1 Final Regulation Order

Adopt new section 1971.5, title 13, California Code of Regulations

(Note: All of the text below is new language shown in plain text with major section headings and definition terms shown in italics to b e added to title 13, California Code of Regulations)

§ 1971.5. Enforcement of Malfunction and Diagnostic System Requirements for 2010 and Subsequent Model-Year Heavy-Duty Engin es.

(a) General. (1) Applicability

. (A) These procedures shall be used to assure compli ance with the requirements of California Code of Regulations (Cal . Code Regs.), title 13, section 1971.1 for all 2010 and subsequent mode l year heavy-duty engines equipped with OBD systems that have been ce rtified for sale

in California. (B) Engines manufactured prior to the 2010 model ye ar are covered by the general enforcement and penalty provisions of the H ealth and Safety Code, and the specific provisions of Cal. Code Regs ., title 13, section 1971 and section 2111 through section 2149. (2) Purpose

. The purpose of this section is to establish the enf orcement protocol that shall be used by the Air Resources Board (ARB) to a ssure that engines certified for sale in California are equipped with OBD systems that properly function and meet the purposes and require ments of Cal. Code Regs., title 13, section 1971.1. (3) Definitions

. The definitions applicable to these rules include t hose set forth in Health and Safety Code section 39010 et seq. and in Cal. C ode Regs., title 13, section 1900(b) and section 1971.1(c), which are in corporated by reference herein. The following definitions are sp ecifically applicable to section 1971.5 and take precedence over any contrary definitions.

“ Days ”, when computing any period of time, unless otherw ise noted, means normal working days that a manufacturer is op en for business.

“ Engine Class

” means a group or set of engines subject to enforcement testing that have been determined by th e Executive Officer to share common or similar hardware, software, OBD mon itoring strategy, or emission control strategy.

“ Engine Manufacturer

” means the manufacturer granted certification to sell engines in the State of California.

“ Executive Officer

” means the Executive Officer of ARB or his or her authorized representative.

“ Influenced OBD-Related Recall ” means an inspection, repair, adjustment, or modification program initiated and c onducted by a2 manufacturer as a result of enforcement testing con ducted by the ARB or any other information for the purpose of correcting any nonconforming OBD system for which direct notification of vehicle or engine owners is

necessary.

“ Major Monitor

” means those monitors covered by the requirements set forth in Cal. Code Regs., title 13, section 1971.1( e), (f), and (g)(4).

“ Nonconforming OBD System ” means an OBD system on a production engine that has been determined not to c omply with the requirements of Cal. Code Regs., title 13, section 1971.1. For purposes of section 1971.5, an engine class shall be considered nonconforming irrespective of whether engines in the engine class , on average, meet applicable tailpipe or evaporative emission standar ds.

“ OBD Emission Testing ” refers to testing conducted to determine compliance with the malfunction criteria in Cal. Co de Regs., title 13, section 1971.1(e) through (g) that are based on a m ultiple of, or an additive to, a tailpipe emission standard or an abs olute measurement from an applicable emission test cycle (e.g., 1.5 times the applicable federal test procedure (FTP) emission standards, PM standar d plus 0.02 g/bhp-hr, PM level of 0.03 g/bhp-hr as measure from an applic able emission test cycle).

“ OBD Ratio Testing

” refers to testing conducted to determine compliance with the required in-use monitor perform ance ratio in Cal. Code Regs., title 13, section 1971.1(d)(3.2.2).

“ Ordered OBD-Related Recall ” means an inspection, repair, adjustment, or modification program required by ARB to be conducted by the manufacturer to correct any nonconforming OBD s ystem for which direct notification of vehicle or engine owners is necessary.

“ Quarterly Reports

” refer to the following calendar periods: January 1 – March 31; April 1 – June 30; July 1 – September 30; October 1 –

December 31.

“ Test Sample Group” means a group of production engines in a designated engine class that are equipped with OBD systems and are selected and tested as part of the enforcement test ing program set forth in sections (b) and (c).

“ Voluntary OBD-Related Recall ” means an inspection, repair, adjustment, or modification program voluntarily ini tiated and conducted by a manufacturer to correct any nonconforming OBD sys tem for which direct notification of vehicle or engine owners is necessa ry.

(b) Testing Procedures for ARB-Conducted Testing. (1) Purpose

. To assure that OBD systems on production engines co mply with the requirements of Cal. Code Regs., title 13, section 1971.1, ARB may periodically evaluate engines from an engine class.3

(2) Preliminary Testing and Evaluation

. (A) As part of his or her evaluation of engines to determine compliance with the requirements of Cal. Code Regs., title 13, section 1971.1, the Executive Officer may routinely conduct testing on any production engines that have been certified for sale in Califo rnia. (B) Based upon such testing or any other informatio n, including data from California or other state heavy duty inspection pro grams, warranty information reports, and field information reports, the Executive Officer may conduct enforcement testing pursuant to section s (b)(3) through (5) below. (3) Engine Selection for ARB-Conducted Enforcement Tes ting

. (A) Determining the Engine Class. (i) Upon deciding to conduct enforcement testing, t he Executive Officer shall determine the engine class to be tested. In determining the scope of the engine class to be tested, the Executi ve Officer shall

consider the similarities and differences in the OB D systems of potentially affected engines. Among other things, the Executive

Officer shall consider whether engines share similar computer hardware and software, calibrations, or OBD monitor ing and emission control strategies. (ii) The default engine class is the engine family or OBD group used by the manufacturer to certify the engines to be teste d. However, upon concluding that a subgroup of engines differs from other engines in the identified engine family or OBD grou p and that a

reasonable basis exists to believe that the differe nces may directly impact the type of testing that will be performed, the Executive Officer may determine that a subgroup of the engine family or OBD group is the appropriate engine class for testing. (iii) Similarly, upon concluding that engines from several engine families or OBD groups (which may include engine fa milies or OBD groups from different model years) share such commo n characteristics that a reasonable basis exists to b elieve that results of enforcement testing may be applicable to an engi ne class larger than a specific engine family or OBD group, the Exe cutive Officer may determine that the appropriate engine class inc ludes more than one engine family or OBD group. (iv) Except for testing to determine if an OBD syst em has been designed to deactivate based on age and/or mileage (Cal. Code Regs., title 13, section 1971.1(d)(1.3)), the Execu tive Officer may not conduct testing of an engine class whose engine s, on average, exceed the defined full useful life of the engine c lass. For purposes of the determination of this average, the Executive Officer shall use the accrual rates appropriate for engines in the en gine class considering the vehicle weight class, usage type, a nd other subcategories as defined and used by EMFAC2007, whi ch is incorporated by reference herein.4 (B) Size of Test Sample Group. After determining the engine class to be tested, th e Executive Officer shall determine the appropriate number of engines t o include in the test sample group for enforcement testing in accord ance with the following guidelines: (i) For OBD emission testing, the Executive Officer shall follow the provisions of Cal. Code Regs., title 13, section 21 37 regarding test sample size. In accordance with section 2137, the Executive Officer shall test 10 engines that have been procur ed following the protocol of section (b)(3)(C) below and meet the se lection criteria of section (b)(3)(D)(i) below to determine the emissio ns characteristics of the engine class being tested. (ii) For OBD ratio testing, the Executive Officer s hall collect data from a test sample group of 30 engines that have been proc ured following the protocol of section (b)(3)(C) below and meet th e selection criteria of section (b)(3)(D)(ii) below to determin e the in-use OBD monitoring performance of the engine class being te sted. (iii) In determining compliance with any other requ irements of Cal. Code Regs., title 13, section 1971.1 (e.g., diagnos tic connector location, communication protocol standards, MIL ill umination protocol, evaporative system diagnostics, etc.), th e Executive Officer shall determine, on a case by case basis, t he number of engines meeting the selection criteria of section ( b)(3)(D)(iii) needed to assure that the results of such testing m ay be reasonably inferred to the engine class. The Execu tive Officer’s determination shall be based upon the nature of the nonconformance and the scope of the engine class. The test sample group could be as few as two test engines. (C) Protocol for Procuring Engines for Test Sample Group. (i) For OBD emission and ratio testing, the Execut ive Officer shall determine the appropriate manner for procuring engi nes. In making his or her determination, the Executive Officer sha ll consider the nature of the nonconformance and the scope of the e ngine class. The method used shall ensure that engines are recru ited from more than one source. Methods used may include obtainin g lists of engine owners from specific sources (e.g., engine m anufacturers, motor vehicle registration records) and soliciting participation from owners, discussing with fleet or rental operations to locate engines in the engine class, or using methods used by the m anufacturer to procure engines for the manufacturer-run heavy dutydiesel in-use testing program established pursuant to 70 Federal Register 34594 to procure engines consistent with the procurement process followed by the Executive Officer under Cal. Code R egs., title 13, section 2137 (e.g., obtaining lists of all vehicles in the motor vehicle class within a specified geographical area, mailing postcards soliciting participation of vehicles within the spe cified area,5 selecting vehicles from those that responded to the solicitation, inspecting selected vehicles to determine whether a ppropriate to include in sample group, etc.). In selecting engin es for OBD emission testing, the Executive Officer shall inclu de only engines meeting the criteria set forth in section (b)(3)(D) (i) below. For OBD ratio testing, the Executive Officer shall include only engines meeting the criteria set forth in section (b)(3)(D) (ii) below. (ii) For all other testing, the Executive Officer s hall, on a case by case basis, determine the appropriate manner for procuri ng engines. In making his or her determination, the Executive Offi cer shall

