[Federal Register Volume 68, Number 124 (Friday, June 27, 2003)]
[Rules and Regulations]
[Pages 38428-38461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14461]



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Part II





Environmental Protection Agency





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40 CFR Part 86



Control of Air Pollution From Motor Vehicles and New Motor Vehicle 
Engines; Final Rule

  Federal Register / Vol. 68, No. 124 / Friday, June 27, 2003 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 86

[FRL-7509-8]
RIN 2060-AG13


Control of Air Pollution From Motor Vehicles and New Motor 
Vehicle Engines; Revisions to 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 and 2005 and Later Model Year Heavy-Duty Vehicles and Engines 
Weighing 14,000 Pounds Gross Vehicle Weight or Less

AGENCY: Environmental Protection Agency.

ACTION: Final rulemaking.

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SUMMARY: Today's action finalizes modifications to EPA's Service 
Information regulations for light-duty vehicles and trucks, including 
requiring Original Equipment Manufacturers (OEMs) to: make full text 
emissions-related service information and training information 
available via the World Wide Web; provide equipment and tool companies 
with information that allows them to develop equipment with pass-
through reprogramming capabilities; make available enhanced diagnostic 
information to equipment and tool companies; make available OEM-
specific diagnostic tools for sale to interested parties and; make 
available additional OBD technical information that OEMs must provide. 
In addition, today's final rule extends the availability of emission-
related service information to heavy-duty engines and vehicles weighing 
14,000 pounds or less beginning in the 2005 model year.

DATES: This final rule takes effect on August 26, 2003. The 
incorporation by reference of certain publications listed in the rule 
is approved August 26, 2003.

ADDRESSES: All comments and materials relevant to this rulemaking are 
contained in EPA Air Docket No. A-2000-49 at the following address: EPA 
Docket Center (EPA/DC), Public Reading Room, Room B102, EPA West 
Building, 1301 Constitution Avenue, NW., Washington DC. The EPA Docket 
Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, except on government holidays. You can reach the 
Reading Room by telephone at (202) 566-1742, and by facsimile at (202) 
566-1741. The telephone number for the Air Docket is (202) 566-1742. 
You may be charged a reasonable fee for photocopying docket materials, 
as provided in 40 CFR part 2.

FOR FURTHER INFORMATION CONTACT: Holly Pugliese, Certification and 
Compliance Division, U.S. Environmental Protection Agency, 2000 
Traverwood, Ann Arbor, Michigan 48105, Telephone 734-214-4288, Internet 
e-mail ``[email protected].''

SUPPLEMENTARY INFORMATION:

Regulated Entities

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

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                                    NAICS Codes   SIC codes
             Category                   \1\          \2\          Examples of potentially regulated entities
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Industry..........................       336111         3711  Motor Vehicle Manufacturers.
                                         336112
                                         336120
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\1\ North American Industry Classification System (NAICS)
\2\ Standard Industrial Classification (SIC) system code.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities 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.  86.099-17 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.

Obtaining Rulemaking Documents Through the Internet

    The preamble, regulatory language and regulatory support documents 
are also available electronically from the EPA Internet Web site. This 
service is free of charge, except for any cost you already incur for 
Internet connectivity. The official EPA version is made available on 
the day of publication on the primary Web site listed below. The EPA 
Office of Transportation and Air Quality also publishes these notices 
on the secondary Web site listed below.
    (1) http://www.epa.gov/docs/fedrgstr/EPA-AIR/ (either select 
desired date or use Search feature)
    (2) http://www.epa.gov/OTAQ/ (look in ``What's New'' or under the 
specific rulemaking topic)
    Please note that due to differences between the software used to 
develop the document and the software into which the document may be 
downloaded, changes in format, page length, etc. may occur.

Table of Contents

I. What is the Important Background Information for This Final Rule?
II. What are the Requirements of This Final Rule?
    A. What Information is Required to be Made Available by OEMs 
Under this Final Rule?
    B. What are the Requirements for Web-based Delivery of the 
Required Information Under This Final Rule?
    C. What Provisions are Being Finalized for Service Information 
for Third Party Information Providers?
    D. What Requirements are Being Finalized for the Availability of 
Training Information?
    E. What Requirements are Being Finalized for the Reprogramming 
of Pre-SAE J2534 Model Year Vehicles?
    F. What Requirements are Being Finalized for Reprogramming of 
Vehicles with SAE J2534?
    G. What Requirements are Being Finalized for the Availability of 
Reprogramming Capabilities from OEM Dealerships?
    H. What Requirements are Being Finalized for the Availability of 
Enhanced Information for Scan Tools for Equipment and Tool 
Companies?
    I. What Requirements are Being Finalized for the Availability of 
OEM-Specific Diagnostic Scan Tools and Other Special Tools?
    J. Which Reference Materials are Being Finalized for 
Incorporation by Reference?
    K. What Requirements are Being Finalized for the Availability of 
Heavy-duty Service Information?
III. What is the Cost of this Final Rule?
IV. What Were the Opportunities for Public Participation?
V. What Were the Major Comments Received on Proposed Rule?
VI. What are the Administrative Requirements for this Final Rule?

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    A. EO 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Children's Health Protection
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

I. What Is the Important Background Information for This Final Rule?

    Section 202(m)(5) of the CAA directs EPA to promulgate regulations 
requiring OEMs 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 August 9, 1995, EPA published a final rulemaking (60 FR 40474) 
which set forth the Agency's service information regulations. These 
regulations, in part, required each Original Equipment Manufacturer 
(OEM) to do the following: (1) List all of its emission-related service 
and repair information on a Web site called FedWorld (including the 
cost of each item and where it could be purchased); (2) either provide 
enhanced information to equipment and tool companies or make its OEM-
specific diagnostic tool available for purchase by aftermarket 
technicians, and (3) make reprogramming capability available to 
independent service and repair professionals if its franchised 
dealerships had such capability. These requirements were intended to 
ensure that aftermarket service and repair facilities have access to 
the same emission-related service information, in the same or similar 
manner, as that provided by OEMs to their franchised dealerships.
    Industry estimates indicate that independent technicians perform up 
to 80% of all vehicle service and repairs. Further, independent 
technicians perform more repairs on older vehicles (which are more 
likely than newer vehicles to have high emissions) than technicians in 
franchised dealerships. These conclusions are confirmed by statistics 
issued from the Motor and Equipment Manufacturers Association 
(Automotive Industry Status Report, 1999. EPA Air Docket A-2000-49, 
item II-F-05) that (1) the level of excess emissions increases as a 
vehicle's mileage increases, and (2) the percentage of non-dealer 
repairs increased and dealer repairs decreased as a vehicle's mileage 
increased and warranty coverage is no longer an issue.
    In addition, OEM comments submitted during the comment period for 
the prior service information proposal (56 FR 48278, September 24, 
1991) spoke to the integral role aftermarket technicians play in 
servicing the approximately 200 million vehicles in use. Many OEMs 
indicated that the number of service bays in their franchised 
dealerships are inadequate to service their fleets of vehicles and that 
they depend on aftermarket technicians to provide service for their 
customers' vehicles, especially for those vehicles out of warranty (See 
``Response to Comments'' document for the August 1995 Final Rule, 
Docket A-90-35, Item V-C-02). This further highlights the need for 
independent technicians to have access to timely and appropriate 
emission-related repair and service information.
    Since 1995, the Agency has gained experience in the implementation 
of the service information requirements. Additionally, changing 
technology has made it necessary to revisit the current requirements to 
take advantage of advanced technology.
    As a result of our experience in implementing the 1995 regulations, 
EPA proposed revisions to those regulations on June 8, 2001 (66 FR 
30830). The proposal highlighted several main areas for revision. 
First, we proposed that OEMs make full text emissions-related service 
information available via the World Wide Web. Second, we proposed that 
OEMs provide equipment and tool companies with information that allows 
them to develop pass-through reprogramming tools. Third, we proposed 
that OEMs make available enhanced diagnostic information to equipment 
and tool manufacturers and to make available OEM-specific diagnostic 
tools for sale. In addition, we proposed extending the service 
information requirements to the availability of emission-related 
service information for heavy-duty vehicles up to 14,000 pounds.
    Today's final regulations are intended to preserve freedom of 
choice by consumers in where to have their vehicles serviced.

II. What Are the Requirements of This Final Rule?

A. What Information Is Required To Be Made Available by OEMs Under This 
Final Rule?

    Today's action finalizes a provision that requires OEMs to make 
available 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 systems and any information for making emission-related 
repairs, including any emissions-related information that is provided 
by the OEM to franchised dealers. This information includes, but is not 
limited to, the following:
    (1) Manuals, technical service bulletins (TSBs), diagrams, and 
charts (the provisions for training materials, including videos and 
other media are discussed in Section IIIB).
    (2) A general description of the operation of each monitor, 
including a description of the parameter that is being monitored.
    (3) A listing of all typical OBD diagnostic trouble codes 
associated with each monitor.
    (4) A description of the typical enabling conditions for each 
monitor to execute during vehicle operation, including, but not limited 
to, minimum and maximum intake air and engine coolant temperature, 
vehicle speed range, and time after engine startup.
    (5) A listing of each monitor sequence, execution frequency and 
typical duration.
    (6) A listing of typical malfunction thresholds for each monitor.
    (7) For OBD parameters that deviate from the typical parameters, 
the OBD description shall indicate the deviation for the vehicles it 
applies to and provide a separate listing of the typical values for 
those vehicles.
    (8) Identification and scaling information necessary to interpret 
and understand data available to a generic scan tool through ``mode 
6,'' pursuant to Society of Automotive Engineers SAE J1979, EE 
Diagnostic Test Modes.
    (9) Any information related to the service, repair, installation or 
replacement of parts or systems developed by third party (Tier 1) 
suppliers for OEMs, to the extent they are made available to franchise 
dealerships.
    (10) Any information on other systems that can directly effect the 
emission system within a multiplexed

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system (including how information is sent between emission-related 
system modules and other modules on a multiplexed bus),
    (11) Any information regarding any system, component, or part of a 
vehicle monitored by the OBD system that could in a failure mode cause 
the OBD system to illuminate the malfunction indicator light (MIL).
    (12) Any other information relevant to the diagnosis and completion 
of an emissions-related repair. This information includes, but is not 
limited to, information needed to start the vehicle when the vehicle is 
equipped with an anti-theft or similar system that disables the engine 
described below in paragraph (13). This information also includes any 
OEM-specific emissions-related diagnostic trouble codes (DTCs) and any 
related service bulletins, trouble shooting guides, and/or repair 
procedures associated with these OEM-specific DTCs.
    (13) OEMs shall make available computer or anti-theft system 
initialization information necessary for the proper installation of on-
board computers on motor vehicles that employ integral vehicle security 
systems or the repair or replacement of any other emission-related 
part. OEMs are not required to make this information available on the 
OEM's Web site unless they choose to do so. However, the OEM's Web site 
shall contain information on alternate means for obtaining the 
information and/or ability to perform reintialization. Beginning with 
the 2008 model year, we require that all OEM systems will be designed 
in such a way that no special tools or processes will be necessary to 
perform re-initialization. In other words, EPA expects that the re-
initialization of vehicles can be completed with generic aftermarket 
tools, a pass-through device, or an inexpensive OEM-specific cable. 
This model year cut-off is consistent with the requirement to complete 
the phase-in of the SAE J2284-3 CAN requirement as discussed in section 
18 of this document. An OEM may request Administrator approval for an 
alternative means to re-initialize vehicles for some or all model years 
through the 2007 model year. The complete regulatory requirements for 
requesting approval can be found in Sections 86.096-38(g)(6) and 
86.1808-01(f)(6).
    Information for making emission-related repairs does not include 
information used to design and manufacture parts, but may include OEM 
changes to internal calibrations, and other indirect information, as 
discussed below.
    We also believe that OEMs are accountable for the accuracy of their 
service information, for both their dealerships and the aftermarket 
repair industry. Moving toward Internet-based delivery of service 
information should increase the ability of OEMs to more quickly respond 
to errors in their service information and provide updates to the 
required information for all interested parties in a timely manner.

B. What Are the Requirements for Web-Based Delivery of the Required 
Information Under This Final Rule?

1. OEM Web Sites
    Today's action finalizes a provision that requires OEMs to make 
available in full-text all of the information outlined above, on 
individual OEM Web sites. The only exceptions to the full-text 
requirements are training information, anti-theft information, and 
indirect information. Provisions for the availability of training 
information is discussed in section II(D) of this document. Provisions 
for the availability of anti-theft information is discussed in section 
II.A(13). Provisions regarding indirect information are discussed in 
section II.E through II.I of this document. OEM Web sites must be 
launched six months after the date of publication of this rulemaking. 
OEMs may request from the Administrator up to an additional six months 
to launch their Web sites.
2. Timeliness and Maintenance of Information on OEM Web Sites
    Today's action finalizes a provision that requires OEMs to make 
available the required information on their Web site within six months 
of model introduction. After this six month period, the required 
information for each model must be available and updated on the OEM Web 
site at the same time it is available by any means to their dealers.
    EPA is also finalizing a provision that, beginning with the 1996 
model year, OEMs maintain the required information in full text for at 
least 15 years after model introduction. After this fifteen-year 
period, OEMs can archive the required service information, but it must 
be made available upon request, in a format of the OEM's choice (e.g. 
CD-ROM).
3. Accessibility, Reporting and Performance Requirements for OEM Web 
Sites
    (a) Accessibility Requirements. EPA is finalizing the following 
provisions for accessibility to OEM Web sites. Each OEM shall:
    (1) Provide users with a description of the minimum computer 
hardware and software needed by the user to access that OEM's 
information (e.g., computer processor speed and operating system 
software). This description shall appear when users first log-on to the 
home page of the OEM's Web site.
    (2) Allow the user to search the OEM Web site by various topics 
including but not limited to model, model year, key words or phrases, 
etc., while allowing ready identification of the latest vehicle 
calibration. OEMs who do not use model year to classify their vehicles 
in their service information may use an alternate vehicle delineation 
such as body series. Any OEM utilizing this flexibility shall create a 
cross-reference to the corresponding model year and provide this cross-
reference on the OEM Web site home page.
    (3) Provide accessibility using common, readily available software 
and shall not require the use of proprietary software, hardware, 
viewers, or browsers. The OEM Web site shall also provide hyperlinks to 
any plug-ins, viewers or browsers (e.g. Adobe Acrobat or Netscape) 
needed to access the OEM Web site.
    (4) Allow access to the OEM Web sites with no limits on the modem 
speed by which aftermarket service providers or other interested 
parties can connect to the OEM Web site.
    (b) Performance and Reporting Requirements. Today's action 
finalizes a provision that requires OEMs to report on the performance 
of their Web sites. OEMs shall monitor the following parameters:
    (1) Total successful requests (measured in number of files 
including graphic interchange formats (GIFs) and joint photographic 
expert group (JPEG) images, i.e., electronic images such as wiring or 
other diagrams or pictures). This is defined as the total successful 
request counts of all the files which have been requested, including 
pages, graphics, etc.
    (2) Total failed requests (measured in number of files). This is 
defined as the total failed request counts of all the files which were 
requested but failed because they could not be found or were read-
protected. This includes pages, graphics, etc.
    (3) Average data transferred per day (measured by bytes). This is 
defined as average amount of data transferred per day from one place to 
another.
    (4) Daily Summary (measured in number of files/pages by day of 
week). This is defined as the total number of requests each day of the 
week, over the time period given at the beginning of the report.

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    (5) Daily report (measured in number of files/pages by the day of 
the month). This is defined as how many requests there were in each day 
of a specific month.
    (6) Browser Summary (measured in number of files/pages by browser 
type, i.e., Netscape, Internet Explorer). This is defined as the 
versions of a browser by vendor.
    (7) Any other information deemed necessary by the Administrator to 
determine the adequacy of an OEM Web site.
    OEMs may request Administrator approval to report on parameters 
other than those described above if the OEM can demonstrate that those 
alternate parameters will provide sufficient and similar information 
for EPA to effectively evaluate the OEM Web site.
    EPA will work with OEMs and issue further guidance regarding 
requirements to outline a consistent format and timing of submission.
    Performance reports will be submitted to the Administrator annually 
or upon request by the Administrator. EPA will issue additional 
direction in the form of official manufacturer guidance to further 
specify the process for submitting reports to the Administrator.
    In addition, EPA is finalizing a provision that requires OEMs to 
launch Web sites that meet the following performance criteria:
    (1) OEM Web sites shall possess sufficient server capacity to allow 
ready access by all users and have sufficient downloading capacity to 
assure that all users may obtain needed information without undue 
delay;
    (2) Broken Web links shall be corrected or deleted weekly;
    (3) Web site navigation does not require a user to return to the 
OEM home page or a search engine in order to access a different portion 
of the site.
4. Structure and Cost of OEM Web Sites
    In addition to the requirements described above in section II.3, 
OEMs shall also establish a three-tiered approach for the access to 
their Web-based service information. These three tiers include, but are 
not limited to short-term, mid-term, and long-term access to the 
required information.
    (1) Short-Term Access. OEMs shall provide short-term access for a 
period of 24-72 hours whereby an aftermarket service provider will be 
able to access that OEM's Web site, search for the information they 
need, and purchase and/or print it for a set fee.
    (2) Mid-Term Access. OEMs shall provide mid-term access for a 
period of 30 days whereby an aftermarket service provider will be able 
to access that OEM's Web site, search for the information they need, 
and purchase and/or print it for a set fee.
    (3) Long-Term Access. OEMs shall provide long-term access for a 
period of 365 days whereby an aftermarket service provider will be able 
to access that OEM's Web site, search for the information they need, 
and purchase and/or print it for a set fee.
    In addition, for each of the tiers, OEMs are required to make their 
entire site accessible for the respective period of time and price. In 
other words, an OEM may not limit any or all of the tiers to just one 
make or one model.
    EPA is not finalizing a provision that would require OEM's to allow 
for the downloading of information from their sites.
    With regard to the issue of cost, EPA will not be finalizing any 
price caps for access to each of the tiers described above. However, 
prior to the official launch of OEM Web sites, each OEM will be 
required to present to the Administrator a specific outline of what 
will be charged for access to each of the tiers. OEMs must justify 
these charges, and submit to the Administrator information on the 
following parameters, which include but are not limited to, the 
following:
    1. The price the manufacturer currently charges their branded 
dealers for service information. At a minimum, this must include the 
direct price charged that is identified exclusively as being for 
service information, not including any payment that is incorporated in 
other fees paid by a dealer, such as franchise fees. In addition, the 
manufacturer must describe the information that is provided to dealers, 
including the nature of the information (e.g., the complete service 
manual), etc.; whether dealers have the option of purchasing less than 
all of the available information, or if purchase of all information is 
mandatory; the number of branded dealers who currently pay for this 
service information; and whether this information is made available to 
any persons at a reduced or no cost, and if so, identification of these 
persons and the reason they receive the information at a reduced cost.
    2. The price the manufacturer currently charges persons other than 
branded dealers for service information. The manufacturer must describe 
the information that is provided, including the nature of the 
information (e.g., the complete service manual, emissions control 
service manual), etc.; and the number of persons other than branded 
dealers to whom the information is supplied.
    3. The estimated number of persons to whom the manufacturer would 
be expected to provide the service information following implementation 
of today's requirements. If the manufacturer is proposing a fee 
structure with different access periods (e.g., daily, monthly and 
annual periods), the manufacturer must estimate the number of users who 
would be expected to subscribe for the different access periods.
    A complete list of the criteria for establishing reasonable cost 
can be found in sections 86.094-38, paragraph (g)(7) and 86.1808-01, 
paragraph (f)(7) of the regulatory language for this final rule. 
Subsequent to the launch of the OEM Web sites, OEMs are required to 
notify the Administrator upon the increase in price of any one or all 
of the tiers of twenty percent or more accounting for inflation or that 
sets the charge for end-user access over the established price 
guidelines discussed above, including a justification based on the 
criteria for reasonable cost as established by this regulation.
5. Hyperlinking To and From OEM Web Sites
    Today's action finalizes a provision that requires OEMs to allow 
direct simple hyperlinking to their Web sites from government Web sites 
and from all automotive-related Web sites, such as aftermarket service 
providers, educational institutions, and automotive associations.
6. Administrator Access to OEM Web Sites
    Today's action finalizes a provision that requires that the 
Administrator shall have access to each OEM Web site at no charge to 
the Agency. The Administrator shall have access to the site, reports, 
records and other information as provided by sections 114 and 208 of 
the Clean Air Act and other provisions of law.
7. Information for Pre-1996 Model Years on OEM Web Sites
    Today's action finalizes a provision that each OEM shall index 
their available information for model years 1994 and 1995 with a title 
that adequately describes the contents of the document to which it 
refers. OEMs may develop a system that allows interested parties to 
order this information directly from their Web site, or another Web 
site hyperlinked to the OEM Web site. Any OEM who does not develop such 
a system must list a phone number and address where aftermarket service 
providers can call or write to obtain the desired information. OEMs 
must also

[[Page 38432]]

provide the price of each item listed, as well as the price of items 
ordered on a subscription basis. To the extent that any additional 
information is added or changed for these model years, OEMs shall 
update the index as appropriate. OEMs will be responsible for ensuring 
that their information distributors do so within one regular business 
day of receiving the order. Items that are less than 20 pages (e.g. 
technical service bulletins) shall be faxed to the requestor and 
distributors are required to deliver the information overnight if 
requested and paid for by the ordering party. Archived information must 
be made available upon demand at a fair and reasonable price.
8. Other Media
    We are finalizing this provision as proposed which requires OEMs to 
make available for ordering the required information in some format 
approved by the Administrator directly from their Web site after the 
required full-text window of 15 years has expired. Each OEM shall index 
their available information with a title that adequately describes the 
contents of the document to which it refers. In the alternate, OEMs may 
allow for the ordering of information directly from their Web site, or 
from a Web site hyperlinked to the OEM Web site. OEMs are required to 
list a phone number and address where aftermarket service providers can 
call or write to obtain the desired information. OEMs must also provide 
the price of each item listed, as well as the price of items ordered on 
a subscription basis. To the extent that any additional information is 
added or changed for these model years, OEMs shall update the index as 
appropriate. OEMs will be responsible for ensuring that their 
information distributors update information within one regular business 
day of receiving the updated information for the index. Items are less 
than 20 pages (e.g. technical service bulletins) shall be faxed to the 
requestor and distributors are required to deliver the information 
overnight if requested and paid for by the ordering party.
9. Small Volume Provisions for OEM Web Sites
    Today's action finalizes a provision that requires OEMs who are 
issued certificates of conformity with annual sales of less than one 
thousand vehicles are exempt from the full-text Internet requirements, 
provided they present to the Administrator and obtain approval for an 
alternative method by which emissions-related information can be 
obtained by the aftermarket or other interested parties.
    These small-volume flexibilities are limited to the distribution 
and availability of service information via the World Wide Web under 
paragraph (3) of the regulations. All OEMs, regardless of volume, must 
comply with all other provisions as finalized in this rulemaking.
C. What Provisions Are Being Finalized for Service Information for 
Third Party Information Providers?
    Today's action finalizes a provision that will require OEMs who 
currently have, or in the future engage in, licensing or business 
arrangements with third party information providers, as defined in the 
regulations, to provide information to those parties in an electronic 
format in English that utilizes non-proprietary software. Because of 
the timing of the finalization of this rule, information will have 
already been transmitted to third party information providers for the 
2002, and probably the 2003 model years. Therefore, this provision 
applies to information for models 2004 and later. Any OEM licensing or 
business arrangements with third party information providers are 
subject to fair and reasonable cost requirements. We expect that OEMs 
will develop pricing structures for access to this information that 
make it affordable to any third party information providers with which 
they do business.

