p.1 

OAR Box 1190 

Prepped by Candice Davis 

Document Number: 

33) IV-A-4 

Docket Number: 

A-90-28 

Printed 5/5/2008 9:13:50 AM Sheet 33 of 106 
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MOTO R AN D EQUIPMEN T MANUFACTURER S ASSOCIATIO N 

TESTIMONY AT EPA HEARING ON 

REQUEST BY CALIFORNIA FOR A SECTION 209(B) WAIVER 

OCTOBER 17, 1995 

Presented by: Paul Haluza, Director of Government 

Relations and Public Affairs, MEMA, and 

Marc Fleischaker, Counsel for MEMA 

We come here today to express the opposition of the Motor & Equipment 

Manufacturers Association ("MEMA") to the State of California's illusory request for a 

waiver to allow the enforcement of it's regulations of on-board diagnostics ("OBD") systems, 

13 CCR Section 1968.1. 

First, some background on who we are. MEMA is a national trade association 

representing approximately 750 U.S. manufacturers of motor vehicle components, replacement 

parts, accessories, automotive chemicals and car care products and related equipment. 

MEMA manufacturer members sell their products to the vehicle manufacturers as original 

equipment and to the independent aftermarket for use in the repair and servicing of motor 

vehicles from passenger cars and light-duty vehicles to heavy-duty trucks. 

I. Timing of Waiver Request 

As we open our testimony, we think it is appropriate to reflect on the timing of this 

hearing. We are asked to comment, today, on October 17, 1995, as to the appropriateness of a 

waiver to allow the California Air Resources Board ("CARB") to enforce its regulations for 

OBD II systems in place of the federal regulations for such systems. As we sit here today, 

the basic construct of the OBD II regulation for which California seeks a waiver is already in 

effect. CARB began its OBD II rulemaking process in 1989. CARB has required several of 

the provisions of its OBD rule to be incorporated into California-certified vehicles since the 

1994 model year. Indeed, in its June 14, 1995, letter to EPA requesting this hearing, CARB 

boasts that "several manufacturers were able to certify fully compliant monitoring systems" in 

the 1994-1995 model years. 

For six years, CARB has been adopting OBD II standards. For two model years, 

CARB has been enforcing OBD II standards. These standards, which are strikingly 

inconsistent with their federal statutory counterparts, have been adopted, modified and 

enforced by CARB over the last six years without the benefit of a waiver of federal 

preemption from EPA, and in direct contravention of Section 209(a) of the Clean Air Act. 

PHONE: aoa / 393-MEM A FAX: aoa / 737-3743 
? 

* . * 

Testimony of MEMA at EPA Hearing on 

California Request for Section 209(b) Waiver 

October 17, 1995 

Page 2 

The uninitiated might wonder how it is possible that EPA has allowed California to 

enforce its regulations without obtaining a waiver of federal preemption. Section 209(a) 

clearly prohibits any state from adopting or attempting to enforce standards relating to the 

control of emissions from new motor vehicles or new motor vehicle engines. 

It is also clear, from the language of Section 209(b), that the EPA Administrator is 

expected to enforce the preemption standard set forth in 209(a). The Administrator is charged 

with ensuring that, in the absence of a Section 209(b) waiver, EPA's emissions control 

standards are enforced as the law of the land in all 50 states. Somehow, the Administrator 

has turned a blind eye to this obligation during the past six years. 

Section 209(b) contains the only exception from the general rule that state standards 

for emissions controls are preempted by federal standards for emissions controls. This limited 

exception to the general rule of preemption allows the EPA Administrator to waive 

application of enforcement of Section 209(a) against California if, after notice and 

opportunity for public comment, California determines that its standards are at least as 

protective of the public health and welfare as the Federal standards, and the EPA finds that: 

(1) California's determination is not arbitrary and capricious; (2) California needs the 

standards to meet compelling and extraordinary conditions; and (3) California's standards and 

accompanying enforcement procedures are not inconsistent with the requirements of Section 

202. 

Section 209(b) manifestly contemplates the enforcement of California's standards only 

after a waiver has been granted. The D.C. Circuit has stated as much in Ford Motor Co. v. 

EPA, 606 F.2d 1293, 1294 (D.C. Cir. 1979), in which it declared: "After obtaining a waiver 

California can enforce within its borders its own pollution standards." 

