[Federal Register Volume 70, Number 243 (Tuesday, December 20, 2005)]
[Rules and Regulations]
[Pages 75403-75411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23669]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 86

[FRL-8005-4]
RIN 2060-AJ77


Control of Air Pollution From New Motor Vehicles and New Motor 
Vehicle Engines; Modification of Federal On-Board Diagnostic 
Regulations for: Light-Duty Vehicles, Light-Duty Trucks, Medium Duty 
Passenger Vehicles, Complete Heavy Duty Vehicles and Engines Intended 
for Use in Heavy Duty Vehicles Weighing 14,000 Pounds GVWR or Less

AGENCY: Environmental Protection Agency (EPA).

[[Page 75404]]


ACTION: Final rule.

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SUMMARY: EPA is finalizing certain requirements associated with the 
Federal on-board diagnostic (OBD) system regulations. On June 17, 2003, 
EPA published both a direct final rule and a concurrent notice of 
proposed rulemaking (68 FR 35972 and 68 FR 35830 respectively) to amend 
and revise certain provisions of the Federal OBD regulations. EPA 
published the direct final rule believing that no adverse comments 
would be received. However, due to the receipt of an adverse comment, 
EPA published a partial withdrawal notice on August 14, 2003 (68 FR 
48561) withdrawing two specific regulatory amendments included in the 
direct final rule. The direct final rule, absent those two withdrawn 
provisions, became effective on August 18, 2003.
    The purpose of this action is to finalize the portion of the direct 
final rule that was withdrawn with the revisions suggested by the 
commenters and to clarify several smaller issues that were raised by 
industry during the comment period.

DATES: This final rule takes effect on February 21, 2006.

ADDRESSES: All comments and materials relevant to today's action are 
contained in Public Docket No. OAR-2003-0080 (old legacy docket is A-
2002-20) at EPA's Air and Radiation Docket and Information Center (Air 
Docket) at the following address: EPA Docket Center (EPA/DC), Public 
Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue, 
NW., Washington, DC 20460. Dockets may be inspected from 8:30 a.m. to 
4:30 p.m., Monday through Friday, except on government holidays. You 
can reach the Air Docket by telephone at (202) 566-1742 and by 
facsimile at (202) 566-1741. You may be charged a reasonable fee for 
photocopying docket materials, as provided in 40 CFR Part 2.

FOR FURTHER INFORMATION CONTACT: Arvon Mitcham, U.S. EPA, National 
Vehicle and Fuels Emission Laboratory, Certification and Compliance 
Division, 2000 Traverwood, Ann Arbor MI 48105; telephone (734) 214-
4522, e-mail ``[email protected].''
    Regulated Entities: Entities potentially regulated by this action 
are those which manufacture new motor vehicles and engines.

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                   Category                      Examples of regulated entities    NAICS codes a    SIC codes b
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Industry......................................  New motor vehicle and engine      33611, 336112,           3711
                                                 manufacturers.                           336120
----------------------------------------------------------------------------------------------------------------
a North American Industry Classification System (NAICS) Code.
b 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.  86.005-17, Sec.  86.1806-04 and Sec.  
86.1806-05 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.

Table of Contents

I. Electronic Availability
II. Introduction and Background
III. Requirements of the Final Rule
    A. Use of SAE J1939 Communication Protocol Beyond Model Year 
2007
    B. Applicable Phase-Ins for OBD System Monitoring Requirements 
for Federal Vehicles Certifying by Demonstrating Compliance With 
California OBD II
    C. OBD System Design and Applicable Malfunction Thresholds for 
Federal Vehicles Certifying by Demonstrating Compliance With 
California OBD II
IV. Other Issues Raised by Industry During the Comment Period
    A. Production Vehicle Testing
    B. Enforcement
    C. Referencing the Final Version of CARB?s OBD II Regulations in 
Title 13 California Code of Regulations Sec.  1968.2 (13 CCR 1968.2)
V. Cost Effectiveness
VI. Statutory and Executive Order Reviews
    A. Executive Order 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: Protection of Children From 
Environmental Health & Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. Electronic Availability

    Today's action is available electronically on the day of 
publication from EPA?s Federal Register Internet Web site listed below. 
Electronic copies of this preamble, regulatory language, and other 
documents associated with today's final rule are available from the EPA 
Office of Transportation and Air Quality Web site listed below shortly 
after the rule is signed by the Administrator. This service is free of 
charge, except any cost that you already incur for connecting to the 
Internet.
    EPA Federal Register Web Site: http://www.epa.gov/docs/fedrgstr/epa-air/.
    OTAQ's Web site: http://www.epa.gov/otaq/url-fr.htm.

(Either select a desired date or use the Search feature.)

