FR Doc 03-14461

[Federal Register: June 27, 2003 (Volume 68, Number 124)]
[Rules and Regulations]
[Page 38427-38461]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jn03-23]

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Part II

Environmental Protection Agency

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40 CFR Part 86

Control of Air Pollution From Motor Vehicles and New Motor Vehicle
Engines; Final Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 86

[FRL-7509-8]
RIN 2060-AG13

Control of Air Pollution From Motor Vehicles and New Motor
Vehicle Engines; Revisions to Regulations Requiring Availability of
Information for Use of On-Board Diagnostic Systems and Emission-Related
Repairs on 1994 and Later Model Year Light-Duty Vehicles and Light-Duty
Trucks and 2005 and Later Model Year Heavy-Duty Vehicles and Engines
Weighing 14,000 Pounds Gross Vehicle Weight or Less

AGENCY: Environmental Protection Agency.

ACTION: Final rulemaking.

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SUMMARY: Today's action finalizes modifications to EPA's Service
Information regulations for light-duty vehicles and trucks, including
requiring Original Equipment Manufacturers (OEMs) to: make full text
emissions-related service information and training information
available via the World Wide Web; provide equipment and tool companies
with information that allows them to develop equipment with pass-
through reprogramming capabilities; make available enhanced diagnostic
information to equipment and tool companies; make available OEM-
specific diagnostic tools for sale to interested parties and; make
available additional OBD technical information that OEMs must provide.
In addition, today's final rule extends the availability of emission-
related service information to heavy-duty engines and vehicles weighing
14,000 pounds or less beginning in the 2005 model year.

DATES: This final rule takes effect on August 26, 2003. The
incorporation by reference of certain publications listed in the rule
is approved August 26, 2003.

ADDRESSES: All comments and materials relevant to this rulemaking are
contained in EPA Air Docket No. A-2000-49 at the following address: EPA
Docket Center (EPA/DC), Public Reading Room, Room B102, EPA West
Building, 1301 Constitution Avenue, NW., Washington DC. The EPA Docket
Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, except on government holidays. You can reach the
Reading Room by telephone at (202) 566-1742, and by facsimile at (202)
566-1741. The telephone number for the Air Docket is (202) 566-1742.
You may be charged a reasonable fee for photocopying docket materials,
as provided in 40 CFR part 2.

FOR FURTHER INFORMATION CONTACT: Holly Pugliese, Certification and
Compliance Division, U.S. Environmental Protection Agency, 2000
Traverwood, Ann Arbor, Michigan 48105, Telephone 734-214-4288, Internet
e-mail ``pugliese.holly@epa.gov.''

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by this action are those which
manufacturer new motor vehicles and engines. Regulated categories
include:

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NAICS Codes SIC codes
Category \1\ \2\ Examples of potentially regulated entities
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Industry.......................... 336111 3711 Motor Vehicle Manufacturers.
336112
336120
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\1\ North American Industry Classification System (NAICS)
\2\ Standard Industrial Classification (SIC) system code.

This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities EPA is now aware could potentially
be regulated by this action. Other types of entities not listed in the
table could also be regulated. To determine whether your product is
regulated by this action, you should carefully examine the
applicability criteria in Sec. 86.099-17 of title 40 of the Code of
Federal Regulations. If you have questions regarding the applicability
of this action to a particular product, consult the person listed in
the preceding FOR FURTHER INFORMATION CONTACT section.

Obtaining Rulemaking Documents Through the Internet

The preamble, regulatory language and regulatory support documents
are also available electronically from the EPA Internet Web site. This
service is free of charge, except for any cost you already incur for
Internet connectivity. The official EPA version is made available on
the day of publication on the primary Web site listed below. The EPA
Office of Transportation and Air Quality also publishes these notices
on the secondary Web site listed below.
(1) http://www.epa.gov/docs/fedrgstr/EPA-AIR/ (either select
desired date or use Search feature)
(2) http://www.epa.gov/OTAQ/ (look in ``What's New'' or under the
specific rulemaking topic)
Please note that due to differences between the software used to
develop the document and the software into which the document may be
downloaded, changes in format, page length, etc. may occur.

Table of Contents

I. What is the Important Background Information for This Final Rule?
II. What are the Requirements of This Final Rule?
A. What Information is Required to be Made Available by OEMs
Under this Final Rule?
B. What are the Requirements for Web-based Delivery of the
Required Information Under This Final Rule?
C. What Provisions are Being Finalized for Service Information
for Third Party Information Providers?
D. What Requirements are Being Finalized for the Availability of
Training Information?
E. What Requirements are Being Finalized for the Reprogramming
of Pre-SAE J2534 Model Year Vehicles?
F. What Requirements are Being Finalized for Reprogramming of
Vehicles with SAE J2534?
G. What Requirements are Being Finalized for the Availability of
Reprogramming Capabilities from OEM Dealerships?
H. What Requirements are Being Finalized for the Availability of
Enhanced Information for Scan Tools for Equipment and Tool
Companies?
I. What Requirements are Being Finalized for the Availability of
OEM-Specific Diagnostic Scan Tools and Other Special Tools?
J. Which Reference Materials are Being Finalized for
Incorporation by Reference?
K. What Requirements are Being Finalized for the Availability of
Heavy-duty Service Information?
III. What is the Cost of this Final Rule?
IV. What Were the Opportunities for Public Participation?
V. What Were the Major Comments Received on Proposed Rule?
VI. What are the Administrative Requirements for this Final Rule?

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A. EO 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Children's Health Protection
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Congressional Review Act

I. What Is the Important Background Information for This Final Rule?

Section 202(m)(5) of the CAA directs EPA to promulgate regulations
requiring OEMs to provide to:

any person engaged in the repairing or servicing of motor vehicles
or motor vehicle engines, and the Administrator for use by any such
persons, * * * any and all information needed to make use of the
[vehicle's] emission control diagnostic system * * * and such other
information including instructions for making emission-related
diagnoses and repairs. Such requirements are subject to the
requirements of section 208(c) regarding protection of trade
secrets; however, no such information may be withheld under section
208(c) if that information is provided (directly or indirectly) by
the manufacturer to its franchised dealers or other persons engaged
in the repair, diagnosing or servicing of motor vehicles.

On August 9, 1995, EPA published a final rulemaking (60 FR 40474)
which set forth the Agency's service information regulations. These
regulations, in part, required each Original Equipment Manufacturer
(OEM) to do the following: (1) List all of its emission-related service
and repair information on a Web site called FedWorld (including the
cost of each item and where it could be purchased); (2) either provide
enhanced information to equipment and tool companies or make its OEM-
specific diagnostic tool available for purchase by aftermarket
technicians, and (3) make reprogramming capability available to
independent service and repair professionals if its franchised
dealerships had such capability. These requirements were intended to
ensure that aftermarket service and repair facilities have access to
the same emission-related service information, in the same or similar
manner, as that provided by OEMs to their franchised dealerships.
Industry estimates indicate that independent technicians perform up
to 80% of all vehicle service and repairs. Further, independent
technicians perform more repairs on older vehicles (which are more
likely than newer vehicles to have high emissions) than technicians in
franchised dealerships. These conclusions are confirmed by statistics
issued from the Motor and Equipment Manufacturers Association
(Automotive Industry Status Report, 1999. EPA Air Docket A-2000-49,
item II-F-05) that (1) the level of excess emissions increases as a
vehicle's mileage increases, and (2) the percentage of non-dealer
repairs increased and dealer repairs decreased as a vehicle's mileage
increased and warranty coverage is no longer an issue.
In addition, OEM comments submitted during the comment period for
the prior service information proposal (56 FR 48278, September 24,
1991) spoke to the integral role aftermarket technicians play in
servicing the approximately 200 million vehicles in use. Many OEMs
indicated that the number of service bays in their franchised
dealerships are inadequate to service their fleets of vehicles and that
they depend on aftermarket technicians to provide service for their
customers' vehicles, especially for those vehicles out of warranty (See
``Response to Comments'' document for the August 1995 Final Rule,
Docket A-90-35, Item V-C-02). This further highlights the need for
independent technicians to have access to timely and appropriate
emission-related repair and service information.
Since 1995, the Agency has gained experience in the implementation
of the service information requirements. Additionally, changing
technology has made it necessary to revisit the current requirements to
take advantage of advanced technology.
As a result of our experience in implementing the 1995 regulations,
EPA proposed revisions to those regulations on June 8, 2001 (66 FR
30830). The proposal highlighted several main areas for revision.
First, we proposed that OEMs make full text emissions-related service
information available via the World Wide Web. Second, we proposed that
OEMs provide equipment and tool companies with information that allows
them to develop pass-through reprogramming tools. Third, we proposed
that OEMs make available enhanced diagnostic information to equipment
and tool manufacturers and to make available OEM-specific diagnostic
tools for sale. In addition, we proposed extending the service
information requirements to the availability of emission-related
service information for heavy-duty vehicles up to 14,000 pounds.
Today's final regulations are intended to preserve freedom of
choice by consumers in where to have their vehicles serviced.

II. What Are the Requirements of This Final Rule?

A. What Information Is Required To Be Made Available by OEMs Under This
Final Rule?

Today's action finalizes a provision that requires OEMs to make
available to any person engaged in the repairing or servicing of motor
vehicles or motor vehicle engines all information necessary to make use
of the OBD systems and any information for making emission-related
repairs, including any emissions-related information that is provided
by the OEM to franchised dealers. This information includes, but is not
limited to, the following:
(1) Manuals, technical service bulletins (TSBs), diagrams, and
charts (the provisions for training materials, including videos and
other media are discussed in Section IIIB).
(2) A general description of the operation of each monitor,
including a description of the parameter that is being monitored.
(3) A listing of all typical OBD diagnostic trouble codes
associated with each monitor.
(4) A description of the typical enabling conditions for each
monitor to execute during vehicle operation, including, but not limited
to, minimum and maximum intake air and engine coolant temperature,
vehicle speed range, and time after engine startup.
(5) A listing of each monitor sequence, execution frequency and
typical duration.
(6) A listing of typical malfunction thresholds for each monitor.
(7) For OBD parameters that deviate from the typical parameters,
the OBD description shall indicate the deviation for the vehicles it
applies to and provide a separate listing of the typical values for
those vehicles.
(8) Identification and scaling information necessary to interpret
and understand data available to a generic scan tool through ``mode
6,'' pursuant to Society of Automotive Engineers SAE J1979, EE
Diagnostic Test Modes.
(9) Any information related to the service, repair, installation or
replacement of parts or systems developed by third party (Tier 1)
suppliers for OEMs, to the extent they are made available to franchise
dealerships.
(10) Any information on other systems that can directly effect the
emission system within a multiplexed

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system (including how information is sent between emission-related
system modules and other modules on a multiplexed bus),
(11) Any information regarding any system, component, or part of a
vehicle monitored by the OBD system that could in a failure mode cause
the OBD system to illuminate the malfunction indicator light (MIL).
(12) Any other information relevant to the diagnosis and completion
of an emissions-related repair. This information includes, but is not
limited to, information needed to start the vehicle when the vehicle is
equipped with an anti-theft or similar system that disables the engine
described below in paragraph (13). This information also includes any
OEM-specific emissions-related diagnostic trouble codes (DTCs) and any
related service bulletins, trouble shooting guides, and/or repair
procedures associated with these OEM-specific DTCs.
(13) OEMs shall make available computer or anti-theft system
initialization information necessary for the proper installation of on-
board computers on motor vehicles that employ integral vehicle security
systems or the repair or replacement of any other emission-related
part. OEMs are not required to make this information available on the
OEM's Web site unless they choose to do so. However, the OEM's Web site
shall contain information on alternate means for obtaining the
information and/or ability to perform reintialization. Beginning with
the 2008 model year, we require that all OEM systems will be designed
in such a way that no special tools or processes will be necessary to
perform re-initialization. In other words, EPA expects that the re-
initialization of vehicles can be completed with generic aftermarket
tools, a pass-through device, or an inexpensive OEM-specific cable.
This model year cut-off is consistent with the requirement to complete
the phase-in of the SAE J2284-3 CAN requirement as discussed in section
18 of this document. An OEM may request Administrator approval for an
alternative means to re-initialize vehicles for some or all model years
through the 2007 model year. The complete regulatory requirements for
requesting approval can be found in Sections 86.096-38(g)(6) and
86.1808-01(f)(6).
Information for making emission-related repairs does not include
information used to design and manufacture parts, but may include OEM
changes to internal calibrations, and other indirect information, as
discussed below.
We also believe that OEMs are accountable for the accuracy of their
service information, for both their dealerships and the aftermarket
repair industry. Moving toward Internet-based delivery of service
information should increase the ability of OEMs to more quickly respond
to errors in their service information and provide updates to the
required information for all interested parties in a timely manner.

