Amendments to Vehicle Inspection Maintenance Program Requirements
Incorporating the Onboard Diagnostic Check
Related Material
[Federal Register: April 5, 2001 (Volume 66, Number 66)]
[Rules and Regulations]
[Page 18155-18179]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ap01-8]
[[Page 18155]]
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Part II
Environmental Protection Agency
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40 CFR Parts 51 and 85
Amendments to Vehicle Inspection Maintenance Program Requirements
Incorporating the Onboard Diagnostic Check; Final Rule
[[Page 18156]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 85
[FRL-6962-9]
RIN 2060-AJ03
Amendments to Vehicle Inspection Maintenance Program Requirements
Incorporating the Onboard Diagnostic Check
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today's action revises the Motor Vehicle Inspection/
Maintenance (I/M) requirements to: extend the deadline for beginning
onboard diagnostic (OBD) inspections from January 1, 2001 to January 1,
2002; allow areas showing good cause up to an additional 12 months'
delay; allow for a one-time-only, one-cycle phase-in period for the
OBD-I/M check; revise and simplify the failure criteria for the OBD-I/M
check; address State Implementation Plan (SIP) credit modeling for the
OBD-I/M check; and, allow for limited exemptions from some OBD check
failure and rejection criteria for certain model year vehicles. Today's
action also provides additional flexibility to state I/M programs by
allowing such programs to suspend traditional I/M tests on model year
(MY) 1996 and newer, OBD-equipped vehicles provided such vehicles are
subject to a check of the OBD system. Lastly, this action provides
EPA's guidance regarding certain discretionary elements associated with
the successful implementation of the OBD check in an I/M environment.
DATES: This rule will take effect May 7, 2001.
ADDRESSES: Materials relevant to this rulemaking are contained in
Public Docket No. A-2000-16. The docket is located at the Air Docket,
Room M-1500 (6102), Waterside Mall SW., Washington, DC 20460. The
docket may be inspected between 8:30 a.m. and 12 noon and between 1:30
p.m. until 3:30 p.m. on weekdays. A reasonable fee may be charged for
copying docket material.
FOR FURTHER INFORMATION CONTACT: David Sosnowski, Office of
Transportation and Air Quality, Transportation and Regional Programs
Division, 2000 Traverwood, Ann Arbor, Michigan, 48105. Telephone (734)
214-4823.
SUPPLEMENTARY INFORMATION:
I. Table of Contents
II. Summary of Rule
III. Authority
IV. Public Participation
A. Extension of the Implementation Deadline
B. Reducing the Testing Burden: The Continuing Role of
Traditional I/M Tests
C. Reducing the Testing Burden: Technical Issues
D. Reducing the Testing Burden: Legal Issues
E. Retaining the Gas Cap Test
F. OBD-I/M Credit Modeling
G. OBD-I/M Failure Criteria
H. OBD-I/M Rejection Criteria
I. Applicability of Repair Waivers for OBD-equipped Vehicles
V. Discussion of Major Issues
A. Emission Impact of the Proposed Amendments
B. Impact on Existing and Future I/M Programs
VI. Economic Costs and Benefits
VII. Administrative Requirements
A. Administrative Designation
B. Reporting and Recordkeeping Requirement
C. Regulatory Flexibility Act
D. Unfunded Mandates Act
E. Executive Order 13132: Federalism
F. Consultation and Coordination With Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. National Technology Transfer and Advancement Act
I. Congressional Review Act
J. Judicial Review
II. Summary of Rule
Under the Clean Air Act as amended in 1990, 42 U.S.C. 7401 et seq.,
states required to implement vehicle inspection and maintenance (I/M)
programs were further required to incorporate a check of the onboard
diagnostic (OBD) computer as part of those programs. On November 5,
1992, the U.S. Environmental Protection Agency (EPA) published in the
Federal Register (40 CFR part 51, subpart S) a rule related to state
air quality implementation plans for I/M programs (hereafter referred
to as the I/M rule; see 57 FR 52950). At the time the 1992 rule was
published, certification regulations for OBD had not been finalized,
and so EPA reserved space in the I/M rule to address OBD-I/M
requirements at some later date. Since 1992, EPA has twice amended the
I/M rule to address various aspects of the OBD-I/M check--first, on
August 6, 1996, and again on May 4, 1998. EPA is taking action today to
further amend the I/M rule and OBD testing requirements to provide
states with the greater flexibility they need to better meet local
needs, to update requirements based upon technological advances, and to
optimize program efficiency and cost effectiveness.
Today's action will: (1) Extend the current deadline for mandatory
implementation of the OBD-I/M inspection from January 1, 2001 to
January 1, 2002; (2) allow states that show good cause to postpone
program start for up to an additional 12 months (i.e., January 1,
2003); (3) allow I/M programs a one-test-cycle phase-in period for the
OBD-I/M check during which OBD-failing vehicles will only be required
to be repaired if the vehicle also fails a tailpipe emission test; (4)
clarify that I/M programs may (at their discretion) use periodic checks
of the OBD system on model year (MY) 1996 and newer OBD-equipped
vehicles in lieu of (as opposed to in addition to) existing exhaust and
evaporative system purge and fill-neck pressure tests on those same
vehicles; \1\ (5) establish the interim modeling methodology to be used
by states in their State Implementation Plans (SIPs) to account for the
inclusion of the OBD-I/M check into their existing I/M networks, such
method to be used prior to mandatory use of the MOBILE6 emission factor
model as well as subsequent iterations of EPA's mobile source emission
factor model; (6) revise and simplify the current list of Diagnostic
Trouble Codes (DTCs) that constitute the OBD-I/M failure criteria to
include any DTC that leads to the dashboard Malfunction Indicator Light
(MIL) being commanded on; and (7) provide states the opportunity to
exempt certain model year, OBD-equipped vehicles from a limited number
of readiness code rejection criteria, with the number of readiness
exemptions allowed varying by model year.
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\1\ It is important to note that OBDII technology is only
required on MY 1996 and newer vehicles and therefore the OBD-I/M
check is not an option for MY 1995 and older vehicles. For this and
other reasons, tailpipe programs and capacity will be needed for
some time to come.
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The goal of today's action is to update and streamline requirements
and to remove regulatory obstacles that would impede the effective
implementation of the OBD-I/M testing required of all OBD-I/M programs
under the Clean Air Act as amended in 1990. By extending the deadline
by which states must begin implementation of OBD-I/M inspections and by
also allowing a phase-in period for those inspections, EPA hopes to
provide states the time necessary to better educate both the public and
the testing and repair industries regarding this important emission
control technology, and to reduce the potential for start-up
difficulties. EPA also hopes to help states maximize the efficiency and
cost effectiveness of their I/M programs by allowing them to streamline
the overall testing process with regard to MY 1996
[[Page 18157]]
and newer, OBD-equipped vehicles. EPA also wants to make clear that
states that wish to begin implementation of the OBD-I/M check earlier
than the deadline(s) established by this action are encouraged to do so
and may claim credit for the check immediately (per the methodology
described under ``OBD-I/M Credit Modeling'').
It should be pointed out that it is not the goal of this action to
provide comprehensive guidance on how to successfully implement OBD-I/M
testing in an I/M program. Separate guidance addressing the non-
regulatory aspects of OBD-I/M implementation will be released in
conjunction with today's action and made available to the public via
EPA's web site and by request to the FOR FURTHER INFORMATION CONTACT
person listed above.
Today's action is based upon EPA's findings gathered during three
separate OBD-I/M pilot studies, which focused on the following aspects
of OBD-I/M testing: (1) OBD's effectiveness as compared to existing
exhaust emission testing; (2) OBD's effectiveness as compared to
existing evaporative system testing; and (3) the unique implementation
issues associated with incorporating checks of the OBD system into a
traditional I/M setting. Elements of today's action are also based upon
the comments EPA received in response to the September 20, 2000 notice
of proposed rulemaking (NPRM) associated with today's action (see 65 FR
56844) as well as on recommendations made by the OBD Workgroup of the
Mobile Source Technical Review Subcommittee established under the
Federal Advisory Committee Act (FACA). All public comments, EPA's
responses to those comments not addressed here, the results of EPA's
pilot studies, and the FACA workgroup recommendations can be found in
the docket for this action (Public Docket No. A-2000-16). The detailed
basis for each amendment was explained in the September 20, 2000
proposal and will not be repeated here except as appropriate in
response to comments.
III. Authority
Authority for today's action is granted to EPA by sections 182,
202, 207, and 301 of the Clean Air Act as amended (42 U.S.C. 7401, et
seq.).
IV. Public Participation
Written comments on the September 20, 2000 NPRM were received from
14 sources prior to the close of the public comment period on October
20, 2000, including two requests for an extension of the comment
period. In response to these requests for an extension, on October 30,
2000, the public comment period was re-opened for 14 days, and closed
again on November 13, 2000. Between October 20, 2000 and November 13,
2000, an additional 35 sets of comments were received. In addition to
the comments received during the official comment period, EPA also
received late comments from three sources--two sets from commenters
that had not submitted comments during either comment period, and a
third amending comments previously submitted. The commenters fell into
five main categories: individual states and state organizations (24
sets of comments); automotive manufacturing, fuel, and service
industries (eight sets of comments); the I/M testing and equipment
industries (six sets of comments); environmental and health interests
(two sets of comments); and private citizens (12 sets of comments). The
state comments included two state organizations--the Northeast States
for Coordinated Air Use Management (NESCAUM) and State and Territorial
Air Pollution Program Administrators/Association of Local Air Pollution
Control Officials (STAPPA/ALAPCO)--as well as comments from 20 state
environmental agencies (Oregon, New Jersey, Illinois, New Hampshire,
Vermont, Wisconsin, Utah, North Carolina, Missouri, Pennsylvania,
Connecticut, Colorado, Texas, Georgia, Massachusetts, Alaska, Maryland,
California, New York, and Rhode Island). The commenters from the
automotive industry included: Alliance of Automobile Manufacturers
(AAM); Association of International Automobile Manufacturers (AIAM);
Automotive Parts and Service Alliance (APSA); Motor and Equipment
Manufacturers Association (MEMA); Ethyl Corporation (Ethyl); Mitsubishi
Motors of America (Mitsubishi); National Automobile Dealers Association
(NADA); American Automobile Association (AAA); and Automotive Service
Association (ASA). Commenters for the I/M testing industry were
represented by: SPX Corporation (SPX); Environmental System Products,
Incorporated (ESP); Applied Analysis (AA); Waekon Corporation (Waekon);
and Donald Stedman (an inventor of remote sensing devices for assessing
vehicle emissions). Environmental and public health interests were
represented by the American Lung Association which submitted both
individual comments and also took the lead in submitting a separate
letter of comment co-signed by 18 other local health and environmental
organizations. Of the comments received from private citizens, nine
were to transmit and/or support an editorial by Donald Stedman opposing
OBD-I/M testing and EPA's proposal which appeared in the November 6,
2000 issue of The Rocky Mountain News. The remaining comments from
private citizens were either not directly relevant to the specific
issues raised in this rulemaking, or were used to take issue with
individual I/M programs in individual states (specifically,
Pennsylvania and Colorado).
Because of the extensive (and wide-ranging) nature of the comments
received, EPA has prepared a separate, ``Response to Comments''
document which can be found in the docket for this rulemaking (Public
Docket No. A-2000-16) as well as online at: www.epa.gov/otaq/regs/im/
obd/obd-im.htm. In today's action, EPA will summarize and respond to
those major comments submitted during the comment period which were
directly responsive to specific, major elements of the September 20,
2000 NPRM.\2\ Comments which came in after the deadline for public
comment, address specific aspects of the Technical Support Document
(TSD) for this action, or which deal with broader issues related to the
general subjects touched upon in the rulemaking (i.e., I/M- and OBD-
related issues, generally) but which do not focus on specific elements
of the proposal will be addressed in the separate ``Response to
Comments'' document.
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\2\ The September 20, 2000 NPRM also included a technical
amendment which drew three comments in support and no negative
public comment. That amendment and the comments associated with it
are addressed in the separate ``Response to Comments'' document
associated with today's action.
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A. Extension of the Implementation Deadline
1. Summary of Proposal
The current I/M rule established January 1, 2001 as the deadline by
which all areas required to implement
I/M program(s) under the Clean Air Act as amended in 1990 were to begin
testing and failing MY 1996 and newer, OBD-equipped vehicles based upon
a scan of emission control monitoring information stored in the
vehicle's onboard computer. In its September 20, 2000 NPRM, EPA
proposed to extend the deadline for passing and failing MY 1996 and
newer, OBD-equipped vehicles based upon mandatory
OBD-I/M inspections to January 1, 2002. EPA also solicited comment on
whether a slightly longer delay is necessary, given the states'
possible need to revise rules, software, test
[[Page 18158]]
procedures, and SIPs to address the proposed amendments, asking in
particular that states consider the role that public outreach and
technician training will play in their preparation for OBD-I/M testing.
2. Summary of Comments
Of the comments received, only one state (Oregon) opposed delaying
the start-up of mandatory OBD-I/M inspections beyond the current
deadline of January 1, 2001. In its comments, the State expressed
concern over changing OBD-I/M deadlines, and the difficulty that this
has created for the State in trying to decide whether to move forward
with OBD-I/M. Oregon further pointed out that it is required by State
statute to justify any environmental requirement that is more stringent
than EPA requirements. In addition to Oregon, one private citizen,
responding to comments made by his home state regarding the need for a
delay beyond 2002, voiced his opposition for delaying start-up of OBD-
I/M inspections beyond 2001. This commenter also argued against states
claiming that they cannot begin OBD-I/M inspections before EPA's latest
deadline, based upon statutes that bar state regulations from being
``more stringent'' than required by Federal government, pointing out
that switching to OBD-I/M inspections as soon as possible can be
considered to save both time and money (in this commenter's opinion).
Of the nine commenters that supported the proposed delay to January
1, 2002 but explicitly opposed delays beyond that date, five were state
environmental agencies (Illinois, Vermont, Wisconsin, Utah, and
Alaska), four represented the automotive industry (AAM, APSA, AIAM, and
NADA), and one represented the I/M testing industry (SPX). Among the
reasons given for opposing delays beyond 2002 was that it penalizes
and/or hinders states that start OBD-I/M inspections early and is not
justified for outreach reasons because training and outreach materials
have already been developed and are available to the states. In its
comments, SPX indicated that further delays were unnecessary because I/
M testing equipment sold to states like California, New York,
Pennsylvania, Virginia, New Jersey, Massachusetts, Georgia, and Rhode
Island are already equipped to perform OBD-I/M inspections and merely
require a simple software switch to enable that capability. Alaska
requested that the final rule clarify that states that choose to do so
may begin OBD-I/M inspections before the mandatory deadline, and NADA
recommended that EPA provide incentives for early start-up, perhaps by
offering more SIP credit for OBD-I/M inspections under the MOBILE5
emission factor model than was proposed in the September 20, 2000 NPRM.
Six commenters supported a more generic delay in implementing the
OBD-I/M inspection without specifying a specific date. These commenters
included four state environmental agencies (New York, Massachusetts,
Georgia, and Maryland), the American Lung Association (ALA), and the
American Automobile Association (AAA). Among the states, New York
supported additional time for implementation if states demonstrated a
good faith effort toward implementing the OBD-I/M inspection. Maryland
suggested it would support delays beyond 2002 in particular to allow
more data to be gathered regarding the effectiveness of OBD-I/M
inspections and to allow states more time to revise their regulations.
Georgia indicated that it supported an additional, optional delay to
allow states more flexibility and to not over-burden equipment
manufacturers. The ALA indicated that it might support delays beyond
2002 if states indicated it was needed and to provide more time for
outreach efforts, while the AAA, citing its prior experience with
consumer complaints during the early stages of I/M implementation,
recommended that the OBD-I/M inspection be delayed ``until it is clear
that motorists will no longer be unnecessarily burdened and
frustrated.''
Among the 10 commenters supporting delays beyond 2002 were two
state organizations (NESCAUM and STAPPA/ALAPCO), and eight individual
state environmental agencies (Pennsylvania, Texas, Connecticut,
Missouri, North Carolina, Rhode Island, New Hampshire, and New Jersey).
Of the two state organizations recommending extensions beyond the
proposed deadline of January 1, 2002, STAPPA/ALAPCO proposed the more
modest extension of July 1, 2002 for states making a good faith effort
toward implementation. Of the individual states supporting an extension
beyond January 1, 2002, four (North Carolina, Missouri, Connecticut,
and Texas) either supported STAPPA/ALAPCO's recommendation explicitly,
or in spirit. Connecticut indicated that a delay to July 2002 is
desirable to the State because it coincides with the expiration date
for the State's current I/M contract.
The second state organization advocating delays beyond January 1,
2002--NESCAUM--took a hybrid approach, supporting retention of the
proposed 2002 start date for areas without pre-existing I/M programs
while proposing a start date of January 1, 2005 for areas with existing
I/M programs to allow for a more gradual transition to OBD-I/M testing
(citing prior bad experiences with rushing implementation of I/M
measures) as well as to allow for more experimentation within the
programs themselves and to facilitate additional data gathering and
public outreach efforts. Three states (New Jersey, New Hampshire, and
Rhode Island) indicated their support for the NESCAUM proposal, either
by name or by echoing the NESCAUM-proposed deadlines. New Hampshire
indicated its intention to begin OBD-I/M inspections in 2001, and
stipulated that while it supports the NESCAUM proposal, it does not
support delays beyond the dates listed in that proposal. Rhode Island,
in turn, indicated its support of the NESCAUM proposal by citing the
relative newness of its own I/M program (which started January 2000) as
well as the need to amortize equipment costs and its concern that
changing the program so soon after start-up could negatively impact the
ultimate success of the program.