II. Introduction and Background

    On February 19, 1993, pursuant to Clean Air Act (CAA) section 
202(m), 42 U.S.C. 7521(m), EPA published a final rulemaking (58 FR 
9468) requiring manufacturers of light-duty vehicles (LDVs) and light-
duty trucks (LDTs) to install on-board diagnostic (OBD) systems on such 
vehicles beginning with the 1994 model year. The regulations 
promulgated in that final rulemaking require manufacturers to install 
OBD systems which monitor emission control components for any 
malfunction or deterioration causing exceedance of certain emission 
thresholds, and alert the vehicle operator to the need for repair. That 
rulemaking also requires that, when a malfunction occurs, diagnostic 
information must be stored in the vehicle's computer to assist the 
technician in diagnosis and repair.
    Additionally, this original OBD regulation provided an allowance 
for manufacturers to satisfy federal OBD requirements through the 1998 
model year by installing OBD systems satisfying the OBD II requirements 
promulgated by the California Air Resources Board (CARB) pertaining to 
those model years. On December 22, 1998 (63 FR 70681), EPA revised the 
federal OBD regulations such that the allowance of compliance with the

[[Page 75405]]

California OBD II regulations (excluding anti-tampering provisions) 
extended indefinitely, rather than applying only through the 1998 model 
year. In addition, EPA updated the allowed version to the most recently 
published version, at that time, CARB Mail-Out 97-24 (December 
9, 1997).
    On June 17, 2003, EPA published both a direct final rule and a 
concurrent notice of proposed rulemaking (68 FR 35972 and 68 FR 35830 
respectively) to amend and revise certain provisions of the federal OBD 
regulations. Among other several minor revisions, this action also 
updated the allowed version of the California OBD II regulations; and 
updated the incorporation by reference of standardized practices 
developed by the Society of Automotive Engineers (SAE) and the 
International Organization for Standardization (ISO) to incorporate 
recently published versions. This action also incorporated by reference 
a new standardized protocol developed by the International Organization 
for Standardization (ISO 15765-4.3) and established a future date, 
model year 2008, by which this protocol would be the only acceptable 
protocol.
    EPA received comments from the Engine Manufacturers Association 
(EMA) and Cummins that the direct final rule did not continue to allow 
the use of the heavy-duty communication protocol, SAE J1939, as 
currently allowed under the Federal OBD and CARB OBD II requirements, 
beyond the 2007 model year for vehicles that are not optionally 
certified to CARB's 1968.2 OBD II requirements. EMA commented that the 
direct final rule required that 2008 and later model year heavy-duty 
engines and vehicles under 14,000 lbs. GVWR that are certified to the 
Federal OBD technical monitoring requirements must use the ISO 15765-
4.3 communication protocol. EMA and Cummins commented that this is not 
consistent with CARB's requirements for medium duty vehicles (between 
8500 and 14,000 lbs. GVWR), nor is it consistent with the existing 
communication protocols developed for the unique operational 
characteristics of heavy-duty vehicles. As a result, EPA withdrew the 
portion of the direct final rule establishing the requirement that by 
model year 2008, ISO 15765-4.3 would be the only acceptable protocol. 
This final action addresses the comments of EMA and Cummins and 
finalizes revised regulations incorporating those comments.
    In addition, EPA received comments from the Alliance of Automobile 
Manufacturers (``the Alliance'') and the Association of International 
Automobile Manufacturers (AIAM) requesting clarification of certain 
aspects of the direct final rule. The Alliance and AIAM requested that 
their comments not be considered ``adverse'' unless their understanding 
of EPA's intent was incorrect. The Alliance and AIAM specifically 
expressed interest that EPA clarify that the new OBD requirements, as 
applied to Tier 2 vehicles, would be phased-in on the same schedule as 
CARB's LEV II program. As explained below, EPA believes it appropriate 
to clarify not only this phase-in requirement but also to clarify what 
malfunction thresholds apply when comparing LEV II and Tier 2 programs. 
The Alliance and AIAM also sought clarification from EPA as to whether 
production testing for OBD would be required and whether EPA was 
adopting CARB's new enforcement specific provisions relating to OBD. 
Because EPA is further clarifying its intent and does not disagree with 
commenters' understanding, EPA did not consider these comments adverse. 
Finally, the Alliance and AIAM requested that EPA reference the final 
version of CARB's OBD II regulations contained in Title 13 California 
Code of Regulations 1968.2 (13 CCR 1968.2)), as modified, approved and 
filed on April 21, 2003. At the time, EPA referenced the latest version 
of the CARB OBD II regulations contained in CARB Mail-Out MSCD 
02-11 (October 7, 2002) to allow manufacturer OBD 
certification according to the optional compliance provisions in 
paragraph (j) of the Federal OBD Regulations. This final action will 
address those comments as well.