But despite the clarity of the statutory directives and court interpretation, this hearing, 

on October 17, 1995, fully two years after California began enforcing its OBD II standards, 

marks the first opportunity EPA has provided to the motor vehicle aftermarket to address the 

inconsistency of the California rules with the federal statutory requirements. 

In fact, given the tremendous success CARB has had in adopting and enforcing its 

own standards for OBD systems during the last six years, in complete disregard of the 

inconsistent requirements of federal law, and with the tacit approval of EPA, maybe the 

greatest surprise here today is that CARB finally bothered to request a waiver hearing at all. 

Indeed this hearing might never have come to pass at all had it not been for objections 

MEMA filed in EPA's federal OBD Docket in April of this year. In these objections, and in 

MEMA's discussions with EPA, MEMA expressed its strenuous opposition to the EPA-
P.4 

Testimony of MEMA at EPA Hearing on 

California Request for Section 209(b) Waiver 

October 17, 1995 

Page 3 

sanctioned enforcement by CARB of the OBD II regulations without a Section 209(b) waiver. 

MEMA demanded that EPA hold a hearing on the California waiver request and on EPA's 

pre-waiver proposal that an OEM's compliance with OBD II be deemed to meet the federal 

OBD standard. . 

In May, MEMA agreed to withdraw these objections from the federal OBD docket in 

exchange for EPA's promise to hold this hearing, and a hearing on the California OBD II 

deemed-to-comply issue within 30 to 60 days. Had MEMA not filed these objections and 

forced the issue with EPA, I doubt whether we would even be here today, six years after 

California began the OBD II rulemaking process. MEMA has heard nothing further from 

EPA about its other promise five months ago to hold a hearing in May or June 1995 on its 

decision to allow California-certified cars to be deemed to comply with federal OBD 

standards. We are extremely disappointed by the failure of EPA to honor its commitment. 

Such a failure makes it less likely that parties such as MEMA will be willing to make such 

agreements in the future. 

California, for its part, is apparently unconcerned by the timing of its request. 

California's application for a waiver simply glosses over the issues posed by the timing of 

this request. The only mention to the timing of CARB's request is contained in its references 

to technological feasibility under NRDC v. EPA, 655 F.2d 318 (D.C. Cir. 1981), and 

International Harvester v. Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973). Here, CARB 

contends that it has met any concerns regarding the technological feasibility of the OBD 

system because it gave notice to vehicle manufacturers of its adoption of these standards in 

July 1989, it enforced these standards during the 1994 and 1995 model years, and it has 

already coerced at least five manufacturers into full compliance. 

CARB's statements ignore the fact that Section 209(a)'s prohibition on a states's 

adoption or enforcement of independent standards has been in effect since CARB initiated the 

OBD II proceedings in 1989. CARB had not received, and to this date has still not received, 

any waiver to "adopt" or "enforce" its OBD II standard. Since, under Section 209(a) and 

209(b), CARB had no authority to "adopt" its OBD II standard since 1989, to amend its OBD 

II standard in the intervening years, or to "enforce" the standard in 1994 and 1995, CARB's 

assertion that the standard's technological feasibility is proven by its successfully-coerced 

compliance with these standards, with the full complicity of EPA, is nothing short of 

arrogant. 

CARB cannot base its technological feasibility determination on its experience in the 

illegal promulgation and enforcement of a state OBD standard over the last six years. For 

this reason alone, the waiver request should be denied. That denial cannot be rescued now 
P.5 

Testimony of MEMA at EPA Hearing on 

California Request for Section 209(b) Waiver 

October 17, 1995 

Page 4 

because EPA has failed to act while CARB unlawfully forced the OEMs to spend the 

significant sums involved in designing an OBD system that meets its regulations. 

II. Waiver Analysis 

CARB contends that the scope of EPA's consideration of this request for a waiver 

should be very abbreviated. CARB concludes that OBD is not a standard for the control of 

emissions, but is simply an "accompanying enforcement procedure." As such, CARB argues 

that a complete waiver analysis is unnecessary. CARB suggests that EPA consider only: (1) 

whether Section 1968.1 is so lax it threatens the validity of California's determination that its 

standards are at least as protective of the public health and welfare as federal regulations, and 

(2) whether Section 1968.1 is consistent with Section 202(a) of the Clean Air Act. 

