p.1 

OAR Box 1190 

Prepped by Candice Davis 

Document Number: 

35) IV-A-6 

Docket Number: 

A-90-28 

Printed 5/5/2008 9:13:50 AM Sheet 35 of 106 
P.2 

VV) -r.- 6 

TESTIMONY OF THE SPECIALTY EQUIPMENT MARKET ASSOCIATION 

AND THE AUTO INTERNATIONAL ASSOCIATION 

ON CALIFORNIA WAIVER REQUEST, OBD II REGULATIONS 

Christopher J. Kersting 

SEMA/AIA Legal Counsel 

OCTOBER 17, 1995 

I. Introduction 

The following statement is submitted on behalf of the 

Specialty Equipment Market Association (SEMA) and the Auto 

International Association (AIA). SEMA is made up of over 2800 

member businesses who manufacture, import and distribute 

automotive parts and accessories. AIA is comprised of over 300 

member companies who import, manufacture and distribute 

automotive parts primarily for foreign name-plate vehicles. For 

purposes of this testimony I will refer to these organizations as 

"the Associations." The members of these organizations help make 

up the independent automotive aftermarket, providing consumers 

the benefits of choice, quality and competitive prices in 

obtaining vehicle service and repairs. The Associations and AIA 

appreciate the opportunity to provide the following statements on 

an issue they feel is critical to the industry's future. 

The California Air Resources Board (CARB) long ago adopted 

regulations which have as their purpose the control of emissions 

from motor vehicles. California is rare among the states in 

being able to adopt its own emission control regulations, all 

other states being preempted as a matter of federal law. 

California may establish emissions standards but only if it 

complies with statutory waiver procedures set forth under Section 

209 of the Clean Air Act (CAA). For some time now, California's 

clean air program has established standards of performance for 

new and in-use motor vehicles. However, it has become 

increasingly apparent that while new vehicles can be produced to 

meet stringent emission standards, it is more difficult to insure 

that those standards are met during the life of the vehicle. 

In order to deal with in-use compliance, CARB has adopted 

and enforced regulations requiring on-board diagnostic systems 

for 1994 and later model year vehicles (OBD II). .These 

regulations have undergone a series of amendments, the most 

recent of which was formally adopted by CARB on April 26, 1995. 

The Associations have provided comments and testimony throughout 

CARB's rulemaking procedures. During this time, CARB has been 
P.3 

October 17, 1995 

Page 2 

enforcing these regulations, boldly ignoring the Section 209(b) 

requirement that it obtain a waiver prior to adopting and 

enforcing OBD II. 

Both CARB and EPA acknowledge that CARB has been enforcing 

its OBD II requirements without a waiver. Now, two or more years 

since beginning enforcement, CARB is finally seeking the waiver 

it should have requested three years ago. 

While CARB has been developing and enforcing its OBD II 

requirements, EPA has simultaneously been promulgating OBD 

regulations pursuant to CAA Section 202(m), established with the 

CAA Amendments of 1990. EPA's OBD program creates standards for 

new motor vehicles which will be offered for sale in all states 

except California and those states having adopted California's 

emission control standards. Again, the Associations have 

actively participated in the development of EPA's OBD 

regulations. The Associations have been involved because OBD 

poses a risk to the aftermarket, a risk that Congress sought to 

minimize in drafting the language of Section 202(m). 

Specifically, Congress was concerned that OBD systems could be 

used to exclude the aftermarket from performing vehicle service 

and repair. To counter this threat, Congress provided detailed 

language requiring that OBD-related information be made available 

to the aftermarket and that the system not contain features which 

could allow vehicle manufacturers to eliminate aftermarket 

service.1 

As explained more fully below, when EPA's regulations have 

strayed from the mandates of Section 202(m), SEMA, AIA and other 

aftermarket organizations have challenged the regulations. Most 

relevant to CARB's waiver request is the aftermarket's challenge 

in federal appeals court objecting to certain "antitampering" 

provisions we felt were contrary to the requirements of Section 

202(m). As a result of the petition, EPA agreed to have the 

court vacate the antitampering provisions, including language 

that would have allowed compliance with the federal rule through 

1998 by demonstrating compliance with California's OBD II 

antitampering requirements."2 

It is against this background that CARB has now determined 

to move forward with its waiver request. By letter of June 14, 

1995, CARB has stated that regardless of whether EPA views the 

See CAA Sees. 202(m) (4), 202(m) (5) , 42 U.S.C. 