D. What Requirements Are Being Finalized for the Availability of 
Training Information?

1. Purchase of Training Materials for OEM Web Sites
    Today's action finalizes two provisions for access to OEM training 
on OEM Web sites. First, OEMs will be required to make available for 
purchase on their Web sites the following items: training manuals, 
training videos, and interactive, multimedia CD's or similar training 
tools available to franchised dealerships. Second, we are finalizing a 
provision that OEMs who transmit emissions-related training via 
satellite or the Internet must tape these transmissions and make them 
available for purchase on their Web sites within 30 days after the 
first transmission to franchised dealerships. Further, all of the items 
included in this provision must be shipped within 24 hours of the order 
being placed and are to be made available at a reasonable price. We 
understand OEM concerns about the potential for increased demand of OEM 
training materials once the indices are posted on Web sites. Therefore, 
we will also finalize a provision that will allow for an exception to 
the 24 hour shipping requirement in those circumstances where orders 
exceed supply and additional time is needed by the distributor to 
reproduce the item being ordered. These requirements apply for 1996 and 
later model year vehicles starting 4 months following the effective 
date of the Final Rule. For subsequent model years, the required 
information must be made available for purchase within three months of 
model introduction, and then be made available at the same time it is 
made available to franchised dealerships.
2. Third Party Access to OEM Training Material
    We will finalize a provision that will require OEMs who utilize 
Internet and satellite transmissions to present emissions-related 
training to their dealerships to make these same transmissions 
available to third party training providers. In this way, we believe we 
are providing at least one opportunity for aftermarket technicians to 
receive similar emissions-related training information as provided to 
dealerships, thus furthering the goals and letter of section 202(m)(5). 
This requirement only requires OEMs to provide the same information to 
legitimate aftermarket training providers as is provided to dealerships 
and aftermarket service providers. It is not a requirement to license 
OEM copyrighted materials to these entities.
    OEMs may take reasonable steps to protect their copyright to the 
extent some or all of this material may be copyrighted and may refuse 
to do business with any party that does not agree to such steps. 
However, we do expect OEMs to use fair business practices in its 
dealings with these third parties, in keeping with the ``fair and 
reasonable price'' requirements in these regulations. OEMs may not 
charge unreasonable up-front fees for access to these transmissions, 
but OEMs may require a royalty, percentage or other arranged fee based 
limits on a per-use or enrollment subscription basis.

E. What Requirements Are Being Finalized for the Reprogramming of Pre-
SAE J2534 Model Year Vehicles?

    Today's action finalizes a provision that allows OEMs to use J2534 
technology on 1996 through 2003 model year vehicles as long as OEMs 
make all necessary additional hardware (i.e. cables) available for sale 
at a fair and reasonable price to the aftermarket to allow for the 
reprogramming of these vehicles. OEMs must make this additional 
hardware available for sale independently and cannot require the 
purchase of their OEM specific scan tool

[[Page 38433]]

in order to receive this additional hardware. If an OEM cannot 
retroactively implement the SAE J2534 pass-through reprogramming 
solution with or without special cables, they must make available to 
equipment and tool companies any information needed to develop 
aftermarket equivalents of their OEM-specific reprogramming hardware 
and software. This information must be provided to allow equipment and 
tool manufacturers to develop hardware and software equivalents to 
enhanced OEM scan tools. A full description of the information that 
must be provided under this scenario is described in sections 86.096-
38g(11) and 86.1808-01(f)(11) of the regulatory language for this 
rulemaking.

F. What Requirements Are Being Finalized for Reprogramming of Vehicles 
With SAE J2534?

    EPA will finalize a provision that will require OEMs to comply with 
SAE J2534 for pass-through reprogramming beginning with model year 
2004.We will also finalize a provision that will require that 
reprogramming information be made available within one month after the 
effective date of the final rule for existing model years and within 3 
months of vehicle introduction for new models. Any OEM who cannot 
comply with SAE J2534 in model year 2004 may request one year 
additional lead time from the Administrator.

G. What Requirements Are Being Finalized for the Availability of 
Reprogramming Capabilities From OEM Dealerships?

    EPA will not finalize a provision that would require OEMs to make 
reprogramming services available to aftermarket service providers in a 
timely manner and a reasonable cost via their dealerships.

H. What Requirements Are Being Finalized for the Availability of 
Enhanced Information for Scan Tools for Equipment and Tool Companies?

1. Description of Information That Must Be Provided
    Today's action finalizes a provision that requires the OEMs to make 
available to equipment and tool companies all generic and enhanced 
information, including bi-directional control and data stream 
information.In addition, OEMs must make available the following 
information:
    (a) The physical hardware requirements for data communication (e.g. 
system voltage requirements, cable terminals/pins, connections such as 
RS232 or USB, wires, etc.)
    (b) ECU data communication (e.g. serial data protocols, 
transmission speed or baud rate, bit timing requirements, etc.),
    (c) Information on the application physical interface (API) or 
layers. (i.e., processing algorithms or software design descriptions 
for procedures such as connection, initialization, and termination)
    (d) Vehicle application information or any other related service 
information such as special pins and voltages or additional vehicle 
connectors that require enablement and specifications for the 
enablement.
    (e) Information that describes which interfaces, or combinations of 
interfaces, from each of the categories as described in paragraphs 
(g)(12)(vii)(A) through (D) of the regulatory language.
2. Distribution of Enhanced Diagnostic Information
    Today's action finalizes a provision that will require the above 
information for generic and enhanced diagnostic information be provided 
to aftermarket tool and equipment companies with whom appropriate 
licensing, contractual, and confidentiality agreements have been 
arranged. This information shall be uploaded in electronic format using 
common document formats such as Microsoft Excel, Adobe Acrobat, 
Microsoft Word, etc. Further, any OEM licensing or business 
arrangements with equipment and tool companies are subject to a fair 
and reasonable cost determination.

I. What Requirements Are Being Finalized for the Availability of OEM-
Specific Diagnostic Scan Tools and Other Special Tools?

1. Availability of OEM-Specific Diagnostic Scan Tools
    Today's action finalizes a provision that OEMs must make available 
for sale to interested parties the same OEM-specific scan tools that 
are available to franchised dealerships, except as discussed below. 
These tools shall be made available at a fair and reasonable price. 
These tools shall also be made available in a timely fashion either 
through the OEM Web site or through an OEM-designated intermediary.
2. Decontenting of OEM-Specific Diagnostic Scan Tools
    Today's action finalizes a provision that requires OEMs who opt to 
remove non-emissions related content from their OEM-specific scan tools 
and sell them to the persons specified in paragraph (g)(2)(i) and 
(f)(2)(i) of the regulatory language for this final rule shall adjust 
the cost of the tool accordingly lower to reflect the decreased value 
of the scan tool.All emissions-related content that remains in the OEM-
specific tool shall be identical to the information that is contained 
in the complete version of the OEM-specific tool. Any OEM who wishes to 
implement this option must request approval from the Administrator 
prior to the introduction of the tool into commerce.
3. Availability of Special Tools
    Today's action finalizes a provision that precludes OEMs from using 
special tools to extinguish the malfunction indicator light (MIL) 
beginning with model year 2004. For model years 1994 through 2003, OEMs 
who currently require such tools to extinguish the MIL must release the 
necessary information to equipment and tool companies to design a 
comparable generic tool. This information shall be made available no 
later than one month following the effective date of the Final Rule.

J. Which Reference Materials Are Being Finalized for Incorporation by 
Reference?

    Today's action will finalize a provision requiring that OEMs comply 
with the following SAE Recommended Practices.
    (1) SAE Recommended Practice J1930 (Revised, May, 1998), 
``Electrical/Electronic Systems Diagnostic Terms, Definitions, 
Abbreviations, and Acronyms'' beginning with the 2003 model year.
    (2) SAE Recommended Practice J1979 (September, 1997), ``EE 
Diagnostic Test Modes'' Manufacturers shall comply with J1979 beginning 
with Model Year 2004.
    (3) SAE Recommended Practice J2284-3 (May, 2001), ``High Speed CAN 
(HSC) for Vehicle Applications at 500 KBPS.'' For purposes of 
consistency with CARB requirements for CAN, we will finalize a 
provision that allows for the use of CAN beginning in the 2003 model 
year, with complete implementation required by the 2008 model year.
    (4) SAE Recommended Practice J2534 (February, 2002), ``Recommended 
Practice for Pass-Thru Vehicle Reprogramming''. EPA will require that 
OEMs comply with SAE J2534 beginning with the 2004 model year.
    These documents have been approved for Incorporation by Reference 
by the Office of the Federal Register on August 26, 2003. A copy of the 
approval can be found in EPA Air Docket A-2000-49,

[[Page 38434]]

Item  IV-H-05. Copies of the SAE documents are also available 
for viewing in EPA Air Docket A-2000-49.

K. What Requirements Are Being Finalized for the Availability of Heavy-
Duty Service Information?

    Today's action will finalize a provision that requires that OEMs of 
heavy-duty vehicles and engines up to 14,000 pounds GVW that are 
subject to OBD requirements meet the service information requirements 
beginning with model year 2005.
    We will not extend these requirements to heavy-duty vehicles above 
14,000 pounds at this time, because such vehicles are not subject to 
OBD requirements and because the differences between the service 
industry for such trucks make extension of the regulations for such 
trucks inappropriate without significant further discussion.

III. What Is the Cost of This Final Rule?

    This Final Rulemaking alters existing provisions by revising the 
current service information regulations. The provisions finalized in 
today's rulemaking require OEMs to make available information and tools 
that have already been developed for use by their dealerships. 
Therefore, EPA believes that the changes finalized today put little or 
no new additional requirements on OEMs beyond administrative costs for 
providing access to existing information and tools, which are 
recoverable to the OEM as discussed below in Section V.D and in the 
Summary and Analysis of Comments.

IV. What Were the Opportunities for Public Participation?

    On July 25, 2001, a public hearing was held. The public comment 
period was open until August 25, 2001. Comments were received from OEMs 
and their associations, aftermarket service providers 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 contained in EPA Air Docket A-2000-49, Item V-C-
01.

V. What Were the Major Comments Received on the Proposed Rule?

    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 Summary and Analysis of Comments document prepared for 
this final rule and included in the docket noted earlier. Also in the 
Summary and Analysis of Comments document is consideration of other 
issues whose resolution is reflected in this final rule.

A. Required Information

(1) Summary of Proposal
    EPA proposed in its general requirements in paragraph (2) of the 
regulations that OEMs shall furnish or cause to be furnished to service 
and repair facilities ``any and all information needed to make use of 
the on-board diagnostic system and such other information, including 
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 * * *'' EPA 
proposed in paragraph (5) of the regulations a specific list of the 
information that OEMs would be required to make available on their OEM-
specific Web sites. In particular, EPA proposed to require the 
availability of OBD generic drive cycle information, component 
operating ranges, and system logic flow diagrams.
(2) Summary of Comments
    With regard to OBD generic drive cycles, the Alliance of Automobile 
Manufacturers (the Alliance), the Association of International 
Automobile Manufacturers (AIAM), and BMW commented that the term ``OBD 
generic drive cycle information was not defined in the proposal. They 
are also concerned about operating the vehicle safely when attempting 
to ensure the monitors operated. The Alliance and AIAM commented that 
OEMs have agreed to provide a drive cycle for each major monitor, which 
should provide sufficient information to allow a service provider to 
determine if the monitors have been run over the drive cycle specified 
for that monitor. Further, the Alliance and AIAM commented that a 
service provider could operate all of the individual monitors over all 
of the cycles provided to ensure that all of the monitors have 
operated.
    Several aftermarket service providers commented that both vehicle 
specific and generic OBD drive cycles be made available.
    The Speciality Equipment Manufacturers Association (SEMA) commented 
that it is in the best interest of consumers and independent service 
providers for drive cycle information to be provided by each OEM. SEMA 
also commented that drive cycle information is necessary to set 
inspection and maintenance (I/M) readiness codes and therefore is 
crucial information for customer convenience and acceptance of OBD 
checks in I/M lanes. Additionally, SEMA commented that they do not 
agree with OEM comments that drive cycles should only be made available 
for each monitor. SEMA commented that it is necessary for each OEM to 
provide a consolidated drive cycle to reliably set all readiness codes 
in addition to providing generic drive cycles for each monitor.
    The Equipment and Tool Institute (ETI) commented that they agree 
with the Alliance and AIAM recommendation that EPA revise the language 
to refer to monitor specific generic drive cycle versus an overall 
generic drive cycle.
    With regard to OBD system operational information, the Alliance and 
AIAM commented extensively on EPA's proposal to make available OBD 
system operational information. First, the Alliance and AIAM commented 
that EPA's claims that some OEMs do not make adequate OBD information 
available to the aftermarket is unsubstantiated. The Alliance and AIAM 
further commented that OEMs have ``huge motivation'' to ensure that 
their service information meets the needs of both the dealership and 
the aftermarket. Second, the Alliance and AIAM commented that the Clean 
Air Act does not give EPA the authority to dictate the content of OEM 
service information. The Alliance and AIAM further commented that OEMs 
make available to the aftermarket all of the diagnostic information 
that is made available to their dealers which has been structured in 
such a way to lead service technicians through the diagnostic process. 
Third, the Alliance and AIAM commented that EPA does not indicate the 
purpose or need for requiring every component operating range and that 
this type of information is not needed in all cases to make emissions-
related repairs, and that providing such information could be a huge 
task. Fourth, the Alliance and AIAM comment that some OEMs consider OBD 
system logic flow diagrams to be proprietary information because they 
can contain algorithms specific to an OEM. Lastly, the Alliance and 
AIAM commented that in the recent Service Information proposal issued 
by

[[Page 38435]]

the California Air Resources Board (CARB), it was proposed that OEMs 
make available a general description of their OBD systems which 
includes a general description of the operation of each monitor and the 
parameters that are being monitored. CARB also proposed that additional 
information be made available such as diagnostic codes associated with 
each monitor; typical enable conditions for the monitors; a general 
sequence of events, execution frequency and duration; and typical 
malfunction thresholds. The Alliance and AIAM commented that this type 
of information is sufficient to service OBD related problems and to go 
beyond what CARB has proposed is unnecessary. The Alliance and AIAM 
commented that EPA should adopt requirements consistent with those 
proposed by CARB.
    The Westchester/Putnam chapter of the Service Technicians Society 
commented that information such as system logic, including monitor 
strategies, related components by each monitor and range/response times 
for sensor inputs need to be made available to aftermarket service 
providers. Additionally, they commented that information on parameters 
for all sensors and actuators is also needed by aftermarket service 
providers.
    The Speciality Equipment Manufacturers Association (SEMA) commented 
that they would support a provision that would require OEMs to provide 
general information on each significant component of the OBD system. 
SEMA further commented that a description of typical values under 
operating conditions is feasible and that it is reasonable for OEMs to 
consolidate this type of information in a generic manner to assist 
technicians in identifying a malfunctioning component without having to 
purchase an OEM specific scan tool. SEMA also commented that they 
support the availability of system diagrams and basic descriptions of 
OBD system monitoring.
    BMW submitted written comments supporting the comments of the 
Alliance and AIAM on requiring OBD system operational information. BMW 
commented that they would support provisions that mirror those proposed 
by the California Air Resources Board (CARB) which require OEMs to make 
available general descriptions of OBD system information rather than 
the specific list proposed by EPA.
    A consortium of aftermarket groups (the ``Aftermarket Consortium'') 
stated its support for a provision that would require OEMs to make 
available OBD system operational information, regardless of whether or 
not they currently make this information available to their 
dealerships. They further commented that the Clean Air Act does not 
limit the information which must be provided to that which is furnished 
to dealers. The Associations also commented that this type of 
information needs to be made available to the aftermarket from all OEMs 
to ensure the proper diagnosis and repair of OBD equipped vehicles. 
Finally, the Associations commented that independents often fix used 
part or replace a malfunctioning part with a used or rebuilt part in 
making repairs. In doing so, they may have to adjust the functioning of 
such parts to meet OBD parameters. Therefore, OBD system information is 
needed in these circumstances.
    The Service Technicians Society (STS) commented in their written 
submission that generic drive cycles, component operating ranges and 
system logic flow diagrams are important pieces of information for the 
emissions repair process. STS further commented that current 
availability of this type of information varies among OEMs and is not 
easily available in some cases. Without this type of information, 
technicians must use their best judgement, or sometimes even guess at 
the appropriate solution, which increases the time and cost of repairs. 
STS is concerned that access to this level of information is necessary 
to avoid customer frustration and to increase the perception of 
automotive aftermarket service providers as competent professionals.
    In their written submission, ETI commented that OEM repair 
information can sometimes be inadequate despite the claims of the 
Alliance and AIAM. Many OEM repair procedures call for the temporary 
substitution of a known good part which can only be purchased from a 
dealer. However, simply replacing the part may not solve the problem. 
If it is an electrical part, the dealer may not take it back. ETI 
states that this type of repair information is not adequate by 
anybody's standards. Therefore, the aftermarket technician must have 
the information requested in order to conduct pinpoint tests and 
determine whether the part in question is working without using the 
substitution process.
    EPA Decision: EPA agrees with comments that it is appropriate to 
more specifically define the ``OBD Generic Drive Cycle'' information. 
Therefore, EPA is finalizing a provision that requires OEMs to make 
available monitor-specific drive cycles for all major OBD monitors as 
equipped including, but not limited to catalyst, catalyst heater, 
oxygen sensor, oxygen sensor heater, evaporative system, exhaust gas 
re-circulation (EGR) secondary air, and a/c system. Additionally, for 
diesel vehicles under 14,000 pounds GVWR which also perform misfire, 
fuel system and comprehensive component monitoring under specific 
driving conditions (i.e., non-continuous monitoring; as opposed to 
spark ignition engines that monitor these systems under all conditions 
or continuous monitoring), the OEM shall make available monitor-
specific drive cycles for these monitors. We will also finalize a 
provision that will require any OEMs who develop generic drive cycles, 
either in addition to, or instead of, monitor-specific drive cycles to 
also make these available in full-text on OEM Web sites.
    With regard to OBD system operational information, EPA disagrees 
with the Alliance and AIAM comments that EPA has not substantiated that 
some OEMs do not make adequate information available to the 
aftermarket. While EPA agrees that it would seem that OEMs have a 
``huge motivation'' to ensure that sufficient information is available 
to both dealership and aftermarket technicians, we believe that there 
are numerous examples of information gaps of which the OEMs are aware. 
Aside from the analysis of OEM service manuals conducted by EPA which 
can be found in the docket (Air Docket A-2000-49, item II-B-01, ``Memo 
from Shannon Elliot to Holly Pugliese and Arvon Mitcham--Analysis of 
OEM Service Manuals'', March 10, 2000), EPA has participated in 
numerous meetings and conferences with aftermarket service providers 
and OEMs for discussions solely focused on acknowledged gaps in OEM 
information. Additionally, sources such as the International Automotive 
Technicians Network (iATN) and the Service Technicians Society (STS) 
have provided numerous examples of both dealership and aftermarket 
technician difficulties in finding enough information to service some 
particular OEM makes and models. A compilation of some of the 
complaints that have been documented can be found in EPA Air Docket A-
2000-49, Item IV-H-03.
    EPA also disagrees that it does not have the authority under the 
Clean Air Act to compel the distribution of relevant service 
information. EPA agrees with the comments submitted by MEMA, et al. 
that the Clean Air Act does not limit the information that must be 
provided to that which is made available to dealerships. While it is 
clear that under section 202(m)(5), the

[[Page 38436]]

aftermarket should at a minimum have access to the same information as 
dealerships, section 202(m)(5) does not preclude EPA from requiring 
OEMs to provide additional information to be made available to both 
dealerships and the aftermarket. Nothing in section 202(m)(5) of the 
Clean Air Act makes reference to limiting information availability to 
that which is made available to dealerships. On the contrary, section 
202(m)(5) requires OEMs to provide ``any and all'' information needed 
to use the OBD system and ``such other information including 
instructions for making emission related diagnosis and repairs,'' 
including at a minimum all information given to dealerships. EPA is 
instructed by section 202(m)(5) to promulgate regulations requiring 
OEMs to provide such information. EPA has broad authority to require 
all information needed to use the OBD system and make emission related 
diagnosis and repairs, including requiring OEMs to provide specific 
information needed for emission related diagnosis and repairs.
    Regarding the comments submitted by the Alliance and AIAM and BMW 
that the proposal goes beyond EPA's authority and may very well require 
the release of proprietary OEM calibrations, EPA appreciates the 
concerns of these commenters. It was not EPA's intent to require any 
information that would be considered a trade secret or would jeopardize 
the integrity of the OBD system. We believed that the general language 
in the proposal regarding what would be considered OBD system 
operational information would be sufficient to express the level of 
information EPA believes is needed to be made available from all OEMs 
without jeopardizing OEM proprietary information. EPA also agrees with 
the comments of the Alliance, AIAM, and BMW that the OBD system 
descriptors required by the service information regulations finalized 
by the California Air Resources Board provide a sufficient list of the 
types of OBD diagnostic information needed to service and repair OBD-
equipped vehicles and is in essence exactly the level of information 
EPA was seeking to be made available by using the term ``OBD system 
operational information.'' Therefore, EPA will finalize a list of 
required information to parallel the list finalized by CARB in their 
September 2002 Final Rule. OEMs shall make available for purchase to 
all covered persons, a general description of each OBD system used in 
1996 and subsequent model-year vehicles, which shall include the 
following:
    (A) A general description of the operation of each monitor, 
including a description of the parameter that is being monitored.
    (B) A listing of all typical OBD diagnostic trouble codes 
associated with each monitor.
    (C) A description of the typical enabling conditions for each 
monitor to execute during vehicle operation, including, but not limited 
to, minimum and maximum intake air and engine coolant temperature, 
vehicle speed range, and time after engine startup.
    (D) A listing of each monitor sequence, execution frequency and 
typical duration.
    (E) A listing of typical malfunction thresholds for each monitor.
    (F) For OBD parameters for specific vehicles that deviate from the 
typical parameters, the OBD description shall indicate the deviation 
and provide a separate listing of the typical values for those 
vehicles.
    (G) A listing of monitor-specific OBD drive cycle information for 
all major OBD monitors as equipped including, but not limited to, 
catalyst, catalyst heater), oxygen sensor, oxygen sensor heater, 
evaporative system, exhaust gas re-circulation (EGR), secondary air, 
and air conditioning system. Additionally, for diesel vehicles under 
14,000 pounds GVWR which also perform misfire, fuel system and 
comprehensive component monitoring under specific driving conditions 
(i.e., non-continuous monitoring; as opposed to spark ignition engines 
that monitor these systems under all conditions or continuous 
monitoring), the OEM shall make available monitor-specific generic 
drive cycles for these monitors. Any OEM who develops generic drive 
cycles, either in addition to, or instead of, monitor-specific drive 
cycles shall also make these available in full-text on OEM Web sites.
    (H) Identification and scaling information necessary to interpret 
and understand data available to a generic scan tool through ``mode 
6'', pursuant to Society of Automotive Engineers SAE J1979.
    EPA believes that this list meets the concerns of aftermarket 
service providers that not all OEMs provided complete information for 
the service and repair of emissions related problems. As discussed in 
the NPRM, we believe that a greater number of OEMs are providing this 
very information to both their franchised dealerships as well as the 
aftermarket which provides a strong indication that EPA should 
incorporate a more specific list of what EPA believes should be made 
available by all OEMs. We believe that the comprehensive list being 
finalized in today's action will ensure that more complete emissions-
related information is available from all OEMs.
    We are also finalizing a provision that requires the development of 
the information described above by the OEM even if this information 
does not already exist in some form for its dealerships. EPA is making 
this distinction to reiterate our position that there is a need for an 
increased consistency in the level of information made available across 
all OEMs. In the past, we have generally agreed that whatever 
information is made available to OEM dealerships provided an adequate 
basis to determine what information should be made available to the 
aftermarket. However, experience in implementing the 1995 regulations 
has underscored the need for EPA to be more specific in it's definition 
of emissions-related information as discussed in great detail above. 
This increased specificity of our definitions ultimately requires that 
all of the information required by these regulations be made available, 
regardless of whether or not it is currently made available to 
dealerships. In other words, OEMs may not make the claim that they do 
not have to make certain information required by this regulation 
available to the aftermarket because they do not even make it available 
to dealerships.