Taking the middle ground between the STAPPA/ALAPCO and NESCAUM
proposals, Pennsylvania proposed delaying implementation of the
OBD-I/M inspection requirement until July 2003. The State also raised
the issue that some states--like Pennsylvania--cannot be more stringent
than Federal regulations as a point for EPA to consider in making its
decision. A variation on this theme was suggested by ASA, which
recommended that the OBD-I/M inspection be offered on a voluntary basis
by 2002 before becoming mandatory in 2003. ASA suggested that the
additional time could be used to gather more data to resolve assorted
issues related to the implementation of OBD-I/M inspections and to do
more in the area of public outreach.
Lastly, two commenters--ESP and its consultant, Peter McClintock of
Applied Analysis--proposed an alternative mechanism for providing
states flexibility with regard to the implementation deadline for OBD-
I/M inspections. Under the ESP proposal, EPA would allow states to
phase-in implementation of OBD-I/M inspection beginning January 1,
2002. Phase-in of the requirement would be achieved by performing the
OBD-I/M inspection on MY 1996 and newer, OBD-equipped vehicles as a
method for screening out clean vehicles from additional testing. Under
this scenario, if an OBD-
[[Page 18159]]
equipped vehicle passed the OBD-I/M inspection it would complete the
inspection process and be considered in compliance with the state's I/M
requirements. If, on the other hand, the vehicle failed the OBD-I/M
inspection, it would then receive a tailpipe inspection to determine if
the vehicle qualifies as a gross emitter. If the vehicle fails the
follow-up tailpipe inspection, it would be required to be repaired to
correct the DTCs identified by the vehicle's OBD system. If, on the
other hand, the vehicle passes its follow-up tailpipe inspection, the
motorist would be allowed to complete the inspection process without
seeking immediate repairs but would be advised that repairs would be
required prior to the next inspection cycle. This phase-in option would
be allowed for one inspection cycle beginning with January 1, 2002.
Under this scenario, full-fledged OBD-I/M inspections--with repair or
waiver being required of all OBD-failing vehicles prior to completion
of the inspection process--would begin no later than January 1, 2003
for annual inspection programs and January 1, 2004 for biennial
programs.
3. Response to Comments
It is clear from the variety of comments received on the start date
issue that states' interests continue to be as varied on the OBD-I/M
check as has historically been the case with I/M programs in general.
The Agency's task in this circumstance is to balance the need to move
forward on this important environmental measure with the needs and
desires of states and other interested parties upon whom the success of
this measure ultimately relies. For example, while EPA has heard from
many states that additional delays are needed, we have also heard from
states who wish to take advantage of the benefits of the OBD-I/M check
as soon as possible, but feel constrained from doing something other
than what EPA minimally requires.\3\ Furthermore, EPA has also received
comment from an I/M equipment supplier (i.e., SPX) suggesting that
states are in many cases already prepared for the OBD-I/M check--at
least as far as the hardware is concerned. While it is easy to conclude
based upon comments such as SPX's that many states are more prepared
for OBD-I/M testing than their comments suggest, the Agency must also
consider the substantial hurdle software development and installation
has proven to be for many operating I/M programs during their start-up
phase. There is no doubt that for many programs even with OBD-I/M
hardware in place, successful start-up of the OBD-I/M check may not be
as easy as characterized by SPX.
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\3\ Both Oregon and Pennsylvania have brought to EPA's attention
state legislative provisions which limit each state's ability to do
more than EPA requires in the area of I/M. In response, the Agency
notes a state which chooses to begin OBD-I/M checks while
discontinuing other, more traditional I/M tests on OBD-equipped
vehicles is arguably reducing rather than increasing the existing
burden on both the test network and the motorist. Interestingly, a
citizen from Pennsylvania made this very point in his written
comments to EPA.
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In developing its response to the many issues and competing
interests raised with regard to OBD-I/M program start-up, EPA attempted
to strike a balance that would provide states as much flexibility as
possible while not constraining those areas that want to move forward
as soon as possible. The Agency has concluded that allowing states the
flexibility provided by the following three options will strike the
balance needed.
The first option echoes the September 20, 2000 NPRM: States
choosing to do so may delay implementation of the OBD-I/M test from the
existing deadline of January 1, 2001 to January 1, 2002.\4\
Furthermore, any I/M program that chooses to do so is free to begin the
OBD-I/M check before January 1, 2002 and may credit the OBD-I/M-tested
portion of their fleet using the methodology described under the
section of today's action entitled, ``OBD-I/M Credit Modeling.'' For
states wanting to start earlier than January 1, 2002, EPA encourages
them to do so. Nothing in this rule is intended to prohibit or
discourage a state from incorporating OBD-I/M testing into its I/M
program before January 1, 2002. The Agency rejected a longer, blanket
delay for introducing the OBD-I/M check in part due to the fact that
even those states arguing for more time have regulations, contracts,
and equipment in place which have at minimum begun to prepare these
areas for the eventual incorporation of the OBD-I/M check. In fact, the
Agency relied on these preparations in granting SIP approvals to the I/
M programs in these states. The Agency does recognize, however, the
significant difference between having these things on paper and being
prepared to move smoothly forward with implementation. In recognition
of these issues EPA provides today for two additional options for
extending the full implementation of the OBD-I/M check beyond January
1, 2002.
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\4\ An I/M program will be considered to have fully incorporated
the OBD-I/M check once all MY 1996 and newer, OBD-equipped vehicles
subject to the program are required to receive the OBD-I/M check and
are also required to be repaired and retested upon failure of the
OBD-I/M check.
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The first of these additional options allows states up to an extra
12 months to begin implementation of the OBD-
I/M check, provided they can show just cause to the Agency that up to
12 months later than January 1, 2002 is ``the best a state can
reasonably do'' in terms of implementing OBD-I/M tests into their I/M
program. Such requests for extension will be subject to approval by the
EPA Administrator and approval or disapproval of these requests will be
subject to notice-and-comment rulemaking. The factors to be considered
by a state in concluding that only a late start will allow for
successful implementation include but are not limited to:
Contractual impediments,
Significant hardware and/or software deficiencies,
Data management software deficiencies,
The need for additional training in the testing and repair
communities, and
The need for additional outreach and public education.
The second of these additional options (which can be adopted
separately or in addition to the up to 12 months' extension discussed
above) allows a state with an existing tailpipe program to adopt a
phase-in approach to help ease the introduction of full-fledged OBD-I/M
testing on MY 1996 and newer, OBD-equipped vehicles. This phase-in
option can be used for one complete test cycle (i.e., for one year in
annual programs and for two years in biennial programs). In this option
the OBD-I/M test is effectively used as a screen to help identify
vehicles that are clean and for which no additional testing will be
required beyond the OBD-I/M test.\5\ However, once the vehicle is
identified as failing the OBD-I/M check, it would then be given a
second-chance tailpipe test to determine if the fault identified by the
OBD-I/M check has reached a point
[[Page 18160]]
where the vehicle's current emission performance is adversely effected.
If the vehicle fails this second-chance tailpipe test, then the vehicle
must be fixed and return for a retest using the OBD-I/M check; if the
vehicle passes the second-chance tailpipe test, then it would be
granted a one-test-cycle grace period during which to seek repairs to
correct the initial OBD-I/M failure. After the first cycle of this
phase-in, however, all MY 1996 and newer, OBD-equipped subject vehicles
would be required to be tested and, if they fail, repaired in
compliance with the OBD-I/M test results.
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\5\ Elsewhere in today's action, EPA concludes that, at its
option, a state may suspend traditional I/M tests like the IM240,
ASM, purge, and fill-neck pressure tests on MY 1996 and newer, OBD-
equipped vehicles once OBD-I/M testing is fully incorporated into
the state's operating program. States concerned that the Agency's
data and analysis of OBD effectiveness are too limited are free to
continue parallel testing of these OBD-equipped vehicles with both
the OBD-I/M and traditional I/M tests. The Agency acknowledges that
engineering principles and design aspects of OBD might lead one to
conclude that the combination of OBD-I/M testing and tailpipe tests
provides additive emission reduction benefits. Such potential
benefits are not currently quantified. EPA will work with states to
develop such credits as appropriate. See the discussion later in
this notice under ``Reducing the Testing Burden.''
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During the phase-in period described above, the test procedure for
MY 1996 and newer, OBD-equipped vehicles shall work as follows: (1) The
vehicle is presented for I/M testing and is given a complete OBD-I/M
test (i.e., the MIL, readiness, and DTC checks); (2) if the vehicle
passes this check it shall be considered a pass for I/M purposes and
the vehicle can be registered (or get a sticker as the case may be);
(3) if the vehicle fails the OBD-I/M check it will then receive the
traditional I/M test(s) used for MY 1996 and newer vehicles prior to
the introduction of the OBD-
I/M check; (4) if the vehicle passes the tailpipe check it can be
registered (or stickered) until the next test cycle when failure of the
OBD-I/M test will result in repairs being required, regardless of the
results of any other test(s) that may be conducted at that time; \6\
and, (5) if the vehicle fails the tailpipe test (again after also
failing the OBD-I/M check) it must be repaired and retested using the
OBD-I/M check for the retest (i.e., it shall be repaired to turn off
the MIL and meet the applicable readiness requirements).
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\6\ During this phase-in cycle, it is recommended that the
motorist be advised to seek repairs to correct the cause of MIL
illumination prior to returning for testing during the next testing
cycle, when such repairs will be mandatory.
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This phase-in approach provides the benefit of faster test times
for clean cars (as determined by the OBD-I/M check) by getting them
successfully through the system very quickly. In addition, the use of
traditional I/M test(s) in tandem with the OBD-I/M check on a subset of
the OBD-equipped fleet failing the initial OBD-I/M check allows the
program to focus on getting the dirtiest OBD-I/M test failures fixed
during this initial, phase-in cycle. In concept, this phase-in approach
is very similar to the use of phase-in cutpoints in a traditional I/M
tailpipe program. Both approaches have the same goal: to keep overall
failure rates low while targeting the dirtiest vehicles for earliest
repair.
Even without a phase-in like the one allowed by today's action, EPA
does not expect the difference between failure rates for the existing
tailpipe test and the OBD-I/M check to be significant. Based upon its
pilot testing, EPA expects an overall increase in failure rate of
approximately 0-4% for the state's entire in-use fleet (at this time,
and depending upon the I/M tailpipe test currently in place for MY 1996
and newer vehicles). It is notable that during this same period of time
older model year vehicles which normally have a higher failure rate on
average and are not equipped with OBD technology will be retiring from
the fleet and largely offsetting the increase on a program-wide basis.
States which choose to use the phase-in option described above may
claim full OBD-I/M credit toward an attainment demonstration \7\
provided the phase-in cycle has been completed and mandatory repair is
required of all OBD-I/M failing vehicles for at least one full test
cycle prior to the I/M area's CAA-established attainment date for the
pollutants for which the I/M program is required. States which do not
complete the phase-in of the OBD-I/M check at least one full test cycle
prior to their attainment deadline may not claim additional credit for
the OBD-I/M test toward their attainment demonstration, but may
continue to claim the level of credit applicable to the tailpipe test
used to second-chance pass OBD-equipped vehicles during the phase-in
period.
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\7\ See discussion of the interim methodology for modeling OBD-
I/M credit under ``OBD-I/M Credit Modeling'' later in this action.
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To summarize, in today's action, EPA is offering states three types
of flexibility with regard to start-up of the OBD-I/M testing
requirement. States may: (1) Delay mandatory implementation until
January 1, 2002; (2) take up to an additional 12 months beyond January
1, 2002 to January 1, 2003 upon a showing of just cause and substantial
need; and/or (3) take up to one additional test cycle to phase-in the
OBD-I/M testing requirement in conjunction with traditional I/M
testing, following the steps described above. These three start-up
options are intended to balance competing goals and provide sufficient
flexibility to the states. The end result of offering these options is
that depending on the length of its cycle, a state may postpone the
date for full OBD-I/M implementation (i.e., mandatory repair of all
subject OBD-equipped vehicles that fail the OBD-I/M check) to as late
as January 1, 2005 (i.e., January 1, 2002 plus one 12 month delay in
addition to a biennial cycle of dual, phase-in testing).
Although the second and third options for extending and/or phasing-
in the full implementation of the OBD-I/M check were not included in
the original NPRM for this rulemaking, EPA believes that these two
additional options represent a logical outgrowth of the comments
received. The Agency further maintains that it is therefore justified
in finalizing these options without re-proposing this element of the
original proposal to address these additional options.
B. Reducing the Testing Burden: The Continuing Role of Traditional I/M
Tests
1. Summary of Proposal
Based upon EPA-led pilot studies that showed the OBD-I/M check to
be at least as effective as traditional tailpipe, purge, and fill-neck
pressure tests when it comes to identifying vehicles in need of repair,
EPA proposed to insert clarifying text into the current I/M rule
indicating that states may reduce the existing testing burden on MY
1996 and newer, OBD-equipped vehicles by relying on the OBD-I/M check
alone. This would replace the current program that required a state to
conduct both its current I/M test(s) as well as the OBD-I/M check, once
the latter becomes mandatory. Such clarifying text would be inserted
into those sections of the
I/M rule currently addressing OBD-I/M testing requirements, such as the
performance standards, test procedure requirements, and data reporting
requirements.
2. Summary of Comments
Many of the comments received regarding the proposal to allow OBD-
I/M-only testing on MY 1996 and newer, OBD-equipped vehicles were aimed
at clarifying and articulating the continuing role of traditional
tailpipe and/or evaporative system tests in I/M programs in light of
EPA's proposal. Three commenters (Massachusetts, NESCAUM, and ESP)
requested that EPA clarify its support for continuing use of existing
I/M tests on MY 1995 and older vehicles, while two commenters (ALA and
ESP) wanted the Agency to stress the need to retain the current I/M
program infrastructure in states--even if the OBD-I/M check alone is
used on a portion of the subject vehicle population. One commenter
(STAPPA/ALAPCO) wanted EPA to clarify that states may add an OBD-I/M
check to the continued operation of their tailpipe program, while
another commenter (ESP) argued that the OBD-I/M check and traditional
tailpipe tests
[[Page 18161]]
are largely complementary with regard to the vehicles they fail and
should therefore be used together. ESP then went on to suggest that EPA
``has determined that it must choose one test or the other, but not
both,'' and that the NPRM reflected EPA's bias in favor of OBD.
Three commenters (AAA, Pennsylvania, and ESP) requested that EPA
provide states flexibility in incorporating the OBD-I/M check into
their I/M programs, while six commenters (Illinois, Vermont, New
Hampshire, Missouri, Georgia, and AAA) advocated the exclusive use of
OBD-I/M testing on MY 1996 and newer, OBD-equipped vehicles (although a
subset of these commenters also suggested that traditional I/M testing
might be appropriate as a fallback to address vehicles with OBD
readiness problems, a comment which will be addressed under the
discussion addressing ``OBD-I/M Rejection Criteria''). Five commenters
(AAMA, AIAM, Mitsubishi, NADA, and one private citizen) voiced their
support for complete replacement of traditional I/M tests on MY 1996
and newer, OBD-equipped vehicles in favor of the OBD-I/M check,
indicating further their opposition to dual-testing options, such as
fallback testing to address readiness monitoring issues.
Several commenters--ALA, ESP, New Jersey, and others--expressed
concern that discontinuing the I/M tailpipe inspection on MY 1996 and
newer, OBD-equipped vehicles would eliminate a valuable source of
information for overseeing vehicle manufacturers and for triggering
emission-related recalls. Several of these commenters suggested that
EPA's proposal would effectively allow ``the fox to guard the hen
house,'' particularly if dealerships are allowed to test and repair
their affiliated manufacturer's product line. Citing recent OBD-related
recalls of Honda and Toyota model vehicles, ALA states: ``The
manufacturer's self-generated OBD data will launch potentially costly
(and embarrassing) recalls. As a result, a manufacturer--and its
affiliated dealers--may have an incentive to cheat.''
3. Response to Comments
It is not EPA's intention to suggest that the use of the OBD-I/M
check on MY 1996 and newer vehicles will or should affect how MY 1995
and older vehicles are tested. These vehicles--which are not equipped
with standardized OBD systems--must continue to be tested using the
tailpipe and/or evaporative system tests currently in place for as long
as necessary for states to meet their CAA goals. Furthermore, EPA
believes that the current I/M testing infrastructure is highly valuable
and necessary to test the MY 1995 and older vehicles in a state's
fleet, at a minimum. EPA also believes that the need to test MY 1995
and older vehicles using traditional I/M testing mechanisms will
continue for many more years to come, though the states themselves
remain the ultimate judge concerning their I/M program needs, based
upon local conditions and fleet age distributions.
In addition, commenters have expressed concerns with regard to the
OBD system's long term durability, and the appropriateness of the OBD
system's failure threshold over the full life of a vehicle. While EPA
is optimistic about the success of OBD systems, until real world aging
of these systems occurs it will not be possible to evaluate the
question of OBD durability. EPA encourages states to take account of
this uncertainty as they consider their I/M infrastructure needs for
future testing of MY 1996 and newer, OBD-equipped vehicles. EPA will be
monitoring these and other issues such as the performance of OBD
systems both during the emissions warranty period of up to 8 years/
80,000 miles as well as during the full useful life of vehicles.
With regard to providing flexibility to the states to dual test
OBD-equipped vehicles, EPA hereby clarifies states are free to utilize
both the OBD-I/M and traditional I/M tests on OBD-equipped vehicles.