III. Requirements of the Final Rule

A. Use of SAE J1939 Communication Protocol Beyond Model Year 2007

    In the June 17, 2003 Direct Final Rule, EPA incorporated by 
reference a new, optional standardized communication protocol, ISO 
15765-4.3:2001, December 14, 2001, ``Road Vehicles-Diagnostics on 
Controller Area Network (CAN)--Part 4: Requirements for emission-
related systems'' at 500 kilobytes per second (kbps) baud rate, that 
can be used by manufacturers to design OBD systems. The standardized 
communication protocols provide a uniform language structure that 
facilitates compatibility between OBD II equipped vehicles and OBD II-
related equipment. Manufacturers of light-duty vehicles and trucks are 
planning to implement this new protocol on vehicles, and some have done 
so as early as the 2003 MY, in addition to the existing communication 
protocols: SAE J1939, SAE J1850, ISO 9141, and ISO 14230-4.
    In addition, EPA also included a provision that, commencing in the 
2008 model year, would have required manufacturers to use this new 
communication protocol, ISO 15765-4.3 (500 kbps baud rate) for vehicles 
and engines below 14,000 lbs. The currently allowed communication 
protocols (SAE J1939, SAE J1850, ISO 9141, and ISO 14230-4) would have 
been eliminated for vehicles and engines below 14,000 lbs. Therefore, 
with the 2008 model year, the other, currently-accepted protocols: SAE 
J1939, SAE J1850, ISO 9141-2 and ISO 14230-4, would no longer be 
accepted for all vehicles and engines below 14,000 lbs. and all 
manufacturers of vehicles and engines below 14,000 lbs. would have been 
required to implement OBD systems using only ISO 15765-4.3 (500 kbps 
baud rate).
    The Direct Final Rule did not distinguish between medium-duty 
vehicles (at or above 8500 and 14000 pounds GVWR) and light-duty 
vehicles and trucks (below 8500 pounds). While no one objected to this 
provision as it applied to light-duty vehicles and trucks, EMA and 
Cummins commented that this provision would unintentionally eliminate 
the use of SAE J1939 for vehicles and engines between 8500 and 14000 
pounds GVWR. EPA believes that it is reasonable to allow medium-duty 
engine and vehicle manufacturers between 8500 and 14000 pounds GVWR to 
continue to use communication protocol SAE J1939 beyond the 2008 model 
year along with the new protocol.
    Therefore, EPA is finalizing a provision requiring that the only 
allowable protocols will be ISO 15765-4.3 (500 kbps baud rate) for 
vehicles 8500 pounds GVWR and below and either SAE J1939 or ISO 15765-
4.3 (500 kbps baud rate) for vehicles 8500 to 14000 pounds GVWR 
beginning with the 2008 MY. Accordingly, with the 2008 model year, the 
other currently-accepted protocols SAE J1850, ISO 9141-2 and ISO 14230-
4, would no longer be accepted.

B. Applicable Phase-Ins for OBD System Monitoring Requirements for 
Federal Vehicles Certifying by Demonstrating Compliance With California 
OBD II

    EPA received comment from the Alliance and AIAM regarding the 
certification of federal Tier 2 vehicles to California OBD II 
regulations that reference California LEV II standards. CARB's 
regulations phase-in additional OBD requirements to coincide with the 
phase-in of LEV II vehicles. Beginning

[[Page 75406]]

in the 2004 model year, CARB phases in new OBD II requirements to 
coincide with the LEV II requirements at 25, 50, 75, and 100 percent 
over four model years. The new OBD II requirements are for: 
NOX conversion capability (Title 13 CCR 1968.2 (e)(1.2.2)), 
secondary air monitoring (Title 13 CCR 1968.2 (e)(5.2.3)), continuous 
oxygen sensor monitoring (Title 13 CCR 1968.2 (e)(7.3.1)(B)(ii) and 
(e)(7.3.2)(B)(ii)), cold start emission reduction strategy monitoring 
(Title 13 CCR 1968.2 (e)(11.1.1)), crankshaft and camshaft alignment 
for variable valve timing (VVT)- and timing belt/chain-equipped 
vehicles (Title 13 CCR 1968.2 (e)(16.1.2)), and MIL illumination for 
comprehensive component malfunctions on SULEV II applications only if 
they cause emissions increase equal to or greater than 25% (Title 13 
CCR 1968.2 (e)(16.4.2)(A)).
    These provisions create some confusion for vehicles that are 
certifying to Federal emission requirements during those four years but 
using the option of meeting federal OBD requirements by demonstrating 
compliance with California's OBDII regulations. Since EPA's regulations 
do not reference California's LEV II regulations, the provisions of 
California's OBD II regulations that distinguish LEV II vehicles do not 
directly correspond to federal regulations; in particular, EPA's Tier 2 
regulations.
    The Alliance and AIAM commented that EPA's Direct Final Rule was 
not clear on how OBD requirements that apply only to LEV II vehicles 
would be applied to vehicles certified to EPA's Tier 2 emissions 
standards. The Alliance and AIAM further commented that it has been 
EPA's policy in the past to require the same OBD requirements for a 
specific model vehicle produced for sale outside of California as those 
that apply in that model year for that model vehicle in California. The 
Alliance and AIAM asked EPA to confirm their position on this policy 
and to issue guidance as appropriate to verify EPA's position.
    EPA's Tier 2 standards follow a phase-in that is similar to the 
phase-in of LEV II controls in California. Tier 2 standards begin for 
all vehicles in the 2004 model year but have a phase-in of final Tier 2 
vehicle emission standards of 25, 50, 75, and 100 percent in the 2004, 
2005 2006 and 2007 model years, respectively, and a corresponding 
phase-out for interim non-Tier 2 vehicle emission standards of 75, 50, 
25, and 0% over those four model years. This allows the phase-in of the 
new California OBD II requirements to be phased-in to the federal fleet 
in generally the same time frame as the California fleet, using the 
phase-in of the final Tier 2 standards as a general surrogate to the 
phase-in of LEV II standards, recognizing that there is likely to be 
considerable correspondence between vehicles certified to LEV II 
standards in California to vehicles certified to final Tier 2 standards 
federally.
    EPA agrees with the comments made by the Alliance and AIAM that we 
reiterate our intentions to maintain the current policy that allows 
OEMs to phase-in CARB's new OBD II monitoring requirements on the same 
schedule for vehicles sold outside of California (for those vehicles 
certified by EPA to the ``50 State'' or ``49 State'' standards). 
Therefore, the phase-in of CARB's LEV II OBD II requirements for the 
monitors outlined above generally should meet the same phase-in and be 
phased in with the Federal Tier 2 final emission standards at 25, 50, 
75, and 100 percent as specified in EPA's Tier 2 regulation over four 
model years and shall apply to vehicles sold outside of California. EPA 
recognizes that there may not be exact correspondence between the 
levels of LEV II vehicles sold in California and the levels of 
corresponding vehicles sold federally, and thus is not requiring exact 
correspondence to the phase-in levels for final Tier 2 standards, but 
EPA is expecting relatively similar levels during the phase-in years.

