[Federal Register Volume 61, Number 170 (Friday, August 30, 1996)]
[Rules and Regulations]
[Pages 45898-45903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21946]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 86

[AMS-FRL-5602-3]
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: Final Rule.

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SUMMARY: This final rulemaking revises requirements associated with on-
board diagnostic (OBD) systems. The federal OBD rulemaking, published 
February 19, 1993, allowed for compliance with California OBD II 
requirements to satisfy federal OBD requirements through the 1998 model 
year. The California Air Resources Board has recently revised their OBD 
II requirements. This rulemaking promulgates appropriate revisions to 
federal OBD regulations such that compliance with the recently revised 
OBD II requirements will satisfy federal OBD. This rulemaking does not 
require that manufacturers comply with OBD II anti-tampering 
provisions. OBD systems in general provide substantial ozone benefits.

EFFECTIVE DATE: This final rule is effective October 29, 1996.

ADDRESSES: Materials relevant to this rulemaking are contained in 
Docket No. A-90-35, and are available for public inspection and 
photocopying between 8 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, or Internet e-mail at 
``[email protected].''

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially regulated by this action are those which 
manufacture new motor vehicles and engines. Regulated categories and 
entities include:

------------------------------------------------------------------------
                                                Examples of regulated   
                 Category                             entities          
------------------------------------------------------------------------
Industry..................................  New motor vehicle and engine
                                             manufacturers.             
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your product is regulated by this action, you should carefully examine 
the applicability criteria in Sec. 86.094-17 of title 40 of the Code of 
Federal Regulations. If you have questions regarding the applicability 
of this action to a particular product, consult the person listed in 
the preceding FOR FURTHER INFORMATION CONTACT section.

Electronic Copies of Rulemaking Documents

    Electronic copies of the preamble and the regulatory text of this 
final rulemaking are available via the Internet on the Office of Mobile 
Sources (OMS) Home Page (http://www.epa.gov/OMSWWW/). Users can find 
OBD related information and documents through the following path once 
they have accessed the OMS Home Page: ``Automobiles,'' ``I/M & OBD,'' 
``On-Board Diagnostics Files.''
    Electronic copies of the preamble and the regulatory text of this 
final

[[Page 45899]]

rulemaking are also 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)
2. TTN TECHNICAL INFORMATION AREAS: OMS--Mobile Sources Information
3. OMS BBS === MAIN MENU FILE TRANSFERS: Rulemaking & Reporting
4. RULEMAKING PACKAGES: Inspection & Maintenance
5. Inspection & Maintenance Rulemaking Areas: File Area #2...On-Board 
Diagnostics

    At this stage, the system will list all available OBD 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.
    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 order to unZIP the files of interest 
after downloading to your computer. After getting the files you want 
onto your computer, you can quit TTN BBS with the oodbye command.

Table of Contents

I. Introduction and Background
II. Requirements of this Final Rulemaking
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 
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.
    On March 23, 1995, EPA published a direct final rule revising 
specific federal OBD provisions, including a provision that would allow 
manufacturers to comply with federal OBD requirements by optionally 
complying with more recent OBD II regulations. 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 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 (60 FR 
37945, July 25, 1995). As a result, the language of the prior final 
rule published on February 19, 1993 (58 FR 9468) allowing compliance 
with California OBD II requirements was reinstated in Sec. 86.094-
17(j). EPA then reproposed the provision allowing manufacturers to meet 
the federal OBD requirements by complying with revised California OBD 
II requirements. The proposal did not, however, require that 
manufacturers meet the anti-tampering provisions in California's OBD II 
regulations. (60 FR 55521, November 1, 1995).