consider the nature of the nonconformance and the s cope of the engine class. The Executive Officer may procure en gine(s) by any means that assures effective collection and testing of engines (e.g., rental car agencies, fleet vehicles, etc.), but sha ll not include any

vehicle for which a reasonable basis exists that a vehicle operator’s driving or maintenance habits would substantially i mpact test results to determine nonconformance. In all cases, however, the selection process must ensure proper selection of e ngines in accord with section (b)(3)(D)(iii) below. (D) Engines to be included in a Test Sample Group. (i) In selecting engines to be included in a test s ample group for enforcement OBD emission testing, the Executive Off icer shall include only engines that: a. Are certified to the requirements of Cal. Code R egs., title 13,

section 1971.1 and California exhaust emission stan dards. b. Are registered for operation in the United State s. c. Have mileage that is less than 75 percent of the certified full useful life mileage and have an age of less than th e certified full useful life age for the subject vehicles. d. Have not been tampered with or equipped with add -on or modified parts that would cause the OBD system not to comply with the requirements of Cal. Code Regs., title 13, section 1971.1 or would have a permanent effect on exhaust emissio n performance e. Have not been subjected to abuse (e.g., racing, overloading, misfueling), neglect, improper maintenance, or othe r factors that would cause the OBD system not to comply with the requirements of Cal. Code Regs., title 13, section 1971.1 or would have a permanent effect on exhaust emission performance. f. Have no detected or known malfunction(s) unrelat ed to the monitor or system being evaluated that would affectthe performance of the OBD system. At its discretion, ARB may elect to repair an engine with a detected or known malfunction and then include the engine in the test sample grou p. g. Have had no major repair to the engine resulting from a collision.6 h. Have no problem that might jeopardize the safetyof laboratory personnel. (ii) In selecting engines to be included in a test sample group for enforcement OBD ratio testing, the Executive Office r shall include only engines that: a. Are certified to the requirements of Cal. Code R egs., title 13,

section 1971.1. b. Have collected sufficient engine operation data for the monitor to be tested. For monitors required to meet the in-us e monitor performance ratio and to track and report ratio dat a pursuant to Cal. Code Regs., title 13, section 1971.1(d)(3.2), sufficient engine operation data shall mean the denominator me ets the criteria set forth in sections (b)(3)(D)(ii)1. thro ugh 5. below. For monitors required to meet the in-use monitor perfor mance ratio but not required to track and report ratio data pur suant to Cal. Code Regs., title 13, section 1971.1(d)(3.2), suffi cient engine operation data shall mean that engines that have a denominator that meets the criteria set forth in sections (b)(3 )(D)(ii)1. through 5. below after undergoing testing as set forth in s ection (b)(4)(C)(ii) below. Specifically, the denominator , as defined in Cal. Code Regs., title 13, section 1971.1(d)(4.3), for the monitor to be tested must have a value equal to or greater than: 1. 150 for gasoline evaporative system and secondary air system monitors, and gasoline monitors utilizing a

denominator incremented in accordance with Cal. Cod e Regs., title 13, section 1971.1(d)(4.3.2)(D), (E), and (F) (e.g., cold start monitors, variable valve timing and/or c ontrol system monitors, etc.), or 2. 300 for gasoline catalyst, oxygen sensor, EGR, a nd all other component monitors. 3. 50 for diesel PM filter and NMHC converting cata lyst monitors, and other diesel monitors using a denomin ator incremented in accordance with Cal. Code Regs., tit le 13, section 1971.1(d)(4.3.2)(G) or (H), or 4. 150 for diesel monitors utilizing a denominator incremented in accordance with Cal. Code Regs., title 13, section 1971.1(d)(4.3.2)(D), (E), or (F) (e.g., cold start monitors, comprehensive component output component monitors, etc.), or

5. 300 for all other diesel monitors not covered un der sections (b)(3)(D)(ii)3. and 4. above. c. Have not been tampered with or equipped with add -on or modified parts that would cause the OBD system not to comply with the requirements of Cal. Code Regs., title 13, section

1971.1.7 d. Have mileage and age that are less than or equal to the certified full useful life mileage and age for the subject en gines. (iii) In selecting engines to be included in a testsample group for enforcement testing of any other requirement of Cal . Code Regs., title 13, section 1971.1 (not covered by sections ( b)(3)(D)(i) or (ii) above), the Executive Officer shall include only en gines that: a. Are certified to the requirements of Cal. Code R egs., title 13,

section 1971.1. b. Have not been tampered with or equipped with add -on or modified parts that would cause the OBD system not to comply with the requirements of Cal. Code Regs., title 13, section

1971.1. c. Have no detected or known malfunction(s) unrelat ed to the monitor or system being evaluated that would affectthe performance of the OBD system. At its discretion, ARB may elect to repair an engine with a detected or known malfunction and then include the engine in the test sample grou p. d. Have mileage and age that are less than or equal to the certified full useful life mileage and age for the subject en gines. (iv) If the Executive Officer discovers, by either evidence presented by the manufacturer as provided in section (b)(7) or o n his or her own, that an engine fails to meet one or more of the app licable criteria of section (b)(3)(D)(i) through (iii), the Executive O fficer shall remove the engine from the test sample group. The Executi ve Officer may replace any engine removed with an additional engin e selected in accordance with sections (b)(3)(C) and (D) above. Test results relying on data from the removed engine shall be re calculated without using the data from the removed engine. (4) Enforcement Testing Procedures

. (A) Prior to conducting any testing under section ( b)(4), the Executive Officer may replace components monitored by the OBD system with components that are sufficiently deteriorated or si mulated to cause

malfunctions that exceed the malfunction criteria e stablished pursuant to Cal. Code Regs., title 13, section 1971.1(e) thr ough (g) in a properly operating system. The Executive Officer may not us e components deteriorated or simulated to represent failure mode s that could not have been foreseen to occur by the manufacturer (e. g., the use of leaded gasoline in an unleaded gasoline engine, etc .). Upon request by the Executive Officer, the manufacturer shall ma ke available all test equipment used by the manufacturer in development, calibration, or demonstration testing (e.g., malfunction simulators , deteriorated “threshold” components, etc.) necessary to duplicat e testing done by

the manufacturer to determine the malfunction crite ria used for major monitors subject to OBD emission testing.8 (B) OBD Emission Testing. After the test sample gro up has been selected and procured, the Executive Officer may perform one or more of the following tests: (i) Emission testing with the test procedures used by the Executive Officer for in-use testing of compliance with exhau st emission standards in accordance with Cal. Code Regs., title 13, section 1956.8(b) and (d). (ii) On-road or engine or chassis dynamometer testi ng with the engine being operated in a manner that reasonably ensures that all of the monitoring conditions disclosed in the manufacturer 's certification application for the tested monitor are encountered. (C) OBD Ratio Testing. (i) For OBD ratio testing of monitors required to m eet the in-use monitor performance ratio and track and report rati o data pursuant to Cal. Code Regs., title 13, section 1971.1(d)(3.2 ), after the test sample group has been selected and procured, the Ex ecutive Officer shall download the data from monitors requi red to track and report such data. (ii) For OBD ratio testing of monitors required to meet the in-use monitor performance ratio but not required to track and report ratio data pursuant to Cal. Code Regs., title 13, section 1971.1(d)(3.2), after the test sample group has been selected and p rocured, the Executive Officer shall collect data by installing instrumentation or data-logging equipment on the engines/vehicles. Af ter installation of the equipment, the engines/vehicles shall be ret urned to the engine/vehicle owner/operator to continue to operat e the engine/vehicle until the minimum denominator criter ia (see section (b)(3)(D)(ii)b.) are satisfied. The Executive Offi cer shall then

calculate the ratio from the data collected in acco rdance with the requirements of Cal. Code Regs., title 13, section 1971.1(d)(3.2) to allow the Executive Officer to effectively determin e the in-use monitor performance ratio. (D) Testing for compliance with any other requireme nt of Cal. Code Regs., title 13, section 1971.1. After the test sample gro up has been selected and procured, the Executive Officer may perform one or more of the following tests: (i) Emission testing on the applicable FTP or suppl emental emission test (SET) cycle or other applicable emission test cycle used for measuring exhaust or evaporative emissions; (ii) On-road or engine or chassis dynamometer testi ng with the engine being operated in a manner that reasonably ensures that all of the monitoring conditions disclosed in the manufacturer 's certification application for the tested monitor are encountered; or (iii) Any other testing determined to be necessary by the Executive Officer. This may include, but is not limited to, the use of special9 test equipment to verify compliance with standardiz ation requirements. (5) Additional Testing

. (A) Based upon testing of the engine class in secti on (b)(4) above and

after review of all evidence available at the concl usion of such testing, the Executive Officer may elect to conduct further testing of a subgroup of engines from the engine class if the Executive O fficer has

determined that: (i) A subgroup of tested engines differs sufficient ly enough from other engines in the tested engine class, and (ii) A reasonable basis exists to believe that the identified differences may indicate that the subgroup may be nonconforming whereas the tested engine class as a whole is not. (B) Hereinafter all references to engine class shal l be applicable to the subgroup meeting the conditions of section (b)(5)(A ) above. (C) In any testing of a subgroup of engines under s ection (b)(5), the Executive Officer shall follow the engine selection and testing procedures set forth in sections (b)(3) and (4) abo ve. (6) Finding of Nonconformance after Enforcement Testing

