediaries with emission-related 
information. However, EPA encourages manufacturers to continue 
providing such intermediaries with information as they have in the 
past. EPA agrees that manufacturers should not be held responsible for 
information published by independent intermediaries over which they 
have no control. However, manufacturers are responsible for the 
correctness of their own materials, as identified in FedWorld.
    Manufacturers could, in the future, meet the distribution 
requirements by providing the required information in its entirety to a 
clearinghouse. Since no 

[[Page 40483]]
such clearinghouse currently exists, this is not a viable option for 
manufacturers at this time. Whether a clearinghouse is economically and 
practically feasible in the future will be up to the industry to 
determine. Although EPA supports the concept of a clearinghouse, EPA 
has no plans to sponsor a clearinghouse or to be involved in resolving 
issues necessary to establish a clearinghouse.
    For a more detailed review of the comments and EPA's response to 
these comments, please refer to the Response to Comments document.
    EPA Decision: See section III.C. above.

F. Timeliness

    Summary of Proposal: In the NPRM, EPA stated that to be effective, 
information must be provided in a timely manner. The proposed 
regulations established specific times within which manufacturers would 
be required to make available enhanced 11 and generic 12 
service information and training information. The proposed regulations 
required enhanced service information to be made available to 
independent technicians within one month immediately following model 
introduction. Generic service information would have to be made 
available within 8 months immediately following model introduction or 
no later than the release of information to a manufacturer's franchised 
dealerships. The proposed regulations also required that during the 
period between model introduction and the time the required information 
becomes accessible to independent technicians, each manufacturer, 
through an expeditious means available to its franchised dealers (e.g., 
hotline, regional service centers), make available to all independent 
technicians needed emission-related repair and service information.

    \11\ Enhanced service and repair information is specific for an 
original equipment manufacturer's (OEM) brand of tools and 
equipment.
    \12\ Generic service and repair information is not specific for 
an OEM's brand of tools and equipment.
---------------------------------------------------------------------------

    Summary of Comments: Some manufacturers commented that it is not 
appropriate for EPA to prescribe a time schedule for the availability 
of information. They stated that their time schedule for publishing 
information has never met EPA schedules and they could not estimate how 
many years would be needed to meet the proposed requirements.
    One manufacturer commented that the timing requirements are 
unnecessarily severe and unneeded. A few manufacturers suggested that 
instead of specified times, EPA should specify ``without substantial 
delay.''
    Some manufacturers asserted that information should be available 
when cars are offered for sale (i.e., made available to dealers), not 
before. These commenters stated that OBD systems will be built to a 
standardized format and, as a result, it is not necessary to know the 
specifics of the information beyond that format, unless trying to 
repair a specific car. They believe the aftermarket doesn't need it 
earlier to integrate it into their publications, since the majority of 
customers return exclusively to manufacturer dealers for warranty work. 
According to these manufacturers, providing the aftermarket with the 
required information within 3-6 months after vehicle introduction 
should be sufficient.
    Several manufacturers commented that independent technicians 
generally do not require warranty information since owners will not be 
reimbursed under a manufacturer's emissions warranties for any non-
emergency repair.
    The Automotive Warehouse Distributor's Association (AWDA) and APAA 
commented that the proposed regulations generally establish appropriate 
times. The Automotive Service Association (ASA) believes that all 
information should be available at the same time it is provided to 
franchised dealers. ASA also stated that responses to specific requests 
should be provided within 24 hours, as a customer's vehicle can't be 
fixed until the information is retrieved. ASIA stated that this ``same 
time'' requirement would provide intermediaries with the appropriate 
leadtime necessary to review, digest, condense, alter, and publish this 
information for use by the general public and the aftermarket in a 
timely fashion.
    Alldata argued that aftermarket information providers should 
receive repair information thirty days prior to the dealerships or, as 
an alternative, at the same time as dealerships.
    Analysis of Comments: Manufacturers have argued that since their 
vehicles seldom have emission-related service performed at an 
independent service facility during the first two years of customer use 
(during the 24,000 mile warranty period), the aftermarket service 
industry does not need service information during that time period. 
Warranty coverage makes this most economic for customers. However, 
aftermarket service providers have, at least, a limited need for 
service information even for new vehicles, since dealer service is not 
always available when service is needed by the customer, e.g., when a 
vehicle needs repairs during the evening or weekends. Further, the Act 
directs that aftermarket service providers are to receive emission-
related service information without regard to whether aftermarket 
technicians are the persons most likely to repair a vehicle during a 
certain portion of the vehicle's life. There is no reason to restrict a 
consumer from obtaining aftermarket service even during a warranty 
period if the consumer determines it is in her/his best interest to do 
so. However, the limited need of aftermarket service providers for 
service information on new model vehicles when the vehicles are first 
introduced should be reflected in the burden placed on manufacturers, 
for example, in determining whether manufacturers must finalize service 
information earlier than they would otherwise do so. Manufacturer 
comments support delaying the availability of emission-related service 
information to the aftermarket, most often citing the burden on 
manufacturers as one of the major reasons. Manufacturers make the case 
that the proposal may cause them to provide information earlier than is 
their current practice. However, their comments provide only limited 
information on any adverse impact of supplying the aftermarket with 
such information in the time frames proposed.
    Some suggested that, prior to some date, the independent service 
provider can obtain any necessary service information through a 
dealership. These suggestions would allow dealerships to determine 
whether the independent service provider is provided the required 
information in a reasonably timely manner. Placing such an intermediary 
in control of the dissemination of information is not consistent with 
the Act which designates manufacturers as being responsible for the 
availability of emission-related service information.
    EPA understands that many of the independent service providers have 
traditionally relied on aftermarket consolidations of service 
information. One book or set of books will then provide coverage for a 
number of manufacturer vehicles. Purchasing these consolidated service 
information books is less expensive and perhaps more convenient than 
purchasing the more extensive manufacturer service books. However, with 
consolidation comes some loss in detail and usefulness. Availability of 
service information to these republishers is, therefore, also an issue.
    Given that the majority of aftermarket emission-related repairs of 
a vehicle 

[[Page 40484]]
will not begin until after the two year warranty has expired, there 
does not seem to be an urgent need of aftermarket republishers to have 
access to the manufacturer service information abnormally early. 
Consequently, the aftermarket republishers should be able to continue 
relying upon their existing mechanisms for use of manufacturer service 
information or, within legal constraints of copywrite law, etc., make 
use of the manufacturer service information when it becomes publicly 
available.
    It is reasonable to provide some leadtime after adoption of these 
regulations to allow each manufacturer the ability to assemble the 
necessary information and put information dissemination procedures in 
place. However, since the information to be made available for MYs 
introduced prior to the finalization of these regulations (beginning 
with the 1994 MY) has been in the hands of the manufacturer's 
dealerships for some time, the information is clearly readily available 
to the manufacturer and, to a certain extent, has already entered the 
distribution network. Consequently, with regard to generic information, 
the time necessary to set up a distribution system for models already 
introduced is not driven by the availability of the information, only 
by the establishment of the distribution system itself. As described 
under the distribution section (on what information a manufacturer 
needs to provide for prior MYs), aside from setting up a distribution 
system (including the use of FedWorld), a manufacturer need only 
duplicate the information it has already supplied its dealerships and, 
in many cases, already made available to the aftermarket industry 
through distribution channels in place prior to these regulations. 
Thus, a manufacturer should require no more than 120 days after these 
rules are promulgated to have in place a distribution system making 
1994 and later service information available to the independent service 
provider.
    For vehicle models introduced beginning on or after 120 days 
following the promulgation of these regulations, manufacturers will 
have established a distribution system for getting the information into 
the hands of the aftermarket service provider by the time these 
vehicles are introduced. Therefore, no additional time is necessary for 
a manufacturer to make available to the independent service provider 
the generic information it is otherwise providing to its dealerships. 
(Timeliness for enhanced indirect information is discussed below in 
section H).
    The subject of timeliness also reflects the need for a manufacturer 
to respond in a timely fashion to requests for emission-related service 
information. As discussed above, manufacturers must ensure that once an 
order is received by its designated distributor, the distributor must 
send the information within one business day after receiving it. This 
time frame for filling orders is reasonable. An exception to the one 
business day shipping requirement is available in those circumstances 
where orders exceed supply (based on projected demand) and, as a 
result, distributors need to reproduce a document. Manufacturers will 
not be required to respond to special, unique requests for service 
information; for example, manufacturers will not need to search through 
their shop manual for a specific section or page and fax just that page 
or section to a customer. Rather, they will be responsible for 
distributing information in a predetermined form and format, e.g., the 
same service bulletin sent to their dealership would also be sent to 
the independent service technician. Since the form and format of the 
information can be determined ahead of time, the burden on a 
manufacturer is to have a sufficient quantity of information available 
to meet demand and then have a mechanism in place to receive and 
process requests for information. Neither of these tasks require 
special skills and are akin to phone order merchandise distribution 
common in the retail sales industry. These other retail sales outlets 
commonly fill orders within 24 hours. A similarly timely response to 
requests for emission-related service information should be possible.
    EPA Decision: Beginning four months after promulgation of these 
regulations, manufacturers are to have in place a service information 
distribution mechanism which will allow service information orders to 
be processed and mailed out within one business day of receipt of an 
order. As described above, manufacturers are required to provide more 
rapid service to their customers, i.e., priority mailing. At that time, 
manufacturers will be responsible for providing all required direct 
service information for 1994 and later MY vehicles which have been 
offered for sale. For vehicle models introduced more than four months 
after promulgation of these regulations, manufacturers will be 
responsible for providing direct service information to independent 
service technicians, facilities and others, at the same time it is made 
available to dealerships.