II. Requirements of this Final Rulemaking

    This final 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 preexisting federal regulations had to be 
done according to 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

[[Page 45900]]

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 final 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 #95-34.
    In the proposed rulemaking, EPA proposed allowing 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. In this final 
rulemaking, the applicable OBD II regulations are contained in Mail Out 
#95-34, September 26, 1995. Mail Out #95-34 is identical in content to 
Mail Out #95-03, the only differences being slight editorial changes 
and reference to an updated version of a Society of Automotive 
Engineers (SAE) recommended practice (i.e., SAE J1939) that is not 
applicable to light-duty vehicles or light-duty trucks and therefore is 
not applicable under the provisions of this final rulemaking.
    As a result of this final rule, 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 1995 (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, (footnote: 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) 
except that EPA will not provide deficiency allowances for lack of 
catalyst monitors or oxygen sensor monitors because 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.

III. Public Participation

    On November 1, 1995, EPA published a notice of proposed rulemaking 
(NPRM) which set forth proposed requirements for complying with federal 
OBD regulations by optionally demonstrating compliance with the revised 
California OBD II regulations. On December 13, 1995, a public hearing 
was held. The period for submission of comments on the NPRM was 
scheduled to close on January 16, 1996.
    The comments received in response to the NPRM have not been 
extensive, and concentrate primarily on the issue of anti-tampering 
provisions. More specifically, the comments speak to the 
appropriateness of the anti-tampering provisions contained in the 
California OBD II regulations but intentionally excluded from any 
federal OBD compliance requirements. Comments were also received on the 
allowance of optional OBD II compliance for federal OBD purposes 
indefinitely, rather than through only the 1998 model year.
    Comments were received from original equipment manufacturers, 
automotive aftermarket manufacturers and service providers, and one 
automotive consultant. The comments along with EPA's analyses and 
responses are discussed in the following section. A formal written 
``Response to Comments'' document has not been prepared in association 
with this rulemaking as all pertinent issues are sufficiently discussed 
in this preamble.

IV. Discussion of Issues

A. General Comments on the Proposal

    Summary of Proposal: The proposal allowed demonstration of 
compliance with revised California OBD II requirements (Mail Out #95-
03) as satisfying federal OBD requirements through the 1998 model year.
    Summary of Comments: The American Automobile Manufacturers 
Association (AAMA) fully supports the proposed regulatory action, 
stating that it will help by limiting the burden on manufacturers 
associated with the extremely technologically-challenging development 
of enhanced on-board diagnostic systems. The Association of 
International Automobile Manufacturers (AIAM) also stated its support, 
as did American Suzuki Motor Corporation and Michael Jay Grossman, an 
automotive certification consultant. Each of these commenters also 
stated that EPA should allow compliance against ARB Mail Out #95-34 
rather than Mail Out #95-03, as was proposed.
    Analysis of Comments: EPA agrees that Mail Out #95-34 should be 
used rather than the proposed Mail Out #95-03. Mail Out #95-34 is 
identical in content to Mail Out #95-03, the only differences being 
slight editorial changes (the removal of strikeout and underlined text 
differentiating old from new text) and reference to an updated version 
of a SAE recommended practice (i.e., SAE J1939) that is not applicable 
to light-duty vehicles or light-duty trucks and therefore is not 
applicable under the provisions of this final rulemaking.
    EPA Decision: The final regulatory language will refer to ARB Mail 
Out #95-34.

B. California OBD II Anti-Tampering Provisions

    Summary of Proposal: The proposal allowed demonstration of 
compliance with revised California OBD II requirements (Mail Out #95-
03) as satisfying federal OBD requirements through the 1998 model year, 
except that compliance with the tampering protection provisions of the 
California OBD II requirements was not required to satisfy federal OBD.
    Summary of Comments: Representatives of certain organizations 
within the automotive aftermarket made the following comments: (1) EPA 
should defer any decision in this proceeding until EPA has rendered a 
decision on California's request for a waiver of preemption under 
section 209 for its OBD II regulations; (2) EPA's incorporation of 
California OBD rules is an unlawful delegation of its powers; (3) EPA 
may not certify vehicles containing the anti-tampering devices required 
under the California OBD II regulations, because such devices violate 
sections 202(m) (4) and (5) and 207 of the Act; (4) the anti-tampering 
provisions of the