B. Anti-Theft Information

    Summary of Proposal: EPA proposed that information needed to start 
the vehicle when the vehicle is equipped with an anti-theft or similar 
system that disables the engine also be made available to the 
aftermarket.
    Summary of Comments: The Alliance and AIAM commented that they 
recognize the need to be able to start a vehicle after an emissions-
related repair, but they have some concern with making this information 
available to aftermarket service providers in the manner proposed by 
EPA. The Alliance and AIAM also acknowledge that aftermarket service 
providers already have the ability to access this capability for a 
majority of their member companies. The Alliance and AIAM explained 
that some OEM anti-theft systems require a serial data message to be 
sent to the vehicle on the OBD data link (SAE J1962) that contains a 
PIN (personal identification number)or key that is unique to each 
specific vehicle. This vehicle specific code may be obtained from 
information that should be retained by the vehicle owner or may be 
obtained from an assistance center controlled by the OEM. In other 
words,

[[Page 38437]]

the aftermarket currently has access to anti-theft reinitialization in 
some form for many OEMs. The Alliance and AIAM commented that it is not 
clear from EPA's proposal if OEMs would be required to make these 
special codes available on the OEM Web sites. Rather, the Alliance and 
AIAM assumed that OEM Web sites would be required to inform aftermarket 
service providers on how to obtain the code from the OEM. The Alliance 
and AIAM further commented that enhanced data stream information that 
will be available to scan tool manufacturers would allow an aftermarket 
scan tool to complete the re-initialization process with the additional 
information that would be available from the OEM.
    The Alliance and AIAM also commented on the impact that the 
proposed release of anti-theft information could have on other 
requirements that OEMs are subject to in the U.S. and internationally. 
For some OEMs, implementing EPA's proposed anti-theft provision would 
require redesigning the vehicle's anti-theft system in order to stay in 
compliance with requirements in place by other Agencies. Because of 
these factors, the Alliance and AIAM recommended that EPA finalize a 
phase-in for this requirement with full implementation in 2007. The 
Alliance and AIAM further comment that many OEMs already comply with 
the proposed requirement and that allowing sufficient lead time for a 
minority of OEMs will allow for sufficient time to implement changes 
without jeopardizing vehicle security or compliance with other 
regulations. The Alliance and AIAM additionally commented that EPA and 
CARB should work closely with the National Highway Traffic Safety 
Administration (NHTSA) in determining whether a component or system 
qualifies as a vehicle security system and whether providing this 
information would circumvent the anti-theft system.
    The Automotive Service Association (ASA) also provided comments on 
the release of anti-theft information. ASA supports finalizing a 
provision that would make this information available to aftermarket 
service providers, but recommends that EPA be more specific about how 
aftermarket service providers can obtain anti-theft information and the 
timeliness of receiving the information. ASA commented that, if the 
information is protected to the degree that aftermarket service 
providers cannot immediately obtain the information, EPA should 
finalize a provision that the requires the OEMs to make this 
information available on the same day it is requested. ASA submitted 
similar comments in their written submission.
    APRA and AERA also commented that repairers and rebuilders of the 
OBD computer itself also need specific information which will allow 
them to re-initialize a computer when it is being repaired after being 
removed from the vehicle. APRA and AERA commented that the proposed 
rule is not specific enough and that EPA should extend the anti-theft 
provisions to starting the computer if it has been removed from the 
vehicle.
    The National Automobile Dealers Association (NADA) commented that 
EPA lacks the authority to require ``unfettered dissemination'' of 
anti-theft information. NADA further commented that EPA did not consult 
with the National Highway Traffic Safety Administration, the U.S. 
Customs Service, the National Insurance Crime Bureau or other vehicle 
theft experts before drafting the proposal. NADA recommends that EPA 
develop a process that is very carefully controlled to address the 
restarting of vehicles disabled by anti-theft systems during emissions-
related repairs.
    The Automotive Aftermarket Industry Association (AAIA) and the 
Automotive Warehouse Distributors Association (AWDA) commented that 
they support a provision that will mandate OEMs to provide aftermarket 
service providers with the ability to reinitialize anti-theft systems 
after the completion of emissions-related repairs. AIAA and AWDA 
further commented that the proposal does not go far enough. AIAA and 
AWDA are particularly concerned about rebuilt ECUs that must be removed 
from the vehicle that are sent off-site for the rebuilding process. 
AIAA and AWDA comment that OEMs should enter into licensing agreements 
with the few companies who rebuild ECUs to ensure that they have the 
codes or ``black boxes'' which contain the codes.
    One independent aftermarket service provider commented that the 
mandated release of anti-theft information to aftermarket service 
providers would be detrimental to the driving public. Rather than 
making anti-theft information directly available to the aftermarket, 
Mr. Porcaro further commented that OEMs should be required to inform 
aftermarket service providers which vehicle systems are impacted by 
anti-theft systems. To the extent that those vehicle systems cannot be 
reprogrammed without anti-theft system information, OEMs should be 
required to have their respective dealer networks available for quick 
and inexpensive reprogramming.
    SEMA commented that anti-theft information is necessary to validate 
repairs, allow for product development and to verify the remanufacture 
of an ECU or similar electronic components. SEMA further commented that 
this information must be available not only through the scan tool but 
also via the OEM Web sites. SEMA agrees with other commenters that 
security issues related to the release of this information is an 
important concern. However, SEMA commented that vehicle owners must 
have the ability to provide anti-theft information to an independent 
facility and the independent facility must have the ability to use the 
information obtained from, or authorized by, the owner to complete the 
repair. SEMA believes that this combination should minimize concerns 
about the inappropriate release of anti-theft system information to the 
aftermarket.
    Nissan of North America commented that the release of anti-theft 
information would seriously compromise the intent of the anti-theft 
system and opposes any provision that would require this information to 
be made available to aftermarket service providers.
    BMW commented that they generally agree with comments submitted by 
the Alliance and AIAM on this issue. BMW commented that they prefer not 
to see any provision at all that would require the release of this 
information, but that if EPA decides to move forward, the Agency should 
allow for sufficient lead time for implementation. BMW further 
commented that there appears to be some discrepancy between the 
proposed preamble language and proposed regulatory language. 
Specifically, BMW is concerned that the preamble refers to information 
and tools needed to start the vehicle after the completion of an 
emissions-related repair, whereas the proposed regulatory language 
makes no mention of tools. This is of particular concern to BMW because 
BMW does not have ``information'' in the traditional sense that would 
allow an aftermarket service provider to re-set the security system 
after an emissions-related repair for 1993--2003 model year vehicles. 
Rather, BMW has the functionality built into their OEM-specific scan 
tools that allow for re-initialization of the (ECU) which, for BMW, 
only occurs when the ECU is replaced. BMW also commented that EPA 
should adopt the anti-theft language proposed by CARB.
    Volkswagen of American (VW) submitted written comments requesting 
that anti-theft provisions be removed from the final rulemaking. VW 
commented that this issue should be discussed in a separate effort that 
would allow for a thorough discussion with all

[[Page 38438]]

interested parties and agencies to ensure that such a requirement would 
not have a negative impact on OEM efforts to improve vehicle security.
    ETI commented that OEMs have known for many years that security 
could not be used as an excuse to require the vehicle to be towed to 
the dealership for a special process and thus deny the aftermarket from 
participating in computer replacement or reprogramming. ETI further 
commented that there is no need to delay this requirement until 2007, 
as suggested by at least one OEM. ETI commented that OEMs have had 
ample time to design vehicle ignition systems that can be started after 
a computer change or reprogramming event.
    American Honda commented that vehicle theft is of particular 
concern to Honda given that Honda vehicles have a particularly high 
theft rate in the U.S. and abroad. Honda has committed significant 
resources to reducing vehicle theft for its vehicles and recent data 
indicates that the theft rate for Honda vehicles has been significantly 
reduced since immobilizer systems have been installed on Honda 
vehicles. Honda attributes the success of their immobilizer systems to 
the considerable control process they incorporate to protect the 
proprietary information with their licensed dealers. Honda is concerned 
that they would not be able to put in place similar controls for the 
aftermarket and would be left with no course of action against third 
parties if security agreements were violated. Honda commented that they 
have been in contact with law enforcement agencies, the insurance 
industry and the National Highway Traffic Safety Administration to 
gather their expert opinions on the matter and encourages EPA to do the 
same.
    American Honda commented that because of the issues outlined above, 
they strongly oppose the proposed requirement to release information to 
the aftermarket on how to obtain information to reinitialize Honda 
vehicles, other than instructing the customer to return to a licensed 
Honda dealer. The Aftermarket Consortium reiterated its support for 
making anti-theft and re-initialization procedures available to the 
aftermarket, including those companies that rebuild ECUs. They state 
that without the ability to initialize the system, the aftermarket 
service provider cannot complete the repair of the vehicle. Currently 
900,000 rebuilt ECUs are sold annually. If rebuilding facilities are 
not able to initialize the anti-theft system, they will not be able to 
provide these services. They state that they are well aware of the 
concerns regarding the integrity of the anti-theft system. However, 
many companies allow the initialization of the system using a ``black 
box'' that avoids the need to reveal anti-theft codes.
    The Service Technicians Society (STS) submitted written comments in 
support of making anti-theft and re-initialization procedures and 
information available to aftermarket service providers, so that the 
motorist can drive away from the service facility after an OBD check or 
repair is made.
    The Highway Loss Data Institute (HLDI) submitted written comments 
voicing their opposition to the release of any information related to 
anti-theft systems to the aftermarket. HLDI commented that their 
organization has monitored the effectiveness of anti-theft devices for 
many years. Their data indicates a significant decrease in automobile 
theft with the installation of vehicle anti-theft systems. HLDI further 
commented that the release of this information to the aftermarket would 
seriously compromise the effectiveness of anti-theft systems. HLDI is 
concerned that it would be difficult to confine the release of the 
information only to the aftermarket and the release of this information 
would inevitably increase access to people involved in vehicle theft. 
HLDI is also concerned about the premium discounts some insurance 
providers make available to vehicle owners. HLDI commented that 
insurers would be forced to reassess the appropriateness of these 
discounts if OEMs must publish the codes and other information 
necessary to reinitialize an anti-theft system. Finally, HLDI commented 
that EPA should rescind any provision that requires OEMs to make 
available anti-theft information available to the aftermarket.
    Written comments were received by the Advocates for Highway and 
Auto Safety (Advocates) after the close of the August 27, 2001 comment 
period. In their comments, the Advocates expressed concern for any 
provision that would require the release of anti-theft information. In 
particular, the Advocates are concerned about the posting of anti-theft 
system codes and other sensitive information on the World Wide Web. 
Even if the information can be encrypted, this will not ensure that the 
information will not fall into the hands of vehicle thieves. The 
Advocates recommend that EPA refrain from adopting the portions of the 
proposal that would require the publication of anti-theft codes and 
information by the OEMs. Further, the Advocates comment that EPA 
consult with NHTSA and other interested parties regarding other means 
to achieve EPA's goal. The Advocates commented that one option might be 
to require that anti-theft and emission-related functions be separately 
configured so that the maintenance and repair of one system does not 
affect the other.
    EPA Decision: As stated in the preamble to the proposal, EPA is 
sensitive to finalizing any provision that would jeopardize the intent 
of any OEM anti-theft system. However, we also believe that vehicle 
design on at least some OEM vehicles would prevent an aftermarket 
technician from completing an emissions-related repair without the 
ability to re-initialize a vehicle's anti-theft system. As we noted in 
the proposal, re-initialization is critical to the ability of an 
aftermarket technician to complete an emission-related repair. A 
vehicle that cannot be driven away from the shop has not been fully 
repaired. Therefore, this information and/or the ability to perform 
this service must be made available to the aftermarket in a timely and 
cost effective manner. In order to allow OEMs maximum protection of the 
integrity of their anti-theft systems, EPA will finalize the following 
provisions for the availability of anti-theft system information. OEMs 
shall make available computer or anti-theft system initialization 
information necessary for the proper installation or repair of on-board 
computers or the repair or replacement of any other emission-related 
part on motor vehicles that employ integral vehicle security systems. 
OEMs are not required to make this information available on the OEM's 
Web site unless they choose to do so. However, the OEM's Web site shall 
contain information on obtaining the information and/or the ability to 
perform re-initialization.
    Beginning with the 2008 model year, we require that all OEM systems 
will be designed in such a way that no special tools or processes will 
be necessary to perform re-initialization. In other words, EPA expects 
that the re-initialization of vehicles can be completed with generic 
aftermarket tools, a pass-through device, or an inexpensive OEM-
specific cable. This model year cut-off is consistent with the 
requirement to complete the phase-in of the SAE J2284-3 CAN requirement 
as discussed in section 18 of this document. We believe it is 
reasonable to allow for additional leadtime through the 2007 model year 
to allow those OEMs who need additional time to reconfigure their 
vehicle systems in such a way that the release of anti-theft 
information can be accomplished without posing a threat to the 
integrity of the system and without special tools or an OEM-specific 
tool. Therefore, an

[[Page 38439]]

OEM may request, by 1 month following the effective date of the final 
rule Administrator approval for an alternative means to re-initialize 
vehicles for some or all model years through the 2007 model year.
    The Administrator shall approve the request only after all of the 
following conditions have been met:
    (A) The OEM must demonstrate that the availability of such 
information to aftermarket service providers would significantly 
increase the risk of vehicle theft.
    (B) The OEM must make available a reasonable alternative means to 
install computers, or to otherwise repair or replace an emission-
related part.
    (C) Any alternative means proposed by an OEM cannot require 
aftermarket technicians to return to an OEM franchised dealership to 
obtain information or special tools to re-initialize the anti-theft 
system.
    (D) Any alternative means proposed by an OEM must be available to 
aftermarket technicians at a minimal cost.
    (E) Any alternative must be available to aftermarket technicians 
within twenty-four hours of the initial request.
    (F) Any alternative must not require the purchase of a special tool 
or tools to complete this repair. For example, an OEM who intends to 
request approval to require the purchase of their OEM-specific tool or 
some other OEM-specific special tool as their alternate solution 
through model year 2007 must allow the aftermarket to lease that tool 
for a short period of time, at appropriate minimal cost, rather than 
requiring the outright purchase of the tool.
    (G) In lieu of leasing their OEM-specific tool to meet this 
requirement, an OEM may also choose to release the necessary 
information to equipment and tool manufacturers for incorporation into 
aftermarket scan tools. Any OEM choosing this option must release the 
information to equipment and tool manufacturers within 60 days of 
Administrator approval. OEMs may also choose to comply with this 
requirement using SAE J2534 for some or all model years through model 
year 2007.
    We believe that it is unreasonable and directly contrary to the 
intent of section 202(m)(5) to require the aftermarket to purchase 
numerous and costly tools that they would not have otherwise purchased 
to perform a relatively infrequent repair. In fact, it is for the same 
reasons that, as discussed below, EPA is requiring that all OEMs make 
available generic and enhanced scan tool information to equipment and 
tool companies. Requiring the purchase of expensive tools for such 
minimal and rare repairs would be an especially egregious abuse of the 
OEMs' monopoly of information in order to charge unreasonable costs.
    Regarding the requirement that OEMs provide the information 
directly to aftermarket technicians, not through dealerships, several 
OEMs have commented that it is appropriate to limit the information to 
dealerships because of the greater security concerns associated with 
providing the information to the aftermarket. These arguments are 
directly contrary to the letter and intent of section 202 (m)(5). One 
of the key purposes of that section was to prevent OEMs from giving 
their dealerships substantial competitive advantages against their 
competitors in the aftermarket repair industry by giving repair 
information only to dealerships, leaving aftermarket technicians at the 
mercy of their competitors. OEMs have not shown that providing a method 
for aftermarket technicians to re-initialize vehicles will inherently 
provide less security than providing re-initialization information to 
their dealerships; nor have they shown that any speculative problems 
justify the considerable competitive disadvantage caused by providing 
this information solely to their dealers. Our regulations do not 
require this information to be provided on the OEM's Web site and allow 
OEMs to provide the information enabling re-initialization to 
aftermarket technicians in a secure manner. The Alliance/AIAM comments 
note that many OEMs already provide such information directly to the 
aftermarket.

C. Accessibility and Performance Requirements of OEM Web Sites

    Summary of Proposal: We proposed that each OEM Web site allow end-
users to search its database of emission-related service information by 
various topics. We proposed that the topics include, but not be limited 
to, model, model year, key words, phrases, diagnostic procedures, 
scheduled maintenance and vehicle identification number (VIN). 
Additionally, we proposed that OEMs must provide information to allow 
for readily identifying the latest vehicle calibration. Further, while 
the VIN may be offered as one means of conducting a search, we proposed 
that OEMs may not require the use of a VIN to initially access the data 
base. We also proposed that the use of proprietary hardware, software, 
viewers, browsers and formats for accessing information be prohibited. 
In other words, OEMs must develop their service information, and 
provide access to it, in such a way that it can be viewed using 
software such as Adobe Acrobat Reader that is readily available to 
Internet users. The OEM's Home Page must be accessible to anyone and 
contain instructions on how to access the information. Instructions 
should include, but not be limited to, minimum hardware and non-
proprietary software needed by the end-user and associated costs for 
accessing and purchasing information. Finally, we proposed that OEMs 
not limit the modem speed by which aftermarket service providers can 
access OEM Web sites.
    We also proposed performance and reporting requirements for OEM Web 
sites. We proposed that OEMs submit to the Administrator on an annual 
basis a report that provides detailed, monthly measurements of the 
OEM's Web site. Each OEM report is to be submitted to the Administrator 
beginning one year after the required launch date of OEMs' Web sites 
(i.e., one year and 6 months after the final rule is issued), or upon 
request by the Administrator.
    Summary of Comments: The Alliance and AIAM, and several individual 
OEMs commented on EPA's proposal to allow searching of OEM Web sites by 
VIN. They commented that requiring a Web site to be searchable by VIN 
will inflate the cost of information without providing a meaningful 
improvement in accessibility. They further commented that service 
technicians customarily search for information by make, model and year 
and that searchability by VIN is only useful for some items such as 
service campaigns and vehicle calibrations (for some OEMs). The 
Alliance and AIAM recommend deleting this requirement from the final 
rule.
    APRA and AERA commented that they do not see a need for access by 
VIN to the OEM Web sites. A technician who knows the VIN of the vehicle 
they are repairing also knows the model and model year and can access 
the information in that manner.
    Mr. Jerry Truglia of ATTS commented that EPA should require several 
options for OEM Web site searchability criteria. Mr. Truglia commented 
that all OEM Web sites should have uniform and consistent search 
engines. In addition, all OEM Web sites should be searchable by VIN, 
vehicle system, generic OBD part name, and P0 and P1 diagnostic trouble 
codes.
    The Speciality Equipment Manufacturers Association (SEMA) commented 
that they strongly support the proposed requirement that service 
information be searchable by VIN. SEMA commented that this type of 
search is necessary because many repairs such as service campaigns, 
field fixes and running changes are