G. Media/Format

    Summary of Proposal: In the NPRM, EPA established different format 
requirements for different time periods. These format requirements were 
based on SAE documents, some of which were not finalized at the time 
the NPRM was published, e.g., ``Recommended Organization of Service 
Information'' (J2008).
    Summary of Comments: Extensive comments were received on the 
proposed formats. Some comments objected to any EPA requirements for 
formats, claiming that EPA lacked authority to require a specific 
format. Several commenters stated that the regulations would force them 
to completely rewrite and restructure their service literature, which 
would be a substantial and unnecessary burden. Some of these comments 
objected to any reference of SAE's draft recommended practices J2008 
and ``Remote Diagnostic/Service Communications'' (J2187). NADA 
indicated that if SAE should finalize and adopt J2008 and/or J2187 at 
some later date, it would then be appropriate for EPA to reconsider 
their incorporation into the OBD regulation. The aftermarket generally 
supported use of standardized formats, saying that such standardization 
would help independent technicians locate and use diagnostic 
information.
    Analysis of Comments: EPA believes that a standardized format 
should make accessing the volumes of available service information 
easier and enhance the ability of independent technicians to utilize 
information. EPA believes the benefits of an industry-accepted format 
will outweigh any initial costs in redesigning service literature. To 
ensure this goal is achieved, the Agency would like to provide adequate 
opportunity for the industry to develop a format which it believes most 
appropriately fulfills the needs of all interested parties. The Agency 
hopes that the industry will adopt SAE J2008 by mid-1995. However, if 
the industry is unable to agree on a standardized format, the Agency 
may develop a format for the industry.
    This rule contains no requirements regarding the media or format of 
emission-related information, including ``Electrical/Electronic Systems 
Diagnostic Terms, Definitions, Abbreviations, and Acronyms'' (J1930) 
and J2187. EPA believes that further discussions in the industry to 
develop appropriate formats will be useful prior to final regulations 
requiring any specific media or format. The Agency does not believe it 
is necessary at this time to address the comments received 

[[Page 40485]]
regarding these issues, but will address them if and when it adopts 
such requirements.
    EPA Decision: Due to various factors, SAE did not adopt J2008 in 
time to be incorporated into this final action. EPA had anticipated 
that SAE would adopt J2008 by mid-1994. If SAE finally adopts J2008 in 
a form that meets the needs of EPA, EPA would likely propose to 
incorporate J2008 into the service information regulations after 
further notice and comment. If J2008 is not finally adopted by SAE, or 
if the final version of J2008 does not meet the needs of EPA, EPA may 
propose to adopt its own format that manufacturers would be required to 
follow. EPA believes that adoption of an EPA-designed format may be 
necessary to prevent delays in the conversion of service information to 
an electronic format.
    This rule contains no requirements regarding the media or format of 
emission-related information, including J1930 and J2187. EPA believes 
media and format issues should be addressed at the same time J2008 (or 
an EPA-adopted format) is required. This will allow an opportunity for 
changes, as may be necessary, to be made in any of these documents, as 
J2008 is being finalized. EPA may address the media and format 
requirements of emission-related service information in a future 
proposed rulemaking.

H. Enhanced Diagnostic Information

    EPA Proposal: To eliminate confusion that existed in the industry 
regarding the definitions of certain key terms (data stream 
information, functional control strategies, bi-directional control, and 
indirect information) and whether such information must be provided 
under section 202(m)(5), EPA held a workshop in July 1993, to provide 
an opportunity for comment on proposed descriptions and/or definitions 
for these terms to ensure that there is a uniform understanding 
throughout the automotive industry as to the information that 
manufacturers will be required to make available. The definitions 
proposed by EPA were as follows:
    Data stream information are messages transmitted between a network 
of modules and/or intelligent sensors (i.e., a sensor that contains and 
is controlled by its own module) connected in parallel with either one 
or two communication wires. Messages on the communication wires can be 
broadcast by any module or intelligent sensor. Such information 
generally consists of messages and parameters originated within the 
vehicle by a module or intelligent sensors. The information is 
broadcast over the communication wires for use by other modules (e.g., 
chassis, transmission, etc.) to conduct normal vehicle operation or for 
use by diagnostic tools. Data stream information does not include 
engine calibration-related information.
    Functional control strategies are descriptions of how and when 
various engine systems operate. Typically, they are written 
explanations or flow diagrams that describe the interaction of the 
module and the various sensors and actuators as proscribed by the 
engine calibration. An example of a functional control strategy would 
be that for a particular fuel system. For example, the fuel system may 
not go into closed-loop operation until: (1) The engine coolant 
temperature has reached 180  deg.F; (2) the module observes an active 
oxygen sensor signal; and (3) 30 seconds has elapsed after reaching 
that temperature.
    Bi-directional control is the capability of a diagnostic tool to 
send messages on the data bus that temporarily overrides the module's 
control over a sensor or actuator and gives control to the diagnostic 
tool operator. An example of bi-directional control is the ability to 
increase or decrease the idle speed by using the diagnostic tool to 
vary the idle by-pass motor. This allows a technician to quickly verify 
that the idle by-pass motor responds to commands from the module. Bi-
directional controls do not create permanent changes to engine or 
component calibrations.
    Indirect information is any information that is not specifically 
contained in the service literature, but is contained in items such as 
parts or other equipment provided to franchised dealers (or others).
    In addition, the NPRM discussed providing service technicians with 
the information needed to determine that a component or system is 
correctly operating. EPA proposed that manufacturers include 
information on the normal operating conditions for properly functioning 
emission-related components or systems. EPA requested comment on the 
need to adopt this requirement as part of these rules, the best way to 
accomplish this, and any difficulties (for example, significant burden 
to the manufacturer) that could arise.
    Summary of Comments: Manufacturers commented that the release of 
information needed to perform bi-directional control is restricted 
since product damage could result if control is improperly applied. GM 
asserted that if required to release this information, it would need to 
redesign systems to include safeguards to prevent damage from improper 
use of control messages, or diagnose components using some other 
method.
    Regarding the definition of data stream information, several 
manufacturers suggested that EPA's definition be modified, such that 
data stream information (1) include only emission-related information, 
(2) include only emission-related diagnostic information rather than 
information to conduct diagnosis and repair of normal vehicle 
operation, and (3) not include any recalibration or reprogramming 
information. GM commented that if data stream information is defined to 
include reprogramming software, it will be easy for aftermarket 
performance companies to build equipment to install unauthorized 
calibrations.
    As to functional control strategies, Ford commented that it 
considers them to be proprietary information, because they are part of 
the engine calibration. Other manufacturers stated that such strategies 
are proprietary and they are not provided to dealers. GM asserted that 
any attempt by EPA to require manufacturers to divulge control 
strategies would exceed EPA's authority under section 202(m)(5) of the 
Act. The American Automobile Manufacturer's Association (AAMA) stated 
that numerous manufacturers already provide functional control 
strategies to the extent necessary for allowing effective repair of 
vehicles without divulging proprietary information. AAMA and Ford 
commented that since there are so many different engine configurations 
and vehicle models, it would be confusing for independent technicians 
to try and understand the multitude of control strategies and that this 
could lead to incorrect diagnosis and repair.
    Regarding the proposed definition of indirect information, Ford 
recommended that it be modified to include only indirect information 
necessary to make emission-related diagnosis and repair. Other 
manufacturers commented that EPA's definition of indirect information 
should be modified to delete the phrase ``contained in items such as 
parts or other equipment'' and to read as follows: ``Indirect 
information is any information that is not specifically contained in 
the service literature, but is provided to franchised dealers (or 
others) as a requirement for emission-related diagnosis and repair. It 
shall not include calibration, recalibration or reprogramming related 
information which is neither visible to the technician nor consciously 
used in diagnosis and repair of vehicles.'' 

[[Page 40486]]

    Saab commented that EPA's definition of indirect information is too 
broad to protect manufacturers and franchised dealers from unfair 
competition by aftermarket tool and equipment manufacturers and 
independent service providers, respectively. Saab does not agree that 
parts and equipment supplied to dealers contain supplementary 
information which is necessary to repair the emission control systems 
of a vehicle.
    The aftermarket commenters asserted that functional control 
strategies, waveforms and bi-directional control are critical in the 
repair of emission-related problems. The commenters argued that many 
times there is no cause and effect relationship between a symptom and a 
failed part. According to the commenters, technicians rely on this type 
of information or the tools that utilize such information as the best 
method of pinpointing parts that have either failed or require 
adjustment. Independent technicians commented that having tools that 
perform bi-directional control would reduce diagnostic and repair 
times, as well as repair costs. The commenters asserted that unlike 
dealers with enhanced tools, independent technicians with generic tools 
only receive malfunction codes which are insufficient to diagnose the 
fault.
    Analysis of Comments: Regarding the definition of data stream 
information, EPA agrees that for purposes of this rule, data stream 
information should include only emission-related information, since 
this rule is not intended to cover all vehicle operations. However, 
EPA's definition of emission-related (as discussed above) is broader 
than that requested by the manufacturers.
    EPA also agrees that data stream information does not include 
recalibration and reprogramming information. However, as discussed 
below, recalibration and reprogramming information is subject to 
certain disclosure requirements. Manufacturers are required to provide 
reprogramming capabilities, but they are not required to make directly 
available actual calibration information, such as algorithms or values. 
Data steam information will obviously need to be provided indirectly to 
the aftermarket (as it is provided to dealers) in order to provide 
reprogramming capabilities, among other reasons.
    If data stream information is made available to dealers, whether 
directly or indirectly, and is emission-related, then it must be made 
available to the aftermarket service industry, regardless of whether a 
manufacturer believes it is of any value to a technician. Data stream 
information will probably be utilized by the aftermarket diagnostic 
tool industry to build generic diagnostic tools. If the aftermarket 
tool manufacturers determine that certain information is of no value, 
they won't have any incentive to use it. Manufacturers may provide such 
information to the aftermarket in the same indirect fashion they 
provide it to their dealers via the sale of tools so long as these 
tools are available at a reasonable cost, or they may provide it to 
aftermarket tool companies so that these companies can make tools.
    Regarding bi-directional diagnostic control strategies, EPA agrees 
that safeguards which protect against potential damage or safety 
problems from bi-directional control are important and encourages all 
manufacturers to implement them into their diagnostic systems. EPA 
believes that requiring manufacturers to supply bi-directional control 
information to the aftermarket, including Equipment and Tool Institute 
(ETI) members, without adequate safeguards could create liability 
concerns for manufacturers regarding the safety of consumers and 
technicians who would be responsible for the diagnosing and repair of 
vehicles.
    The liability issues are a concern because there is no requirement 
that an ETI member company must add safeguards to the tools that they 
build. Manufacturers also have no reasonable means by which they can 
ensure that safeguards would be correctly incorporated into aftermarket 
tools. EPA believes that manufacturers have an incentive to ensure that 
safeguards are properly incorporated and are perhaps better equipped to 
verify the functionality of these safeguards.
    Since bi-directional control is an important part of vehicle 
diagnosis and repair, it is imperative that this capability be made 
available to the independent service industry as soon as possible. This 
means providing bi-directional information to ETI members so that they 
can make generic tools for the aftermarket.
    Manufacturers assert that most bi-directional control safeguards 
exist in manufacturer diagnostic tools rather than in vehicle on-board 
computers. The manufacturers claim that by 1999, all vehicles will have 
safeguards designed into the on-board computer, thus eliminating any 
concerns regarding safety and liability issues that could arise from 
the use of aftermarket diagnostic tools with bi-directional capability. 
EPA agrees with the manufacturers that it is preferable to have 
safeguards in the on-board computer, rather than in the diagnostic 
tool, especially if there is no requirement that generic tool 
manufacturers incorporate such safeguards in their tools. However, EPA 
does not believe it is reasonable or necessary to delay this 
requirement until 1999. Several manufacturers have indicated that they 
will have safeguards designed into their vehicles' on-board computers 
by 1997. EPA believes it is providing sufficient leadtime for other 
manufacturers to make any hardware changes that may be necessary. 
Therefore, beginning on January 1, 1997, a manufacturer can only 
provide bi-directional control to its dealerships if it has provided 
aftermarket companies with information to make tools that have the same 
bi-directional capabilities available to dealerships, or provided such 
capabilities directly to aftermarket technicians through provision of 
their own tools. Manufacturers will be required to make bi-directional 
information available for all model years beginning with 1994. However, 
for model years 1994-1996, where a manufacturer can prove that 
safeguards for bi-directional controls were only installed in tools, 
not in vehicle on-board computers, then that manufacturer may receive a 
waiver from producing bi-directional controls prior to the 1997 model 
year. However, no such waiver is available for other data stream 
information. If a manufacturer does not use bi-directional control or 
has certain bi-directional control capabilities that it does not supply 
to its dealers, the manufacturer will not be required to provide this 
capability to the aftermarket.
    Regarding GM's comments that release of information needed to 
perform bi-directional control should be restricted since product 
damage could result if the control is improperly applied, such concerns 
should be equally true for providing such information to dealerships. 
If manufacturers are not concerned regarding possible damage by 
dealership technicians, they should not be concerned regarding damage 
from aftermarket technicians.
    EPA disagrees with manufacturer comments that ``indirect 
information'' should not include calibration, recalibration or 
reprogramming information and that the definition should be modified by 
deleting the phrase ``contained in items such as parts or other 
equipment.'' Section 202(m)(5) makes clear that any relevant 
information that is provided directly or indirectly to a dealership 
cannot be shielded from disclosure under section 208. Even if 
recalibration related 