B. What Are the Requirements for Web-Based Delivery of the Required
Information Under This Final Rule?

1. OEM Web Sites
Today's action finalizes a provision that requires OEMs to make
available in full-text all of the information outlined above, on
individual OEM Web sites. The only exceptions to the full-text
requirements are training information, anti-theft information, and
indirect information. Provisions for the availability of training
information is discussed in section II(D) of this document. Provisions
for the availability of anti-theft information is discussed in section
II.A(13). Provisions regarding indirect information are discussed in
section II.E through II.I of this document. OEM Web sites must be
launched six months after the date of publication of this rulemaking.
OEMs may request from the Administrator up to an additional six months
to launch their Web sites.
2. Timeliness and Maintenance of Information on OEM Web Sites
Today's action finalizes a provision that requires OEMs to make
available the required information on their Web site within six months
of model introduction. After this six month period, the required
information for each model must be available and updated on the OEM Web
site at the same time it is available by any means to their dealers.
EPA is also finalizing a provision that, beginning with the 1996
model year, OEMs maintain the required information in full text for at
least 15 years after model introduction. After this fifteen-year
period, OEMs can archive the required service information, but it must
be made available upon request, in a format of the OEM's choice (e.g.
CD-ROM).
3. Accessibility, Reporting and Performance Requirements for OEM Web
Sites
(a) Accessibility Requirements. EPA is finalizing the following
provisions for accessibility to OEM Web sites. Each OEM shall:
(1) Provide users with a description of the minimum computer
hardware and software needed by the user to access that OEM's
information (e.g., computer processor speed and operating system
software). This description shall appear when users first log-on to the
home page of the OEM's Web site.
(2) Allow the user to search the OEM Web site by various topics
including but not limited to model, model year, key words or phrases,
etc., while allowing ready identification of the latest vehicle
calibration. OEMs who do not use model year to classify their vehicles
in their service information may use an alternate vehicle delineation
such as body series. Any OEM utilizing this flexibility shall create a
cross-reference to the corresponding model year and provide this cross-
reference on the OEM Web site home page.
(3) Provide accessibility using common, readily available software
and shall not require the use of proprietary software, hardware,
viewers, or browsers. The OEM Web site shall also provide hyperlinks to
any plug-ins, viewers or browsers (e.g. Adobe Acrobat or Netscape)
needed to access the OEM Web site.
(4) Allow access to the OEM Web sites with no limits on the modem
speed by which aftermarket service providers or other interested
parties can connect to the OEM Web site.
(b) Performance and Reporting Requirements. Today's action
finalizes a provision that requires OEMs to report on the performance
of their Web sites. OEMs shall monitor the following parameters:
(1) Total successful requests (measured in number of files
including graphic interchange formats (GIFs) and joint photographic
expert group (JPEG) images, i.e., electronic images such as wiring or
other diagrams or pictures). This is defined as the total successful
request counts of all the files which have been requested, including
pages, graphics, etc.
(2) Total failed requests (measured in number of files). This is
defined as the total failed request counts of all the files which were
requested but failed because they could not be found or were read-
protected. This includes pages, graphics, etc.
(3) Average data transferred per day (measured by bytes). This is
defined as average amount of data transferred per day from one place to
another.
(4) Daily Summary (measured in number of files/pages by day of
week). This is defined as the total number of requests each day of the
week, over the time period given at the beginning of the report.

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(5) Daily report (measured in number of files/pages by the day of
the month). This is defined as how many requests there were in each day
of a specific month.
(6) Browser Summary (measured in number of files/pages by browser
type, i.e., Netscape, Internet Explorer). This is defined as the
versions of a browser by vendor.
(7) Any other information deemed necessary by the Administrator to
determine the adequacy of an OEM Web site.
OEMs may request Administrator approval to report on parameters
other than those described above if the OEM can demonstrate that those
alternate parameters will provide sufficient and similar information
for EPA to effectively evaluate the OEM Web site.
EPA will work with OEMs and issue further guidance regarding
requirements to outline a consistent format and timing of submission.
Performance reports will be submitted to the Administrator annually
or upon request by the Administrator. EPA will issue additional
direction in the form of official manufacturer guidance to further
specify the process for submitting reports to the Administrator.
In addition, EPA is finalizing a provision that requires OEMs to
launch Web sites that meet the following performance criteria:
(1) OEM Web sites shall possess sufficient server capacity to allow
ready access by all users and have sufficient downloading capacity to
assure that all users may obtain needed information without undue
delay;
(2) Broken Web links shall be corrected or deleted weekly;
(3) Web site navigation does not require a user to return to the
OEM home page or a search engine in order to access a different portion
of the site.
4. Structure and Cost of OEM Web Sites
In addition to the requirements described above in section II.3,
OEMs shall also establish a three-tiered approach for the access to
their Web-based service information. These three tiers include, but are
not limited to short-term, mid-term, and long-term access to the
required information.
(1) Short-Term Access. OEMs shall provide short-term access for a
period of 24-72 hours whereby an aftermarket service provider will be
able to access that OEM's Web site, search for the information they
need, and purchase and/or print it for a set fee.
(2) Mid-Term Access. OEMs shall provide mid-term access for a
period of 30 days whereby an aftermarket service provider will be able
to access that OEM's Web site, search for the information they need,
and purchase and/or print it for a set fee.
(3) Long-Term Access. OEMs shall provide long-term access for a
period of 365 days whereby an aftermarket service provider will be able
to access that OEM's Web site, search for the information they need,
and purchase and/or print it for a set fee.
In addition, for each of the tiers, OEMs are required to make their
entire site accessible for the respective period of time and price. In
other words, an OEM may not limit any or all of the tiers to just one
make or one model.
EPA is not finalizing a provision that would require OEM's to allow
for the downloading of information from their sites.
With regard to the issue of cost, EPA will not be finalizing any
price caps for access to each of the tiers described above. However,
prior to the official launch of OEM Web sites, each OEM will be
required to present to the Administrator a specific outline of what
will be charged for access to each of the tiers. OEMs must justify
these charges, and submit to the Administrator information on the
following parameters, which include but are not limited to, the
following:
1. The price the manufacturer currently charges their branded
dealers for service information. At a minimum, this must include the
direct price charged that is identified exclusively as being for
service information, not including any payment that is incorporated in
other fees paid by a dealer, such as franchise fees. In addition, the
manufacturer must describe the information that is provided to dealers,
including the nature of the information (e.g., the complete service
manual), etc.; whether dealers have the option of purchasing less than
all of the available information, or if purchase of all information is
mandatory; the number of branded dealers who currently pay for this
service information; and whether this information is made available to
any persons at a reduced or no cost, and if so, identification of these
persons and the reason they receive the information at a reduced cost.
2. The price the manufacturer currently charges persons other than
branded dealers for service information. The manufacturer must describe
the information that is provided, including the nature of the
information (e.g., the complete service manual, emissions control
service manual), etc.; and the number of persons other than branded
dealers to whom the information is supplied.
3. The estimated number of persons to whom the manufacturer would
be expected to provide the service information following implementation
of today's requirements. If the manufacturer is proposing a fee
structure with different access periods (e.g., daily, monthly and
annual periods), the manufacturer must estimate the number of users who
would be expected to subscribe for the different access periods.
A complete list of the criteria for establishing reasonable cost
can be found in sections 86.094-38, paragraph (g)(7) and 86.1808-01,
paragraph (f)(7) of the regulatory language for this final rule.
Subsequent to the launch of the OEM Web sites, OEMs are required to
notify the Administrator upon the increase in price of any one or all
of the tiers of twenty percent or more accounting for inflation or that
sets the charge for end-user access over the established price
guidelines discussed above, including a justification based on the
criteria for reasonable cost as established by this regulation.
5. Hyperlinking To and From OEM Web Sites
Today's action finalizes a provision that requires OEMs to allow
direct simple hyperlinking to their Web sites from government Web sites
and from all automotive-related Web sites, such as aftermarket service
providers, educational institutions, and automotive associations.
6. Administrator Access to OEM Web Sites
Today's action finalizes a provision that requires that the
Administrator shall have access to each OEM Web site at no charge to
the Agency. The Administrator shall have access to the site, reports,
records and other information as provided by sections 114 and 208 of
the Clean Air Act and other provisions of law.
7. Information for Pre-1996 Model Years on OEM Web Sites
Today's action finalizes a provision that each OEM shall index
their available information for model years 1994 and 1995 with a title
that adequately describes the contents of the document to which it
refers. OEMs may develop a system that allows interested parties to
order this information directly from their Web site, or another Web
site hyperlinked to the OEM Web site. Any OEM who does not develop such
a system must list a phone number and address where aftermarket service
providers can call or write to obtain the desired information. OEMs
must also

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D. What Requirements Are Being Finalized for the Availability of
Training Information?

1. Purchase of Training Materials for OEM Web Sites
Today's action finalizes two provisions for access to OEM training
on OEM Web sites. First, OEMs will be required to make available for
purchase on their Web sites the following items: training manuals,
training videos, and interactive, multimedia CD's or similar training
tools available to franchised dealerships. Second, we are finalizing a
provision that OEMs who transmit emissions-related training via
satellite or the Internet must tape these transmissions and make them
available for purchase on their Web sites within 30 days after the
first transmission to franchised dealerships. Further, all of the items
included in this provision must be shipped within 24 hours of the order
being placed and are to be made available at a reasonable price. We
understand OEM concerns about the potential for increased demand of OEM
training materials once the indices are posted on Web sites. Therefore,
we will also finalize a provision that will allow for an exception to
the 24 hour shipping requirement in those circumstances where orders
exceed supply and additional time is needed by the distributor to
reproduce the item being ordered. These requirements apply for 1996 and
later model year vehicles starting 4 months following the effective
date of the Final Rule. For subsequent model years, the required
information must be made available for purchase within three months of
model introduction, and then be made available at the same time it is
made available to franchised dealerships.
2. Third Party Access to OEM Training Material
We will finalize a provision that will require OEMs who utilize
Internet and satellite transmissions to present emissions-related
training to their dealerships to make these same transmissions
available to third party training providers. In this way, we believe we
are providing at least one opportunity for aftermarket technicians to
receive similar emissions-related training information as provided to
dealerships, thus furthering the goals and letter of section 202(m)(5).
This requirement only requires OEMs to provide the same information to
legitimate aftermarket training providers as is provided to dealerships
and aftermarket service providers. It is not a requirement to license
OEM copyrighted materials to these entities.
OEMs may take reasonable steps to protect their copyright to the
extent some or all of this material may be copyrighted and may refuse
to do business with any party that does not agree to such steps.
However, we do expect OEMs to use fair business practices in its
dealings with these third parties, in keeping with the ``fair and
reasonable price'' requirements in these regulations. OEMs may not
charge unreasonable up-front fees for access to these transmissions,
but OEMs may require a royalty, percentage or other arranged fee based
limits on a per-use or enrollment subscription basis.