Even if CARB were correct, the waiver should be denied. In addition, however, 

MEMA strongly disagrees with CARB's rationale and proposed standard for the analysis of 

this waiver request. 

CARB's OBD II rule is not just an enforcement procedure — it sets a new emissions 

standard. Section 1968.1 states that, under the OBD regulatory scheme, a vehicle will not be 

considered to be "malfunctioning," and the OBD system will not illuminate a malfunction 

indicator light ("MIL") or store a fault code, until the monitored conditions indicate that the 

vehicle exceeds one and one-half (1.5) times the applicable California standard for vehicle 

emissions. 

In essence, OBD II thereby creates a new California emissions standard for these 

vehicles. That standard is one and one-half (1.5) times the existing emissions standard. 

California vehicles which exceed the emissions standard by less than fifty percent are not 

"malfunctioning" vehicles under this new California standard. The marginal emissions 

performance of such vehicles will not be monitored or identified by the California OBD II 

system. Since Section 1968.1 has the effect of creating a new emissions standard, a complete 

Section 209(b) waiver consideration is required. 

Further, not only does the California OBD system set a new standard for permissible 

vehicle emissions, the rule is itself a standard which requires a complete waiver analysis. The 

OBD system is mandated equipment without which a new vehicle cannot be certified in 

California. Consequently, OBD II is not simply a technique which measures enforcement, but 

is itself a "standard relating to the control of emissions for new motor vehicles or new motor 

vehicle engines." 
, FL6_ 

Testimony of MEMA at EPA Hearing on 

California Request for Section 209(b) Waiver 

October 17, 1995 

Page 5 

A complete Section 209(b) determination requires EPA to consider the following 

issues in conjunction with California's request for a waiver to allow enforcement of OBD II: 

(1) whether the California protectiveness determination was arbitrary and 

capricious; 

(2) whether California has demonstrated a compelling need for OBD II; and 

(3) whether OBD II is consistent with Section 202. 

The OBD II regulations, and the tampering protection provision in particular, fail to meet any 

prong of this test. 

A. The California Protectiveness Determination Was Arbitrary and 

Capricious 

On Thursday, December 8, 1994, California held a hearing on the OBD II revised 

standards. 

At that hearing, CARB board members stated that they recognized the new regulation 

would have an economic impact on the aftermarket, but they believed it unnecessary for them 

to consider how to lessen that impact. (Transcript of December 8, 1994 Meeting Before the 

California Air Resources Board (hereinafter "12/8/94 CARB Hearing Tr.") at 180-81, 202.) 

Indeed, CARB staff and board members acknowledged that, as of the time of 

promulgation of these new California standards, it remained unclear how access would be 

granted to allow aftermarket reprogramming of the OBD system, and how much discretion 

OEMs would have regarding aftermarket access. (12/8/94 Hearing Tr. at 47-52.) CARB staff 

maintained that it would be up to EPA to issue regulations to ensure OBD system access. 

(Id) 

At the same time, however, CARB rebuffed efforts by aftermarket and OEM 

representatives to defer consideration of the anti-tampering issue until EPA could address 

information availability. (Id at 70, 143, 173-74.) CARB ignored the warnings of aftermarket 

parts manufacturers and clean fuel conversion kit manufacturers that anti-tampering provisions 

would prohibit the necessary reverse engineering for these manufacturers to develop 

alternative components which are not identical in specification to OEM parts. (Id at 179-80, 

213.) CARB further disregarded the admonitions of the aftermarket service industry that 

prices will increase without the competition of independent parts manufactured in the 

aftermarket. (Id. at 186.) 
P.7 

Testimony of MEMA at EPA Hearing on 

California Request for Section 209(b) Waiver 

October 17, 1995 

Page 6 

Amazingly, CARB Board members were apparently unaware that Clean Air Act 

Section 203 contains anti-tampering protections that could be implemented to meet their 

£ j concerns about OBD system integrity. (Id at 174-77.) Further, CARB refused to allow these 

<Mj_xS>r federal anti-tampering protections to be given an opportunity to work before CARB 

A implemented its own anti-tampering protections. (Id at 171-77.) 