The purpose of this action is to provide states more--not less--
flexibility with regard to how they comply with the CAA's requirement
to perform OBD-I/M inspections on OBD-equipped vehicles as part of
their I/M programs. Prior to today's action, the requirement was to
perform both OBD-I/M and traditional I/M tests on MY 1996 and newer,
OBD-equipped vehicles, beginning no later than January 1, 2001. Today's
action merely allows states that wish to do so to suspend the
traditional I/M test on the segment of their fleets that are OBD-
equipped in conjunction with the start-up of OBD-I/M checks on those
same vehicles. States are not obligated by today's action to switch to
OBD-only testing on the OBD-equipped portion of their subject vehicle
fleet; states that choose to do so may continue to perform whatever I/M
inspection they want on OBD-equipped vehicles--provided they also
comply with the minimum, CAA requirement to perform the OBD-I/M check
on these same vehicles as well.
Concerning the suggestion that the OBD-I/M check and traditional
tailpipe tests like the IM240 are complementary, based on the
observation that the two tests tend to fail different universes of
vehicles during the Wisconsin pilot program, it must be pointed out
that the vehicles which pass both tests (approximately 95% of the
fleet) overlap entirely. To argue that the two tests do not agree
focuses on the small fraction which fail one or the other test and not
the overwhelming majority which pass both tests. However, in focusing
on the small fraction of vehicles that fail the IM240 or the OBD-I/M
check but not both, EPA recognizes that both programs will have some
vehicles which could be considered ``false'' failures. For example, a
vehicle in an IM240 program could fail if not fully preconditioned but
would pass on an immediate retest without any intervening repairs.
Similarly, an OBD system could detect a non-recurring problem and store
a DTC which could be detected as a failure in an I/M program but would
self-clear with continued operation of the vehicle. The pilot program
data suggested that at most only 1 to 2 percent of the vehicles tested
had such ``false'' failures. EPA does not expect this false failure
rate to increase with the age or mileage of the fleet. In contrast, we
do expect that the number of real failures detected by either test will
increase with the age and mileage of the fleet and the number of real
failing vehicles detected by both tests will also increase.
Consequently, the percent of failures (real and false) detected by both
tests will increase substantially as the OBD-equipped fleet ages.
With regard to the characterization that it determined in advance
that only one or the other test would prevail as a result of its OBD-I/
M test effectiveness pilots, EPA objects. The Agency received approval
for the design of its OBD tailpipe pilot from the Mobile Sources
Technical Review Subcommittee\8\ prior to beginning its pilot testing
program. The Subcommittee was kept informed with quarterly reports
during the two year test period and an OBD workgroup under the
Subcommittee monitored the entire testing program. The OBD workgroup
was an open workgroup
[[Page 18162]]
which included members from the state I/M agencies, I/M testing
contractors (including ESP), testing equipment manufacturers, the
automotive manufacturing industry, and academic representatives. EPA
believes that conducting the design of the test program and the program
itself in the public view with stakeholder involvement provided greater
objectivity than this comment alleges.
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\8\ The Mobile Source Technical Review Subcommittee (MSTRS) is a
subcommittee of the Clean Air Act Advisory Committee, established
under the 1972 Federal Advisory Committee Act (FACA). The MSTRS
advises EPA regarding mobile source related issues and includes a
wide-range of members representing interested stakeholders from the
mobile source community as well as experts in the field.
---------------------------------------------------------------------------
Concerning the ``fox guarding the hen house'' issue generally, EPA
independently determines the quality of the OBD system, both during the
certification process and as part of EPA's in-use compliance program;
we do not leave this determination to the manufacturers and their
associated dealerships. With regard to dealerships testing their
affiliated manufacturer's product line in decentralized, test-and-
repair based I/M programs, the introduction of OBD-I/M testing does not
change the dynamics of this testing scenario substantively from the
situation that currently exists with decentralized I/M programs in
operation now where dealers and other service providers are allowed to
both test and repair vehicles (albeit with tailpipe and other
traditional I/M testing techniques as opposed to the OBD-I/M check).
The existing I/M rule requires that states conduct covert audits of all
stations in the program's test network with vehicles set to fail the
inspection--specifically to identify fraud arising from the potential
for conflict of interest when testing and repair are performed by a
single entity. There is nothing in today's action that will weaken
these existing requirements. Furthermore, even in a decentralized,
test-and-repair program, not all subject vehicles will go to
dealerships to be tested and fixed. Other service providers will also
participate in the program--service providers without the specific type
of conflict the commenters suggest exist with dealerships. A problem
significant enough to warrant a recall presumably would come to the
program's attention through routine analysis of test results. Should
any abuse occur, it would become obvious to auditors looking at dealer
X's test records that dealer X is failing its brand-name vehicles at a
lower rate than when the same makes and models are tested by other
stations in the test network. Therefore, while the potential for abuse
exists, EPA believes that there are currently mechanisms in place to
detect and correct it.
Concerning the implication that a dealership has an incentive to
withhold OBD-I/M test information that could potentially trigger a
recall, EPA believes the same incentive exists under traditional
tailpipe testing. As indicated above, decentralized I/M programs
currently allow dealerships to test their affiliated manufacturer's
product line. This practice has not stopped EPA or California from
identifying vehicles in need of recall.
It should also be pointed out that the Honda and Toyota cases cited
were not triggered as a result of I/M testing. While I/M tests are
helpful in identifying individual gross polluters in need of repair,
traditional I/M tailpipe tests are not rigorous enough to use as the
basis for a recall of an entire class of vehicles. EPA's (and CARB's)
enforcement efforts with regard to vehicle manufacturers and their
products involve a three-pronged approach. First, the vehicle prototype
is tested as part of the new car certification process. As part of our
certification program, each manufacturer is required to submit
extensive data on their OBD systems. This data is available for review
and taken into consideration by EPA prior to issuing the certificate of
conformity. Second, at EPA's discretion, manufacturers can be subjected
to Selective Enforcement Audits (SEAs) which involve enforcement
quality, end-of-the-line testing to ensure that vehicles are meeting
their certification standards once they actually go into production.
Lastly, there is in-use compliance testing which involves the
independent recruitment and enforcement quality testing of vehicles to
determine if they continue to meet their certification standards in
actual use (which includes a specific evaluation of the OBD system for
vehicles so equipped). Nothing in today's action will weaken or lessen
these current, and ongoing, enforcement efforts. Additionally, EPA
finalized its compliance assurance (CAP 2000) regulations in 1999 (40
CFR 23906) to further emphasize EPA's commitment to ensuring compliance
with the Agency's certification regulations--including OBD--throughout
the useful life of the vehicle.
Nevertheless, EPA wants to acknowledge the concerns that have been
raised by some environmental advocates, some state agencies and other
OBD stakeholders that OBD-I/M testing may raise new and qualitatively
different compliance issues in contrast to traditional tailpipe I/M
testing unanticipated by today's action and existing enforcement and
oversight mechanisms. Some of these concerns focus on conflict-of-
interest issues that could arise if automotive dealerships are allowed
to conduct OBD-I/M testing. EPA acknowledges that the many advantages
of the computerized OBD testing approach could bring with them the need
for some different requirements to ensure the integrity of the overall
program. Therefore, EPA will undertake a public process that includes
stakeholder involvement and continued monitoring by EPA so that the
Agency can ensure program integrity and successful implementation. If
information develops suggesting the need to revise this program, EPA
will consider amending these regulations as appropriate.
C. Reducing the Testing Burden: Technical Issues
1. Summary of Proposal
See ``Summary of Proposal'' for section IV (B)(1) above.
2. Summary of Comments
Many commenters addressing EPA's proposal to reduce the testing
burden on OBD-equipped vehicles raised technical concerns with regard
to EPA's assessment of the effectiveness of OBD-I/M testing as well as
with the OBD system itself. Though many of the issues raised will be
summarized and addressed in the separate ``Response to Comments''
document discussed earlier, EPA nevertheless believes that several of
the more frequently raised issues warrant being discussed here. The
following, therefore, is a subset of the technical issues raised with
regard to EPA's proposal to reduce the testing burden on OBD-equipped
vehicles.
Six commenters (MEMA, ASA, New Jersey, ALA, ESP, and Peter
McClintock of Applied Analysis) stated that there is a need for
continued data gathering on OBD-I/M effectiveness, particularly with
regard to assessing the OBD system's long-term durability. Based upon
the lack of available data on the long-term durability of the OBD
system itself, three commenters (New Jersey, ESP, and ALA) suggested
that EPA warn states that choose to suspend traditional I/M tests on MY
1996 and newer, OBD-equipped vehicles in favor of the OBD-I/M check
that they may need to revert to traditional I/M testing of these
vehicles in the future, depending upon the long-term durability of the
OBD system itself.
Four commenters (ESP, Applied Analysis, New Jersey, and ALA)
expressed concern that the OBD system itself may miss high emitting
vehicles that might be caught if the OBD-I/M check was coupled to a
traditional I/M tailpipe test, like the ASM or IM240. Conversely,
several commenters expressed the opposite concern--that the OBD-I/M
check would fail vehicles that are actually clean. Among the
[[Page 18163]]
technical concerns expressed by commenters with regard to the OBD
system itself, the following four were cited most often:
(1) Several commenters expressed the concern that the OBD system
itself is too sensitive. According to these commenters, the fear of
possible vehicle recalls creates an incentive for manufacturers to
design OBD systems that set DTCs too often and frequently well before
the vehicle's emissions have become a problem. In other words, the
concern is that the OBD-I/M check might allegedly falsely fail vehicles
that are clean. Based upon this premise, the commenters maintained that
the tailpipe test should be used to confirm that OBD-I/M failures
really deserve to be failed.
(2) Several of the same commenters that voiced the first concern
also expressed the opposite concern (i.e., that the OBD system itself
is not sensitive enough). These commenters focused on the fact that the
OBD catalyst monitor is optimized for detecting catalyst malfunctions
leading to excess HC emissions, and concluded from this that the OBD
catalyst monitor is unable to detect malfunctions which only increase
non-HC emissions, like CO and/or NOX. Furthermore, because
the CAA requires that enhanced I/M programs achieve NOX
reductions, a few of these commenters maintained that this omission on
the part of OBD is not only a technical problem, but an allegedly legal
one as well.
(3) Several commenters expressed concern that the OBD system itself
is too frequently ``not ready'' (i.e., some monitors have not been run
to determine whether certain components or systems are functioning
properly). Furthermore, because the emission status of an OBD-equipped
vehicle with unset readiness codes is technically unknown, these
commenters expressed the belief that some high-emitting vehicles may
escape detection without a back-up tailpipe test.
(4) Lastly, several commenters maintained that the OBD system
itself is too simplistic. Because the OBD system does not monitor for
the synergistic impact of multiple, marginal component deterioration,
these commenters raised the possibility that the OBD system may miss
problems that cumulatively result in high emissions.
Regarding the third issue--high emitters missed because of unset
readiness codes--many commenters cited claims made by Peter McClintock
of Applied Analysis (an ESP consultant) based upon data from Wisconsin
and Colorado which reportedly found that vehicles with unset readiness
flags had statistically significant higher levels of emissions. Lastly,
New Jersey expressed concern that relying on OBD-I/M testing would make
it difficult to evaluate the effectiveness of I/M programs.
3. Response to Comments
EPA agrees that the technology of on-board diagnostics needs to be
monitored continually both as the systems age and as new technology is
introduced. Although the current studies used to support this
rulemaking were performed on relatively new vehicles (i.e., six years
old or newer), EPA found nothing in these studies to suggest that an
inherent problem exists in the technology which will be exacerbated
with age or mileage. Furthermore, the Agency has already begun testing
high mileage, OBD-equipped vehicles and the findings of this study
suggest that the OBD system remains durable even at mileages well
beyond 100,000 miles. It should also be pointed out that the onboard
computer which makes the decision as to whether or not to light a MIL
and/or set a DTC is a solid state system and contains no ``triggers''
that change the computer's pass/fail decision-making logic based upon
vehicle age and/or mileage. In fact, incorporation of such a
``trigger'' system would violate both 40 CFR 86.000-16 and section
203(a)(3)(B) of the Clean Air Act. Both sections explicitly prohibit
manufacturers from installing devices on vehicles which would have the
effect of reducing emission control effectiveness. Section 205(a) of
the Act allows for such violations to be fined at the rate of $2,500
for each part or component affected.
Although EPA is optimistic about the durability of OBD-equipped
vehicles, the Agency cannot say that MY 1996 and newer, OBD-equipped
vehicles will never need some form of follow-up tailpipe testing at
some point in the future. Reverting to more traditional
I/M testing of OBD-equipped vehicles could prove a useful and cost
effective backstop to the OBD-I/M check. While EPA does not currently
believe that this is a likely outcome with regard to the OBD-I/M check
based upon the testing done to date on advanced mileage, OBD-equipped
vehicles,\9\ the fact of the matter is that there is no reliable
surrogate for natural vehicle aging that will allow the Agency to
predict with any certainty what will actually happen to OBD-equipped
vehicles as they become significantly older than the vehicles studied
to date. Therefore, EPA plans to continue recruiting and testing OBD-
equipped vehicles as they age, and will revisit its OBD-I/M testing
recommendations and requirements based upon this testing, if and when
such becomes warranted. Furthermore, although EPA is committed to
continuing its study of OBD technology in the future, the Agency does
not believe this should preclude states from taking advantage of this
technology at this time.
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\9\ In recognition of the potential impact of high mileage on
OBD effectiveness, EPA recently completed testing and has begun
analyzing the results from a study of 43 OBD-equipped vehicles with
mileages of approximately 100,000 miles to as high as 273,000 miles.
Early indications suggest that high mileage does not have a
noticeable impact on the effectiveness of the OBD system to detect
needed repairs.
---------------------------------------------------------------------------
Concerning the issue of OBD's potential ``over-sensitivity,'' EPA
points out that it is the job of OBD to ensure that precise fuel
control is maintained to keep the engine operating near or at peak
performance and to ensure that fuel economy and emission targets are
met. All critical emissions-related components must operate within
acceptable tolerances to maintain fuel control and to ensure the
durability of the catalyst and engine components. Otherwise, degraded
driveability, fuel economy, and emissions performance may occur.
Therefore, what may be perceived as ``over-sensitivity'' is actually a
result of OBD's attempt to ensure that such degradation in
driveability, fuel economy, and emission performance does not occur.
This perceived ``over-sensitivity'' is also a sign of one of OBD's
strengths--namely, its ability to identify minor, lower-cost repairs
prior to their becoming more costly repairs. The perception of over-
sensitivity arises from the fact that these repairs are frequently
identified before they have a significant impact on the emission
performance of the vehicle, when they are still capable of preserving
more costly emission control components like the catalyst, which can be
damaged if these early warnings from the vehicle's OBD system are not
heeded.
Concerning OBD's perceived ``under-sensitivity'' (i.e., its current
failure to monitor for NOX- and/or CO-only catalyst
malfunctions as well as its inability to detect the synergistic impact
of minor, but multiple component malfunctions) EPA acknowledges that no
I/M test identifies all of the vehicles in the fleet which are either
broken or which have high emissions. Based on this fact it is possible
that combining different identification methods in an
I/M program through the use of dual testing may increase the ability of
the program to identify some vehicles for repair that would otherwise
be missed under a single test scenario. At this point, however, the
magnitude of such
[[Page 18164]]
a benefit from dual testing remains unknown and EPA does not currently
know what increased value this form of testing may offer. What is
known--based upon EPA's pilot testing--is that repairs identified by
the OBD system as it is currently designed led to NOX
reductions at least as great as those achieved from repairs triggered
by the IM240 test at final cutpoints. Furthermore, EPA believes that
the current OBD catalyst monitoring strategy is adequate to detect most
forms of catalyst deterioration, and that the vast majority of
NOX-related failures will also eventually result in HC-
related failures (and thus will eventually be identified under the
current monitoring strategy). Nevertheless, EPA will continue to assess
the potential for additional credit for dual testing, and will work
with states to develop such credits as appropriate.
Concerning the argument that because the CAA requires enhanced I/M
programs to reduce NOX emissions, allowing states to rely on
OBD-I/M only represents a violation of the Act, EPA disagrees. While it
is true that based on catalyst monitoring alone, OBD-I/M testing may
miss a portion of NOX catalyst failures (i.e, those catalyst
failures which produce only increases in NOX emissions
without also increasing HC emissions), EPA is confident (based upon the
results of the Agency's pilot testing) that OBD's comprehensive
monitoring of all emission control systems and engine operation (such
as the Exhaust Gas Recirculation (EGR) valve, et cetera) is adequate to
identify many other NOX failures. Therefore, EPA concludes
that OBD-I/M testing satisfies the statutory requirement to get
NOX reductions, as well as HC and CO reductions.
Furthermore, even if the OBD catalyst monitor does not currently check
directly for NOX increases, it is still capable of yielding
NOX reductions. In many cases, a catalyst failing for HC
will also produce excessive NOX emissions--emissions which
are then reduced as a by-product of correcting the underlying HC
failure. EPA's pilot studies have confirmed that OBD-I/M testing does
in fact achieve HC, CO, and NOX reductions on a fleet-wide
basis which equal or exceed the reductions currently obtainable from
tailpipe tests such as the IM240. It should also be noted that CARB has
proposed adding monitoring requirements for NOX-only
catalyst malfunctions to be phased-in for MY 2004-2007 vehicles meeting
Low-Emitting Vehicle (LEV) II standards in their upcoming regulatory
amendments (Mail-Out #MSC 99-12, May 26, 1999). EPA agrees with this
proposal and may include a similar proposal as part of its future OBD
regulations.