7521(m)(4), 42 U.S.C. § 7521(m)(5) (as amended, 1990) 

59 Fed. Reg. 51114, 51115, (1994). 
P.4 

October 17, 1995 

Page 3 

OBD II regulation as an accompanying enforcement procedure or as 

new standards, the requisite findings to support a grant of 

waiver of federal preemption have been met. The Associations 

disagree and request that the waiver request be denied for the 

reasons set forth below. 

II. Waiver Analysis 

a. The ARB OBD Regulation is a "Standard" 

Section 209 of the Clean Air Act requires EPA to waive 

federal preemption of motor vehicle emission control regulations 

for the State of California unless EPA makes certain findings 

that the waiver is inappropriate.3 If the regulation is viewed 

as a "standard" California must first determine that the standard 

will be, in the aggregate, at least as protective of public 

health and welfare as applicable federal standards. Thereafter, 

EPA shall not grant the waiver if it finds (1) that the state's 

protectiveness determination is arbitrary and capricious, (2) 

that the state does not need separate state standards to meet 

compelling and extraordinary conditions, or (3) that the state 

standards and accompanying enforcement procedures are not 

consistent with Section 202(a) of the CAA.4 On the other hand, 

if the EPA determines that the regulations are "accompanying 

enforcement procedures" pertaining to standards for which a 

waiver has already been granted, the EPA only considers whether 

the enforcement procedures endanger a previously determined 

protectiveness determination and whether the enforcement 

procedure is consistent with the intent of Section 202(a) of the 

CAA.5 

The Associations assert that the CARB OBD II regulation is a 

standard. CARB's OBD II would create a new level for in-use 

emissions, requiring a malfunction indicator lamp to be lighted 

when the OBD system predicts a vehicle is operating at 1.5 times 

the allowable new vehicle emission standards. California will 

not allow the registration of a vehicle prior to having an MIL 

problem corrected. Vehicle owners will be instructed to seek 

diagnostic service and repairs when the MIL is lit. Clearly, 

Motor & Equipment Manufacturers Association, (MEMA) et 

al. v. EPA. 627 F.2d 1095, 1100. (D.C. Cir. 1979). 

Id. at 1111. 

Id. at 1114. 
P.5 

October 17, 1995 

Page 4 

1.5x requirement establishes a new maximum tolerable emission 

level. On this point the court in MEMA reasoned: 

"The Administrator has consistently made a distinction 

between standards and accompanying enforcement 

procedures, confining the former to regulations on 

quantitative levels of emissions. In construing the 

word "standards" in another section of the Clean Air 

Act, the Supreme Court defined the term as "a 

quantitative 'level' to be attained by the use of 

'techniques,''controls,' and 'technology.' Adamo 

Wrecking Co. v. United States. 434 U.S. 275, 286, 98 

S.Ct. 566, 573, 54 L.Ed. 2d 538 (1978). In light of 

these considerations, we cannot conclude the 

"Administrator's definition is unreasonable".6 

On the basis of the foregoing the Associations assert the 

CARB OBD II regulations represent a "standard." Therefore, the 

three part analysis I've noted above is appropriate in reviewing 

the ARB waiver application. However, should EPA determine the 

regulations are accompanying enforcement procedures, the 

Associations submit CARB has still failed to meet the requirement 

of consistency with the intent of Section 202. 

b. Arbitrary and Capricious Determination as to 

Protectiveness 

Under the first prong of the waiver analysis, EPA must 

consider whether California's decision that its OBD regulations 

are at least as protective of public health and welfare as 

applicable Federal standards was arbitrary and capricious. 

Congress was careful to craft the OBD requirements in 

Section 2 02(m) so that implementation of the program would not 

hamper the opportunity of the independent aftermarket to provide 

service and repair.7 Congress did so recognizing that a 

competitive independent aftermarket is critical to achieving the 

Id. at 1113. [footnote omitted]. 