VJ^ Instead, CARB insisted on adopting its anti-tampering provision, while relying on EPA 

to remedy any problems created by this provision in EPA's access and information 

availability rulemaking. Of course, EPA is in no position to remedy the problems caused by 

CARB's anti-tampering provision since the California rules require encrypting, potting and 

soldering the OBD computer chip, and nothing in the federal rule addresses avoidance of such 

limitations on access. Therefore, the recently-released EPA information availability 

rulemaking does not serve to ease the difficulties posed to aftermarket parts and conversion 

kit manufacturers by CARB's anti-tampering provision. Indeed, federal policy, to which we 

have objected, permits vehicle manufacturers to certify compliance with California's OBD 

rules at least through the 1998 model year, and, in doing so, to avoid the federal OBD rule 

which does not now contain an anti-tampering provision as a result of earlier litigation with 

the aftermarket. 

In ignoring the concerns raised by OEMs and all sectors of the aftermarket industry, 

CARB. has frustrated both the EPA mandates to ensure access and information availability, 

and the intent of Section 202(m) that the aftermarket participate in the maintenance and repair 

of motor vehicles with OBD systems. 

CARB's new standards for OBD systems cannot possibly be as protective of the 

public health and welfare as the federal standards if those standards are not written in such a 

way as to meet clear Congressional intent regarding the protection of the competitive balance 

in the vehicle manufacturing and servicing industry. Notwithstanding the suggestion in 

MEMA v. EPA, 627 F.2d 1095, 1111 (D.C. Cir. 1979), to the contrary, we strongly believe 

that the public welfare requires consideration of matters beyond the environment, especially 

since Congress specifically included Clean Air Act provisions to ensure aftermarket 

. competitiveness. CARB's failure to integrate protections for this competitive balance in its 

new standards renders its protectiveness determination arbitrary and capricious, and requires 

that EPA deny the waiver request. 

California's protectiveness determination is also arbitrary and capricious because it 

failed to consider the consistency of OBD II with federal laws beyond the Clean Air Act. 

Specifically, the tampering protection provision is unenforceable because it is preempted by 

the Semiconductor Chip Protection Act, 17 U.S.C. §§ 900, et. seq. 
P.8 

Testimony of MEMA at EPA Hearing on 

California Request for Section 209(b) Waiver 

October 17, 1995 

Page 7 

OBD systems rely heavily on semiconductor chips as the "brains" of the system. The 

tampering protection provision of the regulation requires OEMs to use mechanisms to limit 

access to these chips by soldering, potting or otherwise sealing encrypted chips within the 

OBD computer. By affixing the chips within the on-board computer in this way, the removal 

of the chip can be accomplished only through the partial destruction of the OBD system. 

However, under Section 27156(b) of the California Vehicle Code, it is a criminal violation for 

any person to "disconnect, modify or alter" any required pollution control device on a vehicle, 

including an OBD system. 

As such, the tampering protection provisions criminalize the attempt to access an OBD 

computer chip. This criminalization is not only inconsistent with the access requirements 

stated in the federal Clean Air Act, it is also inconsistent with the rights specifically granted 

in the Semiconductor Chip Protection Act, 17 U.S.C. §§ 900 et. seq. 

That Act protects the design of a semiconductor chip from unauthorized copying. 

However, to ensure competition in the computer services industry, Congress also specifically 

authorizes the reverse engineering of semiconductor chips to ensure compatibility. See 17 

U.S.C. § 906(a); H. Rep. 98-781, Semiconductor Chip Protection Act of 1984 at 21-23. 

The most common method used to reverse engineer a computer chip involves the 

peeling of the layers of the chip and the capture of the structure of each layer on a series of 

photographs. This process requires the removal of the semiconductor chip from its location 

in the computer and the subsequent destruction of that chip. 

In passing the Semiconductor Chip Protection Act, the Congress carefully weighed the 

needs for the protection of intellectual property, on the one hand, and the needs of 

competitors to obtain information about the workings of a computer in order to market 

compatible products, on the other. In striking this delicate balance, the Congress determined 

that, while in most circumstances the duplication of the computer chip design is prohibited, 

the right to reverse engineer that chip design must be provided and protected in order to 

maintain competition in the computer services industry. 