Concerning the possible use of traditional I/M testing as a
fallback for OBD-equipped vehicles with unset readiness codes, EPA
believes that the readiness issue can be adequately addressed without
resorting to fallback testing by employing the exemptions from the
readiness rejection criteria allowed by today's action (i.e., two or
fewer unset readiness codes for MY 1996-2000 vehicles, and one unset
readiness code for MY 2001 and newer--see discussion under ``OBD-I/M
Rejection Criteria'' later in this action). At this time, the Agency
believes that the technical evaluation that it has performed (and its
review of other evaluations) is consistent with this conclusion. With
regard to the use of tailpipe testing in the case of vehicles which
exceed the readiness exemptions allowed by today's action, the Agency
believes that an exceedingly small number of vehicles will fall into
this category. Review of data from the Wisconsin pilot indicates that
at most 1 to 2 percent of the OBD-equipped fleet may qualify as
exceeding the readiness exemption allowed by today's action; the
percent of vehicles exceeding this readiness exemption is expected to
decrease as improvements to the OBD system are made. The Agency
believes that the best method for dealing with vehicles exceeding the
readiness exemption is to reject them and require that the unset
readiness monitors be set prior to testing as this will maximize the
usefulness of the OBD-I/M system check. However, a state's
discretionary use of limited fallback testing to address this issue is
clearly not prohibited by today's action. Successful programs which
choose to use this type of fallback testing will monitor the rate at
which vehicles exceed the readiness code exemption. An increasing
pattern of vehicles being presented as ``not ready'' at the time of
initial testing may suggest attempts to clear OBD problem codes by
disconnecting and reconnecting the battery without completing
appropriate repairs. EPA expects states to take appropriate action to
address such issues should they arise.
Concerning the claim that OBD not-ready vehicles show a
statistically significant higher rate of emission problems, neither Dr.
McClintock nor the other commenters citing his study supplied EPA with
the data upon which this statistical conclusion was reportedly based.
Nevertheless, EPA is aware that the study used ``fast pass'' tailpipe
emissions data to represent the full IM240 emission levels of
individual vehicles. EPA disagrees with this methodology based upon the
conclusion that so-called ``fast pass'' emission levels are only valid
for establishing gross indicators of whether the vehicle is likely to
be clean or dirty, but cannot be used to identify an actual, absolute
emission measurement that is representative of the vehicle in question.
EPA is aware of an unpublished analysis \10\ which shows that if the
McClintock analysis was performed properly using full-length as opposed
to fast-pass IM240's, then no statistical difference would be found
between the failure rates of ``ready'' versus ``not ready'' vehicles.
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\10\ The results of this unpublished analysis were presented by
Robert Klausmeier, an OBD consultant, to a gathering of states and
other interested parties sponsored by NESCAUM. A copy of this
presentation has been included in the docket for today's action.
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EPA also believes that its own pilot testing provides a basis for
refuting the claim made by Dr. McClintock that current I/M tailpipe
data gathered from I/M test lanes can be used to show that OBD is
failing to identify a large number of high emitting vehicles. As part
of its OBD tailpipe pilot testing, EPA recruited a small number of
vehicles with no MIL illuminated but which appeared to have high
tailpipe emissions based upon testing performed in I/M test lanes in
both Arizona and Colorado. EPA found that of the 17 vehicles procured
meeting these criteria 15 passed a subsequent, quality-controlled IM240
test performed under more consistent, laboratory-controlled conditions
without receiving any repairs. Furthermore, EPA is aware of a test
program which is ongoing in the state of Colorado which has recruited
an additional 12 MIL-off, high lane-based emission vehicles. Of these
12 potential high emitters ``missed'' by OBD, EPA has found that six
were false lane failures \11\ based upon subsequent, laboratory-
controlled confirmatory testing. Among the remaining six vehicles, EPA
has found four trucks which have an OBD design deficiency which the
Agency was aware of prior to this test program and which is a matter of
discussion with the manufacturer. Of the two remaining vehicles, one
was not able to have its emissions verified through Federal Test
Procedure (FTP)
[[Page 18165]]
testing due to the lack of a four-wheel drive dynamometer at the
laboratory performing confirmatory testing and the other vehicle lacked
sufficient documentation to determine the cause of the emissions
problem.
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\11\ It should be noted that the lane recruitment criteria in
the Colorado study included looser IM240 cutpoints than were used in
the EPA OBD tailpipe pilot and that second-chance testing was also
used to lower the potential for lane-based false failures. EPA
believes these differences in lane recruitment criteria account for
the lower percentage of false failures among the lane-performed
IM240's included in the Colorado study as compared to EPA's sample
of 17 vehicles.
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Lastly, with regard to a state's ability to perform program
evaluations after switching to OBD-only testing on MY 1996 and newer,
OBD-equipped vehicles, EPA does not believe that switching to an OBD-
based inspection for I/M prevents a state from evaluating the I/M
program's overall effectiveness. EPA has guidance available (EPA420-S-
98-015, October 1998, ``I/M Program Effectiveness Methodologies'')
which describes methodologies which may be used to evaluate an
operating I/M program. Currently available techniques include the use
of remote sensing technologies and the random, independent sampling of
the fleet with appropriate tailpipe testing. EPA believes that these
techniques are adequate to evaluate OBD-based testing as well as more
traditional I/M programs. Additionally, EPA is willing to work with
states to develop methodologies which they feel are more appropriate
for use on an OBD-and/or non-OBD-tested fleet.
D. Reducing the Testing Burden: Legal Issues
1. Summary of Proposal
See ``Summary of Proposal'' for section IV (B)(1) above.
2. Summary of Comments
Three commenters (ESP, ALA, and Applied Analysis) argued that
Congress meant for enhanced I/M programs to use both tailpipe and OBD-
I/M testing on MY 1996 and newer, OBD-equipped vehicles. ESP further
commented that the CAA requires ``the measurement of tailpipe
emissions'' which means that EPA cannot allow states to suspend
tailpipe testing in favor of OBD-I/M checks because the OBD system does
not measure emissions, but merely infers the potential for increased
emissions by monitoring individual components and systems. To
substantiate its claim that the OBD-I/M check does not qualify as an
``emission test,'' ESP cites Mail-Out #96-34a from the California Air
Resources Board (CARB) which states that OBD systems do not ``measure
tailpipe emissions directly.'' Because EPA's OBD requirements reflect
those adopted by CARB, ESP concludes that CARB's statements regarding
OBD's status as an emission test apply equally to the Federally
certified OBD system.
Citing a DC Circuit Court ruling (Natural Resources Defense
Council, Inc. v. EPA, 22 F.3d 1125, 1143--D.C. Cir. 1994) that found
EPA was required by the CAA to include two tests per covered vehicle in
its enhanced I/M performance standard (i.e., an emission test and a
visual component check), ESP concluded that EPA's proposal to require
only OBD-I/M testing on MY 1996 and newer, OBD-equipped vehicles was in
violation of the DC Circuit Court's ruling. ESP also maintained that
EPA's proposal violates the CAA's requirement that I/M programs be
centralized, based upon ESP's interpretation of the OBD system as being
inherently decentralized (i.e., the actual monitoring system is
installed on each individual vehicle) even if the scan of the OBD
computer is performed at a centralized testing facility. ESP further
argued that the National Highway System Designation Act of 1995 (which
barred EPA from automatically discounting the SIP credit afforded
decentralized I/M programs as compared to centralized I/M programs) did
not change the CAA's requirement that I/M programs be centralized
unless decentralized programs could be proven to be equally effective.
ESP also maintained that Congress indicated its understanding that
OBD is not an emission test by listing both emission testing and
inspection of the onboard diagnostic system as separately required
elements among the minimum program elements to be included in an
enhanced I/M program (see CAA sections 182(c)(3)(C)(v) and (vii),
``Serious Areas--Enhanced Vehicle Inspection Program--State Program'').
ESP further suggested that this separate listing of emission testing
versus OBD inspection prevents EPA from finalizing its proposal to
allow states to reduce the testing burden on OBD-equipped vehicles.
Lastly, two commenters (ESP and Ethyl Corporation) raised
objections regarding the proprietary nature of the OBD monitoring
strategies employed by individual manufacturers. Both commenters argued
that without a full, public disclosure of information claimed as
confidential business information by the vehicle manufacturers when it
was supplied to EPA during the certification process, the public cannot
comment on the adequacy of EPA's proposal to allow the OBD-
I/M check to replace traditional I/M tests on OBD-equipped vehicles.
3. Response to Comments
EPA disputes ESP's claim that the DC Circuit Court ruling cited is
applicable to the issue of whether or not individual enhanced I/M
programs are required to perform both tailpipe emission tests and the
OBD-I/M check on MY 1996 and newer, OBD-equipped vehicles. The cited
ruling addressed the minimum program elements that were to be included
in EPA's enhanced I/M performance standard under CAA section
182(c)(3)(B)(i) but did not address the minimum program elements or
model year coverage required of individual state programs under section
182(c)(3)(C). The performance standard itself does not establish
minimally required program elements; instead, when taken as a whole and
run through the MOBILE emission factor model (along with local area
data for such variables as fleet age distribution, average temperature,
local fuel characteristics, et cetera) the performance standard
generates an area-specific emission reduction target for the state to
meet or beat. It is not unusual for a state's program to differ
substantially from the applicable performance standard with regard to
individual program elements and parameters. For example, while all the
performance standards in the I/M rule include annual testing, the
majority of programs adopted by the states employ biennial testing.
Furthermore, while the DC Circuit Court ruling required EPA to include
emission testing and visual component checks on all subject model years
in its enhanced I/M performance standards (i.e., no model year
exemptions), it made no such finding with regard to individual state
programs. The court certainly did not say that all state programs must
include both OBD-I/M and tailpipe testing on all model years. In fact,
the majority of operating I/M programs include some form of model year
exemption for new and/or older vehicles. It is also routine practice
for a state program to use different test types and standards on
different vehicles, based upon model year and vehicle type. As long as
the state program can get the same or better emission reductions as
would the program assumed in the relevant performance standard, the
state has a great deal of flexibility in defining the specific
combination of program elements it will adopt--provided it meets the
statutory minimum in CAA section 182(c)(3)(C). EPA therefore maintains
that states that exercise their discretion to suspend existing I/M
tests on MY 1996 and newer, OBD-equipped vehicles in favor of the OBD-
I/M check on those same vehicles are merely employing the same sort of
flexibility they currently use with regard to model year exemptions,
test frequency, and
[[Page 18166]]
test type coverage, and that such exemptions are fully consistent with
section 182(c)(3)(C).
Regarding the CAA's intention to require enhanced I/M programs to
include both tailpipe emission testing and OBD-I/M inspections because
``emission testing'' and ``onboard diagnostics'' are listed separately
in the list of mandated elements for enhanced I/M programs--EPA again
disputes ESP's interpretation. First, the CAA does not specify
``tailpipe'' emission testing at any point--just ``emission testing.''
It is EPA's contention that a test to detect emissions from the
vehicle's evaporative system qualifies as an ``emission test'' under
the Act's requirements. Therefore, a state program which chooses to
cover its MY 1996 and newer, OBD-equipped vehicles with the OBD-I/M
check and a separate gas cap evaporative emission test can be
considered to be conducting both an ``emission test'' and an OBD-I/M
check on that particular class of vehicle. Furthermore, the Act does
not state that an emission test is required of every vehicle subject to
the I/M program, merely that the program include some level of emission
testing. To test this interpretation, EPA points to the separate
requirement for OBD-I/M testing. If ESP is correct in maintaining that
the OBD-I/M and emission testing requirements are separate and equal
requirements under the CAA because they are listed separately, and if
ESP further maintains that emission testing is required of all subject
vehicles, then it naturally follows that OBD-I/M testing should be
applicable to all subject model years as well. Though this conclusion
flows from the logic of ESP's argument, it is obviously absurd because
it is impossible to perform an OBD-I/M inspection on vehicles that are
not equipped with an OBD system to begin with (i.e., MY 1995 and older
vehicles). By the same token, EPA maintains that the Act does not
mandate emission testing on all subject vehicles, just that the
enhanced I/M program include emission testing among the program
elements employed.
Regarding ESP's claim that the OBD-I/M check itself is not an
emission test, EPA acknowledges that this is an available
interpretation with regard to the CARB definitions and requirements
cited, but disputes the conclusion that this has any bearing on the
flexibility states may exercise in their development of I/M programs,
per the above discussion. Furthermore, EPA does not agree that allowing
a test such as the OBD-I/M check to replace tests such as the tailpipe,
fill-neck pressure, and purge tests reflects a ``weakening'' of Federal
requirements, but believes it is more appropriately an available
flexibility for states. Based upon its pilot testing, EPA believes that
it has demonstrated that the OBD-I/M check is at least equivalent to
the currently available I/M tailpipe and evaporative fill-neck and
purge tests in terms of reducing emissions and identifying vehicles in
need of repair.
Regarding the Act's requirement for centralized testing, EPA
believes that the OBD-I/M check is a test type and not a network
design. Furthermore, the OBD-I/M check itself is clearly conducted at
the test facility--whether centralized or decentralized--and not in
each vehicle as the MIL is illuminated.
Lastly, with regard to the claim that full disclosure of OBD
certification information is necessary for the public to evaluate EPA's
proposal and for the successful implementation of OBD-I/M in general,
EPA points out that it finalized its Service Information Rule on August
9, 1995 (60 FR 40474). This rule requires that vehicle manufacturers
make available to aftermarket service providers any and all information
needed to make use of a vehicle's emission control diagnostic system.
EPA is currently drafting an NPRM to propose changes to the 1995
regulations to further improve the accessibility of service and repair
information for the automotive aftermarket and I/M programs. We expect
the proposal to be issued in the Spring of 2001. Furthermore, while it
is true that there is some variance from manufacturer to manufacturer
in the design of their systems, EPA believes that all of the
information needed to make use of or comment on the OBD system is or
will be covered under EPA's Service Information Rule as described
above.
In response to the comments EPA received from Ethyl Corporation,
which alleged that a greater volume of information than is currently
available is required for the public to comment on EPA's OBD-I/M
proposal, the Agency does not believe that OBD technology's use in I/M
raises information availability issues separate from our obligations
under the Service Information Rule described above. Furthermore,
today's action does not introduce the OBD-I/M check as an
I/M test; rather, today's action provides states greater flexibility
with regard to the OBD-I/M requirements originally established in 1996.
Arguably, Ethyl's comments would have been more appropriate to that
rulemaking, as opposed to the current action. In addition, in a
separate action Ethyl has petitioned the Agency regarding our CAP 2000
and Heavy-Duty diesel rulemakings to compel the availability of
information similar to the OBD certification information requested here
on similar (if not identical) issues. It is EPA's intention to consider
this comment in its response to that petition and in the context of a
planned NPRM in the Spring of 2001 which will address service
information availability.
Additionally, EPA is working with automobile manufacturers and
Weber State University to develop a Web Site designed specifically for
use by I/M programs that will provide easy access for states to obtain
manufacturer information of particular interest to I/M programs.
Examples of the information that will be found on this Web site when it
is launched include (but is not limited to) diagnostic link connector
locations and technical service bulletins for vehicles with readiness
problems.
It should be noted that as with any new testing element, additional
issues may be identified in the course of implementation. EPA is
committed to continually address new issues regarding OBD-I/M
implementation after this rulemaking goes into effect, and as
appropriate. EPA will also continue to work with manufacturers and I/M
programs to ensure that the information needed by states to
successfully implement the OBD-I/M check is available to them.
E. Retaining the Gas Cap Test
1. Summary of Proposal
While EPA's pilot testing supports allowing states to streamline
their testing programs with regard to MY 1996 and newer, OBD-equipped
vehicles, it also supports EPA's recommendation that states currently
performing the gas cap pressure test on MY 1996 and newer vehicles
retain that test, even after mandatory OBD-I/M inspections are begun.
2. Summary of Comments
Seven commenters (New Jersey, Illinois, Pennsylvania, Missouri,
Colorado, Texas, and ESP) supported retaining a separate gas cap check
that is conducted in addition to the OBD-
I/M check. Two commenters (AIAM and a private citizen) maintained that
the gas cap test should be suspended because: (1) It is redundant on
vehicles equipped with OBD evaporative emission monitors; (2) there
have been documented instances of problems with gas cap testing
equipment; and (3) EPA does not have data to quantify the benefits of
conducting the gas cap check in addition to the conventional OBD-
I/M check.
[[Page 18167]]
3. Response to Comments
EPA's decision to recommend that states retain the gas cap check in
conjunction with the OBD-I/M inspection is based on three factors:
(1) The gas cap pressure test is designed to find leaking gas caps
with an equivalent hole size of less than 0.010 inches in diameter
which is considerably more stringent than the 0.040 inch leak that OBD
is designed to monitor. Although a stricter OBD evaporative leak
detection threshold of 0.020 inches in diameter will be phased-in by MY
2002, this is still less stringent than the current gas cap pressure
test.
(2) Data from the 30 vehicle evaporative emission pilot study shows
that vehicles with an induced leak in the gas cap of 0.020 inches in
diameter emitted significantly more evaporative emissions than the
certification standard. This leaking cap was not detected with an OBD
leak monitor designed to meet the 0.040 inch diameter leak detection
standard.
(3) Data from the Wisconsin I/M program shows a much higher
incidence of gas caps which failed the I/M gas cap check than were
detected by the OBD evaporative emission monitor.