C. OBD System Design and Applicable Malfunction Thresholds for Federal 
Vehicles Certifying by Demonstrating Compliance With California OBD II

    In reviewing the comments from the Alliance/AIAM discussed above, 
EPA realized that it may not be clear in some cases what the applicable 
OBD malfunction threshold is for Federal vehicles certifying to Federal 
OBD requirements by showing compliance with CARB OBD II regulations. 
Traditionally, OEMs certifying to EPA emissions standards but 
optionally complying with CARB OBD II requirements would use the 
applicable CARB OBD II malfunction thresholds (i.e., 1.75 times the 
applicable standard) as a multiplier for the applicable EPA emission 
thresholds. Although this optional compliance allowed manufacturers to 
certify a CARB OBD II system on a federal vehicle, the applicable EPA 
emission standards must be applied, in lieu of the California emission 
standards, when certifying a Federal vehicle or engine. This was 
possible in the past without further clarification because the 
relationship of the malfunction thresholds to the underlying standards 
under the OBD II regulations was not tied to the type of California 
vehicle (e.g. TLEV, LEV, ULEV, etc) being certified. However, because 
the revised California OBD II standards have different multiples based 
on the type of California LEV II vehicle being certified, and because 
LEV II emission bins are not identical to the emission bins for the 
federal Tier 2 program,\1\ EPA needs to clarify the manner in which the 
thresholds in California's OBDII requirements should be incorporated 
into the federal requirements. Therefore, EPA is adding regulatory 
language to clarify this issue.
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    \1\ There is one instance where an EPA Tier 2 bin does not have 
a corresponding CARB LEV II emissions category, (bin 4), and two 
other instances concerning OBD where the EPA and CARB emission 
standards for individual criteria pollutants are not identical: The 
NOx standard for Tier 2 Bin 3 and the CO standards for Tier 2 Bin 2.
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    EPA is clarifying that vehicles certified to Federal Tier II 
emissions standards but complying with Federal OBD by showing 
compliance with CARB OBD II regulations are subject to all OBD 
monitoring requirements applicable to LEV II applications (subject to 
the phase-in discussed above), but shall use Tier 2 emissions standards 
for the purposes of determining malfunction thresholds as described 
below. CARB has similar provisions in their OBD II regulations 
contained in Title 13 CCR 1968.2 (c)(20), and (e)(18.1.3) but these 
provisions only relate to vehicles and engines certified for use in 
California (i.e., California-only or 50-state vehicles and engines).
    Where the Federal standards correspond directly to California 
standards, this operation is simple, as the manufacture would simply 
use the thresholds in the OBD II regulations that correspond to the 
California LEV II vehicle type (e.g. ULEV, SULEV) matching the Federal 
bin to which the federal vehicle is certified. As noted above, there is 
one instance where an EPA Tier 2 bin does not have a corresponding CARB 
LEV II Program emissions category and the emission standards serving as 
the basis for calculating the malfunction thresholds are not identical. 
Tier 2 Bin 4 NMOG standard of 0.07 g/mi, and NOX standard of 
0.04 g/mi and CO standard of 2.1 g/mi, has no corresponding CARB LEV II 
Program' emissions category. This Tier 2 bin falls between the CARB LEV 
II Program LEV II emissions category ( 0.09 g/mi NMOG, NOX 
standard of 0.07 g/mi and CO standard of 2.1 g/mi) and the ULEV II 
emissions category (0.055 g/mi NMOG, 0.07 g/mi NOX, 2.1 g/mi 
CO). Using the NMOG

[[Page 75407]]

criteria pollutant as an example, the table below highlights this 
dilemma (all numbers in grams per mile):