[[Page 40487]]
information is not provided directly to technicians nor consciously 
used in diagnosis and repair, such information, if contained in or made 
available through manufacturer tools, is a crucial element in the 
emission-related diagnosis and repair information provided by that 
tool. Therefore, it is indirect information which must be provided, 
either directly or indirectly, to the aftermarket, if it is emission-
related.
    Moreover, manufacturers may use changes to computer calibrations to 
fix mechanical malfunctions or to revise prior calibrations. In such 
cases, it is necessary for such information to be known to subsequent 
repair personnel in order to prevent subsequent repairs from causing 
increases in emissions.
    EPA believes that much of the manufacturer equipment that a dealer 
uses for emission-related diagnosis and repairs possesses certain 
capabilities, such as being able to read fault codes, perform 
reprogramming or allow bi-directional control. The information that 
allows the manufacturer tools to perform such functions is indirect 
information that must be made available to the independent service 
industry.
    As to Saab's comment that parts do not contain any supplementary 
information necessary to make emission-related repairs, EPA agrees. EPA 
has determined the language in subsection 202(m)(5) does not apply to 
information used to manufacture parts. Therefore, the references to 
parts will be removed from the definition.
    EPA agrees with the commenters that there would be many functional 
control strategies with which independent technicians should 
familiarize themselves, and while this could be overwhelming, there is 
no evidence that the independent service industry wouldn't be up to the 
challenge. EPA believes that disclosure of functional control 
strategies would be beneficial in helping technicians to better 
understand the interactions of the on-board computer with the numerous 
sensors and actuators that comprise the varied emission control systems 
and thereby, help promote better and quicker diagnoses and repair of 
emission-related problems. However, at this time, EPA is only requiring 
manufacturers to supply functional control strategies directly to 
independent technicians if such strategies are supplied directly to 
their dealerships. To the extent such strategies are incorporated into 
a manufacturer's enhanced diagnostic tools, they must be made available 
to the aftermarket either through availability of manufacturer tools 
(at a reasonable price), or with appropriate agreements to protect 
proprietary information, through generic tools.
    As discussed in the Response to Comments document, EPA does not 
believe that this information has been shown to be needed for emission-
related repairs and diagnosis at this time and release of at least some 
of this information may raise trade secrets concerns. It is EPA's 
position that if manufacturers believe this information is necessary to 
perform emission-related service they will provide this information to 
their dealerships and independent technicians. EPA will continue to 
review whether certain types of information should be made available to 
the repair community even if such information is not currently made 
available to authorized dealers.
    EPA Decision: All emission-related data stream information made 
available to manufacture franchised dealers (or others in the service 
industry) will be made available to the aftermarket, either through 
provision of manufacturer equipment and tools or through information 
provided to generic equipment and tool manufacturers with appropriate 
agreements to protect proprietary information. Beginning on January 
1,1997, a manufacturer can only provide bi-directional control to its 
dealerships if it has provided equipment and tool manufacturers with 
information to make diagnostic equipment with the same bi-directional 
control capabilities available to the dealerships, or provided such 
capabilities directly to independent technicians through provision of 
their own tools. Manufacturers are required to make bi-directional 
control information available for all model years beginning with model 
year 1994. However, for model years 1994-1996, where a manufacturer can 
prove that safeguards for bi-directional controls are only installed in 
tools not in vehicle on-board computers, then that manufacturer may 
receive a waiver from producing bi-directional controls for vehicles 
prior to the 1997 model year. However, no such waiver is available for 
other types of data stream information.
    Functional control strategies will not be required to be made 
available to the aftermarket, except to the extent they are made 
available to authorized dealerships.
    The reference to parts is deleted from the definition of indirect 
information. The definition of indirect information will now be ``any 
information that is not specifically contained in the service 
literature, but is contained in items such as tools or equipment 
provided to franchised dealers (or others).''

I. Enhanced Diagnostic Tools

    Summary of Proposal: In the 1993 workshop notice, EPA indicated 
that according to section 202(m)(5) of the CAA, emission-related 
information provided by manufacturers indirectly to franchised dealers 
must also be provided to any person engaged in the repairing or 
servicing of motor vehicles. EPA stated that some manufacturers are or 
will be providing their dealers the ability to diagnose malfunctions 
and/or reprogram vehicle modules via enhanced diagnostic equipment. 
This equipment will not allow dealers to view the underlying computer 
codes, but will allow them to reprogram vehicles and use enhanced 
diagnostic information using the underlying code.
    EPA believes that the enhanced diagnostic equipment provides 
franchised dealers indirectly with information that is needed to make 
emission-related diagnosis and repairs. EPA proposed to require that 
manufacturers offer their enhanced diagnostic equipment for sale to the 
aftermarket. This would enable manufacturers to comply with the 
requirements of section 202(m)(5) that information be made available to 
the aftermarket if it is made available to dealerships or other persons 
engaged in the repair, diagnosing, or servicing of motor vehicles or 
motor vehicle engines while simultaneously protecting the proprietary 
interest of the manufacturers. It would also provide the aftermarket 
with the same capabilities as dealerships without divulging proprietary 
engine calibrations or recalibrations.
    EPA proposed that manufacturers' enhanced diagnostic equipment be 
made available to the aftermarket at the same price at which it is sold 
to authorized dealerships. EPA believed that a reasonable price to 
charge the aftermarket is the same price at which the equipment is 
offered to franchised dealerships. Based on previous comments provided 
to EPA, EPA believed that manufacturers' enhanced diagnostic equipment 
are sold to dealerships independent of their franchise agreements. 
Therefore, the cost of such equipment can be readily determined or 
manufacturers could provide suggestions for determining the price of 
their equipment. EPA proposed to give manufacturers a one-year leadtime 
to prepare for aftermarket sales of enhanced equipment. EPA proposed 
that manufacturers must provide preliminary enhanced data stream 
information three months preceding model introduction, with final data 

[[Page 40488]]
stream information to be released three months after model 
introduction.
    Summary of Comments: Some manufacturers argued that EPA lacks the 
authority to mandate that they provide enhanced equipment or 
information to the entire vehicle maintenance industry concerning 
``special'' or ``enhanced'' data streams or tools. Several 
manufacturers commented that the statute requires information be made 
available, not enhanced diagnostic tools. They stated that although 
such information may be provided by manufacturers to their franchised 
dealers, it isn't necessary to make use of OBD systems or to effectuate 
emissions control system diagnostics or repair. The manufacturers and 
NADA stated that a majority of franchised dealers make substantial 
monetary investments to purchase and train their technicians to use 
enhanced diagnostic equipment. They argued that EPA must not promulgate 
a regulation which would undermine these investments and in doing so 
place dealers at a competitive disadvantage with other segments of the 
vehicle maintenance industry.
    According to Chrysler, the initiative for the company to invest in 
creating enhanced equipment is to ensure the economic viability of its 
dealerships. Without this incentive, Chrysler believes that such 
equipment will likely not be developed.
    Several manufacturers asserted that reprogramming capability and 
proprietary non-emission-related information are an integral part of 
their enhanced diagnostic equipment. They argued that the design, 
development and distribution of a separate tool with only emission-
related capabilities would be an unnecessary and costly burden for 
manufacturers.
    They also noted that service information contained in manufacturer 
tools is similar to that which is contained in its service manuals, 
TSBs, recall notices, and other information which will be made 
available to the public through the various mechanisms proposed in the 
NPRM regarding service information availability.
    Ford noted that nearly half of all its dealers do not have its 
Service Bay Diagnostic System (SBDS). Therefore, Ford believes dealers 
have no advantage in this area.
    Ford expressed several concerns over any regulation that would 
require their SBDS to be made available to the aftermarket: (1) higher 
likelihood that improper calibrations could be installed on vehicles 
since manufacturers have no control over independent facilities; (2) 
the reprogramming capabilities of this equipment would provide a 
powerful tool for aftermarket performance companies and competitors to 
reverse engineer the emissions control system which could result in 
tampering; (3) unauthorized or incorrect calibrations would increase 
manufacturer liabilities in failing government in-use compliance 
programs and customers failing I/M programs; and, (4) providing a tool 
which has the capability to reprogram the control module may make it 
impossible for manufacturers to meet EPA's tampering prevention 
provisions. (These issues are addressed in the recalibration/
reprogramming section below.)
    Several manufacturers stated that generic scan tools will provide 
the means by which the aftermarket industry can get very specific 
support for diagnosis and repair of emission-related systems and 
components. While Ford indicated it understands the need for generic 
tools in the aftermarket arena, it expressed concern that they provide 
adequate and accurate information and repair capabilities. 
Manufacturers asserted they cannot be held either directly or 
indirectly liable if such generic tools incorporate diagnostic 
protocols which could potentially result in misdiagnosis and/or 
unnecessary repairs. Further, they believe it would not be reasonable 
to require manufacturers to review and approve aftermarket diagnostic 
tools. Ford suggested that the manufacturers of aftermarket generic 
diagnostic tools assume full responsibility for the accuracy and 
completeness of their equipment and software, and that EPA enforce 
necessary sanctions if deficiencies are identified which result in 
improper diagnostics or repairs.
    Toyota Motor Corporation (Toyota) commented that manufacturers 
should sell enhanced diagnostic tools to all persons who want to 
purchase them. However, Toyota indicated that contrary to EPA's 
proposal, such tools could not be sold to the aftermarket at the same 
price they are provided to franchised dealers, since the cost of 
establishing new trading routes and a handling system would increase 
the price of equipment to independent technicians. As a result, Toyota 
commented that if the Agency decides that the selling price from 
manufacturers to dealers must be the same as that to independent 
facilities, it would have to greatly increase the price to its 
franchised dealers.
    The Automotive Service Industry Association (ASIA) commented that 
while EPA's proposal that manufacturers' enhanced diagnostic equipment 
be made available to the aftermarket at the same price it is made 
available to franchised dealers has merit, limiting access to such 
manufacturer equipment alone will prove too costly and cumbersome for 
small repair facilities. ASIA asserted that under EPA's scenario, a 
small business currently servicing three lines of motor vehicles would 
be required to purchase three separate hardware/software systems if 
that business wishes to continue servicing its current customer base. 
According to ASIA, the cost of purchasing three individual systems (at 
a minimum estimated cost of $40,000 per unit) would force that repair 
facility to either significantly increase prices or limit the types of 
vehicles serviced.
    ASIA stated that this impact runs contrary to the intent of section 
202(m)(5) as envisioned by Senator John Chafee, who stated during the 
floor debate that ``the purpose of the amendment is to make sure the 
diagnostic equipment, the manuals, the techniques are available to, in 
effect, the local gas stations so they they will be more convenient for 
the automobile owner * * *'' Cong. Rec. S3272 (March 27, 1990). ASIA 
noted that then Senator Gore later added ``we want the [manufacturers] 
to provide information which will allow competition in the aftermarket 
and allow small business operators to get in the repair business. 
Otherwise, you force vehicle owners to go only to the major automobile 
manufacturers' place of business. Consumers get frustrated; they have 
long waits; they have to pay high prices.'' Cong. Rec. S3272 (March 27, 
1990). Therefore, ASIA asserted that to ensure independent facilities 
have the ability to service a range of vehicle makes, EPA should 
require that all diagnostic information provided to manufacturers of 
tools for vehicle manufacturers should be made available to the 
aftermarket. In doing so, ASIA believes that EPA would provide small 
businesses with the option of purchasing individual manufacturer 
diagnostic tooling systems or a single aftermarket system that 
possesses diagnostic capabilities for a variety of vehicle models.
    One independent technician acknowledged that manufacturers deserve 
protections that may assist them in securing a return on their 
investment in equipment. To remedy concerns of the manufacturers, the 
commenter suggested that the manufacturers make known all of the 
information that is on the data stream to the aftermarket equipment 
manufacturers. These manufacturers could, through their own research, 
determine what diagnostic routines warrant investment to develop 