. After conducting enforcement testing pursuant to se ction (b)(4) above, the Executive Officer shall make a finding of nonconfor mance of the OBD system in the identified engine class under the res pective tests for the applicable model year(s) as follows: (A) OBD Emission Testing. (i) For 2010 through 2012 model year engines: a. Engines certified as an OBD parent rating (i.e., the engine rating subject to the “full OBD” requirement under Cal. Co de Regs., title 13, section 1971.1(d)(7.1.1)), shall be considered nonconforming if the emission test results indicate that 50 perce nt or more of the engines in the test sample group do not properly il luminate the

MIL when emissions exceed 2.0 times the malfunction criteria (e.g., 5.0 times the standard if the malfunction cr iterion is 2.5 times the standard) on the applicable standard (i.e ., FTP or SET). b. In determining an engine to be nonconforming, th e Executive

Officer shall use: 1. The test cycle and standard determined and ident ified by the

manufacturer at the time of certification in accord ance with Cal. Code Regs., title 13, section 1971.1(d)(6.1) a s the most stringent for purposes of determining OBD system nonconformance with the applicable standard in sect ion (b)(6)(A)(i)a. and 2.The adjustment factors determined by the manufact urer at the

time of certification in accordance with Cal. Code Regs., title 13, section 1971.1(d)(6.2) for purposes of determin ing OBD system nonconformance in section (b)(6)(A)(i)a.10 c. Engines certified as an OBD child rating (i.e., the engine ratings subject to the “extrapolated OBD” requirement under Cal. Code Regs., title 13, section 1971.1(d)(7.1.2)), may notbe considered nonconforming based on testing emission levels. (ii) For 2013 through 2015 model year engines: a. All engines classified as OBD parent and child r atings subject to Cal. Code Regs., title 13, section 1971.1(d)(7.2.2) shall be considered to be nonconforming if the emission testresults indicate that 50 percent or more of the engines in the test sample group do not properly illuminate the MIL when emiss ions exceed 2.0 times the malfunction criteria (e.g., 4.0 times the standard if

the malfunction criterion is 2.0 times the standard ) on the applicable standard (i.e., FTP or SET). b. In determining compliance, the Executive Officer shall use only the test cycle and standard determined and identifi ed by the

manufacturer at the time of certification in accord ance with Cal. Code Regs., title 13, section 1971.1(d)(6.1) as the most stringent for purposes of determining OBD system nonconforman ce with the applicable standard in section (b)(6)(A)(ii)a. c. All other engines and engine ratings may not be considered nonconforming based on the emission levels of the t ests. (iii) For 2016 through 2018 model year engines: a. PM filter monitors on engines subject to the mal function criteria of Cal. Code Regs., title 13, section 1971.1(e)(8.2 .1)(C) shall be considered to be nonconforming if the emission testresults indicate that 50 percent or more of the engines in the test sample group do not properly illuminate the MIL when emiss ions exceed 2.0 times the malfunction criteria (e.g., PM emissi on level of 0.06 g/bhp-hr if the malfunction criterion is 0.03 g/bhp-hr) on either of the applicable standards (i.e., FTP or SE T). b. Monitors on engines and engine ratings previousl y certified to Cal. Code Regs., title 13, section 1971.1(d)(7.2.3) for extrapolated OBD in the 2013 through 2015 model yea rs shall be considered nonconforming if the emission test resul ts indicate that 50 percent or more of the engines in the test sample group do not properly illuminate the MIL when emissions e xceed 2.0 times the malfunction criteria (e.g., 4.0 times the standard if the malfunction criterion is 2.0 times the standard) on either of the applicable standards (i.e., FTP or SET). c. Monitors on engines not covered under sections ( b)(6)(A)(iii)a. and b. above shall be considered nonconforming if t he emission test results indicate that 50 percent or more of th e engines in the test sample group do not properly illuminate the MI L when

emissions exceed the malfunction criteria on either of the applicable standards (i.e., FTP or SET).11 (iv) For 2019 and subsequent model year engines, an y engine shall be considered nonconforming if the results of the test s indicate that 50 percent or more of the engines in the test sample d o not properly

illuminate the MIL when emissions exceed the malfun ction criteria on either of the applicable standards (i.e., FTP or SET). (v) The Executive Officer may not consider an OBD s ystem nonconforming solely due to a failure or deteriorat ion mode of a monitored component or system that could not have b een reasonably foreseen to occur by the manufacturer. (B) OBD Ratio Testing. (i) 2013 through 2015 model year engines certified to a ratio of 0.100 in accordance with Cal. Code Regs., title 13, section 1971.1(d)(3.2.2) shall be considered nonconforming if the data colle cted from the engines in the test sample group indicate either th at the average inuse monitor performance ratio for one or more of th e monitors in the test sample group is less than 0.050 or that 66 .0 percent or more of the engines in the test sample group have a n in-use monitor performance ratio of less than 0.050 for th e same monitor. (ii) 2016 and subsequent model year engines certifi ed to a ratio of 0.100 in accordance with Cal. Code Regs., title 13, section 1971.1(d)(3.2.2) shall be considered nonconforming if the data collected from the engines in the test sample group indicate either that the average in-use monitor performance ratio f or one or more of the monitors in the test sample group is less th an 0.088 or that 66.0 percent or more of the engines in the test sam ple group have an in-use monitor performance ratio of less than 0. 100 for the same

monitor. (C) All Other OBD Testing. (i) Engines shall be considered nonconforming if th e results of the testing indicate that at least 30 percent of the en gines in the test sample group do not comply with the same requiremen t of Cal. Code Regs., title 13, section 1971.1. (ii) Engines shall be considered nonconforming if t he results of the testing indicate that at least 30 percent of the en gines in the test sample group do not comply with one or more of the requirements of Cal. Code Regs., title 13, section 1971.1 while the engine is running and while in the key on, engine off positio n such that offboard equipment designed to access the following pa rameters via the standards referenced in Cal. Code Regs., title 13, section 1971.1 for 2013 and subsequent model year engines c annot obtain valid and correct data for the following parameters : a. The current readiness status from all on-board c omputers required to support readiness status in accordance with Society of Automotive Engineers J1979 (SAE J1979) or J1939 (SAE J1939) as incorporated by reference in Cal. Code Re gs., title 13, section 1971.1(h)(1) and section 1971.1(h)(4.1);12 b. The current MIL command status while the MIL is commanded

off and while the MIL is commanded on in accordance with SAE J1979/J1939 and Cal. Code Regs., title 13, section 1971.1(h)(4.2), and in accordance with SAE J1979/J1 939 and Cal. Code Regs., title 13, section 1971.1(d)(2.1.2) during the MIL functional check and, if applicable Cal. Code Regs. , title 13, section 1971.1(h)(4.1.3) during the MIL readiness s tatus check; c. The current permanent fault code(s) in accordanc e with SAE J1979/J1939 and Cal. Code Regs., title 13, section 1971.1(h)(4.4); d. The data stream parameters for: engine speed and OBD requirements to which the engine is certified as re quired in Cal. Code Regs., title 13, section 1971.1(h)(4.2) and in accordance with SAE J1979/J1939; e. The CAL ID, CVN, ESN, and VIN as required in Cal . Code Regs., title 13, sections 1971.1(h)(4.6), (h)(4.7), and (h)(4.8) and in accordance with SAE J1979/J1939; or f. The proper identification of all data identified in (b)(6)(C)(ii)a. through (b)(6)(C)(ii)e. as supported or unsupported as required in Cal. Code Regs., title 13, section 1971.1(h)(4) and in accordance

with SAE J1979/J1939. (iii) If the finding of nonconformance under sectio n (b)(6)(C)(i) above concerns engines that do not comply with the requir ements of Cal. Code Regs., title 13, section 1971.1(d)(4) or (5) ( e.g., numerators or denominators are not properly being incremented) , it shall be presumed that the nonconformance would result in an OBD ratio enforcement test result that would be subject to an ordered OBDrelated recall in accord with the criterion in sect ion (d)(3)(A)(i). The manufacturer may rebut such a presumption by presen ting evidence in accord with section (b)(7)(C)(iii) belo w that

demonstrates to the satisfaction of the Executive O fficer that the

identified nonconformance would not result in an or dered OBDrelated recall under section (d)(3)(A)(i). (7) Executive Officer Notification to the Manufacturer Regarding

Determination of Nonconformance

. (A) Upon making the determination of nonconformance in section (b)(6) above, the Executive Officer shall notify the manuf acturer in writing. (B) The Executive Officer shall include in the noti ce: (i) a description of each group or set of engines i n the engine class covered by the determination; (ii) the factual basis for the determination, inclu ding a summary of the test results relied upon for the determination; (iii) a statement that the Executive Officer shall provide to the manufacturer, upon request and consistent with the California Public Records Act, Government Code section 6250 etseq., all

records material to the Executive Officer’s determi nation;13 (iv) a provision allowing the manufacturer no less than 90 days from the date of issuance of the notice to provide the E xecutive Officer with any information contesting the findings set fo rth in the notice;

and (v) a statement that if a final determination is ma de that the engine class is equipped with a nonconforming OBD system, the manufacturer may be subject to appropriate remedial action, including recall and monetary penalties. (C) Within the time period set by the Executive Off icer in section (b)(7)(B)(iv) and any extensions of time granted un der section (b)(7)(H), the manufacturer shall provide the Execu tive Officer, consistent with paragraphs (i) through (iii) below, with any test results, data, or other information derived from engine test ing that may rebut or mitigate the results of ARB testing, including any evidence that an engine class, if determined to be nonconforming, sh ould be exempted from mandatory recall. (See section (d)(3)(B) belo w.). (i) For OBD emission testing and OBD ratio testing: a. The manufacturer may submit evidence to demonstrate that engines in the test sample group used by the Execut ive Officer were inappropriately selected, procured, or tested in support of a request to have engines excluded from the test samp le group in accordance with section (b)(3)(D)(iv).