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                                   Tier 2 Full                                  California LEV
                                   Useful Life                                  II Full Useful   California LEV
    Federal Tier 2 bin number         NMOG       Federal  OBD    CARB  OBD II      Life NMOG      II emissions
                                    emission    NMOG threshold  NMOG threshold     emission         category
                                    standards                                      standards
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5...............................         0.09          0.1575          0.1575            0.09   LEV II.
4...............................         0.07          0.1225   ..............  ..............  ................
3...............................         0.055         0.09625         0.09625           0.055  ULEVII.
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    Therefore, we are clarifying in this final rule the method and the 
appropriate malfunction threshold values for a vehicle or engine 
certified to Tier 2 Bin 4 but optionally complying with CARB OBD II 
which is to use the Tier 2 Bin 4 emission standards and the CARB ULEV 
II multiplicative factors for all pollutants except NOX, 
(e.g., 1.75 times the standard for NMOG, CO and PM catalyst monitoring, 
1.5 times the standard for all other monitors except comprehensive 
components) and the SULEV II multiplicative emission factors for 
NOX (e.g. for LDVs, 3.5 times the NOX emission 
standard for model years 2005 and 2006 and 2.5 times the NOX 
emission standard for model year 2007 and beyond for catalyst 
monitoring; 2.5 times the emission standard for all other 
NOX monitors except comprehensive components) to determine 
the appropriate OBD malfunction threshold.
    In addition, there are two instances where the EPA Tier 2 and CARB 
LEV II emission standards for individual criteria pollutants are not 
identical: The NOX standard for Tier 2 Bin 3, which is 0.03 
g/mi, compared the 0.07 g/mi standard for ULEVs, and the CO standard 
for Tier 2 Bin 2, which is 2.1 g/mile, compared to 1.0 g/mile for 
SULEVs.
    To resolve these issues, vehicles certified to Tier 2, Bin 3 
emissions standards shall utilize the Tier 2 Bin 3 NOX 
emission standards and the CARB SULEV II multiplicative factors to 
determine the appropriate OBD malfunction threshold. Vehicles certified 
to Tier 2, Bin 2 emissions standards shall utilize the Tier 2 Bin 2 CO 
emission standards and the CARB SULEV II multiplicative factors to 
determine the appropriate OBD malfunction threshold. For vehicles 
certified to federal bin 7 and higher, manufacturers must use the 
multipliers for Cal LEV II vehicles and the federal standards to 
determine their thresholds.

IV. Other Issues Raised by Industry During the Comment Period

A. Production Vehicle Testing

    The Alliance and AIAM commented that the CARB OBDII regulations 
require manufacturers to conduct production vehicle testing. The 
Alliance and AIAM requested that EPA clarify that production vehicle 
testing would not be required on federal vehicles certified to the CARB 
OBDII regulations. As an alternative, vehicle manufacturers said they 
would provide EPA copies of the final production vehicle evaluation 
reports that are provided to CARB as part of their certification 
process.
    EPA agrees with the Alliance and AIAM comments that federal OBD 
regulations do not explicitly require manufacturers to conduct 
production vehicle testing. However, manufacturers who intend to meet 
the Federal OBD requirements by meeting the CARB OBDII requirements may 
be required to submit the same information that is submitted to CARB in 
order for EPA to make its own determinations of compliance. As a 
result, although EPA will not require the manufacturers to conduct 
production vehicle testing, the EPA may use the reports from the 
production vehicle testing program to assess in-use compliance. This is 
consistent with EPA policy to use all available information from the 
field to assess in-use compliance, of which the manufacturers are 
aware.

B. Enforcement

    The Alliance and AIAM requested that EPA clarify that the new 
enforcement provisions finalized in the CARB OBDII regulations (section 
1968.5) are not being adopted by EPA and that EPA will continue to 
conduct independent evaluations before determining enforcement actions.
    EPA agrees with the Alliance and AIAM that our Direct Final Rule 
did not adopt the enforcement provisions enacted by CARB. EPA has no 
current intent to adopt such provisions. We will continue to conduct 
our own independent assessments and evaluations of manufacturer 
compliance before pursuing enforcement actions. However, EPA will 
continue to use all available information, including, but not limited 
to, any information collected by CARB in making our compliance and 
enforcement determinations.

C. Referencing the Final Version of CARB's OBD II Regulations in Title 
13 California Code of Regulations 1968.2 (13 CCR 1968.2)

    The Alliance and AIAM requested that EPA reference the final 
version of CARB's OBD II regulations contained in Title 13 California 
Code of Regulations 1968.2 (13 CCR 1968.2) under paragraph (j) of the 
Federal OBD regulations allowing optional compliance with CARB OBD II 
requirements. The final version of CARB's OBD II Regulations Title 13 
California Code of Regulations 1968.2 (13 CCR 1968.2) was approved by 
the California Office of Administrative Law (OAL) and filed with the 
California Secretary of State on April 23, 2003.
    The EPA agrees with this recommendation and will reference CARB?s 
OBD II Regulations Title 13 California Code of Regulations 1968.2 (13 
CCR 1968.2) (April 23, 2003) in paragraph (j) of the Federal OBD 
regulations in this regulatory action.

V. Cost Effectiveness

    The purpose of this rulemaking is to clarify existing provisions of 
EPA's OBD regulations. As a result, there are no cost effectiveness 
issues for this action.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency is required to determine whether this regulatory action would be 
``significant'' and therefore subject to review by the Office of 
Management and Budget (OMB) and the requirements of the Executive 
Order. The order defines a ``significant regulatory action'' as any 
regulatory action that is likely to result in a rule that may:

[[Page 75408]]

    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or,
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, we have determined 
that this rule is not a ``significant regulatory action.''