The anti-tampering provision of Section 1968.1 eviscerates this careful balance struck 

by Congress. By requiring potting, soldering and encryption to deter extraction and 

tampering, the provision considerably complicates the effort to reverse engineer a computer 

chip. Further, and perhaps more importantly, Section 1968.1 has the effect of criminalizing 

the effort to extract and reverse engineer the chip, an effort that is specifically guaranteed 

under federal law. 
P.9 

Testimony of MEMA at EPA Hearing on 

California Request for Section 209(b) Waiver 

October 17, 1995 

Page 8 

California's failure to recognize and address the inherent conflict posed by the 

requirements of its state law with the dictates of applicable federal law renders its 

protectiveness hearing arbitrary and capricious. Because of this, and because the California 

standard is preempted by federal law beyond the Clean Air Act which EPA does not have the 

authority to waive, this request for a waiver should be denied. 

B. California Has Failed to Demonstrate a Compelling and Extraordinary 

Need for OBD II 

In its waiver request, California summarily concludes that it must need the new 

standard set forth in Section 1968.1 because it has a serious air pollution problem and a need 

to achieve maximum reductions in emissions. Certainly no one contests that serious air 

pollution problems exist in areas of California. Nor does anyone contest that those problems 

are caused by unique climactic conditions exacerbated by an extremely high concentration of 

motor vehicles which serve as the primary transportation source for the state. 

Nonetheless, it is difficult to imagine how California, or the EPA, can reach the 

determination that the state has a "compelling and extraordinary" need to implement OBD II 

to achieve necessary emissions reductions. The state has yet to fully implement its State 

Implementation Plan or "SIP", including its I/M Program, as mandated by Section 182 of the 

Clean Air Act. 

California has historically relied on technology-forcing solutions to reduce mobile 

source emissions. However, the Clean Air Act Amendments of 1990 added a new provision, 

Section 182, that established a menu of prescriptive mandates for non-attainment areas. 

These mandates vary depending on the severity of non-attainment. It is clear from the 

legislative history that California's unique problems were considered by the United States 

Congress when these provisions were developed. 

Representative Henry Waxman (D-CA), who was the voice and conscience of 

California during the Clean Air Act Amendment deliberations, fully supported the Section 182 

mandates. Indeed, all but four of the members of the California Congressional delegation 

voted for the Clean Air Act Amendments, mindful of the Section 182 provisions. 

Section 182 requires enhanced inspection and maintenance of motor vehicles. ,EPA 

has implemented this requirement in a program called I/M 240. EPA has also gone on the 

record to identify enhanced I & M as the most cost-effective means to reduce mobile source 

air pollution, at only $500 per ton. To date, California has rejected implementation of an I/M 

240 Program, and its SIP contains no plans to adopt the program. 
P.10 

Testimony of MEMA at EPA Hearing on 

California Request for Section 209(b) Waiver 

October 17, 1995 

Page 9 

Section 182 also requires the state to undertake transportation control measures in its 

most serious non-attainment areas. Transportation control measures are not part of 

California's SIP. It appears that California currently has no plans to meet its statutory 

obligation to comply with this provision either. 

We are aware that California reached agreement with EPA to avoid sanctions for not 

implementing an I/M 240 Program. Instead, in January of this year, California chose to adopt 

its own hybrid program, which will not be fully operational until 1997, even at the risk of 

losing full SIP credit. 

In his June 30, 1995, letter to EPA Administrator Browner introducing the I/M 

Program, California's Secretary for Environmental Protection characterized the program as 

"innovative", with "strong ~ and unprecedented - enforcement and accountability" and "with 

emissions reductions guaranteed under state law." Based on the significant emissions 

reductions anticipated by the I/M program, Secretary Strock requested "full credit" for these 

reductions under the California SIP. However, based on EPA's own standards for enhanced 

I/M programs, including recent revisions, the California plan will not meet the test for full 

SIP credit, and will fail to comply with the enhanced I& M requirements of Section 182. 

Given the Secretary's expressed optimism about the ability of the I/M Program to 

achieve significant emissions reductions, it seems incongruous that the state now seeks a 

waiver of Clean Air Act standards to enforce an entirely different OBD II program on the 

grounds of "compelling and extraordinary" need. If the I/M Program is as innovative and 

effective as Secretary Strock represents, and if it is, in fact, fully implemented, it may well 

obviate the need for California to have an OBD system which is separate from and 

inconsistent with federal requirements. 