b. If the manufacturer elects to conduct additional testing of engines in the engine class and submit the results of such testing to the Executive Officer, the manufacturer shall: 1. Present evidence that it has followed the procur ement and test procedures set forth in sections (b)(3) and (4 ) above, or 2. If the manufacturer elects to use different proc urement and testing procedures, submit a detailed description o f the procedures used and evidence that such procedures p rovide an equivalent level of assurance that the results a re representative of the engine class. (ii) If the manufacturer objects to the size of the test sample group or the method used to procure engines in the test samp le group used by the Executive Officer pursuant to section (b)(3) (B)(iii) or (b)(3)(C)(ii), the manufacturer shall set forth wha t it considers to be the appropriate size and procurement method, the re asons therefore, and test data from engines that confirm the manufacturer’s position. (iii) If the manufacturer elects to present evidenc e to overcome the presumption of nonconformance in section (b)(6)(C)( iii) above, the manufacturer shall demonstrate that the engines in the engine class comply with in-use monitor performance ratio requirements of Cal. Code Regs., title 13, section 1971.1(d)(3.2) b y presenting: a. Evidence in accord with the procurement and test ing requirements of sections (b)(3) and (4).14 b. Any other evidence that provides an equivalent l evel of proof that engines operated in California comply with the in-u se monitor performance ratio requirements. (D) The Executive Officer may accept any informatio n submitted by a manufacturer pursuant to section (b)(7)(C) above af ter the time

established for submission of such information has passed if the manufacturer could not have reasonably foreseen the need for providing the information within the time period pr ovided. Otherwise, the Executive Officer is not required to accept lat e information. In determining whether to accept late information, the Executive Officer will consider the lateness of the submission, the m anufacturer’s reasons for why such information was not timely pre sented, the materiality of the information to the Executive Off icer’s final determination, and what effect any delay may have o n effective

enforcement and the health and welfare of the State

. (E) The requirements of section (b)(7) shall not be construed to abridge the manufacturer’s right to assert any privilege or right provided under

California law. (F) After receipt of any information submitted by t he manufacturer pursuant to section (b)(7)(C) above, the Executive Officer shall consider all information submitted by the manufactu rer and may conduct any additional testing that he or she belie ves is necessary. (G) Final Determination. (i) Within 60 days after completing any additional testing that the Executive Officer deemed necessary under section (b )(7)(F) above, the Executive Officer shall notify the manufacturer of his or her final determination regarding the finding of nonconformit y of the OBD system in the engine class. The determination shal l be made after considering all of the information collected and re ceived, including

all information that has been received from the man ufacturer. (ii) The notice must include a description of each engine family(ies), OBD group(s), or subgroups thereof, that has been d etermined to have a nonconforming OBD system and set forth the f actual bases

for the determination. (H) Extensions. The Executive Officer may for good cause extend the time requirements set forth in section (b)(7). In grant ing additional time to a manufacturer, the Executive Officer shall consider, among other things, any documentation submitted by the manufacturer reg arding the time that it reasonably believes is necessary to conductits own testing, why such information could not have been more expeditio usly presented, and what effect any delay caused by granting the extension may have

on effective enforcement and the health and welfare of the State. The Executive Officer shall grant a manufacturer a reas onable extension of time upon the manufacturer demonstrating that despi te the exercise of reasonable diligence, the manufacturer has been una ble to produce relevant evidence in the time initially provided.15

(c) Manufacturer Self-Testing. (1) Purpose

. To assure that OBD systems on production engines ce rtified on an engine dynamometer are able to detect a fault before emiss ions exceed the malfunction criteria established in Cal. Code Regs. , title 13, sections 1971.1(e) through (g), engine manufacturers shall e valuate engines for each model year, starting with the 2010 model year. (2) Engine Selection for Manufacturer Self-Testing

. (A) After OBD certification of all engines in the m odel year, a manufacturer shall submit a listing to the Executive Officer of all of the engine families and engine ratings within each family cert ified for that model year. The Executive Officer will then select the e ngine family(ies) and the specific engine rating within the engine family (ies) that the manufacturer shall use as a test engine for the tes t sample group to provide emission test data. (i) For 2013 through 2015 model year engines, the E xecutive Officer may not select engines from OBD child ratings subje ct to “extrapolated OBD” under Cal. Code Regs., title 13, section 1971.1(d)(7.2.3). (B) Number of test engines. (i) For the 2010 model year, a manufacturer shall p rovide emission test data of a test engine from the OBD parent rating. (ii) For the 2013 and subsequent model years, a man ufacturer certifying one to five engine families in a model y ear shall provide emission test data of a test engine from one engine rating. A manufacturer certifying six to ten engine families in a model year shall provide emission test data from test engines from two engine ratings. A manufacturer certifying eleven or more engine families in a model year shall provide emission test data of te st engines from three engine ratings. The Executive Officer may wa ive the requirement for submittal of data of one or more ofthe test engines if data have been previously submitted for all of t he engine ratings. (C) Engines to be included in test sample group. (i) In selecting engines to be included in a test s ample group for manufacturer self-testing, the manufacturer shall i nclude only engines that: a. Are certified to the requirements of Cal. Code R egs., title 13,

section 1971.1 and California exhaust emission stan dards. b. Are used in vehicles registered for operation in the United States. c. Have mileage that is between 70 to 80 percent ofthe certified full useful life mileage and an age of less than the certified full useful life age for the subject engines. d. Have not been tampered with or equipped with add -on or modified parts that would cause the OBD system not to comply with the requirements of Cal. Code Regs., title 13, section 1971.116 or would have a permanent effect on exhaust emissio n performance. e. Have not been subjected to abuse (e.g., overload ing, misfueling) neglect, improper maintenance, or other factors tha t would cause the OBD system not to comply with the requirements of Cal. Code Regs., title 13, section 1971.1 or would have a permanent effect on exhaust emission performance. f. Have no detected or known malfunction(s) unrelat ed to the monitor or system being evaluated that would affectthe performance of the OBD system. With request to and approval from the Executive Officer, the manufacturer may el ect to repair an engine with a detected or known malfunction and then include the engine in the test sample group. g. Have had no major repair to the engine resulting from a collision. h. Have no problem that might jeopardize the safetyof laboratory personnel. (ii) If the manufacturer discovers, by either evide nce presented by the Executive Officer or on its own, that an engine fai ls to meet one or more of the applicable criteria of section (c)(2)(C )(i), the manufacturer shall notify the Executive Officer of its findings and request approval to remove the engine from the testsample group. If approved by the Executive Officer, the manufactu rer shall replace any engine removed with an additional engine select ed in accordance with section (c)(2)(C)(i). Test results relying on data from the removed engine shall be recalculated witho ut using the data from the removed engine. (3) Compliance/Enforcement Testing Procedures

. (A) Within three calendar years after the model yea r of the engine (e.g., by the end of calendar year 2013 for a 2010 model year engine), the engine manufacturer shall complete the testing requ ired under section (c)(3). (B) Prior to conducting any testing under section ( c)(3), the engine manufacturer shall replace components monitored by the OBD system with components that are sufficiently deteriorated or simulated to

cause malfunctions that exceed the malfunction crit eria established pursuant to Cal. Code Regs., title 13, sections 197 1.1(e) through (g) in a properly operating system. The engine manufactur er may not use components deteriorated or simulated to represent f ailure modes that could not have been foreseen to occur by the manufa cturer (e.g., the use of leaded gasoline in an unleaded engine, etc.)

