Control of Air Pollution From New Motor Vehicles and New Motor
Vehicle Engines; Regulations Requiring Availability of Information for
Use of On-Board Diagnostic Systems and Emission-Related Repairs on 1994
and later Model Year Light-Duty Vehicles and Light-Duty Trucks
[Federal Register: August 9, 1995 (Volume 60, Number 153)]
[Rules and Regulations]
[Page 40474-40498]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 86
[AMS-FRL-5268-1]
RIN 2060-AE93
Control of Air Pollution From New Motor Vehicles and New Motor
Vehicle Engines; Regulations Requiring Availability of Information for
Use of On-Board Diagnostic Systems and Emission-Related Repairs on 1994
and later Model Year Light-Duty Vehicles and Light-Duty Trucks
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: This final rule establishes requirements for the availability
of emission-related service information for all light-duty vehicles
(LDVs) and light-duty trucks (LDTs) beginning with the 1994 model year
(MY). Section 202(m)(5) of the Clean Air Act (CAA or Act) requires EPA
to promulgate rules mandating the availability of emission-related
service information for such vehicles. This rulemaking requires vehicle
manufacturers to provide to the service and repair industry information
necessary to service on-board diagnostic (OBD) systems and to perform
other emission-related diagnosis and repair.
EFFECTIVE DATE: This final rule is effective December 7, 1995.
ADDRESSES: Materials relevant to this rulemaking are contained in
Docket No. A-90-35. The docket is located at The Air Docket, 401 M
Street, S.W., Washington, D.C. 20460, and may be viewed in Room M-1500
from 8:30 a.m. until 3:30 p.m. Monday through Friday. A reasonable fee
may be charged by EPA for copying docket material.
FOR FURTHER INFORMATION CONTACT: Cheryl Adelman, Certification
Division, U.S. Environmental Protection Agency, 2565 Plymouth Road, Ann
Arbor, Michigan 48105, Telephone (313) 668-4434
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background and Development
II. Requirements of the OBD Final Rule
A. Availability of Service Information
B. Required Information and Emission-Related Information
C. Cost of Service Information
D. Distribution of Service Information and Timeliness
E. Enhanced Diagnostic Information
F. Enhanced Diagnostic Tools
G. Recalibration/Reprogramming
III. Public Participation
IV. Discussion of Comments and Issues
A. Definition of ``Emission-Related'' Information
B. Information Used To Manufacture Aftermarket Parts
[[Page 40475]]
C. Guidelines
D. Cost of Service Information
E. Distribution of Service Information
F. Timeliness
G. Media/Format
H. Enhanced Diagnostic Information
I. Enhanced Diagnostic Tools
J. Recalibration/Reprogramming
K. Regulatory Flexibility Analysis
V. Administrative Requirements
A. Administrative Designation
B. Impact on Small Entities
C. Unfunded Mandates Act
D. Electronic Copies of Rulemaking Documents
E. Paperwork Reduction Act
F. Display of OMB Control Numbers
VI. Authority
I. Background and Development
Section 202(m)(5) of the CAA, as amended by the Clean Air Act
Amendments of 1990 (CAAA), directs EPA to promulgate regulations
requiring vehicle manufacturers to provide to:
any person engaged in the repairing or servicing of motor vehicles
or motor vehicle engines, and the Administrator for use by any such
persons, * * * any and all information needed to make use of the
[vehicle's] emission control diagnostic system * * * and such other
information including instructions for making emission-related
diagnoses and repairs.
Such requirements are subject to the requirements of section 208(c)
regarding protection of trade secrets; however, no such information may
be withheld under section 208(c) if that information is provided
(directly or indirectly) by the manufacturer to its franchised dealers
or other persons engaged in the repair, diagnosing or servicing of
motor vehicles.
On September 24, 1991, EPA published a notice of proposed
rulemaking <SUP>1 (NPRM) outlining the Agency's proposed service
information requirements. EPA subsequently reopened the comment and
held public workshops to further review aspects of these
requirements.<SUP>2 Today's document promulgates these regulations.
\1\ 56 FR 48272 (September 24, 1991).
\2\ 57 FR 24457 (June 9, 1992); 58 FR 34013 (June 23, 1993).
As of August 1990, 96 urban areas were in violation of the National
Ambient Air Quality Standard (NAAQS) for ozone and 41 areas could not
attain the NAAQS for carbon monoxide (CO). EPA estimates that currently
6012f the total tailpipe HC emissions from LDVs and LDTs are caused by
the 2012f vehicles with serious emission control system malfunctions
or degradation.<SUP>3 The more stringent new vehicle emission standards
mandated by the Act are likely to increase further the proportion of
total LDV emissions from malfunctioning vehicles.
\3\ Regulatory Impact Analysis: On-Board Diagnostics, Appendix
I; Air Docket No. A-90-35.
The purpose of the OBD system and emission-control systems is to
reduce emission levels of various pollutants. For such systems to
achieve projected levels of emission reductions, it will be essential
that they be adequately maintained and repaired. This will require
automotive technicians to possess the knowledge necessary to identify
and repair improperly operating emission-related systems and
components. This knowledge is acquired, in part, by having access to
information on the operation and repair of such systems and related
components.<SUP>4
\4\ To properly service and repair vehicles, automotive
technicians require both access to needed information and training.
Direct training is beyond the scope of this rulemaking; however, the
availability of manufacturer training information and materials is
covered by these proposed regulations.
To date, automotive technicians employed by manufacturer
franchisees have had access, through their employer, to needed
emission-related service and repair information. The same is not always
true for other individuals who repair and service vehicles. Some
manufacturers do not make available to the public all the information
needed to adequately service and repair motor vehicles. Further, when
information is made available, it may be difficult to locate and time
consuming to obtain.
It is especially important for independent technicians to have
access to needed emission-related service and repair information,
including training instructions. It has been estimated that independent
technicians are responsible for conducting up to 8012f all
repairs.<SUP>5 In addition, independent technicians are more likely to
repair the vehicles which are the most likely to violate emission
standards (older vehicles, in general). This conclusion is the result
of a recent study which demonstrated that (1) the level of excess
emissions increases as a vehicle's mileage increases, and (2) the
percentage of nondealer repairs increased and dealer repairs decreased
as a vehicle's mileage increased.<SUP>6 Considering the large number of
vehicles being serviced by independent technicians, it is essential
that such individuals have access to adequate emission-related repair
and service information.
\5\ ``Service Job Analysis,'' Hunter Publishing Co., 1984.
\6\ ``Survey of Vehicle Owners in the On-Board Diagnostics
Program,'' Westat, Inc., July 18, 1990.
Today's regulations are intended to preserve freedom of choice by
consumers in where they obtain service and repair of emission-related
systems. This can only be achieved by ensuring that all sectors of the
automotive service industry have access to the information needed to
perform such service and repairs.
II. Requirements of the OBD Final Rule
A. Availability of Service Information
Today's regulations require that manufacturers provide to any
person engaged in the repairing or servicing of motor vehicles or motor
vehicle engines all information necessary to make use of the OBD system
and any information for making emission-related diagnosis and repairs,
including any emission-related information that is provided by the
manufacturer to franchised dealers or other persons engaged in the
repair, diagnosing or servicing of motor vehicle engines.
B. Required Information and Emission-Related Information
Manufacturers are required to make available to the aftermarket
``any and all'' information needed to make use of the OBD system and
such other information, including instructions for making emissionrelated
repairs, excluding trade secrets. The scope of the information
that must be provided includes the direct and indirect service and
repair information that a manufacturer provides to its authorized
dealerships or other persons engaged in the repair, diagnosing, or
servicing of motor vehicles or motor vehicle engines. Examples of
direct information are service manuals, technical service bulletins
(TSBs), training materials or information, diagnostic information,
wiring diagrams, and any written memoranda or guidance provided to
dealers. Indirect information is information provided to dealers
through indirect means. Examples of indirect information include, but
are not limited to, information made available through tools and
equipment, such as emission-related reprogramming events, data stream
information, and bi-directional control. Manufacturers are required to
provide such information (or allow such information to be provided by
others) to persons engaged in the repair and service of vehicles in the
same or similar manner such information is provided to their dealers.
Manufacturers are not required to provide such information directly
without regard for protection of trade secrets.
Information for making emission-related diagnosis and repairs does
not include information used to design and manufacture parts, but may
include
[[Page 40476]]
manufacturer changes to internal computer calibrations. However, a
manufacturer need only provide internal calibrations to the service and
repair industry to the extent it has provided such information to its
dealerships.
Emission-related information includes, but is not limited to,
information regarding any system, component or part of a vehicle that
controls emissions and any system, component and/or part associated
with the powertrain system, including, but not limited to, the engine,
the fuel system and ignition system. Information must also be provided
for any system, component, or part that is likely to impact emissions,
such as transmission systems. In addition, EPA will monitor the results
of inspection and maintenance (I/M) programs for failures resulting
from systems, components or parts other than those described here. If
EPA determines that a substantial number of I/M failures are occurring
due to systems, components or parts other than those described here,
the extent of emission-related service information will be expanded to
include such items. EPA will notify any affected manufacturer(s) of its
concerns and will allow such manufacturers to reply to these concerns
prior to making any such determinations. Affected manufacturers will be
notified of any such EPA determinations.
C. Cost of Service Information
Emission-related service information is to be made available at a
reasonable price. This means the fair market price taking into
consideration factors such as the cost to the manufacturer of preparing
and/or providing the information, the type of information, the format
in which it is provided, the price charged by other manufacturers for
similar information, the differences that exist among manufacturers
(e.g., the size of the manufacturer), the quantity of material
contained in a publication, the detail of the information, the cost of
the information prior to publication of this final rule, volume
discounts, and inflation. EPA is not requiring that manufacturers sell
information to aftermarket service providers at the lowest price
charged to their dealerships.
D. Distribution of Service Information and Timeliness
Today's rule allows each manufacturer to distribute emissionrelated
service and repair information through the distribution
mechanism it determines to be the most efficient and cost-effective.
There is no requirement that manufacturers use the same distribution
mechanism for dealers and aftermarket service providers. However, each
manufacturer will be responsible for up-loading a complete index of
required information to NTIS' (National Technical Information Service)
FedWorld.<SUP>7 Manufacturers are required to make available on
FedWorld an index of all information that falls within the definition
of emission-related service, diagnosis and repair information.<SUP>8
This includes, but is not limited to, manuals, TSBs, all training
materials, and videos. Each manufacturer title listed in the index must
adequately describe the contents of the document to which it refers. If
a title does not adequately describe the contents, the manufacturer
shall provide a brief description that enables the user to determine
whether an item contains the information being sought. If requested to
do so, FedWorld will accept orders for service information and transmit
them to the manufacturer's designated information distributor. The
party identified in FedWorld by a manufacturer as the distributor of
the manufacturer's emission-related service information can be the
manufacturer itself, a publisher/distributor, or other entity that can
provide the information as required.
\7\ NTIS operates FedWorld, an online computer system that
allows public access to government and other documents. FedWorld can
be accessed for up to three hours a day at no charge by using a
modem to dial (703) 321-3339 or by using the Internet telnet command
to connect to fedworld.gov.
\8\ This requirement does not apply to indirect information,
which is discussed below.
In addition to the index, manufacturers are required to list a
phone number and address where aftermarket service providers can call
or write to obtain the desired information. Manufacturers must also
provide the price of each item listed, as well as the price of items
ordered on a subscription basis.
Manufacturers are required to update the FedWorld index on the
first and third Monday of each month or as otherwise specified by the
Agency. A manufacturer may opt to update its FedWorld index more
frequently. In addition, each manufacturer is responsible for paying
its share of the annual cost of FedWorld. Such costs are to be paid by
each manufacturer; however, payments can be made through various
arrangements, e.g., a group of manufacturers can elect to determine
what they would owe if paid individually and then divide that amount
based on sales or other factors. The annual cost of maintaining the
FedWorld database is approximately $70,000 to $75,000. To determine the
cost to each manufacturer, FedWorld will divide the total cost by the
number of participating manufacturers.
Manufacturers are responsible for ensuring that the party shipping
the information does so within a specified time period, i.e., within
one regular business day of receiving an order. Distributors are
encouraged to provide by fax items which, in their entirety, are less
than 20 printed pages, such as TSBs. Also, the distributor is required
to send the information by overnight delivery if the ordering party
requests it and assumes the cost of delivery.
The search format to be used by FedWorld, e.g., manufacturer, MY,
vehicle make, and so forth, will be determined by FedWorld shortly
after publication of this rule and, to the extent possible, will take
into consideration suggestions from EPA, manufacturers, and aftermarket
service providers.
Each manufacturer has 120 days following publication of this rule
to upload its index and meet the above requirements for providing all
required service information to aftermarket service providers,
facilities, and others for 1994 and later MY vehicles which have been
offered for sale by that date. For vehicle models introduced more than
120 days after promulgation of these regulations, manufacturers are
responsible for providing service information to aftermarket service
providers, facilities, and others, at the same time it is made
available to dealerships. Thereafter, to the extent there are changes,
emission-related service information for MY 1994 and later vehicles
which becomes available shall be added to the index at the next
scheduled mandated update period, i.e., first or third Monday of each
month.
Since independent technicians often work on many makes of vehicles,
it is important for them to have access to condensed versions of
service information. Therefore, EPA encourages the manufacturers to
enter into agreements with information intermediaries in a manner which
ensures that condensed information is available to aftermarket service
providers in a timely manner and at a reasonable cost. Since
information is available in its entirety from sources identified in
FedWorld, manufacturers are not responsible for condensed information
published by intermediaries or other third parties. Manufacturers are,
however, responsible for errors in their own materials.
EPA is not issuing any regulations in this rule that specifically
require manufacturers to provide information to
[[Page 40477]]
intermediaries (e.g., publishers of non-manufacturer service manuals)
with emission-related information. However, EPA anticipates that
manufacturers will continue to provide such intermediaries with
information as they have in the past.
FedWorld will make available a telephone number that aftermarket
service providers can call to obtain a printed copy of the index. Since
information can be downloaded without charge, EPA expects that some
trade publications and associations may offer subscribers or members a
printed copy if they provide a self-addressed stamped envelope.
No waivers will be granted for any of the requirements related to
FedWorld. Since EPA believes that FedWorld provides an adequate means
of monitoring the information being made available, manufacturers are
not required to submit a plan for distributing information as part of
their certification requirements.
E. Enhanced Diagnostic Information
All emission-related data stream information made available to
manufacturer franchised dealers (or others in the service industry) is
required to be made available to equipment and tool manufacturers.