[[Page 38440]]

implemented on the basis of VIN. SEMA also commented that EPA should 
consider a requirement for a VIN-based history of the services and 
repairs performed on a given vehicle to help ensure the proper repair 
procedure is used since the content/condition of a given vehicle will 
be more accurately known. VIN-based histories would also be of value to 
consumers by giving them more information about an in-use vehicle's 
history at the time of purchase.
    The Aftermarket Consortium submitted comments suggesting that a 
search by VIN on OEM Web sites is not necessary.
    BMW commented that EPA's proposal to require that information be 
searchable by model year poses a problem for BMW because of how they 
organize their service information. BMW organizes its service 
information by combining body series, engines, body types, and 
transmissions. Currently, any technician searching for BMW information 
could not locate information for the vehicle in question by simply 
searching for a model year. BMW proposes that they would provide a link 
to a cross-reference document that describes the various combinations 
and the model years they pertain to in order to assist technicians who 
are not familiar with the structure of BMW vehicles and service 
information.
    STS commented that searching for information by VIN is a more 
accurate way to search for information on OEM Web sites, but that it 
can not be the only way. STS commented that, to the extent a search by 
VIN is required, it should be restricted to the least amount of numbers 
that would not jeopardize rights to privacy of the vehicle owner.
    With regard to EPA's proposal on performance and Reporting 
Requirements, the Alliance and AIAM and several individual OEMs 
commented that they believe that the detailed reporting provisions in 
the proposal should be eliminated and replaced with a general reporting 
requirement for an annual report on the performance of a Web site with 
a specified deadline. The Alliance and AIAM further commented that any 
details of the annual reports should be addressed separately from the 
regulations in the form of EPA's manufacturer guidance letter. The 
Alliance and AIAM expressed particular concern of the list of 17 
criteria as being too specific given the rate of change in Internet 
activities. They commented that it is likely that EPA would want to 
change the content of the annual reports over time to reflect advances 
in Internet technology and other issues. To include specifics in the 
final regulation would put the burden on EPA to change the regulations 
frequently which is not practical given the complexities of the 
regulatory process. The Alliance and AIAM further recommend that EPA 
schedule a public workshop to discuss the criteria that should be 
reported to EPA before issuing any guidance to ensure that all parties 
have input.
    ASA commented at the public hearing that generally, the OEM Web 
sites must be required to meet some minimum standards for performance 
to ensure that independent repair shops are not subject to low quality 
Web sites from a time or quality perspective. Web sites that are not 
user friendly will not be utilized by the aftermarket, therefore 
undermining the intent of the regulation to improve the accessibility 
of information to the aftermarket.
    NADA commented at the July 25, 2001 public hearing that they 
support EPA's proposal to shift to delivery of service information via 
the Internet. However, NADA commented that it is not necessary for EPA 
to micro manage OEM Web sites. In particular, NADA commented that EPA 
did not need to establish requirements for how information on the sites 
is searched or indexed, whether the information can be downloaded and 
how, what, or who the OEMs can charge for the information.
    The Automotive Aftermarket Industry Association (AAIA) and the 
Automotive Warehouse Distributors Association (AWDA) commented at the 
July 25, 2001 public hearing that they support a provision that will 
require OEMs to submit annual reports that provide detailed monthly 
measurements of OEM Web sites. AAIA and AWDA expressed concern that EPA 
has not established standards by which the reports can be judged and 
without such standards, EPA will not be able to take enforcement action 
against an OEM for a Web site that is not accessible to independents. 
AAIA and AWDA commented that EPA should adopt criteria similar to that 
being considered by CARB for performance standards that include such 
parameters as ensuring that OEM Web servers have sufficient capacity to 
allow ready access by all covered persons.
    The Aftermarket Consortium submitted comments that they support 
requirements that OEMs submit annual reports regarding Web site 
performance and that this information will assist the Administrator in 
measuring the effectiveness of OEM Web sites. The Aftermarket 
Consortium also commented that they are concerned about the reporting 
parameters proposed by EPA because they do not include some minimum 
performance expectation and will not provide sufficient guidance to 
ensure OEM compliance. The Aftermarket Consortium recommended that EPA 
adopt the performance requirements proposed by CARB.
    ASA commented that reporting requirements should include an 
analysis of how information transfers have worked for third party 
providers.
    EPA Decision: Based on the comments received, there is no obvious 
agreement on the need to require a search by VIN on OEM Web sites. When 
proposing this particular provision, we believed that requiring a 
search by VIN on the OEM sites would not be overly burdensome for the 
OEMs and would be of some benefit to aftermarket service providers. 
After further consideration, it now appears that requiring OEMs to 
design sites that require information to be searchable by VIN would 
require considerable resources, but would not considerably improve the 
ability of the aftermarket to find information on OEM Web sites. The 
California Air Resources Board has not finalized a similar provision 
for these same reasons. Therefore, EPA will not require the VIN as a 
search method for OEM Web sites.
    In response to BMW's comment about searching by model year, EPA 
agrees that there may be a few OEMs who do not delineate their service 
information by model year. We agree that it is reasonable to adopt 
BMW's proposal that would allow for OEMs who do not have a model year 
delineation to allow searchability by some alternate means such as body 
series. However, EPA also agrees that any OEM who does not use model 
year should include some documentation that allows for a cross-
reference to model year for those aftermarket service providers who may 
not be familiar with the structure of OEM vehicle classification.
    With regard to OEM Web site performance and reporting requirements, 
EPA believes that the performance of OEM Web sites is paramount to the 
availability of the information. The reporting parameters proposed by 
EPA were intended to ensure that EPA would have sufficient information 
to evaluate the performance of OEM Web sites to ultimately ensure that 
the information required by these regulations is truly available. While 
EPA believes that the parameters proposed would achieve this goal, we 
agree with commenters that finalizing reporting requirements as 
proposed would not allow EPA maximum flexibility for making adjustments 
to the provisions to allow for technology advances and implementation 
experience. We also

[[Page 38441]]

agree that a reasonable alternative is to finalize some minimum 
reporting requirements as part of the regulation that must be measured 
by the OEMs and provide additional guidance after discussions with all 
interested parties as the OEM Web sites are reviewed. OEMs must provide 
annual reports containing monthly measurements of the following 
parameters:
    (A) Total successful requests (measured in number of files 
including graphic interchange formats (GIFs) and joint photographic 
expert group (JPEG) images, i.e. electronic images such as wiring or 
other diagrams or pictures). This is defined as the total successful 
request counts of all the files which have been requested, including 
pages, graphics, etc.
    (B) Total failed requests (measured in number of files). This is 
defined as the total failed request counts of all the files which were 
requested but failed because they could not be found or were read-
protected. This includes pages, graphics, etc.
    (C) Average data transferred per day (measured by bytes). This is 
defined as average amount of data transferred per day from one place to 
another.
    (D) Daily Summary (measured in number of files/pages by day of 
week). This is defined as the total number of requests each day of the 
week, over the time period given at the beginning of the report.
    (E) Daily report (measured in number of files/pages by the day of 
the month). This is defined as how many requests there were in each day 
of a specific month.
    (F) Browser Summary (measured in number of files/pages by browser 
type, i.e., Netscape, Internet Explorer). This is defined as the 
versions of a browser by vendor.
    (G) Any other information deemed necessary by the Administrator to 
determine the adequacy of an OEM Web site.
    EPA will work with OEMs and issue further guidance regarding 
requirements to outline a consistent format and timing of submission.
    OEMs may request Administrator approval to report on parameters 
other than those described above if the OEM can demonstrate that those 
alternate parameters will provide sufficient and similar information 
for EPA to effectively evaluate the OEM Web site.
    In addition, several commenters suggested that EPA should harmonize 
with CARB and at a minimum, adopt the performance criteria finalized in 
their service information rule. EPA agrees and will therefore finalize 
a provision that requires OEMs to launch Web sites that meet the 
performance criteria described below:
    (A) OEM Web sites shall posses sufficient server capacity to allow 
ready access by all users and have sufficient downloading capacity to 
assure that all users may obtain needed information without undue 
delay;
    (B) Broken Web links shall be corrected or deleted weekly.
    (C) Web site navigation does not require a user to return to the 
OEM home page or a search engine in order to access a different portion 
of the site.
    Performance reports will be submitted to the Administrator annually 
and within 30 days of the end of the calendar year, or upon request by 
the Administrator. EPA will issue additional direction in the form of 
official manufacturer guidance to further specify the process for 
submitting reports to the Administrator.

D. Structure and Cost of OEM Web Sites

    Summary of Proposal: We proposed a tiered approach for access to 
OEM Web sites. First, we proposed that OEMs provide short term access 
for a set price. We proposed that OEMs would set up a short time frame 
of approximately 24 hours whereby an aftermarket service provider would 
be able to access that OEM's Web site, search for the piece of 
information they need, and purchase, download and/or print it for a set 
fee. We proposed that a reasonable fee for short term access can be as 
little as $0, but should be no greater than $20.
    We also proposed that OEMs provide mid term access for a set price. 
Under this scenario, aftermarket service providers would be able to 
access the OEM Web site for a 30 day time frame and purchase, download 
and/or print information under this option for a set fee. EPA believes 
that a reasonable fee for mid term access can be as little as $0, but 
no greater than $300.
    We proposed that OEMs provide long term access for a set price. 
Under this scenario, aftermarket service providers would have access to 
the OEM Web site for a 365 day time frame, including the ability to 
purchase, download and/or print the information for a set fee. EPA 
believes that a reasonable fee for long term access can be as little as 
$0, but no greater than $2500.
    Summary of Comments: The Alliance and AIAM, and several individual 
OEMs commented that they understand the goal of this proposed provision 
to meet the needs of a variety of Web site users. However, the Alliance 
and AIAM further commented that the OEMs should be allowed some 
flexibility in designing their Web sites. The Alliance and AIAM 
proposed that additional language be added to the final rule that would 
allow an OEM to request approval from the Administrator for an 
alternative method by which the information can be accessed. The 
Alliance and AIAM commented that this flexibility would allow for 
innovation without jeopardizing the intent of the proposed tiered 
approach.
    The Alliance and AIAM also commented at the public hearing on the 
cost caps proposed by EPA for each of the tiers. They commented that 
the proposal goes well beyond specifying factors to be considered in 
terms of pricing for Internet access and exceeds the authority of the 
Agency under the Clean Air Act. The Alliance and AIAM provided 
extensive legal discourse to support its assertion that ultimately 
EPA's authority to require the disclosure of service information is 
tertiary behind EPA's primary responsibility to set emissions 
standards, and secondary responsibility to require OBD systems. The 
Alliance and AIAM further commented that even if EPA has authority to 
compel information disclosure, EPA's proposal to limit OEM compensation 
for disclosed information would undermine the Clean Air Act. They 
stated that if OEMs are unable to obtain reasonable, flexible 
compensation for the information they provide, they will have less 
incentive and diminished ability to provide the information to end 
users in a timely, detailed, and user-friendly manner. The Alliance and 
AIAM go on to comment that section 202(m)(5) does not mention prices or 
price-setting authority for EPA. Finally, the Alliance and AIAM 
commented that EPA has set its proposed caps with very little data and 
analysis, and therefore, they are arbitrary and capricious, even if EPA 
had the authority to establish price caps.
    The Alliance and AIAM further commented that the proposal overlooks 
the fact that federal intellectual property laws protect some of the 
documents covered by the EPA proposal.
    The Automotive Service Association (ASA) commented at the public 
hearing that EPA's proposed price caps were too high. ASA further 
commented that EPA must take into consideration the fact that 
aftermarket shops still need to purchase non emissions-related 
information as well. ASA proposed an alternate pricing structure. For 
short term access, ASA proposed $1. For mid-term access, ASA proposed a 
$30 maximum. For long term access, ASA proposed a $365 maximum. ASA 
commented that their proposed prices were fair and reasonable and that 
EPA's proposal places additional cost burden on the aftermarket that 
must be limited

[[Page 38442]]

as much as possible. ASA expressed concern that if the price burden is 
not adequately addressed, it could be used as a tool to diminish the 
role of the aftermarket. The ASA submitted written comments reiterating 
their proposal for price caps. ASA further commented that EPA's 
proposed price caps do not take into consideration the additional costs 
that will have to be accounted for by independent shops to shift to the 
Internet to acquire service information. ASA asserts that many 
aftermarket shops will have to invest in computer equipment, Internet 
access, training, and possible the hiring of administrative staff. 
Further, ASA commented that EPA must prohibit OEMs from providing 
service information at a reduced cost based on participation in an OEMs 
parts distribution program. ASA also commented that OEMs must bear the 
responsibility of educating the aftermarket as to the availability and 
structure of their Web sites.
    The Automotive Parts Rebuilders Association (APRA) and the 
Automotive Engine Rebuilders Association (AERA) commented at the public 
hearing that price is a concern to rebuilders also. They commented that 
they are particularly concerned with the way EPA lists the factors that 
should be taken into consideration when determining if information is 
available at a fair and reasonable price. APRA and AERA commented that 
in the 1995 rule, EPA lists factors that the Administrator shall take 
into consideration, whereas the proposed rule lists factors that the 
Administrator may take into consideration. APRA and AERA commented that 
this seemingly small change could have a significant impact on the 
issue of price. This slight word change could lead to an interpretation 
that EPA may allow, but does not require that the Administrator take 
these factors when determining fair and reasonable price. APRA and AERA 
further commented that the setting of price caps does not obviate the 
need for a reasonableness determination and that the proposed rule may 
be inviting an OEM to choose a price near the cap, even though the OEM 
could not otherwise justify the price. Therefore, APRA and AERA believe 
that EPA must be required, not merely allowed, to use the listed 
factors when making fair and reasonable price determinations.
    Jerry Truglia of the Westchester/Putnam Chapter of the Service 
Technicians Society (STS) commented at the public hearing about their 
concern regarding what the tiered approach proposed by EPA would 
actually give aftermarket technicians access to on the OEM Web site. 
For example, Mr. Truglia questioned if a technician purchased a 30 day 
access to an OEM Web site, would that technician have access to all of 
the OEM vehicles, or just one; would it cover all model years from 1996 
on, or just one model year; would the subscription include all OEM 
badge names or just one. Mr. Truglia also submitted written comments 
proposing a different approach to aftermarket access for service 
information. Mr. Truglia proposed that the most effective way to ensure 
that all information is available to both dealers and aftermarket 
technicians is to include a CD or manual with the purchase of every new 
vehicle. In the alternate, Mr. Truglia proposed that new vehicles could 
be installed with microchips that could take the place of the CD or 
paper manual. Under either scenario, a technician could connect to the 
Internet to ensure that they had the latest information and/or 
reprogramming event. Ultimately, Mr. Truglia is concerned that OEM Web 
sites will not have all of their vehicles listed under their badge, 
that search engines will not be easy to navigate, will not have 
reliable connections for 24 hour access, and that proposed fees are 
above what repair facilities can afford.
    The Automotive Aftermarket Industry Association (AAIA) and the 
Automotive Warehouse Distributors Association (AWDA) commented at the 
July 25, 2001 public hearing that the price caps proposed by EPA are 
too high and, if utilized by every OEM, access to service information 
on the Internet would not be affordable by most aftermarket shops. AAIA 
and AWDA further commented that it is not clear why OEMs would need to 
charge such high prices based on current costs for establishing and 
operating a Web site and the fact that its use will be spread over 
thousands of service facilities and franchised dealerships. AAIA and 
AWDA commented that the price caps proposed by EPA should be lowered 
significantly.
    AAIA and AWDA also commented that EPA should retain the factors 
listed in the 1995 regulations regardless of what is finalized with 
regard to price caps. AAIA and AWDA further recommend that EPA modify 
the current factors to be consistent with those proposed by the 
California Air Resources Board (CARB) service information rule, 
particularly because CARB includes the affordability of the information 
to average service facilities as one of it's factors for determining 
reasonable cost. AAIA and AWDA also reiterated that affordability of 
service information is a critical issue for the aftermarket and unless 
small and medium sized service facilities can afford to purchase the 
required information and tools, the intent of the service information 
provision of the Clean Air Act will not be carried out.
    J&J Automotive submitted written comments that it is not clear what 
the prices that OEMs will charge for access to information will 
actually cover. Similar to Mr. Truglia's comments, J&J Automotive 
commented that it must be made clear if access to information will be 
for the OEMs entire car line or just one specific model.
    The Wisconsin Department of Transportation commented that EPA's 
proposal to require information and training at a reasonable cost 
represents a fair compromise between those parties that would like 
access to information for free and those OEMs who might attempt to 
limit access through unreasonably high pricing. Wisconsin DOT further 
commented that EPA should include aftermarket technicians and repair 
shops in discussion pertaining to the establishment of specific price 
caps in order to determine if ``reasonable'' is truly reasonable.
    The Alliance of Automotive Service Providers (AASP) commented that 
the price cap for long term access to OEM Web sites will be cost 
prohibitive for the majority of aftermarket shops. For short term 
access, AASP commented that EPA should finalize a 15 day period rather 
than the 24 hour period originally proposed and that the fee for this 
short term access should be no more than $20. The AASP further 
commented that they reserve the right to pass each OEM's information 
access charges onto their customers. AASP will also ask their members 
to consider assuming part of these costs in the business plans and to 
bill customers for the remaining portion of the access fees where 
feasible.
    Trevor Samoil of Trevor and Joanne Automotive in Vancouver, Canada 
commented that accurate and reasonably priced information is the 
hardest tool to obtain and supports EPA's efforts to establish 
reasonable cost parameters for information access.
    Michael Haven of MPH Automotive Services commented that, when 
determining reasonable price, EPA should consider the fact that the 
information being sought by aftermarket service providers has already 
been created for their dealer networks. OEMs are not being asked to 
create new information to meet the information needs of aftermarket 
shops. Mr. Haven further commented that EPA should ensure that the OEMs 
not be allowed to create profit centers when making information 
available in the aftermarket. Mr. Haven sites Volvo as an example of an 
OEM who is charging too much for

[[Page 38443]]

Web based access to information. As of this writing, Volvo is charging 
about $1,700 per model per year for access to their site, which covers 
both emissions and non-emissions related information. Mr. Haven 
suggests that Hyundai, who currently allows access to their Web based 
service information free of charge is the model that all OEMs should be 
required to adhere to.
    Vincent J. Porcaro commented that the price caps proposed by EPA 
are excessive. Mr. Porcaro further commented that it would cost an 
excess of $10,000 per year to have access to Ford, GM, Chrysler and one 
import for one year. Mr. Porcaro commented that more reasonable price 
caps would be $15 for 24 hour access, $45 for 30 day access and $250 
for yearly access. Mr. Porcaro commented that his proposed pricing 
structure would be more consistent with current sources of information 
utilized by the aftermarket. Mr. Porcaro also commented that phrase 
``reasonable cost'' must be revisited because the phrase has many 
interpretations. What is reasonable to one may not be reasonable to 
another and EPA must allow the aftermarket repair industry reasonable 
access to the needed information and tools. Mr. Porcaro commented that 
the ability to have the aftermarket scan tool manufacturers receive 
generic and enhanced information for a reasonable fee must be part of 
the federal certification of all vehicles for sale in the public market 
otherwise the information may not be released in a timely manner. 
Further, Mr. Porcaro states that the phrase ``reasonable cost'' must be 
revisited as this phrase has many interpretations. Further, EPA must 
allow the aftermarket repair industry reasonable access to the needed 
information and tools.
    The National Automobile Dealers Association (NADA) submitted 
written comments that EPA has no justification, statutory or otherwise, 
to regulate ythe cost of OBD information and that any attempt to do so 
exceeds EPA's authority. Further, NADA commented that EPA must take 
into consideration the cost to OEM dealerships for the same or similar 
information when determining if OBD service information is being made 
available at a fair and reasonable price to the aftermarket and that 
this factor should be included in the final regulations. NADA also 
included in their written comments responses to a survey they conducted 
at dealerships to provide EPA with an idea of what dealers are paying 
for tools, training, and information. Lastly, NADA commented that it 
takes a significant investment in tools, training, and information in 
order to service ``high tech'' vehicles and that any vehicle 
maintenance facility unwilling or unable to make those investments 
should be dissuaded, if not prohibited, from working on OBD repairs.
    ETI commented that the Alliance and AIAM submitted nearly 4 pages 
of unsupportive comment on the issue of the cost of service 
information. ETI contends that this demonstrates the OEMs lack of 
interest in trying to provide the most information at the least cost. 
ETI further commented that OEMs should be concentrating more on whether 
their vehicles are being adequately serviced and about whether the 
customer is having a positive service experience. To this end, ETI 
commented that they do not understand why OEMs don't try to use every 
means possible to make sure that everyone has the required information 
they need.
    The Aftermarket Consortium commented that, while section 202 (m)(5) 
of the Clean Air Act does not specifically include a reference to cost, 
it was evident that Congress clearly understood the importance of cost 
as it relates to the availability of information. They also commented 
that EPA also understood the importance of cost when finalizing the 
1995 rule by connecting the availability of information to the ability 
to afford information. The industry associations also proposed that EPA 
adopt the criteria that the California Air Resources Board (CARB) is 
considering to help define the reasonable cost of service information. 
The industry associations also supported the comments made by AERA and 
APRA that the final rule should say that EPA ``will'' consider certain 
criteria when making reasonable cost determinations as to the language 
used in the proposed rule that EPA ``may'' consider certain criteria 
when making such determinations.
    The industry associations also commented that they support EPA's 
tiered approach for aftermarket access to the OEM Web sites. However, 
they do express concern that the price caps proposed by EPA will be 
beyond the means of most independent service facilities. Because most 
shops specialize in numerous makes and models, EPA's pricing structure 
could mean it would cost a shop tens of thousands of dollars in annual 
Web access fees, and these costs don't even include tools or other 
information updates, or non-emissions related information. They also 
expressed concerns that the caps may encourage all OEMs to charge the 
maximum amount allowed under by the caps. Finally, they commented that 
EPA should lower the proposed cap limits to take into consideration the 
factors outlined in their comments on this issue.
    Mr. Bob Clark of Clark Automotive Systems submitted written 
comments suggesting that all information needed to service a vehicle 
should become the property of the owner of the vehicle when it is 
purchased. Mr. Clark commented that the meaning of ``available'' and 
``reasonably priced'' service information must maintain the consumer's 
right to choose in a competitive market place. Mr. Clark further 
commented that if the OEMs are allowed to restrain trade in the 
automotive repair industry by claiming intellectual property rights to 
their information, the result will be a reduction in a consumer's 
choice in where their vehicle is diagnosed and serviced.
    EPA Decision: On the general issue of cost, EPA has said since our 
initial regulation of service information availability that cost is an 
integral factor influencing the availability of service information. 
The legislative history of this provision supports the view that 
Congress was concerned regarding the cost of service information and 
did not want service information to become a profit center for OEMs. 
The Clean Air Act requires that service information must be made 
available to any person engaged in the repairing or servicing of motor 
vehicles. This includes persons who service motor vehicles at large 
repair facilities, as well as service personnel at the smallest gas 
stations; it includes facilities that specialize in servicing a single 
vehicle brand, as well as shops that work on multiple vehicle brands. 
The legislative history explains this intent:

    The purpose of the amendment is to make sure that * * * the 
manuals, the techniques, are available to, in effect the local gas 
stations so that they will be more convenient for the automobile 
owner, that the automobile owner will not have to trek off to some 
dealer 30 miles away in order to be able to correct problems that 
have arisen with his automobile. * * * We want [manufacturers] to 
provide the information which will allow competition in the after 
market and allow small business operators to get in the repair 
business. 36 Cong. Rec. 3272 (1990).

    We believe the Act's mandate will have been met only if the 
emission control service information is available to persons in all of 
these situations.
    While the Clean Air Act does not specify the price that OEMs should 
be allowed to charge for service information, it does appear that 
Congress intended that the price of obtaining this information should 
not be so high that it significantly affects

[[Page 38444]]

competition between OEM franchised dealers and independent service 
stations. The legislative history states:

    There again, when we require them 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. 36 Cong. Rec. 3272 (1990).