. (C) After the test engine(s) has been selected and procured under section (c)(2) above, the engine manufacturer shall perform emission testing for all applicable components/systems according to the certification demonstration testing requirements of Cal. Code Reg s., title 13, sections 1971.1(i)(3) and (i)(4).17 (D) No modifications or replacement of components t o make the engine compatible with engine dynamometer testing (e.g., r eplacement of an air-to-air charge cooler with a water-to-air charge cooler) shall be done without approval by the Executive Officer. The Exe cutive Officer shall approve such requests upon the manufacturer documen ting the technical need for such a modification or replaceme nt and providing engineering data or analysis demonstrating that anysuch modified part will be configured to simulate the current performa nce of the actual part removed from the engine (e.g., the water-to-ai r cooler must be configured to perform similarly to the air-to-air c ooler in its current state of aging/deterioration, not to the performance spec ifications of the airto-air cooler when new or to the manufacturer’s spe cifications or performance characteristics used on the water-to-ai r cooler when the engine was originally certified). (E) Upon request of the manufacturer, the Executive Officer may extend the deadline set forth in section (c)(3)(A) or redu ce the minimum mileage required in section (c)(2)(C)(i)c. upon fin ding that the manufacturer has demonstrated good cause for the re quested extension or mileage reduction. (F) Upon request of the manufacturer, the Executive Officer may approve other compliance/enforcement testing protocols for (c)(3). The Executive Officer shall approve the request upon th e manufacturer demonstrating that other testing protocol will prov ide comparable assurance that the in-use engines comply with the m alfunction criteria established pursuant to Cal. Code Regs., title 13, sections 1971.1(e) through (g). (4) Additional Testing

. (A) If the results of the OBD emission tests conducted under section (c)(3) indicate that the OBD system properly illuminates t he MIL for all component/system monitors before emissions exceed t he malfunction criteria defined in Cal. Code Regs., title 13, sect ions 1971.1(e) through (g), no further testing is required. (B) If the results of the OBD emission tests conducted under section (c)(3) indicate that OBD system does not properly illumina te the MIL for one or more of the component/system monitor(s) before e missions exceed the malfunction criteria defined in Cal. Code Regs. , title 13, sections 1971.1(e) through (g), the engine manufacturer shal l conduct further testing on additional engines. (i) Within six months after the completion of testi ng required in section (c)(3), the engine manufacturer shall emission testan additional

four engines from the same engine rating and engine fami ly as the test engine. (ii) The engine manufacturer shall only be required to test the component/system monitor(s) for which the OBD emiss ion test results in (b)(3) exceeded the malfunction criteria defined in Cal. Code Regs., title 13, sections 1971.1(e) through (g ).18 (C) For manufacturers subject to section (c)(4)(B) above, no further testing is required if the results of the OBD emission test s conducted under section (c)(4)(B) indicate that OBD system properlyilluminates the MIL for the tested component/system monitor(s) before e missions exceed the malfunction criteria defined in Cal. Code Regs. , title 13, sections 1971.1(e) through (g) on three or more of the addit ional test engines. (D) For manufacturers subject to section (c)(4)(B) above, if the results of the OBD emission tests conducted under section (c)( 4)(B) indicate that the OBD system does not properly illuminate the MILfor one or more of the tested component/system monitor(s) before em issions exceed the malfunction criteria defined in Cal. Code Regs. , title 13, sections 1971.1(e) through (g) on two or more of the additio nal test engines, the engine manufacturer shall conduct further testing. (i) Within six months after the completion of testi ng required in section (c)(4)(B), the engine manufacturer shall test an ad ditional five engines from the same engine rating and engine fami ly as the previously tested engines. (ii) The engine manufacturer shall test only the co mponent/system monitor(s) for which the OBD emission test results exceeded the malfunction criteria defined in Cal. Code Regs., ti tle 13, sections 1971.1(e) through (g). (E) In any testing of the additional engines under section (c)(4), the engine manufacturer shall follow the engine selection and testing procedures set forth in sections (c)(2) and (c)(3) above. (5) ARB Authority to Observe Testing . The Executive Officer may elect to have ARB personnel observe the testing under sectio ns (c)(3) and (c)(4)

above. (A) During conducting of the test procedures descri bed in sections (c)(3) and (c)(4) above, an engine manufacturer, upon rece ipt of prior notice, must admit or cause to be admitted during operating hours any ARB personnel that has presented proper credentials to any of the following: (i) Any facility where tests or procedures or activ ities connected with such tests or procedures are performed; (ii) Any facility where a manufacturer procures, in spects, screens, removes from vehicles, works on, configures, or mod ifies engines for testing; and (iii) Any facility where any record or other docume nt relating to any of

the above is located. (B) Upon admission to any facility referred to in s ection (c)(5)(A) above, any ARB personnel must be allowed to: (i) Inspect and monitor any part or aspect of such procedures, activities, and testing facilities, including monit oring engine preconditioning, emissions tests, and break-in, mai ntenance, and engine storage procedures; (ii) Verify correlation or calibration of test equi pment;19 (iii) Inspect and make copies of any such records, designs, or other documents; and (iv) Inspect and/or photograph any part or aspect o f any such tested engine and any components or equipment used in the testing

thereof. (C) Any ARB personnel must be furnished by those in charge of a facility being inspected with such reasonable assistance as may be necessary to discharge any function listed in section (c)(5)( B) above. The engine manufacturer is required to cause those in charge o f a facility operated

for its benefit to furnish such reasonable assistan ce without charge to ARB irrespective of whether or not the engine manuf acturer controls the facility. (D) The duty to admit or cause to be admitted any A RB personnel applies whether or not the engine manufacturer owns or cont rols the facility in question and applies both to the domestic and forei gn engine manufacturers and facilities. If ARB personnel are prohibited from admission, the Executive Officer may reject any dat a produced by the manufacturer and may presume that the tested engine s do not

conform to certification standards. In such circum stances, the Executive Officer may suspend or revoke the engine’ s certification or take other necessary corrective action. (E) For purposes of section (c)(5): (i) “Presentation of credentials” means a display o f a document designating a person as an ARB employee. (ii) Where engine, component, or engine storage are as or facilities are concerned, “operating hours” means all times during which employees are at work in the vicinity of the area o r facility and have

access to it. (iii) Where facilities or areas other than those co vered by paragraph (c)(5)(E)(ii) above are concerned, “operating hours ” means all times during which an assembly line is in operation or du ring which testing, maintenance, break-in procedure, productio n or compilation of records, or any other procedure or activity is b eing conducted related to certification testing, translation of de signs from the test stage to the production stage, or engine manufactur e or assembly. (iv) “Reasonable assistance” includes providing cle rical, copying, interpretation and translation services, making per sonnel available upon request to inform ARB personnel of how the fac ility operates and to answer questions, and performing requested e missions test on any engine that is being, has been, or will be u sed for certification testing. Such tests must be nondestr uctive, but may require appropriate break-in. Upon service of a wr itten request from the Executive Officer for the appearance of an y employee at a facility qualified for reasonable assistance, the e ngine manufacturer shall cause the personal appearance of such qualifi ed employee to appear before and assist ARB personnel.20

(6) Manufacturer Reporting of Self-Testing Results to the Executive Officer

. (A) Within 30 days after completing the testing und er section (c)(3), the manufacturer shall submit a report of the results o f all the testing to the Executive Officer for review. If further testing i s required under section (c)(4), an additional report shall be submitted wit hin 30 days of completing the additional testing. The report(s) m ust include the following: (i) A description of each test engine and the engin e family and engine rating to which the test engine belongs to; (ii) A description of the test sequence (e.g., the number and types of preconditioning cycles) used for each testing; (iii) A description of the modified or deteriorated components used for fault simulation with respect to each testing; and (iv) The test results of all testing done under sections (c)(3) and (c)(4) for each test engine, consisting of: a. the weighted emission test results for all measu red pollutants for
each test; and b. the OBD data specified by Cal. Code Regs., title 13, section 1971.1(i)(4.3.2) collected prior to (or immediatelyafter) each engine shut-down during the testing of sections (c) (3) and (c)(4) including the preconditioning cycles. (7) Finding of Nonconformance after Manufacturer Self- Testing

. After the engine manufacturer has conducted testing pursuant to sections (c)(3) and (c)(4) and the Executive Officer has rec eived the test results pursuant to section (c)(6) above, the Executive Off icer shall make a finding of nonconformance of the OBD system in the engine class according to the criteria of section (b)(6)(A). (8) Executive Officer Notification to the Manufacturer Regarding

Determination of Nonconformance

. Upon making the determination of nonconformance in section (c)(7) above, the Executive Officer shall follow the proce dures and requirements of section (b)(7).

(d) Remedial Action. (1) Voluntary OBD-Related Recalls

. If a manufacturer initiates a voluntary OBD-related recall campaign, the manufacturer shall notify the Executive Officer of the recall at least 45 days before owner notification is to begin. The ma nufacturer shall also submit a voluntary OBD-related recall plan for appr oval, as prescribed under section (e)(1) below. A voluntary recall pla n shall be deemed approved unless disapproved by the Executive Office r within 30 days after receipt of the recall plan. (2) Influenced OBD-Related Recalls

. (A) Upon being notified by the Executive Officer, p ursuant to section (b)(7)(G), that an engine class is equipped with a nonconforming OBD system, the manufacturer may, within 45 days from t he date of service21 of such notification, elect to conduct an influence d OBD-related recall of all engines within the engine class for the purp ose of correcting the nonconforming OBD systems. Upon such an election, the manufacturer shall, within 45 days from the date ofsuch election, submit an influenced OBD-related recall plan for ap proval, as prescribed under section (e)(1) below. (B) If a manufacturer does not elect to conduct an influenced OBD-related recall under section (d)(2)(A) above, the Executive Officer may order the manufacturer to undertake appropriate remedial action, up to and including the recall and repair of the nonconformin g OBD systems. (3) Ordered Remedial Action-Mandatory Recall