Vehicle manufacturers can, in the alternative, make such information
available to independent technicians through provision of vehicle
manufacturer equipment and tools. Beginning on January 1,1997, a
manufacturer can only provide bi-directional control to its dealerships
if it has provided equipment and tool manufacturers with information to
make diagnostic equipment with the same bi-directional control
capabilities available to the dealerships, or provided such
capabilities directly to independent technicians through provision of
their own tools. Manufacturers are required to make bi-directional
control information available for all MYs beginning with MY 1994, if
such information is provided to their dealerships. However, for MYs
1994-1996, where a manufacturer can prove that safeguards for bidirectional
controls are only installed in tools, not in vehicle onboard
computers, then that manufacturer may receive a waiver from
producing bi-directional controls for vehicles prior to the 1997 MY.
However, no such waiver is available for other types of data stream
information.
This rulemaking does not require a manufacturer to supply any
emission-related information to aftermarket service providers that it
does not make available to its authorized dealerships or other third
parties. For example, functional control strategies and waveform
information are not required to be made available to aftermarket
service providers except to the extent they are made available to
authorized dealerships.
F. Enhanced Diagnostic Tools
Manufacturers are required to either make available to aftermarket
tool and equipment companies any and all information, except
calibrations and recalibrations, needed to develop and manufacture
generic tools that can be used by independent technicians to diagnose,
service and repair emission-related parts, components and systems or
they may sell their own diagnostic tools and equipment to independent
technicians if the price of such tools is reasonable (e.g.,
competitively priced with aftermarket tools that would perform the same
functions).
As to emission-related diagnostic and service information utilized
by aftermarket tool and equipment companies that make generic tools
which perform the same or similar functions as those provided by
manufacturers to their dealerships, the Agency is requiring that such
information be provided at the time of model introduction. This should
allow adequate time for its incorporation into tools and equipment by
aftermarket tool and equipment companies.
G. Recalibration/Reprogramming
Effective December 1, 1997, manufacturers are required to:
(1) make available to independent technicians all emission-related
reprogramming events (including driveability reprogramming events that
may affect emissions) that were issued prior to December 1, 1997 by
manufacturers and made available to dealerships for MYs 1994 through
1997; and
(2) for reprogramming events that are issued on or after December
1, 1997, make available to independent technicians all emission-related
reprogramming events (including driveability reprogramming events that
may affect emissions) issued by manufacturers for 1994 and later MY
vehicles at the same time they are made available to dealerships.
For all vehicles, reprogramming need not be provided for any
recalibrations performed prior to vehicles entering the stream of
commerce (i.e., sale to first purchaser).
If a manufacturer can demonstrate, to the satisfaction of the
Administrator, that hardware would have to be retroactively installed
on vehicles to meet security measures implemented by the manufacturer,
the manufacturer may request a waiver from the reprogramming
requirements for MYs 1994 through 1996.
EPA is providing manufacturers until December 1, 1997, to adopt and
implement security measures, such as encryption or other measures, that
address tampering concerns and concerns regarding proprietary
information. This leadtime also provides manufacturers an opportunity
to work out logistical issues related to making reprogramming available
to the potentially large numbers of independent facilities that may be
interested in receiving this capability. Though EPA is allowing
security measures to be implemented by manufacturers, such measures are
not being required by these regulations. EPA believes that
manufacturers are best able to determine the extent to which the
release of this information will endanger the proprietary nature of the
underlying information and/or potentially lead to tampering.
Manufacturers are required to either offer for sale at a
competitive market price a reprogramming tool that interfaces with the
vast majority of generic portable computers or make available to
aftermarket tool and equipment companies information that would enable
them to manufacture such a tool. In addition, manufacturers are
responsible for assuring that those independent service providers who
elect not to purchase reprogramming services have access to
reprogramming services at a reasonable cost and in a timely manner.
Any method adopted by a manufacturer by which reprogramming is made
available to independent technicians cannot impose a significant burden
on independent technicians beyond that experienced by dealerships. For
example, manufacturers can sell reprogramming tools directly to
independent technicians or enter into agreements with aftermarket tool
companies whereby the manufacturers provide the tool companies with the
information necessary to build reprogramming tools. In conjunction with
one of these options, manufacturers could transmit reprogramming events
directly to independent technicians by modem from a main frame computer
or provide them with CD ROMs. In formulating its method of making
reprogramming available to independent technicians, a manufacturer may
request to meet with EPA to discuss whether the method comports with
the requirements of this rule.
[[Page 40478]]
Manufacturers are also responsible for ensuring that aftermarket
service providers have an efficient and cost-effective method for
identifying whether the calibrations on a vehicle are the latest to be
issued.
III. Public Participation
On September 24, 1991, EPA published a NPRM which set forth
proposed requirements for emission-related service information for LDVs
and LDTs. The period for submission of comments on the NPRM was
scheduled to close on December 9, 1991.
On November 6 and 7, 1991, a public hearing was held. The original
comment period was then extended to January 10, 1992, for comments
regarding the availability of service information. In addition,
workshops were held on June 30, 1992, and July 14, 1993. The comment
periods for these two workshops closed on July 31, 1992, and August 13,
1993, respectively.
The CAA requirements regarding the availability of service and
repair industry information necessary to perform repair and maintenance
service on OBD systems and other emission-related vehicle components
elicited extensive comments. Comments were received from manufacturers
and their associations, mechanics and their trade associations, motor
vehicle dealerships, state agencies, and private individuals. Because
of the scope of the issues involved and raised by these comments, the
following sections only briefly summarize comments on the major issues.
For the complete response to comments, see the Response to Comments on
the Regulations Requiring the Availability of Service Information on
1994 and Later MY Light-Duty Vehicles and Light-Duty Trucks contained
in the public docket for this rule.
IV. Discussion of Comments and Issues
Comments on a wide range of issues concerning the proposed service
information requirements were received. Summarized here are the
comments concerning the major or controversial issues and the rationale
behind EPA's final decisions. These issues are considered in more
detail in the supplemental Response to Comments document prepared for
this final rule and included in the docket noted earlier. Also in the
Response to Comments document is consideration of other issues whose
resolution is reflected in this final rule.
A. Definition of ``Emission-Related'' Information
Summary of Proposal: The proposed regulations required that ``all
information'' needed to make emission-related repairs be made available
to the automotive service industry. The scope of ``all information''
would include, but not be limited to, any emission-related service and
repair information that a manufacturer provides to its authorized
dealerships.
Based on the comments received in response to the NPRM and the June
30, 1992 workshop, EPA believed that clarification was warranted as to
the systems, components and parts for which emission-related service,
diagnostic and repair information must be provided by the manufacturers
to aftermarket service providers. For purposes of this rule, EPA
proposed that emission-related service, diagnostic and repair
information would include, but not be limited to, any system, component
or part of a vehicle that controls emissions and any system, components
and/or part associated with the powertrain system, including, but not
limited to, the fuel system and ignition system. Information would also
have to be provided for any system, component, or part that could have
a reasonably foreseeable impact on emissions, such as transmission
systems.
In addition, EPA proposed to monitor the results of I/M programs
for failures resulting from systems, components, or parts other than
those described here. If EPA determines that a substantial number of I/
M failures are occurring due to systems, components, or parts other
than those described here, the extent of emission-related service
information would be expanded in a subsequent rulemaking to include
such items.
Summary of Comments: Most manufacturers recommended that the extent
of service information that they must make available be limited to all
service information that is required to diagnose and repair emissionrelated
malfunctions that will cause an OBD code to be set and
illuminate the ``check engine'' light. They stated that each
manufacturer will determine which malfunctions will cause a significant
impact on emissions, and thus, which malfunctions will store an
emission-related fault code and illuminate the malfunction indicator
light (MIL).
Some manufacturers commented that the proposed language is
deficient in defining the information that must be included in the
provision for service information. They believe this could lead to
subjective interpretations, resulting in manufacturers providing
distinctly different levels of information. Saab asserted that EPA's
proposal to use the I/M program to later expand the definition of
emission-related systems and components unnecessarily burdens
manufacturers with an ever-changing, and ever-expanding, set of rules.
Generally, the aftermarket commenters endorsed the definitions of
emission-related information proposed by EPA. Some aftermarket
commenters responded that any attempt to distinguish between emissionsrelated
and non-emissions-related vehicle systems and devices is
nonproductive and accomplishes nothing more than to direct attention
away from the important issues. According to one commenter, a valid
argument can be made that virtually every component of today's vehicles
can affect the performance of the vehicle's emissions system. ASIA
suggested that it may be more efficient for EPA to require
manufacturers to release all vehicle-related service information.
Analysis of Comments: EPA disagrees with the position that
emission-related information is defined by and limited to information
required to diagnose and repair malfunctions that will result in
illumination of the MIL. Illumination of the MIL will not necessarily
be triggered by every malfunction of emission-related parts, components
and systems. To maintain air quality it is important that service and
repair information on all such parts, components and systems be
provided. In addition, the diagnostics requirements for OBD are limited
to the engine and drivetrain, because they have the most direct impact
on emissions. However, this does not alter the fact that malfunctions
of other parts and components could impact emissions. Further, MIL
illumination is only necessary when a single source of malfunction
causes emissions to increase above the MIL threshold. As the OBD
requirements and the MIL thresholds are generally designed to detect
severe malfunctions, more limited malfunctions, which may still have an
effect on emissions, may not trigger the MIL. Moreover, multiple
malfunctions, when combined, can cause exceedance of emission
thresholds even though each one individually may be insufficient to
cause an emission problem severe enough to illuminate the MIL. Also,
OBD only needs to flag that a problem exists and indicate the general
cause (e.g., misfire)--it does not identify the precise cause of the
problem which could be due to a myriad of factors, such
[[Page 40479]]
as lean fuel/air ratio, bad wiring or sparkplugs.
Moreover, EPA believes that the language of section 202(m)(5)
requiring manufacturers to provide ``all information needed to make use
of the emission control diagnostic system * * * and such other
information including instructions for making emission-related
diagnosis and repairs'' [emphasis added] makes it clear that other
information pertinent to making emission-related repairs, in addition
to information needed to make OBD-related repairs, must be provided to
aftermarket service providers. Had Congress wished to limit the
information availability requirement only to those repairs necessary to
make full use of the OBD system, it need not have included the second
phrase of the requirement, relating to other information for making
emission-related repairs, or could have limited the second phrase to
those repairs necessary to make repairs related to MIL illumination.
Instead the second phrase broadly refers to ``emission-related
diagnosis and repairs.'' Therefore, EPA believes it is reasonable to
require manufacturers to provide information required for any emissionrelated
repairs to be made available.
EPA has adopted a description of emission-related information that
is consistent with previous definitions of emission-related
maintenance, as set forth in EPA's ``allowable maintenance''
regulations. See 40 CFR Sec. 86.088-2. Those regulations specify
maintenance which may be performed on certification vehicles and
establish an interpretation of ``properly maintained vehicle'' for use
in the recall program. EPA made clear in those regulations that any
maintenance that is likely to affect emissions would be considered
emission-related:
Emission-related maintenance means that maintenance which does
substantially affect emissions or which is likely to affect the
emissions deterioration of the vehicle or engine during normal inuse
operation, even if the maintenance is performed at some time
other than that which is recommended. 40 CFR Sec. 86.088-2
Contrary to the suggestion of some manufacturers, EPA is not
providing a specific or suggested list of parts, components or systems
for which information must be provided. Such lists may be interpreted
by some manufacturers as the maximum emission-related information that
must be made available. In addition, continually evolving vehicle
technology will result in ongoing changes as to what constitutes
emission-related information. Therefore, it would not be reasonable to
select a point in time and say that emission-related information is
defined by what exists at that point.
Contrary to comments from some aftermarket commenters, the Agency
only has the authority to require manufacturers to provide emissionrelated
information. As previously indicated, this includes anything
that is likely to affect emissions. If the Agency initially determines
that a part, component or systems impacts emissions, it will notify the
manufacturers who will be provided an opportunity to demonstrate
otherwise if it disagrees.
EPA Decision: Emission-related information includes, but is not
limited to, information regarding any system, component or part of a
vehicle that controls emissions and any system, components and/or parts
associated with the powertrain system, including, but not limited to,
the fuel system and ignition system. Information must also be provided
for any system, component, or part that is likely to impact emissions,
such as transmission systems. In addition, EPA will monitor the results
of I/M programs for failures resulting from systems, components or
parts other than those described here. If EPA determines that a
substantial number of I/M failures are occurring due to systems,
components or parts other than those described here, the extent of
emission-related service information will be expanded to include such
items. EPA will notify any affected manufacturer(s) of its concerns and
will allow such manufacturers to reply to these concerns prior to
making any such determinations. Affected manufacturers will be notified
of any such EPA determinations.
B. Information Used To Manufacture Aftermarket Parts
Summary of Proposal: EPA did not propose that vehicle manufacturers
provide aftermarket parts manufacturers with information to design and
manufacture parts.
Summary of Comments: A group of aftermarket associations commented
on the importance of information used to design and manufacture parts.
According to these commenters, competition in the service industry
would be threatened if parts manufacturers are not provided sufficient
information to produce quality aftermarket parts which work with
emissions control systems, OBD systems, and computers. They stated that
independent service and repair facilities depend on the availability of
affordably priced quality aftermarket parts to compete with dealers for
service and repair. Without such competition, the associations believe
that the only source of parts becomes the manufacturers which then have
the ability to increase prices and limit availability. According to the
commenters, in Japan, where an independently produced supply of
replacement parts does not exist, repair prices are two and one half
times more than what the U.S. car owner pays. The commenters believe
that a failure to assure that parts producers can design and
manufacture aftermarket parts will import the Japanese system to
America and have a staggering effect on the ability of American
motorists to properly maintain their vehicles.
These commenters also argued that parts producers need access to
information used to design and manufacture parts, including functional
control strategies and component calibrations, to produce emissionsrelated
components that work within sophisticated emissions and
diagnostic systems. The commenters indicated that engine calibration
information also is required both to produce certain critical
aftermarket parts and to test that the replacement parts will not cause
failure of the emissions system or improperly trigger the MIL.
Analysis of Comments: Information used to manufacture and design
parts does not constitute information needed to make emission-related
diagnosis and repairs as defined in section 202(m)(5). Therefore, such
information is not addressed in this rulemaking. The purpose of section
202(m)(5) is to ensure that independent technicians have access to
information needed to service and repair vehicles, thereby ensuring
consumers with freedom of choice in where to take their vehicles for
repairs. Manufacturers are only required to provide information in
order for persons to service and repair vehicles. They are not required
to provide recalibration information that is not needed to make
emissions-related diagnosis and repairs, even if such information may
be useful for the manufacture of aftermarket parts. Nothing in the
language of the statute itself or in the legislative history indicates
that Congress intended section 202(m)(5) to assure access and
information for the manufacture of aftermarket parts. On the contrary,
the legislative history speaks only of the need to ensure equal access
for vehicle repair facilities.
It is important to note that Congress limited the manufacturers'
information requirement such that trade secrets protected by section
208(c) need not be made available. It is clear from the
[[Page 40480]]
comments that much of the information requested for the manufacture of
aftermarket parts is in fact information of a more proprietary nature
than the information necessary to make diagnoses and repairs. Where
information is not needed by repair personnel to repair vehicles and
has not been disclosed to dealers, section 202(m)(5) does not require
its disclosure.