E. What Requirements Are Being Finalized for the Reprogramming of Pre-
SAE J2534 Model Year Vehicles?

Today's action finalizes a provision that allows OEMs to use J2534
technology on 1996 through 2003 model year vehicles as long as OEMs
make all necessary additional hardware (i.e. cables) available for sale
at a fair and reasonable price to the aftermarket to allow for the
reprogramming of these vehicles. OEMs must make this additional
hardware available for sale independently and cannot require the
purchase of their OEM specific scan tool

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in order to receive this additional hardware. If an OEM cannot
retroactively implement the SAE J2534 pass-through reprogramming
solution with or without special cables, they must make available to
equipment and tool companies any information needed to develop
aftermarket equivalents of their OEM-specific reprogramming hardware
and software. This information must be provided to allow equipment and
tool manufacturers to develop hardware and software equivalents to
enhanced OEM scan tools. A full description of the information that
must be provided under this scenario is described in sections 86.096-
38g(11) and 86.1808-01(f)(11) of the regulatory language for this
rulemaking.

F. What Requirements Are Being Finalized for Reprogramming of Vehicles
With SAE J2534?

EPA will finalize a provision that will require OEMs to comply with
SAE J2534 for pass-through reprogramming beginning with model year
2004.We will also finalize a provision that will require that
reprogramming information be made available within one month after the
effective date of the final rule for existing model years and within 3
months of vehicle introduction for new models. Any OEM who cannot
comply with SAE J2534 in model year 2004 may request one year
additional lead time from the Administrator.

G. What Requirements Are Being Finalized for the Availability of
Reprogramming Capabilities From OEM Dealerships?

EPA will not finalize a provision that would require OEMs to make
reprogramming services available to aftermarket service providers in a
timely manner and a reasonable cost via their dealerships.

H. What Requirements Are Being Finalized for the Availability of
Enhanced Information for Scan Tools for Equipment and Tool Companies?

1. Description of Information That Must Be Provided
Today's action finalizes a provision that requires the OEMs to make
available to equipment and tool companies all generic and enhanced
information, including bi-directional control and data stream
information.In addition, OEMs must make available the following
information:
(a) The physical hardware requirements for data communication (e.g.
system voltage requirements, cable terminals/pins, connections such as
RS232 or USB, wires, etc.)
(b) ECU data communication (e.g. serial data protocols,
transmission speed or baud rate, bit timing requirements, etc.),
(c) Information on the application physical interface (API) or
layers. (i.e., processing algorithms or software design descriptions
for procedures such as connection, initialization, and termination)
(d) Vehicle application information or any other related service
information such as special pins and voltages or additional vehicle
connectors that require enablement and specifications for the
enablement.
(e) Information that describes which interfaces, or combinations of
interfaces, from each of the categories as described in paragraphs
(g)(12)(vii)(A) through (D) of the regulatory language.
2. Distribution of Enhanced Diagnostic Information
Today's action finalizes a provision that will require the above
information for generic and enhanced diagnostic information be provided
to aftermarket tool and equipment companies with whom appropriate
licensing, contractual, and confidentiality agreements have been
arranged. This information shall be uploaded in electronic format using
common document formats such as Microsoft Excel, Adobe Acrobat,
Microsoft Word, etc. Further, any OEM licensing or business
arrangements with equipment and tool companies are subject to a fair
and reasonable cost determination.

I. What Requirements Are Being Finalized for the Availability of OEM-
Specific Diagnostic Scan Tools and Other Special Tools?

1. Availability of OEM-Specific Diagnostic Scan Tools
Today's action finalizes a provision that OEMs must make available
for sale to interested parties the same OEM-specific scan tools that
are available to franchised dealerships, except as discussed below.
These tools shall be made available at a fair and reasonable price.
These tools shall also be made available in a timely fashion either
through the OEM Web site or through an OEM-designated intermediary.
2. Decontenting of OEM-Specific Diagnostic Scan Tools
Today's action finalizes a provision that requires OEMs who opt to
remove non-emissions related content from their OEM-specific scan tools
and sell them to the persons specified in paragraph (g)(2)(i) and
(f)(2)(i) of the regulatory language for this final rule shall adjust
the cost of the tool accordingly lower to reflect the decreased value
of the scan tool.All emissions-related content that remains in the OEM-
specific tool shall be identical to the information that is contained
in the complete version of the OEM-specific tool. Any OEM who wishes to
implement this option must request approval from the Administrator
prior to the introduction of the tool into commerce.
3. Availability of Special Tools
Today's action finalizes a provision that precludes OEMs from using
special tools to extinguish the malfunction indicator light (MIL)
beginning with model year 2004. For model years 1994 through 2003, OEMs
who currently require such tools to extinguish the MIL must release the
necessary information to equipment and tool companies to design a
comparable generic tool. This information shall be made available no
later than one month following the effective date of the Final Rule.

J. Which Reference Materials Are Being Finalized for Incorporation by
Reference?

Today's action will finalize a provision requiring that OEMs comply
with the following SAE Recommended Practices.
(1) SAE Recommended Practice J1930 (Revised, May, 1998),
``Electrical/Electronic Systems Diagnostic Terms, Definitions,
Abbreviations, and Acronyms'' beginning with the 2003 model year.
(2) SAE Recommended Practice J1979 (September, 1997), ``EE
Diagnostic Test Modes'' Manufacturers shall comply with J1979 beginning
with Model Year 2004.
(3) SAE Recommended Practice J2284-3 (May, 2001), ``High Speed CAN
(HSC) for Vehicle Applications at 500 KBPS.'' For purposes of
consistency with CARB requirements for CAN, we will finalize a
provision that allows for the use of CAN beginning in the 2003 model
year, with complete implementation required by the 2008 model year.
(4) SAE Recommended Practice J2534 (February, 2002), ``Recommended
Practice for Pass-Thru Vehicle Reprogramming''. EPA will require that
OEMs comply with SAE J2534 beginning with the 2004 model year.
These documents have been approved for Incorporation by Reference
by the Office of the Federal Register on August 26, 2003. A copy of the
approval can be found in EPA Air Docket A-2000-49,

[[Page 38434]]

Item IV-H-05. Copies of the SAE documents are also available
for viewing in EPA Air Docket A-2000-49.

K. What Requirements Are Being Finalized for the Availability of Heavy-
Duty Service Information?

Today's action will finalize a provision that requires that OEMs of
heavy-duty vehicles and engines up to 14,000 pounds GVW that are
subject to OBD requirements meet the service information requirements
beginning with model year 2005.
We will not extend these requirements to heavy-duty vehicles above
14,000 pounds at this time, because such vehicles are not subject to
OBD requirements and because the differences between the service
industry for such trucks make extension of the regulations for such
trucks inappropriate without significant further discussion.

III. What Is the Cost of This Final Rule?

This Final Rulemaking alters existing provisions by revising the
current service information regulations. The provisions finalized in
today's rulemaking require OEMs to make available information and tools
that have already been developed for use by their dealerships.
Therefore, EPA believes that the changes finalized today put little or
no new additional requirements on OEMs beyond administrative costs for
providing access to existing information and tools, which are
recoverable to the OEM as discussed below in Section V.D and in the
Summary and Analysis of Comments.

IV. What Were the Opportunities for Public Participation?

On July 25, 2001, a public hearing was held. The public comment
period was open until August 25, 2001. Comments were received from OEMs
and their associations, aftermarket service providers and their trade
associations, motor vehicle dealerships, state agencies, and private
individuals. Because of the scope of the issues involved and raised by
these comments, the following sections only briefly summarize comments
on the major issues. For the complete response to comments, see the
Response to Comments contained in EPA Air Docket A-2000-49, Item V-C-
01.

V. What Were the Major Comments Received on the Proposed Rule?

Comments on a wide range of issues concerning the proposed service
information requirements were received. Summarized here are the
comments concerning the major or controversial issues and the rationale
behind EPA's final decisions. These issues are considered in more
detail in the Summary and Analysis of Comments document prepared for
this final rule and included in the docket noted earlier. Also in the
Summary and Analysis of Comments document is consideration of other
issues whose resolution is reflected in this final rule.

A. Required Information

(1) Summary of Proposal
EPA proposed in its general requirements in paragraph (2) of the
regulations that OEMs shall furnish or cause to be furnished to service
and repair facilities ``any and all information needed to make use of
the on-board diagnostic system and such other information, including
instructions for making emission-related diagnosis and repairs,
including but not limited to service manuals, technical service
bulletins, recall service information, data stream information, bi-
directional control information, and training information * * *'' EPA
proposed in paragraph (5) of the regulations a specific list of the
information that OEMs would be required to make available on their OEM-
specific Web sites. In particular, EPA proposed to require the
availability of OBD generic drive cycle information, component
operating ranges, and system logic flow diagrams.
(2) Summary of Comments
With regard to OBD generic drive cycles, the Alliance of Automobile
Manufacturers (the Alliance), the Association of International
Automobile Manufacturers (AIAM), and BMW commented that the term ``OBD
generic drive cycle information was not defined in the proposal. They
are also concerned about operating the vehicle safely when attempting
to ensure the monitors operated. The Alliance and AIAM commented that
OEMs have agreed to provide a drive cycle for each major monitor, which
should provide sufficient information to allow a service provider to
determine if the monitors have been run over the drive cycle specified
for that monitor. Further, the Alliance and AIAM commented that a
service provider could operate all of the individual monitors over all
of the cycles provided to ensure that all of the monitors have
operated.
Several aftermarket service providers commented that both vehicle
specific and generic OBD drive cycles be made available.
The Speciality Equipment Manufacturers Association (SEMA) commented
that it is in the best interest of consumers and independent service
providers for drive cycle information to be provided by each OEM. SEMA
also commented that drive cycle information is necessary to set
inspection and maintenance (I/M) readiness codes and therefore is
crucial information for customer convenience and acceptance of OBD
checks in I/M lanes. Additionally, SEMA commented that they do not
agree with OEM comments that drive cycles should only be made available
for each monitor. SEMA commented that it is necessary for each OEM to
provide a consolidated drive cycle to reliably set all readiness codes
in addition to providing generic drive cycles for each monitor.
The Equipment and Tool Institute (ETI) commented that they agree
with the Alliance and AIAM recommendation that EPA revise the language
to refer to monitor specific generic drive cycle versus an overall
generic drive cycle.
With regard to OBD system operational information, the Alliance and
AIAM commented extensively on EPA's proposal to make available OBD
system operational information. First, the Alliance and AIAM commented
that EPA's claims that some OEMs do not make adequate OBD information
available to the aftermarket is unsubstantiated. The Alliance and AIAM
further commented that OEMs have ``huge motivation'' to ensure that
their service information meets the needs of both the dealership and
the aftermarket. Second, the Alliance and AIAM commented that the Clean
Air Act does not give EPA the authority to dictate the content of OEM
service information. The Alliance and AIAM further commented that OEMs
make available to the aftermarket all of the diagnostic information
that is made available to their dealers which has been structured in
such a way to lead service technicians through the diagnostic process.
Third, the Alliance and AIAM commented that EPA does not indicate the
purpose or need for requiring every component operating range and that
this type of information is not needed in all cases to make emissions-
related repairs, and that providing such information could be a huge
task. Fourth, the Alliance and AIAM comment that some OEMs consider OBD
system logic flow diagrams to be proprietary information because they
can contain algorithms specific to an OEM. Lastly, the Alliance and
AIAM commented that in the recent Service Information proposal issued
by

