[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55521-55525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27070]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 86

[AMS-FRL-5302-3]
RIN 2060-AC65


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: This notice of proposed rulemaking proposes to revise 
requirements associated with on-board diagnostic (OBD) systems, as 
specified by 40 CFR 86.094-17. The federal OBD rulemaking, published 
February 19, 1993, allowed for compliance with California OBD II 
requirements as satisfying federal OBD requirements through the 1998 
model year. The California Air Resources Board has recently revised 
their OBD II requirements. The federal OBD regulations require 
appropriate revisions such that compliance with the recently revised 
OBD II requirements will satisfy federal OBD.

DATES: Written comments on this document will be accepted until January 
16, 1996. EPA will conduct a public hearing on this Notice of Proposed 
Rulemaking on December 13, 1995, if a public hearing is requested by 
November 16, 1995. If a hearing is requested, it will convene at 9 a.m. 
and will adjourn at such time as necessary to complete the testimony. 
Further information on the public hearing can be found in Supplementary 
Information, Section III, Public Participation.

ADDRESSES: Written comments should be submitted (in duplicate if 
possible) to: The Air Docket, room M-1500 (Mail Code 6102), Waterside 
Mall, Attention: Docket No. A-90-35, 401 M Street, SW., Washington, DC 
20460.
    The public hearing, if requested, will be held at the Holiday Inn 
North Campus, 3600 Plymouth Road, Ann Arbor, MI. Parties wishing to 
testify at the hearing should provide written notice to the contact 
person (see FOR FURTHER INFORMATION CONTACT).
    Materials relevant to this rulemaking are contained in Docket No. 
A-90-35, and are available for public inspection and photocopying 
between 8:00 a.m. and 5:30 p.m. Monday through Friday. The telephone 
number is (202) 260-7548 and the facsimile number is (202) 260-4400. A 
reasonable fee may be charged by EPA for copying docket material.

FOR FURTHER INFORMATION CONTACT: Todd Sherwood, U.S. Environmental 
Protection Agency, 2565 Plymouth Road, Ann Arbor, MI 48105, telephone 
(313) 668-4405.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction and Background
II. Requirements of this Proposal
III. Public Participation
IV. Discussion of Issues
V. Cost Effectiveness
VI. Administrative Requirements

I. Introduction and Background

    On February 19, 1993, the EPA promulgated a final rulemaking (58 FR 
9468, February 19, 1993) requiring manufacturers of light-duty vehicles 
(LDV) and light-duty trucks (LDT) to install on-board emission control 
diagnostics (OBD) systems on such vehicles beginning in model year 
1994. The regulations promulgated in that final rulemaking require that 


[[Page 55522]]
manufacturers install OBD systems which monitor emission control 
components for any malfunction or deterioration causing exceedances of 
certain emission thresholds, and alert the vehicle operator to the need 
for repair. That rulemaking also requires that, when a malfunction 
occurs, diagnostic information must be stored in the vehicle's computer 
to assist the mechanic in diagnosis and repair.
    Additionally, that rulemaking makes an allowance for manufacturers 
to satisfy the Federal OBD requirements through the 1998 model year by 
installing systems satisfying the California OBD II requirements 
pertaining to those model years. This allowance means that 
manufacturers could concentrate on designing one system for OBD 
compliance and installing that system nationwide during allowable model 
years. As EPA regulations cannot be revised except through EPA 
rulemaking, the OBD II requirements allowed under this provision were, 
and have continued to be, those existing on the date of publication of 
the federal OBD final rulemaking. This means that subsequent changes 
made to the OBD II requirements by the California Air Resources Board 
(ARB) may be inconsistent and potentially unacceptable for federal OBD 
compliance. The provisions of this proposed rulemaking will allow 
manufacturers to comply with federal OBD requirements by optionally 
complying with more recent OBD II regulations, specifically those 
contained in ARB Mail Out #95-03, made publicly available January 19, 
1995.
    On March 23, 1995, EPA published a direct final rule revising 
specific federal OBD provisions, including the provision of today's 
proposal. EPA believed that the March 23 direct final rule would not be 
controversial. In that direct final rule, EPA stated that, ``If notice 
is received that any person or persons wish to submit adverse comments 
regarding some, but not all of the actions taken in this rulemaking, 
then EPA shall withdraw this final action and publish a proposal only 
with regard to the actions for which notice has been received.'' EPA 
stated that it would make such a withdrawal if adverse comment was 
received by April 24, 1995.
    EPA received adverse comment from the Motor and Equipment 
Manufacturers Association (MEMA). This adverse comment was been placed 
in the public docket for viewing. The comments submitted by MEMA were 
adverse with regard to the revision of 40 CFR 86.094-17(j) that would 
allow manufacturers the option of complying with the recently revised 
California OBD II requirements (California Air Resources Board Mail-Out 
#95-03). (MEMA had initially objected to other specific provisions of 
the direct final rule, but MEMA withdrew these objections in a letter 
signed May 18, 1995.) Therefore, EPA subsequently removed the provision 
of the March 23 direct final rule that pertained to optional compliance 
with the revised OBD II requirements of ARB Mail-Out #95-03 (Final rule 
published on July 25, 1995 at 60 FR 37945). The language of the prior 
final rule published on February 19, 1993 (58 FR 9468) allowing 
compliance with California OBD II requirements is reinstated in 
Sec. 86.094-17(j).