Aftermarket parts manufacturers have been making such parts for
many years, even as cars have become more and more complicated. Though
the introduction of new emission requirements, including OBD, will
continue the trend of making cars more complex, parts manufacturers'
speculation regarding the effects of such requirements on their ability
to make aftermarket parts is contradicted by other statements that
parts manufacturers will continue to make parts as they have in the
past. In any case, parts manufacturers have not shown that Congress
intended section 202(m)(5) to require disclosure of information
required to make aftermarket parts.
EPA Decision: Information for making emission-related diagnosis and
repairs does not include information used to design and manufacture
parts.
C. Guidelines
Summary of Proposal: In the NPRM, EPA proposed that ``all
information needed to make emission-related repairs'' be made available
to the automotive service industry. EPA did not provide guidelines or
specify the types of information that this would encompass. In the June
1992 workshop notice, EPA indicated that interested parties would have
an opportunity to present ideas regarding specific types of, or
guidelines for determining the information that should be encompassed
by the phrase ``all information needed to make emission-related
repairs.''
Summary of Comments: Several commenters responded that EPA should
define or provide guidelines as to the information that must be
provided. They asserted that failure to do so could result in
manufacturers providing different levels of information due to
different interpretations of the phrase ``all information.''
Ford Motor Corporation (Ford) expressed concern that EPA may
require more information than is necessary for utilizing the emissions
diagnostic system and to perform effective diagnostics and repairs.
Chrysler Motor Corporation (Chrysler) commented that it has and
will continue to provide to the aftermarket the following type of
service information related to the repair of emission-related failures:
(1) diagnostic information relating to I/M exhaust and evaporative test
failures; (2) service repair information for emissions components; (3)
wiring diagrams; (4) specifications; and, (5) TSBs. Chrysler believes
this information meets the requirements of the CAA.
One manufacturer stated that if manufacturers demonstrate that the
same information provided to dealers is made available to the
aftermarket (excluding recalibration information), they have satisfied
the intent of the law.
Aftermarket commenters argued that EPA's regulations must not
permit a closed-ended or specifically limited definition of information
that would be available to the entire industry. The aftermarket
industry asserted it does not have adequate technical information on
future vehicle designs and systems to allow for limitations or
restrictions through rules or definitions on the information that will
be necessary to effectuate adequate repairs. The Automotive Parts and
Accessories Association (APAA) commented that rapidly changing vehicle
technology would force EPA to revisit the guidelines on a semi-annual
or yearly basis to determine if the proper information is being
provided.
APAA indicated it might support guidelines that determine the types
of information which must be provided to independent technicians. APAA
assumed these guidelines would cover items, such as functional control
strategies and wave diagrams, which are necessary elements if
manufacturers are to provide all information needed for repair of
emissions systems. APAA commented that its major concern is that any
regulations regarding guidelines should direct that they be as
comprehensive as possible and must explicitly state that such
guidelines establish a minimum standard for information.
Analysis of Comments: EPA believes that the concerns of
manufacturers are unwarranted under the requirements of the final rule.
The requirement to submit a certification plan has been deleted.
Therefore, concerns regarding delays in the certification process are
no longer pertinent.
Ford stated that without guidelines, EPA could require proprietary
and confidential information be made available to the public. EPA does
not believe this is a problem. Subsection 202(m)(5) specifies that any
information provided to authorized dealerships or others engaged in the
service, repair or diagnosis of vehicles is not proprietary. EPA is not
requiring that undisclosed proprietary emission-related information be
made available as part of this rule.
Regarding Chrysler's comment, other types of emission related
information, such as data stream and bi-directional control, are not on
Chrysler's list and are required as part of this rule. Contrary to
Chrysler's assertion, EPA believes, as discussed elsewhere, it has the
authority to require the dissemination of such information.
EPA agrees with aftermarket comments that the regulations must be
structured so as to carry out Congress' intent that all information
needed to make emission-related diagnosis and repairs be provided,
excluding trade secrets, to ensure that there are efficient and
effective repairs of emission-related problems. However, EPA is not
requiring at this time that manufacturers provide information to
independent technicians that is not also supplied to authorized
dealers, or other persons engaged in the diagnosis, repair, or
servicing of motor vehicles or motor vehicle engines. Depending on the
manufacturer, such information might include functional control
strategies and wave diagrams, as discussed in section H below.
EPA is concerned that the use of specific guidelines may be
incorrectly interpreted as a limitation on the emission-related
information that is required to be provided. The Agency is also
concerned that such guidelines would require continual updating to
ensure they reflect rapidly changing vehicle technology. EPA believes
this would be a time-consuming and unnecessary process. At this time,
EPA generally agrees with the commenter who stated that if
manufacturers provide the same emission-related information to dealers
and the aftermarket they will meet the requirements of this rule. The
evidence presented did not indicate that any manufacturers withhold
necessary information (excluding more complex and high level
information, like functional control strategies) regarding emisionrelated
diagnosis and repair from their own dealers. If, through review
of this program, it becomes apparent to EPA or others that a particular
manufacturer is not providing nonproprietary information necessary to
make emission-related diagnosis and repair to the service community
(including its own dealers), EPA may take action against such
manufacturer through these regulations.
EPA Decision: Manufacturers are required to make available to the
[[Page 40481]]
aftermarket ``any and all information'' needed to make use of the OBD
system and to make emission-related repairs, excluding trade secrets.
The scope of information that must be provided includes any direct and
indirect service and repair information that a manufacturer provides to
its authorized dealerships or other persons engaged in the repair,
diagnosing, or servicing of motor vehicles or motor vehicle engines.
Examples of direct information are service manuals; TSBs; training
material or information; diagnostic information; wiring diagrams; and
any written memoranda or guidance provided to dealers. Examples of
indirect information are emission-related reprogramming events; data
stream information; and bi-directional control. (Indirect information
is discussed below.)
At this time, manufacturers are not required to supply any
emission-related information to the aftermarket that they do not make
available to their authorized dealerships or other third parties,
subject to the requirements regarding specific types of information,
like data stream information, that must be provided under these
regulations. For example, if a manufacturer does not supply functional
control strategies to its dealers, directly or indirectly, it is not
required to supply them to the aftermarket service industry.
D. Cost of Service Information
Summary of Proposal: The proposed rule required that emissionrelated
information be made available at a reasonable price (i.e., what
would be expected if the suppliers of information were acting as
competitors). In determining whether the price of information is
reasonable, EPA indicated it would consider all relevant factors,
including, but not limited to, the cost to a manufacturer of preparing
and/or providing the information, the type of information, the format
in which it is provided, and the price charged by other manufacturers
for similar information.
The proposed regulations further required that when manufacturers
provide the same information to independent technicians and
dealerships, the price to independent technicians for such information
would not exceed the lowest price charged to any of a manufacturer's
authorized dealerships.
Summary of Comments: Comments from manufacturers focused primarily
on the authority of EPA to regulate the cost of emission-related
information, determination of the ``reasonable'' cost of service
information, and the proposed requirement that the cost of service
information sold by manufacturers to the aftermarket ``shall not exceed
the lowest price at which it is provided to any authorized
dealerships.''
Analysis of Comments: Section 202(m)(5) of the CAA requires that
vehicle manufacturers make emission-related information available.
Available is defined as ``that which can be got, had or reached or that
one can avail oneself of.''\9\ A prerequisite to getting an item is
having the ability to afford it. The Agency is concerned that if
emission-related service information is priced in a manner that
precludes its purchase and subsequent use then it is unavailable as
that term is commonly defined. Further, the cost of service information
was of concern to Congress as evidenced by the statement of then
Senator Gore, the Senator that introduced the ``information
availability'' provision of the CAAA.\10\
\9\ Webster's New World Dictionary, 3rd ed., p 94, 1988.
\10\ The Senator stated that ``when we require [manufacturers]
to promptly provide information needed, we recognize that we do not
want to require somebody to provide a lot of expensive manuals
absolutely for free, but we do not want the kind of charges that
make this a profit center. We want them to provide the information
which will allow competition in the aftermarket and allow small
business operators to get in the repair business. Otherwise, you
force vehicle owners to go only to the major automobile
manufacturers' places of business.'' 36 Cong. Rec. 3272 (1990).
Thus, cost is an integral part of availability and, therefore,
within the purview of the Agency to consider in determining whether
manufacturers make information available as required to the
aftermarket.
The Agency believes that establishing factors to serve as reference
points to evaluate whether the cost of information is reasonable, will
serve as guidance for manufacturers, and help reduce the possibility
that inappropriate pricing would occur in an effort to prevent the
purchase of information and, thereby ensure that information is
available at a reasonable cost. Manufacturers commented on several
factors they believe should also serve as reference points for
evaluating the cost of information. EPA agrees with some of the factors
suggested and has incorporated them into the regulations. For a
discussion of each factor, see the Response to Comments document.
EPA also believes that the burden of proof to demonstrate that the
price of manufacturer service and repair information is unreasonable
should be on the purchaser of that information.
As to the ``lowest cost'' requirement, EPA agrees with some of the
commenters that such a provision could have unanticipated effects on
direct aftermarket sales and on dealerships that distribute
information. Therefore, this requirement has been deleted.
EPA Decision: On the basis of the comments and further EPA
analysis, emission-related service information is to be made available
at a reasonable price. This means the fair market price taking into
consideration factors, such as the cost to the manufacturer of
preparing and/or providing the information, the type of information,
the format in which it is provided, the price charged by other
manufacturers for similar information, the differences that exist among
manufacturers (e.g., the size of the manufacturer), the quantity of
material contained in a publication, the detail of the information, the
cost of the information prior to publication of this final rule, volume
discounts, and inflation. EPA is not requiring that manufacturers sell
information to aftermarket technicians at the lowest price charged to
their dealerships.
E. Distribution of Service Information
Summary of Proposal: EPA proposed that emission-related service and
repair information, whether distributed by the manufacturer or an
intermediary, be reasonably accessible to all persons who service and
repair motor vehicles. To qualify as reasonably accessible, the
information must be available to independent technicians upon request
without substantial delay. Further, manufacturers would be required to
utilize reasonable means to make independent technicians aware that the
information is available. Also, manufacturers would need to provide
intermediaries with emission-related information in a timely manner in
order that their products or services be available to independent
technicians when needed. In all cases, manufacturers would retain full
responsibility for compliance with section 202(m)(5). Failure to an
intermediary to properly provide information does not relieve the
manufacturer from responsibility to provide the information.
EPA subsequently suggested the use of the NTIS as a clearinghouse
for service information. Manufacturers would be required to provide
initial service, repair, diagnostic and parts information to the NTIS
within thirty days of providing it to their franchised dealerships or
other persons engaged in the repair, diagnosing, or servicing of motor
vehicles or motor vehicle engines. Service, repair, diagnostic and
parts information, such as TSBs and troubleshooting manuals, issued to
dealerships during any subsequent
[[Page 40482]]
thirty day period would be sent to the NTIS at the end of each such
thirty day period.
EPA suggested that each manufacturer provide the required
information to the NTIS free of charge pursuant to a copyright release
or other agreement. The NTIS would reproduce information in the form in
which it was received and distribute it upon request. Manufacturers
would receive royalties from the distribution of the information by the
NTIS based on prearranged agreements. To determine what information the
NTIS has available, purchasers could either access the NTIS' on-line
bulletin board or request a printed list.
By using the NTIS as a clearinghouse, several requirements which
were proposed to be the responsibility of the manufacturers would be
deleted or amended. First, manufacturers would not be responsible for
information distributed by intermediaries or other parties. Second,
manufacturers would not be required to continually inform the
aftermarket about the availability of their service information through
advertisements or other efforts. Third, by using the NTIS as a
clearinghouse, manufacturers would not be required to submit a detailed
certification plan. Fourth, the requirement that manufacturers provide
information in a timely manner would be satisfied by providing
information to the NTIS on a designated schedule. Last, the requirement
that information be provided at a reasonable cost could, at least in
part, be addressed by the NTIS' sale of information. Whether the cost
requirement would be satisfied would depend on whether and to what
extent royalties are paid to manufacturers and the ability of the NTIS
to provide its services at an affordable price.
Summary of Comments: EPA received numerous comments, particularly
on distribution of information by intermediaries and the use of NTIS as
a clearinghouse for information. As to the use of intermediaries to
distribute information, a few manufacturers and MVMA commented that it
is illogical, unreasonable and unfair to hold manufacturers liable for
the failure of intermediaries to disseminate information. They asserted
that past experience has shown that independent parties contracted to
prepare written service information for manufacturers do not always
comply with deadlines established by the manufacturer. They stated that
EPA should not hold manufacturers liable for the actions of third
parties over which they have no control. One commenter indicated that
even though a manufacturer contracts with an intermediary to distribute
information and the method of such distribution is satisfactory to EPA,
a third party which has no contractual agreement with the manufacturer
could repackage and resell the information in a manner that does not
meet EPA requirements. Manufacturers suggested that the regulations be
amended to hold a manufacturer responsible for an intermediary only
when information is provided solely through an intermediary.
General Motors (GM) argued that EPA does not have the authority to
require manufacturers to provide information to intermediaries.
Chrysler objected to any regulation that would require it to deal
directly with entities outside its normal chain of distribution of
goods and services. The National Automobile Dealer's Association (NADA)
commented that different manufacturers have a substantial investment in
a variety of different distribution mechanisms, all of which are well
understood by the entire vehicle maintenance industry. So long as
necessary information is provided through one or more of these
mechanisms, NADA believes a manufacturer's obligation should be
satisfied.
Several aftermarket associations commented that manufacturers
should be responsible for the distribution of emission-related repair
information. Alldata Corporation (Alldata), however, commented that
holding manufacturers responsible for the content and accuracy of
information would add substantial delays to the distribution process
and reduce the accuracy and usefulness of information.
Responses to the use of a clearinghouse to distribute emissionrelated
service information were mixed. However, representatives of
manufacturers and aftermarket associations raised several substantial
issues regarding the use of a clearinghouse, and EPA's particular plan
for using NTIS as a clearinghouse. In addition, information
intermediaries and hotline services generally opposed the use of NTIS
as a clearinghouse.
Analysis of Comments: EPA recognizes that the effectiveness of
information distribution mechanisms may be affected by various factors,
including manufacturer size, the amount and format of a manufacturer's
service information, established distribution mechanisms, and the
demand for information. Based on the differences that may occur as a
result of these factors, EPA agrees with the comments that
manufacturers should be afforded flexibility in determining the most
appropriate method of distributing information.
Therefore, EPA is allowing each manufacturer to fulfill its
regulatory responsibility to distribute emission-related service and
repair information through the distribution mechanism it determines to
be the most efficient and cost-effective. Further, there is no
requirement that manufacturers use the same distribution mechanism for
dealers and the aftermarket. However, each manufacturer is responsible
for up-loading a complete index of required information on NTIS'
FedWorld, as discussed above in section III.C. Since EPA believes that
FedWorld provides an adequate means of monitoring the information being
made available, manufacturers are not required to submit a plan for
distributing information as part of their certification requirements.