At least, California's I&M Program should be implemented, and its results measured 

and compared with the high expectations for its performance, before California, and the EPA, 

conclude that an "compelling and extraordinary" need requires that it enforce and maintain a 

separate OBD standard. How can California determine, at this stage, that its SIP and I/M 

Program are inadequate to address California's air pollution problem? 

Further, how can CARB, or EPA, justify the state's request for a waiver of federal 

emissions requirements to allow enforcement of OBD II on the grounds of "compelling and 

extraordinary" need when California has failed to implement the available technology 

mandated for its use under the Clean Air Act Amendments? The special exception to 

preemption available to California under Section 209(b) cannot be used as a substitute for 

compliance with the mandates of Section 182. Absent that compliance, California has no 

basis for claiming "compelling and extraordinary" need for a Section 209(b) waiver. 
P.11 

Testimony of MEMA at EPA Hearing on 

California Request for Section 209(b) Waiver 

October 17, 1995 

Page 10 

California has also failed to demonstrate "compelling and extraordinary" need in 

another area. There has been no explanation by CARB as to whether the anti-tampering 

techniques mandated are vitally necessary to meet unique California conditions. Indeed, 

CARB apparently sees its anti-tampering provisions as a way to assist the state in avoiding its 

Section 182 mandate for enhanced I&M. 

Further, there has been no demonstration of a substantial threat to the OBD system 

integrity which requires employment of such methods, especially in light of the tampering 

prohibition protections provided in Section 203 and the access and information availability 

mandates of Section 202(m). In fact, MEMA worked with Congress during the development 

of the Clean Air Act Amendments of 1990 to expand the anti-tampering protections by 

providing the government broader power for enforcement of emissions tampering. 

California has failed to show an "compelling and extraordinary" need for the OBD II 

standard and for the anti-tampering provisions contained within that standard. As such, 

California fails to meet the second prong of the Section 209(b) waiver test. The waiver 

should be denied on this basis. 

C. Section 1968.1 Is Inconsistent with Section 202 of the Clean Air Act 

The third prong of the Section 209(b) analysis is whether the California standard for 

which waiver is sought is consistent with the provisions of Section 202(a) of the Clean Air 

Act. This prong is an essential consideration even if OBD II is determined to be an 

enforcement procedure rather than a standard. The analysis here dictates that OBD n, and its 

tampering protection provision in particular, cannot meet this test. 

Section 202(a) provides the EPA Administrator with general authority to promulgate 

regulations under the subsections of Section 202, subject to the provisions outlined therein. 

Under the Section 209(b) waiver analysis, the EPA Administrator must consider whether a 

California standard for which waiver is sought is consistent with the regulatory authority 

provided to the Administrator under Section 202(a). If the Administrator would be 

specifically prohibited from issuing the regulation pursuant to her authority under Section 

. 202(a) because of a safeguard provided in Section 202 for a protected class of businesses, the 

California standard must be deemed inconsistent with Section 202(a). 

The D.C. Circuit addressed precisely this issue in AMC v. Blum. 603 F.2d 978, 981 

(D.C. Cir. 1979). In that opinion, the appellate court vacated the Administrator's decision to 

grant a waiver to a California regulation which denied implementation lead time specifically 

provided in Section 202(b)(1)(B) for small volume OEMs. 
P.12 

Testimony of MEMA at EPA Hearing on 

California Request for Section 209(b) Waiver 

October 17, 1995 

Page 11 

The EPA opposed AMC's claim that California could not obtain a waiver for 

enforcement of a standard that was inconsistent with Section 202(b). The EPA argued that 

the California regulation did not need to be consistent with Section 202(b) but only with the 

provisions of Section 202(a). The D.C. Circuit found that the EPA was mistaken in its overliteral interpretation of the consistency criteria contained in Section 209(b). The court held 

that the correct interpretation of the consistency criteria of Section 209(b) is that it requires 

EPA to incorporate into Section 202(a) congressional mandates contained in the other 

subsections of Section 202. The court concluded that a contrary interpretation would permit 

the frustration of a specifically stated Congressional purpose. 