B. Paperwork Reduction Act

    Today's action does not impose any new information collection 
burden. The modifications noted above do not change the information 
collection requirements submitted to and approved by OMB in association 
with the OBD final rulemakings (58 FR 9468, February 19, 1993; and 59 
FR 38372, July 28, 1994 under the provisions of the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. However, the Office of Management and 
Budget (OMB) has previously approved the information collection 
requirements contained in the existing regulations (64 FR 23906) under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
and has assigned OMB control number 2060-0104, EPA ICR number 0783.47. 
A copy of the OMB approved Information Collection Requests (ICR) may be 
obtained from Susan Auby, Collection Strategies Division; U.S. 
Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., 
Washington, DC 20460 or by calling (202) 566-1672.
    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 in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The RFA generally requires an agency to prepare an initial 
regulatory flexibility analysis of any proposed rule subject to notice 
and comment rulemaking requirements under the Administrative Procedure 
Act or any other statute unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's final rule on 
small entities, small entity is defined as: (1) Those businesses 
meeting the definition provided by the Small Business Administration 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Today's 
action provides clarification and correct reference information and 
does not add new regulatory burden on small entities. Periodically EPA 
must update its regulations to incorporate by reference any new 
applicable communication protocols (including those set forth by the 
SAE and the ISO) to be used by the OBD system. EPA had unnecessarily 
deleted the allowance of a certain SAE protocol for 2007 and later 
model year heavy-duty vehicles in a previous rulemaking and by today's 
final rule that protocol is placed back into the regulation.
    Second, the phase-in of the new OBD II regulations in California is 
tied to a phase in of their new emission standards called LEV II (the 
second round of low-emission vehicle standards) that commence in the 
2004 model year. EPA's Tier 2 emission standards (that also commences 
in 2004) are phased in with a similar schedule as LEV II and therefore, 
based on manufacturers' request, we are clarifying that those 
manufacturers that choose to optionally certify their federal vehicles 
to CARB's OBD II regulations may do so based on the same phase-in of 
OBD II as allowed within California. However, because in a very few 
instances the emission standard levels of LEV II and Tier 2 do not 
completely match, we are also clarifying within the regulations what 
emission malfunction thresholds and emission levels apply to federal 
vehicles certified as meeting the OBD II regulations.
    We are also adding reference to the final CARB ``Mail-out'' number 
for CARB's OBD II regulation as finalized. In addition, we have added 
clarification of whether EPA was adopting some of CARB's ancillary OBD 
II regulations such as the testing requirements on production vehicles 
and CARB's unique in-use testing and enforcement requirements. By 
today's action we are clarifying that EPA did not adopt such 
requirements by the direct final rule and is not otherwise doing so.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments, and the private sector. Under section 202 of the UMRA, we 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to state, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more for 
any single year. Before promulgating a rule for which a written 
statement is needed, section 205 of the UMRA generally requires us 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 us to adopt an alternative that is 
not the least costly, most cost-effective, or least burdensome 
alternative if we provide an explanation in the final rule of why such 
an alternative was adopted.
    Before we establish any regulatory requirement that may 
significantly or uniquely affect small governments, including tribal 
governments, we must develop a small government plan pursuant to 
section 203 of the UMRA. Such a plan must provide for notifying 
potentially affected small governments, and enabling officials of 
affected small governments to have meaningful and

[[Page 75409]]

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.
    This rule contains no federal mandates for state, local, or tribal 
governments as defined by the provisions of Title II of the UMRA. The 
rule imposes no enforceable duties on any of these governmental 
entities. Nor does this rule have any Federal mandates that may result 
in the expenditures of $100 million or more in any year by the private 
sector as also defined by the provisions of Title II of the UMRA. 
Nothing in the rule will significantly or uniquely affect small 
governments.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires us 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''.
    Under section 6 of Executive Order 13132, we may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or we consult 
with state and local officials early in the process of developing the 
proposed regulation. We also may not issue a regulation that has 
federalism implications and that preempts state law, unless the Agency 
consults with state and local officials early in the process of 
developing the proposed regulation.
    Section 4 of the Executive Order contains additional requirements 
for rules that preempt state or local law, even if those rules do not 
have federalism implications (i.e., the rules will not 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). Those 
requirements include providing all affected state and local officials 
notice and an opportunity for appropriate participation in the 
development of the regulation. If the preemption is not based on 
express or implied statutory authority, we also must consult, to the 
extent practicable, with appropriate state and local officials 
regarding the conflict between state law and federally protected 
interests within the agency's area of regulatory responsibility.
    This rule does not have federalism implications. It will not 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, as 
specified in Executive Order 13132. This rule updates provisions of an 
earlier rule that adopted national standards relating to OBD systems 
and the ability of manufacturers to demonstrate Federal compliance 
based on demonstration of compliance with California OBD II 
regulations. The requirements of the rule will be enforced by the 
Federal government at the national level. Thus, the requirements of 
section 6 of the Executive Order do 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.'' This rule does not have 
tribal implications, as specified in Executive Order 13175. Today's 
rule would not uniquely affect the communities of American Indian 
tribal governments since the motor vehicle fuel and other related 
requirements for private businesses in today's rule have national 
applicability. Furthermore, today's rule does not impose any direct 
compliance costs on these communities and no circumstances specific to 
such communities exist that will cause an impact on these communities 
beyond those discussed in the other sections of today's document.
    This rule does not significantly or uniquely affect the communities 
of Indian tribal governments. As noted above, this rule will be 
implemented at the Federal level and imposes compliance obligations and 
options on private industry. Thus, Executive Order 13175 does not apply 
to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    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 Executive Order 12866, and 2) concerns an environmental 
health or safety risk that we have reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, section 5-501 of the Executive Order directs us to 
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 us.
    EPA interprets E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. This final rule is not subject to E.O. 13045 
because it is based on technology performance and not on health or 
safety risks.