. (A) Except as provided in sections (d)(3)(B) below, the Executive Officer shall order the recall and repair of all engines in an engine class that have been determined to be equipped with a nonconfo rming OBD system if enforcement testing conducted pursuant to sections (b) or (c)

above or information received from the manufacturer indicates that: (i) For major monitors required to meet the in-use performance ratio pursuant to Cal. Code Regs., title 13, section 1971 .1(d)(3.2) on 2016 and subsequent model year engines, the average in-use monitor performance ratio for one or more of the major monitors in the test sample group is less than or equal to 33.0 percent of the applicable required minimum ratio established in Ca l. Code Regs., title 13, section 1971.1(d)(3.2.2) (e.g., if the re quired ratio is 0.100, less than or equal to a ratio of 0.033) or 66.0 per cent or more of the vehicles in the test sample group have an in-use mo nitor performance ratio of less than or equal to 33.0 per cent of the applicable required minimum ratio established in Ca l. Code Regs., title 13, section 1971.1(d)(3.2.2) for the same maj or monitor. (ii) For major monitors required to indicate a malf unction before
emissions exceed a certain emission threshold, when the engine is tested in a vehicle and operated so as to reasonabl y encounter all monitoring conditions disclosed in the manufacturer ’s certification application, the OBD system is unable to detect and illuminate the MIL for a malfunction of a component/system monitor ed by the major monitor prior to emissions exceeding: a. For 2013 through 2015 model year OBD parent and child ratings subject to the “full OBD” requirement under Cal. Co de Regs., title 13, section 1971.1(d)(7.2.2), three times the appli cable major monitor malfunction criteria (e.g., if the malfunct ion criteria is 2.5 times the applicable standard, recall would be requ ired when emissions exceed 7.5 times the applicable standard, or if the malfunction criteria is the PM standard plus 0.02 g /bhp-hr and the PM standard is 0.01 g/bhp-hr, recall would be r equired when emissions exceeded 0.09 g-bhp-hr). b. For 2016 through 2018 model year engines:22 1. For engine ratings previously certified to Cal. Code Regs., title 13, section 1971.1(d)(7.2.3) for “extrapolate d OBD” in the 2013 through 2015 model years, three times the appl icable major monitor malfunction criteria (e.g., if the ma lfunction criteria is 2.5 times the applicable standard, reca ll would be required when emissions exceed 7.5 times the applic able standard, or if the malfunction criteria is the PM standard plus 0.02 g/bhp-hr and the PM standard is 0.01 g/bhp-hr, recall would be required when emissions exceeded 0.09 g-bh p-hr),

and 2. For all other engine ratings, three times the ma lfunction criteria for PM filter monitors subject to Cal. Cod e Regs., title 13, section 1971.1(e)(8.2.1)(C) (e.g., if the malfu nction criteria is the PM standard plus 0.02 g/bhp-hr and the PM st andard is 0.01 g/bhp-hr, recall would be required when emissi ons exceeded 0.09 g-bhp-hr) and two times the malfuncti on criteria for all other applicable major monitors. c. For 2019 and subsequent model year engines, two times the applicable major monitor malfunction criteria (e.g. , if the malfunction criteria is 2.5 times the applicable st andards, recall would be required when emissions exceed 5.0 times t he applicable standards). (iii) For 2016 and subsequent model year gasoline e ngines, the monitor for misfire causing catalyst damage is unab le to properly

detect and illuminate the MIL for misfire rates tha t are more than 20 percentage points greater than the misfire rates di sclosed by the manufacturer in its certification application as ca using catalyst damage (e.g., if the disclosed misfire rate is 12 p ercent, recall would be required if the misfire rate is greater th an 32 percent without proper detection). (iv) For 2016 and subsequent model year gasoline en gines, when the engine is tested in a vehicle and operated so as to reasonably encounter all monitoring conditions disclosed in th e manufacturer’s certification application, the evaporative system m onitor is unable to

detect and illuminate the MIL for a cumulative leak or leaks in the evaporative system equivalent to that caused by an orifice with a

diameter of at least 1.5 times the diameter of the required orifice in Cal. Code Regs., title 13, section 1971.1(f)(7.2.2) (B). (v) When the engine is tested in a vehicle and oper ated so as to reasonably encounter all monitoring conditions disc losed in the manufacturer’s certification application, the OBD s ystem cannot

detect and illuminate the MIL for a malfunction of a component that effectively disables a major monitor and the major monitor, by being disabled, meets the criteria for recall identified in sections (d)(3)(A)(ii) or (iv) above (e.g. is unable to dete ct and illuminate the23 MIL for malfunctions that cause FTP emissions to ex ceed two times the malfunction criteria). (vi) The engine class cannot be tested so as to obt ain valid test results

in accordance with the criteria identified in secti on (b)(6)(C)(ii) due to the nonconforming OBD II system. (B) An engine class shall not be subject to mandato ry recall if the Executive Officer determines that, even though a mo nitor meets a criterion set forth in section (d)(3)(A)(i)-(vi) fo r mandatory recall: (i) The OBD system can still detect and illuminate the MIL for all malfunctions monitored by the nonconforming monitor (e.g.,

monitor “A” is non-functional but monitor “B” is ab le to detect all malfunctions of the component(s) monitored by monit or “A”). (ii) The monitor meets the criterion solely due to a failure or deterioration mode of a monitored component or syst em that could not have been reasonably foreseen to occur by the m anufacturer. (iii) The failure or deterioration of the monitored component or system that cannot be properly detected causes the engine to be unoperable (e.g., engine stalls continuously or the transmission will not shift out of first gear, etc.) or causes an ove rt indication such that the operator is certain to respond and have th e problem corrected (e.g., illumination of an over-temperatur e warning light or charging system light that uncorrected will result in an undriveable vehicle, etc.). (C) A motor vehicle class that is not subject to ma ndatory recall pursuant to paragraph (d)(3)(B) may still be subject to reme dial action pursuant to section (d)(4) below. (4) Other Ordered Remedial Action

. (A) If the Executive Officer has determined based u pon enforcement testing conducted pursuant to sections (b) or (c) a bove or information received from the manufacturer that an engine class is equipped with a nonconforming OBD system and the nonconformance doe s not fall within the provisions of section (d)(3), he or she may require the manufacturer to undertake remedial action up to and including recall of the affected engine class. (B) In making his or her findings regarding remedia l action, the Executive Officer shall consider the capability of the OBD sy stem to properly function. This determination shall be based upon c onsideration of all relevant circumstances including, but not limited t o, those set forth

below. (i) Whether the manufacturer identified and informe d ARB about the nonconformance(s) or whether ARB identified the nonconformance(s) prior to being informed by the ma nufacturer. (ii) The number of nonconformances. (iii) If the identified nonconformance(s) is with a major monitor(s), the nature and extent of the nonconformance(s), includi ng:24 a. the degree to which the in-use monitor performan ce ratio(s) is below the required ratio(s) specified in Cal. Code Regs., title 13, section 1971.1(d)(3.2.2), and b. the amount of the emission exceedance(s) over th e established malfunction criteria set forth in Cal. Code Regs., title 13, sections 1971.1(e) through (g) before a malfunction is detected and the

MIL is illuminated. (iv) If the identified nonconformance(s) is with a non-major monitor, the nature and extent of the nonconformance(s), includi ng: a. the degree to which the in-use monitor performan ce ratio(s) (where applicable) is below the required ratio(s) s pecified in Cal. Code Regs., title 13, section 1971.1(d)(3.2.2), b. the degree to which the monitored component mustbe malfunctioning or exceed the established malfunctio n criteria set forth in Cal. Code Regs., title 13, sections 1971.1 (e) through (g)

before a malfunction is detected and the MIL is ill uminated, and c. the effect that the nonconformance(s) has on the operation of a major monitor(s). (v) The impact of the nonconformance on vehicle or engine owners (e.g., cost of future repairs, driveability, etc.) and the ability of the service and repair industry to make effective repai rs (e.g., difficulty in accessing fault information, diagnosing the rootcause of a failure, etc.). (vi) The degree to which the identified nonconforma nce(s) complicates, interferes with, disrupts, or hampers a service tec hnician’s or inspector’s ability to perform a California heavy-d uty vehicle or engine inspection. (vii) The failure of the data link connector of the engine class to meet the requirements of Cal. Code Regs., title 13, sect ion 1971.1(h)(2). (viii) The failure of the crankcase ventilation sys tem in the engine class to comply with the requirements of Cal. Code Regs., title 13, section 1971.1(g)(2). (ix) The failure of the cooling system monitor in t he engine class to properly verify that the cooling system reaches the highest enable temperature used for any other monitor when the eng ine is operated in a vehicle in the monitoring conditions disclosed in the manufacturer's certification application, or failur e to comply with any requirement in Cal. Code Regs., title 13, section 1 971.1(g)(1). (x) The estimated frequency that a monitor detects a malfunction and illuminates the MIL when no component malfunction i s present (i.e., false MILs). (xi) The estimated frequency that a monitor fails t o detect a malfunction and illuminate the MIL when the monitoring conditio ns, as set forth in the manufacturer’s approved certification applic ation, have been satisfied and a faulty or deteriorated monitored co mponent is present (i.e., false passes).25 (xii) Whether the manufacturer submitted false, ina ccurate, or incomplete documentation regarding the identified n onconformance at the time of certification pursuant to Cal. Code Regs., title 13, section 1971.1(j) and the extent to which the false , inaccurate, or incomplete documentation was material to the granti ng of

certification. (C) In making the determination, the average tailpi pe and evaporative emissions of engines within the affected engine cla ss shall not be

considered. (5) Assessment of Monetary Penalties

. The Executive Officer may seek penalties pursuant t o the applicable provisions of the Health and Safety Code for violat ions of the requirements of Cal. Code Regs., title 13, section 1971.1 or for production engines otherwise failing to be equipped with OBD systems t hat have been certified by ARB. In determining the penalty amoun ts that ARB may seek,

the Executive Officer shall consider all relevant c ircumstances including

the factors set forth below: (A) Whether the manufacturer self-reported the nonc onformity or ARB discovered the nonconformity independent of the man ufacturer. (B) The nature and degree of the nonconformity and whether the manufacturer should reasonably have discovered the nonconformity and taken corrective action by voluntary OBD-relate d recall or running changes during the production year. (C) The economic benefits, if any, gained by the ma nufacturer from not complying with the provisions of Cal. Code Regs., t itle 13, section