[[Page 45901]]

California OBD II regulations violate the Semiconductor Chip Protection 
Act; (5) the exclusion of the anti-tampering provisions from this 
rulemaking is inadequate, because as long as the anti-tampering 
regulations are required in California, manufacturers will use such 
devices in all their vehicles; (6) the anti-tampering provisions are 
unnecessary and eliminate competition in the repair of vehicles; (7) 
the anti-tampering provisions of the California OBD II regulations 
impose significant economic impact on the automotive aftermarket.
    AAMA commented that it believes that both EPA and ARB have the 
general legal authority to require anti-tampering measures. Therefore, 
AAMA can see no viable cause for not proceeding with the NPRM as 
proposed.
    Analysis of Comments: (1) Regarding deferment of this rulemaking 
until the OBD waiver proceeding is completed, EPA has been processing 
the OBD waiver final decision at the same time it has been processing 
this final rule. EPA intends to complete the OBD waiver decision either 
prior to, at the same time of, or shortly after, the completion of this 
rule. However, EPA does not believe that the decisions necessary for 
completion of this rulemaking need to be delayed until after the waiver 
decision in completed. As discussed below, the issues raised by the 
aftermarket in this proceeding and the OBD II waiver proceeding are 
more appropriately dealt with in that proceeding, and are not necessary 
for completion of this rulemaking. Should the issues raised by the 
aftermarket be resolved in favor of the automotive aftermarket, that 
resolution will carry over into EPA's broader motor vehicle program, 
including the certification of any vehicle that complies with the 
requirements promulgated in this rulemaking.
    (2) Regarding the contention that EPA has unlawfully delegated its 
powers, EPA disagrees with this allegation. As the comments 
acknowledge, EPA has gone through a complete notice and comment 
rulemaking and found that the regulations that it incorporates today 
are consistent with the Act and that it is reasonable and appropriate 
for EPA to allow manufacturers to meet EPA's requirements by showing 
compliance with California's OBD II regulations, excluding its anti-
tampering provisions. This is not delegation of power, but the 
acknowledgment that other entities besides EPA may devise reasonable 
methods for meeting particular requirements of the Act. These entities 
are not making decisions in place of EPA. EPA's decision to incorporate 
OBD II requirements is independent of California's initial decision to 
require OBD II in California. Commenters' line of reasoning would seem 
to require that EPA purposely ignore any sets of procedures drafted by 
another organization, (e.g., a state or a voluntary industry 
organization like SAE), no matter how reasonable, simply because EPA 
did not think of the procedures first. The restrictions on delegation 
of powers in no way require that result.
    (3 and 4) The comments allege that California's anti-tampering 
provisions violate certain provisions of the Clean Air Act and other 
federal law. The comments, however, never explain why such allegations 
are relevant to this rulemaking. The regulations EPA promulgates today 
explicitly exclude California's anti-tampering provisions from the 
federal requirements. EPA is taking no action in this rulemaking that 
has any effect on manufacturers legal requirement or ability to 
voluntarily equip vehicles with tampering protection measures. To the 
extent manufacturers were permitted to do so prior to this rulemaking, 
they can do so after the rulemaking. To the extent the Clean Air Act 
prevents them from equipping vehicles with tampering protection 
measures, nothing in this rulemaking allows manufacturers to circumvent 
the Clean Air Act's provisions. The issue of whether the California OBD 
II anti-tampering provisions violate the Clean Air Act is simply 
irrelevant to this rulemaking, because this rulemaking does not require 
manufacturers to meet the anti-tampering provisions. As discussed 
above, EPA will be reviewing the comments the aftermarket has provided 
on these issues in the California OBD II waiver proceeding. The 
comments are relevant in that proceeding, at least to a certain extent, 
because in that proceeding, EPA is specifically reviewing the 
consistency of California's OBD II provisions, including the anti-
tampering provisions, with section 202(a) of the Act.
    (5) Regarding whether exclusion of the anti-tampering provisions is 
sufficient for the needs of the commenters, the appropriate issue is 
again whether the comments are relevant to this proceeding. The 
commenters admit in their comments, as well as in a letter to the 
Administrator dated April 30, 1996, that manufacturers will install the 
anti-tampering devices on their vehicles, and in fact are currently 
doing so, even in the absence of these regulations. Thus, the presence 
or absence of these regulations is irrelevant to whether manufacturers 
voluntarily equip vehicles with tampering protection measures. As noted 
above, EPA will deal with the issues raised by commenters in venues 
where such issues are relevant.
    (6 and 7) The practicality, cost, and reasonableness of the anti-
tampering provisions are likewise irrelevant to this proceeding because 
the anti-tampering provisions are not required by this proceeding.
    EPA Decision: The regulatory language need not be changed from that 
proposed, with the exception of reference to ARB Mail Out #95-34 rather 
than #95-03. Should the anti-tampering provisions of the California OBD 
II regulations be deemed unlawful via the waiver process or other 
means, they will be removed from the OBD II regulations by the Air 
Resources Board and certification approval of vehicles containing anti-
tampering measures consistent with those provisions will cease by both 
EPA and ARB.