[[Page 40489]]
and market. The commenter also expressed concern over the cost of 
enhanced equipment. According to the commenter, any such equipment that 
costs more than $3,000 should be considered unavailable to independent 
technicians.
    APAA commented that manufacturers will be correcting emission and 
driveability problems through the use of reprogramming tools. Without 
access to generic tools that perform the same function, APAA believes 
independent technicians will be unable to purchase manufacturer 
enhanced tools due to their high cost and will be in the unenviable 
position of being dependent on their biggest competitor, i.e., 
dealerships, for reprogramming services which are critical to emission 
repairs. APAA further noted that some manufacturers could not guarantee 
that their franchised dealers would provide reprogramming services to 
independent technicians in a timely manner.
    One commenter noted that unlike dealers with enhanced tools, 
independent technicians with generic tools only receive malfunction 
codes which are insufficient to diagnose a fault. According to the 
commenter, this increases the time it takes to make a repair and the 
cost.
    Aftermarket commenters indicated that independent technicians need 
access to diagnostic tools and equipment at the same time such tools 
and equipment are provided to dealerships.
    Analysis of Comments: Contrary to manufacturer assertions, EPA 
believes it has the authority to require manufacturers to provide their 
enhanced diagnostic tools, because such tools contain important 
information that may be necessary for making emission-related repairs. 
Section 202(m)(5) of the Act is clear that if such information is 
provided either directly or indirectly to dealers, it is not covered by 
the confidentiality protection of section 208 and, therefore, must be 
provided to aftermarket technicians if it is information for making or 
diagnosing emission-related repairs. There is little question that the 
information provided by these tools is likely to increase the ability 
of a technician to diagnose and make appropriate repairs to vehicles 
and to make such diagnosis and repairs in considerably less time than 
it would take without such information. The legislative history clearly 
indicates that availability of diagnositc equipment was considered by 
Congress. Moreover, the legislative history clearly shows an intent 
that if dealerships have access to information that would allow 
relatively quick and low-cost diagnosis and repair of vehicles, then 
the aftermarket should have access to the same information. Moreover, 
to the extent these advanced diagnostic tools may contain considerable 
information for making emission-related diagnoses and repairs that are 
not contained in written performance manuals and updates, the 
information contained in these tools is clearly covered by this rule.
    Regarding Chrysler's argument that enhanced diagnostic tools have 
been developed to assist the economic viability of dealerships, it must 
be noted that a major reason for developing these tools has been to 
increase the ease and decrease the cost and time of repair for 
manufacturers' vehicles, which increases customer satisfaction. To the 
extent the wider availability of this information further increases 
ease of repair, then customer satisfaction is likely to increase 
further. Moreover, to the extent manufacturers wish to assist the 
economic viability of dealerships by preventing access by aftermarket 
technicians to emission-related information, that is exactly the type 
of behavior that section 202(m)(5) was designed to prevent.
    To the extent manufacturers comment that this regulation will force 
them to either build different types of enhanced diagnostic equipment 
or to divulge certain information not otherwise required, EPA believes 
that manufacturers will have to make cost-related determinations 
regarding how to meet this requirement. If any costs are necessary to 
ensure that emission-related information is provided to the aftermarket 
to the extent it is provided to dealerships, then section 202(m)(5) 
requires that such costs be incurred. Moreover, Ford's statement that 
some of its dealers do not have access to its SBDS system, and that 
therefore the aftermarket should not have access to the information in 
that system, is not consistent with section 202(m)(5). The fact that 
Ford dealerships could choose to avail themselves of this information 
dictates that aftermarket technicians must have such a choice.
    In general, statements of manufacturers regarding the complexity of 
control strategies and diagnostic information support the need for this 
information to be made available. The aftermarket must have access to 
this type of information precisely because vehicle repair has become 
such a complex and intricate procedure. Without such information, 
aftermarket technicians would be operating under a significant 
disadvantage compared to dealerships.
    Providing such tools to the aftermarket should not unfairly 
jeopardize the economic viability of dealerships. Dealerships already 
have access to these tools and to manufacturer training and other 
opportunities not provided to the aftermarket.
    Nevertheless, EPA is not requiring manufacturers to make their 
enhanced diagnostic equipment available to the aftermarket. The primary 
reason being that the cost of purchasing such equipment for more than 
twenty manufacturers would be cost-prohibitive for most, if not all, 
independent technicians. The total cost would likely make the equipment 
practically unavailable to independent technicians.
    However, manufacturers are required to ensure that the underlying 
emission-related information contained in their enhanced diagnostic 
equipment is provided to the aftermarket in a reasonable manner. 
Manufacturers are, therefore, required either to make their advanced 
diagnostic tools and equipment available at a reasonable cost to 
independent technicians or to make available to aftermarket tool and 
equipment companies any and all information, except calibrations and 
recalibrations, needed to develop and manufacture generic tools that 
can be used by independent technicians to diagnose, service and repair 
emission-related parts, components and systems.
    Section 202(m)(5) states that information for making emission-
related diagnosis and repair that is made available either directly or 
indirectly to dealerships must also be made available to the 
aftermarket. Any such information provided to dealerships is not 
proprietary as defined in the CAA. Much of the service and repair 
information made available to dealerships is done so by its 
incorporation into diagnostic tools and equipment. To ensure that 
independent technicians have the same or similar capabilities, 
manufacturers are required to either provide the information necessary 
to make such tools and equipment to tool and equipment companies or to 
make manufacturer tools and equipment available at a reasonable cost 
(i.e., sold competitively in the marketplace). The reasonable cost 
requirement is necessary to ensure that the tools and equipment are 
``available'' to the aftermarket.
    EPA is not requiring that information provided indirectly to 
dealerships be provided directly to aftermarket technicians. Where such 
information contains proprietary materials, EPA is only requiring that 
such information be provided to aftermarket technicians in the same 
manner that it is provided to 

[[Page 40490]]
dealerships. Manufacturers may require that tool and equipment 
manufacturers to whom such information is provided agree to ensure that 
such information remains proprietary.
    EPA recognizes that manufacturers cannot exert sufficient control 
over tool and equipment manufacturers to ensure that generic tools and 
equipment properly incorporate diagnostic information. Therefore, the 
Agency will not hold manufacturers responsible for the tools and 
equipment produced by other companies.
    As discussed in the section on reprogramming, manufacturers may 
sell their own reprogramming tools to independent technicians, rather 
than having such information provided by aftermarket tool and equipment 
companies, if the price of such tools is reasonable.
    Manufacturers may, if they wish, also sell their enhanced 
diagnostic equipment and/or provide the information necessary to build 
reprogramming tools to aftermarket tool and equipment companies. The 
sale of manufacturer enhanced diagnostic equipment for a reasonable 
cost would be sufficient to comply with the requirements for enhanced 
diagnostic information under these regulations.
    Vehicle manufacturers are required to make emission-related 
diagnostic and service information utilized by aftermarket tool and 
equipment companies available to such companies no later than the date 
of model introduction. This will allow adequate time for such companies 
to incorporate the information into generic tools and make it available 
to independent technicians in a timely manner. Revised information is 
required to be provided to aftermarket tool and equipment companies as 
it becomes available.
    EPA Decision: Manufacturers are required to make available to 
aftermarket tool and equipment companies any and all information, 
except calibrations and recalibrations, needed to develop and 
manufacture generic tools that can be used by independent technicians 
to diagnose, service and repair emission-related parts, components and 
systems.
    In the alternative, manufacturers may sell their enhanced 
diagnostic equipment to aftermarket technicians for a reasonable price. 
The sale of manufacturer enhanced diagnostic equipment for a reasonable 
cost would be sufficient to comply with the requirements for enhanced 
diagnostic information under these regulations.
    As to emission-related diagnostic and service information utilized 
by aftermarket tool and equipment companies that make generic tools 
which perform the same or similar functions as those provided by 
manufacturers to their dealerships, the Agency believes that such 
information should be provided at the time of model introduction. This 
will allow adequate time for its incorporation into tools and 
equipment.