EPA acknowledges that more test data would be desirable to
determine the cost effectiveness of conducting the gas cap test in
conjunction with the OBD-I/M check. If more data are collected which
suggest that the newest OBD evaporative emission monitors (i.e., the
0.020 inch leak monitors) are capable of adequately detecting the vast
majority of leaking gas caps detected by the gas cap pressure test,
then EPA may recommend that states discontinue the separate gas cap
pressure test. However, at present, EPA finds the gas cap pressure test
to be a simple, accurate, and time-efficient supplement to the OBD-I/M
check. Therefore, EPA stands by its original recommendation that states
currently conducting the gas cap pressure test on MY 1996 and newer,
OBD-equipped vehicles continue to conduct this test, even after the
OBD-I/M check becomes mandatory. To claim gas cap testing credit under
MOBILE5, therefore, states will need to continue conducting the gas cap
test, or adjust their credit claims accordingly. In addition, MOBILE6,
when it is released, will allow states that retain the gas cap test on
OBD-equipped vehicles to model additional emission reduction credit for
the gas cap pressure test in addition to that assessed for the OBD-I/M
check alone.
Lastly, concerning the comment that there have been documented
instances of problems with the gas cap test: this comment is based on a
single instance of a flawed design for a single gas cap adapter and was
limited to a single manufacturer's vehicles. The adapter has
subsequently been redesigned and proven to be acceptable for the
vehicles in question.
F. OBD-I/M Credit Modeling
1. Summary of Proposal
EPA proposed to revise the OBD sections of the I/M performance
standards to indicate that for modeling purposes, the OBD-I/M testing
segment of the performance standard overlaps but does not add to the
credit already assessed for testing MY 1996 and newer vehicles.
Furthermore, prior to release of MOBILE6, the credit from OBD-I/M
testing would utilize (as opposed to being added to) the credit already
assessed for the testing of MY 1996 and newer vehicles in the states'
I/M SIPs. Therefore, with the exception of the gas cap test,
traditional I/M tests could be dropped on MY 1996 and newer vehicles in
favor of OBD-I/M testing on those same vehicles without affecting an
area's ability to meet the applicable performance standard.
Effectively, this meant that for areas currently performing IM240 on MY
1996 and newer vehicles, the credit for OBD-I/M testing would equal
IM240 (at whatever cutpoint the state was using on MY 1996 and newer
vehicles prior to the switch to OB--I/M testing), while for areas using
the idle test on these same vehicles, the credit for OBD-I/M testing
would equal the idle test (again, at applicable cutpoints). This ``no
net increase/no net loss'' credit approach was specifically intended to
be an interim modeling methodology, to be used only with the MOBILE5
model (which does not include the capability to model OBD-I/M checks
directly), prior to mandatory use of MOBILE6 and subsequent mobile
source emission factor models (which will include the OBD-I/M check as
a separate, credited I/M program element).
2. Summary of Comments
A significant number of comments were received on the issue of how
much SIP credit should be accorded to the OBD-I/M test prior to release
and mandatory use of the MOBILE6 emission factor model. The minority of
commenters on this issue (five states) supported the proposed policy
and the degree of their support varied. Three of those five--Illinois,
Missouri, and New York--unequivocally supported no credit loss for the
OBD-I/M check being performed in lieu of tailpipe testing as an interim
modeling methodology prior to release and mandatory use of the MOBILE6
emission factor model. New York stated that the policy rewards states
which elected to use more stringent tests. Two other states--Utah and
Colorado--tied their support for the policy to MOBILE6. Utah only
supported the credit if MOBILE6 is released on time (i.e., by late
January 2001), but otherwise supported OBD-
I/M testing being afforded an IM240 level of credit for all programs to
use when performing SIP and conformity modeling. Colorado supported the
proposed credit policy but only until enough new data is gathered to
substantiate a more specific level of OBD-I/M credit. Colorado is
concerned that MOBILE6's OBD-I/M credit assumptions are inflated
because of the State's findings from its own studies of OBD-I/M
effectiveness (see discussion of this issue under ``Reducing the
Testing Burden'').
The majority of comments on OBD-
I/M credit were adverse to EPA's proposed approach. Most supported OBD-
I/M credit at a level higher than proposed. Eight states and STAPPA/
ALAPCO commented explicitly that the OBD-I/M check should be given more
credit, with the majority citing credit equivalent to that afforded the
IM240 tailpipe test as being an appropriate level of credit for
consideration for all I/M programs. Several commenters noted that the
proposed ``no net gain/no net loss'' policy is inequitable because
certain areas have no base I/M tailpipe test upon which to base credit,
and those with idle tests would receive no NOX credit,
although EPA's own pilot testing confirms that OBD-I/M testing does,
indeed, produce NOX emission reduction benefits. One state
commenter even suggested that credit exceeding the IM240 level might be
afforded states which use anti-tampering (ATP) checks in addition to
the OBD-I/M check on MY 1996 and newer, OBD-equipped vehicles. Another
state commenter noted that not only IM240 credit, but also full
evaporative system testing credit should be given for doing the OBD-I/M
check. In addition to the state commenters, two automotive industry
groups also submitted adverse comments to the credit proposal. AAM and
NADA noted that the OBD-I/M check should be given ``enhanced'' or IM240
level credit. One felt this was necessary for equity reasons because
many areas will not actually use MOBILE6 for several years while the
other noted that interim credit may not be necessary if MOBILE6 is
released on schedule. Only one private citizen submitted comment,
noting that OBD-
I/M testing should be given up to two
[[Page 18168]]
times the IM240 level of credit (though the reason for this claim was
unclear).
Miscellaneous comments were also submitted on the OBD-I/M credit
proposal which neither supported nor contested the proposed ``no net
gain/no net loss'' interim modeling methodology proposed for use under
MOBILE5. Comments by three states and NESCAUM reflected concerns about
various modeling issues. NESCAUM expressed concern that MOBILE6 will
not allow the user the option of applying traditional tailpipe testing
to model MY 1996 and newer, OBD-equipped vehicles because the default
I/M option for those vehicles is either the OBD-I/M check, the gas cap
test, or both. California wanted EPA to confirm that it can continue to
use the OBD credit assumptions already included in its alternative,
California-specific EMFAC emission factor model. New Jersey expressed
concern that the proposal is arbitrary and would like to use OBD-I/M
testing solely for its evaporative system testing capabilities, which
the State argues should receive full evaporative system credit. New
Jersey further maintained that EPA's OBD-I/M SIP crediting proposal
should not be finalized until after MOBILE6 has been fully reviewed and
modified (if necessary). Alaska indicated that it read the proposal to
mean that states which begin OBD-I/M testing earlier than required are
not allowed to claim credit for such testing unless they also perform
tailpipe and evaporative system testing. Maryland expressed concern
about the time it is taking to release MOBILE6 and the impact the
release schedule is having on states' ability to develop SIPs.
With regard to evaporative system testing and credits, ESP
supported the proposed retention of gas cap testing, and added that it
also wanted EPA to consider the potential for future, additional credit
for as-yet-undefined, non-OBD-based, alternative evaporative system
tests. Waekon also expressed concern with EPA's crediting of OBD-I/M
inspections and its implications for non-OBD-based evaporative system
testing of OBD-equipped vehicles. In particular, Waekon was concerned
that EPA's crediting proposal and the MOBILE6 emission factor model do
not take into account the fact that the OBD evaporative system
monitoring requirement was phased in over MY 1996-99, so that not all
MY 1996 and newer, OBD-equipped vehicles actually monitor for
evaporative system deficiencies. Waekon argued that the amount of
credit afforded OBD-I/M testing for evaporative system monitoring
should either be reduced, or that additional credit should be allowed
for states that conduct non-OBD-based evaporative system testing of MY
1996 and newer, OBD-equipped vehicles in conjunction with the OBD-I/M
check (based upon the evaporative system monitoring phase-in issue
discussed above).
3. Response to Comments
While some commenters supported the proposal that states see ``no
net gain/no net loss'' of credit for OBD-I/M testing in the interim
period before MOBILE6 is available and required, the majority of
commenters supported providing OBD-I/M testing a higher level of credit
which could be claimed equally by all states performing the OBD-I/M
check. Most of those commenters advocating more credit for the OBD-I/M
check expressed the belief that credit equivalent to that granted to
the IM240 tailpipe test would be an appropriate level of credit for the
OBD-I/M check. EPA was particularly interested to learn of two
potential issues with the current credit proposal: (1) That it does not
account for areas which have no previous tailpipe program upon which to
base the ``no net gain/no net loss'' credit approach, and (2) the
inequity that arises with regard to states doing idle testing, which
would be effectively denied NOX credit for their OBD-I/M
testing (at least until MOBILE6 is available for state use).
In its September 20, 2000 NPRM, the Agency noted that the proposed
``no net gain/no net loss'' credit proposal was intentionally
conservative and designed to anticipate changes in I/M program
assumptions such as in-use deterioration which will be reflected in
MOBILE6. Based upon the equity concerns raised by many of the
commenters, the Agency now believes that it is reasonable to allow
states to claim IM240, fill-neck pressure, and purge test credit under
MOBILE5 during the interim period between the release of MOBILE6 and
its mandated use. While it is known that modeling total I/M performance
with MOBILE6 is expected to show a net credit loss from I/M compared to
what MOBILE5 currently shows (due to numerous changes in in-use
deterioration rates), we acknowledge that trying to anticipate some of
the MOBILE6 change outside the context of the other changes included in
the model is contrary to previous policy with regard to transitioning
between models and leads to inequitable results. Furthermore, separate
from the in-use deterioration issue cited above, the Agency believes
that its pilot testing demonstrates that OBD-I/M testing is at least
equal to the IM240, fill-neck pressure, and purge tests in terms of
comparative emission reduction potential.
It should be stressed that EPA's original proposal was not based
upon any concern with the OBD-I/M check's performance relative to other
I/M tests; we are confident that the OBD-I/M check will reliably
achieve significant emissions reductions (in addition to serving as a
pollution prevention measure, as discussed elsewhere). It is also
important to note that STAPPA/ALAPCO indicated in its comments that a
reconciliation of overall I/M credit should be done once MOBILE6 is
released.\12\ In response to comments received, EPA believes it would
be inappropriate to begin to phase-in one aspect of MOBILE6's many
changes ahead of others and agrees that a separate process (such as the
one STAPPA/ALAPCO suggests) is a more appropriate venue which will
place I/M changes in context with other changes incorporated in the
MOBILE6 model. Therefore, considering that MOBILE6 is expected to be
released soon after this rule takes effect--and considering the
majority of commenters requesting higher, and more generally applicable
credit--EPA has decided it is appropriate to allow states to claim
credit equivalent to IM240,\13\ fill-neck pressure, and purge test
credit for the OBD-I/M check as modeled under MOBILE5.
---------------------------------------------------------------------------
\12\ EPA agrees with STAPPA/ALAPCO's observation, and wishes to
further stress that states will ultimately have to account for this
credit adjustment between MOBILE5 and MOBILE6 in their attainment
and Rate-of-Progress SIPs.
\13\ By ``IM240'' EPA means IM240 at final cutpoints for MY 1996
and newer vehicles.
---------------------------------------------------------------------------
With respect to commenters' requests that the OBD-I/M check also be
assigned credit under MOBILE5 comparable to that received for gas cap,
fill-neck pressure, and/or purge evaporative system testing, EPA agrees
that credit under MOBILE5 is justified for the evaporative system fill-
neck pressure test and the evaporative system purge test, but believes
that the gas cap pressure test should still be performed by those areas
wishing to claim credit for the gas cap pressure test (for reasons
explained under the discussion of ``Retaining the Gas Cap Test'').
Furthermore, the gas cap pressure test credit will be additive to the
OBD-I/M credit under both MOBILE5 and MOBILE6.
With regard to the request that the OBD-I/M check also be assigned
the credit associated with the ATP check under MOBILE5 in addition to
the tailpipe and evaporative system credit already discussed, EPA finds
that such additional credit is not warranted.
[[Page 18169]]
While the OBD-I/M check has been demonstrated to be sufficiently
rigorous to identify the failed or missing components that would be
covered by a typical ATP check, the MOBILE5 model already assumes that
the IM240 has the same ability to detect missing components, and
therefore already factors ATP check credit into the credit assigned the
IM240. Allowing states to credit the OBD-I/M check under MOBILE5 as
being equal to the IM240 plus the ATP check would result in double-
counting credit. EPA therefore rejects the request to include ATP
credit in addition to the credit otherwise allowed the OBD-I/M check
under MOBILE5.
With respect to the miscellaneous comments received regarding OBD-
I/M crediting under MOBILE6, EPA is working to address many of the
commenters' concerns separate from this action. For example, the Agency
is considering the need states may have for modeling tailpipe testing
of MY 1996 and newer, OBD-equipped vehicles under MOBILE6. Special
procedures may be approved after the release of MOBILE6 to deal with
this concern. Concerning California's request that EPA address whether
the State can use the OBD credit assumptions contained in its
alternative, California-specific EMFAC emission factor model series,
EPA has a separate approval process in place to address the EMFAC model
issue and will address this request in the appropriate forum.
Concerning Alaska's reading of the proposal as somehow disallowing OBD-
I/M credit for states that start OBD-I/M testing earlier than required
who also suspend or do not add traditional I/M testing of OBD-equipped
vehicles, EPA concludes that this belief is based upon a
misunderstanding of the proposal. Today's action affirmatively allows
states to suspend traditional I/M tests on MY 1996 and newer, OBD-
equipped vehicles in favor of OBD-only testing on those same vehicles
even before required to do so by today's action. Furthermore, such
states may claim IM240, fill-neck pressure, and purge test credit under
MOBILE5 or the OBD-I/M credit that will be available under MOBILE6.
Waekon Corporation and others have suggested that states should
receive additional credit if they conduct non-OBD-based evaporative
system tests in addition to the gas cap pressure test on OBD-equipped
vehicles that are either ``not ready'' for the evaporative system
monitor or those vehicles for which the OBD evaporative system
monitoring requirement does not apply due to phase-in issues.
Alternatively, it has been suggested that the level of evaporative
emission credit afforded the OBD-I/M check under either MOBILE5 or
MOBILE6 should be reduced to account for the fact that some MY 1996-98
light-duty vehicles and trucks are not equipped with evaporative
emission monitors during the 20, 40, 90 percent phase-in allowance
period that covers those model years. In response to this, EPA points
out that the MOBILE6 model will take the phase-in of the OBD
evaporative system monitoring requirement into account in assessing the
evaporative credit attributable to the OBD-I/M test. MOBILE6 will also
allow states to claim additional credit for conducting the fill-neck
pressure test on that portion of the OBD-equipped fleet that can be
tested in this manner. However, while EPA does not prohibit any I/M
program from conducting functional evaporative system checks on OBD-
equipped vehicles, the Agency also does not believe it is reasonable to
require such alternative tests for vehicles which are ``not ready'' for
the evaporative system monitor at the time of the OBD-I/M test, or for
vehicles which do not have OBD evaporative emission monitors,
particularly during the phase-in model years of 1996-98. The rationale
for this position is based on the minimal air quality benefits gained
from testing a small subset of vehicles, and the untestable nature of
these vehicles. These concerns are discussed below. If a state wishes
to conduct a functional test they should consult the Agency who will in
turn determine the acceptability of the functional test in the I/M
environment and credit it appropriately.
EPA does not require functional tests on OBD-equipped vehicles for
two reasons:
(1) The incremental emission reduction benefit resulting from
testing a fraction of MY 1996-98 vehicles not equipped with evaporative
emission monitors, or those vehicles ``not ready'' for the evaporative
system monitor at the time of the OBD-I/M test, is likely to be
extremely small given the low likelihood of evaporative emission
failures for this small subset of vehicles. Since the introduction of
vehicles manufactured to comply with the enhanced evaporative emission
standard in 1996, and the Onboard Refueling Vapor Recovery (ORVR)
standard in 1998, vehicles have better and more reliable purge systems,
better component durability obtained through material changes, and
better engineered component connectors, making them less likely to
fail.
(2) With the exception of the gas cap pressure test, most I/M
programs do not currently conduct functional evaporative emission tests
on non-OBD-equipped vehicles because of the intrusive and time-
consuming nature of the test(s). EPA therefore believes that--with the
exception of the gas cap pressure test--it is very unlikely non-OBD-
based functional evaporative system testing will be well received for
OBD-equipped vehicles, where the practical hurdles to performing the
test are even higher. Specifically, unless an OBD-equipped vehicle has
an evaporative emission ``service port,'' MY 1996 and later vehicles
which are designed to meet the enhanced evaporative emission standard
are even more difficult to conduct a functional
I/M evaporative emission test on than pre-1996 model year vehicles.
Should an alternative method be developed to conduct I/M evaporative
emission tests on MY 1996 and newer, OBD-equipped vehicles, EPA will
examine the viability of the alternative and make credit determinations
appropriately.
Concerning New Jersey's suggestion that states be allowed to use
the OBD-I/M test exclusively as a replacement for an evaporative system
test before full OBD-I/M testing is otherwise required of the OBD-
equipped fleet, EPA again points out that nothing in today's action
prohibits such an approach. However, because the MIL will illuminate as
a result of problems related to exhaust emission performance as well as
evaporative emission performance, such a program would only selectively
correct problems causing the MIL to illuminate. In some instances, if
not corrected by the traditional I/M program repairs, the MIL may
remain illuminated. We expect programs making early, partial use of the
OBD system will need to provide consumers with extra information
describing this partial use during a phase-in period so that, once the
mandatory program is fully implemented, it will be clear that all
problems causing MIL illumination need to be corrected.
G. OBD-I/M Failure Criteria
1. Summary of Proposal
EPA proposed to simplify the DTC-based OBD-I/M failure criteria to
include any DTC that results in the MIL being commanded on.
Additionally, in the event that the OBD scan reveals DTCs that have
been set but for which the MIL has not been commanded on, EPA
recommended that the motorist be advised that a problem may be pending
but we did not propose to require that the vehicle be failed (unless
other, non-DTC-based failure criteria have been met, such as a failed
bulb check).