Regarding use of intermediaries for distribution, EPA's position is
that manufacturers are responsible for making sure that information is
provided to the aftermarket as required by the regulations. If a
manufacturer chooses to allow an intermediary to be its contractor, the
manufacturer must ensure that the contractor meets the manufacturer's
obligations. Transferring obligations to a third party does not remove
a manufacturer's own legal requirements, though manufacturers may
require intermediaries to be responsible for any damages a manufacturer
incurs as a result of the intermediary's error. EPA agrees with
manufacturers that where a manufacturer provides its own information
directly to independent technicians, or contracts with a specific
intermediary to distribute the manufacturer's information, the
manufacturer is not responsible for the availability or accuracy of
information provided by any other intermediaries to independent
technicians.
EPA is not issuing any regulations specifically requiring
manufacturers to provide intermediaries with emission-related
information. However, EPA encourages manufacturers to continue
providing such intermediaries with information as they have in the
past. EPA agrees that manufacturers should not be held responsible for
information published by independent intermediaries over which they
have no control. However, manufacturers are responsible for the
correctness of their own materials, as identified in FedWorld.
Manufacturers could, in the future, meet the distribution
requirements by providing the required information in its entirety to a
clearinghouse. Since no
[[Page 40483]]
such clearinghouse currently exists, this is not a viable option for
manufacturers at this time. Whether a clearinghouse is economically and
practically feasible in the future will be up to the industry to
determine. Although EPA supports the concept of a clearinghouse, EPA
has no plans to sponsor a clearinghouse or to be involved in resolving
issues necessary to establish a clearinghouse.
For a more detailed review of the comments and EPA's response to
these comments, please refer to the Response to Comments document.
EPA Decision: See section III.C. above.
F. Timeliness
Summary of Proposal: In the NPRM, EPA stated that to be effective,
information must be provided in a timely manner. The proposed
regulations established specific times within which manufacturers would
be required to make available enhanced <SUP>11 and generic <SUP>12
service information and training information. The proposed regulations
required enhanced service information to be made available to
independent technicians within one month immediately following model
introduction. Generic service information would have to be made
available within 8 months immediately following model introduction or
no later than the release of information to a manufacturer's franchised
dealerships. The proposed regulations also required that during the
period between model introduction and the time the required information
becomes accessible to independent technicians, each manufacturer,
through an expeditious means available to its franchised dealers (e.g.,
hotline, regional service centers), make available to all independent
technicians needed emission-related repair and service information.
\11\ Enhanced service and repair information is specific for an
original equipment manufacturer's (OEM) brand of tools and
equipment.
\12\ Generic service and repair information is not specific for
an OEM's brand of tools and equipment.
Summary of Comments: Some manufacturers commented that it is not
appropriate for EPA to prescribe a time schedule for the availability
of information. They stated that their time schedule for publishing
information has never met EPA schedules and they could not estimate how
many years would be needed to meet the proposed requirements.
One manufacturer commented that the timing requirements are
unnecessarily severe and unneeded. A few manufacturers suggested that
instead of specified times, EPA should specify ``without substantial
delay.''
Some manufacturers asserted that information should be available
when cars are offered for sale (i.e., made available to dealers), not
before. These commenters stated that OBD systems will be built to a
standardized format and, as a result, it is not necessary to know the
specifics of the information beyond that format, unless trying to
repair a specific car. They believe the aftermarket doesn't need it
earlier to integrate it into their publications, since the majority of
customers return exclusively to manufacturer dealers for warranty work.
According to these manufacturers, providing the aftermarket with the
required information within 3-6 months after vehicle introduction
should be sufficient.
Several manufacturers commented that independent technicians
generally do not require warranty information since owners will not be
reimbursed under a manufacturer's emissions warranties for any nonemergency
repair.
The Automotive Warehouse Distributor's Association (AWDA) and APAA
commented that the proposed regulations generally establish appropriate
times. The Automotive Service Association (ASA) believes that all
information should be available at the same time it is provided to
franchised dealers. ASA also stated that responses to specific requests
should be provided within 24 hours, as a customer's vehicle can't be
fixed until the information is retrieved. ASIA stated that this ``same
time'' requirement would provide intermediaries with the appropriate
leadtime necessary to review, digest, condense, alter, and publish this
information for use by the general public and the aftermarket in a
timely fashion.
Alldata argued that aftermarket information providers should
receive repair information thirty days prior to the dealerships or, as
an alternative, at the same time as dealerships.
Analysis of Comments: Manufacturers have argued that since their
vehicles seldom have emission-related service performed at an
independent service facility during the first two years of customer use
(during the 24,000 mile warranty period), the aftermarket service
industry does not need service information during that time period.
Warranty coverage makes this most economic for customers. However,
aftermarket service providers have, at least, a limited need for
service information even for new vehicles, since dealer service is not
always available when service is needed by the customer, e.g., when a
vehicle needs repairs during the evening or weekends. Further, the Act
directs that aftermarket service providers are to receive emissionrelated
service information without regard to whether aftermarket
technicians are the persons most likely to repair a vehicle during a
certain portion of the vehicle's life. There is no reason to restrict a
consumer from obtaining aftermarket service even during a warranty
period if the consumer determines it is in her/his best interest to do
so. However, the limited need of aftermarket service providers for
service information on new model vehicles when the vehicles are first
introduced should be reflected in the burden placed on manufacturers,
for example, in determining whether manufacturers must finalize service
information earlier than they would otherwise do so. Manufacturer
comments support delaying the availability of emission-related service
information to the aftermarket, most often citing the burden on
manufacturers as one of the major reasons. Manufacturers make the case
that the proposal may cause them to provide information earlier than is
their current practice. However, their comments provide only limited
information on any adverse impact of supplying the aftermarket with
such information in the time frames proposed.
Some suggested that, prior to some date, the independent service
provider can obtain any necessary service information through a
dealership. These suggestions would allow dealerships to determine
whether the independent service provider is provided the required
information in a reasonably timely manner. Placing such an intermediary
in control of the dissemination of information is not consistent with
the Act which designates manufacturers as being responsible for the
availability of emission-related service information.
EPA understands that many of the independent service providers have
traditionally relied on aftermarket consolidations of service
information. One book or set of books will then provide coverage for a
number of manufacturer vehicles. Purchasing these consolidated service
information books is less expensive and perhaps more convenient than
purchasing the more extensive manufacturer service books. However, with
consolidation comes some loss in detail and usefulness. Availability of
service information to these republishers is, therefore, also an issue.
Given that the majority of aftermarket emission-related repairs of
a vehicle
[[Page 40484]]
will not begin until after the two year warranty has expired, there
does not seem to be an urgent need of aftermarket republishers to have
access to the manufacturer service information abnormally early.
Consequently, the aftermarket republishers should be able to continue
relying upon their existing mechanisms for use of manufacturer service
information or, within legal constraints of copywrite law, etc., make
use of the manufacturer service information when it becomes publicly
available.
It is reasonable to provide some leadtime after adoption of these
regulations to allow each manufacturer the ability to assemble the
necessary information and put information dissemination procedures in
place. However, since the information to be made available for MYs
introduced prior to the finalization of these regulations (beginning
with the 1994 MY) has been in the hands of the manufacturer's
dealerships for some time, the information is clearly readily available
to the manufacturer and, to a certain extent, has already entered the
distribution network. Consequently, with regard to generic information,
the time necessary to set up a distribution system for models already
introduced is not driven by the availability of the information, only
by the establishment of the distribution system itself. As described
under the distribution section (on what information a manufacturer
needs to provide for prior MYs), aside from setting up a distribution
system (including the use of FedWorld), a manufacturer need only
duplicate the information it has already supplied its dealerships and,
in many cases, already made available to the aftermarket industry
through distribution channels in place prior to these regulations.
Thus, a manufacturer should require no more than 120 days after these
rules are promulgated to have in place a distribution system making
1994 and later service information available to the independent service
provider.
For vehicle models introduced beginning on or after 120 days
following the promulgation of these regulations, manufacturers will
have established a distribution system for getting the information into
the hands of the aftermarket service provider by the time these
vehicles are introduced. Therefore, no additional time is necessary for
a manufacturer to make available to the independent service provider
the generic information it is otherwise providing to its dealerships.
(Timeliness for enhanced indirect information is discussed below in
section H).
The subject of timeliness also reflects the need for a manufacturer
to respond in a timely fashion to requests for emission-related service
information. As discussed above, manufacturers must ensure that once an
order is received by its designated distributor, the distributor must
send the information within one business day after receiving it. This
time frame for filling orders is reasonable. An exception to the one
business day shipping requirement is available in those circumstances
where orders exceed supply (based on projected demand) and, as a
result, distributors need to reproduce a document. Manufacturers will
not be required to respond to special, unique requests for service
information; for example, manufacturers will not need to search through
their shop manual for a specific section or page and fax just that page
or section to a customer. Rather, they will be responsible for
distributing information in a predetermined form and format, e.g., the
same service bulletin sent to their dealership would also be sent to
the independent service technician. Since the form and format of the
information can be determined ahead of time, the burden on a
manufacturer is to have a sufficient quantity of information available
to meet demand and then have a mechanism in place to receive and
process requests for information. Neither of these tasks require
special skills and are akin to phone order merchandise distribution
common in the retail sales industry. These other retail sales outlets
commonly fill orders within 24 hours. A similarly timely response to
requests for emission-related service information should be possible.
EPA Decision: Beginning four months after promulgation of these
regulations, manufacturers are to have in place a service information
distribution mechanism which will allow service information orders to
be processed and mailed out within one business day of receipt of an
order. As described above, manufacturers are required to provide more
rapid service to their customers, i.e., priority mailing. At that time,
manufacturers will be responsible for providing all required direct
service information for 1994 and later MY vehicles which have been
offered for sale. For vehicle models introduced more than four months
after promulgation of these regulations, manufacturers will be
responsible for providing direct service information to independent
service technicians, facilities and others, at the same time it is made
available to dealerships.
G. Media/Format
Summary of Proposal: In the NPRM, EPA established different format
requirements for different time periods. These format requirements were
based on SAE documents, some of which were not finalized at the time
the NPRM was published, e.g., ``Recommended Organization of Service
Information'' (J2008).
Summary of Comments: Extensive comments were received on the
proposed formats. Some comments objected to any EPA requirements for
formats, claiming that EPA lacked authority to require a specific
format. Several commenters stated that the regulations would force them
to completely rewrite and restructure their service literature, which
would be a substantial and unnecessary burden. Some of these comments
objected to any reference of SAE's draft recommended practices J2008
and ``Remote Diagnostic/Service Communications'' (J2187). NADA
indicated that if SAE should finalize and adopt J2008 and/or J2187 at
some later date, it would then be appropriate for EPA to reconsider
their incorporation into the OBD regulation. The aftermarket generally
supported use of standardized formats, saying that such standardization
would help independent technicians locate and use diagnostic
information.
Analysis of Comments: EPA believes that a standardized format
should make accessing the volumes of available service information
easier and enhance the ability of independent technicians to utilize
information. EPA believes the benefits of an industry-accepted format
will outweigh any initial costs in redesigning service literature. To
ensure this goal is achieved, the Agency would like to provide adequate
opportunity for the industry to develop a format which it believes most
appropriately fulfills the needs of all interested parties. The Agency
hopes that the industry will adopt SAE J2008 by mid-1995. However, if
the industry is unable to agree on a standardized format, the Agency
may develop a format for the industry.
This rule contains no requirements regarding the media or format of
emission-related information, including ``Electrical/Electronic Systems
Diagnostic Terms, Definitions, Abbreviations, and Acronyms'' (J1930)
and J2187. EPA believes that further discussions in the industry to
develop appropriate formats will be useful prior to final regulations
requiring any specific media or format. The Agency does not believe it
is necessary at this time to address the comments received
[[Page 40485]]
regarding these issues, but will address them if and when it adopts
such requirements.
EPA Decision: Due to various factors, SAE did not adopt J2008 in
time to be incorporated into this final action. EPA had anticipated
that SAE would adopt J2008 by mid-1994. If SAE finally adopts J2008 in
a form that meets the needs of EPA, EPA would likely propose to
incorporate J2008 into the service information regulations after
further notice and comment. If J2008 is not finally adopted by SAE, or
if the final version of J2008 does not meet the needs of EPA, EPA may
propose to adopt its own format that manufacturers would be required to
follow. EPA believes that adoption of an EPA-designed format may be
necessary to prevent delays in the conversion of service information to
an electronic format.
This rule contains no requirements regarding the media or format of
emission-related information, including J1930 and J2187. EPA believes
media and format issues should be addressed at the same time J2008 (or
an EPA-adopted format) is required. This will allow an opportunity for
changes, as may be necessary, to be made in any of these documents, as
J2008 is being finalized. EPA may address the media and format
requirements of emission-related service information in a future
proposed rulemaking.
H. Enhanced Diagnostic Information
EPA Proposal: To eliminate confusion that existed in the industry
regarding the definitions of certain key terms (data stream
information, functional control strategies, bi-directional control, and
indirect information) and whether such information must be provided
under section 202(m)(5), EPA held a workshop in July 1993, to provide
an opportunity for comment on proposed descriptions and/or definitions
for these terms to ensure that there is a uniform understanding
throughout the automotive industry as to the information that
manufacturers will be required to make available. The definitions
proposed by EPA were as follows:
Data stream information are messages transmitted between a network
of modules and/or intelligent sensors (i.e., a sensor that contains and
is controlled by its own module) connected in parallel with either one
or two communication wires. Messages on the communication wires can be
broadcast by any module or intelligent sensor. Such information
generally consists of messages and parameters originated within the
vehicle by a module or intelligent sensors. The information is
broadcast over the communication wires for use by other modules (e.g.,
chassis, transmission, etc.) to conduct normal vehicle operation or for
use by diagnostic tools. Data stream information does not include
engine calibration-related information.
Functional control strategies are descriptions of how and when
various engine systems operate. Typically, they are written
explanations or flow diagrams that describe the interaction of the
module and the various sensors and actuators as proscribed by the
engine calibration. An example of a functional control strategy would
be that for a particular fuel system. For example, the fuel system may
not go into closed-loop operation until: (1) The engine coolant
temperature has reached 180 deg.F; (2) the module observes an active
oxygen sensor signal; and (3) 30 seconds has elapsed after reaching
that temperature.
Bi-directional control is the capability of a diagnostic tool to
send messages on the data bus that temporarily overrides the module's
control over a sensor or actuator and gives control to the diagnostic
tool operator. An example of bi-directional control is the ability to
increase or decrease the idle speed by using the diagnostic tool to
vary the idle by-pass motor. This allows a technician to quickly verify
that the idle by-pass motor responds to commands from the module. Bidirectional
controls do not create permanent changes to engine or
component calibrations.