Similarly, here, the consistency criteria of Section 209(b) must be interpreted as 

requiring the consistency of the California standard with the congressional mandates in 

Section 202(m), not just those contained in Section 202(a). Congress included in Section 

202(m) carefully tailored provisions to protect the viability of the aftermarket by ensuring that 

access and information regarding the operation of the OBD system was provided to 

aftermarket businesses. Sections 202(m)(4), 202(m)(5), 42 U.S.C. §§ 7521(m)(4), 

7521(m)(5). 

In offering the amendment that is the predecessor to Sections 202(m)(4) and 202(m)(5) 

of the Clean Air Act, then-Senator Gore stated: 

[I]n an effort to make certain that we do not inadvertently curtail a vehicle 

owner's right to choose where he or she pays to have their car or tmck 

repaired, nor thwart competition in the repair industry, I am today offering an 

amendment that would require EPA to adopt rules prior to the introduction of 

these [OBD] systems that ensure access and ease of use for all those engaged 

in vehicle service, diagnostics and repair. . . . [and to prevent] the creation of a 

service monopoly for the manufacturers and their dealerships, leading to 

unnecessary waiting periods and increased repair costs for the consumer. 

136 Cong. Rec. S3271-72 (daily ed. Mar. 27, 1990) (statement of Sen. Gore). The 

House Committee Report issued after the Gore Amendment was incorporated into Section 

202(m) also reflects this sentiment. It states: 

The requirement that access to emission control diagnostic systems be 

standardized is intended to assure that the emission control diagnostic systems 

produce information which will be widely accessible, and can therefore be 

expected to be more widely utilized and to .. . . assure that manufacturers are 

not able to use such diagnostic systems to achieve an effective monopoly on 

automotive servicing by designing systems that can only be accessed at 
Testimony of MEMA at EPA Hearing on 

California Request for Section 209(b) Waiver 

October 17, 1995 

Page 12 

franchised dealers. . . . This is important for a competitive aftermarket 

servicing industry in which independent automotive repair facilities will have 

equal access to all diagnostics systems. 

H.R. Rep. No. 101-490, 101st Cong., 2d Sess. 306 (1990). 

Congress carefully considered the proprietary needs of the automobile manufacturers 

and the economic needs of the aftermarket industry in concluding that OBD system access, 

ease of use and information availability were necessary to ensure a competitive marketplace. 

136 Cong. Rec. S3272 (daily ed. Mar. 27, 1990) (colloquy between Senators Gore and 

Baucus). When Congress has carefully crafted legislation striking a delicate balance between 

competing interest groups, neither EPA nor a state seeking a waiver of federal preemption has 

the authority to disregard these dictates. 

The tampering protection provision set out in Section 1968.1 does just this. The 

California provision requires that "computer-coded engine operating parameters shall not be 

changeable without the use of specialized tools and procedures (e.g., soldered or potted 

computer components)." The provision also requires that the manufacturers "employ proven 

methods to deter unauthorized reprogramming . . . including data encryption .. . and write 

protect features requiring electronic access to an off-site computer maintained by the 

manufacturer." 

These provisions stand in marked contrast to the Congressional mandates contained in 

Section 202(m)(4). Section 202(m)(4) requires that access be "standard and uniform on all 

motor vehicles;" "unrestricted and shall not require any access code or any device which is 

only available from the manufacturer;" and "usable without the need for any unique decoding 

information or device." 

The California standard clearly violates all of these requirements. Access to OBD 

system information under OBD U will be far from "unrestricted." The soldering, potting and 

encryption techniques required by the tampering protection provision will ensure that. 

Further, under the California standard, the output data provided by the OBD system will not 

be usable without unique decoding information which is only available from the manufacturer. 

The California tampering protection provision specifically directs that reprogramming will 

require .electronic access to an off-site computer maintained by the manufacturer and that the 

OBD computer chips be encrypted. As such, the California standard mandates that access 

and unique decoding information is available only from the manufacturer, as expressly 

prohibited by Section 202(m)(4)(B). 
P.M 

Testimony of MEMA at EPA Hearing on 

California Request for Section 209(b) Waiver 

October 17, 1995 

Page 13 

In addition, CARB Mail-Out No. 95-20 clarifies that OBD II system fault codes will 

not be standard and uniform. The mail-out contemplates the prevalent use of manufacturerspecific fault codes - the key to which will clearly also be available only from the 

manufacturer. 