[[Page 38435]]

the California Air Resources Board (CARB), it was proposed that OEMs
make available a general description of their OBD systems which
includes a general description of the operation of each monitor and the
parameters that are being monitored. CARB also proposed that additional
information be made available such as diagnostic codes associated with
each monitor; typical enable conditions for the monitors; a general
sequence of events, execution frequency and duration; and typical
malfunction thresholds. The Alliance and AIAM commented that this type
of information is sufficient to service OBD related problems and to go
beyond what CARB has proposed is unnecessary. The Alliance and AIAM
commented that EPA should adopt requirements consistent with those
proposed by CARB.
The Westchester/Putnam chapter of the Service Technicians Society
commented that information such as system logic, including monitor
strategies, related components by each monitor and range/response times
for sensor inputs need to be made available to aftermarket service
providers. Additionally, they commented that information on parameters
for all sensors and actuators is also needed by aftermarket service
providers.
The Speciality Equipment Manufacturers Association (SEMA) commented
that they would support a provision that would require OEMs to provide
general information on each significant component of the OBD system.
SEMA further commented that a description of typical values under
operating conditions is feasible and that it is reasonable for OEMs to
consolidate this type of information in a generic manner to assist
technicians in identifying a malfunctioning component without having to
purchase an OEM specific scan tool. SEMA also commented that they
support the availability of system diagrams and basic descriptions of
OBD system monitoring.
BMW submitted written comments supporting the comments of the
Alliance and AIAM on requiring OBD system operational information. BMW
commented that they would support provisions that mirror those proposed
by the California Air Resources Board (CARB) which require OEMs to make
available general descriptions of OBD system information rather than
the specific list proposed by EPA.
A consortium of aftermarket groups (the ``Aftermarket Consortium'')
stated its support for a provision that would require OEMs to make
available OBD system operational information, regardless of whether or
not they currently make this information available to their
dealerships. They further commented that the Clean Air Act does not
limit the information which must be provided to that which is furnished
to dealers. The Associations also commented that this type of
information needs to be made available to the aftermarket from all OEMs
to ensure the proper diagnosis and repair of OBD equipped vehicles.
Finally, the Associations commented that independents often fix used
part or replace a malfunctioning part with a used or rebuilt part in
making repairs. In doing so, they may have to adjust the functioning of
such parts to meet OBD parameters. Therefore, OBD system information is
needed in these circumstances.
The Service Technicians Society (STS) commented in their written
submission that generic drive cycles, component operating ranges and
system logic flow diagrams are important pieces of information for the
emissions repair process. STS further commented that current
availability of this type of information varies among OEMs and is not
easily available in some cases. Without this type of information,
technicians must use their best judgement, or sometimes even guess at
the appropriate solution, which increases the time and cost of repairs.
STS is concerned that access to this level of information is necessary
to avoid customer frustration and to increase the perception of
automotive aftermarket service providers as competent professionals.
In their written submission, ETI commented that OEM repair
information can sometimes be inadequate despite the claims of the
Alliance and AIAM. Many OEM repair procedures call for the temporary
substitution of a known good part which can only be purchased from a
dealer. However, simply replacing the part may not solve the problem.
If it is an electrical part, the dealer may not take it back. ETI
states that this type of repair information is not adequate by
anybody's standards. Therefore, the aftermarket technician must have
the information requested in order to conduct pinpoint tests and
determine whether the part in question is working without using the
substitution process.
EPA Decision: EPA agrees with comments that it is appropriate to
more specifically define the ``OBD Generic Drive Cycle'' information.
Therefore, EPA is finalizing a provision that requires OEMs to make
available monitor-specific drive cycles for all major OBD monitors as
equipped including, but not limited to catalyst, catalyst heater,
oxygen sensor, oxygen sensor heater, evaporative system, exhaust gas
re-circulation (EGR) secondary air, and a/c system. Additionally, for
diesel vehicles under 14,000 pounds GVWR which also perform misfire,
fuel system and comprehensive component monitoring under specific
driving conditions (i.e., non-continuous monitoring; as opposed to
spark ignition engines that monitor these systems under all conditions
or continuous monitoring), the OEM shall make available monitor-
specific drive cycles for these monitors. We will also finalize a
provision that will require any OEMs who develop generic drive cycles,
either in addition to, or instead of, monitor-specific drive cycles to
also make these available in full-text on OEM Web sites.
With regard to OBD system operational information, EPA disagrees
with the Alliance and AIAM comments that EPA has not substantiated that
some OEMs do not make adequate information available to the
aftermarket. While EPA agrees that it would seem that OEMs have a
``huge motivation'' to ensure that sufficient information is available
to both dealership and aftermarket technicians, we believe that there
are numerous examples of information gaps of which the OEMs are aware.
Aside from the analysis of OEM service manuals conducted by EPA which
can be found in the docket (Air Docket A-2000-49, item II-B-01, ``Memo
from Shannon Elliot to Holly Pugliese and Arvon Mitcham--Analysis of
OEM Service Manuals'', March 10, 2000), EPA has participated in
numerous meetings and conferences with aftermarket service providers
and OEMs for discussions solely focused on acknowledged gaps in OEM
information. Additionally, sources such as the International Automotive
Technicians Network (iATN) and the Service Technicians Society (STS)
have provided numerous examples of both dealership and aftermarket
technician difficulties in finding enough information to service some
particular OEM makes and models. A compilation of some of the
complaints that have been documented can be found in EPA Air Docket A-
2000-49, Item IV-H-03.
EPA also disagrees that it does not have the authority under the
Clean Air Act to compel the distribution of relevant service
information. EPA agrees with the comments submitted by MEMA, et al.
that the Clean Air Act does not limit the information that must be
provided to that which is made available to dealerships. While it is
clear that under section 202(m)(5), the

[[Page 38436]]

aftermarket should at a minimum have access to the same information as
dealerships, section 202(m)(5) does not preclude EPA from requiring
OEMs to provide additional information to be made available to both
dealerships and the aftermarket. Nothing in section 202(m)(5) of the
Clean Air Act makes reference to limiting information availability to
that which is made available to dealerships. On the contrary, section
202(m)(5) requires OEMs to provide ``any and all'' information needed
to use the OBD system and ``such other information including
instructions for making emission related diagnosis and repairs,''
including at a minimum all information given to dealerships. EPA is
instructed by section 202(m)(5) to promulgate regulations requiring
OEMs to provide such information. EPA has broad authority to require
all information needed to use the OBD system and make emission related
diagnosis and repairs, including requiring OEMs to provide specific
information needed for emission related diagnosis and repairs.
Regarding the comments submitted by the Alliance and AIAM and BMW
that the proposal goes beyond EPA's authority and may very well require
the release of proprietary OEM calibrations, EPA appreciates the
concerns of these commenters. It was not EPA's intent to require any
information that would be considered a trade secret or would jeopardize
the integrity of the OBD system. We believed that the general language
in the proposal regarding what would be considered OBD system
operational information would be sufficient to express the level of
information EPA believes is needed to be made available from all OEMs
without jeopardizing OEM proprietary information. EPA also agrees with
the comments of the Alliance, AIAM, and BMW that the OBD system
descriptors required by the service information regulations finalized
by the California Air Resources Board provide a sufficient list of the
types of OBD diagnostic information needed to service and repair OBD-
equipped vehicles and is in essence exactly the level of information
EPA was seeking to be made available by using the term ``OBD system
operational information.'' Therefore, EPA will finalize a list of
required information to parallel the list finalized by CARB in their
September 2002 Final Rule. OEMs shall make available for purchase to
all covered persons, a general description of each OBD system used in
1996 and subsequent model-year vehicles, which shall include the
following:
(A) A general description of the operation of each monitor,
including a description of the parameter that is being monitored.
(B) A listing of all typical OBD diagnostic trouble codes
associated with each monitor.
(C) A description of the typical enabling conditions for each
monitor to execute during vehicle operation, including, but not limited
to, minimum and maximum intake air and engine coolant temperature,
vehicle speed range, and time after engine startup.
(D) A listing of each monitor sequence, execution frequency and
typical duration.
(E) A listing of typical malfunction thresholds for each monitor.
(F) For OBD parameters for specific vehicles that deviate from the
typical parameters, the OBD description shall indicate the deviation
and provide a separate listing of the typical values for those
vehicles.
(G) A listing of monitor-specific OBD drive cycle information for
all major OBD monitors as equipped including, but not limited to,
catalyst, catalyst heater), oxygen sensor, oxygen sensor heater,
evaporative system, exhaust gas re-circulation (EGR), secondary air,
and air conditioning system. Additionally, for diesel vehicles under
14,000 pounds GVWR which also perform misfire, fuel system and
comprehensive component monitoring under specific driving conditions
(i.e., non-continuous monitoring; as opposed to spark ignition engines
that monitor these systems under all conditions or continuous
monitoring), the OEM shall make available monitor-specific generic
drive cycles for these monitors. Any OEM who develops generic drive
cycles, either in addition to, or instead of, monitor-specific drive
cycles shall also make these available in full-text on OEM Web sites.
(H) Identification and scaling information necessary to interpret
and understand data available to a generic scan tool through ``mode
6'', pursuant to Society of Automotive Engineers SAE J1979.
EPA believes that this list meets the concerns of aftermarket
service providers that not all OEMs provided complete information for
the service and repair of emissions related problems. As discussed in
the NPRM, we believe that a greater number of OEMs are providing this
very information to both their franchised dealerships as well as the
aftermarket which provides a strong indication that EPA should
incorporate a more specific list of what EPA believes should be made
available by all OEMs. We believe that the comprehensive list being
finalized in today's action will ensure that more complete emissions-
related information is available from all OEMs.
We are also finalizing a provision that requires the development of
the information described above by the OEM even if this information
does not already exist in some form for its dealerships. EPA is making
this distinction to reiterate our position that there is a need for an
increased consistency in the level of information made available across
all OEMs. In the past, we have generally agreed that whatever
information is made available to OEM dealerships provided an adequate
basis to determine what information should be made available to the
aftermarket. However, experience in implementing the 1995 regulations
has underscored the need for EPA to be more specific in it's definition
of emissions-related information as discussed in great detail above.
This increased specificity of our definitions ultimately requires that
all of the information required by these regulations be made available,
regardless of whether or not it is currently made available to
dealerships. In other words, OEMs may not make the claim that they do
not have to make certain information required by this regulation
available to the aftermarket because they do not even make it available
to dealerships.