[[Page 18170]]
2. Summary of Comments
Nine commenters supported the simplified failure criteria proposed
in the NPRM (Vermont, Missouri, Georgia, AAM, NADA, ASA, ESP, and ALA)
while three commenters (Vermont, Illinois, and MEMA) expressed
reservations regarding various aspects of the proposal. While Vermont
generally supported the proposal, the State opposed EPA's
recommendation that pending DTCs be printed on the test report of
vehicles that otherwise pass the test, indicating the possible
confusion this would cause the motorist. Illinois opposed failing
vehicles based upon the bulb check, fearing that lane inspectors would
confuse the MIL with other dashboard lights. MEMA suggested that EPA's
proposed simplified failure criteria would result in failing vehicles
for non-emission related malfunctions.
Two additional commenters (New York and New Hampshire) also
supported the simplified failure criteria, but pointed out potential
conflicts with other aspects of the OBD-I/M check requirements.
Specifically, EPA was asked to determine: (1) Whether the bulb check
conflicts with 40 CFR 85.2222 (a) which requires that the OBD-I/M check
be conducted with the key-on/engine-running; and, (2) whether 40 CFR
51.357(d), which suggests that a damaged DLC would be grounds for
rejecting a vehicle, conflicts with 40 CFR 85.2207(b), which indicates
that a damaged DLC shall be grounds for failing the OBD-I/M check.
3. Response to Comments
Concerning Illinois' objection to the bulb check, although EPA
recognizes that poorly trained lane personnel may become confused by
the number of possible dashboard lights, the Agency does not believe
this is likely provided training of lane personnel is adequate.
Furthermore, EPA believes that allowing lane personnel to ignore
whether or not the MIL is working establishes a bad precedent with
regard to how seriously the general public responds to MIL-related
issues and could diminish the emission control potential of the OBD
system. Therefore, at this time, EPA has decided to require that the
bulb check remain mandatory as described in the NPRM.
Regarding MEMA's claim that EPA's simplified failure criteria will
result in vehicles being failed for non-emission related malfunctions,
EPA does not believe that such will be the case. The whole purpose of
the OBD system is to monitor components and systems which, should they
deteriorate or malfunction, may result in emissions exceeding 1.5 times
the vehicle's certification standards. When a DTC is set and a MIL
illuminated, that is an indication that the deterioration or
malfunction detected--if not corrected--may lead to emissions exceeding
1.5 times the certification standards. DTCs and MIL illumination are,
by definition, indicators that emission-related repairs are needed.
Furthermore, the OBD system, by warning the motorist of conditions that
may lead to elevated emissions, can itself be considered an emission
control device. Checks of the OBD system via the bulb check and
electronic scan of the onboard computer are therefore necessary to
ensure that the OBD system itself is operating properly.
Concerning whether or not the printing of pending DTCs would result
in confusing the motorist, neither EPA nor Vermont has experience in
this area. Because we do not know the likelihood of this potential
confusion occurring, the Agency is revising its recommendation to allow
individual states to determine for themselves whether or not to provide
the motorist with a printout of pending DTCs.
Concerning the possible conflicts identified in the regulatory
text, EPA has considered both of these comments and the rule text has
been modified to ensure that there is no conflict in the final
regulation on either of these issues.
H. OBD-I/M Rejection Criteria
1. Summary of Proposal
In reviewing data from Wisconsin's OBD-I/M program, EPA found that
a small number of vehicles arriving at the test lane (between 1-6% of
the OBD-equipped fleet, depending upon model year) were presented for
testing with unset readiness codes which would normally be grounds for
rejection under existing OBD-I/M rejection criteria. In investigating
the issue, EPA found that the majority of vehicles with unset readiness
codes were limited to the earliest of the OBD-equipped model years, and
that the cause of the vehicle's unreadiness was largely beyond the
control of the motorist. To avoid unnecessarily inconveniencing
motorists as EPA works with manufacturers to resolve the readiness
issues with these vehicles, the Agency proposed to allow states the
flexibility to permit MY 1996-2000 vehicles with two or fewer unset
readiness codes, and MY 2001 and newer vehicles with only one unset
readiness code to complete their full OBD-I/M inspection without being
rejected. These vehicles would not be exempt from other elements of the
OBD-I/M check. EPA specified that the complete MIL check and scan would
still be run in all cases, and that the vehicle would still be failed
if the MIL was commanded on or any other failure criteria were met.
Furthermore, under the proposal, the vehicle would continue to be
rejected if it was MY 1996-2000 and had three or more unset readiness
codes or was MY 2001 or newer and had two or more unset readiness
codes. The proposal reflected a FACA OBD workgroup recommendation.
The proposed readiness exemptions were intended to reduce the
potential for customer inconvenience during OBD-I/M testing. The
environmental impact of the proposal was deemed negligible, based upon
the small number of vehicles anticipated to be involved (i.e., the
subset of OBD-equipped vehicles in I/M programs with no DTCs and two or
fewer unset readiness codes at the time of testing), the likelihood
that at least some of the readiness codes will be set in time for
subsequent OBD-I/M checks, and the fact that an unset readiness code is
not itself an indication of high emissions.
It should be pointed out that a certain level of unset readiness
codes are a part of normal OBD operation. For example, when a battery
is disconnected during battery replacement or other repair, all
readiness monitors are temporarily reset to ``not ready.'' One of the
purposes of the readiness code for I/M programs is to help determine
whether an attempt has been made to fraudulently clear DTCs by
disconnecting the battery prior to testing. EPA does not believe that
the limited readiness exemptions allowed by today's action will
interfere with OBD's ability to signal such activity because the number
of unset readiness codes in instances of attempted fraud would almost
certainly exceed the limited number allowed under the exemption.
In conjunction with the proposal, EPA also solicited public comment
on alternative approaches to addressing the readiness issue--in
particular, whether vehicles with unset readiness flags should receive
a traditional tailpipe and/or evaporative system test and whether
different tests should be required in lieu of the OBD-I/M test
depending upon which readiness flag has not been set.
2. Summary of Comments
Comments on the readiness exemption proposal were received from 11
state agencies, five organized associations, one automobile
manufacturer, one private citizen, and one I/M test industry
representative. Of
[[Page 18171]]
the 19 commenters, seven supported the proposal for readiness
exemptions but explicitly opposed back-up testing of vehicles with
unset readiness codes: three states (New Hampshire, Vermont, and
Georgia), three organized associations (AAMA, AIAM, and NADA), and one
automobile manufacturer (Mitsubishi).
Four commenters (Illinois, Missouri, Pennsylvania, and AAA)
supported the proposal for readiness code exemptions but expressed a
desire for back-up testing for vehicles that exceed the proposed
exemption limit. In its specific comments, Missouri indicated that it
only supported the use of the IM240 and gas cap test as back-up tests,
but did not support the use of other test types as back-up tests unless
such tests were discounted based upon their poor correlation to the
certification test. Missouri also suggested the possible use of back-up
testing for vehicles with unset catalyst codes as a means for ensuring
consumer protection, especially with regard to warranty coverage. AAA
expressed concern about the rejection of vehicles with unset readiness
codes that are not covered under the readiness exemption, citing the
inconvenience and expense associated with having a dealership perform
driving to set the readiness codes. Pennsylvania expressed the desire
that states be allowed the discretion to conduct back-up testing to
address the readiness issue with the following caveats: (1) Such back-
up testing should not be applied to decentralized programs, and (2)
there should be no loss of credit for those states that opt not to
perform back-up testing.
Five commenters (New Jersey, Colorado, California, ALA, and Peter
McClintock of Applied Analysis) opposed the readiness exemption
proposal and supported the use of back-up testing for all vehicles with
unset readiness codes. In its specific comments, New Jersey supported
dual testing and using the OBD-I/M check as an enhancement to
traditional tailpipe tests, identifying the readiness issue as a reason
why the OBD-I/M check alone cannot be used to replace tailpipe tests.
Specific comments from Colorado called for more flexibility and for the
final rule to address: (1) The readiness on retest issue, and (2) the
potential use of back-up IM240 testing at the time of retest. ALA cited
manufacturer-to-manufacturer OBD strategy differences with regard to
readiness as a deficiency with the OBD concept. Peter McClintock of
Applied Analysis claimed that unready vehicles have statistically
higher emissions (see discussion and response under ``Reducing the
Testing Burden'' earlier in this action) and called for EPA to study
the difference between advisory-only versus mandatory-repair OBD-I/M
programs with regard to readiness variance and the emission impact of
exempting some not-ready vehicles. McClintock also requested that data
collection requirements proposed for deletion be restored and that EPA
add additional requirements to track readiness data.
Lastly, two commenters (Alaska and Maryland) raised more general
issues related to the rejection criteria for the OBD-I/M check. In its
specific comments, Alaska called the proposed readiness exemption a
``one-size-fits-all'' approach and indicated that it wants the
flexibility to do a tailpipe-only test on MY 1996-97 vehicles due to
DLC location and readiness inconsistencies among vehicles in those
model years. The State also indicated that it wants the flexibility to
tailor the OBD-I/M check based upon the pollutant a state needs to
address (citing as an example the desire that CO-only areas be allowed
to ignore evaporative system readiness). Maryland, in turn, requested
more information and guidance with regard to drive cycles, exercising
monitors, and setting readiness codes, while also claiming that most
unset readiness flags are for evaporative system and catalyst monitors,
which means that states could ultimately have problems meeting their
clean air goals. Maryland also requested information concerning the
names and numbers of vehicles that have readiness problems being
addressed by the manufacturers.
3. Response to Comments
As a preface for the discussion to follow, EPA wants to make clear
that the flexibility allowed by today's action is intended exclusively
to avoid inconveniencing motorists for vehicle conditions that are
beyond their control, and that are currently the subject of discussion
between EPA and various manufacturers and in some cases may result in
potential enforcement action. The purpose of today's action is not to
relieve manufacturers of their responsibility to design and market OBD
systems that comply with existing OBD certification requirements. To
help emphasize this point, EPA clarifies here that the obligations of
the automobile manufacturers with regard to OBD equipment are specified
in regulatory section 40 CFR 86.094-17(e)(1): ``Control of Air
Pollution From New Motor Vehicles and New Motor Vehicle Engines:
Regulations Requiring On-Board Diagnostic Systems on 1994 and Later
Model Year Light-Duty Vehicles and Light-Duty Trucks,'' which imposes,
among other things, the obligation to design, build and certify OBD
systems that: ``record code(s) indicating the status of the emission
control system. Absent the presence of any fault codes, separate status
codes shall be used to identify correctly functioning emission control
systems and those emission control systems which need further vehicle
operation to be fully evaluated.'' In promulgating these requirements
on February 19, 1993 the Agency stated: ``The readiness code will
ensure I/M testing personnel and service technicians that malfunction
codes have not been cleared since the last OBD check of the vehicle's
emission-related control systems. This code will be essential * * *
since I/M personnel must be sure that the OBD system has sufficient
time to completely check all components and systems. The readiness code
is also crucial for indicating to service personnel whether any repairs
have been conducted properly.'' Nothing in today's action in any way
changes or otherwise impacts these obligations on the part of vehicle
manufacturers. In fact, EPA has already initiated several
investigations which may result in enforcement actions related to these
requirements.
In addition to the certification requirements for OBD systems
discussed above, EPA separately promulgated test procedures to be used
by state I/M programs when conducting the OBD-I/M check. These I/M-
centered OBD requirements were originally promulgated back in 1996, and
are the requirements that are being amended by today's action. With
regard to readiness, the procedures promulgated back in 1996 required
that all readiness codes be set to ``ready'' prior to conducting a
valid OBD-I/M inspection. At the time this requirement was established,
the earliest OBD-equipped model years were just entering the market and
EPA had no experience with regard to how practical this readiness
requirement would be in practice. Since that time, however, EPA has
conducted several studies of OBD-I/M effectiveness and assorted
implementation issues (as discussed in the preamble to the September
20, 2000 NPRM and the TSD for today's action) and has found that
flexibility is needed with regard to the readiness requirement to help
prevent needlessly inconveniencing motorists. Although the number of
OBD-equipped vehicles with unset readiness codes at the time of initial
testing is small even without the flexibility allowed by
[[Page 18172]]
today's action (i.e., 1-6% of the OBD-equipped fleet, depending on
model year), as a policy matter, EPA finds it reasonable to provide
states with the limited flexibility proposed in its September 20, 2000
NPRM and finalized by today's action. This flexibility applies to I/M
programs only, and does not explicitly or implicitly impact
manufacturers or their obligations with regard to OBD equipment. As
noted above, manufacturers continue to have any and all liabilities
previously established before today's action with regard to the
performance of their OBD systems.
With regard to the use of back-up testing in the case of vehicles
which do not meet the revised readiness criteria, the agency believes
that proper use of this option is limited. Review of the Wisconsin
pilot data indicates that at most 1 to 2 percent of the OBD-equipped
fleet would qualify as exceeding the ``not ready'' criteria promulgated
in today's final rule, and that number is declining. While the Agency
believes that the best method for dealing with these vehicles is to
reject them and allow the unset readiness monitors to be subsequently
set, the use of state discretion in dealing with this issue is allowed.
However, the Agency advises areas adopting back-up testing to address
the readiness issue that they need to monitor the frequency of such
back-up testing to ensure that motorists are not purposefully clearing
codes prior to testing in an attempt to avoid the OBD-I/M inspection.
EPA emphasizes that the purpose of today's action is to provide
some flexibility to vehicle owners and state programs without impairing
the overall environmental benefits achieved by OBD implementation in I/
M programs. Because manufacturers are still required to certify their
vehicles as meeting all readiness code requirements, and are equally
responsible for the proper operation of their OBD systems in-use, EPA
does not believe that the flexibility added by today's rule will affect
the value of the OBD system for both the vehicle owner and State I/M
programs. It is recognized that fully functional OBD systems may
periodically display not-ready codes when presented at an
I/M test. Nevertheless, EPA believes that a fully functional system
will eventually detect any problems in vehicle emission control systems
and that such problems would certainly be detected during the next I/M
inspection. If the system is not functional as a result of an inherent
defect within the particular vehicle model or engine family then EPA
anticipates such functional issues will be corrected either by a
manufacturer or through EPA's enforcement programs.
In response to commenters supporting the readiness exemption
proposal but opposing the use of back-up tailpipe testing, the Agency
agrees. EPA believes that many of the current issues associated with
implementation of the OBD-I/M check reflect a learning curve with
respect to OBD, given that OBDII has only been a universal requirement
for light-duty vehicles and trucks sold in this country since 1996. The
Agency believes that increased familiarity with the technology on the
part of the testing and repair communities as well as public education
and outreach efforts will go a long way toward mitigating many of these
issues. EPA therefore hopes that the states and I/M testing contractors
will perform diligently in executing OBD-I/M programs and resolve
manageable issues in consultation with EPA and the manufacturers.
In response to Missouri and other commenters advocating the use of
back-up testing for vehicles exceeding the proposed readiness exemption
criteria, EPA reiterates its position that states may use discretion in
dealing with this issue and, thus, the flexibility exists for a state
to use back-up testing with no change in credit. However, if a state
feels it should receive additional credit for conducting back-up
testing of any type, the state must make the case to EPA for additional
credit by demonstrating and determining the amount of additional credit
it claims, which EPA will evaluate through the SIP approval process.
In response to specific comments from AAA concerning the
inconvenience of setting readiness codes for non-exempted, ``not
ready'' vehicles, EPA has attempted to identify those vehicles that may
have specific issues with readiness setting and is working with
manufacturers to address those vehicles. Those vehicles which fall
outside of the category of identified problem vehicles should
experience proper readiness setting during normal vehicle operation and
should not require special exemptions beyond those already proposed.
Furthermore, although it is still possible that some vehicles may
arrive for testing with unset readiness codes due to factors such as
vehicle operation and the timing of repairs in relation to the OBD-I/M
check, EPA believes proper outreach encouraging appropriate repair
verification and sufficient lead time in seeking repairs should
alleviate this problem. In addition, many technicians are trained or
encouraged to perform proper repair verification by driving the vehicle
before returning it to the customer to check whether readiness codes
have been set and whether any of the DTCs leading to the original MIL
illumination recur, post-repair. However, since this kind of repair
verification is not a required practice, consumers should insist that
service facilities follow best practices in performing repairs or seek
repair facilities that will follow best practices.
In response to the commenters who oppose the readiness exemption
proposal and want back-up testing for all vehicles with unset readiness
codes, the Agency believes that the use of the OBD-I/M check
exclusively for MY 1996 and newer vehicles is an acceptable means of
evaluating this segment of the vehicle fleet and that use of back-up
tailpipe testing has limited applicability. However, the Agency does
not prohibit states from using their discretion in addressing this
issue and the other issues mentioned by these commenters.
In response to specific comments from New Jersey, EPA's review of
pilot data from Wisconsin indicate that at most 1 to 2 percent of the
OBD-equipped fleet may qualify as exceeding the not-ready exemption
criteria established by today's action, and that number is declining.
Therefore, the readiness issue applies only to a small part of the
fleet and there is little basis to support the claim that the OBM-I/M
check cannot replace traditional I/M testing for OBD-equipped vehicles.
Furthermore, it should be pointed out that traditional I/M tests also
have known problems with regard to the testability of certain vehicles.
For example, four wheel drive vehicles and vehicles with traction
control cannot be tested on loaded-mode tests that use two wheel drive
dynamometers, and some vehicles with automatic transmission cannot be
tested using the two-speed idle test. Despite these testability issues,
however, states have nevertheless successfully implemented traditional
I/M programs. The number of vehicles involved in these cases equal or
exceed the number of vehicles identified as having unset readiness
codes at the time of initial testing. EPA therefore does not believe
that readiness and its implications for testability represent a unique
issue with regard to the OBM-I/M check.
