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OAR Box 1190 

Prepped by Candice Davis 

Document Number: 

38) IV-A-8 

Docket Number: 

A-90-28 

Printed 5/5/2008 9:13:51 AM Sheet 38 of 106 
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VH-S ; 

STATEMENT 

OFTHE 

AUTOMOTIVE PARTS & ACCESSORIES ASSOCIATION, INC. 

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CONCERNING CARB REQUEST FOR A SECTION 209 WAIVER FOR 

ITS ON-BOARD DIAGNOSTIC II REGULATIONS 

PRESENTED TO 

1 

THE ENVIRONMENTAL PROTECTION AGENCY ! 

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OCTOBER 17,1995 

RE: DOCKET NO. A-90-28 ! 

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The Automotive Parts and Accessories Association appreciates the opportunity to provide the 

following testimony regarding whether EPA should waive Federal preemption pursuant to Section 

209(b) of the Clean Air Act for California's OBD II regulations. APAA is a trade association 

representing over 1,700 manufacturers, manufacturers representatives, distributors and retailers 

of automotive parts and services, sold primarily in the independent aftermarket. 

The automotive aftermarket is a $200 billion industry employing well over 2 million people. By 

having access to a wide array of dealer and non-dealer service facilities as well as OE and nonOE replacement parts, U.S. car owners enjoy the most convenient and affordable vehicle service 

industry in the world. APAA believes that the anti-tampering provisions of the CARB OBD II 

amendments jeopardizes the viability of the competitive aftermarket and therefore is of great 

concern to our members. 

At the outset, we are surprised that CARB has requested that its waiver be considered as an inuse enforcement procedure rather than an emissions standard. It is unclear to us, as to how a 

rule which imposes rigorous emissions equipment certification requirements by both CARB and 

EPA, can be considered an enforcement procedure. While a check of the OBD system as part 

of an I/M program could be considered an enforcement tool, the actual system and its 

requirements are directly required to control vehicle pollution by ensuring the proper functioning 

of the emissions control system. In fact, CARB's mail out 93-38 which describes proposed 

revisions to the OBD II rule, does not even mention enforcement as the primary purpose of the 

OBD system, but instead promotes it as a technology necessary to provide "lifetime in-use 

emissions reductions from motor vehicles." 

However, not withstanding whether the request is considered an emissions standard or 
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enforcement procedure, the Agency must reject the waiver due to the critical fact that the antitampering provisions of the rule are inconsistent with Section 202(a) of the Clean Air Act. 

As your Agency is well aware, the federal and California requirement for the installation of new 

sophisticated on-board diagnostic systems, capable of monitoring nearly all functions of the 

vehicles' emissions system, has been one of our industry's greatest concerns. While the OBD 

systems will be of major assistance to technicians in quickly and efficiently finding and fixing 

emissions related problems, it also will provide increased opportunities for vehicle 

manufacturers to control access by both the service and parts industry to the entire emissions 

control system. 

These monopolistic concerns were shared by the U.S. Congress during deliberations over the 

Clean Air Act and led to the introduction and passage of provisions, mainly Section 202(m)(4) 

and (5), intended to ensure full access by the independent aftermarket to the OBD system, as 

well as all information necessary to perform emissions related repairs. Through enactment of 

these provisions, Congress clearly signaled that while the OBD system was a critical element in 

maintaining the performance of the emissions system in-use, the system was not to be used in 

order to alleviate competition in the repair industry. Then Senator Albert Gore during Senate 

floor debate declared: "If we are going to mandate a new on-board diagnostic system, we must 

give consumers the freedom to choose where they will go to have these systems maintained and 

repaired." 

Hence, Section 202 (m)(4) of the Clean Air Act states that: "(A) any connectors through which 

the emission control diagnostic system is assessed for inspection, diagnosis, service or repair 

shall be standard and uniform on all motor vehicles and motor vehicle engines and (B) access to 
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the emission control diagnostic system through such connectors shall be unrestricted and shall 

not require any access code or any device which is only available from a vehicle manufacturer." 

Yet, the California OBD II rule provides that "the computer-coded engine operating parameter 

shall not be changeable without the use of specialized tools and procedures." The Bureau 

requires manufacturers which use E/E PROMs to "employ methods to deter unauthorized 

reprogramming which may include copyrightable executable routines or other methods." Further, 

the rule provides that beginning with the 1999 model year, "manufacturers shall include 

enhanced tamper protection strategies including data encryption using methods to secure the 

encryption algorithm, and write protect feature requiring electronic access to an off-site computer 

maintained by the manufacturer." 

Clearly, the Board has ignored Congressional concerns as to the competitive impact of restricting 

access to the OBD system, choosing instead to issue rules which severely narrow access to the 

OBD system. CARB's rules literally place the vehicles' emissions system under lock and key, 

providing only one key to the car companies-our direct competitor. Such action does, what 

Congress hoped they had prevented in the Act, threatens the car owners with the possibility of a 

monopoly in the availability of vehicle parts and service. 

