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OAR Box 1190 

Prepped by Candice Davis 

Document Number: 

36) IV-A-7 

Docket Number: 

A-90-28 

Printed 5/5/2008 9:13:50 AM Sheet 36 of 106 
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TESTIMONY OF THE 

AUTOMOTIVE PARTS REBUILDERS ASSOCIATION 

AND 

AUTOMOTIVE ENGINE REBUILDERS ASSOCIATION 

ON THE 

REQUEST FROM THE CALIFORNIA AIR 

RESOURCES BOARD FOR A SECTION 209(b) 

WAIVER FOR ITS ON-BOARD-DIAGNOSTIC II REGULATIONS 

OCTOBER 17, 1995 

(This testimony was prepared by Michael J. Conlon, legal counsel 

to both APRA and AERA. Mr. Conlon would normally have come to 

testify himself. However, because APRA is conducting its board 

meeting and trade show this week, Mr. Conlon is unable to be 

here. Aaron Lowe of the Automotive Parts & Accessories 

Association has been asked to read this statement for him.) 

The Automotive Parts Rebuilders Association (APRA) and the 

Automotive Engine Rebuilders Association (AERA) appreciate the 

opportunity to present testimony on whether EPA should grant a 

waiver to the State of California under Section 209(b) of the Clean 

Air Act for its On-Board-Diagnostic II Regulations. 

APRA is an international trade association for businesses 

which rebuild motor vehicle parts (other than engines) for resale 

and reuse. It has over 1,900 members. 

AERA is the international clearing house for engine rebuilding 

specifications and machine shop information. Its over 3,750 

members include rebuilders of light duty, heavy duty, industrial, 

high performance and marine internal combustion engines. 

Motor vehicle parts have been rebuilt for well over fifty 

years and rebuilders are among the pioneers of business ecology. 

Rebuilding is the ultimate form of recycling. Unlike mere reuse of 

recyclable materials, it extends product life and saves more of the 

energy, materials and labor that went into originally manufacturing 

the product. 
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Both APRA and AERA oppose California's reguest for a waiver. 

We believe that the tampering provision in the OBD II regulations 

is not consistent with Section 202(a) of the Federal Clean Air Act. 

Moreover, implementation of this provision will severely and 

unnecessarily limit the number of service facilities where 

consumers may have emissions related repairs made. The resultant 

increase in inconvenience and expense will cause consumers to delay 

making necessary repairs, thus reducing the effectiveness of the 

OBD program. Finally, the provision directly contradicts clear 

Congressional intent that OBD systems not be used to prevent 

independent service facilities from performing emission related 

repairs. 

Among the regulations to be issued under Section 202(a) is one 

under Section 202(m)(5) which requires the vehicle manufacturer to 

provide to the vehicle service industry "any and all information 

needed to make use of the emission control diagnostics system 

prescribed under this subsection and such other information 

including instructions for making emission related diagnosis and 

repairs." This provision is broad and all-inclusive. Information 

may only be withheld for one reason, that is, "the protection of 

methods or processes entitled to protection as trade secrets under 

Section 208(c) of the Act." Denial of information to the service 

industry to prevent possible tampering is not permitted or even 

condoned — no matter how well-intentioned. 

Section (d) of the California regulation, titled "Tampering 

Protection," imposes blanket restrictions on the free availability 

of information in OBD II systems without specifying how such 
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restrictions are necessary to protect trade secreted methods or 

processes and without requiring vehicle manufacturers to 

demonstrate such a necessity. In fact, the California regulation 

provides no justification of any sort for the restrictions on 

access it requires. 

The regulation actually implies that information can be denied 

for almost any reason — at the discretion of the vehicle 

manufacturer — because it allows manufacturers to exempt 

themselves from the protection features for reasons relating to 

chip availability, performance of the vehicle and sales volume. 

None of these relate to trade secret protection. 

In its information access regulation, written pursuant to 

Section 202(a), EPA has instructed vehicle manufacturers to provide 

data stream information, bi-directional control capability and 

reprogramming capability to the service sector under certain 

conditions. The only information which was totally withheld from 

the aftermarket was recalibration information. However, in all 

cases EPA only allowed information to be withheld or restricted 

because the manufacturers claimed that otherwise a secret method or 

process would be disclosed. 

By requiring enhanced tamper protection strategies for OBD II 

systems, including data encryption and write protect features, 

without limiting such protection to those necessary to protect 

secret methods and processes, California has adopted a standard 

which is inconsistent with the information availability 

requirements of Section 202 and EPA's own regulations. Congress 

chose not to allow information to be withheld as a means of 
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addressing supposed tampering problems. And EPA has no authority 

to bestow greater rights on California. Therefore, a waiver may 

not be granted. 

California's restrictions will also hamper repair of emissions 

related defects. By limiting accessibility to the information 

needed by the independent market to make these repairs, it is 

assuring that when (and if) the repairs are made they will be more 

inconvenient and expensive for consumers. For that reason 

consumers will delay having the service done or balk at paying high 

prices if the situation mandates repairs. Limiting the number of 

service outlets and increasing consumer costs is directly contrary 

to Congressional intent. 

Finally, we would remind EPA that it has previously withdrawn 

its own anti-tampering regulations relating to OBD systems. At the 

time it did so it stated, "EPA is continuing to review its policy 

concerns regarding tampering. EPA may in the future determine that 

it is appropriate to promulgate new regulations to address these 

concerns." To our knowledge EPA has not yet decided whether it is 

possible to adopt anti-tampering regulations consistent with the 

requirements of Section 202(m) or whether such regulations are even 

necessary. Therefore, since EPA has still not resolved these 

issues, it cannot grant a waiver to California for rules which 

would usurp this authority. 

APRA and AERA therefore respectfully submit that EPA may not 

legally grant the waiver, and therefore request that it be denied. 

Thank you for your time and attention.