J. Recalibration/Reprogramming

    Statement of Proposal: EPA proposed that, consistent with the Act, 
``all information'' needed to make emission-related repairs be made 
available to the automotive service industry, including recalibration 
information. An engine calibration is the set of instructions the 
computer module uses for operating many of the engine systems (e.g., 
fuel and ignition). These instructions are made up of preset values and 
algorithms that are located in a computer chip. Recalibration is the 
act of revising the preset values and/or algorithms for an existing 
engine calibration in a particular vehicle model/engine configuration. 
Reprogramming is the act of installing a ``new'' engine calibration 
(i.e., a recalibration) into the module of a specific vehicle.
    Summary of Comments: Manufacturers asserted several reasons why 
they should not be required to make available recalibration information 
or reprogramming capability: (1) Recalibrations are saleable parts and 
not ``information'' within the meaning of section 202(m)(5) of the CAA; 
(2) reprogramming is not a repair action; (3) reprogramming is not 
``necessary'' information; (4) reprogramming is not ``emission-
related''; (5) recalibration and reprogramming information are 
proprietary information protected under section 208; (6) the CAA does 
not require manufacturers to make available engine calibration 
information for aftermarket parts manufacturers to effectively design 
emission-related parts; (7) providing reprogramming capabilities to 
independent technicians would impair the manufacturer's ability to 
maintain tamper resistant systems; (8) independent technicians would be 
unable to understand the intracacies of each of the different 
manufacturer systems; and (9) the potential for problems, such as 
increased emissions, poor vehicle performance, and warranty and recall 
liability that could result from the release of recalibration 
information. Manufacturers asserted that aftermarket service providers 
could take vehicles to franchised dealerships to have them 
reprogrammed.
    In contrast, the automotive aftermarket unanimously cited the need 
for independent technicians to have the capability to perform 
reprogramming. They commented that any procedure that has the effect of 
limiting the ability of independent technicians to make repairs is 
contrary to the CAA and Congressional intent. They further questioned 
EPA's authority to allow recalibration information to be within the 
exclusive province of dealers on the basis that that was not the intent 
of Congress. According to the commenters, if the aftermarket is not 
allowed to perform reprogrammings, the aftermarket will gradually be 
removed from performing emission-related repairs, including 
driveability repairs.
    Some commenters stated that the only useful information to 
aftermarket parts manufacturers would be access to underlying 
recalibration information. APAA commented that engine calibration 
information is required for the effective production and testing of 
replacement parts. The Specialty Equipment Manufacturer's Association 
(SEMA) asserted that although aftermarket parts manufacturers would not 
necessarily need direct access to manufacturer proprietary information, 
some type of secure access to manipulate calibrations in developing and 
testing aftermarket parts will be essential to the survival of the 
independent parts and service industry. They argued that by not 
allowing such access, EPA would put some people out of business by 
eliminating the ability to make modifications to vehicles.
    Aftermarket comments asserted that the marginal risk of tampering 
could be addressed by various methods, including restricting how 
recalibrations are performed (e.g., using a modem link to receive 
recalibration information) or specifying qualifications which all 
technicians must meet to obtain recalibration data.
    Analysis of Comments: EPA disagrees with the commenters that 
recalibration information is a part. There are several reasons for the 
Agency's position on this issue. First, service people do the 
reprogramming, not parts departments. Second, one doesn't need to order 
the ``part,'' it is in the diagnostic machine and just needs to be 
downloaded. Third, there are no parts cost for ``installation,'' only 
service costs. Fourth, entering a recalibration does not physically 
change a vehicle, only the data (information) on the computer. Fifth, 
in their comments, manufacturers refer to recalibrations as 
``information.'' \13\ Sixth, parts can be sent to a mechanic via, e.g., 
UPS, as they 

[[Page 40491]]
are sent to a dealer by a manufacturer, or as a dealer can send to a 
mechanic. However, reprogramming can only occur at a dealership or 
other facility which has the necessary equipment to perform a 
reprogramming event. In addition, the change made to a vehicle by 
reprogramming is a change to ``data'' within the vehicle. In effect, 
the tool is communicating with the computer in the vehicle, telling it 
to do something different. This appears to be information.

    \13\ For example, Chrysler Corporation Response to EPA Request 
for Supplemental Comments on OBD Systems, June 28, 1992, and Ford 
Motor Company Written Comments, July 31, 1992.
---------------------------------------------------------------------------

    Finally, though parties may argue whether the data being downloaded 
into the vehicle is a ``part'' or ``information'' or both, it is clear 
to EPA that the current situation, in which dealerships can make 
manufacturer-suggested repairs to vehicles using data provided by 
manufacturers to dealerships, but not to independent technicians, is 
exactly the type of situation that Congress intended to be rectified by 
section 202(m)(5).
    EPA believes that reprogramming is a repair action. The entire 
purpose of reprogramming vehicle computers is to ``repair'' certain 
problems discovered in the vehicles. EPA believes that the key issue is 
whether independent service providers are being prevented from doing 
what dealerships are allowed to do due, in part, to lack of 
information. EPA believes that reprogramming events should be 
considered repairs under the statute, especially since such 
reprogramming is being done as a result of recommendations offered by a 
manufacturer in order to change some aspect of the vehicle that the 
manufacturer believes was initially incorrectly produced.
    Both Ford and Chrysler state that reprogramming information is not 
``needed'' as that word is used in section 202(m)(5).\14\ Yet, even 
presuming, for the sake of argument, that EPA should only mandate 
disclosure of emission-related information that is ``necessary,'' \15\ 
no manufacturer makes clear how such information is not necessary to 
accomplish the reprogramming of the vehicle. Whether the vehicle is 
reprogrammed by a dealer or an aftermarket technician, the repair 
person must have the information to make the repair. EPA does not 
believe that the ``instructions'' for making emission-related diagnosis 
and repairs is limited to ``go see your local dealer.'' The information 
necessary to make the repair must be in the possession of the 
aftermarket to the same extent it is in the possession of dealers.

    \14\ One reason they give is that such information is not 
emission-related. We discuss this issue below.
    \15\ The term ``needed'' does not modify the clause referring to 
``such other information including instructions for making emission 
related diagnosis and repairs.''
---------------------------------------------------------------------------

    Moreover, as EPA is only requiring information to be produced 
regarding recalibrations offered by a manufacturer, it is hard to 
understand how such reprogramming events would not be ``necessary'' 
events to repair the vehicle. A manufacturer would presumedly not offer 
such recalibrations unless it found a feature of the vehicle that it 
felt needed to be changed.
    The Agency disagrees with statements that reprogramming is not 
``emission-related.'' Though certain reprogramming events may have no 
emission-related effects, EPA believes that numerous reprogramming 
events will have such effects. First, the docket indicates that certain 
calibrations are directly intended to fix problems related to the 
emissions of the vehicles. Though these calibrations may be covered in 
a manufacturer's warranty, there is no assurance that a proper 
recalibration will occur during the warranty period. Thus, providing 
independent technicians with the ability to provide such reprogramming 
would not be an unnecessary endeavor.
    In addition, recalibrations to fix driveability problems will also 
have emission-related effects. As discussed elsewhere, ``emission-
related'' repairs are not limited to repairs of the emission control 
system or repairs necessary to make use of the OBD system.
    As EPA discusses above in the section on the definition of 
``emission-related,'' the correction of driveability problems can often 
have an emissions impact. This potential for increased emissions is 
heightened when cumulative recalibrations occur within an engine 
family. Therefore, EPA is requiring that all reprogramming events that 
are emission-related, as that term is defined above, including 
reprogramming actions occurring for primarily reasons of drivability, 
must be made available to independent technicians.
    Contrary to comments made regarding recalibration information being 
proprietary, the Agency believes that where a manufacturer provides 
such information to some or all of its dealers, such information cannot 
be considered proprietary under section 202(m)(5). The Act specifically 
requires that any information provided directly or indirectly to 
dealerships must also be provided to anyone who services or repairs 
vehicles.
    Contrary to manufacturer arguments that dealership employees don't 
receive recalibration data because they can't see it due to the form in 
which it is provided to them, EPA believes that where a manufacturer 
provides dealerships with machines that hold such information or can 
disseminate such information and where these machines allow dealerships 
to use such information to repair vehicles, such information is being 
provided indirectly to dealerships, and thus must be made available to 
independent technicians in a similar manner.
    In response to Ford's comment that it opposes any requirements 
which mandate that it make available all detailed emissions 
recalibrations, EPA is only requiring that reprogramming capability be 
made available, not direct calibration codes. As discussed below, EPA 
does believe that the internal computer codes within the vehicle 
control modules are proprietary, as such material is not released to 
dealerships. EPA, therefore, is not requiring direct disclosure of the 
recalibration data itself. EPA does not believe that manufacturers 
should be forced to provide unprotected proprietary information 
directly to aftermarket technicians merely because it has provided such 
material indirectly to its dealers, especially where such information 
is provided to dealers in a protected fashion, such that even the 
dealers could not assess the underlying information. Some manufacturers 
have gone to considerable lengths to prevent direct disclosure of this 
information even to its dealers; therefore, EPA will not require such 
information be provided directly to the aftermarket.
    Rather, EPA is allowing the manufacturers to indirectly provide 
this data to independent technicians in the same or similar fashion as 
they provide this data to dealership technicians by offering 
independent technicians reprogramming capabilities to the same extent 
manufacturers offer such capabilities to their own dealers. This will 
help ensure that independent technicians remain competitive with 
dealerships as intended by section 202(m)(5).
    EPA agrees with comments from the aftermarket that, based on the 
language of section 202(m)(5) of the CAA and its legislative history, 
Congress intended independent technicians to have all the information 
necessary to make emission-related repairs, including reprogramming 
capabilities, that are available to dealerships or others. Congress 
wanted to ensure the continuation of a competitive marketplace, thereby 
providing consumers with an option as to where to have their vehicles 
serviced. In addition to the reprogramming capability, manufacturers 
will also be required to publish information as to 