II. Requirements of This Proposal

    This proposed rulemaking allows manufacturers to comply with 
federal OBD requirements by optionally complying with the revised and 
recently adopted California OBD II regulations. The allowance for 
optional compliance with California OBD II has already been established 
in the federal OBD program and was incorporated into the federal OBD 
final rulemaking in February, 1993. However, since that time, the ARB 
has made several revisions to the OBD II regulations.
    Because the Agency cannot simply accept the revised OBD II without 
undergoing the federal regulatory process, any optional compliance with 
California OBD II under the current federal regulations must be done 
against the OBD II regulations as they existed in February, 1993 (ARB 
Mail Out #92-56, November, 1992). However, the ARB has determined that 
several manufacturers would have difficulty complying with the OBD II 
regulations as they existed in February, 1993. The most notable 
requirements that currently pose difficulties are those for engine 
misfire detection under all positive torque engine speeds and 
conditions and full OBD II implementation on alternative fueled 
vehicles. Additionally, most manufacturers have indicated difficulty 
meeting other aspects of the OBD II regulations due to, for example, 
the complexity of the computer software requirements, and unpredictable 
driver actions such as resting a foot on the gas pedal while stopped at 
a traffic light. It is these additional difficulties that have prompted 
ARB to provide a ``deficiency'' allowance in their revised OBD II 
regulations whereby manufacturers can certify as OBD II compliant 
despite some reasonably acceptable and unplanned deficiency in the OBD 
system.
    As a result of the ARB revisions to OBD II, and to remain 
consistent with the original intent of providing for optional 
compliance with OBD II for federal OBD purposes, and because EPA has 
determined that OBD systems complying with the revised OBD II 
requirements fully satisfy the intent of the 1990 Clean Air Act 
Amendments and federal OBD regulations, this proposed rulemaking will 
provide the same option but will require that manufacturers choosing 
this option comply with the more recent OBD II regulations contained in 
ARB Mail Out #95-03.
    This means that any federal vehicles complying with federal OBD by 
optionally complying with California OBD II are allowed the same 
deficiencies as allowed under the OBD II provisions. This is consistent 
with revisions deemed necessary by EPA and subsequently made to federal 
OBD requirements through a direct final rulemaking published in March 
of this year (60 FR 15242, March 23, 1995). Note, however, that a 
manufacturer requesting certification of a deficient OBD II system must 
receive EPA acceptance of any deficiency independently of an acceptance 
made by ARB. The Agency will use the same criteria specified by the ARB 
in the OBD II regulation,\1\ with the exception of providing deficiency 
allowances for lack of catalyst monitors or oxygen sensor monitors as 
the Clean Air Act specifically requires these monitors no later than 
the 1996 model year. The Agency will make every effort to determine the 
acceptability of OBD II deficiency requests in concert with ARB staff 
to avoid the potential for conflicting determinations. However, the 
extent to which the agencies can make concurrent and coordinated 
findings will rely heavily on the manufacturer, who will be expected to 
provide any necessary information to both agencies in parallel rather 
than pursuing deficiency determinations on a separate basis.