    Since independent service stations may repair vehicles manufactured 
by many different companies, they may be competitively disadvantaged if 
the cost of each manufacturer's service information were large. There 
can be little question that information provided only at exorbitant 
prices cannot be said to be ``available'' to the purchasers.
    We continue to be concerned that OEMs will establish pricing 
structures that will essentially render their information unavailable 
to the aftermarket. In the 1995 rule, we established factors that 
should be taken into consideration when determining if the prices being 
charged were fair and reasonable. We received comments from the 
Alliance, AIAM, AAIA, AWDA, AERA, and APRA and others suggesting that 
EPA include the factors we established for the 1995 rulemaking when 
making general determinations about fair and reasonable cost. 
Additionally, we received comments suggesting that EPA should also 
include the list established by CARB in their September 2002 final rule 
which includes factors that are directed at determining fair and 
reasonable cost. There is extensive overlap between the EPA list and 
the factors finalized by CARB and we agree that items on both of these 
lists should be considered when determining fair and reasonable cost 
and will include them in this final rule.
    EPA will therefore include certain of the factors from CARB's list 
to supplement EPA's preexisting list. In particular, in addition to the 
factors that EPA may already take into account under EPA's preexisting 
list, we will include: The cost to the OEM's franchised dealerships for 
similar information obtained from OEMs; the ability of the aftermarket 
technicians and shops to afford the information; and the extent to 
which the information is used, including the number of users, and 
frequency, duration and volume of use.
    Regarding the comments that the proposal notes the factors EPA 
``may'' consider, rather than ``shall'' consider, EPA believes that 
given the differing types of information required by the regulation and 
the numerous factors listed, it is appropriate that there be 
flexibility in determining what factors are appropriate in each given 
situation.
    On the issue of price caps proposed for access to OEM Web sites, 
EPA received a significant amount of comments, most of which were 
against the proposal. Some OEMs questioned our authority to set price 
caps and several members of the aftermarket claimed that the caps were 
too high. While we believe that EPA has the authority to set price caps 
and that the caps proposed by EPA would provide us with a more 
objective measure of OEM compliance with our reasonable cost 
expectations, we will not finalize any price caps with this regulation. 
However, EPA believes it is necessary to thoroughly evaluate the 
pricing structure of each OEM Web site to ensure that information is 
being made available at a fair and reasonable price, and that OEMs are 
not pricing Web access in such a way that precludes its availability to 
a significant portion of the aftermarket. Therefore, in order to 
evaluate an OEM's pricing structure, we are establishing a process 
whereby each OEM must obtain EPA approval of its pricing structure. 
OEMs must submit a request to EPA that sets forth a detailed 
description of the pricing structure as well as amounts for access to 
their Web sites. In addition, OEMs must provide support for the 
position that the pricing structure and amounts are fair and reasonable 
by addressing the criteria listed in sections 86.094-38, paragraph 
(g)(7)(i) and 86.1808-03, paragraph (f)(7)(i) of the regulatory 
language for this final rule. Some of these criteria are further 
clarified below.
    Regarding the net cost to the OEM franchised dealerships for 
similar information obtained from OEMs, less any discounts, rebates, or 
other incentive programs, EPA expects that OEMs will supply detailed 
information on the true costs that are incurred by their franchised 
dealerships to access information.
    Regarding the ability of aftermarket technicians or shops to afford 
the information, EPA will consider the ability of the smallest service 
facilities as well as larger repair facilities. This includes 
facilities that either specialize in single or multiple vehicle brands, 
or that work on all brands.
    Regarding the extent to which the information is used, this 
includes the number of users, and frequency, duration, and volume of 
use. EPA expects that as larger numbers of the aftermarket begin 
accessing OEM Web sites, the pricing and amounts for accessing the 
sites per customer should decrease.
    A complete description of the approval process can be found in 
sections 86.094-38, paragraph (g)(7)(ii) and 86.1808-03, paragraph 
(f)(7)(ii) of the regulatory language for this final rule. Subsequent 
to the approval of the OEM Web site pricing structure and amounts, OEMs 
are required to notify the Administrator of any increase in price of 
twenty percent or more (accounting for inflation), including a 
justification based on the criteria for reasonable cost as established 
by this regulation.
    Regarding the comments on the proposed tiering structure, EPA 
believes that it is necessary for the aftermarket to be able to access 
OEM information in a variety of ways given the varying nature of how 
the aftermarket services vehicles. However, we also agree with OEMs 
that it is reasonable for them to have some flexibility in how they 
design these tiers in order to ensure end-user satisfaction and to 
provide the OEMs with the ability to minimize the administrative burden 
in implementing a tiered approach. Therefore, EPA will finalize the 
following provisions for the tiered access of OEM Web sites.
    OEMs shall allow short-term, mid-term, and long-term access to 
their Web sites. Short term access shall be for a period of 24-72 
hours. Mid-term access shall be for a period of 30 days. Long-term 
access shall be for a period of 365 days. Access includes the ability 
to view and print the information. Based on comments received about 
potential copyright violations, EPA will not require OEMs to make their 
information available for downloading on to an end-user's computer 
system.
    In addition, for each of the tiers, OEMs are required to make their 
entire site accessible for the respective period of time and price. In 
other words, an OEM may not limit any or all of the tiers to just one 
make or one model.
    Regarding the Alliance and AIAM's legal discussion, EPA disagrees 
with the assertion that the Agency's responsibility for ensuring 
service information is provided to service providers is subsidiary to 
its other responsibilities under the Act. Section 202(m)(5) contains no 
language indicating that EPA's responsibilities and powers under that 
part of the Act are somehow limited by its other general 
responsibilities under the Act. Regarding the effect of these 
regulations or OEMs' incentives to provide timely, detailed user-
friendly service information, Congress did not mandate that EPA create 
an incentive program to motivate OEMs, but instead Congress mandated 
that EPA promulgate regulations that bind their actions.

[[Page 38445]]

OEMs are required to provide the information in this regulation in a 
timely user-friendly manner. Though EPA understands that OEMs will be 
more motivated to do this if they receive more money, the requirements 
in these regulations are not dependent on OEMs' motivation. In order to 
accomplish Congress's intent to ensure service providers receive the 
information needed to make emission-related diagnosis, service and 
repair, the desire of OEMs to be compensated for providing such 
information must be tempered by the need for service and repair 
personnel to be able to afford such information. The regulations 
therefore allow OEMs to charge for this information, but the charges 
must be fair and reasonable.
    Regarding their claim that these regulations may interfere with 
copyright protections, the cases cited deal only with a state law and, 
in an irrelevant context, an executive order. They do not deal with a 
federal statute that on its face requires the disclosure of information 
that may be copyrighted. It is clear from the statutory language and 
the legislative history that these materials (e.g. service manuals), 
which are generally available to at least some members of the public, 
are among the types of materials that Congress intended to be provided 
by this legislation. See Statements of Sens. Chafee and Gore , 136 
Cong. Rec. 5391-92 (S3272) (March 27, 1990). It is worth noting that 
Congress cited specifically to the ``trade secret protections'' of 
section 208(c) but did not refer to the very different protections in 
copyright law.
    Regarding the Alliance and AIAM comments on EPA's ability to set 
prices, though EPA does not agree with these comments, as discussed 
above, EPA is not finalizing its proposal to set specific prices for 
service information, though EPA retains its preexisting authority to 
ensure that costs be reasonable.
    EPA does not agree with the comments submitted by Mr. Haven that 
the aftermarket should have free access to OEM information, though EPA 
does agree that some current prices appear exorbitant. The legislative 
history on the issue is quite clear that Congress understood that there 
were some costs incurred by the OEMs for making information available 
that were recoverable, but that this needed to be balanced with any 
attempts by the OEMs to either price information in such a way that it 
was not available or to turn aftermarket access to information into a 
profit center.
    In response to Mr. Truglia and Mr. Clark's comments that the most 
effective way to ensure that all information is available to both 
dealers and aftermarket technicians is to include a CD or manual with 
the purchase of every new vehicle, EPA believes that, while there is 
some merit to this proposal, it would not necessarily solve aftermarket 
concerns to the availability and affordability of information. First, 
OEM service information is subject to amendment and the addition of new 
information (e.g. technical service bulletins) which would mean that 
any information included with the purchase of a new vehicle would be 
out of date or incomplete which will still put the aftermarket in a 
position of somehow working with an OEM to determine if they have the 
latest information.
    Additionally, a vehicle is likely to change ownership several times 
during its useful life and there is no guarantee that the information 
that came with the vehicle will remain with the vehicle. Again, the 
aftermarket would be in a position of having to obtain this information 
directly from the OEM
    In response to Mr. Truglia's proposal that new vehicles could be 
installed with microchips that could take the place of the CD or paper 
manual, while there may be some advantage to this approach in the 
future, EPA is not in a position to finalize such a provision without 
further research and debate on the feasibility of such an approach and 
its costs and benefits to the service and repair of vehicles.

E. Availability of Enhanced Information for Scan Tools

    Summary of Proposal: We proposed to require an increased level of 
enhanced information to be made available to equipment and tool 
companies to develop more functional aftermarket diagnostic scan tools.
    We proposed that within 30 days of publication of the final rule 
OEMs make available to companies who develop aftermarket scan tools all 
generic and enhanced service information for MY 1996 and later needed 
to manufacture diagnostic tools that can be used by aftermarket 
technicians to diagnose, service and repair emission-related components 
and systems. Enhanced service and repair information is defined as 
information which is specific for an original equipment OEM's brand of 
tools and equipment. Generic service and repair information is defined 
as information which is not specific for an original equipment OEM's 
brand of tools and equipment.
    In addition, we proposed that OEMs provide information that 
describes which interfaces or combination of interfaces, from each of 
the categories in the sections above are used on each vehicle. This may 
be organized by application, system or a combination of both provided 
the information identifies which interfaces are used on each vehicle's 
system/model/model year. OEMs may use the New Product Information 
Guideline (NPIG) created by the Equipment and Tool Institute (ETI) as a 
guide to help meet this requirement or provide a substitute matrix 
approved by the Administrator.
    We proposed that enhanced information includes, but is not limited 
to:
    (a) All serial data stream information
    (b) Bi-directional controls (e.g., operation of actuators, 
initiation of self-checks, etc.) Including any safety precautions 
necessary prior to invoking the controls.
    (c) Descriptions of non-proprietary logic and performance limits 
and specifications used in the OEM specific tools to perform diagnostic 
routines or sub-routines (E.g., injector or cylinder balance tests, 
etc.)
    (d) The physical hardware requirements for reprogramming events or 
tools (e.g. system voltage requirements, cable terminals/pins, 
connections such as RS232 or USB, wires, etc.);
    (e) ECU data communication (e.g. serial data protocols, 
transmission speed or baud rate, bit timing requirements, etc.);
    (f) Information on the application physical interface (API) or 
layers (i.e., processing algorithms or software design descriptions for 
procedures such as connection, initialization, performing and verifying 
programming/download, and termination);
    (g) vehicle application information or any other related service 
information such as special pins and voltages for reprogramming events 
or additional vehicle connectors that require enablement and 
specifications for the enablement.
    Summary of Comments: STS commented that they agree that EPA's 
proposed description of enhanced diagnostic information is sufficient.
    The Alliance and AIAM commented that EPA proposed that data stream 
information also be made available to equipment and tool companies. In 
particular, the Alliance and AIAM commented that EPA's definition of 
data stream information includes the words ``information * * * for use 
by other modules * * * to conduct normal vehicle operation or for use 
by diagnostic tools.'' The Alliance and AIAM do not take issue with 
making available data stream information required for diagnostic 
purposes. However, they do take issue with

[[Page 38446]]

making available data stream information related to normal vehicle 
operation. The Alliance and AIAM further commented that they do make 
this information available when it is directly related to diagnostics, 
but there are instances where scaling of this information may be 
different and the data may be combined differently with other data 
values. The Alliance and AIAM request that EPA clarify that only data 
stream information required for diagnostic purposes, and not the 
redundant data stream information used for normal operation, be made 
available to equipment and tool companies.
    BMW commented that they interpret section (g)(12) as requiring OEMs 
to provide generic scan tool companies information needed to enable 
scan tools. BMW commented that it was in agreement in principle with 
these sections but needed clarification. In particular, BMW comments 
that sections (g)(11) and (g)(12) of the proposed regulatory language 
appear to be contradictory. In section (g)(11) of the proposed 
regulatory language, EPA proposed that OEMs make available 
reprogramming procedures, including ``information on application 
physical interface (API) or layers (i.e., processing algorithms or 
software design descriptions for procedures such as connection, 
initialization, performing and verifying programming/download, and 
termination)''. In addition section g(11)(vii)(A), (B), and (D) specify 
additional reprogramming-related information. However, section (12)(ii) 
seems to intend that OEMs provide information for generic scan tools to 
work with l996 and later model year vehicles, and proposes that the 
same list of information be released for both reprogramming and generic 
scan tools. BMW commented that scan tool companies only need data 
stream information to enable capture and readout of generic and 
enhanced fault codes and reprogramming information is not necessary for 
developing generic diagnostic scan tools.
    BMW is opposed to the release of any information to equipment and 
tool companies that would allow them to incorporate reprogramming 
capabilities because BMW considers this information to be proprietary 
information and BMW sees an extensive need for verification of these 
tools. In addition, BMW is able to implement the SAE J2534 
specification for its 1999--2003 model year vehicles and can comply 
with the required release of information to the equipment and tool 
companies the information described above for the extra cable to allow 
for reprogramming of their vehicles. BMW commented that they do not 
have the resources to support tool and equipment companies who face 
challenges in developing these reprogramming tools.
    BMW also made recommendations as to how section (g)(11) and (g)(12) 
should be rewritten to more clearly address what BMW believes EPA 
intends to accomplish.
    EPA Decision: In response to BMW's comments, several clarifying 
points should be made. In paragraphs g(11) and g(12) of the proposed 
regulatory language, EPA proposed two distinct provisions to deal with 
two distinct issues. In paragraph g(11), we proposed that OEMs make 
available certain information to equipment and scan tool companies to 
allow for them to incorporate the reprogramming capability into 
aftermarket scan tools prior to the implementation of the pass-through 
reprogramming requirement (i.e. SAE J2534) in order to cover 1996-2002 
model year vehicles. In paragraph g(12), we proposed that OEMs make an 
increased level of enhanced diagnostic information available to 
aftermarket to companies. In the 1995 regulations,EPA finalized a 
rather generic provision that required OEMs to make available enhanced 
diagnostic information to the equipment and tool companies for 
incorporation into aftermarket tools. Other than specifically noting 
that emissions-related data stream information be included, we left the 
interpretation up to the OEM as to what was considered enhanced 
diagnostic information. We found that the few OEMs who chose the option 
of releasing information to equipment and tool companies (rather than 
make their OEM specific tool for sale which was the other option 
available to OEMs and the one that most chose to meet the scan tool 
requirement) had different interpretations of what was considered 
``enhanced diagnostic information.'' As a result, there was a fair 
amount of difference among the OEMs in the information made available 
to equipment and tool companies. In addition to the variety of 
interpretations of ``enhanced diagnostic information'', our experience 
in implementing the 1995 rule highlighted that there are very specific 
pieces of information needed by equipment and tool companies to ensure 
that aftermarket tools perform to their maximum capacity. As a result, 
equipment and tool companies were not able to develop aftermarket tools 
that adequately performed the enhanced diagnostic functions found in 
OEM tools. Therefore, we proposed more specific provisions for two 
important reasons. First, we believe it is necessary to increase the 
consistency of information that is released to aftermarket tool 
companies across OEMs to address some of the gaps we believe currently 
exist. Second, we believe a higher level of information is needed by 
aftermarket scan tools to increase the functionality of the aftermarket 
scan tools that are heavily relied upon by independent technicians. EPA 
is not finalizing a provision that will require OEMs to release the 
information that was proposed in the NPRM unless they cannot use SAE 
J2534 methods on 1996 to 2003 model year vehicles. Therefore, we 
believe BMW's concerns about section g(11) of the proposed regulatory 
language have been addressed.
    With regard to the release of information to equipment and tool 
companies, we agree with BMW that there does appear to be some 
confusion in the lists of information that EPA proposed for both the 
reprogramming and generic and enhanced scan tool information sections 
in the regulatory language. In fact, the lists as proposed in these 
sections of the regulatory language contain some factual and 
typographical errors which are corrected here and in the final 
regulatory language. In sections (g)(12)(ii) and (f)(12)(ii) of the 
proposed regulatory language (``Reprogramming Information''), we 
included language that would require OEMs to make available to 
equipment and tool companies the necessary calibrations via CD-ROM, 
diskette, or the Internet (item E). This particular piece of 
information is one that would be purchased by an aftermarket service 
provider to complete a reprogramming event and therefore belongs in the 
``Reprogramming Information'' section of the final regulatory language, 
which can be found in sections (g)(12) and (f)(12) of the regulatory 
language. Ultimately, we believe that the information we proposed to be 
made available is necessary for equipment and tool manufacturers to 
develop aftermarket scan tools with the same sophisticated 
functionality as is provided to dealerships using an OEM scan tool. In 
addition, we believe that the list of information we are finalizing 
today is not proprietary in nature and therefore should not concern 
OEMs. Therefore, we will finalize a provision that requires the OEMs to 
make available to equipment and tool companies the following 
information.
    (A) The physical hardware requirements for data communication (e.g. 
system voltage requirements, cable terminals/pins, connections such as 
RS232 or USB, wires, etc.)
    (B) ECU data communication (e.g. serial data protocols, 
transmission speed

[[Page 38447]]

or baud rate, bit timing requirements, etc),
    (C) Information on the application physical interface (API) or 
layers. (i.e., processing algorithms or software design descriptions 
for procedures such as connection, initialization, and termination)
    (D) Vehicle application information or any other related service 
information such as special pins and voltages or additional vehicle 
connectors that require enablement and specifications for the 
enablement.

VI. What Are the Administrative Requirements for This Final Rule?

A. EO 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735 October 4, 1993), EPA must 
determine whether the regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of this Executive Order. The Order defines a 
``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.

    EPA has 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. Paperwork Reduction Act

    The information collection requirements in this rule will be 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
information collection requirements are not enforceable until OMB 
approves them.
    An Information Collection Request (ICR) document has been prepared 
by EPA (ICR No.0783.45). EPA has established a public docket for this 
ICR under Docket ID A-2000-49, which is available for viewing at the 
EPA Air Docket (see the Addresses section for more information).
    Respondent burden has been estimated by consulting with private 
companies who perform Web site performance measurement for a wide 
variety of clients. EPA estimates that each manufacturer can purchase 
software or services from private companies that can perform Web site 
performance activities for approximately $1000. EPA estimates that each 
manufacturer will spend approximately $250 per month to gather and 
maintain the information proposed to be collected for a total of $3000 
per year per manufacturer. EPA estimates that the 45 potential 
respondents will incur approximately 100 burden hours per year.
    Under Title II of the Clean Air Act, (42 U.S.C. 7521 et seq.), EPA 
is charged with requiring the manufacturers of vehicles and engines to 
make available emissions-related repair information to aftermarket 
service providers. To improve timely access to this information, EPA is 
requiring that vehicle and engine manufacturers provide access to the 
required emissions-related information in full-text via the World Wide 
Web. To ensure compliance with these statutes, EPA is requiring that 
manufacturers measure the performance of their Web sites as outlined in 
Section II.B(3)(b) of this preamble and report this information to EPA 
in electronic format on an annual basis. EPA will review the 
information to determine that the manufacturers subject to the proposed 
Web site requirements have developed Web sites with sufficient 
infrastructure to support potentially thousands of aftermarket service 
providers at any given time.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, generally 
requires federal agencies to conduct a regulatory flexibility analysis 
of any rule subject to notice and comment rulemaking requirements 
unless the agency certifies that the rule will not have a significant 
economic impact on a substantial number of small entities. Small 
entities include businesses, small not-for-profit enterprises, and 
small governmental jurisdictions. This final rule would not have a 
significant impact on a substantial number of small entities because 
the regulated entities impacted by this rulemaking would not be 
considered small entities.
    Therefore, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory action on state, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by state, local, and tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year. Before promulgation an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    Before we establish any regulatory requirement that may 
significantly or uniquely affect small governments, including tribal 
governments, we must develop, under section 203 of the UMRA, a small 
government agency plan. The plan must provide for notifying potentially 
affected small governments, enabling officials of affected small 
governments to have

[[Page 38448]]

meaningful and timely input in the development of our regulatory 
proposals with significant federal intergovernmental mandates. The plan 
must also provide for informing, educating, and advising small 
governments on compliance with the regulatory requirements.
    EPA believes this final rule contains no federal mandates for 
state, local, or tribal governments. Nor does this rule have federal 
mandates that may result in the expenditures of $100 million or more in 
any year by the private sector as defined by the provisions of Title II 
of the UMRA. Nothing in the final rule would significantly or uniquely 
affect small governments.

E. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule will impose no direct compliance costs on states. 
Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
The requirements proposed by this action impact private sector 
businesses, particularly the automotive and engine manufacturing 
industries. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Children's Health Protection

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be economically significant as 
defined under E.O. 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    EPA believes this final rule is not subject to the Executive Order 
because it is not an economically significant regulatory action as 
defined by E.O. 12866.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Pub. L. 104-113, 12(d) (15 U.S.C. 272), directs 
the EPA to use voluntary consensus standards (VCS) in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, business practices, etc.) that are developed or adopted by 
voluntary consensus standard bodies. The NTTAA requires EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This final rule incorporates by reference technical standards 
adopted by the Society of Automotive Engineers (SAE). We believe these 
standards are well accepted by industry.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to Congress and the Comptroller General of the United 
States. We will submit 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 United States prior to publication of 
the rule in the Federal Register. A major rule cannot take effect until 
60 days after it is published in the Federal Register. This action is 
not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be 
effective March 6, 2003.

List of Subjects in 40 CFR Part 86

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

    Dated: May 30, 2003.
Christine Todd Whitman,
Administrator.

0
For the reasons stated in the preamble, title 40, chapter I of the Code 
of Federal Regulations is amended as follows:

PART 86--CONTROL OF EMISSIONS FROM NEW AND IN-USE HIGHWAY VEHICLES 
AND ENGINES

0
1. The authority citation for part 86 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

0
2. Section 86.1(b)(2) table is amended by adding the following entries 
to the end of the table.


Sec.  86.1  Reference materials.

* * * * *
    (b) * * *
    (2) * * *

------------------------------------------------------------------------
          Document No. and name               40 CFR part 86 reference
------------------------------------------------------------------------
 
                                * * * * *
SAE Recommended Practice J1930 (Revised,   86.096-38; 86.004-38; 86.007-
 May, 1998), Electrical/ Electronic         38; 86.1808-01; 86.1808-07.
 Systems Diagnostic Terms, Definitions,
 Abbreviations, and Acronyms.

[[Page 38449]]

 
SAE Recommended Practice J1979 (Revised,   86.096-38; 86.004-38; 86.007-
 September, 1997), E/E Diagnostic Test      38; 86.1808-01; 86.1808-07.
 Modes.
SAE Recommended Practice J2284-3 (May,     86.096-38; 86.004-38; 86.007-
 2001), High Speed CAN (HSC) for Vehicle    38; 86.1808-01; 86.1808-07.
 Applications at 500 KBPS.
SAE Recommended Practice J2534 (February,  86.096-38; 86.004-38; 86.007-
 2002), Recommended Practice for Pass-      38; 86.1808-01; 86.1808-07.
 Thru Vehicle Programming.
------------------------------------------------------------------------

* * * * *

0
3. Section 86.094-38 is amended by adding paragraph (g)(21) to read as 
follows:


Sec.  86.094-38  Maintenance instructions.

* * * * *
    (g) * * *
    (21) Beginning December 24, 2003, rather than meeting the 
requirements of paragraphs (g)(5) through (g)(9) of this section, a 
manufacturer must upload the required information in full text on its 
manufacturer-specific Web site as required in Sec.  86.096-38 (g)(3), 
except that for models not covered by Sec.  86.096-38 but covered by 
Sec.  86.094-38, a manufacturer may upload an index of the required 
information on its Web site consistent with paragraphs (g)(5), (g)(6), 
and (g)(9) of this section. Manufacturers who upload an index must 
allow parties identified in paragraph (g)(1) of this section to obtain 
information listed in the index either directly from the Web site, or 
from an alternate source whose telephone number is listed on the 
manufacturer Web site, or from a Web site hyperlinked to the 
manufacturer Web site. Manufacturers must also provide the price of 
each item listed, as well as the price of items ordered on a 
subscription basis. To the extent that any additional information is 
added or changed for these model years, manufacturers shall update the 
index as appropriate. Manufacturers will be responsible for ensuring 
that all requested information, whether requested directly from the 
manufacturer or the manufacturer's information distributors shall be 
distributed within one regular business day of receiving the order. 
Items that are less than 20 pages (e.g. technical service bulletins) 
shall be faxed, if requested, to the requestor and manufacturers are 
required to deliver the information overnight if requested and paid for 
by the ordering party.

0
4-6. Section 86.096-38 is added to read as follows:


Sec.  86.096-38  Maintenance instructions.