What is more surprising is that the Board, during deliberations over the adoption of these 

requirements, recognized the anti-competitive impact of these provisions, but the members 

resolved not to address them. Board member Doug Vagim stated during the December 8,1994 

hearing that" for them (meaning the independent aftermarket) to go to manufacture a part that is 

equal to meet our regulation, they will always have to go back to that gatekeeper (meaning the 

car company) to ask permission....basically we are, through regulation, creating a path of more 
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like a monopoly." Ms. Lynne Edgerton, another Board member, responded to this argument 

during the debate declaring that "it is simply the case, it seems to me, in our economic system, 

the technological innovation in one sector does impact the overall competitive structure. And I 

don't know how much we can do about that. It's sort of like gravity is." She went on to conclude 

that "I'm not sure that my role here, is to make sure they're not a monopoly." APAA submits that 

while it may not be the ARB's role to protect against a monopoly, Section 202 clearly imposes the 

responsibility on EPA not to grant a waiver to any CARB rule which could create a monopoly. 

CARB requirements regarding the installation of programs on cars equipped with E/E Flash 

PROMs also is inconsistent with Section 202(m) of the Act. Under CARB's anti-tampering rules, 

an independent technician would not only need to purchase the equipment necessary to 

download a program on to a PROM from a CD Rom, but also the equipment necessary to access 

the car company computer in order to unlock the data from the CD Rom. As we stated above, 

the Act specifies that the OBD system should be accessible without the need for "any access 

code or any device which is only available from the vehicle manufacturer." Certainly, ARB's 

requirement violates the letter if not the spirit of the law. In addition, federal service information 

rules which require car companies to provide reprogramming capabilities to independents, have 

no write protect requirement. It is unclear as to the special need residing in Califomia for 

establishing a unique reprogramming scheme which does not exist in the other 49 states. The 

onerous cost imposed by the establishment of differing systems will be borne not only by our 

members, but also the vehicle manufacturers in establishing the system and ultimately the car 

owner in procuring service for their late model vehicle. 

In fact, there is little actual justification for the CARB's anti-tampering provisions other than a 

unsubstantiated fear that absent a lock on the system, car owners will attempt to tamper with the 
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system by changing vehicle calibrations and erasing fault codes. However, tampering certainly is 

not a special Califomia concern and is addressed in Section 203(a) of the Act which specifically 

prohibits any person from removing or rendering inoperative any device or element of design 

installed on or in a motor vehicle in compliance with regulations. Had Congress desired to 

permit manufacturers the opportunity to lock certain areas of the vehicle from car owners, they 

would have included such a anti-tampering requirement as part of either Section 202(m) or 

203(a). They did not. 

CARB further appears to justify the need for anti-tampering provisions due to future plans to 

replace current I/M with OBD checks. Yet, EPA, in its latest proposal to make OBD checks 

required as part of the I/M programs, provides certain safeguards for the OBD systems in order 

to prevent tampering. Specifically, the proposal would require that readiness codes be stored in 

the on-board computer to indicate when the diagnostic system had completed all monitoring 

checks and determined that all monitored systems were functioning properiy. This will enable I/M 

inspectors to be certain that malfunction codes have not merely been cleared, without actual 

repair of the malfunction. If adopted, this requirement would appear to provide sufficient 

safeguards for Califomia I/M programs without resorting to onerous measures which would 

jeopardize competition. In addition, at least initially, since OBD checks will be required in 

conjunction with the current emissions testing, the State and federal government should have the 

opportunity to determine if tampering is indeed a problem or simply an assumption by the Board. 

In conclusion, APAA strongly feels that CARB's obsession with blocking all attempts by 

individuals to tamper with the systems only will serve to increase the economic value of these 

bypass techniques to the criminal. The anti-tampering provisions will promote the development 

of two monopolies: one for the vehicle manufacturers, who will have successfully eliminated 
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, . . • 

many legitimate aftermarket producers of parts and the second being the sophisticated 

individuals which possess the time and knowledge to break the codes which CARB has placed in 

their path. Those left behind are the legitimate companies, who will find the path to participating 

in the market too difficult and expensive. Ultimately, the major loser will be the car owner, who 

will experience higher parts and service prices due to CARB's fear of the unknown. 

Congress had the foresight and the inclination to prevent attempts by OEs to build fortresses 

around their systems such that competition would be snuffed out. Under Section 209, EPA is 

obligated to ensure that any state actions remain consistent with this strong pro-competition 

mandate. Therefore, EPA has no choice but to reject the waiver request in its present form. 

Thank you again for this opportunity to testify and I am available to answer any questions 

regarding my statement.