    \1\Those criteria being the extent to which the requirements are 
satisfied overall on the vehicle applications in question, the 
extent to which the resultant diagnostic system design will be more 
effective than earlier OBD systems, and a demonstrated good-faith 
effort to meet the requirements in full by evaluating and 
considering the best available monitoring technology.
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III. Public Participation

A. Comments and the Public Docket

    The Agency welcomes comments on all aspects of this proposed 
rulemaking. All comments, with the exception of 

[[Page 55523]]
proprietary information, should be directed to the EPA Air Docket 
Section, Docket No. A-90-35 (see ADDRESSES). Commenters who wish to 
submit proprietary information for consideration should clearly 
separate such information from other comments by:
     Labeling proprietary information ``Confidential Business 
Information'' and
     Sending proprietary information directly to the contact 
person listed (see FOR FURTHER INFORMATION CONTACT) and not to the 
public docket.
    This will help insure that proprietary information is not 
inadvertently placed in the docket. If a commenter wants EPA to use a 
submission labeled as confidential business information as part of the 
basis for the final rule, then a nonconfidential version of the 
document, which summarizes the key data or information, should be sent 
to the docket.
    Information covered by a claim of confidentiality will be disclosed 
by EPA only to the extent allowed and by the procedures set forth in 40 
CFR Part 2. If no claim of confidentiality accompanies the submission 
when it is received by EPA, the submission may be made available to the 
public without notifying the commenters.

B. Public Hearing

    EPA will conduct a public hearing on this notice of proposed 
rulemaking on December 13, 1995, if a public hearing is requested by 
November 16, 1995. If a hearing is requested, it will convene at 9 a.m. 
and will adjourn at such time as necessary to complete the testimony. 
If requested the public hearing will be held at the Holiday Inn North 
Campus, 3600 Plymouth Road, Ann Arbor, MI.
    Should a public hearing be requested and subsequently held, anyone 
wishing to present testimony about this proposal at that public hearing 
should, if possible, notify the contact person (see FOR FURTHER 
INFORMATION CONTACT) at least seven days prior to the day of the 
hearing. The contact person should be given an estimate of the time 
required for the presentation of testimony and notification of any need 
for audio/visual equipment. A sign-up sheet will be available at the 
registration table the morning of the hearing for scheduling those who 
have not notified the contact earlier. This testimony will be scheduled 
on a first-come, first-served basis, and will follow the testimony that 
is arranged in advance.
    The Agency recommends that approximately 50 copies of the statement 
or material to be presented be brought to the hearing for distribution 
to the audience. In addition, EPA would find it helpful to receive an 
advance copy of any statement or material to be presented at the 
hearing at least one week before the scheduled hearing date. This is to 
give EPA staff adequate time to review such material before the 
hearing. Such advance copies should be submitted to the contact person 
listed.
    The official records of the hearing will be kept open for 30 days 
following the hearing to allow submissions of rebuttal and 
supplementary testimony. All such submittals should be directed to the 
Air Docket, Docket No. A-90-35 (see ADDRESSES).
    The hearing will be conducted informally, and technical rules of 
evidence will not apply. Written transcripts of the hearing will be 
made and a copy thereof placed in the docket. Anyone desiring to 
purchase a copy of the transcript should make individual arrangements 
with the court reporter recording the proceeding.