Further, CARB's allowance of multitudinous fault codes by each and every OEM 

considerably complicates the efforts of the aftermarket to participate in the maintenance and 

repair of motor vehicles. Will each service station be required to maintain a library of 

volumes containing the keys to the manufacturer-specific fault codes? Will new codes be 

regularly added and distributed to the aftermarket? How will those codes be indexed? Will 

these manufacturer-specific fault codes be employed by OEMs to defeat the use of generic 

vehicle components? 

Clearly then, the CARB regulations succeed "in violating both the letter of Section 

202(m) and the intent of that section as well. Under CARB's OBD II, the unrestricted access 

and ease of use of the OBD system contemplated by Congress cannot be achieved. 

Further, the information availability mie promulgated by EPA to meet the 

requirements of Section 202(m)(5) does not resolve the access and ease of use problems 

created by the CARB mie. The focus of the EPA mlemaking was simply to require the 

provision by the OEMs of the information necessary to read fault codes in vehicles with OBD 

systems. The mlemaking does not address the access needs of parts manufacturers or 

conversion kit manufacturers. 

The fact that the OEMs have promised to provide their parts specifications to the 

aftermarket does not resolve the dilemma, either. Congressionally-intended access to the 

OBD system remains necessary for parts and conversion kit manufacturers to design, test and 

produce alternative components which are not identical to OE components and which will not 

trigger a malfunction indicator light. Without this relief, the aftermarket cannot be ensured an 

equal footing in the competitive market for the provision of vehicle equipment and services. 

The EPA cannot grant a waiver which will allow California to legally enforce a 

provision which is in direct contravention of the federal mandates. To paraphrase from AMC 

v. Blum, if EPA did grant such a waiver, then "any state, by adopting the standards 

established by California under its waiver from EPA may deny [to the aftermarket, the 

access] which Congress has found to be necessary. [EPA] must reject an interpretation that 

would permit such a fmstration of congressional purpose. [Congressional mandates] cannot 

be obviated by waiver." 603 F.2d at 981. 
P.15 

Testimony of MEMA at EPA Hearing on 

California Request for Section 209(b) Waiver 

October 17, 1995 

Page 14 

The inconsistency between the California and federal mandates for tampering 

protection and unrestricted access also causes the California standard to fail the EPA's oftenstated test for 202(a) consistency. According to this test, California's standards and 

accompanying enforcement procedures are inconsistent with Section 202(a) if: (1) there is 

inadequate lead time to permit the development of technology necessary to meet those 

requirements, giving appropriate consideration to the cost of compliance within that time 

frame, or (2) the federal and California test procedures impose inconsistent certification 

requirements so as to make a manufacturer unable to meet both sets of requirements within 

the same test vehicle. See, e.g., 46 Fed. Reg. 26371, 26373 (May 12, 1981). 

The inconsistent requirements imposed by California for tampering protection and by 

Congress for unrestricted access cannot be met on the same test vehicle. Because these 

conflicting tampering protection and uninhibited access requirements cannot be met on a 

single test vehicle, the California standard must be deemed fatally inconsistent with Section 

202(a) and cannot be granted a waiver of federal preemption. Consequently, EPA cannot 

allow OEMs complying with the California standard and implementing its tampering 

protection provisions to be deemed to comply with federal OBD regulations as well. 

As the DC Circuit held in Ford v. EPA "[It is implausible] that Congress intended to 

make standards adopted by California for its own particular problems, and never substantively 

reviewed for stringency or national protectiveness by federal officials, an option which auto 

manufacturers can choose in the rest of the country as an alternative to compliance with the 

federal standards which Congress determined are in the best interests of the nation." 606 F.2d 

at 1301-02. 

EPA does not have the authority to delegate its mlemaking responsibility for all fifty 

states to the State of California. Similarly, the State of California does not have the authority 

by virtue of a waiver of federal preemption to adopt emissions standards which fmstrate 

national policies enacted by statute in federal law. 

California's OBD II mie is not more protective of the public health and welfare than 

the Clean Air Act emissions requirements, is not justified by a "compelling and extraordinary 

need," and is inconsistent with Section 202 of the Clean Air Act. As such, it fails to meet 

any of the criteria set forth in Section 209(b) for a waiver of federal preemption. 

Consequently, California's waiver request must be-denied.