"Section 202(m)(4)--Specific Requirements.-- In 

promulgating regulations under this subsection, the 

Administrator shall require--

. . . (B) that access to the emissions control diagnostics 

system through such connectors shall be unrestricted and 

shall not require any access code or device which is 

only available from a vehicle manufacturer;..." 
P.6 

October 17, 1995 

Page 5 

air quality goals of the Clean Air Act. Providing cleaner air is 

at the heart of the "protectiveness" issue in this analysis. 

EPA subsequently promulgated OBD regulations, seeking to 

adhere to the statutory competitiveness requirements. However, 

the regulations contained "antitampering" provisions at 

subsections 86.094 - 17(j) and 86.094 - 18 which clearly 

contravened the requirements of 202(m).8 Both subsections 

allowed that compliance with California OBD II regulations, 

including the "tampering prevention" provisions of CARB's Section 

1968.1(d), would be acceptable to EPA for federal compliance 

through the 1998 model year. 

As noted previously, in view of the foregoing, the 

Associations and others filed a Petition for Review, an action 

which led to a federal court order vacating the offending 

subsections at 86.094 - 17 (j) and 86.094 - 18. The court order 

expressly vacated the California OBD II antitampering provisions 

at 1968.1(d) for purposes of demonstrating compliance with 

federal OBD requirements. It is reasonable to conclude that EPA 

agreed to this court order because these provisions directly 

contravene the directives of Section 202(m)(4). 

Given that CARB had knowledge of the foregoing, and knowing 

that its OBD II regulations would need to meet the Section 202(a) 

consistency review, CARB's refusal to reconsider or alter the OBD 

antitampering regulations is plainly arbitrary and capricious. 

The protections Congress built into section 202(m) were meant to 

advance public health and welfare by preserving the contribution 

to clean air provided by a competitive aftermarket. As argued 

more fully below, federal compliance certification will require a 

system that does not violate 202(m)(4). EPA recognized this fact 

and agreed to vacate California's antitampering regulations. The 

Associations raised this matter in testimony to ARB submitted 

December 8, 1995. ARB summarily addressed the Associations's 

points in its written response to comments noting "ARB believes 

that the OBD II regulations are consistent with the OBD 

provisions of Section 202(M) of the CAA and will be consistent 

with the regulations being developed by the U.S. EPA." It is 

difficult to discern ARB's basis for the foregoing statement in 

view of EPA's agreement to vacate. Clearly, EPA agreed with the 

Associations that CARB's specific antitampering requirements are 

not supportable under 202(m), a provision Congress felt necessary 

in order to achieve improved air quality. CARB was, of course, 

well aware that EPA maintains the authority to grant or deny its 

waiver. In light of the foregoing, CARB has plainly acted in an 

58 Fed. Reg. 9468, 9486 
P.7 

October 17, 1995 

Page 6 

arbitrary and capricious manner in its protectiveness 

determination. EPA is therefore required to deny the ARB waiver 

request. 

c. California has Failed to Demonstrate Compelling and 

Extraordinary Conditions 

CARB has asserted that the scope of the "compelling and 

extraordinary conditions" inquiry should not be directed toward 

the need for specific elements of its clean air program. 

However, the CARB program is in such a state of flux as to make 

the inquiry meaningless if consideration is not given to specific 

elements. For example, California has steadfastly resisted 

implementation of a keystone of its program, the enhanced vehicle 

inspection and maintenance(I/M) program. If conditions in 

California are such that the need for the enhanced I/M program 

has diminished, it is certainly appropriate to review the need 

for new antitampering requirements that are otherwise contrary to 

federal law. 

As a starting point in this analysis, the Associations 

assert that the antitampering provisions are unnecessary because 

both California and federal law currently prohibit and make 

punishable unlawful tampering with vehicles. The existing 

antitampering provisions would certainly cover unlawful tampering 

with the OBD system. 

Secondly, ARB has not yet demonstrated support for its 

assertion that electronic tampering has been or will be a 

substantial problem. Ignoring the Associations' specific 

comments and requests in the past, there is still no evidence in 

the record demonstrating that the antitampering provisions are 

necessary in carrying out the purposes of the OBD II regulations. 