B. Anti-Theft Information

Summary of Proposal: EPA proposed that information needed to start
the vehicle when the vehicle is equipped with an anti-theft or similar
system that disables the engine also be made available to the
aftermarket.
Summary of Comments: The Alliance and AIAM commented that they
recognize the need to be able to start a vehicle after an emissions-
related repair, but they have some concern with making this information
available to aftermarket service providers in the manner proposed by
EPA. The Alliance and AIAM also acknowledge that aftermarket service
providers already have the ability to access this capability for a
majority of their member companies. The Alliance and AIAM explained
that some OEM anti-theft systems require a serial data message to be
sent to the vehicle on the OBD data link (SAE J1962) that contains a
PIN (personal identification number)or key that is unique to each
specific vehicle. This vehicle specific code may be obtained from
information that should be retained by the vehicle owner or may be
obtained from an assistance center controlled by the OEM. In other
words,

[[Page 38437]]

the aftermarket currently has access to anti-theft reinitialization in
some form for many OEMs. The Alliance and AIAM commented that it is not
clear from EPA's proposal if OEMs would be required to make these
special codes available on the OEM Web sites. Rather, the Alliance and
AIAM assumed that OEM Web sites would be required to inform aftermarket
service providers on how to obtain the code from the OEM. The Alliance
and AIAM further commented that enhanced data stream information that
will be available to scan tool manufacturers would allow an aftermarket
scan tool to complete the re-initialization process with the additional
information that would be available from the OEM.
The Alliance and AIAM also commented on the impact that the
proposed release of anti-theft information could have on other
requirements that OEMs are subject to in the U.S. and internationally.
For some OEMs, implementing EPA's proposed anti-theft provision would
require redesigning the vehicle's anti-theft system in order to stay in
compliance with requirements in place by other Agencies. Because of
these factors, the Alliance and AIAM recommended that EPA finalize a
phase-in for this requirement with full implementation in 2007. The
Alliance and AIAM further comment that many OEMs already comply with
the proposed requirement and that allowing sufficient lead time for a
minority of OEMs will allow for sufficient time to implement changes
without jeopardizing vehicle security or compliance with other
regulations. The Alliance and AIAM additionally commented that EPA and
CARB should work closely with the National Highway Traffic Safety
Administration (NHTSA) in determining whether a component or system
qualifies as a vehicle security system and whether providing this
information would circumvent the anti-theft system.
The Automotive Service Association (ASA) also provided comments on
the release of anti-theft information. ASA supports finalizing a
provision that would make this information available to aftermarket
service providers, but recommends that EPA be more specific about how
aftermarket service providers can obtain anti-theft information and the
timeliness of receiving the information. ASA commented that, if the
information is protected to the degree that aftermarket service
providers cannot immediately obtain the information, EPA should
finalize a provision that the requires the OEMs to make this
information available on the same day it is requested. ASA submitted
similar comments in their written submission.
APRA and AERA also commented that repairers and rebuilders of the
OBD computer itself also need specific information which will allow
them to re-initialize a computer when it is being repaired after being
removed from the vehicle. APRA and AERA commented that the proposed
rule is not specific enough and that EPA should extend the anti-theft
provisions to starting the computer if it has been removed from the
vehicle.
The National Automobile Dealers Association (NADA) commented that
EPA lacks the authority to require ``unfettered dissemination'' of
anti-theft information. NADA further commented that EPA did not consult
with the National Highway Traffic Safety Administration, the U.S.
Customs Service, the National Insurance Crime Bureau or other vehicle
theft experts before drafting the proposal. NADA recommends that EPA
develop a process that is very carefully controlled to address the
restarting of vehicles disabled by anti-theft systems during emissions-
related repairs.
The Automotive Aftermarket Industry Association (AAIA) and the
Automotive Warehouse Distributors Association (AWDA) commented that
they support a provision that will mandate OEMs to provide aftermarket
service providers with the ability to reinitialize anti-theft systems
after the completion of emissions-related repairs. AIAA and AWDA
further commented that the proposal does not go far enough. AIAA and
AWDA are particularly concerned about rebuilt ECUs that must be removed
from the vehicle that are sent off-site for the rebuilding process.
AIAA and AWDA comment that OEMs should enter into licensing agreements
with the few companies who rebuild ECUs to ensure that they have the
codes or ``black boxes'' which contain the codes.
One independent aftermarket service provider commented that the
mandated release of anti-theft information to aftermarket service
providers would be detrimental to the driving public. Rather than
making anti-theft information directly available to the aftermarket,
Mr. Porcaro further commented that OEMs should be required to inform
aftermarket service providers which vehicle systems are impacted by
anti-theft systems. To the extent that those vehicle systems cannot be
reprogrammed without anti-theft system information, OEMs should be
required to have their respective dealer networks available for quick
and inexpensive reprogramming.
SEMA commented that anti-theft information is necessary to validate
repairs, allow for product development and to verify the remanufacture
of an ECU or similar electronic components. SEMA further commented that
this information must be available not only through the scan tool but
also via the OEM Web sites. SEMA agrees with other commenters that
security issues related to the release of this information is an
important concern. However, SEMA commented that vehicle owners must
have the ability to provide anti-theft information to an independent
facility and the independent facility must have the ability to use the
information obtained from, or authorized by, the owner to complete the
repair. SEMA believes that this combination should minimize concerns
about the inappropriate release of anti-theft system information to the
aftermarket.
Nissan of North America commented that the release of anti-theft
information would seriously compromise the intent of the anti-theft
system and opposes any provision that would require this information to
be made available to aftermarket service providers.
BMW commented that they generally agree with comments submitted by
the Alliance and AIAM on this issue. BMW commented that they prefer not
to see any provision at all that would require the release of this
information, but that if EPA decides to move forward, the Agency should
allow for sufficient lead time for implementation. BMW further
commented that there appears to be some discrepancy between the
proposed preamble language and proposed regulatory language.
Specifically, BMW is concerned that the preamble refers to information
and tools needed to start the vehicle after the completion of an
emissions-related repair, whereas the proposed regulatory language
makes no mention of tools. This is of particular concern to BMW because
BMW does not have ``information'' in the traditional sense that would
allow an aftermarket service provider to re-set the security system
after an emissions-related repair for 1993--2003 model year vehicles.
Rather, BMW has the functionality built into their OEM-specific scan
tools that allow for re-initialization of the (ECU) which, for BMW,
only occurs when the ECU is replaced. BMW also commented that EPA
should adopt the anti-theft language proposed by CARB.
Volkswagen of American (VW) submitted written comments requesting
that anti-theft provisions be removed from the final rulemaking. VW
commented that this issue should be discussed in a separate effort that
would allow for a thorough discussion with all

[[Page 38438]]

interested parties and agencies to ensure that such a requirement would
not have a negative impact on OEM efforts to improve vehicle security.
ETI commented that OEMs have known for many years that security
could not be used as an excuse to require the vehicle to be towed to
the dealership for a special process and thus deny the aftermarket from
participating in computer replacement or reprogramming. ETI further
commented that there is no need to delay this requirement until 2007,
as suggested by at least one OEM. ETI commented that OEMs have had
ample time to design vehicle ignition systems that can be started after
a computer change or reprogramming event.
American Honda commented that vehicle theft is of particular
concern to Honda given that Honda vehicles have a particularly high
theft rate in the U.S. and abroad. Honda has committed significant
resources to reducing vehicle theft for its vehicles and recent data
indicates that the theft rate for Honda vehicles has been significantly
reduced since immobilizer systems have been installed on Honda
vehicles. Honda attributes the success of their immobilizer systems to
the considerable control process they incorporate to protect the
proprietary information with their licensed dealers. Honda is concerned
that they would not be able to put in place similar controls for the
aftermarket and would be left with no course of action against third
parties if security agreements were violated. Honda commented that they
have been in contact with law enforcement agencies, the insurance
industry and the National Highway Traffic Safety Administration to
gather their expert opinions on the matter and encourages EPA to do the
same.
American Honda commented that because of the issues outlined above,
they strongly oppose the proposed requirement to release information to
the aftermarket on how to obtain information to reinitialize Honda
vehicles, other than instructing the customer to return to a licensed
Honda dealer. The Aftermarket Consortium reiterated its support for
making anti-theft and re-initialization procedures available to the
aftermarket, including those companies that rebuild ECUs. They state
that without the ability to initialize the system, the aftermarket
service provider cannot complete the repair of the vehicle. Currently
900,000 rebuilt ECUs are sold annually. If rebuilding facilities are
not able to initialize the anti-theft system, they will not be able to
provide these services. They state that they are well aware of the
concerns regarding the integrity of the anti-theft system. However,
many companies allow the initialization of the system using a ``black
box'' that avoids the need to reveal anti-theft codes.
The Service Technicians Society (STS) submitted written comments in
support of making anti-theft and re-initialization procedures and
information available to aftermarket service providers, so that the
motorist can drive away from the service facility after an OBD check or
repair is made.
The Highway Loss Data Institute (HLDI) submitted written comments
voicing their opposition to the release of any information related to
anti-theft systems to the aftermarket. HLDI commented that their
organization has monitored the effectiveness of anti-theft devices for
many years. Their data indicates a significant decrease in automobile
theft with the installation of vehicle anti-theft systems. HLDI further
commented that the release of this information to the aftermarket would
seriously compromise the effectiveness of anti-theft systems. HLDI is
concerned that it would be difficult to confine the release of the
information only to the aftermarket and the release of this information
would inevitably increase access to people involved in vehicle theft.
HLDI is also concerned about the premium discounts some insurance
providers make available to vehicle owners. HLDI commented that
insurers would be forced to reassess the appropriateness of these
discounts if OEMs must publish the codes and other information
necessary to reinitialize an anti-theft system. Finally, HLDI commented
that EPA should rescind any provision that requires OEMs to make
available anti-theft information available to the aftermarket.
Written comments were received by the Advocates for Highway and
Auto Safety (Advocates) after the close of the August 27, 2001 comment
period. In their comments, the Advocates expressed concern for any
provision that would require the release of anti-theft information. In
particular, the Advocates are concerned about the posting of anti-theft
system codes and other sensitive information on the World Wide Web.
Even if the information can be encrypted, this will not ensure that the
information will not fall into the hands of vehicle thieves. The
Advocates recommend that EPA refrain from adopting the portions of the
proposal that would require the publication of anti-theft codes and
information by the OEMs. Further, the Advocates comment that EPA
consult with NHTSA and other interested parties regarding other means
to achieve EPA's goal. The Advocates commented that one option might be
to require that anti-theft and emission-related functions be separately
configured so that the maintenance and repair of one system does not
affect the other.
EPA Decision: As stated in the preamble to the proposal, EPA is
sensitive to finalizing any provision that would jeopardize the intent
of any OEM anti-theft system. However, we also believe that vehicle
design on at least some OEM vehicles would prevent an aftermarket
technician from completing an emissions-related repair without the
ability to re-initialize a vehicle's anti-theft system. As we noted in
the proposal, re-initialization is critical to the ability of an
aftermarket technician to complete an emission-related repair. A
vehicle that cannot be driven away from the shop has not been fully
repaired. Therefore, this information and/or the ability to perform
this service must be made available to the aftermarket in a timely and
cost effective manner. In order to allow OEMs maximum protection of the
integrity of their anti-theft systems, EPA will finalize the following
provisions for the availability of anti-theft system information. OEMs
shall make available computer or anti-theft system initialization
information necessary for the proper installation or repair of on-board
computers or the repair or replacement of any other emission-related
part on motor vehicles that employ integral vehicle security systems.
OEMs are not required to make this information available on the OEM's
Web site unless they choose to do so. However, the OEM's Web site shall
contain information on obtaining the information and/or the ability to
perform re-initialization.
Beginning with the 2008 model year, we require that all OEM systems
will be designed in such a way that no special tools or processes will
be necessary to perform re-initialization. In other words, EPA expects
that the re-initialization of vehicles can be completed with generic
aftermarket tools, a pass-through device, or an inexpensive OEM-
specific cable. This model year cut-off is consistent with the
requirement to complete the phase-in of the SAE J2284-3 CAN requirement
as discussed in section 18 of this document. We believe it is
reasonable to allow for additional leadtime through the 2007 model year
to allow those OEMs who need additional time to reconfigure their
vehicle systems in such a way that the release of anti-theft
information can be accomplished without posing a threat to the
integrity of the system and without special tools or an OEM-specific
tool. Therefore, an