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 and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), section 12(d) of Public Law 104-113, directs us to 
use voluntary consensus standards in our regulatory activities unless 
it would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) developed or adopted by voluntary consensus standards 
bodies. The NTTAA directs us to provide Congress, through OMB, 
explanations when we decide not to use available and applicable 
voluntary consensus standards.
    This final rule references technical standards adopted by us 
through previous rulemakings. Specifically, this rule references 
technical standards developed by the Society of Automotive Engineers 
(SAE) and the International

[[Page 75410]]

Standards Organization (ISO) related to the design and function of On-
Board Diagnostic (OBD) systems on motor vehicles and engines below 
14,000 pounds gross vehice weight rating, for which today's action 
applies. No new technical standards are established in today's rule.

Statutory and Legal Authority

    Statutory authority for today's final rule comes from the Clean Air 
Act, 42 U.S.C. 7401 et seq., in particular, section 202(m) of the Act 
(42 U.S.C. 7521(m)).

List of Subjects in 40 CFR Part 86

    Environmental Protection, Incorporation by reference, 
Administrative practice and procedure, Motor vehicle pollution, On-
board diagnostics.

    Dated: November 29, 2005.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, part 86 of title 40 of the 
Code of Federal Regulations is amended as follows:

PART 86--CONTROL OF 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 86.005-17 is amended by adding paragraph (h)(3) and revising 
paragraph (j) to read as follows:
* * * * *


Sec.  86.005-17  On-board diagnostics.

* * * * *
    (h) * * *
    (3) Beginning with the 2008 model year and beyond, ISO 15765-
4.3:2001 ``Road Vehicles-Diagnostics on Controller Area Network (CAN)--
Part 4: Requirements for emission-related systems'', (December 14, 
2001) shall be the only acceptable protocol used for standardized on-
board to off-board communications for vehicles below 8500 pounds. For 
vehicles 8500 to 14000 pounds ISO 15765-4.3 or the SAE J1939 series of 
standards (SAE J1939-11, J1939-13, J1939-21, J1939-31, J1939-71, J1939-
73, J1939-81). All other standardized on-board to off-board 
communications protocols: SAE J1850 ``Class B Data Communication 
Network Interface,'' (Revised, May 2001) in (h)(1)(i), ISO 9141-2 
``Road vehicles--Diagnostic systems--Part 2: CARB requirements for 
interchange of digital information,'' (February 1, 1994) in (h)(2)(i), 
and ISO 14230-4 ``Road vehicles--Diagnostic systems--KWP 2000 
requirements for Emission-related systems'', (June 1, 2000) in 
paragraph (h)(2)(ii) of this section will at that time no longer be 
accepted.
* * * * *
    (j) California OBDII compliance option. For heavy-duty engines 
weighing 14,000 pounds GVWR or less, demonstration of compliance with 
California OBD II requirements (Title 13 California Code of Regulations 
Sec.  1968.2 (13 CCR 1968.2)), as modified, approved and filed on April 
21, 2003, shall satisfy the requirements of this section, except that 
compliance with 13 CCR 1968.2(e)(4.2.2)(C), pertaining to 0.02 inch 
evaporative leak detection, and 13 CCR 1968.2(d)(1.4), pertaining to 
tampering protection, are not required to satisfy the requirements of 
this section. Also, the deficiency provisions of 13 CCR 1968.2(i) do 
not apply. The deficiency provisions of paragraph (i) of this section 
and the evaporative leak detection requirement of paragraph (b)(4) of 
this section apply to manufacturers selecting this paragraph for 
demonstrating compliance. In addition, demonstration of compliance with 
13 CCR 1968.2(e)(16.2.1)(C), to the extent it applies to the 
verification of proper alignment between the camshaft and crankshaft, 
applies only to vehicles equipped with variable valve timing.
* * * * *

0
3. Section 86.1806-04 is amended by revising paragraph (j) and adding 
paragraph (l) to read as follows:


Sec.  86.1806-04  On-board diagnostics.