    This section includes text that specifies requirements that differ 
from those specified in Sec.  86.087-38. Where a paragraph in Sec.  
86.087-38 is identical and applicable to Sec.  86.096-38, this may be 
indicated by specifying the corresponding paragraph and the statement 
``[Reserved]. For guidance see Sec.  86.087-38.''
    (a) through (f) [Reserved]. For guidance see Sec.  86.087-38.
    (g) Emission control diagnostic service information:
    (1) Manufacturers are subject to the provisions of this paragraph 
(g) beginning in the 1996 model year for manufacturers of light-duty 
vehicles and light-duty trucks, and beginning in the 2005 model year 
for manufacturers of heavy-duty vehicles and heavy-duty engines 
weighing 14,000 pounds gross vehicle weight (GVW) and less that are 
subject to the OBD requirements of this part.
    (2) General requirements. (i) 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 instructions 
for making emission-related diagnoses and repairs, including but not 
limited to service manuals, technical service bulletins, recall service 
information, bi-directional control information, and training 
information, unless such information is protected by section 208(c) of 
the Act 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.
    (ii) Definitions. The following definitions apply for this 
paragraph (g):
    (A) Aftermarket service provider means any individual or business 
engaged in the diagnosis, service, and repair of a motor vehicle or 
engine, who is not directly affiliated with a manufacturer or 
manufacturer-franchised dealership.
    (B) 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.
    (C) 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 more communication 
wires. The information is broadcast over the communication wires for 
use by the OBD system to gather information on emissions-related 
components or systems and from other vehicle modules that may impact 
emissions, including but not limited to systems such as chassis or 
transmission. For the purposes of this section, data stream information 
does not include engine calibration-related information, or any data 
stream information from systems or modules that do not impact 
emissions.
    (D) Emissions-related information means any information related to 
the diagnosis, service, and repair of emissions-related components. 
Emissions-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:
    (1) The engine, the fuel system and ignition system,
    (2) Information for any system, component or part that is likely to 
impact emissions, such as transmission systems, and any other 
information specified by the Administrator to be relevant to the 
diagnosis and repair of an emissions-related problem; and
    (3) Any other information specified by the Administrator to be 
relevant for the diagnosis and repair of an emissions-related failure 
found through the inspection and maintenance program after such finding 
has been communicated to the affected manufacturer(s).
    (E) Emissions-related training information means any information-
related training or instruction for the purpose of the diagnosis, 
service, and repair of emissions-related components.
    (F) Enhanced service and repair information means information which 
is specific for an original equipment manufacturer's brand of tools and 
equipment. This includes computer or anti-theft system initialization 
information necessary for the

[[Page 38450]]

completion of any emissions-related repair on motor vehicles that 
employ integral vehicle security systems.
    (G) Equipment and tool company means a registered automotive 
equipment or software company either public or private that is engaged 
in, or plans to engage in, the manufacture of automotive scan tool 
reprogramming equipment or software.
    (H) Generic service and repair information means information which 
is not specific for an original equipment manufacturer's brand of tools 
and equipment.
    (I) 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). This includes computer or anti-theft system initialization 
information necessary for the completion of any emissions-related 
repair on motor vehicles that employ integral vehicle security systems.
    (J) Intermediary means any individual or entity, other than an 
original equipment manufacturer, which provides service or equipment to 
aftermarket service providers.
    (K) Manufacturer-franchised dealership means any service provider 
with which a manufacturer has a direct business relationship.
    (L) Third-party information provider means any individual or 
entity, other than an original equipment manufacturer, who consolidates 
manufacturer service information and makes this information available 
to aftermarket service providers.
    (M) Third-party training provider means any individual or entity, 
other than an original equipment manufacturer who develops and/or 
delivers instructional and educational material for automotive training 
courses.
    (3) Information dissemination. By December 24, 2003, each 
manufacturer shall provide or cause to be provided to the persons 
specified in paragraph (g)(2)(i) of this section and to any other 
interested parties a manufacturer-specific World Wide Web site 
containing the information specified in paragraph (g)(2)(i) of this 
section for 1996 and later model year vehicles which have been offered 
for sale; this requirement does not apply to indirect information, 
including the information specified in paragraphs (g)(12) through 
(g)(16) of this section. Upon request and approval of the 
Administrator, manufacturers who can demonstrate significant hardship 
in complying with this provision within four months after the effective 
date may request an additional six months lead time to meet this 
requirement. Each manufacturer Web site shall:
    (i) Provide access in full-text to all of the information specified 
in paragraph (g)(5) of this section.
    (ii) Be updated at the same time as manufacturer-franchised 
dealership World Wide Web sites;
    (iii) Provide users with a description of the minimum computer 
hardware and software needed by the user to access that manufacturer's 
information (e.g., computer processor speed and operating system 
software). This description shall appear when users first log-on to the 
home page of the manufacturer Web site.
    (iv) Provide Short-Term (24 to 72 hours), Mid-Term (30 day period), 
and Long-Term (365 day period) Web site subscription options to any 
person specified in paragraph (g)(2)(i) of this section whereby the 
user will be able to access the site, search for the information, and 
purchase, view and print the information at a fair and reasonable cost 
as specified in paragraph (g)(7) of this section for each of the 
subscription options. In addition, for each of the subscription 
options, manufacturers are required to make their entire site 
accessible for the respective period of time and price. In other words, 
a manufacturer may not limit any or all of the subscription options to 
just one make or one model.
    (v) Allow the user to search the manufacturer Web site by various 
topics including but not limited to model, model year, key words or 
phrases, etc., while allowing ready identification of the latest 
vehicle calibration. Manufacturers who do not use model year to 
classify their vehicles in their service information may use an 
alternate vehicle delineation such as body series. Any manufacturer 
utilizing this flexibility shall create a cross-reference to the 
corresponding model year and provide this cross-reference on the 
manufacturer Web site home page.
    (vi) Provide accessibility using common, readily available software 
and shall not require the use of software, hardware, viewers, or 
browsers that are not readily available to the general public. 
Manufacturers shall also provide hyperlinks to any plug-ins, viewers or 
browsers (e.g. Adobe Acrobat or Netscape) needed to access the 
manufacturer Web site.
    (vii) Allow simple hyper-linking to the manufacturer Web site from 
government Web sites and automotive-related Web sites.
    (viii) Allow access to the manufacturer Web site with no limits on 
the modem speed by which aftermarket service providers or other 
interested parties can connect to the manufacturer Web site.
    (ix) Possess sufficient server capacity to allow ready access by 
all users and have sufficient capacity to assure that all users may 
obtain needed information without undue delay.
    (x) Correct or delete broken Web links on a weekly basis.
    (xi) Allow for Web site navigation that does not require a user to 
return to the manufacturer home page or a search engine in order to 
access a different portion of the site.
    (xii) Allow users to print out any and all of the materials 
required to be made available on the manufacturer Web site including 
the ability to print it at the user's location.
    (4) Small volume provisions for information dissemination. (i) 
Manufacturers with annual sales of less than 5,000 vehicles shall have 
until June 28, 2004 to launch their individual Web sites as required by 
paragraph (g)(3) of this section.
    (ii) Manufacturers with annual sales of less than 1,000 vehicles 
may, in lieu of meeting the requirement of paragraph (g)(3) of this 
section, request the Administrator to approve an alternative method by 
which the required emissions-related information can be obtained by the 
persons specified in paragraph (g)(2)(i) of this section.
    (5) Required information. All information relevant to the diagnosis 
and completion of emissions-related repairs shall be posted on 
manufacturer Web sites. This excludes indirect information specified in 
paragraphs (g)(6) and (g)(12) through (g)(16) of this section. To the 
extent that this information does not already exist in some form for 
their manufacturer franchised dealerships, manufacturers are required 
to develop and make available the information required by this section 
to both their manufacturer franchised dealerships and the aftermarket. 
The required information includes, but is not limited to:
    (i) Manuals, including subsystem and component manuals developed by 
a manufacturer's third party supplier that are made available to 
manufacturer franchised dealerships, technical service bulletins 
(TSBs), recall service information, diagrams, charts, and training 
materials. Manuals and other such service information from third party 
suppliers are not required to be made available in full-text on 
manufacturer Web sites as described in paragraph (g)(3) of this 
section. Rather, manufacturers must make available on the manufacturer 
Web site as required by paragraph (g)(3) of this section an index of 
the relevant information and

[[Page 38451]]

instructions on how to order such third party information. In the 
alternative, a manufacturer can create a link from its Web site to the 
Web site(s) of the third party supplier.
    (ii) OBD system information which includes, but is not limited to, 
the following:
    (A) A general description of the operation of each monitor, 
including a description of the parameter that is being monitored;
    (B) A listing of all typical OBD diagnostic trouble codes 
associated with each monitor;
    (C) A description of the typical enabling conditions (either 
generic or monitor-specific) for each monitor (if equipped) to execute 
during vehicle operation, including, but not limited to, minimum and 
maximum intake air and engine coolant temperature, vehicle speed range, 
and time after engine startup. In addition, manufacturers shall list 
all monitor-specific OBD drive cycle information for all major OBD 
monitors as equipped including, but not limited to, catalyst, catalyst 
heater, oxygen sensor, oxygen sensor heater, evaporative system, 
exhaust gas re-circulation (EGR), secondary air, and air conditioning 
system. Additionally, for diesel vehicles under 14,000 pounds. GVWR 
which also perform misfire, fuel system and comprehensive component 
monitoring under specific driving conditions (i.e., non-continuous 
monitoring; as opposed to spark ignition engines that monitor these 
systems under all conditions or continuous monitoring), the 
manufacturer shall make available monitor-specific drive cycles. Any 
manufacturer who develops generic drive cycles, either in addition to, 
or instead of, monitor-specific drive cycles shall also make these 
available in full-text on manufacturer Web sites;
    (D) A listing of each monitor sequence, execution frequency and 
typical duration;
    (E) A listing of typical malfunction thresholds for each monitor;
    (F) For OBD parameters for specific vehicles that deviate from the 
typical parameters, the OBD description shall indicate the deviation 
and provide a separate listing of the typical values for those 
vehicles;
    (G) Identification and scaling information necessary to interpret 
and understand data available to a generic scan tool through ``mode 
6,'' pursuant to Society of Automotive Engineers SAE J1979, ``EE 
Diagnostic Test Modes'' (Incorporated by reference, see Sec.  86.1).
    (H) Algorithms, look-up tables, or any values associated with look-
up tables are not required to be made available.
    (iii) Any information regarding any system, component, or part of a 
vehicle monitored by the OBD system that could in a failure mode cause 
the OBD system to illuminate the malfunction indicator light (MIL);
    (iv) Any information on other systems that can effect the emission 
system within a multiplexed system (including how information is sent 
between emission-related system modules and other modules on a 
multiplexed bus);
    (v) Manufacturer-specific emissions-related diagnostic trouble 
codes (DTCs) and any related service bulletins, trouble shooting 
guides, and/or repair procedures associated with these manufacturer-
specific DTCs; and
    (vi) Information regarding how to obtain the information needed to 
perform reinitialization of any vehicle computer or anti-theft system 
following an emissions-related repair.
    (6) Anti-theft system initialization information. Computer or anti-
theft system initialization information and/or related tools necessary 
for the proper installation of on-board computers or necessary for the 
completion of any emissions-related repair on motor vehicles that 
employ integral vehicle security systems or the repair or replacement 
of any other emission-related part shall be made available at a fair 
and reasonable cost to the persons specified in paragraph (g)(2)(i) of 
this section.
    (i) Except as provided under paragraph (g)(6)(ii) of this section, 
manufacturers must make this information available to persons specified 
in paragraph (g)(2)(i) of this section, such that such persons will not 
need any special tools or manufacturer-specific scan tools to perform 
the initialization. Manufacturers may make such information available 
through, for example, generic aftermarket tools, a pass-through device, 
or inexpensive manufacturer-specific cables.
    (ii) A manufacturer may request Administrator approval for an 
alternative means to re-initialize vehicles for some or all model year 
vehicles through the 2007 model year by 1 month following the effective 
date of the final rule. The Administrator shall approve the request 
only after the following conditions have been met:
    (A) The manufacturer must demonstrate that the availability of such 
information to aftermarket service providers would significantly 
increase the risk of vehicle theft.
    (B) The manufacturer must make available a reasonable alternative 
means to install or repair computers, or to otherwise repair or replace 
an emission-related part.
    (C) Any alternative means proposed by a manufacturer cannot require 
aftermarket technicians to use a manufacturer franchised dealership to 
obtain information or special tools to re-initialize the anti-theft 
system. All information must come directly from the manufacturer or a 
single manufacturer-specified designee.
    (D) Any alternative means proposed by an manufacturer must be 
available to aftermarket technicians at a fair and reasonable price.
    (E) Any alternative must be available to aftermarket technicians 
within twenty-four hours of the initial request.
    (F) Any alternative must not require the purchase of a special tool 
or tools, including manufacturer-specific tools, to complete this 
repair. Alternatives may include lease of such tools, but only for 
appropriately minimal cost.
    (G) In lieu of leasing their manufacturer-specific tool to meet 
this requirement, a manufacturer may also release the necessary 
information to equipment and tool manufacturers for incorporation into 
aftermarket scan tools. Any manufacturer choosing this option must 
release the information to equipment and tool manufacturers within 60 
days of Administrator approval. Manufacturers may also comply with this 
requirement using SAE J2534 for some or all model years through model 
year 2007.
    (7) Cost of required information. (i) All information required to 
be made available by this section shall be made available at a fair and 
reasonable price. In determining whether a price is fair and 
reasonable, considerationmay be given to relevant factors, including, 
but not limited to, the following:
    (A) The net cost to the manufacturer-franchised dealerships for 
similar information obtained from manufacturers, less any discounts, 
rebates, or other incentive programs.
    (B) The cost to the manufacturer for preparing and distributing the 
information, excluding any research and development costs incurred in 
designing and implementing, upgrading or altering the onboard computer 
and its software or any other vehicle part or component. Amortized 
capital costs for the preparation and distribution of the information 
may be included.
    (C) The price charged by other manufacturers for similar 
information.
    (D) The price charged by manufacturers for similar information 
prior to the launch of manufacturer Web sites.
    (E) The ability of aftermarket technicians or shops to afford the 
information.

[[Page 38452]]

    (F) The means by which the information is distributed;
    (G) The extent to which the information is used, which includes the 
number of users, and frequency, duration, and volume of use.
    (H) Inflation.
    (ii) By August 25, 2003, each manufacturer shall submit to the 
Administrator a request for approval of their pricing structure for 
their Web sites and amounts to be charged for the information required 
to be made available under paragraphs (g)(3) and (g)(5) of this 
section. Subsequent to the approval of the manufacturer Web site 
pricing structure, manufacturers shall notify the Administrator upon 
the increase in price of any one or all of the subscription options of 
20 percent or more above the previously-approved price, taking 
inflation into account.
    (A) The manufacturer shall submit a request to the Administrator 
that sets forth a detailed description of the pricing structure and 
amounts, and support for the position that the pricing structure and 
amounts are fair and reasonable by addressing, at a minimum, each of 
the factors specified in paragraph (g)(7)(i) of this section.
    (B) The Administrator will act upon the request within 180 days 
following receipt of a complete request or following receipt of any 
additional information requested by the Administrator.
    (C) The Administrator may decide not to approve, or to withdraw 
approval for a manufacturer's pricing structure and amounts based on a 
conclusion that this pricing structure and/or amounts are not, or are 
no longer, fair and reasonable, by sending written notice to the 
manufacturer explaining the basis for this decision.
    (D) In the case of a decision by the Administrator not to approve 
or to withdraw approval, the manufacturer shall within three months 
following notice of this decision, obtain Administrator approval for a 
revised pricing structure and amounts by following the approval process 
described in this paragraph (g)(7)(ii).
    (8) Unavailable information. Any information which is not provided 
at a fair and reasonable price shall be considered unavailable, in 
violation of these regulations and section 202(m)(5) of the Clean Air 
Act.
    (9) Third-party information providers. By December 24, 2003, 
manufacturers shall, for model year 2004 and later vehicles and 
engines, make available to third-party information providers as defined 
in paragraph (g)(2)(ii) of this section with whom they engage in 
licensing or business arrangements;
    (i) The required emissions-related information as specified in 
paragraph (g)(5) of this section either:
    (A) Directly in electronic format such as diskette or CD-ROM using 
non-proprietary software, in English; or
    (B) Indirectly via a Web site other than that required by paragraph 
(g)(3) of this section;
    (ii) For any manufacturer who utilizes an automated process in 
their manufacturer-specific scan tool for diagnostic fault trees, the 
data schema, detail specifications, including category types/codes and 
vehicle codes, and data format/content structure of the diagnostic 
trouble trees.
    (iii) Manufacturers can satisfy the requirement of paragraph 
(g)(9)(ii) of this section by making available diagnostic trouble trees 
on their manufacturer Web sites in full-text.
    (iv) Manufacturers are not responsible for the accuracy of the 
information distributed by third parties. However, where manufacturers 
charge information intermediaries for information, whether through 
licensing agreements or other arrangements, manufacturers are 
responsible for inaccuracies contained in the information they provide 
to third-party information providers.
    (10) Required emissions-related training information. By December 
24, 2003, for emissions-related training information, manufacturers 
shall:
    (i) Video tape or otherwise duplicate and make available for sale 
on manufacturer Web sites within 30 days after transmission any 
emissions-related training courses provided to manufacturer franchised 
dealerships via the Internet or satellite transmission;
    (ii) Provide on the manufacturer Web site an index of all 
emissions-related training information available for purchase by 
aftermarket service providers for 1994 and newer vehicles. For model 
years subsequent to 2003, the required information must be made 
available for purchase within 3 months of model introduction and then 
must be made available at the same time it is made available to 
manufacturer franchised dealerships, whichever is earlier. The index 
shall describe the title of the course or instructional session, the 
cost of the video tape or duplicate, and information on how to order 
the item(s) from the manufacturer Web site. All of the items available 
must be shipped within 24 hours of the order being placed and are to be 
made available at a fair and reasonable price as described in paragraph 
(g)(7) of this section. Manufacturers unable to meet the 24 hour 
shipping requirement under circumstances where orders exceed supply and 
additional time is needed by the distributor to reproduce the item 
being ordered, may exceed the 24 hour shipping requirement, but in no 
instance can take longer than 14 days to ship the item.
    (iii) Provide access to third-party training providers as defined 
in paragraph (g)(2)(ii) of this section all emission-related training 
courses transmitted via satellite or Internet offered to their 
manufacturer franchised dealerships. Manufacturers may not charge 
unreasonable up-front fees to third-party training providers for this 
access, but may require a royalty, percentage, or other arranged fee 
based on per-use enrollment/subscription basis. Manufacturers may take 
reasonable steps to protect any copyrighted information and are not 
required to provide this information to parties that do not agree to 
such steps.
    (11) Timeliness and maintenance of information dissemination. (i) 
General Requirements. Subsequent to the initial launch of the 
manufacturer's Web site, manufacturers must make the information 
required under paragraph (g)(5) of this section available on their Web 
site within six months of model introduction, or at the same time it is 
made available to manufacturer franchised dealerships, whichever is 
earlier. After this six-month period, the information must be available 
and updated on the manufacturer Web site at the same time that the 
updated information is made available to manufacturer franchised 
dealerships, except as otherwise specified in this section.
    (ii) Archived information. Beginning with the 1996 model year, 
manufacturers must maintain the required information on their Web sites 
in full-text as defined in paragraph (g)(5) of this section for a 
minimum of 15 years after model introduction. Subsequent to this 
fifteen year period, manufacturers may archive the information in the 
manufacturer's format of choice and provide an index of the archived 
information on the manufacturer Web site and how it can be obtained by 
interested parties. Manufacturers shall index their available 
information with a title that adequately describes the contents of the 
document to which it refers. Manufacturers may allow for the ordering 
of information directly from their Web site, or from a Web site 
hyperlinked to the manufacturer Web site. In the alternative, 
manufacturers shall list a phone number and address where aftermarket 
service providers can call or write to obtain the desired information. 
Manufacturers must also

[[Page 38453]]

provide the price of each item listed, as well as the price of items 
ordered on a subscription basis. To the extent that any additional 
information is added or changed for these model years, manufacturers 
shall update the index as appropriate. Manufacturers will be 
responsible for ensuring that all information, including information 
that is distributed through information distributors, is provided 
within one regular business day of receiving the order. Items that are 
less than 20 pages (e.g. technical service bulletins) shall be faxed, 
if requested, to the requestor and manufacturers are required to 
deliver the information overnight if requested and paid for by the 
ordering party. Archived information must be made available on demand 
and at a fair and reasonable price.
    (12) Reprogramming information. (i) For model years 1996 and later, 
manufacturers shall make available to the persons specified in 
paragraph (g)(2)(i) of this section all emissions-related recalibration 
or reprogramming events (including driveability reprogramming events 
that may affect emissions) in the format of its choice at the same time 
they are made available to manufacturer franchised dealerships. This 
requirement takes effect on September 25, 2003, and within 3 months of 
model introduction for all new model years.
    (ii) For model years 1996 and later manufacturers shall provide 
persons specified in paragraph (g)(2)(i) of this section with an 
efficient and cost-effective method for identifying whether the 
calibrations on vehicles are the latest to be issued. This requirement 
takes effect on September 25, 2003, and within 3 months of model 
introduction for all new model years.
    (iii) For all 2004 and later OBD vehicles equipped with 
reprogramming capability, manufacturers shall comply with SAE J2534 
(Incorporated by reference, see Sec.  86.1). Any manufacturer who 
cannot comply with SAE J2534 in model year 2004 may request one year 
additional lead time from the Administrator.
    (iv) For model years 2004 and later, manufacturers shall make 
available to aftermarket service providers the necessary manufacturer-
specific software applications and calibrations needed to initiate 
pass-through reprogramming. This software shall be able to run on a 
standard personal computer that utilizes standard operating systems as 
specified in SAE J2534 (Incorporated by reference, see Sec.  86.1).
    (v) For model years prior to 2004, manufacturers may use SAE J2534 
as described above, provided they make available to the aftermarket any 
additional required hardware (i.e. cables). Manufacturers may not 
require the purchase or use of a manufacturer-specific scan tool to 
receive or use this additional hardware. Manufacturers must also make 
available the necessary manufacturer-specific software applications and 
calibrations needed to initiate pass-through reprogramming. 
Manufacturers must also make available to equipment and tool companies 
any information needed to develop aftermarket equivalents of the 
manufacturer-specific hardware.
    (vi) Manufacturers may take any reasonable business precautions 
necessary to protect proprietary business information and are not 
required to provide this information to any party that does not agree 
to these reasonable business precautions. The requirement to make 
hardware available and to release the information to equipment and tool 
companies takes effect on September 25, 2003, and within 3 months of 
model introduction for all new model years.
    (vii) Manufacturers who cannot comply with paragraphs (g)(12)(v) 
and (g)(12)(vi) of this section shall make available to equipment and 
tool companies by September 25, 2003 the following information 
necessary for reprogramming the Electronic Control Unit (ECU):
    (A) The physical hardware requirements for reprogramming events or 
tools (e.g. system voltage requirements, cable terminals/pins, 
connections such as RS232 or USB, wires, etc.).
    (B) ECU data communication (e.g. serial data protocols, 
transmission speed or baud rate, bit timing requirements, etc.).
    (C) Information on the application physical interface (API) or 
layers (descriptions for procedures such as connection, initialization, 
performing and verifying programming/download, and termination).
    (D) Vehicle application information or any other related service 
information such as special pins and voltages for reprogramming events 
or additional vehicle connectors that require enablement and 
specifications for the enablement.
    (E) Information that describes what interfaces or combinations of 
interfaces are used to deliver calibrations from database media (e.g. 
PC using CDROM to the reprogramming device e.g. scan tool or black 
box).
    (viii) A manufacturer can propose an alternative to the 
requirements of paragraph (g)(12)(vii) of this section for how 
aftermarket service providers can reprogram an ECU. The Administrator 
will approve this alternative if the manufacturer demonstrates all of 
the following:
    (A) That it cannot comply with paragraph (g)(12)(v) of this section 
for the vehicles subject to the alternative plan;
    (B) That a very small percentage of its vehicles in model years 
prior to 2004 cannot be reprogrammed with the provisions described in 
paragraph (g)(12)(v) of this section, or that releasing the information 
to tool companies would likely not result in this information being 
incorporated into aftermarket tools; and
    (C) That aftermarket service providers will be able to reprogram 
promptly at a reasonable cost.
    (ix) In meeting the requirements of paragraphs (g)(12)(v) through 
(g)(12)(vii) of this section, manufacturers may take any reasonable 
business precautions necessary to protect proprietary business 
information and are not required to provide this information to any 
party that does not agree to these reasonable business precautions.
    (13) Generic and enhanced information for scan tools. By September 
25, 2003, manufacturers shall make available to equipment and tool 
companies all generic and enhanced service information including bi-
directional control and data stream information as defined in paragraph 
(g)(2)(ii) of this section. This requirement applies for 1996 and later 
model year vehicles.
    (i) The information required by paragraph (g)(13) of this section 
shall be provided electronically using common document formats to 
equipment and tool companies with whom they have appropriate licensing, 
contractual, and/or confidentiality arrangements. To the extent that a 
central repository for this information (e.g. the TEK-NET library 
developed by the Equipment and Tool Institute) is used to warehouse 
this information, the Administrator shall have free unrestricted 
access. In addition, information required in paragraph (g)(13) of this 
section shall be made available to equipment and tool companies who are 
not otherwise members of any central repository and shall have access 
if the non-members have arranged for the appropriate licensing, 
contractual and/or confidentiality arrangements with the manufacturer 
and/or a central repository.
    (ii) In addition to the generic and enhanced information defined in 
paragraph (g)(2)(ii) of this section, manufacturers shall also make 
available