[[Page 38439]]

OEM may request, by 1 month following the effective date of the final
rule Administrator approval for an alternative means to re-initialize
vehicles for some or all model years through the 2007 model year.
The Administrator shall approve the request only after all of the
following conditions have been met:
(A) The OEM must demonstrate that the availability of such
information to aftermarket service providers would significantly
increase the risk of vehicle theft.
(B) The OEM must make available a reasonable alternative means to
install computers, or to otherwise repair or replace an emission-
related part.
(C) Any alternative means proposed by an OEM cannot require
aftermarket technicians to return to an OEM franchised dealership to
obtain information or special tools to re-initialize the anti-theft
system.
(D) Any alternative means proposed by an OEM must be available to
aftermarket technicians at a minimal cost.
(E) Any alternative must be available to aftermarket technicians
within twenty-four hours of the initial request.
(F) Any alternative must not require the purchase of a special tool
or tools to complete this repair. For example, an OEM who intends to
request approval to require the purchase of their OEM-specific tool or
some other OEM-specific special tool as their alternate solution
through model year 2007 must allow the aftermarket to lease that tool
for a short period of time, at appropriate minimal cost, rather than
requiring the outright purchase of the tool.
(G) In lieu of leasing their OEM-specific tool to meet this
requirement, an OEM may also choose to release the necessary
information to equipment and tool manufacturers for incorporation into
aftermarket scan tools. Any OEM choosing this option must release the
information to equipment and tool manufacturers within 60 days of
Administrator approval. OEMs may also choose to comply with this
requirement using SAE J2534 for some or all model years through model
year 2007.
We believe that it is unreasonable and directly contrary to the
intent of section 202(m)(5) to require the aftermarket to purchase
numerous and costly tools that they would not have otherwise purchased
to perform a relatively infrequent repair. In fact, it is for the same
reasons that, as discussed below, EPA is requiring that all OEMs make
available generic and enhanced scan tool information to equipment and
tool companies. Requiring the purchase of expensive tools for such
minimal and rare repairs would be an especially egregious abuse of the
OEMs' monopoly of information in order to charge unreasonable costs.
Regarding the requirement that OEMs provide the information
directly to aftermarket technicians, not through dealerships, several
OEMs have commented that it is appropriate to limit the information to
dealerships because of the greater security concerns associated with
providing the information to the aftermarket. These arguments are
directly contrary to the letter and intent of section 202 (m)(5). One
of the key purposes of that section was to prevent OEMs from giving
their dealerships substantial competitive advantages against their
competitors in the aftermarket repair industry by giving repair
information only to dealerships, leaving aftermarket technicians at the
mercy of their competitors. OEMs have not shown that providing a method
for aftermarket technicians to re-initialize vehicles will inherently
provide less security than providing re-initialization information to
their dealerships; nor have they shown that any speculative problems
justify the considerable competitive disadvantage caused by providing
this information solely to their dealers. Our regulations do not
require this information to be provided on the OEM's Web site and allow
OEMs to provide the information enabling re-initialization to
aftermarket technicians in a secure manner. The Alliance/AIAM comments
note that many OEMs already provide such information directly to the
aftermarket.

C. Accessibility and Performance Requirements of OEM Web Sites

Summary of Proposal: We proposed that each OEM Web site allow end-
users to search its database of emission-related service information by
various topics. We proposed that the topics include, but not be limited
to, model, model year, key words, phrases, diagnostic procedures,
scheduled maintenance and vehicle identification number (VIN).
Additionally, we proposed that OEMs must provide information to allow
for readily identifying the latest vehicle calibration. Further, while
the VIN may be offered as one means of conducting a search, we proposed
that OEMs may not require the use of a VIN to initially access the data
base. We also proposed that the use of proprietary hardware, software,
viewers, browsers and formats for accessing information be prohibited.
In other words, OEMs must develop their service information, and
provide access to it, in such a way that it can be viewed using
software such as Adobe Acrobat Reader that is readily available to
Internet users. The OEM's Home Page must be accessible to anyone and
contain instructions on how to access the information. Instructions
should include, but not be limited to, minimum hardware and non-
proprietary software needed by the end-user and associated costs for
accessing and purchasing information. Finally, we proposed that OEMs
not limit the modem speed by which aftermarket service providers can
access OEM Web sites.
We also proposed performance and reporting requirements for OEM Web
sites. We proposed that OEMs submit to the Administrator on an annual
basis a report that provides detailed, monthly measurements of the
OEM's Web site. Each OEM report is to be submitted to the Administrator
beginning one year after the required launch date of OEMs' Web sites
(i.e., one year and 6 months after the final rule is issued), or upon
request by the Administrator.
Summary of Comments: The Alliance and AIAM, and several individual
OEMs commented on EPA's proposal to allow searching of OEM Web sites by
VIN. They commented that requiring a Web site to be searchable by VIN
will inflate the cost of information without providing a meaningful
improvement in accessibility. They further commented that service
technicians customarily search for information by make, model and year
and that searchability by VIN is only useful for some items such as
service campaigns and vehicle calibrations (for some OEMs). The
Alliance and AIAM recommend deleting this requirement from the final
rule.
APRA and AERA commented that they do not see a need for access by
VIN to the OEM Web sites. A technician who knows the VIN of the vehicle
they are repairing also knows the model and model year and can access
the information in that manner.
Mr. Jerry Truglia of ATTS commented that EPA should require several
options for OEM Web site searchability criteria. Mr. Truglia commented
that all OEM Web sites should have uniform and consistent search
engines. In addition, all OEM Web sites should be searchable by VIN,
vehicle system, generic OBD part name, and P0 and P1 diagnostic trouble
codes.
The Speciality Equipment Manufacturers Association (SEMA) commented
that they strongly support the proposed requirement that service
information be searchable by VIN. SEMA commented that this type of
search is necessary because many repairs such as service campaigns,
field fixes and running changes are

[[Page 38440]]

implemented on the basis of VIN. SEMA also commented that EPA should
consider a requirement for a VIN-based history of the services and
repairs performed on a given vehicle to help ensure the proper repair
procedure is used since the content/condition of a given vehicle will
be more accurately known. VIN-based histories would also be of value to
consumers by giving them more information about an in-use vehicle's
history at the time of purchase.
The Aftermarket Consortium submitted comments suggesting that a
search by VIN on OEM Web sites is not necessary.
BMW commented that EPA's proposal to require that information be
searchable by model year poses a problem for BMW because of how they
organize their service information. BMW organizes its service
information by combining body series, engines, body types, and
transmissions. Currently, any technician searching for BMW information
could not locate information for the vehicle in question by simply
searching for a model year. BMW proposes that they would provide a link
to a cross-reference document that describes the various combinations
and the model years they pertain to in order to assist technicians who
are not familiar with the structure of BMW vehicles and service
information.
STS commented that searching for information by VIN is a more
accurate way to search for information on OEM Web sites, but that it
can not be the only way. STS commented that, to the extent a search by
VIN is required, it should be restricted to the least amount of numbers
that would not jeopardize rights to privacy of the vehicle owner.
With regard to EPA's proposal on performance and Reporting
Requirements, the Alliance and AIAM and several individual OEMs
commented that they believe that the detailed reporting provisions in
the proposal should be eliminated and replaced with a general reporting
requirement for an annual report on the performance of a Web site with
a specified deadline. The Alliance and AIAM further commented that any
details of the annual reports should be addressed separately from the
regulations in the form of EPA's manufacturer guidance letter. The
Alliance and AIAM expressed particular concern of the list of 17
criteria as being too specific given the rate of change in Internet
activities. They commented that it is likely that EPA would want to
change the content of the annual reports over time to reflect advances
in Internet technology and other issues. To include specifics in the
final regulation would put the burden on EPA to change the regulations
frequently which is not practical given the complexities of the
regulatory process. The Alliance and AIAM further recommend that EPA
schedule a public workshop to discuss the criteria that should be
reported to EPA before issuing any guidance to ensure that all parties
have input.
ASA commented at the public hearing that generally, the OEM Web
sites must be required to meet some minimum standards for performance
to ensure that independent repair shops are not subject to low quality
Web sites from a time or quality perspective. Web sites that are not
user friendly will not be utilized by the aftermarket, therefore
undermining the intent of the regulation to improve the accessibility
of information to the aftermarket.
NADA commented at the July 25, 2001 public hearing that they
support EPA's proposal to shift to delivery of service information via
the Internet. However, NADA commented that it is not necessary for EPA
to micro manage OEM Web sites. In particular, NADA commented that EPA
did not need to establish requirements for how information on the sites
is searched or indexed, whether the information can be downloaded and
how, what, or who the OEMs can charge for the information.
The Automotive Aftermarket Industry Association (AAIA) and the
Automotive Warehouse Distributors Association (AWDA) commented at the
July 25, 2001 public hearing that they support a provision that will
require OEMs to submit annual reports that provide detailed monthly
measurements of OEM Web sites. AAIA and AWDA expressed concern that EPA
has not established standards by which the reports can be judged and
without such standards, EPA will not be able to take enforcement action
against an OEM for a Web site that is not accessible to independents.
AAIA and AWDA commented that EPA should adopt criteria similar to that
being considered by CARB for performance standards that include such
parameters as ensuring that OEM Web servers have sufficient capacity to
allow ready access by all covered persons.
The Aftermarket Consortium submitted comments that they support
requirements that OEMs submit annual reports regarding Web site
performance and that this information will assist the Administrator in
measuring the effectiveness of OEM Web sites. The Aftermarket
Consortium also commented that they are concerned about the reporting
parameters proposed by EPA because they do not include some minimum
performance expectation and will not provide sufficient guidance to
ensure OEM compliance. The Aftermarket Consortium recommended that EPA
adopt the performance requirements proposed by CARB.
ASA commented that reporting requirements should include an
analysis of how information transfers have worked for third party
providers.
EPA Decision: Based on the comments received, there is no obvious
agreement on the need to require a search by VIN on OEM Web sites. When
proposing this particular provision, we believed that requiring a
search by VIN on the OEM sites would not be overly burdensome for the
OEMs and would be of some benefit to aftermarket service providers.
After further consideration, it now appears that requiring OEMs to
design sites that require information to be searchable by VIN would
require considerable resources, but would not considerably improve the
ability of the aftermarket to find information on OEM Web sites. The
California Air Resources Board has not finalized a similar provision
for these same reasons. Therefore, EPA will not require the VIN as a
search method for OEM Web sites.
In response to BMW's comment about searching by model year, EPA
agrees that there may be a few OEMs who do not delineate their service
information by model year. We agree that it is reasonable to adopt
BMW's proposal that would allow for OEMs who do not have a model year
delineation to allow searchability by some alternate means such as body
series. However, EPA also agrees that any OEM who does not use model
year should include some documentation that allows for a cross-
reference to model year for those aftermarket service providers who may
not be familiar with the structure of OEM vehicle classification.
With regard to OEM Web site performance and reporting requirements,
EPA believes that the performance of OEM Web sites is paramount to the
availability of the information. The reporting parameters proposed by
EPA were intended to ensure that EPA would have sufficient information
to evaluate the performance of OEM Web sites to ultimately ensure that
the information required by these regulations is truly available. While
EPA believes that the parameters proposed would achieve this goal, we
agree with commenters that finalizing reporting requirements as
proposed would not allow EPA maximum flexibility for making adjustments
to the provisions to allow for technology advances and implementation
experience. We also