IV. Discussion of Issues

    As noted above, EPA published a direct final rulemaking on March 
23, 1995, that contained a provision for optional compliance with 
revised California OBD II regulations as satisfying federal OBD through 
the 1998 model year. That provision was to become effective on May 22, 
1995, unless EPA received notice of adverse comments by April 24, 1995. 
EPA received adverse comment from one source, the Motor and Equipment 
Manufacturers Association (MEMA), dated April 21, 1995. MEMA had 
commented adversely on all but one provision contained in the direct 
final rulemaking (sections II.A. through II.G.). The only provision not 
commented on by MEMA was that provision deleting the federal OBD anti-
tampering requirements (40 CFR 86.094-18). In subsequent discussions, 
MEMA agreed to withdraw all of their adverse comments, with the 
exception of that comment pertaining to federal acceptance of compliant 
revised California OBD II systems as satisfying federal OBD 
requirements. As a result, EPA has removed the provision allowing 
revised OBD II systems for federal OBD compliance.
    The comments received from MEMA regarding federal acceptance of 
compliant revised California OBD II systems as satisfying federal OBD 
requirements can be categorized into three areas: (1) Delegation of 
federal regulatory authority to the State of California; (2) Lack of an 
OBD II waiver under Section 209 of the Clean Air Act (CAA); and, (3) 
OBD II violates Section 202(m)(4) and 202(m)(5) of the CAA. These will 
be addressed in order.
    In their comments, MEMA states an objection to , ``* * * EPA's use 
of the rule to unlawfully delegate federal rulemaking authority to the 
California Air Resources Board (``CARB'').'' The basis of this comment 
is unclear. The Agency has determined that the California OBD II 
regulation adequately encompass all requirements of the CAA section 
202(m)(1), 202(m)(2), and 202(m)(4), and the regulatory intent of EPA's 
federal OBD final rulemaking of February, 1993. In light of that 
determination, the Agency has determined that it is beneficial to the 
automobile industry, and it presents no loss of federal OBD program 
benefits, to allow for optional compliance with California OBD II 
regulations as satisfying federal OBD for the initial years of OBD 
implementation. This issue was considered at length during development 
of the federal OBD final rulemaking and was included in the CFR through 
that rulemaking. In the March, 1995, direct final rulemaking, EPA 
simply revised that regulatory provision to include recent revisions 
made to the OBD II regulations that EPA had determined were necessary. 
In fact, EPA made revisions to its own regulations providing measures 
of relief similar to those contained in the revised OBD II regulations.
    It should also be pointed out that EPA makes determinations of 
regulatory compliance, whether that compliance is done against 
California OBD II or specific federal OBD provisions, in conjunction 
with but independently from the California Air Resources Board. The ARB 
does not have the authority to implement federal regulations, nor the 
authority to make certification decisions. Therefore, EPA is making all 
implementation and certification decisions on vehicles produced for 
sale outside the State of California.
    If ARB makes any further changes to the OBD II regulations, such 
changes will not automatically apply for federal certification 
purposes. EPA will once again evaluate such revisions to determine 
whether they are appropriate and will again provide for notice and 
comment rulemaking to assure that the public can provide its input.
    Another MEMA comment stated that EPA had not yet granted a CAA 
Section 209 waiver to California for their OBD II program. MEMA argues 
that the lack of such a waiver precludes EPA from accepting OBD II 
systems for federal OBD compliance. However, the Agency's regulatory 
provisions state that an OBD system meeting the requirements of the OBD 
II regulations 

[[Page 55524]]
effectively complies with federal OBD regulations. California's OBD II 
program is in this case similar to any other set of procedures that EPA 
incorporates by reference, for example, protocols developed by the 
Society of Automotive Engineers (SAE). These protocols are generally 
unenforceable by themselves, but are enforceable by EPA once they are 
promulgated by rulemaking. The existence of a waiver to California for 
their OBD II program is immaterial to this optional provision under 
federal OBD. Even if the State of California were to discontinue their 
OBD II program, the Agency could continue to allow optional compliance 
against the ARB OBD II regulations.
    MEMA also argues that OBD II, and federal OBD by allowing 
compliance against the OBD II provisions, violates Sections 202(m)(4) 
and 202(m)(5) of the CAA. Section 202(m)(4) requires standardization of 
diagnostic connectors, OBD system access, and OBD data output, while 
202(m)(5) requires that service information be made available to 
interested parties. This comment seems to be directed to the anti-
tampering provisions of the OBD II requirements. Even if EPA believed 
that such requirements violated section 202(m)(4) and 202(m)(5), such 
requirements have expressly been excluded from EPA's incorporation of 
OBD II. Thus, such arguments are inapplicable. Moreover, all 
manufacturers will be required to comply with EPA's Service Information 
Availability regulations (final rule published on August 9, 1995 at 60 
FR 40474).

V. Cost Effectiveness

    This proposed rulemaking alters an existing provision by allowing 
optional compliance with the most recent California OBD II 
requirements, as opposed to the November, 1992, ``Original'' OBD II 
requirements, for the purposes of federal OBD compliance. Because this 
proposed rulemaking alters an existing provision, there are no costs 
associated with this specific proposed action. The costs and emission 
reductions associated with the federal OBD program were developed for 
the February, 19, 1993, final rulemaking. The proposed change being 
made today does not affect the costs and emission reductions published 
as part of that rulemaking.