A proper showing would include facts, studies or expert opinion 

indicating that unlawful tampering with the OBD system is or will 

become a significant problem. While ARB continues to make 

references to "the high incidence of computer tampering"9 it 

responds to SEMA comments by stating "Should the ARB simply defer 

the issue until tampering is evident in the field...years of 

leadtime would have to be provided from that point."10 This 

statement plainly indicates ARB's acknowledgement that the 

tampering fear is speculative. The Associations can only 

10 

See ARB "Final Statement of Reasons for Rulemaking," at 

p.14 (EPA Air Docket II-A-39). 

Id. 
P.8 

t i 

October 17, 1995 

Page 7 

conclude that CARB does not provide evidence of electronic 

tampering because CARB has none. 

The antitampering provisions are also unnecessary from a 

practical standpoint. ARB has made the unsupported claim that 

the antitampering provisions will be particularly necessary in 

the future when ARB expects to rely upon OBD as the testing 

method at I/M. However, as the Associations have commented on 

numerous occasions, all OBD systems utilize complex programming. 

CARB OBD I systems, which are relatively simple compared to OBD 

II, have been in use for quite some time and ARB has yet to show 

data or reports that unlawful electronic tampering is occurring 

to any significant degree. 

The systems required by OBD II are even more complex. To 

create functional OBD recalibrations will require tremendous 

research and development. Evidence of this point is apparent in 

the difficulties experienced by the large and highly qualified 

technical teams of the vehicle manufacturers seeking to 

successfully calibrate OBD systems. Without useful calibration 

changes, there will be no desire by "hackers" to access the OBD 

system to conduct reprogramming. To the extent those in the 

aftermarket successfully create recalibrations, for both service 

and repair, the effort will be financially feasible only if the 

product can be sold on a widespread basis through legitimate 

markets. It would be unproductive to do so in a manner which 

would violate existing anti-tampering regulations. 

It is plain that recalibration by "hackers" will not be 

technically feasible beyond some di minimus level, if at all. 

The law already provides tampering prohibitions and penalties. 

Nor has CARB provided any data, facts or studies indicating 

electronic tampering will cause significant emissions problems. 

At the same time, California has numerous programs for reducing 

mobile source emissions and is resisting putting substantial 

programs, such as enhanced I/M into effect. How compelling can 

the need for antitampering be in light of this relaxation of far 

larger programs where significant levels of emissions hang in the 

balance? Such tampering certainly will not occur in numbers to 

warrant overriding a CAA provision meant to preserve the positive 

role of the aftermarket in achieving air quality goals. For the 

foregoing reasons, the Associations assert CARB has failed to 

demonstrate compelling and extraordinary conditions warranting 

this program. Accordingly, the waiver should be denied. 
P.9 

October 17, 1995 

Page 8 

d. The CARB Regulations Are Not Consistent with Section 

202 of the Clean Air Act: 

The third waiver analysis inquiry considers whether CARB 

standards (and accompanying enforcement procedures) are 

consistent with the intent of Section 202(a) of the Clean Air 

Act. The Associations assert that aside from any other aspect of 

the waiver analysis, this inquiry most clearly demonstrates that 

the waiver request should be denied. 

The courts and the Agency have ruled that to avoid 

inconsistency with 202(a), CARB's standards and procedures must 

1) provide adequate lead time to permit the development of 

technology necessary to meet the requirements and (2) permit 

manufacturers to meet both the federal and California test 

procedures with the same vehicle.11 

1. The CARB Regulation Does not Provide Adequate Lead 

Time for Technology Development 

As argued throughout this testimony, CARB's current 

antitampering requirements run directly contrary to the 

directives of CAA Section 202(m). The Association submit that in 

its haste to address a forecasted problem, CARB is today 

requiring tampering prevention that the OEM's might otherwise be 

able to address in the future without contravening Section 

202(m). CARB acknowledges that the need for the antitampering 

mechanisms is currently speculative and that appropriate 

strategies can only be developed over time. In its response to 

the Associations' comments on this matter, CARB notes: 