[[Page 38454]]

the following information necessary for developing generic diagnostic 
scan tools:
    (A) The physical hardware requirements for data communication (e.g. 
system voltage requirements, cable terminals/pins, connections such as 
RS232 or USB, wires, etc.),
    (B) ECU data communication (e.g. serial data protocols, 
transmission speed or baud rate, bit timing requirements, etc.),
    (C) Information on the application physical interface (API) or 
layers. (i.e., processing algorithms or software design descriptions 
for procedures such as connection, initialization, and termination),
    (D) Vehicle application information or any other related service 
information such as special pins and voltages or additional vehicle 
connectors that require enablement and specifications for the 
enablement.
    (iii) Any manufacturer who utilizes an automated process in its 
manufacturer-specific scan tool for diagnostic fault trees shall make 
available to equipment and tool companies the data schema, detail 
specifications, including category types/codes and vehicle codes, and 
data format/content structure of the diagnostic trouble trees.
    (iv) Manufacturers can satisfy the requirement of paragraph 
(g)(13)(iii) of this section by making available diagnostic trouble 
trees on their manufacturer Web sites in full-text.
    (14) Availability of manufacturer-specific scan tools. 
Manufacturers shall make available for sale to the persons specified in 
paragraph (g)(2)(i) of this section their own manufacturer-specific 
diagnostic tools at a fair and reasonable cost. These tools shall also 
be made available in a timely fashion either through the manufacturer 
Web site or through a manufacturer-designated intermediary. 
Manufacturers who develop different versions of one or more of their 
diagnostic tools that are used in whole or in part for emission-related 
diagnosis and repair shall insure that all emission-related diagnosis 
and repair information is available for sale to the aftermarket at a 
fair and reasonable cost. Manufacturers shall provide technical support 
to aftermarket service providers for the tools described in this 
section, either themselves or through a third party of its choice. 
Factors for determining fair and reasonable cost include, but are not 
limited to:
    (i) The net cost to the manufacturer's franchised dealerships for 
similar tools obtained from manufacturers, less any discounts, rebates, 
or other incentive programs;
    (ii) The cost to the manufacturer for preparing and distributing 
the tools, excluding any research and development costs;
    (iii) The price charged by other manufacturers of similar sizes for 
similar tools;
    (iv) The capabilities and functionality of the manufacturer tool;
    (v) The means by which the tools are distributed;
    (vi) Inflation.
    (vii) The ability of aftermarket technicians and shops to afford 
the tools.
    (15) Changing content of manufacturer-specific scan tools. 
Manufacturers who opt to remove non-emissions related content from 
their manufacturer-specific scan tools and sell them to the persons 
specified in paragraph (g)(2)(i) of this section shall adjust the cost 
of the tool accordingly lower to reflect the decreased value of the 
scan tool. All emissions-related content that remains in the 
manufacturer-specific tool shall be identical to the information that 
is contained in the complete version of the manufacturer specific tool. 
Any manufacturer who wishes to implement this option must request 
approval from the Administrator prior to the introduction of the tool 
into commerce.
    (16) Special tools. (i) Manufacturers who have developed special 
tools to extinguish the malfunction indicator light (MIL) for Model 
Years 1994 through 2003 shall make available the necessary information 
to equipment and tool companies to design a comparable generic tool. 
This information shall be made available to equipment and tool 
companies no later than September 25, 2003.
    (ii) Manufacturers are prohibited from requiring special tools to 
extinguish the malfunction indicator light (MIL) beginning with Model 
Year 2004.
    (17) Reference materials. Manufacturers shall conform with the 
following Society of Automotive Engineers (SAE) standards.
    (i) For Web-based delivery of service information, manufacturers 
shall comply with SAE Recommended Practice J1930 (Revised, May 1998), 
``Electrical/Electronic Systems Diagnostic Terms, Definitions, 
Abbreviations, and Acronyms'' (Incorporated by reference, see Sec.  
86.1). This recommended practice standardizes various terms, 
abbreviations, and acronyms associated with on-board diagnostics. 
Manufacturers shall comply with SAE J1930 beginning with Model Year 
2004.
    (ii) For identification and scaling information necessary to 
interpret and understand data available to a generic scan tool through 
``mode 6,'' manufacturers shall comply with SAE Recommended Practice 
J1979 (Revised, September, 1997), ``EE Diagnostic Test Modes'' 
(Incorporated by reference, see Sec.  86.1). This recommended practice 
describes the implementation of the diagnostic test modes for 
emissions-related test data. Manufacturers shall comply with SAE J1979 
(Incorporated by reference, see Sec.  86.1) beginning with Model Year 
2004.
    (iii) For allowing ECU and equipment and tool manufacturers to 
satisfy the needs of multiple end users with minimum modification to a 
basic ECU design, manufacturers shall comply with ``Recommended 
Practice J2284-3 (May, 2001), ``High Speed CAN (HSC) for Vehicle 
Applications at 500 KBPS'' (Incorporated by reference, see Sec.  86.1). 
SAE J2284-3 establishes standard ECU physical layer, data link layer, 
and media design criteria. Manufacturers may comply with SAE J2284-3 
beginning with model year 2003 and shall comply with SAE J2284-3 
beginning with model year 2008.
    (iv) For pass-through reprogramming capabilities, manufacturers 
shall comply with SAE Recommended Practice J2534 (February, 2002), 
``Recommended Practice for Pass-Thru Vehicle Programming'' 
(Incorporated by reference, see Sec.  86.1). This recommended practice 
provides technical specifications and information that manufacturers 
must supply to equipment and tool companies to develop aftermarket 
pass-through reprogramming tools. Manufacturers shall comply with SAE 
J2534 beginning with model year 2004.
    (18) Reporting requirements. Manufacturers shall provide to the 
Administrator reports on an annual basis within 30 days of the end of 
the calendar year and upon request of the Administrator, that describe 
the performance of their individual Web sites. These annual reports 
shall be submitted to the Administrator electronically utilizing non-
proprietary software in the format as agreed to by the Administrator 
and the manufacturers. Manufacturers may request Administrator approval 
to report on parameters other than those described below if the 
manufacturer can demonstrate that those alternate parameters will 
provide sufficient and similar information for the Administrator to 
effectively evaluate the manufacturer Web site. These annual reports 
shall include, at a minimum, monthly measurements of the following 
parameters:

[[Page 38455]]

    (i) Total successful requests (measured in number of files 
including graphic interchange formats (GIFs) and joint photographic 
expert group (JPEG) images, i.e. electronic images such as wiring or 
other diagrams or pictures). This is defined as the total successful 
request counts of all the files which have been requested, including 
pages, graphics, etc.
    (ii) Total failed requests (measured in number of files). This is 
defined as the total failed request counts of all the files which were 
requested but failed because they could not be found or were read-
protected. This includes pages, graphics, etc.
    (iii) Average data transferred per day (measured by bytes). This is 
defined as average amount of data transferred per day from one place to 
another.
    (iv) Daily Summary (measured in number of files/pages by day of 
week). This is defined as the total number of requests each day of the 
week, over the time period given at the beginning of the report.
    (v) Daily report (measured in number of files/pages by the day of 
the month). This is defined as how many requests there were in each day 
of a specific month.
    (vi) Browser Summary (measured in number of files/pages by browser 
type, i.e., Netscape, Internet Explorer). This is defined as the 
versions of a browser by vendor.
    (vii) Any other information deemed necessary by the Administrator 
to determine the adequacy of a manufacturer Web site.
    (19) Prohibited acts, liability and remedies. (i) It is a 
prohibited act for any person to fail to promptly provide or cause a 
failure to promptly provide information as required by this paragraph 
(g), or to otherwise fail to comply or cause a failure to comply with 
any provision of this paragraph (g).
    (ii) Any person who fails or causes the failure to comply with any 
provision of this paragraph (g) is liable for a violation of that 
provision. A corporation is presumed liable for any violations of this 
subpart that are committed by any of its subsidiaries, affiliates or 
parents that are substantially owned by it or substantially under its 
control.
    (iii) Any person who violates a provision of this paragraph (g) 
shall be subject to a civil penalty of not more than $ 31,500 per day 
for each violation. This maximum penalty is shown for calendar year 
2002. Maximum penalty limits for later years may be set higher based on 
the Consumer Price Index, as specified in 40 CFR part 19. In addition, 
such person shall be liable for all other remedies set forth in Title 
II of the Clean Air Act, remedies pertaining to provisions of Title II 
of the Clean Air Act, or other applicable provisions of law.

0
7. Section 86.004-38 is amended by revising the introductory text of 
this section and paragraph (g) to read as follows:


Sec.  86.004-38  Maintenance instructions.

    This section includes text that specifies requirements that differ 
from those specified in Sec.  86.096-38. Where a paragraph in Sec.  
86.096-38 is identical and applicable to Sec.  86.004-38, this may be 
indicated by specifying the corresponding paragraph and the statement 
``[Reserved]. For guidance see Sec.  86.096-38.''.
* * * * *
    (g) [Reserved]. For guidance see Sec.  86.096-38. For incorporation 
by reference see Sec. Sec.  86.1 and 86.096-38.
* * * * *

0
8. Section 86.007-38 is amended by revising the introductory text of 
this section and paragraph (g) to read as follows:


Sec.  86.007-38  Maintenance instructions.

    This section includes text that specifies requirements that differ 
from those specified in Sec.  86.096-38 or Sec.  86.004-38. Where a 
paragraph in Sec.  86.096-38 or Sec.  86.004-38 is identifical and 
applicable to Sec.  86.007-38, this may be indicated by specifying the 
corresponding paragraph and the statement ``[Reserved]. For guidance 
see Sec.  86.096-38., or [Reserved]. For guidance see Sec.  86.004-
38.''.
* * * * *
    (g) [Reserved]. For guidance see Sec.  86.096-38. For incorporation 
by reference see Sec. Sec.  86.1 and 86.096-38.
* * * * *

0
9. Section 86.1801-01 is amended by revising paragraph (f) to read as 
follows:


Sec.  86.1808-01  Maintenance instructions.

* * * * *
    (f) Emission control diagnostic service information:
    (1) Manufacturers are subject to the provisions of this paragraph 
(f) beginning in the 2001 model year for manufacturers of light-duty 
vehicles and light-duty trucks, and beginning in the 2005 model year 
for manufacturers of heavy-duty vehicles and heavy-duty engines 
weighing 14,000 pounds gross vehicle weight (GVW) and less that are 
subject to the OBD requirements of this part.
    (2) General requirements. (i) 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 instructions 
for making emission-related diagnoses and repairs, including but not 
limited to service manuals, technical service bulletins, recall service 
information, bi-directional control information, and training 
information, unless such information is protected by section 208(c) of 
the Act 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.
    (ii) Definitions. The following definitions apply for this 
paragraph (f):
    (A) Aftermarket service provider means any individual or business 
engaged in the diagnosis, service, and repair of a motor vehicle or 
engine, who is not directly affiliated with a manufacturer or 
manufacturer-franchised dealership.
    (B) 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.
    (C) 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 more communication 
wires. The information is broadcast over the communication wires for 
use by the OBD system to gather information on emissions-related 
components or systems and from other vehicle modules that may impact 
emissions, including but not limited to systems such as chassis or 
transmission. For the purposes of this section, data stream information 
does not include engine calibration related information, or any data 
stream information from systems or modules that do not impact 
emissions.
    (D) Emissions-related information means any information related to 
the diagnosis, service, and repair of emissions-related components. 
Emissions-related information includes, but is not limited to, 
information regarding any system, component or

[[Page 38456]]

part of a vehicle that controls emissions and any system, component 
and/or part associated with the powertrain system, including, but not 
limited to:
    (1) The engine, the fuel system and ignition system;
    (2) Information for any system, component or part that is likely to 
impact emissions, such as transmission systems, and any other 
information specified by the Administrator to be relevant to the 
diagnosis and repair of an emissions-related problem; and
    (3) Any other information specified by the Administrator to be 
relevant for the diagnosis and repair of an emissions-related failure 
found through the inspection and maintenance program after such finding 
has been communicated to the affected manufacturer(s).
    (E) Emissions-related training information means any information 
related to training or instruction for the purpose of the diagnosis, 
service, and repair of emissions-related components.
    (F) Enhanced service and repair information means information which 
is specific for an original equipment manufacturer's brand of tools and 
equipment. This includes computer or anti-theft system initialization 
information necessary for the completion of any emissions-related 
repair on motor vehicles that employ integral vehicle security systems.
    (G) Equipment and tool company means a registered automotive 
equipment or software company either public or private that is engaged 
in, or plans to engage in, the manufacture of automotive scan tool 
reprogramming equipment or software.
    (H) Generic service and repair information means information which 
is not specific for an original equipment manufacturer's brand of tools 
and equipment.
    (I) 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). This includes computer or anti-theft system initialization 
information necessary for the completion of any emissions-related 
repair on motor vehicles that employ integral vehicle security systems.
    (J) Intermediary means any individual or entity, other than an 
original equipment manufacturer, which provides service or equipment to 
aftermarket service providers.
    (K) Manufacturer-franchised dealership means any service provider 
with which a manufacturer has a direct business relationship.
    (L) Third-party information provider means any individual or 
entity, other than an original equipment manufacturer, who consolidates 
manufacturer service information and makes this information available 
to aftermarket service providers.
    (M) Third-party training provider means any individual or entity, 
other than an original equipment manufacturer who develops and/or 
delivers instructional and educational material for automotive training 
courses.
    (3) Information dissemination. By December 24, 2003, each 
manufacturer shall provide or cause to be provided to the persons 
specified in paragraph (f)(2)(i) of this section and to any other 
interested parties a manufacturer-specific World Wide Web site 
containing the information specified in paragraph (f)(2)(i) of this 
section for 2001 and later model year vehicles which have been offered 
for sale; this requirement does not apply to indirect information, 
including the information specified in paragraphs (f)(12) through 
(f)(16) of this section. Upon request and approval of the 
Administrator, manufacturers who can demonstrate significant hardship 
in complying with this provision within four months after the effective 
date may request an additional six months lead time to meet this 
requirement. Each manufacturer Web site shall:
    (i) Provide access in full-text to all of the information specified 
in paragraph (f)(5) of this section.
    (ii) Be updated at the same time as manufacturer-franchised 
dealership World Wide Web sites;
    (iii) Provide users with a description of the minimum computer 
hardware and software needed by the user to access that manufacturer's 
information (e.g., computer processor speed and operating system 
software). This description shall appear when users first log-on to the 
home page of the manufacturer's Web site.
    (iv) Provide Short-Term (24 to 72 hours), Mid-Term (30-day period), 
and Long-Term (365-day period) Web site subscription options to any 
person specified in paragraph (f)(2)(i) of this section whereby the 
user will be able to access the site, search for the information, and 
purchase, view and print the information at a fair and reasonable cost 
as specified in paragraph (f)(7) of this section for each of the 
options. In addition, for each of the subscription options, 
manufacturers are required to make their entire site accessible for the 
respective period of time and price. In other words, a manufacturer may 
not limit any or all of the subscription options to just one make or 
one model.
    (v) Allow the user to search the manufacturer Web site by various 
topics including but not limited to model, model year, key words or 
phrases, etc., while allowing ready identification of the latest 
vehicle calibration. Manufacturers who do not use model year to 
classify their vehicles in their service information may use an 
alternate vehicle delineation such as body series. Any manufacturer 
utilizing this flexibility shall create a cross-reference to the 
corresponding model year and provide this cross-reference on the 
manufacturer Web site home page.
    (vi) Provide accessibility using common, readily available software 
and shall not require the use of software, hardware, viewers, or 
browsers that are not readily available to the general public. 
Manufacturers shall also provide hyperlinks to any plug-ins, viewers or 
browsers (e.g. Adobe Acrobat or Netscape) needed to access the 
manufacturer Web site.
    (vii) Allow simple hyper-linking to the manufacturer Web site from 
government Web sites and automotive-related Web sites.
    (viii) Allow access to the manufacturer Web sites with no limits on 
the modem speed by which aftermarket service providers or other 
interested parties can connect to the manufacturer Web site.
    (ix) Possess sufficient server capacity to allow ready access by 
all users and have sufficient capacity to assure that all users may 
obtain needed information without undue delay.
    (x) Correct or delete broken Web links on a weekly basis.
    (xi) Allow for Web site navigation that does not require a user to 
return to the manufacturer home page or a search engine in order to 
access a different portion of the site.
    (xii) Allow all users to print out any and all of the materials 
required to be made available on the manufacturers Web site, including 
the ability to print it at the users location.
    (4) Small volume provisions for information dissemination. (i) 
Manufacturers with annual sales of less than 5,000 vehicles shall have 
until June 28, 2004 to launch their individual Web sites as required by 
paragraph (f)(3) of this section.
    (ii) Manufacturers with annual sales of less than 1,000 vehicles 
may, in lieu of meeting the requirement of paragraph (f)(3) of this 
section, request the Administrator to approve an alternative method by 
which the required emissions-related information can be

[[Page 38457]]

obtained by the persons specified in paragraph (f)(2)(i) of this 
section.
    (5) Required information. All information relevant to the diagnosis 
and completion of emissions-related repairs shall be posted on 
manufacturer Web sites. This excludes indirect information specified in 
paragraphs (f)(6) and (f)(12) through (f)(16) of this section. To the 
extent that this information does not already exist in some form for 
their manufacturer-franchised dealerships, manufacturers are required 
to develop and make available the information required by this section 
to both their manufacturer-franchised dealerships and the aftermarket. 
The required information includes, but is not limited to:
    (i) Manuals, including subsystem and component manuals developed by 
a manufacturer's third party supplier that are made available to 
manufacturer-franchised dealerships, technical service bulletins 
(TSBs), recall service information, diagrams, charts, and training 
materials. Manuals and other such service information from third party 
suppliers are not required to be made available in full-text on 
manufacturer Web sites as described in paragraph (f)(3) of this 
section. Rather, manufacturers must make available on the manufacturer 
Web site as required by paragraph (f)(3) of this section an index of 
the relevant information and instructions on how to order such third 
party information. In the alternative, a manufacturer can create a link 
from its Web site to the Web site(s) of the third party supplier.
    (ii) OBD system information which includes, but is not limited to, 
the following:
    (A) A general description of the operation of each monitor, 
including a description of the parameter that is being monitored;
    (B) A listing of all typical OBD diagnostic trouble codes 
associated with each monitor;
    (C) A description of the typical enabling conditions (either 
generic or monitor-specific) for each monitor (if equipped) to execute 
during vehicle operation, including, but not limited to, minimum and 
maximum intake air and engine coolant temperature, vehicle speed range, 
and time after engine startup. In addition, manufacturers shall list 
all monitor-specific OBD drive cycle information for all major OBD 
monitors as equipped including, but not limited to, catalyst, catalyst 
heater, oxygen sensor, oxygen sensor heater, evaporative system, 
exhaust gas re-circulation (EGR), secondary air, and air conditioning 
system. Additionally, for diesel vehicles under 14,000 pounds GVWR 
which also perform misfire, fuel system and comprehensive component 
monitoring under specific driving conditions (i.e., non-continuous 
monitoring; as opposed to spark ignition engines that monitor these 
systems under all conditions or continuous monitoring), the 
manufacturer shall make available monitor-specific drive cycles. Any 
manufacturer who develops generic drive cycles, either in addition to, 
or instead of, monitor-specific drive cycles shall also make these 
available in full-text on manufacturer Web sites;
    (D) A listing of each monitor sequence, execution frequency and 
typical duration;
    (E) A listing of typical malfunction thresholds for each monitor;
    (F) For OBD parameters for specific vehicles that deviate from the 
typical parameters, the OBD description shall indicate the deviation 
and provide a separate listing of the typical values for those 
vehicles;
    (G) Identification and scaling information necessary to interpret 
and understand data available to a generic scan tool through ``mode 
6'', pursuant to Society of Automotive Engineers SAE J1979, ``EE 
Diagnostic Test Modes''(Incorporated by reference, see Sec.  86.1).
    (H) Algorithms, look-up tables, or any values associated with look-
up tables are not required to be made available.
    (iii) Any information regarding any system, component, or part of a 
vehicle monitored by the OBD system that could in a failure mode cause 
the OBD system to illuminate the malfunction indicator light (MIL);
    (iv) Any information on other systems that can effect the emission 
system within a multiplexed system (including how information is sent 
between emission-related system modules and other modules on a 
multiplexed bus);
    (v) Manufacturer-specific emissions-related diagnostic trouble 
codes (DTCs) and any related service bulletins, trouble shooting 
guides, and/or repair procedures associated with these manufacturer-
specific DTCs; and
    (vi) Information regarding how to obtain the information needed to 
perform reinitialization of any vehicle computer or anti-theft system 
following an emissions-related repair.
    (6) Anti-theft system initialization information. Computer or anti-
theft system initialization information and/or related tools necessary 
for the proper installation of on-board computers or necessary for the 
completion of any emissions-related repair on motor vehicles that 
employ integral vehicle security systems or the repair or replacement 
of any other emission-related part shall be made available at a fair 
and reasonable cost to the persons specified in paragraph (f)(2)(i) of 
this section.
    (i) Except as provided under paragraph (f)(6)(ii) of this section, 
manufacturers must make this information available to persons specified 
in paragraph (f)(2)(i) of this section, such that such persons will not 
need any special tools or manufacturer-specific scan tools to perform 
the initialization. Manufacturers may make such information available 
through, for example, generic aftermarket tools, a pass-through device, 
or inexpensive manufacturer specific cables.
    (ii) A manufacturer may request Administrator approval for an 
alternative means to re-initialize vehicles for some or all model year 
vehicles through the 2007 model year by 1 month following the effective 
date of the final rule. The Administrator shall approve the request 
only after the following conditions have been met:
    (A) The manufacturer must demonstrate that the availability of such 
information to aftermarket service providers would significantly 
increase the risk of vehicle theft.
    (B) The manufacturer must make available a reasonable alternative 
means to install or repair computers, or to otherwise repair or replace 
an emission-related part.
    (C) Any alternative means proposed by a manufacturer cannot require 
aftermarket technicians to use a manufacturer-franchised dealership to 
obtain information or special tools to re-initialize the anti-theft 
system. All information must come directly from the manufacturer or a 
single manufacturer-specified designee.
    (D) Any alternative means proposed by and manufacturer must be 
available to aftermarket technicians at a fair and reasonable price.
    (E) Any alternative must be available to aftermarket technicians 
within twenty-four hours of the initial request.
    (F) Any alternative must not require the purchase of a special tool 
or tools, including manufacturer-specific tools, to complete this 
repair. Alternatives may include lease of such tools, but only for 
appropriately minimal cost.
    (G) In lieu of leasing their manufacturer-specific tool to meet 
this requirement, a manufacturer may also release the necessary 
information to equipment and tool manufacturers for incorporation into 
aftermarket scan tools. Any manufacturer choosing this option must 
release the information to equipment and tool manufacturers within 60 
days of Administrator approval. Manufacturers may also