In response to Alaska's request to exclude MY 1996-97 vehicles from
OBM-I/M testing because of concerns regarding DLC location and
readiness issues associated with those model years, EPA believes the
concerns at the base of this request have been largely addressed by the
flexibility allowed
[[Page 18173]]
under today's rule. Furthermore, study has shown that the readiness
issue diminishes with time as more vehicles set their readiness
monitors in normal operation. Regarding DLC locations issues,
experience has shown that this issue diminishes quickly as inspectors
and technicians become proficient. Additionally, comprehensive
databases on DLC locations have been made available and are already
proving to significantly reduce DLC location problems in the field. It
is also important to note that the CAA requires the use of OBM-I/M
checks of vehicles so equipped, and EPA does not see a supportable
justification for excluding these earlier OBD-equipped model years from
the statutory OBM-I/M testing requirement. EPA therefore expects that
states which perform OBM-I/M testing will use the OBD scan for 1996 and
1997 vehicles as required.
Regarding Alaska's desire to ignore DTCs and/or readiness codes not
directly related to the particular pollutant for which an area has been
designated non-attainment, EPA does not believe the CAA's requirement
that OBD systems be inspected and that malfunctions and/or
deterioration identified by such systems be repaired allows for this
kind of discretion. Furthermore, allowing such discretion would largely
invalidate the early-warning capacity of OBD through the MIL eclipsing
effect discussed elsewhere, and would also send mixed signals with
regard to responding to the MIL. Lastly, the emission control systems
on OBD-equipped vehicles are complex, integrated, and inter-related
systems; malfunction in one area can quickly lead to malfunctions in
other areas, so that what starts as an HC problem can rapidly become a
CO problem if not dealt with in a timely manner. Assuming that vehicle
malfunctions can be segregated into pollutant-specific bins grossly
over-simplifies what is, in fact, a complex and inter-dependent system.
In response to comments from Maryland on several vehicle-specific
issues, EPA has identified those vehicles that currently have readiness
issues and has included a list of these vehicles as an appendix to the
guidance document entitled ``Performing Onboard Diagnostic System
Checks as Part of a Vehicle Inspection and Maintenance Program'' (which
is available online at the following web address: www.epa.gov/otaq/
regs/im/obd/obd-im.htm). In addition, the manufacturers that have
identified readiness issues have already been required to make publicly
available technical service bulletins detailing the specific issue,
model year coverage, specific makes and models, and any available
diagnostic information (i.e., driving cycle or operational information)
to aid in setting the readiness codes. Also, EPA is currently drafting
a separate NPRM to propose changes to the Service Information Rule (40
CFR 40474, August, 1995) that will include requirements for
manufacturers to provide diagnostic drive cycles in their service
manuals to aid technicians in exercising monitors and setting readiness
codes. Finally, in response to concern that readiness exemptions could
lead to difficulty in meeting clean air goals, EPA reiterates that the
number of OBD-equipped vehicles with unset readiness codes is quite
small, and is declining. Furthermore, the subset of OBD-equipped
vehicles with unset readiness codes which actually have emission
problems that go unidentified because of these unset readiness codes is
expected to be even smaller, and will eventually be identified once the
readiness codes in question are set.
Lastly, in response to the request from Peter McClintock of Applied
Analysis that the data collection items proposed for deletion be
restored in the final rule, EPA has restored those data collection
elements that would be applicable to those areas that opt to include
some form of dual testing, whether as a back-up test for vehicles with
unset readiness codes, or as a potential source of additional credit
(per earlier discussion under ``Reducing the Testing Burden''). EPA has
added a caveat, however, that these elements are to be gathered only
where applicable.
I. Applicability of Repair Waivers for OBD-equipped Vehicles
1. Summary of Recommendation
Currently, both the CAA and the existing I/M rule provide a minimum
expenditure value for state programs which allow the waiver of vehicles
failing the I/M inspection from further repair obligation for one test
cycle once a certain, minimum amount has been spent on relevant
repairs. For basic I/M programs, these minimum expenditures are $75 for
pre-1981 model year vehicles, and $200 for MY 1981 and newer vehicles;
for enhanced I/M programs, the Act specifies a minimum expenditure for
all vehicles of $450 adjusted to reflect the difference in the Consumer
Price Index (CPI) between the previous year and 1989. Neither the rule
nor the Act specifically addresses the OBM-I/M check when it comes to
qualifying for waivers. However, the Act clearly states that the
minimum amount to qualify for a waiver applies to any failure. Thus,
EPA lacks the legal authority to prohibit states from allowing MY 1996
and newer, OBD-equipped vehicles to qualify for waivers. Nevertheless,
in its September 20, 2000 NPRM, EPA recommended (but did not require)
that states not allow MY 1996 and newer, OBD-equipped vehicles to be
waived prior to receiving repairs to extinguish the MIL and clear any
DTCs for which the MIL was illuminated. EPA also recommended that
states consider providing repair subsidies or some other form of
financial assistance to address hardship cases for OBD-identified
failures that would otherwise be addressed through the waiver process.
EPA made this recommendation because of the fundamental difference
between how OBD-equipped vehicles and non-OBD-equipped vehicles are
diagnosed and repaired. EPA expressed its belief that the minimum
expenditure waiver makes sense for traditional tailpipe and/or
evaporative emission test based repairs because such tests provide
little concrete information concerning the specific cause of failure.
Therefore, the waiver helps protect consumers from trial-and-error
repairs that amount to little more than throwing parts at an
insufficiently isolated problem. OBD, on the other hand, is
specifically designed to help limit the opportunity for trial-and-error
repairs by linking DTCs to specific components and subsystems. OBD does
not just tell the repair technician that there is a problem, but also
identifies what kind of problem and approximately where in the overall
system it is occurring. The Agency also believes that the most
successful use of the OBD system will result in motorists routinely
responding to the MIL when first illuminated, as soon as a problem with
the potential to produce high emissions is detected and before
successful repair becomes more costly. A program which allows repair
waivers should take care so as not to discourage this immediate and
routine motorist response to an illuminated MIL, which could occur if
motorists postpone necessary repairs in hopes that the subsequent I/M
program inspection will render such repairs ``unnecessary'' because of
the waiver option.
2. Summary of Comments
A total of 15 commenters responded to the Agency's waiver
recommendations for OBD equipped vehicles--ten supporting the
recommendation, and five opposing. Four states (New Hampshire, Vermont,
Missouri, and New York) expressed support for EPA's recommendation,
while Missouri suggested specific
[[Page 18174]]
waiver flexibility options that meet that state's specific needs. Four
commenters representing the automobile industry (APSA, AIAM, NADA, and
ASA) submitted supporting comment with most noting the need for
hardship exemptions or subsidies where waivers are disallowed. APSA
also noted the need to actively promote owner response to MILs before
inspection. Two other commenters (ESP and ALA) also supported EPA's
recommendation, and suggested that the Agency reconsider its policy
concerning model year exemptions to encourage prompt motorist response
to illuminated MILs.
Four states (Massachusetts, Alaska, Maryland, and California) and
AAA disagreed with EPA's recommendation. Both Massachusetts and Alaska
expressed concern that waivers might be necessary for older, high
mileage vehicles. AAA noted that waivers are a means of consumer
protection and that although EPA recommends states provide financial
assistance in hardship cases, there is no guarantee that states will
offer such assistance.
3. Response to Comments
EPA's position with regard to waiver policy for OBD vehicles is
presented only as a recommendation, not a requirement, as noted in the
proposal for this rule. The CAA clearly provides states the flexibility
to offer waivers for any failure as long as the minimum expenditure
requirements are met. Section 51.360 of the I/M rule further clarifies
waiver issuance criteria and those requirements are not being amended
in any way with this action today. The Agency's recommendation--that
states consider prohibiting OBD-equipped vehicles from receiving
waivers--is based on the inherent differences between how the OBD-I/M
check and traditional I/M tests identify vehicles in need of repair.
The basis for that recommendation was detailed in the ``Summary of
Proposal'' above and will not be restated here. Nevertheless, EPA did
request comments or suggestions on alternative recommendations. The
majority of commenters supported EPA's recommendation and concurred
that special considerations should be made for hardship cases. The
flexibility options suggested by at least one state are just that--
flexibilities that states may opt to use at their discretion, as long
as minimum monetary waiver requirements are met. Obviously, states
opposed to the recommendation may elect to provide waivers, as long as
statutory and regulatory waiver requirements are met. With regard to
concerns that OBD induced repairs may not be cost effective or may be
more inequitable for low income motorists than is the case with
tailpipe testing, EPA does not agree. Studies have shown that average
repair costs for OBD-identified failures do not generally differ from
average repairs that result from tailpipe testing. In fact, the Agency
maintains that OBD-identified repairs have the potential to be more
effective because of the targeted diagnosis which the technology
offers. The Agency asks that states take the above factors into
consideration in determining how best to address the waiver issue with
regard to MY 1996 and newer, OBD-equipped vehicles.
Regarding the suggestion made by ESP and ALA that EPA consider
eliminating new model year exemptions for OBD-equipped vehicles, the
Agency does not have the legal authority to establish such a
restriction. Nevertheless, EPA appreciates the rationale for wanting to
catch OBD-identified failures as soon as possible and agrees that early
inspection of OBD-equipped vehicles could serve as an incentive to
stimulate timely motorist response to illuminated MILs. Furthermore,
early inspection of OBD-equipped vehicles could help ensure that OBD-
identified failures are addressed within the warranty period for such
repairs, thus providing not only environmental protection, but also
consumer protection. Lastly, given the speed with which the OBD-I/M
check can be performed, the Agency believes the additional testing
burden could be modest, and may be worth states' reconsidering their
model year coverage, given the potential benefits discussed above.
V. Discussion of Major Issues
A. Emission Impact of the Proposed Amendments
Today's action clarifies existing flexibility currently available
to states with regard to exempting specific model years from specific
program requirements. It also provides an incentive for states to
optimize the efficiency and cost effectiveness of their existing
programs. Based upon its pilot testing, EPA believes that a program
relying on OBD-I/M checks for MY 1996 and newer, OBD-equipped vehicles
will just as effectively identify problem vehicles as any existing
program combining IM240 exhaust testing with evaporative system purge
and fill-neck pressure tests. However, nothing in today's action bars
states from continuing their existing I/M tests in conjunction with
OBD-I/M testing on MY 1996 and newer, OBD-equipped vehicles, should
they so desire.
Data and analyses currently available to EPA are insufficient to
establish any additional HC, CO, or NOX credit due to
conducting loaded mode tests such as the ASM or IM240 in conjunction
with the OBD-I/M test. As currently designed, the OBD monitoring
strategy manufacturers are employing to determine catalyst efficiency
tends to be optimized for identifying deterioration or malfunctions
leading to increased HC emissions. EPA believes that the catalyst
problems which would impact CO or NOX performance would also
tend to impact HC emission performance. However, some vehicles may be
more sensitive to CO or NOX deterioration and therefore
could fail for these pollutants under a traditional I/M exhaust test
before deterioration of the catalyst's HC conversion efficiency was
great enough to be detected by current catalyst OBD monitoring
strategies. Furthermore, it is also possible that states that choose to
engage in limited dual testing of vehicles with unset readiness
monitors may also identify some additional high HC, CO, and/or
NOX emitters that would otherwise be missed by OBD-only
testing under the limited unset readiness exemption provided in today's
action. Because we see no good regulatory reason to prohibit a state
from voluntarily pursuing such additional emission benefits, EPA
invites interested states to develop the information necessary to
quantify any additional SIP credit for either full or limited dual
testing, based upon actual, operating program data. EPA will determine
the adequacy of these demonstrations through rulemaking on a case-by-
case basis.
B. Impact on Existing and Future I/M Programs
States with approved I/M SIPs will not have to remodel the emission
reduction potential of their I/M programs if they choose to exempt MY
1996 and newer, OBD-equipped vehicles from traditional I/M tests in
favor of mandatory OBD-I/M checks on those same vehicles, provided no
other programmatic changes are made. If, however, a state chooses to
modify its program another way, then a revised
I/M SIP and new modeling may be necessary. Nevertheless, it is
important to note that today's action is aimed at lessening the overall
burden on states while also improving program efficiency and cost
effectiveness; the action does not increase the existing burden on
states, provided states do not make other changes to their programs.
[[Page 18175]]
VI. Economic Costs and Benefits
Today's action provides states with an incentive to increase the
cost effectiveness and efficiency of their existing I/M programs. The
action will lessen rather than increase the potential economic burden
on states. Most significantly, today's action allows states the
discretion to suspend traditional I/M tests on MY 1996 and newer, OBD-
equipped vehicles in favor of conducting the OBD-I/M check on these
same vehicles. This constitutes a net lessening of the burden relative
to the requirement in place prior to today's action (i.e., that MY 1996
and newer, OBD-equipped vehicles receive both the traditional I/M
test(s) and the OBD-I/M check). Furthermore, states are under no
obligation, legal or otherwise, to modify existing plans meeting the
previously applicable requirements as a result of today's action.
VII. Administrative Requirements
A. Administrative Designation
It has been determined that these amendments to the I/M rule do not
constitute a significant regulatory action under the terms of Executive
Order 12866 and this action is therefore not subject to OMB review. Any
impacts associated with these revisions do not constitute additional
burdens when compared to the existing I/M requirements published in the
Federal Register on November 5, 1992 (57 FR 52950) as amended. Nor do
these amendments create an annual effect on the economy of $100 million
or more or otherwise adversely affect the economy or the environment.
This action is not inconsistent with nor does it interfere with actions
by other agencies. It does not alter budgetary impacts of entitlements
or other programs, and it does not raise any new or unusual legal or
policy issues.
B. Reporting and Recordkeeping Requirement
There are no additional information requirements in these
amendments which require the approval of the Office of Management and
Budget under the Paperwork Reduction Act 44 U.S.C. 3501 et seq.
C. Regulatory Flexibility Analysis
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. EPA has also
determined that this rule will not have a significant economic impact
on a substantial number of small entities. For purposes of assessing
the impact of today's rule on small entities, small entities are
defined as including small government jurisdictions, that is,
``governments of cities, counties, towns, townships, villages, school
districts, or special districts, with a population of less than
50,000.'' The basic and enhanced I/M requirements however only apply to
urbanized areas with population in excess of either 100,000 or 200,000
depending on location.
Therefore, after considering the economic impacts of today's final
rule on small entities, EPA has concluded that this action will not
have a significant economic impact on a substantial number of small
entities. This final rule will not impose any requirements on small
entities, since all jurisdictions effected by the rule exceed the
definition of small government jurisdictions. Furthermore, the impact
created by this action does not increase the preexisting burden of the
existing rules which this action amends.
D. Unfunded Mandates Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule where the estimated costs to State, local, or tribal
governments, or to the private sector, will be $100 million or more.
Under section 205, EPA must select the most cost-effective and least
burdensome alternative that achieves the objective 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 impacted by the rule. To the extent that today's
action would impose any mandate at all as defined in section 101 of the
Unfunded Mandates Act upon the state, local, or tribal governments, or
the private sector, as explained above, this rule is not estimated to
impose costs in excess of $100 million. Therefore, EPA has not prepared
a statement with respect to budgetary impacts. As noted above, this
rule offers opportunities to states that enable them to lower economic
burdens relative to those resulting from the currently existing I/M
rule which today's action amends.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, EPA 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 EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA 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.
Today's action 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. On the contrary, the intent of
today's amendments is to provide states greater flexibility with regard
to pre-existing regulatory requirements for vehicle inspection and
maintenance (I/M) programs. Thus, the requirements of section 6 of the
Executive Order do not apply to this proposal.
F. Consultation and Coordination With Indian Tribal Governments
On November 6, 2000, the President issued Executive Order 13175 (65
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal
Governments.'' Executive Order 13175 took effect on January 6, 2001,
and revokes Executive Order 13084 (Tribal Consultation) as of that
date. EPA developed this final rule, however, during the period when
Executive Order 13084 was in effect; thus, EPA addressed tribal
considerations under Executive Order 13084.
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal
[[Page 18176]]
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 13084 requires EPA to provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.'' Today's action does not significantly or uniquely affect
the communities of Indian tribal governments. Today's action does not
create a mandate on tribal governments or create any additional burden
or requirements for tribal government. The action does not impose any
enforceable duties on these entities. Accordingly, the requirements of
section 3(b) of Executive Order 13084 do not apply to this proposal.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (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 EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. EPA
interprets Executive Order 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. Today's action is not subject to Executive
Order 13045 because it is not economically significant under Executive
Order 12866 and because it is based on technology performance and not
on health or safety risks.
H. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA) directs all Federal agencies to use voluntary
consensus standards instead of government-unique standards in their
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., material specifications, test methods,
sampling and analytical procedures, business practices, etc.) that are
developed or adopted by one or more voluntary consensus standards
bodies. Examples of organizations generally regarded as voluntary
consensus standards bodies include the American Society for Testing and
Materials (ASTM), the National Fire Protection Association (NFPA), and
the Society of Automotive Engineers (SAE). The NTTAA requires Federal
agencies like EPA to provide Congress, through OMB, with explanations
when an agency decides not to use available and applicable voluntary
consensus standards.
Today's action does not involve technical standards. Therefore, EPA
is not considering the use of any voluntary consensus standards.
I. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804 (2).
J. Judicial Review
Under section 307(b)(1) of the Act, EPA hereby finds that these
regulations are of national applicability. Accordingly, judicial review
of this action is available only by filing of a petition for review in
the United States Court of Appeals for the District of Columbia Circuit
within 60 days of publication in the Federal Register. Under section
307(b)(2) of the Act, the requirements which are the subject of today's
rule may not be challenged later in judicial proceedings brought by EPA
to enforce these requirements. This rulemaking and any petitions for
review are subject to the provisions of section 307(d) of the Clean Air
Act.