1971.1. (D) The manufacturer’s history of compliance with t he OBD requirements. (E) The preventative efforts taken by the manufactu rer to avoid nonconformance, including any programs followed by the manufacturer to ensure compliance. (F) The manufacturer’s efforts to correct the nonco nformity once it was

identified. (G) The innovative nature and magnitude of effort, including the cost of any other proposed remedial action, necessary to co rrect the nonconformity. (H) The deterrent effect of the penalty. (I) Whether the manufacturer has failed to provide complete and accurate information required to be submitted at the time ofcertification pursuant to Cal. Code Regs., title 13, section 1971 .1(j). (J) The nature and degree that OBD systems on produ ction engines differ from the systems that have been certified by ARB. (6) Notice to Manufacturer for an Ordered Remedial Act ion

. (A) The Executive Officer shall immediately notify the manufacturer upon the Executive Officer determining the type of remed ial action to be

taken.26 (B) For remedial actions other than the assessment of monetary penalties,

the notice must: (i) specifically set forth the remedial action thatis being ordered, (ii) include a description of the engine family(ies ), OBD group(s), or subgroup(s) thereof, that has been determined to ha ve a nonconforming OBD system, (iii) set forth the factual bases for the determina tion, and (iv) designate a date at least 45 days from the dat e of receipt of such notice by which the manufacturer shall submit a pla n, pursuant to section (e)(1) below, outlining the remedial action to be undertaken

consistent with the Executive Officer’s order. Exc ept as provided in section (d)(7)(C) below, all plans shall be submitt ed to the Chief, Mobile Source Operations Division, 9528 Telstar Ave nue, Suite 4, El Monte, California 91731, within the time limit s pecified in the notice. The Executive Officer may grant the manufa cturer an extension of time for good cause. (C) For cases in which ARB elects to seek monetary penalties pursuant to authority granted under the Health and Safety Code, the Executive

Officer shall issue a notice to the manufacturer th at he or she will be filing a complaint in the appropriate administrativ e or civil court forum seeking penalties against the manufacturer for viol ations of Cal. Code Regs., title 13, section 1971.1. The notice must i nclude a description of the engine family(ies), OBD group(s), or subgrou p(s) thereof, that have been determined to have a nonconforming OBD sy stem and set

forth the factual bases for the determination. (7) Availability of Public Hearing to Contest Remedial Actions Other than Determination to Seek Monetary Penalties

. (A) Within 45 days from the date of receipt of the notice that is required under section (d)(6) above, the manufacturer may re quest a public hearing pursuant to the procedures set forth in Cal . Code Regs., title 17, section 60055.1, et seq., to contest the findin gs of nonconformity, the necessity for, or the scope of any ordered reme dial action. Pursuant to those procedures, the Executive Officer has the initial burden of presenting evidence that those parts of t he Executive Officer’s determination specifically challenged are supported by the facts and applicable law. (Cal. Code Regs., title 17, §60055.32(d)(1).) Each issue of controversy shall be decided based up on the preponderance of the evidence presented at the hear ing. (Cal. Code Regs., title 17, §60055.32(h).) (B) Notwithstanding the provisions of Cal. Code Reg s., title 17, section 60055.17(a)(1), administrative hearings conducted p ursuant to a request filed under section (c)(7)(A) above shall b e referred to the Office of Administrative Hearings, which shall othe rwise follow the procedures established in Cal. Code Regs., title 17 , section 60055.1 et

seq.27 (C) If a manufacturer requests a public hearing pur suant to section (d)(7)(A) above and if the Executive Officer’s dete rmination of nonconformity is confirmed at the hearing, the manu facturer shall submit the required remedial action plan in accorda nce with section (e)(1) below within 30 days after receipt of the Bo ard’s decision.

(e) Requirements for Implementing Remedial Actions. (1) Remedial Action Plans

. (A) A manufacturer initiating a remedial action (vo luntary, influenced, or ordered), other than payment of monetary penalties, shall develop a remedial action plan that contains the following in formation, unless otherwise specified: (i) A description of each engine family, OBD group, or subgroup thereof covered by the remedial action, including t he number of engines, the engine families, or subgroups within t he identified class(es), the make(s), model(s), and model years o f the covered engines, and such other information as may be requi red to identify the covered engines. (ii) A description of the nonconforming OBD system and, in the case of a recall (whether voluntary, influenced, or ordered ), the specific modifications, alterations, repairs, adjustments, o r other changes to correct the nonconforming OBD system, including dat a and/or engineering evaluation supporting the specific corr ections. (iii) A description of the method that the manufact urer will use to determine the names and addresses of vehicle or eng ine owners

and the manufacturer’s method and schedule for noti fying the service facilities and vehicle or engine owners of the remedial

action. (iv) A copy of all instructions that the manufactur er will use to notify service facilities about the required remedial acti on and the specific corrections, if any, that will be required to be ma de to the nonconforming OBD systems. (v) A description of the procedure to be followed b y vehicle/engine

owners to obtain remedial action for the nonconform ing OBD system. This must include the date on or after whi ch the owner can have required remedial action performed, the time r easonably necessary to perform the labor to remedy the noncon formity, and the designation of facilities at which the nonconfo rmity can be

remedied. (vi) If some or all of the nonconforming OBD system s are to be remedied by persons other than dealers or authorize d warranty agents of the manufacturer, a description of such c lass of service agents and what steps, including a copy of all inst ructions mailed to such service agents, the manufacturer will take to assure that such agents are prepared and equipped to perform the pro posed

remedial action.28 (vii) A copy of the letter of notification to be se nt to vehicle or engine

owners. (viii) A proposed schedule for implementing the rem edial action, including identified increments of progress towards full implementation. (ix) A description of the method that the manufactu rer will use to assure that an adequate supply of parts will be ava ilable to initiate the remedial action campaign on the date set by the manufacturer and that an adequate supply of parts will continue to be available throughout the campaign. (x) A description and test data of the emission imp act, if any, that the proposed remedial action may cause to a representat ive engine from the engine class to be remedied. (xi) A description of the impact, if any, and suppo rting data and/or engineering evaluation that the proposed remedial a ction will have on fuel economy, driveability, performance, and saf ety of the engine class covered by the remedial action. (xii) Any other information, reports, or data which the Executive Officer may reasonably determine to be necessary to evaluat e the remedial action plan. (B) Approval and Implementation of Remedial Action Plans. (i) If the Executive Officer finds that the remedia l action plan is designed effectively to address the required remedi al action and complies with the provisions in section (e)(1)(A) a bove, he or she shall notify the manufacturer in writing within 30 days of receipt of the plan that the plan has been approved. (ii) The Executive Officer shall approve a voluntary, influenced, or ordered remedial action plan if the plan contains t he information specified in section (e)(1)(A) above and is designe d to notify the vehicle or engine owner and implement the remedial action in an expeditious manner. (iii) In disapproving an ordered remedial action pl an, the Executive Officer shall notify the manufacturer in writing ofthe disapproval

and the reasons for the determination. The manufacturer shall resubmit a revised remedial action plan that fully addresses the reasons for the Executive Officer’s disapproval wit hin 10 days of receipt of the disapproval notice. (iv) Upon receipt of the approval notice of the ord ered remedial action plan from the Executive Officer, the manufacturer s hall, within 45 days of receipt of the notice, begin to notify vehi cle or engine owners and implement the remedial action campaign. (v) If the Executive Officer disapproves a voluntary or influenced remedial action plan, the manufacturer shall either accept the proposed modifications to the plan as suggested by the Executive Officer, resubmit a revised remedial action plan th at fully addresses the reasons for the Executive Officer’s disapproval within 30 days29 or be subject to an Executive Officer order that th e manufacturer undertake appropriate remedial action pursuant to s ection (d)(2)(B)

above. (vi) Upon receipt of the voluntary or influenced re medial action approval notice from the Executive Officer, the man ufacturer shall begin to notify vehicle or engine owners and implem ent the remedial action campaign according to the schedule indicated in the remedial action plan. (2) Eligibility for Remedial Action

. (A) The manufacturer may not condition a vehicle or engine owner’s eligibility for remedial action required under sect ion 1971.5 on the proper maintenance or use of the engine. (B) The manufacturer shall not be obligated to repa ir a component which

has been modified or altered such that the remedial action cannot be performed without additional cost. (3) Notice to Owners