[[Page 40492]]
when recalibrations are issued, since such information can impact other 
repairs. Also, EPA expects that some independent technicians will not 
want to obtain reprogramming capability, but will want to know when 
such service is necessary so that they can take vehicles to the 
dealerships for such service or refer customers to seek dealership 
service on their own.
    EPA also agrees with comments indicating that there are significant 
practical competitive disadvantages to the aftermarket if only dealers 
can reprogram and that, in the future, many vehicle functions may be 
controlled through recalibration data. Also, unless a secure means for 
the aftermarket to obtain reprogramming is found, a substantial amount 
of maintenance and repairs could be channeled to dealerships who would 
have a significant information advantage.
    The Agency agrees that manufacturers that do not provide 
reprogramming capabilities to their dealers through the use of 
electronically eraseable computer chips and do not provide 
recalibration information to other parties do not have to provide 
recalibration information or reprogramming capability to independent 
technicians.
    The Agency agrees with the manufacturers that section 202(m)(5) 
does not require manufacturers to provide calibration, recalibration or 
design information to aftermarket parts manufacturers. The purpose of 
this provision is to ensure that independent technicians have access to 
information needed to service and repair vehicles, thereby ensuring 
consumers with freedom of choice in where to take their vehicles for 
repairs. See Statement of Senator Gore, 136 Cong. Rec. S3271-2 (March 
27, 1990) (``If we are going to mandate a new onboard diagnostic 
system, we must give consumers the freedom to choose where they will go 
to have these systems maintained and repaired.'' [emphasis added]) 
Manufacturers are only required to provide reprogramming capabilities 
to persons who service and repair vehicles, i.e., independent 
technicians. They are not required to provide recalibration information 
to other parties.
    EPA disagrees with the assertion from aftermarket commenters that 
section 202(m)(5) is intended to provide for the release of calibration 
or parts specification information to parts manufacturers. Nothing in 
the language of the statute itself or in the legislative history 
indicates that Congress was interested in assuring access and 
information for the manufacture of aftermarket parts. On the contrary, 
the legislative history speaks only of the need to ensure equal access 
for vehicle repair facilities. The language was clearly meant to ensure 
that such repair facilities have equal information to make emission-
related diagnosis and repairs as have the manufacturers' dealerships.
    This is why the Congress limited the coverage of section 208(c) 
(providing that trade secrets need not be made available) to 
information not provided to dealerships. There is no information 
indicating that underlying computer data is provided to dealerships. In 
fact, as discussed above, manufacturers have attempted to protect such 
information from disclosure. Though the language of section 202(m)(5) 
does refer to any information provided directly or indirectly to 
dealers, EPA does not believe that Congress intended to require that 
information provided to dealers only indirectly, and using secure 
methods, must be provided directly, without protection, to aftermarket 
parts dealers. The legislative history clearly shows that Congress had 
no intention of requiring the release of proprietary information. In 
fact, the House Report specifically gives as its reason for the trade 
secrets language the fact that ``the computer software can include very 
sensitive data.'' House Report at 306. In short, section 202(m)(5) was 
designed to ensure information already in the public domain was given 
to all repair providers; it was not designed to expose manufacturers to 
the divulgence of their most sensitive proprietary information.
    Further, EPA has received no information that this information is 
needed by repair personnel to repair vehicles. There has been no 
information showing that repair personnel need to see underlying 
computer codes in order to fix vehicles. This is evidenced by the fact 
that there have been many comments indicating that service people have 
no use for such underlying information and would likely not know how to 
use it if they had access to it.
    Aftermarket parts manufacturers commented that engine calibration 
information is required for the effective production and testing of 
replacement parts to ensure that they will meet the exacting needs of 
both current and future engines. Even presuming that this allegation is 
true, this regulation does not prevent parts manufacturers from 
obtaining such information. Parts manufacturers can enter into any 
number of special arrangements with the manufacturers to obtain the 
desired information. Further, parts manufacturers will be able to make 
parts in the same manner as they always have.
    Parts manufacturers have been making such parts for many years, 
even as vehicles have become more and more complicated. Though the 
introduction of OBD will continue the trend of making cars more complex 
and, therefore, require manufacturers and aftermarket parts 
manufacturers to meet more exacting standards, it does not require a 
new regime for providing information for the manufacture of replacement 
parts. Nor does section 202(m)(5) require such a new regime.
    Vehicle manufacturers expend substantial resources to develop these 
intricate programs. Manufacturers may be justified in their hesitance 
to allow such information to be freely distributed, especially without 
proper arrangements. Congress could have extended the reach of section 
202(m)(5) to include parts manufacturers. It did not. Given the fact 
that aftermarket parts manufacturers appear to need information of a 
more proprietary nature than that of aftermarket repair personnel, it 
appears that EPA would be going beyond Congressional intent in 
requiring that such information be provided.
    Moreover, SEMA states that the aftermarket industry needs 
underlying recalibration information to be capable of modifying 
existing programs on vehicle computer chips. It is just these changes 
to computer calibrations that trouble manufacturers and also trouble 
EPA. Where a single entity, the manufacturer, is responsible for 
programming and updating the vehicle computer, it is relatively easy to 
determine which computer calibration is on, or should be on, a vehicle. 
Manufacturers go through a rigorous mandatory certification process to 
assure EPA of emission compliance of their various calibrations over 
the useful life of their vehicles. When various part manufacturers are 
changing calibrations to meet the needs of their parts, then it is more 
difficult to determine what the proper calibration of the vehicle 
should be. Moreover, if a subsequent repair person repairs the same 
vehicle using the instructions generally appropriate for such a 
vehicle, such a subsequent repair may result in unintended consequences 
that could impair the emissions (or drivability) performance of the 
vehicle, especially if the new aftermarket calibration is not made 
obvious to the subsequent repair person. Also, such aftermarket 
recalibrations may prevent the manufacturer from instituting later 
recalibrations on the vehicle, because the newest manufacturer 
recalibration may be inconsistent with the aftermarket part. Finally, 
such aftermarket recalibrations 

[[Page 40493]]
could possibly constitute tampering, depending on the emissions result 
of the recalibration. (This is also true for manufacturer 
recalibrations; however, if manufacturers are the only parties issuing 
recalibrations, such problems are easier to enforce.) This is not to 
say that EPA intends on preventing such aftermarket recalibrations or 
even manufacturer recalibrations. However, if EPA's concerns regarding 
the emissions result of such recalibrations increase as it receives 
further data on the subject, EPA may determine that certain steps must 
be taken (possibly in the form of a mandatory certification program) to 
ensure that recalibrations are consistent with the Act and to preserve 
emission performance of vehicles.
    One of the more frequently cited comments by the manufacturers was 
that reprogramming should be restricted to dealerships for reasons of 
security. However, EPA received no evidence that tampering is 
necessarily less likely to occur if reprogramming is limited to 
dealership employees, which according to NADA constitute more than one 
million individuals (including one-third of all technicians) at over 
23,000 dealerships nationwide.
    The Agency believes that if the appropriate security measures are 
instituted for reprogramming, the risk of tampering would be virtually 
the same for independent technicians and dealership employees.
    EPA questions manufacturer comments to the effect that they can 
ensure the security of recalibration information as long as it is 
provided only to dealerships. The manufacturers failed to provide any 
data from prior actions against dealerships to substantiate the 
assertion that manufacturers can prevent their dealerships from 
engaging in undesired activities. Also, EPA is not forbidding 
manufacturers from using contractual and other arrangements to protect 
against inappropriate use of the reprogramming equipment.
    EPA is encouraged that the aftermarket industry recognizes that as 
a result of providing independent technicians with reprogramming 
capabilities there is some concern over the potential for tampering. 
EPA also appreciates the many suggestions made by the aftermarket to 
reduce the potential for tampering. However, EPA believes that 
manufacturers should be allowed to develop and implement the systems 
which they believe are most secure, such as encryption systems, taking 
into consideration the amount of reprogramming they perform and 
available technology. If EPA subsequently determines that security and 
tampering concerns develop into a problem due to the release of this 
information, EPA may require other measures to limit tampering and to 
prevent emissions increases.
    EPA disagrees with comments regarding the inability of independent 
technicians to correctly perform reprogramming. First, the new 
electronic systems are too complex for independent or any other 
technicians to indiscriminately alter. Second, based on EPA 
observations, reprogramming according to manufacturer instructions is 
not a difficult task. Procedures could be easily detailed in 
manufacturer repair manuals as they typically are for other repairs. 
Therefore, any training need to perform reprogramming should be 
minimal. If manufacturers believe that extra training is necessary 
prior to technicians performing reprogramming, then they should make 
available whatever training materials they believe are necessary to 
ensure that independent technicians can properly perform reprogramming.
    EPA believes that manufacturer concerns over warranty and recall 
responsibilities for vehicles that might be recalibrated improperly by 
independent technicians are unfounded. Manufacturers will be in control 
of the process by which reprogramming is provided. In addition, as 
discussed earlier, the task of reprogramming is not difficult.
    EPA believes that any increasing danger of undetectable tampering 
would be more a result of the proliferation of reprogrammable computer 
chips than it is a result of who repairs vehicles. The proliferation of 
reprogrammable computer chips is in the control of the manufacturers 
who can elect not to use reprogramable chips or who can provide many 
other safeguards short of a permanent bar against reprogramming by 
aftermarket technicians. This possibility of increased tampering may 
also provide an incentive for manufacturers to minimize the amount of 
manufacturer-ordered reprogramming that occurs.
    In addition, EPA never indicated that manufacturers would be 
responsible for reimbursing owners or independent technicians for 
reprogramming performed outside a dealership. EPA also has a difficult 
time understanding how allowing independent technicians to perform 
reprogramming recommended by the manufacturer would be a disincentive 
for owners to seek future emission-related repairs, since almost all 
manufacturer commenters indicated that such repairs occur during the 
warranty period and are, therefore, likely to be performed by 
dealerships.
    EPA believes that GM's comments mis-state the competitiveness 
concerns of a level playing field expressed by Congress. With the 
advent of eraseable computer chips, dealers can perform reprogramming 
in minutes, while independent technicians, if forced to return a 
vehicle or its module to a dealer for reprogramming, would be at a 
significant time and cost disadvantage. According to one manufacturer, 
it is difficult to predict how long an independent technician would 
have to wait at a dealership to have a reprogramming event performed on 
a vehicle brought in by the independent technician. The manufacturer 
indicated that an independent technician might have to wait four to 
five days.
    EPA agrees with the aftermarket commenters that forcing independent 
technicians to return computers to dealers for reprogramming requires 
excessive manpower, would result in loss of income due to delays, is 
onerous and unnecessary. In addition, the Agency believes that 
requiring independent technicians to do so does not constitute access 
to repair information as conceived by Congress in section 202(m)(5) of 
the CAA.
    EPA agrees with the example provided by an aftermarket commenter 
regarding one of the differences to independent technicians as to the 
difference between replaceable computer chips and eraseable computer 
chips and any requirement that independent technicians return an 
electronic control module (ECM) to a dealer for reprogramming. Where an 
independent facility buys a computer chip from a dealer, the vehicle 
remains operable while the repair facility searches for the part, 
orders the part, and transports the part. However, if an independent 
facility would have to remove the computer from a vehicle and take it 
to an authorized dealer to have it reprogrammed, the affected vehicle 
is not operable. Even ignoring the potential for lack of cooperation by 
a dealership to provide reprogramming, the cost to independent 
technicians and the inconvenience to their customers could be 
substantial.
    There is also concern, as expressed by ETI and others about the 
damage that could result from transporting exposed electronic parts, 
which are very sensitive to static electricity, physical damage, and 
fluids, including water. As ETI noted, a computer module that starts 
out needing only a reprogramming service may need replacement simply 
because it was transported to a dealer and damaged along the way. 