Indirect information is any information that is not specifically
contained in the service literature, but is contained in items such as
parts or other equipment provided to franchised dealers (or others).
In addition, the NPRM discussed providing service technicians with
the information needed to determine that a component or system is
correctly operating. EPA proposed that manufacturers include
information on the normal operating conditions for properly functioning
emission-related components or systems. EPA requested comment on the
need to adopt this requirement as part of these rules, the best way to
accomplish this, and any difficulties (for example, significant burden
to the manufacturer) that could arise.
Summary of Comments: Manufacturers commented that the release of
information needed to perform bi-directional control is restricted
since product damage could result if control is improperly applied. GM
asserted that if required to release this information, it would need to
redesign systems to include safeguards to prevent damage from improper
use of control messages, or diagnose components using some other
method.
Regarding the definition of data stream information, several
manufacturers suggested that EPA's definition be modified, such that
data stream information (1) include only emission-related information,
(2) include only emission-related diagnostic information rather than
information to conduct diagnosis and repair of normal vehicle
operation, and (3) not include any recalibration or reprogramming
information. GM commented that if data stream information is defined to
include reprogramming software, it will be easy for aftermarket
performance companies to build equipment to install unauthorized
calibrations.
As to functional control strategies, Ford commented that it
considers them to be proprietary information, because they are part of
the engine calibration. Other manufacturers stated that such strategies
are proprietary and they are not provided to dealers. GM asserted that
any attempt by EPA to require manufacturers to divulge control
strategies would exceed EPA's authority under section 202(m)(5) of the
Act. The American Automobile Manufacturer's Association (AAMA) stated
that numerous manufacturers already provide functional control
strategies to the extent necessary for allowing effective repair of
vehicles without divulging proprietary information. AAMA and Ford
commented that since there are so many different engine configurations
and vehicle models, it would be confusing for independent technicians
to try and understand the multitude of control strategies and that this
could lead to incorrect diagnosis and repair.
Regarding the proposed definition of indirect information, Ford
recommended that it be modified to include only indirect information
necessary to make emission-related diagnosis and repair. Other
manufacturers commented that EPA's definition of indirect information
should be modified to delete the phrase ``contained in items such as
parts or other equipment'' and to read as follows: ``Indirect
information is any information that is not specifically contained in
the service literature, but is provided to franchised dealers (or
others) as a requirement for emission-related diagnosis and repair. It
shall not include calibration, recalibration or reprogramming related
information which is neither visible to the technician nor consciously
used in diagnosis and repair of vehicles.''
[[Page 40486]]
Saab commented that EPA's definition of indirect information is too
broad to protect manufacturers and franchised dealers from unfair
competition by aftermarket tool and equipment manufacturers and
independent service providers, respectively. Saab does not agree that
parts and equipment supplied to dealers contain supplementary
information which is necessary to repair the emission control systems
of a vehicle.
The aftermarket commenters asserted that functional control
strategies, waveforms and bi-directional control are critical in the
repair of emission-related problems. The commenters argued that many
times there is no cause and effect relationship between a symptom and a
failed part. According to the commenters, technicians rely on this type
of information or the tools that utilize such information as the best
method of pinpointing parts that have either failed or require
adjustment. Independent technicians commented that having tools that
perform bi-directional control would reduce diagnostic and repair
times, as well as repair costs. The commenters asserted that unlike
dealers with enhanced tools, independent technicians with generic tools
only receive malfunction codes which are insufficient to diagnose the
fault.
Analysis of Comments: Regarding the definition of data stream
information, EPA agrees that for purposes of this rule, data stream
information should include only emission-related information, since
this rule is not intended to cover all vehicle operations. However,
EPA's definition of emission-related (as discussed above) is broader
than that requested by the manufacturers.
EPA also agrees that data stream information does not include
recalibration and reprogramming information. However, as discussed
below, recalibration and reprogramming information is subject to
certain disclosure requirements. Manufacturers are required to provide
reprogramming capabilities, but they are not required to make directly
available actual calibration information, such as algorithms or values.
Data steam information will obviously need to be provided indirectly to
the aftermarket (as it is provided to dealers) in order to provide
reprogramming capabilities, among other reasons.
If data stream information is made available to dealers, whether
directly or indirectly, and is emission-related, then it must be made
available to the aftermarket service industry, regardless of whether a
manufacturer believes it is of any value to a technician. Data stream
information will probably be utilized by the aftermarket diagnostic
tool industry to build generic diagnostic tools. If the aftermarket
tool manufacturers determine that certain information is of no value,
they won't have any incentive to use it. Manufacturers may provide such
information to the aftermarket in the same indirect fashion they
provide it to their dealers via the sale of tools so long as these
tools are available at a reasonable cost, or they may provide it to
aftermarket tool companies so that these companies can make tools.
Regarding bi-directional diagnostic control strategies, EPA agrees
that safeguards which protect against potential damage or safety
problems from bi-directional control are important and encourages all
manufacturers to implement them into their diagnostic systems. EPA
believes that requiring manufacturers to supply bi-directional control
information to the aftermarket, including Equipment and Tool Institute
(ETI) members, without adequate safeguards could create liability
concerns for manufacturers regarding the safety of consumers and
technicians who would be responsible for the diagnosing and repair of
vehicles.
The liability issues are a concern because there is no requirement
that an ETI member company must add safeguards to the tools that they
build. Manufacturers also have no reasonable means by which they can
ensure that safeguards would be correctly incorporated into aftermarket
tools. EPA believes that manufacturers have an incentive to ensure that
safeguards are properly incorporated and are perhaps better equipped to
verify the functionality of these safeguards.
Since bi-directional control is an important part of vehicle
diagnosis and repair, it is imperative that this capability be made
available to the independent service industry as soon as possible. This
means providing bi-directional information to ETI members so that they
can make generic tools for the aftermarket.
Manufacturers assert that most bi-directional control safeguards
exist in manufacturer diagnostic tools rather than in vehicle on-board
computers. The manufacturers claim that by 1999, all vehicles will have
safeguards designed into the on-board computer, thus eliminating any
concerns regarding safety and liability issues that could arise from
the use of aftermarket diagnostic tools with bi-directional capability.
EPA agrees with the manufacturers that it is preferable to have
safeguards in the on-board computer, rather than in the diagnostic
tool, especially if there is no requirement that generic tool
manufacturers incorporate such safeguards in their tools. However, EPA
does not believe it is reasonable or necessary to delay this
requirement until 1999. Several manufacturers have indicated that they
will have safeguards designed into their vehicles' on-board computers
by 1997. EPA believes it is providing sufficient leadtime for other
manufacturers to make any hardware changes that may be necessary.
Therefore, beginning on January 1, 1997, a manufacturer can only
provide bi-directional control to its dealerships if it has provided
aftermarket companies with information to make tools that have the same
bi-directional capabilities available to dealerships, or provided such
capabilities directly to aftermarket technicians through provision of
their own tools. Manufacturers will be required to make bi-directional
information available for all model years beginning with 1994. However,
for model years 1994-1996, where a manufacturer can prove that
safeguards for bi-directional controls were only installed in tools,
not in vehicle on-board computers, then that manufacturer may receive a
waiver from producing bi-directional controls prior to the 1997 model
year. However, no such waiver is available for other data stream
information. If a manufacturer does not use bi-directional control or
has certain bi-directional control capabilities that it does not supply
to its dealers, the manufacturer will not be required to provide this
capability to the aftermarket.
Regarding GM's comments that release of information needed to
perform bi-directional control should be restricted since product
damage could result if the control is improperly applied, such concerns
should be equally true for providing such information to dealerships.
If manufacturers are not concerned regarding possible damage by
dealership technicians, they should not be concerned regarding damage
from aftermarket technicians.
EPA disagrees with manufacturer comments that ``indirect
information'' should not include calibration, recalibration or
reprogramming information and that the definition should be modified by
deleting the phrase ``contained in items such as parts or other
equipment.'' Section 202(m)(5) makes clear that any relevant
information that is provided directly or indirectly to a dealership
cannot be shielded from disclosure under section 208. Even if
recalibration related
[[Page 40487]]
information is not provided directly to technicians nor consciously
used in diagnosis and repair, such information, if contained in or made
available through manufacturer tools, is a crucial element in the
emission-related diagnosis and repair information provided by that
tool. Therefore, it is indirect information which must be provided,
either directly or indirectly, to the aftermarket, if it is emissionrelated.
Moreover, manufacturers may use changes to computer calibrations to
fix mechanical malfunctions or to revise prior calibrations. In such
cases, it is necessary for such information to be known to subsequent
repair personnel in order to prevent subsequent repairs from causing
increases in emissions.
EPA believes that much of the manufacturer equipment that a dealer
uses for emission-related diagnosis and repairs possesses certain
capabilities, such as being able to read fault codes, perform
reprogramming or allow bi-directional control. The information that
allows the manufacturer tools to perform such functions is indirect
information that must be made available to the independent service
industry.
As to Saab's comment that parts do not contain any supplementary
information necessary to make emission-related repairs, EPA agrees. EPA
has determined the language in subsection 202(m)(5) does not apply to
information used to manufacture parts. Therefore, the references to
parts will be removed from the definition.
EPA agrees with the commenters that there would be many functional
control strategies with which independent technicians should
familiarize themselves, and while this could be overwhelming, there is
no evidence that the independent service industry wouldn't be up to the
challenge. EPA believes that disclosure of functional control
strategies would be beneficial in helping technicians to better
understand the interactions of the on-board computer with the numerous
sensors and actuators that comprise the varied emission control systems
and thereby, help promote better and quicker diagnoses and repair of
emission-related problems. However, at this time, EPA is only requiring
manufacturers to supply functional control strategies directly to
independent technicians if such strategies are supplied directly to
their dealerships. To the extent such strategies are incorporated into
a manufacturer's enhanced diagnostic tools, they must be made available
to the aftermarket either through availability of manufacturer tools
(at a reasonable price), or with appropriate agreements to protect
proprietary information, through generic tools.
As discussed in the Response to Comments document, EPA does not
believe that this information has been shown to be needed for emissionrelated
repairs and diagnosis at this time and release of at least some
of this information may raise trade secrets concerns. It is EPA's
position that if manufacturers believe this information is necessary to
perform emission-related service they will provide this information to
their dealerships and independent technicians. EPA will continue to
review whether certain types of information should be made available to
the repair community even if such information is not currently made
available to authorized dealers.
EPA Decision: All emission-related data stream information made
available to manufacture franchised dealers (or others in the service
industry) will be made available to the aftermarket, either through
provision of manufacturer equipment and tools or through information
provided to generic equipment and tool manufacturers with appropriate
agreements to protect proprietary information. Beginning on January
1,1997, a manufacturer can only provide bi-directional control to its
dealerships if it has provided equipment and tool manufacturers with
information to make diagnostic equipment with the same bi-directional
control capabilities available to the dealerships, or provided such
capabilities directly to independent technicians through provision of
their own tools. Manufacturers are required to make bi-directional
control information available for all model years beginning with model
year 1994. However, for model years 1994-1996, where a manufacturer can
prove that safeguards for bi-directional controls are only installed in
tools not in vehicle on-board computers, then that manufacturer may
receive a waiver from producing bi-directional controls for vehicles
prior to the 1997 model year. However, no such waiver is available for
other types of data stream information.
Functional control strategies will not be required to be made
available to the aftermarket, except to the extent they are made
available to authorized dealerships.
The reference to parts is deleted from the definition of indirect
information. The definition of indirect information will now be ``any
information that is not specifically contained in the service
literature, but is contained in items such as tools or equipment
provided to franchised dealers (or others).''
I. Enhanced Diagnostic Tools
Summary of Proposal: In the 1993 workshop notice, EPA indicated
that according to section 202(m)(5) of the CAA, emission-related
information provided by manufacturers indirectly to franchised dealers
must also be provided to any person engaged in the repairing or
servicing of motor vehicles. EPA stated that some manufacturers are or
will be providing their dealers the ability to diagnose malfunctions
and/or reprogram vehicle modules via enhanced diagnostic equipment.
This equipment will not allow dealers to view the underlying computer
codes, but will allow them to reprogram vehicles and use enhanced
diagnostic information using the underlying code.
EPA believes that the enhanced diagnostic equipment provides
franchised dealers indirectly with information that is needed to make
emission-related diagnosis and repairs. EPA proposed to require that
manufacturers offer their enhanced diagnostic equipment for sale to the
aftermarket. This would enable manufacturers to comply with the
requirements of section 202(m)(5) that information be made available to
the aftermarket if it is made available to dealerships or other persons
engaged in the repair, diagnosing, or servicing of motor vehicles or
motor vehicle engines while simultaneously protecting the proprietary
interest of the manufacturers. It would also provide the aftermarket
with the same capabilities as dealerships without divulging proprietary
engine calibrations or recalibrations.
EPA proposed that manufacturers' enhanced diagnostic equipment be
made available to the aftermarket at the same price at which it is sold
to authorized dealerships. EPA believed that a reasonable price to
charge the aftermarket is the same price at which the equipment is
offered to franchised dealerships. Based on previous comments provided
to EPA, EPA believed that manufacturers' enhanced diagnostic equipment
are sold to dealerships independent of their franchise agreements.
Therefore, the cost of such equipment can be readily determined or
manufacturers could provide suggestions for determining the price of
their equipment. EPA proposed to give manufacturers a one-year leadtime
to prepare for aftermarket sales of enhanced equipment. EPA proposed
that manufacturers must provide preliminary enhanced data stream
information three months preceding model introduction, with final data
[[Page 40488]]
stream information to be released three months after model
introduction.
Summary of Comments: Some manufacturers argued that EPA lacks the
authority to mandate that they provide enhanced equipment or
information to the entire vehicle maintenance industry concerning
``special'' or ``enhanced'' data streams or tools. Several
manufacturers commented that the statute requires information be made
available, not enhanced diagnostic tools. They stated that although
such information may be provided by manufacturers to their franchised
dealers, it isn't necessary to make use of OBD systems or to effectuate
emissions control system diagnostics or repair. The manufacturers and
NADA stated that a majority of franchised dealers make substantial
monetary investments to purchase and train their technicians to use
enhanced diagnostic equipment. They argued that EPA must not promulgate
a regulation which would undermine these investments and in doing so
place dealers at a competitive disadvantage with other segments of the
vehicle maintenance industry.
According to Chrysler, the initiative for the company to invest in
creating enhanced equipment is to ensure the economic viability of its
dealerships. Without this incentive, Chrysler believes that such
equipment will likely not be developed.
Several manufacturers asserted that reprogramming capability and
proprietary non-emission-related information are an integral part of
their enhanced diagnostic equipment. They argued that the design,
development and distribution of a separate tool with only emissionrelated
capabilities would be an unnecessary and costly burden for
manufacturers.