. (A) The manufacturer shall notify owners of vehicle s or engines in the engine class covered by the remedial order. The no tice must be made by first-class mail or by such other means as appro ved by the Executive Officer. When necessary, the Executive O fficer may require

the use of certified mail for ordered remedial acti ons to assure effective

notification. (B) The manufacturer shall use all reasonable meansnecessary to locate vehicle or engine owners, including motor vehicle r egistration lists available from the California Department of Motor V ehicles and

commercial sources such as R.L. Polk & Co. (C) The notice must contain the following: (i) For ordered remedial actions, a statement: “The California Air Resources Board has determined that your (vehicle o r engine) (is or may be) equipped with an improperly functioning on-board emission-related diagnostic system that violates es tablished standards and regulations that were adopted to prot ect your health and welfare from the dangers of air pollution.” (ii) For voluntary and influenced remedial actions, a statement: “Your (vehicle or engine) (is or may be) equipped with an improperly functioning on-board emission-related diagnostic sy stem that violates (California or California and Federal) sta ndards and regulations” if applicable as determined by the Exe cutive Officer. (iii) A statement that the nonconformity of any suc h engines will be remedied at the expense of the manufacturer. (iv) A statement that eligibility for remedial acti on may not be denied solely on the basis that the vehicle or engine owne r used parts not manufactured by the original equipment engine manuf acturer, or had repairs performed by outlets other than the eng ine

manufacturer’s franchised dealers.30 (v) Instructions to the vehicle or engine owners on how to obtain remedial action, including instructions on whom to contact (i.e., a description of the facilities where the vehicles or engines should be taken for the remedial action), the first date thata vehicle or engine may be brought in for remedial action, and the time that it will reasonably take to correct the nonconformity. (vi) The statement: “In order to assure your full p rotection under the emission warranty provisions, it is recommended tha t you have your (vehicle or engine) serviced as soon as possib le. Failure to do so could be determined as lack of proper maintenanc e of your (vehicle or engine).” (vii) A telephone number for vehicle or engine owne rs to call to report difficulty in obtaining remedial action. (viii) A card to be used by a vehicle or engine own er in the event the vehicle or engine to be recalled has been sold. Su ch card should be addressed to the manufacturer, have postage paid , and shall provide a space in which the owner may indicate the name and address of the person to whom the vehicle or engine was sold or

transferred. (ix) If the remedial action involves recall, the no tice must also provide: a. A clear description of the components that will be affected by the remedial action and a general statement of the meas ures to be taken to correct the nonconformity. b. A statement that such nonconformity, if not corr ected, may cause the vehicle or engine to fail an emission inspectio n. c. A statement describing the adverse effects, if a ny, of an uncorrected nonconforming OBD system on the perform ance, fuel economy, or durability of the engine.

d. A statement that after remedial action has been taken, the manufacturer will have the service facility issue a certificate showing that the engine has been corrected under th e recall program, and that such a certificate will be requir ed to be provided to the Department of Motor Vehicles as a c ondition for vehicle registration. (D) A notice sent pursuant to this section or any o ther communication sent to vehicle or engine owners or dealers may not cont ain any statement, expressed or implied, that the OBD system is compli ant or that the OBD system will not degrade air quality. (E) The Executive Officer shall inform the manufact urer of any other requirements pertaining to the notification under s ection (e)(3) which

the Executive Officer has determined as reasonable and necessary to assure the effectiveness of the recall campaign. (4) Label Indicating that Recall Repairs Have Been Per formed

. (A) If the required remedial action involves recall of engine family(ies), OBD group(s), or subgroup(s) thereof, the manufactu rer shall require31 those who perform inspections and/or recall repairs to affix a label to each vehicle that has been inspected and/or repaire d. (B) The label must be placed in a location approved by the Executive

Officer and must be fabricated of a material suitab le for such location in which it is installed and which is not readily r emovable. (C) The label must contain the remedial action camp aign number and a code designating the facility at which the remedial action or inspection to determine the need for remedial action was perfo rmed. (5) Proof of Performance of Remedial Action Certificat e

. If the required remedial action involves a recall, the manufacturer shall provide, through its service agents, to owners of v ehicles or engines that have had the remedial action performed a certificat e that confirms that the engine has been recalled and that required inspecti on and/or repairs have been performed. The Executive Officer shall prescr ibe a format for the certificate, which shall be consistent with the for mat required in Cal. Code Regs., title 13, section 2117 and section 2129. (6) Record Keeping and Reporting Requirements

. (A) The manufacturer shall maintain sufficient reco rds to enable the Executive Officer to conduct an analysis of the ade quacy of the

remedial action. (B) Unless otherwise specified by the Executive Off icer, the manufacturer shall report on the progress of the remedial action campaign by submitting reports for eight consecutive quarters c ommencing with the quarter immediately after the recall campaign begin s. The reports shall be submitted no later than 25 days after the close of each calendar quarter to: Chief, Mobile Source Operation s Division, 9528 Telstar Avenue, Suite 4, El Monte, California 91731 . For each recall campaign, the quarterly report must contain the fol lowing: (i) The engine family and the remedial action campa ign number designated by the manufacturer and a brief descript ion of the nature of the campaign. (ii) The date owner notifications began and date co mpleted. (iii) The number of engines involved in the remedia l action campaign. (iv) The number of engines known or estimated to be equipped with the nonconforming OBD system and an explanation of the means by which this number was determined. (v) The number of engines inspected during the camp aign since its inception. (vi) The number of engines found to be affected by the nonconformity during the campaign since its inception. (vii) The number of engines receiving remedial acti on during the campaign since its inception. (viii) The number of engines determined to be unava ilable for inspection or remedial action, during the campaign since its inception, due to exportation, theft, scrapping, or other reasons (specify).32 (ix) The number of engines, during the campaign sin ce its inception, determined to be ineligible for remedial action und er section (e)(2)(B). (x) An initial list, using the following data eleme nts and designated positions, indicating all vehicles or engines subje ct to recall that the manufacturer has not been invoiced for, or a subseq uent list indicating all engines subject to the recall that t he manufacturer has been invoiced for since the previous report. The l ist must be supplied in a standardized computer format to be sp ecified by the

Executive Officer. The data elements must be writt en in “ASCII” code without a comma separating each element. For example: XTY32A71234E-9456123408-25-91A. The add flag (see below) should reflect the vehicles or engines for which th e manufacturer has not been invoiced and the delete flag should re flect changes since the previous report. The Executive Officer ma y change the frequency or format of this submittal depending on the needs of enforcement. The Executive Officer may not, howeve r, require a frequency or format for this submittal that is diff erent in any way from the frequency or format determined by the Exec utive Officer as required for reporting of data in Cal. Code Regs ., title 13, section 2119(a)(10) and section 2133(a)(10).

Data Elements Positions

• File Code (designated by DMV) 1

• License Plate Number 2-8

• Last three VIN positions 9-11

• Recall ID Number 12-17

• Mfg. ID Number 18-22 (Mfg. Occupational License Number)

• Recall Start Date (mmddyyyy) 23-30

• Add or Delete Flag (A/D) 31

• Complete VIN if personalized license plate 32-48 (File Code “L” or “S”)

(xi) A copy of any service bulletins issued during the reporting period by the manufacturer to franchised dealerships or ot her service agents that relate to the nonconforming OBD system and the remedial action and have not previously been report ed to the

Executive Officer. (xii) A copy of all communications transmitted to v ehicle or engine owners that relate to the nonconforming OBD systems and the required remedial action and have not been previous ly reported to

the Executive Officer. (C) If the manufacturer determines that any of the information submitted to the Executive Officer pursuant to section (e) has c hanged or is33 incorrect, the manufacturer shall submit the revise d information, with an explanation. (D) The manufacturer shall maintain in a form suita ble for inspection, such as computer information, storage devices, or card f iles, and shall make

available to the Executive Officer or his or her au thorized representative upon request, the names and addresse s of vehicle or engine owners: (i) To whom notification was sent; (ii) Whose engines were repaired or inspected under the recall campaign; (iii) Whose engines were determined not to be eligi ble for remedial action because the engines were modified, altered, or unavailable due to exportation, theft, scrapping, or other reas on specified in the answer to sections (e)(6)(B)(viii) and (ix). (E) The information gathered by the manufacturer to compile the reports required by these procedures must be retained for n o less than one year beyond when engines within the engine class, o n average, exceed the defined full useful life of the engines and must be made available to authorized personnel of ARB upon reque st. (F) The filing of any report under the provisions o f these procedures must not affect the manufacturer’s responsibility to fil e reports or applications, obtain approval, or give notice under any other provisions

of law. (7) Extension of Time

. Upon request of the manufacturer, the Executive Off icer may extend any deadline set forth in section 1971.5(e) upon findin g that the manufacturer has demonstrated good cause for the requested exten sion.

(f) Penalties for Failing to Comply with the Requireme nts of Section (e). (1) In addition to the penalties that may be assess ed by the Executive Officer pursuant to section (d) because of a manufacturer’s failure to comply with the requirements of Cal. Code Regs., title 13, sect ion 1971.1, a manufacturer may be subject to penalties pursuant t o section 43016, Health and Safety Code for failing to comply with t he requirements of section (e). (2) If a manufacturer fails to comply with a volunt ary or influenced remedial action plan, the Executive Officer may order remedi al action pursuant to section (d) above.

NOTE: Authority cited: Sections 39600, 39601, 43000.5, 43 013, 43016, 43018, 43100, 43101, 43104, 43105, 43105.5, 43106, 43154, 43211, and 432 12, Health and Safety Code. Reference: Sections 39002, 39003, 39010, 39018, 39021.5, 39024 , 39024.5, 39027, 39027.3, 39028, 39029,
39031, 39032, 39032.5, 39033, 39035, 39037.05, 3903 7.5, 39038, 39039, 39040, 39042,
39042.5, 39046, 39047, 39053, 39054, 39058, 39059, 39060, 39515, 39600,- 39601, 43000,
43000.5, 43004, 43006, 43013, 43016, 43018, 43100, 43101, 43102, 43104, 43105, 43105.5,
43106, 43150, 43151, 43152, 43153, 43154, 43155, 43 156, 43204, 43211, and 43212, Health and Safety Code.