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds,
Transportation.
40 CFR Part 85
Environmental protection, Confidential business information,
Imports, Labeling, Motor vehicle pollution, Reporting and recordkeeping
requirements, Research, Warranties.
Dated: March 28, 2001.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, part 51 and 85 of chapter
I, title 40 of the Code of Federal Regulations are amended to read as
follows:
PART 51--[AMENDED]
1. The authority citation for Part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
2. Section 51.351 is amended by revising paragraph (c) to read as
follows:
Sec. 51.351 Enhanced I/M performance standard.
* * * * *
(c) On-board diagnostics (OBD). The performance standard shall
include inspection of all 1996 and later light-duty vehicles and light-
duty trucks equipped with certified on-board diagnostic systems, and
repair of malfunctions or system deterioration identified by or
affecting OBD systems as specified in Sec. 51.357. For States using
some version of MOBILE5 prior to mandated use of the MOBILE6 and
subsequent versions of EPA's mobile source emission factor model, the
OBD-I/M portion of the State's program as well as the applicable
enhanced I/M performance standard may be assumed to be equivalent to
performing the evaporative system purge test, the evaporative system
fill-neck pressure test, and the IM240 using grams-per-mile (gpm)
cutpoints of 0.60 gpm HC, 10.0 gpm CO, and 1.50 gpm NOX on
MY 1996 and newer vehicles and assuming a start date of January 1, 2002
for the OBD-I/M portion of the performance standard. This interim
credit assessment does not add to but rather replaces credit for any
other test(s) that may be performed on MY 1996 and newer
[[Page 18177]]
vehicles, with the exception of the gas-cap-only evaporative system
test, which may be added to the State's program to generate additional
HC reduction credit. This interim assumption shall apply even in the
event that the State opts to discontinue its current I/M tests on MY
1996 and newer vehicles in favor of an OBD-I/M check on those same
vehicles, with the exception of the gas-cap evaporative system test. If
a State currently claiming the gas-cap test in its I/M SIP decides to
discontinue that test on some segment of its subject fleet previously
covered, then the State will need to revise its SIP and I/M modeling to
quantify the resulting loss in credit, per established modeling policy
for the gas-cap pressure test. Once MOBILE6 is released and its use
required, the interim, MOBILE5-based modeling methodology described in
this section will be replaced by the OBD-I/M credit available from the
MOBILE6 and subsequent mobile source emission factor models.
* * * * *
3. Section 51.352 is amended by revising paragraph (c) to read as
follows:
Sec. 51.352 Basic I/M performance standard.
* * * * *
(c) On-board diagnostics (OBD). The performance standard shall
include inspection of all 1996 and later light-duty vehicles equipped
with certified on-board diagnostic systems, and repair of malfunctions
or system deterioration identified by or affecting OBD systems as
specified in Sec. 51.357. For States using some version of MOBILE5
prior to mandated use of the MOBILE6 and subsequent versions of EPA's
mobile source emission factor model, the OBD-I/M portion of the State's
program as well as the applicable I/M performance standard may be
assumed to be equivalent to performing the evaporative system purge
test, the evaporative system fill-neck pressure test, and the IM240
using grams-per-mile (gpm) cutpoints of 0.60 gpm HC, 10.0 gpm CO, and
1.50 gpm NOX on MY 1996 and newer vehicles and assuming a
start date of January 1, 2002 for the OBD-I/M portion of the
performance standard. This interim credit assessment does not add to
but rather replaces credit for any other test(s) that may be performed
on MY 1996 and newer vehicles, with the exception of the gas-cap-only
evaporative system test, which may be added to the State's program to
generate additional HC reduction credit. This interim assumption shall
apply even in the event that the State opts to discontinue its current
I/M tests on MY 1996 and newer vehicles in favor of an OBD-I/M check on
those same vehicles, with the exception of the gas-cap evaporative
system test. If a State currently claiming the gas-cap test in its I/M
SIP decides to discontinue that test on some segment of its subject
fleet previously covered, then the State will need to revise its SIP
and I/M modeling to quantify the resulting loss in credit, per
established modeling policy for the gas-cap pressure test. Once MOBILE6
is released and its use required, the interim, MOBILE5-based modeling
methodology described in this section will be replaced by the OBD-I/M
credit available from the MOBILE6 and subsequent mobile source emission
factor models.
* * * * *
4. Section 51.356 is amended by adding a new paragraph (a)(6) to
read as follows:
Sec. 51.356 Vehicle coverage.
* * * * *
(a) * * *
(6) States may also exempt MY 1996 and newer OBD-equipped vehicles
that receive an OBD-I/M inspection from the tailpipe, purge, and fill-
neck pressure tests (where applicable) without any loss of emission
reduction credit.
* * * * *
5. Section 51.357 is amended by revising paragraphs (a)(5),
(a)(12), (b)(1), (b)(4) and (d) introductory text to read as follows:
Sec. 51.357 Test procedures and standards.
* * * * *
(a) * * *
(5) Vehicles shall be rejected from testing if the exhaust system
is missing or leaking, or if the vehicle is in an unsafe condition for
testing. Coincident with mandatory OBD-I/M testing and repair of
vehicles so equipped, MY 1996 and newer vehicles shall be rejected from
testing if a scan of the OBD system reveals a ``not ready'' code for
any component of the OBD system. At a state's option it may choose
alternatively to reject MY 1996-2000 vehicles only if three or more
``not ready'' codes are present and to reject MY 2001 and later model
years only if two or more ``not ready'' codes are present. This
provision does not release manufacturers from the obligations regarding
readiness status set forth in 40 CFR 86.094-17(e)(1): ``Control of Air
Pollution From New Motor Vehicles and New Motor Vehicle Engines:
Regulations Requiring On-Board Diagnostic Systems on 1994 and Later
Model Year Light-Duty Vehicles and Light-Duty Trucks.'' Once the cause
for rejection has been corrected, the vehicle must return for testing
to continue the testing process. Failure to return for testing in a
timely manner after rejection shall be considered non-compliance with
the program, unless the motorist can prove that the vehicle has been
sold, scrapped, or is otherwise no longer in operation within the
program area.
* * * * *
(12) On-board diagnostic checks. Beginning January 1, 2002,
inspection of the on-board diagnostic (OBD) system on MY 1996 and newer
light-duty vehicles and light-duty trucks shall be conducted according
to the procedure described in 40 CFR 85.2222, at a minimum. This
inspection may be used in lieu of tailpipe, purge, and fill-neck
pressure testing. Alternatively, states may elect to phase-in OBD-I/M
testing for one test cycle by using the
OBD-I/M check to screen clean vehicles from tailpipe testing and
require repair and retest for only those vehicles which proceed to fail
the tailpipe test. An additional alternative is also available to
states with regard to the deadline for mandatory testing, repair, and
retesting of vehicles based upon the OBD-I/M check. Under this third
option, if a state can show good cause (and the Administrator takes
notice-and-comment action to approve this good cause showing as a
revision to the State's Implementation Plan), up to an additional 12
months' extension may be granted, establishing an alternative start
date for such states of no later than January 1, 2003. States choosing
to make this showing will also have available to them the phase-in
approach described in this section, with the one-cycle time limit to
begin coincident with the alternative start date established by
Administrator approval of the showing, but no later than January 1,
2003. The showing of good cause (and its approval or disapproval) will
be addressed on a case-by-case basis by the Administrator.
* * * * *
(b) Test standards--(1) Emissions standards. HC, CO, and
CO+CO2 (or CO2 alone) emission standards shall be
applicable to all vehicles subject to the program with the exception of
MY 1996 and newer OBD-equipped light-duty vehicles and light-duty
trucks, which will be held to the requirements of 40 CFR 85.2207, at a
minimum. Repairs shall be required for failure of any standard
regardless of the attainment status of the area. NOX
emission standards shall be applied to vehicles subject to a loaded
mode test in ozone nonattainment areas and in an ozone transport
region, unless a waiver of NOX controls is provided to the
State under Sec. 51.351(d).
* * * * *
[[Page 18178]]
(4) On-board diagnostic test standards. Vehicles shall fail the on-
board diagnostic test if they fail to meet the requirements of 40 CFR
85.2207, at a minimum. Failure of the on-board diagnostic test need not
result in failure of the vehicle inspection/maintenance test until
January 1, 2002. Alternatively, states may elect to phase-in OBD-I/M
testing for one test cycle by using the OBD-
I/M check to screen clean vehicles from tailpipe testing and require
repair and retest for only those vehicles which proceed to fail the
tailpipe test. An additional alternative is also available to states
with regard to the deadline for mandatory testing, repair, and
retesting of vehicles based upon the OBD-I/M check. Under this third
option, if a state can show good cause (and the Administrator takes
notice-and-comment action to approve this good cause showing), up to an
additional 12 months' extension may be granted, establishing an
alternative start date for such states of no later than January 1,
2003. States choosing to make this showing will also have available to
them the phase-in approach described in this section, with the one-
cycle time limit to begin coincident with the alternative start date
established by Administrator approval of the showing, but no later than
January 1, 2003. The showing of good cause (and its approval or
disapproval) will be addressed on a case-by-case basis.
* * * * *
(d) Applicability. In general, section 203(a)(3)(A) of the Clean
Air Act prohibits altering a vehicle's configuration such that it
changes from a certified to a non-certified configuration. In the
inspection process, vehicles that have been altered from their original
certified configuration are to be tested in the same manner as other
subject vehicles with the exception of MY 1996 and newer, OBD-equipped
vehicles on which the data link connector is missing, has been tampered
with or which has been altered in such a way as to make OBD system
testing impossible. Such vehicles shall be failed for the on-board
diagnostics portion of the test and are expected to be repaired so that
the vehicle is testable. Failure to return for retesting in a timely
manner after failure and repair shall be considered non-compliance with
the program, unless the motorist can prove that the vehicle has been
sold, scrapped, or is otherwise no longer in operation within the
program area.
* * * * *
6. Section 51.358 is amended by revising paragraph (a)(1) to read
as follows:
Sec. 51.358 Test equipment.
* * * * *
(a) * * *
(1) Emission test equipment shall be capable of testing all subject
vehicles and shall be updated from time to time to accommodate new
technology vehicles as well as changes to the program. In the case of
OBD-based testing, the equipment used to access the onboard computer
shall be capable of testing all MY 1996 and newer, OBD-equipped light-
duty vehicles and light-duty trucks.
* * * * *
7. Section 51.366 is amended by revising paragraphs (a)(2)(xi),
(a)(2)(xii), (a)(2)(xiii), (a)(2)(xiv), (a)(2)(xv), (a)(2)(xvi),
(a)(2)(xvii), and (a)(2)(xviii) to read as follows:
Sec. 51.366 Data analysis and reporting.
* * * * *
(a) * * *
(2) * * *
(xi) Passing the on-board diagnostic check;
(xii) Failing the on-board diagnostic check;
(xiii) Failing the on-board diagnostic check and passing the
tailpipe test (if applicable);
(xiv) Failing the on-board diagnostic check and failing the
tailpipe test (if applicable);
(xv) Passing the on-board diagnostic check and failing the I/M gas
cap evaporative system test (if applicable);
(xvi) Failing the on-board diagnostic check and passing the I/M gas
cap evaporative system test (if applicable);
(xvii) Passing both the on-board diagnostic check and I/M gas cap
evaporative system test (if applicable);
(xviii) Failing both the on-board diagnostic check and I/M gas cap
evaporative system test (if applicable);
* * * * *
8. Section 51.373 is amended by revising paragraph (g) to read as
follows:
Sec. 51.373 Implementation deadlines.
* * * * *
(g) On-Board Diagnostic checks shall be implemented in all basic,
low enhanced and high enhanced areas as part of the I/M program by
January 1, 2002. Alternatively, states may elect to phase-in OBD-I/M
testing for one test cycle by using the OBD-I/M check to screen clean
vehicles from tailpipe testing and require repair and retest for only
those vehicles which proceed to fail the tailpipe test. An additional
alternative is also available to states with regard to the deadline for
mandatory testing, repair, and retesting of vehicles based upon the
OBD-I/M check. Under this third option, if a state can show good cause
(and the Administrator takes notice-and-comment action to approve this
good cause showing), up to an additional 12 months' extension may be
granted, establishing an alternative start date for such states of no
later than January 1, 2003. States choosing to make this showing will
also have available to them the phase-in approach described in this
section, with the one-cycle time limit to begin coincident with the
alternative start date established by Administrator approval of the
showing, but no later than January 1, 2003. The showing of good cause
(and its approval or disapproval) will be addressed on a case-by-case
basis.
PART 85--CONTROL OF AIR POLLUTION FROM MOBILE SOURCES
9. The authority citation for part 85 is revised to read as
follows:
Authority: 42 U.S.C. 7401-7671q.
10. Section 85.2207 is amended by revising paragraph (d) to read as
follows:
Sec. 85.2207 On-board diagnostics test standards.
* * * * *
(d) A vehicle shall fail the on-board diagnostics test if the
malfunction indicator light is commanded to be illuminated for one or
more OBD diagnostic trouble codes (DTCs), as defined by SAE J2012. The
procedure shall be done in accordance with SAE J2012 Diagnostic Trouble
Code Definitions, (MAR92). This incorporation by reference was approved
by the Director of the Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies of SAE J2012 may be obtained from the
Society of Automotive Engineers, Inc., 400 Commonwealth Drive,
Warrendale, PA 15096-0001. Copies may be inspected at the EPA Docket
No. A-94-21 at EPA's Air Docket, (LE-131) Room 1500 M, 1st Floor,
Waterside Mall, 401 M Street SW, Washington, DC, or at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
* * * * *
11. Section 85.2222 is amended by revising paragraphs (a), (c),
(d)(1) and (d)(2) and by adding new paragraph (d)(4) to read as
follows:
Sec. 85.2222 On-board diagnostic test procedures.
* * * * *
(a) The on-board diagnostic inspection shall be conducted with the
key-on/engine running (KOER), with the exception of inspecting for MIL
illumination as required in paragraph
[[Page 18179]]
(d)(4) of this section, during which the inspection shall be conducted
with the key-on/engine off (KOEO).
* * * * *
(c) The test system shall send a Mode $01, PID $01 request in
accordance with SAE J1979 to determine the evaluation status of the
vehicle's on-board diagnostic system. The test system shall determine
what monitors are supported by the on-board diagnostic system, and the
readiness evaluation for applicable monitors in accordance with SAE
J1979. The procedure shall be done in accordance with SAE J1979 ``E/E
Diagnostic Test Modes,'' (DEC91). This incorporation by reference was
approved by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies of SAE J1979 may be obtained
from the Society of Automotive Engineers, Inc., 400 Commonwealth Drive,
Warrendale, PA 15096-0001. Copies may be inspected at the EPA Docket
No. A-94-21 at EPA's Air Docket (LE-131), Room 1500 M, 1st Floor,
Waterside Mall, 401 M Street SW., Washington, DC, or at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
(1) Coincident with the beginning of mandatory testing, repair, and
retesting based upon the OBD-I/M check, if the readiness evaluation
indicates that any on-board tests are not complete the customer shall
be instructed to return after the vehicle has been run under conditions
that allow completion of all applicable on-board tests. If the
readiness evaluation again indicates that any on-board test is not
complete the vehicle shall be failed.
(2) An exception to paragraph (c)(1) of this section is allowed for
MY 1996 to MY 2000 vehicles, inclusive, with two or fewer unset
readiness monitors, and for MY 2001 and newer vehicles with no more
than one unset readiness monitor. Vehicles from those model years which
would otherwise pass the OBD inspection, but for the unset readiness
code(s) in question may be issued a passing certificate without being
required to operate the vehicle in such a way as to activate those
particular monitors. Vehicles from those model years with unset
readiness codes which also have diagnostic trouble codes (DTCs) stored
resulting in a lit malfunction indicator light (MIL) must be failed,
though setting the unset readiness flags in question shall not be a
prerequisite for passing the retest.
(d) * * *
(1) If the malfunction indicator status bit indicates that the
malfunction indicator light (MIL) has been commanded to be illuminated
the test system shall send a Mode $03 request to determine the stored
diagnostic trouble codes (DTCs). The system shall repeat this cycle
until the number of codes reported equals the number expected based on
the Mode 1 response. All DTCs resulting in MIL illumination shall be
recorded in the vehicle test record and the vehicle shall fail the on-
board diagnostic inspection.
(2) If the malfunction indicator light bit is not commanded to be
illuminated the vehicle shall pass the on-board diagnostic inspection,
even if DTCs are present.
* * * * *
(4) If the malfunction indicator light (MIL) does not illuminate at
all when the vehicle is in the key-on/engine-off (KOEO) condition, the
vehicle shall fail the on-board diagnostic inspection, even if no DTCs
are present and the MIL has not been commanded on.
12. Section 85.2223 is amended by revising paragraph (a) and
removing and reserving paragraph (b) to read as follows:
Sec. 85.2223 On-board diagnostic test report.
(a) Motorists whose vehicles fail the on-board diagnostic test
described in Sec. 85.2222 shall be provided with the on-board
diagnostic test results, including the codes retrieved, the name of the
component or system associated with each fault code, the status of the
MIL illumination command, and the customer alert statement as stated in
paragraph (c) of this section.
(b) [Reserved]
* * * * *
Sec. 85.2231 [Removed]
13. Section 85.2231 is amended by removing and reserving paragraph
(d).
[FR Doc. 01-8276 Filed 4-4-01; 8:45 am]
BILLING CODE 6560-50-P
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