They also noted that service information contained in manufacturer
tools is similar to that which is contained in its service manuals,
TSBs, recall notices, and other information which will be made
available to the public through the various mechanisms proposed in the
NPRM regarding service information availability.
Ford noted that nearly half of all its dealers do not have its
Service Bay Diagnostic System (SBDS). Therefore, Ford believes dealers
have no advantage in this area.
Ford expressed several concerns over any regulation that would
require their SBDS to be made available to the aftermarket: (1) higher
likelihood that improper calibrations could be installed on vehicles
since manufacturers have no control over independent facilities; (2)
the reprogramming capabilities of this equipment would provide a
powerful tool for aftermarket performance companies and competitors to
reverse engineer the emissions control system which could result in
tampering; (3) unauthorized or incorrect calibrations would increase
manufacturer liabilities in failing government in-use compliance
programs and customers failing I/M programs; and, (4) providing a tool
which has the capability to reprogram the control module may make it
impossible for manufacturers to meet EPA's tampering prevention
provisions. (These issues are addressed in the recalibration/
reprogramming section below.)
Several manufacturers stated that generic scan tools will provide
the means by which the aftermarket industry can get very specific
support for diagnosis and repair of emission-related systems and
components. While Ford indicated it understands the need for generic
tools in the aftermarket arena, it expressed concern that they provide
adequate and accurate information and repair capabilities.
Manufacturers asserted they cannot be held either directly or
indirectly liable if such generic tools incorporate diagnostic
protocols which could potentially result in misdiagnosis and/or
unnecessary repairs. Further, they believe it would not be reasonable
to require manufacturers to review and approve aftermarket diagnostic
tools. Ford suggested that the manufacturers of aftermarket generic
diagnostic tools assume full responsibility for the accuracy and
completeness of their equipment and software, and that EPA enforce
necessary sanctions if deficiencies are identified which result in
improper diagnostics or repairs.
Toyota Motor Corporation (Toyota) commented that manufacturers
should sell enhanced diagnostic tools to all persons who want to
purchase them. However, Toyota indicated that contrary to EPA's
proposal, such tools could not be sold to the aftermarket at the same
price they are provided to franchised dealers, since the cost of
establishing new trading routes and a handling system would increase
the price of equipment to independent technicians. As a result, Toyota
commented that if the Agency decides that the selling price from
manufacturers to dealers must be the same as that to independent
facilities, it would have to greatly increase the price to its
franchised dealers.
The Automotive Service Industry Association (ASIA) commented that
while EPA's proposal that manufacturers' enhanced diagnostic equipment
be made available to the aftermarket at the same price it is made
available to franchised dealers has merit, limiting access to such
manufacturer equipment alone will prove too costly and cumbersome for
small repair facilities. ASIA asserted that under EPA's scenario, a
small business currently servicing three lines of motor vehicles would
be required to purchase three separate hardware/software systems if
that business wishes to continue servicing its current customer base.
According to ASIA, the cost of purchasing three individual systems (at
a minimum estimated cost of $40,000 per unit) would force that repair
facility to either significantly increase prices or limit the types of
vehicles serviced.
ASIA stated that this impact runs contrary to the intent of section
202(m)(5) as envisioned by Senator John Chafee, who stated during the
floor debate that ``the purpose of the amendment is to make sure the
diagnostic equipment, the manuals, the techniques are available to, in
effect, the local gas stations so they they will be more convenient for
the automobile owner * * *'' Cong. Rec. S3272 (March 27, 1990). ASIA
noted that then Senator Gore later added ``we want the [manufacturers]
to provide information which will allow competition in the aftermarket
and allow small business operators to get in the repair business.
Otherwise, you force vehicle owners to go only to the major automobile
manufacturers' place of business. Consumers get frustrated; they have
long waits; they have to pay high prices.'' Cong. Rec. S3272 (March 27,
1990). Therefore, ASIA asserted that to ensure independent facilities
have the ability to service a range of vehicle makes, EPA should
require that all diagnostic information provided to manufacturers of
tools for vehicle manufacturers should be made available to the
aftermarket. In doing so, ASIA believes that EPA would provide small
businesses with the option of purchasing individual manufacturer
diagnostic tooling systems or a single aftermarket system that
possesses diagnostic capabilities for a variety of vehicle models.
One independent technician acknowledged that manufacturers deserve
protections that may assist them in securing a return on their
investment in equipment. To remedy concerns of the manufacturers, the
commenter suggested that the manufacturers make known all of the
information that is on the data stream to the aftermarket equipment
manufacturers. These manufacturers could, through their own research,
determine what diagnostic routines warrant investment to develop
[[Page 40489]]
and market. The commenter also expressed concern over the cost of
enhanced equipment. According to the commenter, any such equipment that
costs more than $3,000 should be considered unavailable to independent
technicians.
APAA commented that manufacturers will be correcting emission and
driveability problems through the use of reprogramming tools. Without
access to generic tools that perform the same function, APAA believes
independent technicians will be unable to purchase manufacturer
enhanced tools due to their high cost and will be in the unenviable
position of being dependent on their biggest competitor, i.e.,
dealerships, for reprogramming services which are critical to emission
repairs. APAA further noted that some manufacturers could not guarantee
that their franchised dealers would provide reprogramming services to
independent technicians in a timely manner.
One commenter noted that unlike dealers with enhanced tools,
independent technicians with generic tools only receive malfunction
codes which are insufficient to diagnose a fault. According to the
commenter, this increases the time it takes to make a repair and the
cost.
Aftermarket commenters indicated that independent technicians need
access to diagnostic tools and equipment at the same time such tools
and equipment are provided to dealerships.
Analysis of Comments: Contrary to manufacturer assertions, EPA
believes it has the authority to require manufacturers to provide their
enhanced diagnostic tools, because such tools contain important
information that may be necessary for making emission-related repairs.
Section 202(m)(5) of the Act is clear that if such information is
provided either directly or indirectly to dealers, it is not covered by
the confidentiality protection of section 208 and, therefore, must be
provided to aftermarket technicians if it is information for making or
diagnosing emission-related repairs. There is little question that the
information provided by these tools is likely to increase the ability
of a technician to diagnose and make appropriate repairs to vehicles
and to make such diagnosis and repairs in considerably less time than
it would take without such information. The legislative history clearly
indicates that availability of diagnositc equipment was considered by
Congress. Moreover, the legislative history clearly shows an intent
that if dealerships have access to information that would allow
relatively quick and low-cost diagnosis and repair of vehicles, then
the aftermarket should have access to the same information. Moreover,
to the extent these advanced diagnostic tools may contain considerable
information for making emission-related diagnoses and repairs that are
not contained in written performance manuals and updates, the
information contained in these tools is clearly covered by this rule.
Regarding Chrysler's argument that enhanced diagnostic tools have
been developed to assist the economic viability of dealerships, it must
be noted that a major reason for developing these tools has been to
increase the ease and decrease the cost and time of repair for
manufacturers' vehicles, which increases customer satisfaction. To the
extent the wider availability of this information further increases
ease of repair, then customer satisfaction is likely to increase
further. Moreover, to the extent manufacturers wish to assist the
economic viability of dealerships by preventing access by aftermarket
technicians to emission-related information, that is exactly the type
of behavior that section 202(m)(5) was designed to prevent.
To the extent manufacturers comment that this regulation will force
them to either build different types of enhanced diagnostic equipment
or to divulge certain information not otherwise required, EPA believes
that manufacturers will have to make cost-related determinations
regarding how to meet this requirement. If any costs are necessary to
ensure that emission-related information is provided to the aftermarket
to the extent it is provided to dealerships, then section 202(m)(5)
requires that such costs be incurred. Moreover, Ford's statement that
some of its dealers do not have access to its SBDS system, and that
therefore the aftermarket should not have access to the information in
that system, is not consistent with section 202(m)(5). The fact that
Ford dealerships could choose to avail themselves of this information
dictates that aftermarket technicians must have such a choice.
In general, statements of manufacturers regarding the complexity of
control strategies and diagnostic information support the need for this
information to be made available. The aftermarket must have access to
this type of information precisely because vehicle repair has become
such a complex and intricate procedure. Without such information,
aftermarket technicians would be operating under a significant
disadvantage compared to dealerships.
Providing such tools to the aftermarket should not unfairly
jeopardize the economic viability of dealerships. Dealerships already
have access to these tools and to manufacturer training and other
opportunities not provided to the aftermarket.
Nevertheless, EPA is not requiring manufacturers to make their
enhanced diagnostic equipment available to the aftermarket. The primary
reason being that the cost of purchasing such equipment for more than
twenty manufacturers would be cost-prohibitive for most, if not all,
independent technicians. The total cost would likely make the equipment
practically unavailable to independent technicians.
However, manufacturers are required to ensure that the underlying
emission-related information contained in their enhanced diagnostic
equipment is provided to the aftermarket in a reasonable manner.
Manufacturers are, therefore, required either to make their advanced
diagnostic tools and equipment available at a reasonable cost to
independent technicians or to make available to aftermarket tool and
equipment companies any and all information, except calibrations and
recalibrations, needed to develop and manufacture generic tools that
can be used by independent technicians to diagnose, service and repair
emission-related parts, components and systems.
Section 202(m)(5) states that information for making emissionrelated
diagnosis and repair that is made available either directly or
indirectly to dealerships must also be made available to the
aftermarket. Any such information provided to dealerships is not
proprietary as defined in the CAA. Much of the service and repair
information made available to dealerships is done so by its
incorporation into diagnostic tools and equipment. To ensure that
independent technicians have the same or similar capabilities,
manufacturers are required to either provide the information necessary
to make such tools and equipment to tool and equipment companies or to
make manufacturer tools and equipment available at a reasonable cost
(i.e., sold competitively in the marketplace). The reasonable cost
requirement is necessary to ensure that the tools and equipment are
``available'' to the aftermarket.
EPA is not requiring that information provided indirectly to
dealerships be provided directly to aftermarket technicians. Where such
information contains proprietary materials, EPA is only requiring that
such information be provided to aftermarket technicians in the same
manner that it is provided to
[[Page 40490]]
dealerships. Manufacturers may require that tool and equipment
manufacturers to whom such information is provided agree to ensure that
such information remains proprietary.
EPA recognizes that manufacturers cannot exert sufficient control
over tool and equipment manufacturers to ensure that generic tools and
equipment properly incorporate diagnostic information. Therefore, the
Agency will not hold manufacturers responsible for the tools and
equipment produced by other companies.
As discussed in the section on reprogramming, manufacturers may
sell their own reprogramming tools to independent technicians, rather
than having such information provided by aftermarket tool and equipment
companies, if the price of such tools is reasonable.
Manufacturers may, if they wish, also sell their enhanced
diagnostic equipment and/or provide the information necessary to build
reprogramming tools to aftermarket tool and equipment companies. The
sale of manufacturer enhanced diagnostic equipment for a reasonable
cost would be sufficient to comply with the requirements for enhanced
diagnostic information under these regulations.
Vehicle manufacturers are required to make emission-related
diagnostic and service information utilized by aftermarket tool and
equipment companies available to such companies no later than the date
of model introduction. This will allow adequate time for such companies
to incorporate the information into generic tools and make it available
to independent technicians in a timely manner. Revised information is
required to be provided to aftermarket tool and equipment companies as
it becomes available.
EPA Decision: Manufacturers are required to make available to
aftermarket tool and equipment companies any and all information,
except calibrations and recalibrations, needed to develop and
manufacture generic tools that can be used by independent technicians
to diagnose, service and repair emission-related parts, components and
systems.
In the alternative, manufacturers may sell their enhanced
diagnostic equipment to aftermarket technicians for a reasonable price.
The sale of manufacturer enhanced diagnostic equipment for a reasonable
cost would be sufficient to comply with the requirements for enhanced
diagnostic information under these regulations.
As to emission-related diagnostic and service information utilized
by aftermarket tool and equipment companies that make generic tools
which perform the same or similar functions as those provided by
manufacturers to their dealerships, the Agency believes that such
information should be provided at the time of model introduction. This
will allow adequate time for its incorporation into tools and
equipment.
J. Recalibration/Reprogramming
Statement of Proposal: EPA proposed that, consistent with the Act,
``all information'' needed to make emission-related repairs be made
available to the automotive service industry, including recalibration
information. An engine calibration is the set of instructions the
computer module uses for operating many of the engine systems (e.g.,
fuel and ignition). These instructions are made up of preset values and
algorithms that are located in a computer chip. Recalibration is the
act of revising the preset values and/or algorithms for an existing
engine calibration in a particular vehicle model/engine configuration.
Reprogramming is the act of installing a ``new'' engine calibration
(i.e., a recalibration) into the module of a specific vehicle.
Summary of Comments: Manufacturers asserted several reasons why
they should not be required to make available recalibration information
or reprogramming capability: (1) Recalibrations are saleable parts and
not ``information'' within the meaning of section 202(m)(5) of the CAA;
(2) reprogramming is not a repair action; (3) reprogramming is not
``necessary'' information; (4) reprogramming is not ``emissionrelated'';
(5) recalibration and reprogramming information are
proprietary information protected under section 208; (6) the CAA does
not require manufacturers to make available engine calibration
information for aftermarket parts manufacturers to effectively design
emission-related parts; (7) providing reprogramming capabilities to
independent technicians would impair the manufacturer's ability to
maintain tamper resistant systems; (8) independent technicians would be
unable to understand the intracacies of each of the different
manufacturer systems; and (9) the potential for problems, such as
increased emissions, poor vehicle performance, and warranty and recall
liability that could result from the release of recalibration
information. Manufacturers asserted that aftermarket service providers
could take vehicles to franchised dealerships to have them
reprogrammed.
In contrast, the automotive aftermarket unanimously cited the need
for independent technicians to have the capability to perform
reprogramming. They commented that any procedure that has the effect of
limiting the ability of independent technicians to make repairs is
contrary to the CAA and Congressional intent. They further questioned
EPA's authority to allow recalibration information to be within the
exclusive province of dealers on the basis that that was not the intent
of Congress. According to the commenters, if the aftermarket is not
allowed to perform reprogrammings, the aftermarket will gradually be
removed from performing emission-related repairs, including
driveability repairs.
Some commenters stated that the only useful information to
aftermarket parts manufacturers would be access to underlying
recalibration information. APAA commented that engine calibration
information is required for the effective production and testing of
replacement parts. The Specialty Equipment Manufacturer's Association
(SEMA) asserted that although aftermarket parts manufacturers would not
necessarily need direct access to manufacturer proprietary information,
some type of secure access to manipulate calibrations in developing and
testing aftermarket parts will be essential to the survival of the
independent parts and service industry. They argued that by not
allowing such access, EPA would put some people out of business by
eliminating the ability to make modifications to vehicles.
Aftermarket comments asserted that the marginal risk of tampering
could be addressed by various methods, including restricting how
recalibrations are performed (e.g., using a modem link to receive
recalibration information) or specifying qualifications which all
technicians must meet to obtain recalibration data.