[[Page 38441]]

agree that a reasonable alternative is to finalize some minimum
reporting requirements as part of the regulation that must be measured
by the OEMs and provide additional guidance after discussions with all
interested parties as the OEM Web sites are reviewed. OEMs must provide
annual reports containing monthly measurements of the following
parameters:
(A) Total successful requests (measured in number of files
including graphic interchange formats (GIFs) and joint photographic
expert group (JPEG) images, i.e. electronic images such as wiring or
other diagrams or pictures). This is defined as the total successful
request counts of all the files which have been requested, including
pages, graphics, etc.
(B) Total failed requests (measured in number of files). This is
defined as the total failed request counts of all the files which were
requested but failed because they could not be found or were read-
protected. This includes pages, graphics, etc.
(C) Average data transferred per day (measured by bytes). This is
defined as average amount of data transferred per day from one place to
another.
(D) Daily Summary (measured in number of files/pages by day of
week). This is defined as the total number of requests each day of the
week, over the time period given at the beginning of the report.
(E) Daily report (measured in number of files/pages by the day of
the month). This is defined as how many requests there were in each day
of a specific month.
(F) Browser Summary (measured in number of files/pages by browser
type, i.e., Netscape, Internet Explorer). This is defined as the
versions of a browser by vendor.
(G) Any other information deemed necessary by the Administrator to
determine the adequacy of an OEM Web site.
EPA will work with OEMs and issue further guidance regarding
requirements to outline a consistent format and timing of submission.
OEMs may request Administrator approval to report on parameters
other than those described above if the OEM can demonstrate that those
alternate parameters will provide sufficient and similar information
for EPA to effectively evaluate the OEM Web site.
In addition, several commenters suggested that EPA should harmonize
with CARB and at a minimum, adopt the performance criteria finalized in
their service information rule. EPA agrees and will therefore finalize
a provision that requires OEMs to launch Web sites that meet the
performance criteria described below:
(A) OEM Web sites shall posses sufficient server capacity to allow
ready access by all users and have sufficient downloading capacity to
assure that all users may obtain needed information without undue
delay;
(B) Broken Web links shall be corrected or deleted weekly.
(C) Web site navigation does not require a user to return to the
OEM home page or a search engine in order to access a different portion
of the site.
Performance reports will be submitted to the Administrator annually
and within 30 days of the end of the calendar year, or upon request by
the Administrator. EPA will issue additional direction in the form of
official manufacturer guidance to further specify the process for
submitting reports to the Administrator.

D. Structure and Cost of OEM Web Sites

Summary of Proposal: We proposed a tiered approach for access to
OEM Web sites. First, we proposed that OEMs provide short term access
for a set price. We proposed that OEMs would set up a short time frame
of approximately 24 hours whereby an aftermarket service provider would
be able to access that OEM's Web site, search for the piece of
information they need, and purchase, download and/or print it for a set
fee. We proposed that a reasonable fee for short term access can be as
little as $0, but should be no greater than $20.
We also proposed that OEMs provide mid term access for a set price.
Under this scenario, aftermarket service providers would be able to
access the OEM Web site for a 30 day time frame and purchase, download
and/or print information under this option for a set fee. EPA believes
that a reasonable fee for mid term access can be as little as $0, but
no greater than $300.
We proposed that OEMs provide long term access for a set price.
Under this scenario, aftermarket service providers would have access to
the OEM Web site for a 365 day time frame, including the ability to
purchase, download and/or print the information for a set fee. EPA
believes that a reasonable fee for long term access can be as little as
$0, but no greater than $2500.
Summary of Comments: The Alliance and AIAM, and several individual
OEMs commented that they understand the goal of this proposed provision
to meet the needs of a variety of Web site users. However, the Alliance
and AIAM further commented that the OEMs should be allowed some
flexibility in designing their Web sites. The Alliance and AIAM
proposed that additional language be added to the final rule that would
allow an OEM to request approval from the Administrator for an
alternative method by which the information can be accessed. The
Alliance and AIAM commented that this flexibility would allow for
innovation without jeopardizing the intent of the proposed tiered
approach.
The Alliance and AIAM also commented at the public hearing on the
cost caps proposed by EPA for each of the tiers. They commented that
the proposal goes well beyond specifying factors to be considered in
terms of pricing for Internet access and exceeds the authority of the
Agency under the Clean Air Act. The Alliance and AIAM provided
extensive legal discourse to support its assertion that ultimately
EPA's authority to require the disclosure of service information is
tertiary behind EPA's primary responsibility to set emissions
standards, and secondary responsibility to require OBD systems. The
Alliance and AIAM further commented that even if EPA has authority to
compel information disclosure, EPA's proposal to limit OEM compensation
for disclosed information would undermine the Clean Air Act. They
stated that if OEMs are unable to obtain reasonable, flexible
compensation for the information they provide, they will have less
incentive and diminished ability to provide the information to end
users in a timely, detailed, and user-friendly manner. The Alliance and
AIAM go on to comment that section 202(m)(5) does not mention prices or
price-setting authority for EPA. Finally, the Alliance and AIAM
commented that EPA has set its proposed caps with very little data and
analysis, and therefore, they are arbitrary and capricious, even if EPA
had the authority to establish price caps.
The Alliance and AIAM further commented that the proposal overlooks
the fact that federal intellectual property laws protect some of the
documents covered by the EPA proposal.
The Automotive Service Association (ASA) commented at the public
hearing that EPA's proposed price caps were too high. ASA further
commented that EPA must take into consideration the fact that
aftermarket shops still need to purchase non emissions-related
information as well. ASA proposed an alternate pricing structure. For
short term access, ASA proposed $1. For mid-term access, ASA proposed a
$30 maximum. For long term access, ASA proposed a $365 maximum. ASA
commented that their proposed prices were fair and reasonable and that
EPA's proposal places additional cost burden on the aftermarket that
must be limited

[[Page 38442]]

as much as possible. ASA expressed concern that if the price burden is
not adequately addressed, it could be used as a tool to diminish the
role of the aftermarket. The ASA submitted written comments reiterating
their proposal for price caps. ASA further commented that EPA's
proposed price caps do not take into consideration the additional costs
that will have to be accounted for by independent shops to shift to the
Internet to acquire service information. ASA asserts that many
aftermarket shops will have to invest in computer equipment, Internet
access, training, and possible the hiring of administrative staff.
Further, ASA commented that EPA must prohibit OEMs from providing
service information at a reduced cost based on participation in an OEMs
parts distribution program. ASA also commented that OEMs must bear the
responsibility of educating the aftermarket as to the availability and
structure of their Web sites.
The Automotive Parts Rebuilders Association (APRA) and the
Automotive Engine Rebuilders Association (AERA) commented at the public
hearing that price is a concern to rebuilders also. They commented that
they are particularly concerned with the way EPA lists the factors that
should be taken into consideration when determining if information is
available at a fair and reasonable price. APRA and AERA commented that
in the 1995 rule, EPA lists factors that the Administrator shall take
into consideration, whereas the proposed rule lists factors that the
Administrator may take into consideration. APRA and AERA commented that
this seemingly small change could have a significant impact on the
issue of price. This slight word change could lead to an interpretation
that EPA may allow, but does not require that the Administrator take
these factors when determining fair and reasonable price. APRA and AERA
further commented that the setting of price caps does not obviate the
need for a reasonableness determination and that the proposed rule may
be inviting an OEM to choose a price near the cap, even though the OEM
could not otherwise justify the price. Therefore, APRA and AERA believe
that EPA must be required, not merely allowed, to use the listed
factors when making fair and reasonable price determinations.
Jerry Truglia of the Westchester/Putnam Chapter of the Service
Technicians Society (STS) commented at the public hearing about their
concern regarding what the tiered approach proposed by EPA would
actually give aftermarket technicians access to on the OEM Web site.
For example, Mr. Truglia questioned if a technician purchased a 30 day
access to an OEM Web site, would that technician have access to all of
the OEM vehicles, or just one; would it cover all model years from 1996
on, or just one model year; would the subscription include all OEM
badge names or just one. Mr. Truglia also submitted written comments
proposing a different approach to aftermarket access for service
information. Mr. Truglia proposed that the most effective way to ensure
that all information is available to both dealers and aftermarket
technicians is to include a CD or manual with the purchase of every new
vehicle. In the alternate, Mr. Truglia proposed that new vehicles could
be installed with microchips that could take the place of the CD or
paper manual. Under either scenario, a technician could connect to the
Internet to ensure that they had the latest information and/or
reprogramming event. Ultimately, Mr. Truglia is concerned that OEM Web
sites will not have all of their vehicles listed under their badge,
that search engines will not be easy to navigate, will not have
reliable connections for 24 hour access, and that proposed fees are
above what repair facilities can afford.
The Automotive Aftermarket Industry Association (AAIA) and the
Automotive Warehouse Distributors Association (AWDA) commented at the
July 25, 2001 public hearing that the price caps proposed by EPA are
too high and, if utilized by every OEM, access to service information
on the Internet would not be affordable by most aftermarket shops. AAIA
and AWDA further commented that it is not clear why OEMs would need to
charge such high prices based on current costs for establishing and
operating a Web site and the fact that its use will be spread over
thousands of service facilities and franchised dealerships. AAIA and
AWDA commented that the price caps proposed by EPA should be lowered
significantly.
AAIA and AWDA also commented that EPA should retain the factors
listed in the 1995 regulations regardless of what is finalized with
regard to price caps. AAIA and AWDA further recommend that EPA modify
the current factors to be consistent with those proposed by the
California Air Resources Board (CARB) service information rule,
particularly because CARB includes the affordability of the information
to average service facilities as one of it's factors for determining
reasonable cost. AAIA and AWDA also reiterated that affordability of
service information is a critical issue for the aftermarket and unless
small and medium sized service facilities can afford to purchase the
required information and tools, the intent of the service information
provision of the Clean Air Act will not be carried out.
J&J Automotive submitted written comments that it is not clear what
the prices that OEMs will charge for access to information will
actually cover. Similar to Mr. Truglia's comments, J&J Automotive
commented that it must be made clear if access to information will be
for the OEMs entire car line or just one specific model.
The Wisconsin Department of Transportation commented that EPA's
proposal to require information and training at a reasonable cost
represents a fair compromise between those parties that would like
access to information for free and those OEMs who might attempt to
limit access through unreasonably high pricing. Wisconsin DOT further
commented that EPA should include aftermarket technicians and repair
shops in discussion pertaining to the establishment of specific price
caps in order to determine if ``reasonable'' is truly reasonable.
The Alliance of Automotive Service Providers (AASP) commented that
the price cap for long term access to OEM Web sites will be cost
prohibitive for the majority of aftermarket shops. For short term
access, AASP commented that EPA should finalize a 15 day period rather
than the 24 hour period originally proposed and that the fee for this
short term access should be no more than $20. The AASP further
commented that they reserve the right to pass each OEM's information
access charges onto their customers. AASP will also ask their members
to consider assuming part of these costs in the business plans and to
bill customers for the remaining portion of the access fees where
feasible.
Trevor Samoil of Trevor and Joanne Automotive in Vancouver, Canada
commented that accurate and reasonably priced information is the
hardest tool to obtain and supports EPA's efforts to establish
reasonable cost parameters for information access.
Michael Haven of MPH Automotive Services commented that, when
determining reasonable price, EPA should consider the fact that the
information being sought by aftermarket service providers has already
been created for their dealer networks. OEMs are not being asked to
create new information to meet the information needs of aftermarket
shops. Mr. Haven further commented that EPA should ensure that the OEMs
not be allowed to create profit centers when making information
available in the aftermarket. Mr. Haven sites Volvo as an example of an
OEM who is charging too much for