[[Page 40494]]

    EPA Decision: EPA has determined that recalibrations are 
information covered under section 202(m)(5) if they are provided to 
dealerships to reprogram vehicles. EPA recognizes that this information 
is not visible to the dealerships and is provided for the purpose of 
allowing dealers to perform reprogramming. EPA believes that allowing 
manufacturers to provide similar reprogramming capabilities to 
independent technicians (and not the recalibrations themselves) 
comports with the language and intent of section 202(m)(5).
    Effective December 1, 1997, manufacturers are required to:
    (1) make available to independent technicians all emission-related 
reprogramming events (including driveability reprogramming events that 
may affect emissions) that were issued prior to December 1, 1997, by 
manufacturers and made available to dealerships for MYs 1994 through 
1997; and
    (2) for reprogramming events that are issued on or after December 
1, 1997, make available to independent technicians all emission-related 
reprogramming events (including driveability reprogramming events that 
may affect emissions) issued by manufacturers for 1994 and later MY 
vehicles at the same time they are made available to dealerships.
    For each MY, reprogramming need not be provided for recalibrations 
performed prior to vehicles entering the stream of commerce (i.e., sale 
to first purchaser).
    If a manufacturer can demonstrate, to the satisfaction of the 
Administrator, that hardware would have to be retroactively installed 
on vehicles to meet security measures implemented by the manufacturer, 
the manufacturer may request a waiver from the reprogramming 
requirements for model years 1994 through 1996.
    EPA is providing manufacturers until December 1, 1997, to adopt and 
implement security measures, such as encryption or other measures, that 
address tampering concerns and concerns regarding proprietary 
information. This leadtime will also allow manufacturers to work out 
logistical issues related to making reprogramming available to the 
potentially large numbers of independent facilities that may be 
interested in receiving this capability. Though EPA is allowing 
security measures to be implemented by manufacturers, such measures are 
not being required by these regulations. EPA believes that 
manufacturers are best able to determine the extent to which the 
release of this information will endanger the proprietary nature of the 
underlying information and/or potentially lead to tampering.
    Any method adopted by a manufacturer by which reprogramming will be 
made available to independent technicians cannot impose a significant 
burden on independent technicians beyond that experienced by 
dealerships. For example, manufacturers can sell reprogramming tools 
directly to independent technicians or enter into agreements with 
aftermarket tool companies whereby the manufacturers provide the tool 
companies with the information necessary to build reprogramming tools. 
In conjunction with one of these options, manufacturers could transmit 
reprogramming events directly to independent technicians by modem from 
a main frame or provide them with CD ROMs. The use of a main frame to 
make reprogramming available would enable manufacturers to monitor 
certain data, such as who is performing reprogramming and the type of 
reprogramming that is being requested. In formulating its method of 
making reprogramming available to independent technicians, a 
manufacturer may request to meet with EPA to discuss whether the method 
comports with the requirements of this rule. In the context of avoiding 
a significant burden on independent technicians, EPA notes that a 
manufacturer reprogramming-only tool should be compatible with generic 
portable computers (PCs), or other technology in widespread use in the 
future, so that independent technicians are not required to purchase 
numerous types of PCs to access each manufacturer's reprogramming 
tools.
    EPA is concerned that there may be a risk of increased tampering 
with the OBD system once it is integrated with the I/M test. However, 
EPA believes that the manufacturers have sufficient incentives to adopt 
measures that maximize security and protect the OBD system from 
tampering. At this time, therefore, EPA is not requiring that 
manufacturers adopt security measures. If there is evidence of 
tampering that can't be prevented through EPA's enforcement authority, 
EPA may find it necessary to promulgate more stringent regulations to 
ensure that the integrity of OBD systems is maintained. Such 
regulations could include various options, such as mandatory 
aftermarket parts certification, banning eraseable computer chips, or 
security measures.

K. Regulatory Flexibility Analysis

    Summary of Proposal: The Regulatory Flexibility Act of 1980 
requires Federal agencies to identify potentially adverse impacts of 
Federal regulations upon small entities. In instances where significant 
impacts are possible on a substantial number of these entities, 
agencies are required to perform a Regulatory Analysis. EPA has 
determined that the regulations finalized today will not have a 
significant impact on a substantial number of small entities. This 
regulation will primarily affect manufacturers of motor vehicles and 
motor vehicle engines, a group which does not contain a substantial 
number of small entities.
    Summary of Comments: Chrysler commented that EPA's conclusion that 
an RIA is not required is fatally flawed. Chrysler asserted that the 
proposed regulations will impact over twenty thousand small businesses, 
i.e., dealers, through major effects on their future business and 
profitability. Chrysler stated that dealerships carry costs and 
overhead which are not faced by aftermarket repair shops. Chrysler 
believes that any regulation which diminishes the ability of 
dealerships to effectively compete, by lessening their ability to meet 
costs imposed by the nature of the business, clearly constitutes a 
significant impact on those businesses, required to be assessed by the 
Administrator by law.
    NADA also commented that EPA's regulatory impact analysis appears 
to have failed to take into account the significant potential impact 
its proposed regulations will have on franchised dealership service 
operations. NADA asserted that several provisions in the proposed rule 
will result in potentially costly anti-competitive impacts on 
dealerships. NADA stated its member dealerships are very concerned that 
the EPA proposal will serve to undermine the franchise relationship 
that exists between dealers and manufacturers. The proposal as written 
threatens the huge investments NADA dealerships have made in equipment, 
technician training, and information systems by putting dealers at a 
competitive disadvantage with those segments of the vehicle maintenance 
industry who have not made similar investments. As required by the 
Regulatory Flexibility Act, NADA argued it is incumbent upon EPA to 
consider these impacts during the development of its final OBD rule. 
NADA submitted that this is of particular importance considering the 
currently dire economic condition of a 

[[Page 40495]]
large number of franchised dealerships across the country.
    Analysis of Comments: This rulemaking directly affects only vehicle 
manufacturers, which are not small businesses. Therefore, no regulatory 
flexibility analysis is necessary. The secondary effects that these 
regulations may have on particular smaller businesses (i.e., 
dealerships), which would not be increases in burden, but loss of sole 
access to information, should be minor. Moreover, these regulations 
generally maintains the status quo that currently exists between 
dealerships and independent technicians. Today's regulations should not 
greatly affect dealerships or independent technicians, since the vast 
majority of the emission-related information required by this rule has, 
according to commenters, long been provided voluntarily by the 
manufacturers. In its comments submitted August 13, 1993, Association 
of International Automobile Manufacturers, Inc. (AIAM), for example, 
stated that in spite of the fact that there have been no requirements 
mandating the availability of service information, nearly all 
manufacturers have made information readily available. According to 
AIAM, the aftermarket asserts such information is not available, 
because they are unwilling to pay the fair cost of the information.
    Other small businesses (i.e., independent technicians) are also not 
directly regulated by this rulemaking. Moreover, according to the 
statements of many commenters, any secondary effects from these 
regulations are likely to be minor, as much of the information required 
to be made available under this rulemaking is, according to the 
commenters, already available to the aftermarket.
    Aftermarket parts manufacturers, whose products are not covered by 
the information availability requirements of section 202(m)(5), will be 
in the same position following the effective date of this rule as they 
were before the effective date. They will be able to design, develop 
and manufacture parts as before or they can enter into agreements with 
the manufacturers to purchase design specifications.
    EPA Decision: A regulatory flexibility analysis is not required, 
since there is no significant impact on affected entities.
V. Administrative Requirements

A. Administrative Designation

    Under Executive Order 12866, [58 Federal Register 51,735 (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.
    Pursuant to the terms of Executive Order 12866, OMB has notified 
EPA that it considers this a ``significant regulatory action'' within 
the meaning of the Executive order. EPA has submitted this action to 
OMB for review. Changes made in response to OMB suggestions or 
recommendations will be documented in the public record.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 requires Federal agencies to 
identify potentially adverse impacts of Federal regulations upon small 
entities. In instances where significant impacts are possible on a 
substantial number of these entities, agencies are required to perform 
a Regulatory Flexibility Analysis. EPA has determined that the 
regulations finalized today will not have a significant impact on a 
substantial number of small entities. This regulation will also 
positively affect independent repair shops and mechanics. The 
standardization requirements contained in these regulations will 
enhance the ability of independent mechanics to diagnosis and repair 
malfunctions.
    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.

C. Unfunded Mandates Act

    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 expenditure by State, 
local, and tribal governments, in the aggregate; or by the private 
sector, of $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 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. Therefore, the requirements of the 
Unfunded Mandates Act do not apply to this action.

D. Electronic Copies of Rulemaking Documents

    Electronic copies of the preamble and the regulatory text of this 
direct final rulemaking are available on the Office of Air Quality 
Planning and Standards (OAQPS) Technology Transfer Network Bulletin 
Board System (TTNBBS). Instructions for accessing TTNBBS and 
downloading the relevant files are described below.
    TTNBBS can be accessed using a dial-in telephone line (919) 541-
5742 and a 1200, 2400, or 9600 bps modem (equipment up to 14.4 Kbps can 
be accommodated). The parity of the modem should be set to N or none, 
the data bits to 8, and the stop bits to 1. When first signing on the 
bulletin board, the user will be required to answer some basic 
informational questions to register into the system. After registering, 
proceed through the following options from a series of menus:

(T) Gateway to TTN Technical Areas (Bulletin Boards)
(M) OMS
(K) Rulemaking and Reporting
    At this point, the system will list all available files in the 
chosen category in chronological order with brief descriptions. File 
information can be obtained from the ``READ.ME'' file. To download a 
file, the user needs to choose a file transfer protocol appropriate for 
the user's computer from the options listed on the terminal.
    TTNBBS is available 24 hours a day, 7 days a week except Monday 
morning from 8-12 Eastern Time, when the system is down for maintenance 
and backup. For help in accessing the system, call the systems operator 
at 

[[Page 40496]]
(919) 541-5384 in Research Triangle Park, North Carolina, during normal 
business hours Eastern Time.

E. Paperwork Reduction Act

    The information collection requirements in this rule have been 
approved by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and have been assigned 
control number 2060-0104.
    Send comments regarding the burden estimate or any other aspect of 
this collection of information, including suggestions for reducing this 
burden to Chief, Information Policy Branch; EPA; 401 M St., S.W. (Mail 
Code 2136); Washington, DC 20460; and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20503, marked ``Attention: Desk Officer for EPA.''
F. Display of OMB Control Numbers

    EPA is also amending the table of currently approved information 
collection request (ICR) control numbers issued by OMB for various 
regulations. This amendment updates the table to accurately display 
those information requirements contained in this final rule. This 
display of the OMB control number and its subsequent codification in 
the Code of Federal Regulations satisfies the requirements of the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and OMB's implementing 
regulations at 5 CFR part 1320.
    The ICR was previously subject to public notice and comment prior 
to OMB approval. As a result, EPA finds that there is ``good cause'' 
under section 553(b)(B) of the Administrative Procedure Act (5 U.S.C. 
553(b)(B)) to amend this table without prior notice and comment. Due to 
the technical nature of the table, further notice and comment would be 
unnecessary. For the same reasons, EPA also finds that there is good 
cause under 5 U.S.C. 553(d)(3).