Analysis of Comments: EPA disagrees with the commenters that
recalibration information is a part. There are several reasons for the
Agency's position on this issue. First, service people do the
reprogramming, not parts departments. Second, one doesn't need to order
the ``part,'' it is in the diagnostic machine and just needs to be
downloaded. Third, there are no parts cost for ``installation,'' only
service costs. Fourth, entering a recalibration does not physically
change a vehicle, only the data (information) on the computer. Fifth,
in their comments, manufacturers refer to recalibrations as
``information.'' \13\ Sixth, parts can be sent to a mechanic via, e.g.,
UPS, as they
[[Page 40491]]
are sent to a dealer by a manufacturer, or as a dealer can send to a
mechanic. However, reprogramming can only occur at a dealership or
other facility which has the necessary equipment to perform a
reprogramming event. In addition, the change made to a vehicle by
reprogramming is a change to ``data'' within the vehicle. In effect,
the tool is communicating with the computer in the vehicle, telling it
to do something different. This appears to be information.
\13\ For example, Chrysler Corporation Response to EPA Request
for Supplemental Comments on OBD Systems, June 28, 1992, and Ford
Motor Company Written Comments, July 31, 1992.
Finally, though parties may argue whether the data being downloaded
into the vehicle is a ``part'' or ``information'' or both, it is clear
to EPA that the current situation, in which dealerships can make
manufacturer-suggested repairs to vehicles using data provided by
manufacturers to dealerships, but not to independent technicians, is
exactly the type of situation that Congress intended to be rectified by
section 202(m)(5).
EPA believes that reprogramming is a repair action. The entire
purpose of reprogramming vehicle computers is to ``repair'' certain
problems discovered in the vehicles. EPA believes that the key issue is
whether independent service providers are being prevented from doing
what dealerships are allowed to do due, in part, to lack of
information. EPA believes that reprogramming events should be
considered repairs under the statute, especially since such
reprogramming is being done as a result of recommendations offered by a
manufacturer in order to change some aspect of the vehicle that the
manufacturer believes was initially incorrectly produced.
Both Ford and Chrysler state that reprogramming information is not
``needed'' as that word is used in section 202(m)(5).\14\ Yet, even
presuming, for the sake of argument, that EPA should only mandate
disclosure of emission-related information that is ``necessary,'' \15\
no manufacturer makes clear how such information is not necessary to
accomplish the reprogramming of the vehicle. Whether the vehicle is
reprogrammed by a dealer or an aftermarket technician, the repair
person must have the information to make the repair. EPA does not
believe that the ``instructions'' for making emission-related diagnosis
and repairs is limited to ``go see your local dealer.'' The information
necessary to make the repair must be in the possession of the
aftermarket to the same extent it is in the possession of dealers.
\14\ One reason they give is that such information is not
emission-related. We discuss this issue below.
\15\ The term ``needed'' does not modify the clause referring to
``such other information including instructions for making emission
related diagnosis and repairs.''
Moreover, as EPA is only requiring information to be produced
regarding recalibrations offered by a manufacturer, it is hard to
understand how such reprogramming events would not be ``necessary''
events to repair the vehicle. A manufacturer would presumedly not offer
such recalibrations unless it found a feature of the vehicle that it
felt needed to be changed.
The Agency disagrees with statements that reprogramming is not
``emission-related.'' Though certain reprogramming events may have no
emission-related effects, EPA believes that numerous reprogramming
events will have such effects. First, the docket indicates that certain
calibrations are directly intended to fix problems related to the
emissions of the vehicles. Though these calibrations may be covered in
a manufacturer's warranty, there is no assurance that a proper
recalibration will occur during the warranty period. Thus, providing
independent technicians with the ability to provide such reprogramming
would not be an unnecessary endeavor.
In addition, recalibrations to fix driveability problems will also
have emission-related effects. As discussed elsewhere, ``emissionrelated''
repairs are not limited to repairs of the emission control
system or repairs necessary to make use of the OBD system.
As EPA discusses above in the section on the definition of
``emission-related,'' the correction of driveability problems can often
have an emissions impact. This potential for increased emissions is
heightened when cumulative recalibrations occur within an engine
family. Therefore, EPA is requiring that all reprogramming events that
are emission-related, as that term is defined above, including
reprogramming actions occurring for primarily reasons of drivability,
must be made available to independent technicians.
Contrary to comments made regarding recalibration information being
proprietary, the Agency believes that where a manufacturer provides
such information to some or all of its dealers, such information cannot
be considered proprietary under section 202(m)(5). The Act specifically
requires that any information provided directly or indirectly to
dealerships must also be provided to anyone who services or repairs
vehicles.
Contrary to manufacturer arguments that dealership employees don't
receive recalibration data because they can't see it due to the form in
which it is provided to them, EPA believes that where a manufacturer
provides dealerships with machines that hold such information or can
disseminate such information and where these machines allow dealerships
to use such information to repair vehicles, such information is being
provided indirectly to dealerships, and thus must be made available to
independent technicians in a similar manner.
In response to Ford's comment that it opposes any requirements
which mandate that it make available all detailed emissions
recalibrations, EPA is only requiring that reprogramming capability be
made available, not direct calibration codes. As discussed below, EPA
does believe that the internal computer codes within the vehicle
control modules are proprietary, as such material is not released to
dealerships. EPA, therefore, is not requiring direct disclosure of the
recalibration data itself. EPA does not believe that manufacturers
should be forced to provide unprotected proprietary information
directly to aftermarket technicians merely because it has provided such
material indirectly to its dealers, especially where such information
is provided to dealers in a protected fashion, such that even the
dealers could not assess the underlying information. Some manufacturers
have gone to considerable lengths to prevent direct disclosure of this
information even to its dealers; therefore, EPA will not require such
information be provided directly to the aftermarket.
Rather, EPA is allowing the manufacturers to indirectly provide
this data to independent technicians in the same or similar fashion as
they provide this data to dealership technicians by offering
independent technicians reprogramming capabilities to the same extent
manufacturers offer such capabilities to their own dealers. This will
help ensure that independent technicians remain competitive with
dealerships as intended by section 202(m)(5).
EPA agrees with comments from the aftermarket that, based on the
language of section 202(m)(5) of the CAA and its legislative history,
Congress intended independent technicians to have all the information
necessary to make emission-related repairs, including reprogramming
capabilities, that are available to dealerships or others. Congress
wanted to ensure the continuation of a competitive marketplace, thereby
providing consumers with an option as to where to have their vehicles
serviced. In addition to the reprogramming capability, manufacturers
will also be required to publish information as to
[[Page 40492]]
when recalibrations are issued, since such information can impact other
repairs. Also, EPA expects that some independent technicians will not
want to obtain reprogramming capability, but will want to know when
such service is necessary so that they can take vehicles to the
dealerships for such service or refer customers to seek dealership
service on their own.
EPA also agrees with comments indicating that there are significant
practical competitive disadvantages to the aftermarket if only dealers
can reprogram and that, in the future, many vehicle functions may be
controlled through recalibration data. Also, unless a secure means for
the aftermarket to obtain reprogramming is found, a substantial amount
of maintenance and repairs could be channeled to dealerships who would
have a significant information advantage.
The Agency agrees that manufacturers that do not provide
reprogramming capabilities to their dealers through the use of
electronically eraseable computer chips and do not provide
recalibration information to other parties do not have to provide
recalibration information or reprogramming capability to independent
technicians.
The Agency agrees with the manufacturers that section 202(m)(5)
does not require manufacturers to provide calibration, recalibration or
design information to aftermarket parts manufacturers. The purpose of
this provision is to ensure that independent technicians have access to
information needed to service and repair vehicles, thereby ensuring
consumers with freedom of choice in where to take their vehicles for
repairs. See Statement of Senator Gore, 136 Cong. Rec. S3271-2 (March
27, 1990) (``If we are going to mandate a new onboard diagnostic
system, we must give consumers the freedom to choose where they will go
to have these systems maintained and repaired.'' [emphasis added])
Manufacturers are only required to provide reprogramming capabilities
to persons who service and repair vehicles, i.e., independent
technicians. They are not required to provide recalibration information
to other parties.
EPA disagrees with the assertion from aftermarket commenters that
section 202(m)(5) is intended to provide for the release of calibration
or parts specification information to parts manufacturers. Nothing in
the language of the statute itself or in the legislative history
indicates that Congress was interested in assuring access and
information for the manufacture of aftermarket parts. On the contrary,
the legislative history speaks only of the need to ensure equal access
for vehicle repair facilities. The language was clearly meant to ensure
that such repair facilities have equal information to make emissionrelated
diagnosis and repairs as have the manufacturers' dealerships.
This is why the Congress limited the coverage of section 208(c)
(providing that trade secrets need not be made available) to
information not provided to dealerships. There is no information
indicating that underlying computer data is provided to dealerships. In
fact, as discussed above, manufacturers have attempted to protect such
information from disclosure. Though the language of section 202(m)(5)
does refer to any information provided directly or indirectly to
dealers, EPA does not believe that Congress intended to require that
information provided to dealers only indirectly, and using secure
methods, must be provided directly, without protection, to aftermarket
parts dealers. The legislative history clearly shows that Congress had
no intention of requiring the release of proprietary information. In
fact, the House Report specifically gives as its reason for the trade
secrets language the fact that ``the computer software can include very
sensitive data.'' House Report at 306. In short, section 202(m)(5) was
designed to ensure information already in the public domain was given
to all repair providers; it was not designed to expose manufacturers to
the divulgence of their most sensitive proprietary information.
Further, EPA has received no information that this information is
needed by repair personnel to repair vehicles. There has been no
information showing that repair personnel need to see underlying
computer codes in order to fix vehicles. This is evidenced by the fact
that there have been many comments indicating that service people have
no use for such underlying information and would likely not know how to
use it if they had access to it.
Aftermarket parts manufacturers commented that engine calibration
information is required for the effective production and testing of
replacement parts to ensure that they will meet the exacting needs of
both current and future engines. Even presuming that this allegation is
true, this regulation does not prevent parts manufacturers from
obtaining such information. Parts manufacturers can enter into any
number of special arrangements with the manufacturers to obtain the
desired information. Further, parts manufacturers will be able to make
parts in the same manner as they always have.
Parts manufacturers have been making such parts for many years,
even as vehicles have become more and more complicated. Though the
introduction of OBD will continue the trend of making cars more complex
and, therefore, require manufacturers and aftermarket parts
manufacturers to meet more exacting standards, it does not require a
new regime for providing information for the manufacture of replacement
parts. Nor does section 202(m)(5) require such a new regime.
Vehicle manufacturers expend substantial resources to develop these
intricate programs. Manufacturers may be justified in their hesitance
to allow such information to be freely distributed, especially without
proper arrangements. Congress could have extended the reach of section
202(m)(5) to include parts manufacturers. It did not. Given the fact
that aftermarket parts manufacturers appear to need information of a
more proprietary nature than that of aftermarket repair personnel, it
appears that EPA would be going beyond Congressional intent in
requiring that such information be provided.
Moreover, SEMA states that the aftermarket industry needs
underlying recalibration information to be capable of modifying
existing programs on vehicle computer chips. It is just these changes
to computer calibrations that trouble manufacturers and also trouble
EPA. Where a single entity, the manufacturer, is responsible for
programming and updating the vehicle computer, it is relatively easy to
determine which computer calibration is on, or should be on, a vehicle.
Manufacturers go through a rigorous mandatory certification process to
assure EPA of emission compliance of their various calibrations over
the useful life of their vehicles. When various part manufacturers are
changing calibrations to meet the needs of their parts, then it is more
difficult to determine what the proper calibration of the vehicle
should be. Moreover, if a subsequent repair person repairs the same
vehicle using the instructions generally appropriate for such a
vehicle, such a subsequent repair may result in unintended consequences
that could impair the emissions (or drivability) performance of the
vehicle, especially if the new aftermarket calibration is not made
obvious to the subsequent repair person. Also, such aftermarket
recalibrations may prevent the manufacturer from instituting later
recalibrations on the vehicle, because the newest manufacturer
recalibration may be inconsistent with the aftermarket part. Finally,
such aftermarket recalibrations
[[Page 40493]]
could possibly constitute tampering, depending on the emissions result
of the recalibration. (This is also true for manufacturer
recalibrations; however, if manufacturers are the only parties issuing
recalibrations, such problems are easier to enforce.) This is not to
say that EPA intends on preventing such aftermarket recalibrations or
even manufacturer recalibrations. However, if EPA's concerns regarding
the emissions result of such recalibrations increase as it receives
further data on the subject, EPA may determine that certain steps must
be taken (possibly in the form of a mandatory certification program) to
ensure that recalibrations are consistent with the Act and to preserve
emission performance of vehicles.
One of the more frequently cited comments by the manufacturers was
that reprogramming should be restricted to dealerships for reasons of
security. However, EPA received no evidence that tampering is
necessarily less likely to occur if reprogramming is limited to
dealership employees, which according to NADA constitute more than one
million individuals (including one-third of all technicians) at over
23,000 dealerships nationwide.
The Agency believes that if the appropriate security measures are
instituted for reprogramming, the risk of tampering would be virtually
the same for independent technicians and dealership employees.
EPA questions manufacturer comments to the effect that they can
ensure the security of recalibration information as long as it is
provided only to dealerships. The manufacturers failed to provide any
data from prior actions against dealerships to substantiate the
assertion that manufacturers can prevent their dealerships from
engaging in undesired activities. Also, EPA is not forbidding
manufacturers from using contractual and other arrangements to protect
against inappropriate use of the reprogramming equipment.
EPA is encouraged that the aftermarket industry recognizes that as
a result of providing independent technicians with reprogramming
capabilities there is some concern over the potential for tampering.
EPA also appreciates the many suggestions made by the aftermarket to
reduce the potential for tampering. However, EPA believes that
manufacturers should be allowed to develop and implement the systems
which they believe are most secure, such as encryption systems, taking
into consideration the amount of reprogramming they perform and
available technology. If EPA subsequently determines that security and
tampering concerns develop into a problem due to the release of this
information, EPA may require other measures to limit tampering and to
prevent emissions increases.
EPA disagrees with comments regarding the inability of independent
technicians to correctly perform reprogramming. First, the new
electronic systems are too complex for independent or any other
technicians to indiscriminately alter. Second, based on EPA
observations, reprogramming according to manufacturer instructions is
not a difficult task. Procedures could be easily detailed in
manufacturer repair manuals as they typically are for other repairs.
Therefore, any training need to perform reprogramming should be
minimal. If manufacturers believe that extra training is necessary
prior to technicians performing reprogramming, then they should make
available whatever training materials they believe are necessary to
ensure that independent technicians can properly perform reprogramming.
EPA believes that manufacturer concerns over warranty and recall
responsibilities for vehicles that might be recalibrated improperly by
independent technicians are unfounded. Manufacturers will be in control
of the process by which reprogramming is provided. In addition, as
discussed earlier, the task of reprogramming is not difficult.