VI. Administrative Requirements

A. Administrative Designation

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:

    (1) Have an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or,
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Reporting and Recordkeeping Requirements

    This proposed rulemaking does not change the information collection 
requirements submitted to and approved by OMB in association with the 
OBD final rulemaking (58 FR 9468, February 19, 1993; and, 59 FR 38372, 
July 28, 1994).

C. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 requires Federal agencies to 
identify potentially adverse impacts of federal regulations upon small 
entities. This proposed rulemaking will provide regulatory relief to 
both large and small volume automobile manufacturers by maintaining 
consistency with California OBD II requirements. This proposed 
rulemaking will have no impact on businesses which manufacture, 
rebuild, distribute, or sell automotive parts, nor those involved in 
automotive service and repair.
    Therefore, as required under section 605 of the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq., I certify that this regulation 
does not have a significant impact on a substantial number of small 
entities.

D. Unfunded Mandates Act

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, or $100 million or more. Under Section 205, EPA 
must select the most cost effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the proposed approval action promulgated 
today does not include a Federal mandate that may result in estimated 
costs of $100 million or more to either State, local, or tribal 
governments in the aggregate, or to the private sector.

E. Electronic Copies of Rulemaking Documents

    Electronic copies of the preamble and the regulatory text of this 
proposed rulemaking are available on the Office of Air Quality Planning 
and Standards (OAQPS) Technology Transfer Network Bulletin Board System 
(TTN BBS). Users are able to access and download TTN BBS files on their 
first call. After logging onto TTN BBS, to navigate through the BBS to 
the files of interest, the user must enter the appropriate command at 
each of a series of menus. The steps required to access information on 
this rulemaking are listed below. The service is free, except for the 
cost of the phone call.
    TTN BBS: 919-541-5742 (1,200-14,400 bps, no parity, eight data 
bits, one stop bit). Voice help: 919-541-5384 Internet address: TELNET 
ttnbbs.rtpnc.epa.gov Off-line: Mondays from 8-12 Noon ET.
    1. Technology Transfer Network Top Menu:  GATEWAY TO TTN 
TECHNICAL AREAS (Bulletin Boards) (Command: T)
    2. TTN TECHNICAL INFORMATION AREAS:  OMS--Mobile Sources 
Information (Command: M)
    3. OMS BBS === MAIN MENU FILE TRANSFERS:  Rulemaking & Reporting 
(Command: K)
    4. RULEMAKING PACKAGES: <7> Inspection and Maintenance (Command: 7)
    5. Inspection and Maintenance Rulemaking Areas: File area #2 On-
Board Diagnostics (Command: 2)
    At this stage, the system will list all available FTP Review files. 
To download a file, select a transfer protocol which will match the 
terminal software on your computer, then set your own software to 
receive the file using that same protocol.

[[Page 55525]]

    If unfamiliar with handling compressed (i.e., ZIP'd) files, go to 
the TTN topmenu, System Utilities (Command: 1) for information and the 
necessary program to download in your computer. After getting the files 
you want onto your computer, you can quit TTN BBS with the oodbye 
command.

List of Subjects in 40 CFR Part 86

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

    Dated: October 20, 1995.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, it is proposed to amend 
part 86 of title 40 of the Code of Federal Regulations as follows:

PART 86--CONTROL OF AIR POLLUTION FROM NEW AND IN-USE MOTOR 
VEHICLES AND NEW AND IN-USE MOTOR VEHICLE ENGINES: CERTIFICATION 
AND TEST PROCEDURES

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

    Authority: Secs. 202, 203, 205, 206, 207, 208, 215, 216, 217, 
and 301(a), Clean Air Act, as amended (42 U.S.C. 7521, 7522, 7524, 
7525, 7541, 7542, 7549, 7550, 7552, and 7601(a)).

Subpart A--[Amended]

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


Sec. 86.094-17  Emission control diagnostic system for 1994 and later 
light-duty vehicles and light-duty trucks.

* * * * *
    (j) Demonstration of compliance with California OBD II requirements 
(Title 13 California Code section 1968.1), as modified pursuant to 
California Mail Out #95-03 (January 19, 1995), shall satisfy the 
requirements of this section through the 1998 model year except that 
compliance with Title 13 California Code section 1968.1(d), pertaining 
to tampering protection, is not required to satisfy the requirements of 
this section.

[FR Doc. 95-27070 Filed 10-31-95; 8:45 am]
BILLING CODE 6560-50-P