[[Page 38458]]

comply with this requirement using SAE J2534 for some or all model 
years through model year 2007.
    (7) Cost of required information. (i) All information required to 
be made available by this section, shall be made available at a fair 
and reasonable price. In determining whether a price is fair and 
reasonable, consideration may be given to relevant factors, including, 
but not limited to, the following:
    (A) The net cost to the manufacturer-franchised dealerships for 
similar information obtained from manufacturers, less any discounts, 
rebates, or other incentive programs.
    (B) The cost to the manufacturer for preparing and distributing the 
information, excluding any research and development costs incurred in 
designing and implementing, upgrading or altering the onboard computer 
and its software or any other vehicle part or component. Amortized 
capital costs for the preparation and distribution of the information 
may be included.
    (C) The price charged by other manufacturers for similar 
information.
    (D) The price charged by manufacturers for similar information 
prior to the launch of manufacturer Web sites.
    (E) The ability of aftermarket technicians or shops to afford the 
information.
    (F) The means by which the information is distributed.
    (G) The extent to which the information is used, which includes the 
number of users, and frequency, duration, and volume of use.
    (H) Inflation.
    (ii) By August 26, 2003, each manufacturer shall submit to the 
Administrator a request for approval of their pricing structure for 
their Web sites and amounts to be charged for the information required 
to be made available under paragraphs (f)(3) and (f)(5) of this 
section. Subsequent to the approval of the manufacturer Web site 
pricing structure, each manufacturer shall notify the Administrator 
upon the increase in price of any one or all of the subscription 
options of 20 percent or more above the previously approved price, 
taking inflation into account.
    (A) The manufacturer shall submit a request to the Administrator 
that sets forth a detailed description of the pricing structure and 
amounts, and support for the position that the pricing structure and 
amounts are fair and reasonable by addressing, at a minimum, each of 
the factors specified in paragraph (f)(7)(i) of this section.
    (B) The Administrator will act upon on the request within 180 days 
following receipt of a complete request or following receipt of any 
additional information requested by the Administrator.
    (C) The Administrator may decide not to approve, or to withdraw 
approval for a manufacturer's pricing structure and amounts based on a 
conclusion that this pricing structure and/or amounts are not, or are 
no longer, fair and reasonable, by sending written notice to the 
manufacturer explaining the basis for this decision.
    (D) In the case of a decision by the Administrator not to approve 
or to withdraw approval, the manufacturer shall within three months 
following notice of this decision, obtain Administrator approval for a 
revised pricing structure and amounts by following the approval process 
described in this paragraph (f)(7)(ii).
    (8) Unavailable information. Any information which is not provided 
at a fair and reasonable price shall be considered unavailable, in 
violation of these regulations and section 202(m)(5) of the Clean Air 
Act.
    (9) Third-party information providers. By December 24, 2003, 
manufacturers shall, for model year 2004 and later vehicles and 
engines, make available to third-party information providers as defined 
in paragraph (f)(2)(ii) of this section with whom they engage in 
licensing or business arrangements;
    (i) The required emissions-related information as specified in 
paragraph (f)(5) of this section either:
    (A) Directly in electronic format such as diskette or CD-ROM using 
non-proprietary software, in English; or
    (B) Indirectly via a Web site other than that required by paragraph 
(f)(3) of this section;
    (ii) For any manufacturer who utilizes an automated process in 
their manufacturer-specific scan tool for diagnostic fault trees, the 
data schema, detail specifications, including category types/codes and 
vehicle codes, and data format/content structure of the diagnostic 
trouble trees.
    (iii) Manufacturers can satisfy the requirement of paragraph 
(f)(9)(ii) of this section by making available diagnostic trouble trees 
on their manufacturer Web sites in full-text.
    (iv) Manufacturers are not responsible for the accuracy of the 
information distributed by third parties. However, where manufacturers 
charge information intermediaries for information, whether through 
licensing agreements or other arrangements, manufacturers are 
responsible for inaccuracies contained in the information they provide 
to third-party information providers.
    (10) Required emissions-related training information. By December 
24, 2003, for emissions-related training information, manufacturers 
shall:
    (i) Video tape or otherwise duplicate and make available for sale 
on manufacturer Web sites within 30 days after transmission any 
emissions-related training courses provided to manufacturer-franchised 
dealerships via the Internet or satellite transmission;
    (ii) Provide on the manufacturer Web site an index of all 
emissions-related training information available for purchase by 
aftermarket service providers for 1994 and newer vehicles. For model 
years subsequent to 2003, the required information must be made 
available for purchase within 3 months of model introduction and then 
must be made available at the same time it is made available to 
manufacturer-franchised dealerships, whichever is earlier. The index 
shall describe the title of the course or instructional session, the 
cost of the video tape or duplicate, and information on how to order 
the item(s) from the manufacturer Web site. All of the items available 
must be shipped within 24 hours of the order being placed and are to be 
made available at a fair and reasonable price as described in section 
(f)(7) of this section. Manufacturers unable to meet the 24 hour 
shipping requirement under circumstances where orders exceed supply and 
additional time is needed by the distributor to reproduce the item 
being ordered, may exceed the 24 hour shipping requirement, but in no 
instance can take longer than 14 days to ship the item.
    (iii) Provide access to third-party training providers as defined 
in paragraph (f)(2)(ii) of this section all emission-related training 
courses transmitted via satellite or Internet offered to their 
manufacturer-franchised dealerships. Manufacturers may not charge 
unreasonable up-front fees to third-party training providers for this 
access, but may require a royalty, percentage, or other arranged fee 
based on per-use enrollment/subscription basis. Manufacturers may take 
reasonable steps to protect any copyrighted information and are not 
required to provide this information to parties that do not agree to 
such steps.
    (11) Timeliness and maintenance of information dissemination. (i) 
General requirements. Subsequent to the initial launch of the 
manufacturer's Web site, manufacturers must make the information 
required under paragraph (f)(5) of this section available on their Web 
site within six months of model introduction, or at the same time it is 
made available to manufacturer-

[[Page 38459]]

franchised dealerships, whichever is earlier. After this six-month 
period, the information must be available and updated on the 
manufacturer Web site at the same time that the updated information is 
made available to manufacturer-franchised dealerships, except as 
otherwise specified in this section.
    (ii) Archived information. Manufacturers must maintain the required 
information on their Web sites in full-text as defined in paragraph 
(f)(5) of this section for a minimum of 15 years after model 
introduction. Subsequent to this fifteen year period, manufacturers may 
archive the information in the manufacturer's format of choice and 
provide an index of the archived information on the manufacturer Web 
site and how it can be obtained by interested parties. Manufacturers 
shall index their available information with a title that adequately 
describes the contents of the document to which it refers. 
Manufacturers may allow for the ordering of information directly from 
their Web site, or from a Web site hyperlinked to the manufacturer Web 
site. In the alternative, manufacturers shall 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. To the extent that any additional information is 
added or changed for these model years, manufacturers shall update the 
index as appropriate. Manufacturers will be responsible for ensuring 
that all information, including information that is distributed through 
information distributors, is provided within one regular business day 
of receiving the order. Items that are less than 20 pages (e.g. 
technical service bulletins) shall be faxed, if requested, to the 
requestor and distributors are required to deliver the information 
overnight if requested and paid for by the ordering party. Archived 
information must be made available on demand and at a fair and 
reasonable price.
    (12) Reprogramming information. (i) Manufacturers shall make 
available to the persons specified in paragraph (f)(2)(i) of this 
section all emissions-related recalibration or reprogramming events 
(including driveability reprogramming events that may affect emissions) 
in the format of its choice at the same time they are made available to 
manufacturer-franchised dealerships. This requirement takes effect on 
September 25, 2003, and within 3 months of model introduction for all 
new model years.
    (ii) Manufacturers shall provide persons specified in paragraph 
(f)(2)(i) of this section with an efficient and cost-effective method 
for identifying whether the calibrations on vehicles are the latest to 
be issued. This requirement takes effect on September 25, 2003, and 
within 3 months of model introduction for all new model years.
    (iii) For all 2004 and later OBD vehicles equipped with 
reprogramming capability, manufacturers shall comply with SAE J2534 
(Incorporated by reference, see Sec.  86.1). Any manufacturer who 
cannot comply with SAE J2534 in model year 2004 may request one year 
additional lead time from the Administrator.
    (iv) For model years 2004 and later, manufacturers shall make 
available to aftermarket service providers the necessary manufacturer-
specific software applications and calibrations needed to initiate 
pass-through reprogramming. This software shall be able to run on a 
standard personal computer that utilizes standard operating systems as 
specified in SAE J2534 (Incorporated by reference, see Sec.  86.1).
    (v) For model years prior to 2004, manufacturers may use SAE J2534 
as described above, provided they make available to the aftermarket any 
additional required hardware (i.e., cables). Manufacturers may not 
require the purchase or use of a manufacturer-specific scan tool to 
receive or use this additional hardware. Manufacturers must also make 
available the necessary manufacturer-specific software applications and 
calibrations needed to initiate pass-through reprogramming. 
Manufacturers must also make available to equipment and tool companies 
any information needed to develop aftermarket equivalents of the 
manufacturer-specific hardware.
    (vi) Manufacturers may take any reasonable business precautions 
necessary to protect proprietary business information and are not 
required to provide this information to any party that does not agree 
to these reasonable business precautions. The requirement to make 
hardware available and to release the information to equipment and tool 
companies takes effect on September 25, 2003, and within 3 months of 
model introduction for all new model years.
    (vii) Manufacturers who cannot comply with paragraphs (f)(12)(v) 
and (f)(12)(vi) of this section shall make available to equipment and 
tool companies by September 25, 2003 the following information 
necessary for reprogramming the ECU:
    (A) The physical hardware requirements for reprogramming events or 
tools (e.g. system voltage requirements, cable terminals/pins, 
connections such as RS232 or USB, wires, etc.).
    (B) ECU data communication (e.g. serial data protocols, 
transmission speed or baud rate, bit timing requirements, etc.).
    (C) Information on the application physical interface (API) or 
layers (descriptions for procedures such as connection, initialization, 
performing and verifying programming/download, and termination).
    (D) Vehicle application information or any other related service 
information such as special pins and voltages for reprogramming events 
or additional vehicle connectors that require enablement and 
specifications for the enablement.
    (E) Information that describes what interfaces or combinations of 
interfaces are used to deliver calibrations from database media (e.g. 
PC using CDROM to the reprogramming device e.g. scan tool or black 
box).
    (viii) A manufacturer can propose an alternative to the 
requirements of paragraph (f)(12)(vii) of this section for how 
aftermarket service providers can reprogram an ECU. The Administrator 
will approve this alternative if the manufacturer demonstrates all of 
the following:
    (A) That it cannot comply with paragraph (f)(12)(v) of this section 
for the vehicles subject to the alternative plan;
    (B) That a very small percentage of its vehicles in model years 
prior to 2004 cannot be reprogrammed with the provisions described in 
paragraph (f)(12)(v) of this section, or that releasing the information 
to tool companies would likely not result in this information being 
incorporated into aftermarket tools; and
    (C) That aftermarket service providers will be able to reprogram 
promptly at a reasonable cost.
    (ix) In meeting the requirements of paragraphs (f)(12)(v) through 
(f)(12)(vii) of this section, manufacturers may take any reasonable 
business precautions necessary to protect proprietary business 
information and are not required to provide this information to any 
party that does not agree to these reasonable business precautions.
    (13) Generic and enhanced information for scan tools. By September 
25, 2003, manufacturers shall make available to equipment and tool 
companies all generic and

[[Page 38460]]

enhanced service information including bi-directional control and data 
stream information as defined in paragraph (f)(2)(ii) of this section. 
This requirement applies for 2001 and later model year vehicles.
    (i) The information required by this paragraph (f)(13) of this 
section shall be provided electronically using common document formats 
to equipment and tool companies with whom they have appropriate 
licensing, contractual, and/or confidentiality arrangements. To the 
extent that a central repository for this information (e.g. the TEK-NET 
library developed by the Equipment and Tool Institute) is used to 
warehouse this information, the Administrator shall have free 
unrestricted access. In addition, information required by paragraph 
(f)(13) of this section shall be made available to equipment and tool 
companies who are not otherwise members of any central repository and 
shall have access if the non-members have arranged for the appropriate 
licensing, contractual and/or confidentiality arrangements with the 
manufacturer and/or a central repository.
    (ii) In addition to the generic and enhanced information defined in 
paragraph (f)(2)(ii) of this section, manufacturers shall also make 
available the following information necessary for developing generic 
diagnostic scan tools:
    (A) The physical hardware requirements for data communication (e.g. 
system voltage requirements, cable terminals/pins, connections such as 
RS232 or USB, wires, etc.)
    (B) ECU data communication (e.g. serial data protocols, 
transmission speed or baud rate, bit timing requirements, etc.),
    (C) Information on the application physical interface (API) or 
layers. (i.e., processing algorithms or software design descriptions 
for procedures such as connection, initialization, and termination),
    (D) Vehicle application information or any other related service 
information such as special pins and voltages or additional vehicle 
connectors that require enablement and specifications for the 
enablement.
    (iii) Any manufacturer who utilizes an automated process in its 
manufacturer-specific scan tool for diagnostic fault trees shall make 
available to equipment and tool companies the data schema, detail 
specifications, including category types/codes and vehicle codes, and 
data format/content structure of the diagnostic trouble trees.
    (iv) Manufacturers can satisfy the requirement of this paragraph 
(f)(13)(iii) by making available diagnostic trouble trees on their 
manufacturer Web sites in full-text.
    (14) Availability of manufacturer-specific scan tools. 
Manufacturers shall make available for sale to the persons specified in 
paragraph (f)(2)(i) of this section their own manufacturer-specific 
diagnostic tools at a fair and reasonable cost. These tools shall also 
be made available in a timely fashion either through the manufacturer 
Web site or through a manufacturer-designated intermediary. 
Manufacturers who develop different versions of one or more of their 
diagnostic tools that are used in whole or in part for emission-related 
diagnosis and repair shall insure that all emission-related diagnosis 
and repair information is available for sale to the aftermarket at a 
fair and reasonable cost. Manufacturers shall provide technical support 
to aftermarket service providers for the tools described in this 
section, either themselves or through a third party of its choice. 
Factors for determining fair and reasonable cost include, but are not 
limited to:
    (i) The net cost to the manufacturer's franchised dealerships for 
similar tools obtained from manufacturers, less any discounts, rebates, 
or other incentive programs;
    (ii) The cost to the manufacturer for preparing and distributing 
the tools, excluding any research and development costs;
    (iii) The price charged by other manufacturers of similar sizes for 
similar tools;
    (iv) The capabilities and functionality of the manufacturer tool;
    (v) The means by which the tools are distributed;
    (vi) Inflation;
    (vii) The ability of aftermarket technicians and shops to afford 
the tools.
    (15) Changing content of manufacturer-specific scan tools. 
Manufacturers who opt to remove non-emissions related content from 
their manufacturer-specific scan tools and sell them to the persons 
specified in paragraph (f)(2)(i) of this section shall adjust the cost 
of the tool accordingly lower to reflect the decreased value of the 
scan tool. All emissions-related content that remains in the 
manufacturer-specific tool shall be identical to the information that 
is contained in the complete version of the manufacturer specific tool. 
Any manufacturer who wishes to implement this option must request 
approval from the Administrator prior to the introduction of the tool 
into commerce.
    (16) Special tools. (i) Manufacturers who have developed special 
tools to extinguish the malfunction indicator light (MIL) for Model 
Years 2001 through 2003 shall make available the necessary information 
to equipment and tool companies to design a comparable generic tool. 
This information shall be made available to equipment and tool 
companies no later than September 23, 2003.
    (ii) Manufacturers are prohibited from requiring special tools to 
extinguish the malfunction indicator light (MIL) beginning with Model 
Year 2004.
    (17) Reference materials. Manufacturers shall conform with the 
following Society of Automotive Engineers (SAE) standards.
    (i) For Web-based delivery of service information, manufacturers 
shall comply with SAE Recommended Practice J1930 (Revised, May 1998), 
``Electrical/Electronic Systems Diagnostic Terms, Definitions, 
Abbreviations, and Acronyms'' (Incorporated by reference, see Sec.  
86.1). This recommended practice standardizes various terms, 
abbreviations, and acronyms associated with on-board diagnostics. 
Manufacturers shall comply with SAE J1930 (Incorporated by reference, 
see Sec.  86.1) beginning with Model Year 2004.
    (ii) For identification and scaling information necessary to 
interpret and understand data available to a generic scan tool through 
``mode 6'', manufacturers shall comply with SAE Recommended Practice 
J1979 (Revised, September, 1997), ``EE Diagnostic Test Modes'' 
(Incorporated by reference, see Sec.  86.1). This recommended practice 
describes the implementation of the diagnostic test modes for 
emissions-related test data. Manufacturers shall comply with SAE J1979 
beginning with Model Year 2004.
    (iii) For allowing ECU and equipment and tool manufacturers to 
satisfy the needs of multiple end users with minimum modification to a 
basic ECU design, manufacturers shall comply with SAE Recommended 
Practice J2284-3 (May, 2001), ``High Speed CAN (HSC) for Vehicle 
Applications at 500 KBPS'' (Incorporated by reference, see Sec.  86.1). 
SAE J2284-3 establishes standard ECU physical layer, data link layer, 
and media design criteria. Manufacturers may comply with SAE J2284-3 
beginning with model year 2003 and shall comply with SAE J2284-3 
beginning with model year 2008.
    (iv) For pass-through reprogramming capabilities, manufacturers 
shall comply with SAE Recommended Practice J2534 (February, 2002), 
``Recommended Practice for Pass-Thru Vehicle Programming'' 
(Incorporated by reference, see Sec.  86.1). This

[[Page 38461]]

recommended practice provides technical specifications and information 
that manufacturers must supply to equipment and tool companies to 
develop aftermarket pass-through reprogramming tools. Manufacturers 
shall comply with SAE J2534 beginning with model year 2004.
    (18) Reporting requirements. Manufacturers shall provide to the 
Administrator reports on an annual basis within 30 days of the end of 
the calendar year and upon request of the Administrator, that describe 
the performance of their individual Web sites. These annual reports 
shall be submitted to the Administrator electronically utilizing non-
proprietary software in the format as agreed to by the Administrator 
and the manufacturers. Manufacturers may request Administrator approval 
to report on parameters other than those described below if the 
manufacturer can demonstrate that those alternate parameters will 
provide sufficient and similar information for the Administrator to 
effectively evaluate the manufacturer Web site. These annual reports 
shall include, at a minimum, monthly measurements of the following 
parameters:
    (i) Total successful requests (measured in number of files 
including graphic interchange formats (GIFs) and joint photographic 
expert group (JPEG) images, i.e. electronic images such as wiring or 
other diagrams or pictures). This is defined as the total successful 
request counts of all the files which have been requested, including 
pages, graphics, etc.
    (ii) Total failed requests (measured in number of files). This is 
defined as the total failed request counts of all the files which were 
requested but failed because they could not be found or were read-
protected. This includes pages, graphics, etc.
    (iii) Average data transferred per day (measured by bytes). This is 
defined as average amount of data transferred per day from one place to 
another.
    (iv) Daily Summary (measured in number of files/pages by day of 
week). This is defined as the total number of requests each day of the 
week, over the time period given at the beginning of the report.
    (v) Daily report (measured in number of files/pages by the day of 
the month). This is defined as how many requests there were in each day 
of a specific month.
    (vi) Browser Summary (measured in number of files/pages by browser 
type, i.e., Netscape, Internet Explorer). This is defined as the 
versions of a browser by vendor.
    (vii) Any other information deemed necessary by the Administrator 
to determine the adequacy of an manufacturer Web site.
    (19) Prohibited Acts, Liability and Remedies. (i) It is a 
prohibited act for any person to fail to promptly provide or cause a 
failure to promptly provide information as required by this paragraph 
(f), or to otherwise fail to comply or cause a failure to comply with 
any provision of this paragraph (f).
    (ii) Any person who fails or causes the failure to comply with any 
provision of this paragraph (f) is liable for a violation of that 
provision. A corporation is presumed liable for any violations of this 
subpart that are committed by any of its subsidiaries, affiliates or 
parents that are substantially owned by it or substantially under its 
control.
    (iii) Any person who violates a provision of this paragraph (f) 
shall be subject to a civil penalty of not more than $ 31,500 per day 
for each violation. This maximum penalty is shown for calendar year 
2002. Maximum penalty limits for later years may be set higher based on 
the Consumer Price Index, as specified in 40 CFR part 19. In addition, 
such person shall be liable for all other remedies set forth in Title 
II of the Clean Air Act, remedies pertaining to provisions of Title II 
of the Clean Air Act, or other applicable provisions of law.

0
10. Section 86.1808-07 is amended by revising paragraphs (a) through 
(f) to read as follows:


Sec.  86.1808-07  Maintenance instructions.

* * * * *
    (a) through (e) [Reserved]. For guidance see Sec.  86.1808-1.
    (f) [Reserved]. For guidance see Sec.  86.1808-1. For incorporation 
by reference see Sec. Sec.  86.1 and 86.1808-1.
* * * * *

[FR Doc. 03-14461 Filed 6-26-03; 8:45 am]
BILLING CODE 6560-50-P