"The staff recognizes that manufacturers need to 

have adequate leadtime to implement tamper 

resistance requirements. Should the ARB simply 

defer the issue until tampering is evident in the 

field, and this in and of itself may be difficult 

to detect, years of leadtime would have to be 

provided from that point. By the time tamper 

resistance strategies would go into production, a 

great number of OBD II equipped vehicles would be 

on the road with inadequate on-board computer 

security. . . "12 

n 46 Fed. Reg. 26371, 26373, May 12, 1981 

12 CARB "Final Statement of Reasons for Rulemaking" at p.16 

(EPA Air Docket II-A-39). 
P.10 

October 17, 1995 

Page 9 

This comment indicates that in its haste, CARB is throwing 

the baby out before there is any bathwater. It is asking the 

OEMs to quickly address a problem that does not yet exist and to 

do it by a metnod that violates the Section 202(m) directive. It 

is inappropriate to require today the development of a system 

that may be inappropriate or unnecessarily burdensome when 

waiting a few years may make the question of both need and 

approach more clear. Holding off on specific requirements for 

OBD antitampering is the appropriate course; otherwise, OEMs will 

not have the time to develop measures which are allowable under 

the language or intent of Section 202(m). 

2. The CARB Reguirements Are Inconsistent With 

Section 202 of the Clean Air Act 

The Associations are most concerned with this aspect of the 

analysis, believing strongly that the CARB antitampering 

requirements are inconsistent with Section 2 02(a) and run 

directly contrary to Section 202(m) requirements. 

Prior to introducing a new vehicle for sale in the U.S., 

vehicle manufacturers must issue a "certificate of conformity" 

assuring that the vehicle and related engine family comply with 

federal emission requirements.13 Likewise, vehicles submitted 

for sale in California must be certified as to compliance with 

CARB requirements. In previous waiver decisions, EPA has 

determined that consistency with CAA Section 202(a) requires that 

California and federal conformity certification be consistent. 

EPA has further held that the test for consistency in conformity 

certification is whether vehicle manufacturers would be able to 

meet both the California and the federal requirements with the 

same test vehicle.14 The Associations submit that CARB's 

antitampering provisions would make it impossible to meet both 

CARB and federal certification with the same test vehicle. 

In addressing this aspect of the waiver analysis, CARB 

dismissed this question in superficial fashion, noting: 

"As explained in the September 1993 letter, this 

problem [inconsistency] does not exist for the OBD 

regulations in that the ARB and the U.S. EPA have 

worked closely in developing their respective OBD 

strategies. The federal OBD rule provides that through 

the 1998 model year compliance with the California OBD 

13 42 U.S.C. § 7522 (a) (1) . 

46 Fed. Reg 26371, 26373 (1981). 

14 
P.11 

October 17, 1995 

Page 10 

II requirements will satisfy the requirements of the 

federal rule. "15 

The Associations assert that CARB is plainly in error. As noted 

above, in vacating the federal antitampering requirements, the 

Court of Appeals was clear in also vacating EPA's adoption of 

CARB's section 1968.1(d) antitampering provisions for purposes of 

demonstrating compliance with the federal regulations.16 As 

demonstrated below, without uniformity as to the antitampering 

requirement, the same vehicle cannot meet California and federal 

conformity certification. The court's order was issued May 19, 

1994, long before CARB submitted its most recent waiver request 

to EPA. CARB's hollow assertion does nothing toward 

demonstrating compliance with the consistency analysis. To the 

contrary, the following analysis of EPA and CARB OBD requirements 

makes clear there would be inconsistency. 

Concurrent with California's rights under waiver of federal 

preemption, EPA continues to be responsible for compliance 

certification of vehicles to be sold in states other than 

California (and those adopting California standards). 