VI. Authority

    Statutory authority for the proposed emission standards is provided 
by sections 202(a), 202(m), 208(c), 301(a), and 307(d) of the Clean Air 
Act, as amended, 42 U.S.C. 7521(a), 7521(m), 7542(c), 7601(a), and 
7607(d).

List of Subjects

40 CFR Part 9

    Reporting and recordkeeping requirements.

40 CFR Part 86

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Motor vehicle pollution, Motor vehicles, 
Reporting and recordkeeping requirements.

    Dated: July 25, 1995.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, 40 CFR chapter I is 
amended as follows:

PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT

    1. The authority citation for part 9 continues to read as follows:

    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, 1326, 1330, 1344(d) 
and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp. p. 
973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 300g-2, 
300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 300j-4, 
300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-9657, 
11023, 11048.

    2. Section 9.1 is amended by adding a new entry to the table under 
the indicated heading in numerical order to read as follows:


Sec. 9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                   40 CFR citation                      OMB control No. 
------------------------------------------------------------------------
                                                                        
                 *        *        *        *        *                  
Control of Air Pollution From New and In-Use Motor Vehicles and New and 
 In-Use Motor Vehicle Engines: Certification and Test Procedures        
                                                                        
                  *        *        *        *        *                 
86.094-38............................................          2060-0104
                                                                        
                  *        *        *        *        *                 
------------------------------------------------------------------------

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

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

    Authority: Secs. 202, 203, 205, 206, 207, 208, 215, 216, and 
301(a), Clean Air Act, as amended (42 U.S.C. 7521, 7522, 7524, 7525, 
7541, 7542, 7549, 7550, 7552, and 7601(a)).

    4. Section 86.094-2 is amended by adding definitions for ``Bi-
directional control'', ``Data stream information'', ``Enhanced service 
and repair information'', ``Generic service and repair information,'' 
``Indirect information'', and ``Intermediary'', in alphabetical order, 
to read as follows:
Sec. 86.094-2  Definitions.

* * * * *
    Bi-directional control means the capability of a diagnostic tool to 
send messages on the data bus that temporarily overrides the module's 
control over a sensor or actuator and gives control to the diagnostic 
tool operator. Bi-directional controls do not create permanent changes 
to engine or component calibrations.
    Data stream information means information (i.e., messages and 
parameters) originated within the vehicle by a module or intelligent 
sensors (i.e., a sensor that contains and is controlled by its own 
module) and transmitted between a network of modules and/or intelligent 
sensors connected in parallel with either one or two communication 
wires. The information is broadcast over the communication wires for 
use by other modules (e.g., chassis, transmission, etc.) to conduct 
normal vehicle operation or for use by diagnostic tools. Data stream 
information does not include engine calibration related information.
* * * * *
    Enhanced service and repair information means information which is 
specific for an original equipment manufacturer's brand of tools and 
equipment.
* * * * *
    Generic service and repair information means information which is 
not specific for an original equipment manufacturer's brand of tools 
and equipment.
* * * * *
    Indirect information means any information that is not specifically 
contained in the service literature, but is contained in items such as 
tools or equipment provided to franchised dealers (or others).
    Intermediary means any individual or entity, other than an original 
equipment manufacturer, which provides service or equipment to 
automotive technicians.
* * * * *
    5. A new Sec. 86.094-38 is added to read as follows:


Sec. 86.094-38  Maintenance instructions.

    (a)-(f) [Reserved]
    (g) Emission control diagnostic service information:
    (1) Manufacturers shall furnish or cause to be furnished to any 
person engaged in the repairing or servicing of motor vehicles or motor 
vehicle engines, or the Administrator upon request, any and all 
information needed to make use of the on-board diagnostic system and 
such other information, including 

[[Page 40497]]
instructions for making emission-related diagnosis and repairs, 
including, but not limited to, service manuals, technical service 
bulletins, recall service information, data stream information, bi-
directional control information, and training information, unless such 
information is protected by section 208(c) as a trade secret. No such 
information may be withheld under section 208(c) of the Act if that 
information is provided (directly or indirectly) by the manufacturer to 
franchised dealers or other persons engaged in the repair, diagnosing, 
or servicing of motor vehicles or motor vehicle engines.
    (2) Emission-related information includes, but is not limited to:
    (i) Information regarding any system, component or part of a 
vehicle that controls emissions and any system, components and/or parts 
associated with the powertrain system, including, but not limited to, 
the fuel system and ignition system;
    (ii) Information for any system, component, or part that is likely 
to impact emissions, such as transmission systems; and
    (iii) Any other information specified by the Administrator to be 
relevant for the diagnosis and repair of an emission failure found 
through the Inspection and Maintenance program, after such finding has 
been communicated to the affected manufacturer(s).
    (3) All information required to be made available by this section 
shall be made available to persons referred to in this section at a 
fair and reasonable price, as determined by the Administrator. In 
reaching a decision, the Administrator shall consider all relevant 
factors, including, but not limited to, the cost to the manufacturer of 
preparing and/or providing the information, the type of information, 
the format in which it is provided, the price charged by other 
manufacturers for similar information, the differences that exist among 
manufacturers (e.g., the size of the manufacturer), the quantity of 
material contained in a publication, the detail of the information, the 
cost of the information prior to the effective date of this section, 
volume discounts, and inflation.
    (4) Any information which is not provided at a fair and reasonable 
price shall be considered unavailable.
    (5) By December 7, 1995, each manufacturer shall provide in a 
manner specified in paragraph (g)(9) of this section an index of the 
information required to be made available by this section for 1994 and 
later model year vehicles which have been offered for sale; this 
requirement does not apply to indirect information, including the 
information specified in paragraph (g)(10) of this section. This index 
shall:
    (i) Be updated on the first and third Monday of each month;
    (ii) Provide titles that either adequately describes the contents 
of the document to which it refers or provides a brief description of 
the information contained in that document; and
    (iii) Provide the cost of information and where it can be obtained.
    (6) For vehicle models introduced more than four months after the 
effective date of this section, manufacturers shall make the 
information required under this section available to persons specified 
in paragraph (g)(1) of this section at the same time it is made 
available to dealerships, except as otherwise specified in this 
section.
    (7) Each manufacturer shall maintain the index of information 
specified in paragraph (g)(5) of this section on FedWorld or other 
database designated by the Administrator. Manufacturers shall inform 
persons specified in paragraph (g)(1) of this section about the 
availability of the index in a manner prescribed by the Administrator.
    (8) Each manufacturer shall be responsible for paying its pro rata 
share of any costs associated with establishing and maintaining the 
index of emission-related service and repair information provided for 
in paragraphs (g)(5) and (g)(7) of this section.
    (9) Manufacturers or their designated distributors must mail 
requested information within one business day of receiving an order, 
and shall provide overnight delivery if the ordering party requests it 
and assumes the cost of delivery.
    (10) All emission-related data stream information made available to 
manufacturers' franchised dealerships (or others in the service 
industry) shall be made available to the persons indicated in paragraph 
(g)(1) of this section either through provision of manufacturer 
equipment and tools or through provision of such information to 
equipment and tool manufacturers.
    (11) Effective January 1,1997, a manufacturer shall only provide 
bi-directional control to its franchised dealerships if it provides 
equipment and tool manufacturers with information to make diagnostic 
equipment with the same bi-directional control capabilities available 
to the dealerships, or if it provides such capabilities directly to 
persons specified in paragraph (g)(1) of this section by offering for 
sale at a reasonable cost through manufacturer tools.
    (12) Manufacturers shall make data stream information and bi-
directional control information available for all model years beginning 
with model year 1994 as specified in paragraphs (g)(10) and (g)(11) of 
this section. If a manufacturer can demonstrate, to the satisfaction of 
the Administrator, that safeguards for bi-directional controls are only 
installed in tools, not in vehicle on-board computers, then that 
manufacturer may receive a waiver from producing bi-directional 
controls for vehicles prior to the 1997 model year.
    (13) Effective December 1, 1997, manufacturers shall make available 
in the manner described in paragraph (g)(16) of this section to persons 
specified in paragraph (g)(1) of this section reprogramming capability 
for all emission-related reprogramming events (including driveability 
reprogramming events that may affect emissions) that were issued prior 
to December 1, 1997 by manufacturers and that were made available to 
any manufacturer dealerships for model years 1994 through 1997; and 
manufacturers shall make available to persons indicated in paragraph 
(g)(1) of this section in the manner described in paragraph (g)(16) of 
this section reprogramming capability for all emission-related 
reprogramming events (including driveability reprogramming events that 
may affect emissions) that are issued by manufacturers on or after 
December 1, 1997, for 1994 and later model years at the same time they 
are made available to dealerships.
    (14) For all vehicles, reprogramming need not be provided for any 
recalibrations performed prior to vehicles entering the stream of 
commerce (i.e., sale to first purchaser).
    (15) If a manufacturer can demonstrate, to the satisfaction of the 
Administrator, that hardware would have to be retroactively installed 
on vehicles to meet security measures implemented by the manufacturer, 
the manufacturer may receive a waiver from the requirements of 
paragraph (g)(13) of this section for model years 1994 through 1996.
    (16) Manufacturers shall either offer for sale at a competitive 
market price a reprogramming tool that interfaces with a substantial 
majority of generic portable computers or make available to aftermarket 
tool and equipment companies information that would enable them to 
manufacture such a tool. Any method adopted by a manufacturer by which 
reprogramming is made available to persons specified in paragraph 
(g)(1) of this section shall not impose a significant burden on such 

[[Page 40498]]
providers beyond that experienced by dealerships.
    (17) Manufacturers shall be responsible for ensuring that persons 
specified in paragraph (g)(1) of this section shall have access to 
reprogramming services at a reasonable cost and in a timely manner.
    (18) Manufacturers shall provide persons specified in paragraph 
(g)(1) of this section with an efficient and cost-effective method for 
identifying whether the calibrations on vehicles are the latest to be 
issued.
    (19) Manufacturers shall either make available to aftermarket tool 
and equipment companies no later than the date of model introduction 
any and all information, except calibrations and recalibrations, needed 
to develop and manufacture generic tools that can be used by persons 
specified in paragraph (g)(1) of this section to diagnose, service and 
repair emission-related parts, components and systems or manufacturers 
may sell their own diagnostic tools and equipment to persons specified 
in paragraph (g)(1) of this section if the price of such tools is 
reasonable.
    (20) A manufacturer is subject to a penalty of up to $25,000 per 
day per violation for failure to make available the information 
required by this section.

[FR Doc. 95-18867 Filed 8-8-95; 8:45 am]
BILLING CODE 6560-50-P