C. Acceptance of California OBD II Beyond the 1998 Model Year

    Summary of Proposal: The proposal allowed demonstration of 
compliance with revised California OBD II requirements (Mail Out #95-
03) as satisfying federal OBD requirements through the 1998 model year.
    Summary of Comments: Michael Jay Grossman suggested that EPA allow 
small volume manufacturers (<10,000 U.S. sales per year) the optional 
compliance against the California OBD II regulations beyond the 1998 
model year, rather than eliminating this option beginning in the 1999 
model year. Mr. Grossman reasons that such an allowance will present no 
loss of federal OBD program benefits due to the extremely small number 
of small volume manufacturer vehicles in the overall vehicle 
population.
    Analysis of Comments: Mr. Grossman's suggestion was made by several 
commenters during development of the February 1993, federal OBD final 
rulemaking, although the comments then were not necessarily limited to 
small volume manufacturers. The same arguments against such a policy 
apply now as applied then. This alternative was neither proposed by the 
Agency, nor is it an attractive alternative from the Agency's 
perspective. The federal regulations contain enforcement approaches 
consistent with past EPA policies which rely on performance 
evaluations, rather than specific design requirements, to encourage 
innovative control strategies and improvements in technology. Also, 
having effectively two separate regulations mandating the same type of 
program is unnecessarily inefficient to enforce.

[[Page 45902]]

    Further, the current option for California OBD II demonstration 
puts EPA in the position of making mandatory regulatory revisions in 
the event ARB revises the OBD II regulations. EPA regulations cannot 
incorporate a moving target and, therefore, every regulatory revision 
by ARB requires a corresponding revision to federal regulations should 
the ARB revision be deemed appropriate for federal purposes. This is 
evidenced by the reality of today's rulemaking, which is being done 
only because of ARB's recent revisions to OBD II. Upon the effective 
date of today's rulemaking, the federally acceptable OBD II 
requirements will be those in Mail Out #95-34, and will not be those 
contained in any potential future California mail outs pertaining to 
OBD II.
    Barring passage of the National Low Emission Vehicle regulations 
and subsequent agreement among all stakeholders to voluntarily sign 
onto its requirements, EPA can see no reason to go forth with this 
suggestion. EPA sees merit in undertaking efforts to harmonize federal 
OBD requirements with the California OBD II requirements, but will 
explore other potential options as opposed to that suggested by Mr. 
Grossman.
    EPA Decision: EPA will take no action in this final rulemaking to 
accommodate this commenter's suggestion. Therefore, no changes to the 
proposed regulatory language will be made. As a result, through the 
1998 model year, EPA will enforce OBD requirements against either the 
California OBD II requirements as they exist in Mail out #95-34 or the 
federal OBD requirements, depending on the set of requirements to which 
the vehicle has been certified. Beginning with the 1999 model year, 
full compliance with the federal OBD requirements will be required for 
all vehicles covered by this rulemaking. This will assure designs fully 
meeting the goals of the federal OBD program, not only for 
preproduction certification but also during in-use operation.
    As stated, EPA is exploring options to harmonize federal OBD 
requirements with the California OBD II requirements. EPA believes that 
effort will result in harmonized OBD system requirements along with 
enforcement approaches and regulatory philosophies consistent with each 
agency's respective goals. EPA also believes that effort will alleviate 
the concerns expressed by Mr. Grossman.

