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

[Federal Register: December 20, 2005 (Volume 70, Number 243)]
[Rules and Regulations]
[Page 75403-75411]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20de05-15]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 86
[FRL-8005-4]
RIN 2060-AJ77

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

AGENCY: Environmental Protection Agency (EPA).
[[Page 75404]]
ACTION: Final rule.

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 The direct final rule, absent those two withdrawn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final rule that was withdrawn with the revisions suggested by the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

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

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

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

----------------------------------------------------------------------------------------------------------------
Category Examples of regulated entities NAICS codes a SIC codes b
----------------------------------------------------------------------------------------------------------------
Industry...................................... New motor vehicle and engine 33611, 336112, 3711
manufacturers. 336120
----------------------------------------------------------------------------------------------------------------
a North American Industry Classification System (NAICS) Code.
b Standard Industrial Classification (SIC) System Code.

This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities EPA is now aware could potentially
be regulated by this action. Other types of entities not listed in the
table could also be regulated. To determine whether your product is
regulated by this action, you should carefully examine the
applicability criteria in Sec. 86.005-17, Sec. 86.1806-04 and Sec.
86.1806-05 of title 40 of the Code of Federal Regulations. If you have
questions regarding the applicability of this action to a particular
product, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.

Table of Contents

I. Electronic Availability
II. Introduction and Background
III. Requirements of the Final Rule
A. Use of SAE J1939 Communication Protocol Beyond Model Year 2007
B. Applicable Phase-Ins for OBD System Monitoring Requirements
for Federal Vehicles Certifying by Demonstrating Compliance With
California OBD II
C. OBD System Design and Applicable Malfunction Thresholds for
Federal Vehicles Certifying by Demonstrating Compliance With
California OBD II
IV. Other Issues Raised by Industry During the Comment Period
A. Production Vehicle Testing
B. Enforcement
C. Referencing the Final Version of CARB?s OBD II Regulations in
Title 13 California Code of Regulations Sec. 1968.2 (13 CCR 1968.2)
V. Cost Effectiveness
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health & Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Congressional Review Act

I. Electronic Availability

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

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

II. Introduction and Background

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

[[Page 75405]]

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

III. Requirements of the Final Rule

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

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

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

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

[[Page 75406]]

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

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

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

[[Page 75407]]

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

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

IV. Other Issues Raised by Industry During the Comment Period

A. Production Vehicle Testing

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

B. Enforcement

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

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

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

V. Cost Effectiveness

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

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

[[Page 75408]]

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

B. Paperwork Reduction Act

Today's action does not impose any new information collection
burden. The modifications noted above do not change the information
collection requirements submitted to and approved by OMB in association
with the OBD final rulemakings (58 FR 9468, February 19, 1993; and 59
FR 38372, July 28, 1994 under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. However, the Office of Management and
Budget (OMB) has previously approved the information collection
requirements contained in the existing regulations (64 FR 23906) under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
and has assigned OMB control number 2060-0104, EPA ICR number 0783.47.
A copy of the OMB approved Information Collection Requests (ICR) may be
obtained from Susan Auby, Collection Strategies Division; U.S.
Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW.,
Washington, DC 20460 or by calling (202) 566-1672.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

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

D. Unfunded Mandates Reform Act

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

[[Page 75409]]

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

E. Executive Order 13132: Federalism

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires us to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government''.
Under section 6 of Executive Order 13132, we may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by state and local governments, or we consult
with state and local officials early in the process of developing the
proposed regulation. We also may not issue a regulation that has
federalism implications and that preempts state law, unless the Agency
consults with state and local officials early in the process of
developing the proposed regulation.
Section 4 of the Executive Order contains additional requirements
for rules that preempt state or local law, even if those rules do not
have federalism implications (i.e., the rules will not have substantial
direct effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government). Those
requirements include providing all affected state and local officials
notice and an opportunity for appropriate participation in the
development of the regulation. If the preemption is not based on
express or implied statutory authority, we also must consult, to the
extent practicable, with appropriate state and local officials
regarding the conflict between state law and federally protected
interests within the agency's area of regulatory responsibility.
This rule does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This rule updates provisions of an
earlier rule that adopted national standards relating to OBD systems
and the ability of manufacturers to demonstrate Federal compliance
based on demonstration of compliance with California OBD II
regulations. The requirements of the rule will be enforced by the
Federal government at the national level. Thus, the requirements of
section 6 of the Executive Order do not apply to this rule.

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

Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This rule does not have
tribal implications, as specified in Executive Order 13175. Today's
rule would not uniquely affect the communities of American Indian
tribal governments since the motor vehicle fuel and other related
requirements for private businesses in today's rule have national
applicability. Furthermore, today's rule does not impose any direct
compliance costs on these communities and no circumstances specific to
such communities exist that will cause an impact on these communities
beyond those discussed in the other sections of today's document.
This rule does not significantly or uniquely affect the communities
of Indian tribal governments. As noted above, this rule will be
implemented at the Federal level and imposes compliance obligations and
options on private industry. Thus, Executive Order 13175 does not apply
to this rule.

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

Executive Order 13045, ``Protection of Children From Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that 1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and 2) concerns an environmental
health or safety risk that we have reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, section 5-501 of the Executive Order directs us to
evaluate the environmental health or safety effects of the planned rule
on children, and explain why the planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by us.
EPA interprets E.O. 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. This final rule is not subject to E.O. 13045
because it is based on technology performance and not on health or
safety risks.

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

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

I. National Technology Transfer and Advancement Act

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

[[Page 75410]]

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

Statutory and Legal Authority

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

List of Subjects in 40 CFR Part 86

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

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

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

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

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

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

? 2. Section 86.005-17 is amended by adding paragraph (h)(3) and revising
paragraph (j) to read as follows:
* * * * *

Sec. 86.005-17 On-board diagnostics.

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

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

Sec. 86.1806-04 On-board diagnostics.

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

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

Sec. 86.1806-05 On-board diagnostics.

[[Page 75411]]

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

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

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