Instructive on this point is a federal Appeals Court decision 

involving nationwide sales of California-certified cars which 

would otherwise fail to meet federal requirements. The court 

noted: 

"In the wake of the 1977 amendments there arose the 

possibility that California-equipped cars would no 

longer comply as a matter of course with federal 

requirements. That fact left Congress with two 

choices; it could nonetheless permit their nationwide 

sale, and thus depart from the practice of permitting 

such sale only for cars complying with federal 

standards, or it could restrict their sale, and thereby 

adhere without change to the prior rule permitting 

nationwide distribution only of complying vehicles. We 

think the former choice would have amounted to an 

extraordinary and dramatic departure, one not lightly 

to be inferred. Accordingly, having found no break 

with past practice, we are at a loss to see why 

Congress' supposed silence in this regard poses any 

15 Waiver request letter from James D. Boyd, Executive 

Officer, CARB to Carol M. Browner, Administrator, U.S. 

EPA, June 14, 1995. (EPA Air Docket II-A-34). 

16 59 Fed. Reg. 51114, 51115 (1994) 
P.12 

October 17, 1995 

Page 11 

difficulty for the Administrator's position [holding 

against nationwide sales] . "17 

In reviewing conformity with the federal OBD requirements, there 

in no question that EPA must enforce the directives of Section 

202(m). Specifically, under 202(m)(4)(B) 

"...the Administrator shall require --

... (B) that access to the emission control diagnostics 

system through such connectors shall be unrestricted 

and shall not require any access code or any other 

device which is only available from a vehicle 

manufacturer;" 

In contrast, section 1968.1(d) of the CARB regulations requires 

that vehicles submitted employ 

"...data encryption using methods to secure the 

encryption algorithm, and write protect features 

requiring electronic access to an off-site computer 

maintained by the manufacturer." 

Clearly a vehicle OBD system which employs "write protect 

features requiring electronic access to an off-site computer 

maintained by the manufacturer" will not meet the federal 

directive requiring that the system "not require any access code 

or any device which is only available from a vehicle 

manufacturer." The California compliance certification 

requirements would be directly contrary to those necessary for 

certification of the same test vehicle by EPA. For these 

reasons, the Associations assert the CARB regulation fails the 

section 202(a) consistency analysis, thereby requiring that the 

waver be denied. 

The Associations also submit that within the Section 202(a) 

consistency analysis, EPA is required to consider whether the 

CARB antitampering provisions would deny the aftermarket the 

protections specifically afforded by Section 202(m) of the Act. 

What authority California has to create its own emissions program 

has been delegated to it by Congress. It defies common sense to 

suggest that California may now adopt regulations that would 

contravene the important protections Congress built into Section 

202(m)(4) and 202(m)(5). The Associations' position is supported 

by American Motors Corp. v. Blum, a waiver case involving the 

17 Ford Motor Company v. EPA, 606 F.2d 1293, 1301 (D.C. Cir 

1979). 
P.13 

October 17, 1995 

Page 12 

leadtime extensions granted to small-volume manufacturers under 

Section 202(b). The court ruled that the requirements of 

consistency with section 202(a) are not so narrow as to allow 

CARB's regulations to contravene the other provisions of Section 

202.18 The court noted: 

"The Administrator brushes this argument aside upon the 

ground that "Under section 209(b)(1)(C) of the Act, ... 

a waiver must be denied if the California standards are 

inconsistent with section 202(a), not section 202(b)."" 

19 

The court rejected this assertion noting: 

"If the Administrator's construction of the statute is 

correct any state, by adopting the standards 

established by California under its waiver from EPA, 

may deny to a small manufacturer the lead time that 

Congress has found to be necessary. We must reject an 

interpretation that would permit such a frustration of 

Congressional purpose. The necessity for lead time 

cannot be obviated by a waiver."20 

The court in Blum vacated the CARB waiver approval. The main 

issue of the case, involving an express provision granted small 

volume manufacturers under Section 202(b), is analogous to the 

matter at issue under CARB's antitampering provisions. The 

result should be the same. CARB's regulations would effectively 

deny express protection carefully provided under Section 202(m) 

for the small businesses comprising the aftermarket. To allow 

CARB to cast aside this provision would work an injustice via the 

waiver allowance. Per the ruling in Blum, and to avoid the 

analogous injustice, the CARB waiver request must be denied. 