V. Cost Effectiveness

    This final rulemaking alters an existing provision by allowing 
optional compliance with the most recent ``Revised'' California OBD II 
requirements, as opposed to the November 1992, ``Original'' OBD II 
requirements, for the purposes of federal OBD compliance. With three 
exceptions, the revised OBD II requirements provide regulatory relief 
relative to the original OBD II requirements. Those exceptions are: (1) 
More stringent catalyst monitoring requirements for 1998 model year low 
emission vehicles (LEV), requirements that would not apply to federal 
Tier I vehicles; and, (2) more stringent evaporative emission 
monitoring requirements for 2000 model year vehicles, requirements that 
begin beyond the 1998 model year cutoff of the OBD II compliance 
option; and, (3) more stringent anti-tampering provisions, requirements 
intentionally excluded from federal OBD compliance demonstration. 
Therefore, because this final rulemaking alters an existing provision, 
and that alteration provides regulatory relief, there are no additional 
costs to original equipment manufacturers associated with this specific 
final action.
    The automotive aftermarket industry has stated that the provision 
of this final rulemaking will result in substantial costs to that 
industry. As they argue it, these costs will be incurred because the 
anti-tampering measures required under the California OBD II 
regulations will present more difficulty for the automotive aftermarket 
in carrying out their business of reverse engineering original 
equipment manufacturer (OEM) parts and designing replacement or 
specialty parts. However, the anti-tampering measures are intentionally 
excluded from federal OBD compliance requirements, even when choosing 
the optional OBD II compliance demonstration. Therefore, OEMs are, in 
effect, voluntarily incorporating anti-tampering measures into their 
federal vehicles, and would arguably do so absent the requirement under 
the California OBD II regulation. Consequently, EPA cannot understand 
how the provisions of this final rulemaking are responsible for any 
potential increased costs on the automotive aftermarket, outside those 
costs mandated under the Clean Air Act Amendments of 1990 which require 
all 1994 and later model year vehicles to incorporate OBD systems into 
their designs.
    The costs and emission reductions associated with the federal OBD 
program were developed for the February 19, 1993, final rulemaking. The 
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 final 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

    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this final rule. This rule will 
not have a significant adverse economic impact on a substantial number 
of small businesses. This final rulemaking will provide regulatory 
relief to both large and small volume automobile manufacturers by 
maintaining consistency with California OBD II requirements. It will 
not have a substantial impact on such entities. This final rulemaking 
will not have a significant impact on businesses that manufacture, 
rebuild, distribute, or sell automotive parts, nor those involved in 
automotive service and repair, as the revisions affect only 
requirements on automobile manufacturers.

[[Page 45903]]

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. 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 final 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.

List of Subjects in 40 CFR Part 86

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

    Dated: August 22, 1996.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, part 86 of title 40 of the 
Code of Federal Regulations is amended 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: 42 U.S.C. 7401 et seq.

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.

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    (j) Demonstration of compliance with California OBD II requirements 
(Title 13 California Code Sec. 1968.1), as modified pursuant to 
California Mail Out #95-34 (September 26, 1995), shall satisfy the 
requirements of this section through the 1998 model year except that 
compliance with Title 13 California Code Sec. 1968.1(d), pertaining to 
tampering protection, is not required to satisfy the requirements of 
this section.
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[FR Doc. 96-21946 Filed 8-29-96; 8:45 am]
BILLING CODE 6560-50-P