* * * * *
    (j) California OBDII compliance option. For heavy-duty engines 
weighing 14,000 pounds GVWR or less, demonstration of compliance with 
California OBD II requirements (Title 13 California Code of Regulations 
Sec.  1968.2 (13 CCR 1968.2)), as modified, approved and filed on April 
21, 2003, shall satisfy the requirements of this section, except that 
compliance with 13 CCR 1968.2(e)(4.2.2)(C), pertaining to 0.02 inch 
evaporative leak detection, and 13 CCR 1968.2(d)(1.4), pertaining to 
tampering protection, are not required to satisfy the requirements of 
this section. Also, the deficiency provisions of 13 CCR 1968.2(i) do 
not apply. The deficiency provisions of paragraph (i) of this section 
and the evaporative leak detection requirement of paragraph (b)(4) of 
this section apply to manufacturers selecting this paragraph for 
demonstrating compliance. In addition, demonstration of compliance with 
13 CCR 1968.2(e)(16.2.1)(C), to the extent it applies to the 
verification of proper alignment between the camshaft and crankshaft, 
applies only to vehicles equipped with variable valve timing.
* * * * *
    (l) Thresholds for California OBD II Compliance Option. For the 
purposes of complying with the provisions set forth above in paragraph 
(j), vehicles certified to Tier 2 standards shall utilize 
multiplicative factors from the California vehicle type (i.e. LEV II, 
ULEV II) corresponding to the Tier 2 to which the vehicles are 
certified. Vehicles certified to Tier 2, Bin 4 emissions standards 
shall utilize the Tier 2 Bin 4 emission standards and the CARB ULEV II 
multiplicative factors to determine the appropriate OBD malfunction 
threshold for all pollutants except NOX, for which they 
shall utilize that CARB SULEV II multiplicative factors. Vehicles 
certified to Tier 2, Bin 3 emissions standards shall utilize the Tier 2 
Bin 3 emission standards and the CARB ULEV II multiplicative factors to 
determine the appropriate OBD malfunction threshold for all pollutants 
except NOX, for which they shall utilize that CARB SULEV II 
multiplicative factors. Vehicles certified to Tier 2, Bin 2 emissions 
standards shall utilize the Tier 2 Bin 2 emission standards and the 
CARB SULEV II multiplicative factors to determine the appropriate OBD 
malfunction threshold. Vehicles certified to Tier 2 Bin 7 or higher 
shall utilize the CARB LEV II multiplicative factors to determine the 
appropriate OBD malfunction threshold.
* * * * *

0
4. Section 86.1806-05 is amended by adding paragraphs (h)(3) and (m) 
and revising paragraph (j) to read as follows:


Sec.  86.1806-05  On-board diagnostics.

* * * * *
     (h) * * *
    (3) Beginning with the 2008 model year and beyond, ISO 15765-4.3: 
2001 ``Road Vehicles-Diagnostics on Controller Area Network (CAN)--Part 
4: Requirements for emission-related systems'', (December 14, 2001) 
shall be the only acceptable protocol used for standardized on-board to 
off-board communications for vehicles below 8500 pounds. For vehicles 
8500 to 14000 pounds ISO 15765-4.3 or the SAE J1939 series of standards 
(SAE J1939-11, J1939-13, J1939-21, J1939-31, J1939-71, J1939-73, J1939-
81). All other standardized on-board to off-board communications 
protocols: SAE J1850 ``Class B Data Communication Network Interface,'' 
(Revised, May 2001) in paragraph (h)(1)(i), ISO 9141-2 ``Road 
vehicles--Diagnostic systems--Part 2: CARB requirements for interchange 
of digital information,'' (February 1, 1994)

[[Page 75411]]

in (h)(2)(i), and ISO 14230-4 ``Road vehicles--Diagnostic systems--KWP 
2000 requirements for Emission-related systems'', (June 1, 2000) in 
paragraph (h)(2)(ii) of this section will at that time no longer be 
accepted
* * * * *
    (j) California OBDII compliance option. For heavy-duty engines 
weighing 14,000 pounds GVWR or less, demonstration of compliance with 
California OBD II requirements (Title 13 California Code of Regulations 
1968.2 (13 CCR 1968.2)), as modified, approved and filed on April 21, 
2003, shall satisfy the requirements of this section, except that 
compliance with 13 CCR 1968.2(e)(4.2.2)(C), pertaining to 0.02 inch 
evaporative leak detection, and 13 CCR 1968.2(d)(1.4), pertaining to 
tampering protection, are not required to satisfy the requirements of 
this section. Also, the deficiency provisions of 13 CCR 1968.2(i) do 
not apply. The deficiency provisions of paragraph (i) of this section 
and the evaporative leak detection requirement of paragraph (b)(4) of 
this section apply to manufacturers selecting this paragraph for 
demonstrating compliance. In addition, demonstration of compliance with 
13 CCR 1968.2(e)(16.2.1)(C), to the extent it applies to the 
verification of proper alignment between the camshaft and crankshaft, 
applies only to vehicles equipped with variable valve timing.
* * * * *
    (m) Thresholds for California OBD II Compliance Option. For the 
purposes of complying with the provisions set forth above in paragraph 
(j), vehicles certified to Tier 2 standards shall utilize 
multiplicative factors from the California vehicle type (i.e. LEV II, 
ULEV II) corresponding to the Tier 2 to which the vehicles are 
certified. Vehicles certified to Tier 2, Bin 4 emissions standards 
shall utilize the Tier 2 Bin 4 emission standards and the CARB ULEV II 
multiplicative factors to determine the appropriate OBD malfunction 
threshold for all pollutants except NOX, for which they 
shall utilize that CARB SULEV II multiplicative factors. Vehicles 
certified to Tier 2, Bin 3 emissions standards shall utilize the Tier 2 
Bin 3 emission standards and the CARB ULEV II multiplicative factors to 
determine the appropriate OBD malfunction threshold for all pollutants 
except NOX, for which they shall utilize that CARB SULEV II 
multiplicative factors. Vehicles certified to Tier 2, Bin 2 emissions 
standards shall utilize the Tier 2 Bin 2 emission standards and the 
CARB SULEV II multiplicative factors to determine the appropriate OBD 
malfunction threshold. Vehicles certified to Tier 2 Bin 7 or higher 
shall utilize the CARB LEV II multiplicative factors to determine the 
appropriate OBD malfunction threshold.

[FR Doc. 05-23669 Filed 12-19-05; 8:45 am]
BILLING CODE 6560-50-P