Although the Associations believe the foregoing Section 2 02 

consistency analysis stands on it own, there are a few additional 

points we would like to address. CARB has suggested that Section 

202(m)(4) intends the OBD system to be unrestricted only with 

respect to access to the diagnostic information generated by the 

18 

19 

American Motors Corp. v. Blum, 603 F.2d 978 (D.C. Cir. 

1979) . 

AMC, 603 F.2d at 981. 

Id. 
P.M 

October 17, 1995 

Page 13 

OBD system (i.e. fault codes and vehicle operation 

parameters).21 CARB further asserts its antitampering 

restrictions would not interfere with this level of aftermarket 

service and repair and therefore do not contravene Section 

202(m)(4). We disagree. There are abundant examples that 

demonstrate OBD reprogramming has been and will continue to be 

necessary in servicing and repairing vehicles. Further, in 

correspondence to aftermarket information providers, CARB has 

acknowledged the use of reprogramming, stating "furthermore, some 

manufacturers have already implemented calibration changes to 

correct the in-use performance of OBD-monitoring strategies. As 

more vehicles are quipped with OBD systems, an increment of OBD 

software fixes could materialize."22 

Unfortunately for the aftermarket, the antitampering 

provisions required in California could easily be used by the 

vehicle manufacturers to prevent aftermarket service and repair 

using reprogramming of the OBD. Although EPA has taken the 

position that the only reprogramming to be performed will likely 

come from, and therefore be controlled by, the vehicle 

manufacturer, the aftermarket is not willing to concede its 

rights to perform reprogramming service independently. EPA does 

not have the authority nor bear the responsibility to decide how 

and whether the aftermarket can perform otherwise legal service 

and repair. To the contrary, Congress drafted 202(m)(4) 

directing EPA to keep the system open so the aftermarket will 

continue to have the opportunity to provide service. The vehicle 

manufacturers are free to seek to protect and enforce rights in 

what they believe is proprietary intellectual property. However, 

the methods chosen must not contravene the letter or intent of 

Section 202(m) and EPA and CARB are responsible to ensure the 

statute's enforcement. 

e. If EPA Determines CARB's OBD II Regulations are 

"Accompanying Enforcement Procedures," A Waiver Should, 

Nonetheless, Be Denied 

As argued above, the Associations assert the OBD II 

provisions fail to meet Section 202 consistency requirements. We 

believe this holds true regardless of whether the regulations are 

21 CARB "Final Statement of Reasons for Rulemaking" at p.16 

(EPA Air Docket II-A-39). 

22 Letter from K.D. Drachand, Chief, CARB Mobile Source 

Division to Tom Garrett, Mitchell International, 

September 30, 1994. 
P.15 

October 17, 1995 

Page 14 

deemed a "standard" or "accompanying enforcement procedures." A 

waiver analysis considering OBD II as an enforcement procedure 

should yield the same result -- the waiver should be denied. 

f. Enforcement of CARB Regulations Without Waiver; 

In closing, the Associations would like to comment on the 

enforcement of CARB's Regulations in absence of a waiver. The 

Associations strongly object to the adoption and enforcement of 

the CARB OBD II regulations prior to obtaining the required 

federal waiver of preemption under CAA Section 209(b). There is 

no question that CARB has been enforcing the regulations. 

Consider for example the numerous "waivers" CARB has granted the 

vehicle manufacturers based on claims that aspects of the 

regulation could not be complied with within prescribed 

deadlines. The problems created by both CARB's and EPA's 

disregard of the federal waiver statute are substantial. Vehicle 

manufacturers have spent significant sums preparing for 

compliance with CARB requirements that very likely will not pass 

muster under this waiver review. The resulting vehicles 

travelling the roads today and for the foreseeable future will 

contain antitampering mechanisms that are unnecessary and deny 

the aftermarket the system access Section 202(m) was meant to 

guarantee. The Associations have not as yet attempted to 

calculate the future damage which the aftermarket will suffer but 

it is significant. The Associations anticipate addressing this 

issue further in our written comments. 

Ill. Conclusion 

For the reasons set forth above, the Associations assert 

that EPA must deny the CARB request for waiver. The Associations 

anticipate providing additional support for the foregoing 

position by way of additional written comments. Thank you for 

considering our views.