EPA believes that any increasing danger of undetectable tampering
would be more a result of the proliferation of reprogrammable computer
chips than it is a result of who repairs vehicles. The proliferation of
reprogrammable computer chips is in the control of the manufacturers
who can elect not to use reprogramable chips or who can provide many
other safeguards short of a permanent bar against reprogramming by
aftermarket technicians. This possibility of increased tampering may
also provide an incentive for manufacturers to minimize the amount of
manufacturer-ordered reprogramming that occurs.
In addition, EPA never indicated that manufacturers would be
responsible for reimbursing owners or independent technicians for
reprogramming performed outside a dealership. EPA also has a difficult
time understanding how allowing independent technicians to perform
reprogramming recommended by the manufacturer would be a disincentive
for owners to seek future emission-related repairs, since almost all
manufacturer commenters indicated that such repairs occur during the
warranty period and are, therefore, likely to be performed by
dealerships.
EPA believes that GM's comments mis-state the competitiveness
concerns of a level playing field expressed by Congress. With the
advent of eraseable computer chips, dealers can perform reprogramming
in minutes, while independent technicians, if forced to return a
vehicle or its module to a dealer for reprogramming, would be at a
significant time and cost disadvantage. According to one manufacturer,
it is difficult to predict how long an independent technician would
have to wait at a dealership to have a reprogramming event performed on
a vehicle brought in by the independent technician. The manufacturer
indicated that an independent technician might have to wait four to
five days.
EPA agrees with the aftermarket commenters that forcing independent
technicians to return computers to dealers for reprogramming requires
excessive manpower, would result in loss of income due to delays, is
onerous and unnecessary. In addition, the Agency believes that
requiring independent technicians to do so does not constitute access
to repair information as conceived by Congress in section 202(m)(5) of
the CAA.
EPA agrees with the example provided by an aftermarket commenter
regarding one of the differences to independent technicians as to the
difference between replaceable computer chips and eraseable computer
chips and any requirement that independent technicians return an
electronic control module (ECM) to a dealer for reprogramming. Where an
independent facility buys a computer chip from a dealer, the vehicle
remains operable while the repair facility searches for the part,
orders the part, and transports the part. However, if an independent
facility would have to remove the computer from a vehicle and take it
to an authorized dealer to have it reprogrammed, the affected vehicle
is not operable. Even ignoring the potential for lack of cooperation by
a dealership to provide reprogramming, the cost to independent
technicians and the inconvenience to their customers could be
substantial.
There is also concern, as expressed by ETI and others about the
damage that could result from transporting exposed electronic parts,
which are very sensitive to static electricity, physical damage, and
fluids, including water. As ETI noted, a computer module that starts
out needing only a reprogramming service may need replacement simply
because it was transported to a dealer and damaged along the way.
[[Page 40494]]
EPA Decision: EPA has determined that recalibrations are
information covered under section 202(m)(5) if they are provided to
dealerships to reprogram vehicles. EPA recognizes that this information
is not visible to the dealerships and is provided for the purpose of
allowing dealers to perform reprogramming. EPA believes that allowing
manufacturers to provide similar reprogramming capabilities to
independent technicians (and not the recalibrations themselves)
comports with the language and intent of section 202(m)(5).
Effective December 1, 1997, manufacturers are required to:
(1) make available to independent technicians all emission-related
reprogramming events (including driveability reprogramming events that
may affect emissions) that were issued prior to December 1, 1997, by
manufacturers and made available to dealerships for MYs 1994 through
1997; and
(2) for reprogramming events that are issued on or after December
1, 1997, make available to independent technicians all emission-related
reprogramming events (including driveability reprogramming events that
may affect emissions) issued by manufacturers for 1994 and later MY
vehicles at the same time they are made available to dealerships.
For each MY, reprogramming need not be provided for recalibrations
performed prior to vehicles entering the stream of commerce (i.e., sale
to first purchaser).
If a manufacturer can demonstrate, to the satisfaction of the
Administrator, that hardware would have to be retroactively installed
on vehicles to meet security measures implemented by the manufacturer,
the manufacturer may request a waiver from the reprogramming
requirements for model years 1994 through 1996.
EPA is providing manufacturers until December 1, 1997, to adopt and
implement security measures, such as encryption or other measures, that
address tampering concerns and concerns regarding proprietary
information. This leadtime will also allow manufacturers to work out
logistical issues related to making reprogramming available to the
potentially large numbers of independent facilities that may be
interested in receiving this capability. Though EPA is allowing
security measures to be implemented by manufacturers, such measures are
not being required by these regulations. EPA believes that
manufacturers are best able to determine the extent to which the
release of this information will endanger the proprietary nature of the
underlying information and/or potentially lead to tampering.
Any method adopted by a manufacturer by which reprogramming will be
made available to independent technicians cannot impose a significant
burden on independent technicians beyond that experienced by
dealerships. For example, manufacturers can sell reprogramming tools
directly to independent technicians or enter into agreements with
aftermarket tool companies whereby the manufacturers provide the tool
companies with the information necessary to build reprogramming tools.
In conjunction with one of these options, manufacturers could transmit
reprogramming events directly to independent technicians by modem from
a main frame or provide them with CD ROMs. The use of a main frame to
make reprogramming available would enable manufacturers to monitor
certain data, such as who is performing reprogramming and the type of
reprogramming that is being requested. In formulating its method of
making reprogramming available to independent technicians, a
manufacturer may request to meet with EPA to discuss whether the method
comports with the requirements of this rule. In the context of avoiding
a significant burden on independent technicians, EPA notes that a
manufacturer reprogramming-only tool should be compatible with generic
portable computers (PCs), or other technology in widespread use in the
future, so that independent technicians are not required to purchase
numerous types of PCs to access each manufacturer's reprogramming
tools.
EPA is concerned that there may be a risk of increased tampering
with the OBD system once it is integrated with the I/M test. However,
EPA believes that the manufacturers have sufficient incentives to adopt
measures that maximize security and protect the OBD system from
tampering. At this time, therefore, EPA is not requiring that
manufacturers adopt security measures. If there is evidence of
tampering that can't be prevented through EPA's enforcement authority,
EPA may find it necessary to promulgate more stringent regulations to
ensure that the integrity of OBD systems is maintained. Such
regulations could include various options, such as mandatory
aftermarket parts certification, banning eraseable computer chips, or
security measures.
K. Regulatory Flexibility Analysis
Summary of Proposal: The Regulatory Flexibility Act of 1980
requires Federal agencies to identify potentially adverse impacts of
Federal regulations upon small entities. In instances where significant
impacts are possible on a substantial number of these entities,
agencies are required to perform a Regulatory Analysis. EPA has
determined that the regulations finalized today will not have a
significant impact on a substantial number of small entities. This
regulation will primarily affect manufacturers of motor vehicles and
motor vehicle engines, a group which does not contain a substantial
number of small entities.
Summary of Comments: Chrysler commented that EPA's conclusion that
an RIA is not required is fatally flawed. Chrysler asserted that the
proposed regulations will impact over twenty thousand small businesses,
i.e., dealers, through major effects on their future business and
profitability. Chrysler stated that dealerships carry costs and
overhead which are not faced by aftermarket repair shops. Chrysler
believes that any regulation which diminishes the ability of
dealerships to effectively compete, by lessening their ability to meet
costs imposed by the nature of the business, clearly constitutes a
significant impact on those businesses, required to be assessed by the
Administrator by law.
NADA also commented that EPA's regulatory impact analysis appears
to have failed to take into account the significant potential impact
its proposed regulations will have on franchised dealership service
operations. NADA asserted that several provisions in the proposed rule
will result in potentially costly anti-competitive impacts on
dealerships. NADA stated its member dealerships are very concerned that
the EPA proposal will serve to undermine the franchise relationship
that exists between dealers and manufacturers. The proposal as written
threatens the huge investments NADA dealerships have made in equipment,
technician training, and information systems by putting dealers at a
competitive disadvantage with those segments of the vehicle maintenance
industry who have not made similar investments. As required by the
Regulatory Flexibility Act, NADA argued it is incumbent upon EPA to
consider these impacts during the development of its final OBD rule.
NADA submitted that this is of particular importance considering the
currently dire economic condition of a
[[Page 40495]]
large number of franchised dealerships across the country.
Analysis of Comments: This rulemaking directly affects only vehicle
manufacturers, which are not small businesses. Therefore, no regulatory
flexibility analysis is necessary. The secondary effects that these
regulations may have on particular smaller businesses (i.e.,
dealerships), which would not be increases in burden, but loss of sole
access to information, should be minor. Moreover, these regulations
generally maintains the status quo that currently exists between
dealerships and independent technicians. Today's regulations should not
greatly affect dealerships or independent technicians, since the vast
majority of the emission-related information required by this rule has,
according to commenters, long been provided voluntarily by the
manufacturers. In its comments submitted August 13, 1993, Association
of International Automobile Manufacturers, Inc. (AIAM), for example,
stated that in spite of the fact that there have been no requirements
mandating the availability of service information, nearly all
manufacturers have made information readily available. According to
AIAM, the aftermarket asserts such information is not available,
because they are unwilling to pay the fair cost of the information.
Other small businesses (i.e., independent technicians) are also not
directly regulated by this rulemaking. Moreover, according to the
statements of many commenters, any secondary effects from these
regulations are likely to be minor, as much of the information required
to be made available under this rulemaking is, according to the
commenters, already available to the aftermarket.
Aftermarket parts manufacturers, whose products are not covered by
the information availability requirements of section 202(m)(5), will be
in the same position following the effective date of this rule as they
were before the effective date. They will be able to design, develop
and manufacture parts as before or they can enter into agreements with
the manufacturers to purchase design specifications.
EPA Decision: A regulatory flexibility analysis is not required,
since there is no significant impact on affected entities.
V. Administrative Requirements
A. Administrative Designation
Under Executive Order 12866, [58 Federal Register 51,735 (October
4, 1993)] the Agency must determine whether the regulatory action is
``significant'' and therefore subject to OMB review and the
requirements of the Executive Order. The Order defines ``significant
regulatory action'' as one that is likely to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or,
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, OMB has notified
EPA that it considers this a ``significant regulatory action'' within
the meaning of the Executive order. EPA has submitted this action to
OMB for review. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
B. Impact on Small Entities
The Regulatory Flexibility Act of 1980 requires Federal agencies to
identify potentially adverse impacts of Federal regulations upon small
entities. In instances where significant impacts are possible on a
substantial number of these entities, agencies are required to perform
a Regulatory Flexibility Analysis. EPA has determined that the
regulations finalized today will not have a significant impact on a
substantial number of small entities. This regulation will also
positively affect independent repair shops and mechanics. The
standardization requirements contained in these regulations will
enhance the ability of independent mechanics to diagnosis and repair
malfunctions.
Therefore, as required under section 605 of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq. I certify that this regulation
does not have a significant impact on a substantial number of small
entities.
C. Unfunded Mandates Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act''), signed into law on March 22, 1995, EPA must prepare a
budgetary impact statement to accompany any proposed or final rule that
includes a Federal mandate that may result in expenditure by State,
local, and tribal governments, in the aggregate; or by the private
sector, of $100 million or more. Under Section 205, EPA must select the
most cost-effective and least burdensome alternative that achieves the
objectives of the rule and is consistent with statutory requirements.
Section 203 requires EPA to establish a plan for informing and advising
any small governments that may be significantly or uniquely impacted by
the rule.
EPA has determined that the action promulgated today does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local or tribal governments in the
aggregate, or to the private sector. Therefore, the requirements of the
Unfunded Mandates Act do not apply to this action.
D. Electronic Copies of Rulemaking Documents
Electronic copies of the preamble and the regulatory text of this
direct final rulemaking are available on the Office of Air Quality
Planning and Standards (OAQPS) Technology Transfer Network Bulletin
Board System (TTNBBS). Instructions for accessing TTNBBS and
downloading the relevant files are described below.
TTNBBS can be accessed using a dial-in telephone line (919) 541-
5742 and a 1200, 2400, or 9600 bps modem (equipment up to 14.4 Kbps can
be accommodated). The parity of the modem should be set to N or none,
the data bits to 8, and the stop bits to 1. When first signing on the
bulletin board, the user will be required to answer some basic
informational questions to register into the system. After registering,
proceed through the following options from a series of menus:
(T) Gateway to TTN Technical Areas (Bulletin Boards)
(M) OMS
(K) Rulemaking and Reporting
At this point, the system will list all available files in the
chosen category in chronological order with brief descriptions. File
information can be obtained from the ``READ.ME'' file. To download a
file, the user needs to choose a file transfer protocol appropriate for
the user's computer from the options listed on the terminal.
TTNBBS is available 24 hours a day, 7 days a week except Monday
morning from 8-12 Eastern Time, when the system is down for maintenance
and backup. For help in accessing the system, call the systems operator
at
[[Page 40496]]
(919) 541-5384 in Research Triangle Park, North Carolina, during normal
business hours Eastern Time.
E. Paperwork Reduction Act
The information collection requirements in this rule have been
approved by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and have been assigned
control number 2060-0104.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to Chief, Information Policy Branch; EPA; 401 M St., S.W. (Mail
Code 2136); Washington, DC 20460; and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503, marked ``Attention: Desk Officer for EPA.''
F. Display of OMB Control Numbers
EPA is also amending the table of currently approved information
collection request (ICR) control numbers issued by OMB for various
regulations. This amendment updates the table to accurately display
those information requirements contained in this final rule. This
display of the OMB control number and its subsequent codification in
the Code of Federal Regulations satisfies the requirements of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and OMB's implementing
regulations at 5 CFR part 1320.
The ICR was previously subject to public notice and comment prior
to OMB approval. As a result, EPA finds that there is ``good cause''
under section 553(b)(B) of the Administrative Procedure Act (5 U.S.C.
553(b)(B)) to amend this table without prior notice and comment. Due to
the technical nature of the table, further notice and comment would be
unnecessary. For the same reasons, EPA also finds that there is good
cause under 5 U.S.C. 553(d)(3).
VI. Authority
Statutory authority for the proposed emission standards is provided
by sections 202(a), 202(m), 208(c), 301(a), and 307(d) of the Clean Air
Act, as amended, 42 U.S.C. 7521(a), 7521(m), 7542(c), 7601(a), and
7607(d).
List of Subjects
40 CFR Part 9
Reporting and recordkeeping requirements.
40 CFR Part 86
Environmental protection, Administrative practice and procedure,
Air pollution control, Motor vehicle pollution, Motor vehicles,
Reporting and recordkeeping requirements.
Dated: July 25, 1995.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR chapter I is
amended as follows:
PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT
The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, 1326, 1330, 1344(d)
and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp. p.
973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 300g-2,
300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 300j-4,
300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-9657,
11023, 11048.
2. Section 9.1 is amended by adding a new entry to the table under
the indicated heading in numerical order to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * *
40 CFR citation OMB control No.
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