[[Page 38443]]

Web based access to information. As of this writing, Volvo is charging
about $1,700 per model per year for access to their site, which covers
both emissions and non-emissions related information. Mr. Haven
suggests that Hyundai, who currently allows access to their Web based
service information free of charge is the model that all OEMs should be
required to adhere to.
Vincent J. Porcaro commented that the price caps proposed by EPA
are excessive. Mr. Porcaro further commented that it would cost an
excess of $10,000 per year to have access to Ford, GM, Chrysler and one
import for one year. Mr. Porcaro commented that more reasonable price
caps would be $15 for 24 hour access, $45 for 30 day access and $250
for yearly access. Mr. Porcaro commented that his proposed pricing
structure would be more consistent with current sources of information
utilized by the aftermarket. Mr. Porcaro also commented that phrase
``reasonable cost'' must be revisited because the phrase has many
interpretations. What is reasonable to one may not be reasonable to
another and EPA must allow the aftermarket repair industry reasonable
access to the needed information and tools. Mr. Porcaro commented that
the ability to have the aftermarket scan tool manufacturers receive
generic and enhanced information for a reasonable fee must be part of
the federal certification of all vehicles for sale in the public market
otherwise the information may not be released in a timely manner.
Further, Mr. Porcaro states that the phrase ``reasonable cost'' must be
revisited as this phrase has many interpretations. Further, EPA must
allow the aftermarket repair industry reasonable access to the needed
information and tools.
The National Automobile Dealers Association (NADA) submitted
written comments that EPA has no justification, statutory or otherwise,
to regulate ythe cost of OBD information and that any attempt to do so
exceeds EPA's authority. Further, NADA commented that EPA must take
into consideration the cost to OEM dealerships for the same or similar
information when determining if OBD service information is being made
available at a fair and reasonable price to the aftermarket and that
this factor should be included in the final regulations. NADA also
included in their written comments responses to a survey they conducted
at dealerships to provide EPA with an idea of what dealers are paying
for tools, training, and information. Lastly, NADA commented that it
takes a significant investment in tools, training, and information in
order to service ``high tech'' vehicles and that any vehicle
maintenance facility unwilling or unable to make those investments
should be dissuaded, if not prohibited, from working on OBD repairs.
ETI commented that the Alliance and AIAM submitted nearly 4 pages
of unsupportive comment on the issue of the cost of service
information. ETI contends that this demonstrates the OEMs lack of
interest in trying to provide the most information at the least cost.
ETI further commented that OEMs should be concentrating more on whether
their vehicles are being adequately serviced and about whether the
customer is having a positive service experience. To this end, ETI
commented that they do not understand why OEMs don't try to use every
means possible to make sure that everyone has the required information
they need.
The Aftermarket Consortium commented that, while section 202 (m)(5)
of the Clean Air Act does not specifically include a reference to cost,
it was evident that Congress clearly understood the importance of cost
as it relates to the availability of information. They also commented
that EPA also understood the importance of cost when finalizing the
1995 rule by connecting the availability of information to the ability
to afford information. The industry associations also proposed that EPA
adopt the criteria that the California Air Resources Board (CARB) is
considering to help define the reasonable cost of service information.
The industry associations also supported the comments made by AERA and
APRA that the final rule should say that EPA ``will'' consider certain
criteria when making reasonable cost determinations as to the language
used in the proposed rule that EPA ``may'' consider certain criteria
when making such determinations.
The industry associations also commented that they support EPA's
tiered approach for aftermarket access to the OEM Web sites. However,
they do express concern that the price caps proposed by EPA will be
beyond the means of most independent service facilities. Because most
shops specialize in numerous makes and models, EPA's pricing structure
could mean it would cost a shop tens of thousands of dollars in annual
Web access fees, and these costs don't even include tools or other
information updates, or non-emissions related information. They also
expressed concerns that the caps may encourage all OEMs to charge the
maximum amount allowed under by the caps. Finally, they commented that
EPA should lower the proposed cap limits to take into consideration the
factors outlined in their comments on this issue.
Mr. Bob Clark of Clark Automotive Systems submitted written
comments suggesting that all information needed to service a vehicle
should become the property of the owner of the vehicle when it is
purchased. Mr. Clark commented that the meaning of ``available'' and
``reasonably priced'' service information must maintain the consumer's
right to choose in a competitive market place. Mr. Clark further
commented that if the OEMs are allowed to restrain trade in the
automotive repair industry by claiming intellectual property rights to
their information, the result will be a reduction in a consumer's
choice in where their vehicle is diagnosed and serviced.
EPA Decision: On the general issue of cost, EPA has said since our
initial regulation of service information availability that cost is an
integral factor influencing the availability of service information.
The legislative history of this provision supports the view that
Congress was concerned regarding the cost of service information and
did not want service information to become a profit center for OEMs.
The Clean Air Act requires that service information must be made
available to any person engaged in the repairing or servicing of motor
vehicles. This includes persons who service motor vehicles at large
repair facilities, as well as service personnel at the smallest gas
stations; it includes facilities that specialize in servicing a single
vehicle brand, as well as shops that work on multiple vehicle brands.
The legislative history explains this intent:

The purpose of the amendment is to make sure that * * * the
manuals, the techniques, are available to, in effect the local gas
stations so that they will be more convenient for the automobile
owner, that the automobile owner will not have to trek off to some
dealer 30 miles away in order to be able to correct problems that
have arisen with his automobile. * * * We want [manufacturers] to
provide the information which will allow competition in the after
market and allow small business operators to get in the repair
business. 36 Cong. Rec. 3272 (1990).

We believe the Act's mandate will have been met only if the
emission control service information is available to persons in all of
these situations.
While the Clean Air Act does not specify the price that OEMs should
be allowed to charge for service information, it does appear that
Congress intended that the price of obtaining this information should
not be so high that it significantly affects

[[Page 38444]]

competition between OEM franchised dealers and independent service
stations. The legislative history states:

There again, when we require them to promptly provide
information needed, we recognize that we do not want to require
somebody to provide a lot of expensive manuals absolutely for free,
but we do not want the kind of charges that make this a profit
center. 36 Cong. Rec. 3272 (1990).

Since independent service stations may repair vehicles manufactured
by many different companies, they may be competitively disadvantaged if
the cost of each manufacturer's service information were large. There
can be little question that information provided only at exorbitant
prices cannot be said to be ``available'' to the purchasers.
We continue to be concerned that OEMs will establish pricing
structures that will essentially render their information unavailable
to the aftermarket. In the 1995 rule, we established factors that
should be taken into consideration when determining if the prices being
charged were fair and reasonable. We received comments from the
Alliance, AIAM, AAIA, AWDA, AERA, and APRA and others suggesting that
EPA include the factors we established for the 1995 rulemaking when
making general determinations about fair and reasonable cost.
Additionally, we received comments suggesting that EPA should also
include the list established by CARB in their September 2002 final rule
which includes factors that are directed at determining fair and
reasonable cost. There is extensive overlap between the EPA list and
the factors finalized by CARB and we agree that items on both of these
lists should be considered when determining fair and reasonable cost
and will include them in this final rule.
EPA will therefore include certain of the factors from CARB's list
to supplement EPA's preexisting list. In particular, in addition to the
factors that EPA may already take into account under EPA's preexisting
list, we will include: The cost to the OEM's franchised dealerships for
similar information obtained from OEMs; the ability of the aftermarket
technicians and shops to afford the information; and the extent to
which the information is used, including the number of users, and
frequency, duration and volume of use.
Regarding the comments that the proposal notes the factors EPA
``may'' consider, rather than ``shall'' consider, EPA believes that
given the differing types of information required by the regulation and
the numerous factors listed, it is appropriate that there be
flexibility in determining what factors are appropriate in each given
situation.
On the issue of price caps proposed for access to OEM Web sites,
EPA received a significant amount of comments, most of which were
against the proposal. Some OEMs questioned our authority to set price
caps and several members of the aftermarket claimed that the caps were
too high. While we believe that EPA has the authority to set price caps
and that the caps proposed by EPA would provide us with a more
objective measure of OEM compliance with our reasonable cost
expectations, we will not finalize any price caps with this regulation.
However, EPA believes it is necessary to thoroughly evaluate the
pricing structure of each OEM Web site to ensure that information is
being made available at a fair and reasonable price, and that OEMs are
not pricing Web access in such a way that precludes its availability to
a significant portion of the aftermarket. Therefore, in order to
evaluate an OEM's pricing structure, we are establishing a process
whereby each OEM must obtain EPA approval of its pricing structure.
OEMs must submit a request to EPA that sets forth a detailed
description of the pricing structure as well as amounts for access to
their Web sites. In addition, OEMs must provide support for the
position that the pricing structure and amounts are fair and reasonable
by addressing the criteria listed in sections 86.094-38, paragraph
(g)(7)(i) and 86.1808-03, paragraph (f)(7)(i) of the regulatory
language for this final rule. Some of these criteria are further
clarified below.
Regarding the net cost to the OEM franchised dealerships for
similar information obtained from OEMs, less any discounts, rebates, or
other incentive programs, EPA expects that OEMs will supply detailed
information on the true costs that are incurred by their franchised
dealerships to access information.
Regarding the ability of aftermarket technicians or shops to afford
the information, EPA will consider the ability of the smallest service
facilities as well as larger repair facilities. This includes
facilities that either specialize in single or multiple vehicle brands,
or that work on all brands.
Regarding the extent to which the information is used, this
includes the number of users, and frequency, duration, and volume of
use. EPA expects that as larger numbers of the aftermarket begin
accessing OEM Web sites, the pricing and amounts for accessing the
sites per customer should decrease.
A complete description of the approval process can be found in
sections 86.094-38, paragraph (g)(7)(ii) and 86.1808-03, paragraph
(f)(7)(ii) of the regulatory language for this final rule. Subsequent
to the approval of the OEM Web site pricing structure and amounts, OEMs
are required to notify the Administrator of any increase in price of
twenty percent or more (accounting for inflation), including a
justification based on the criteria for reasonable cost as established
by this regulation.
Regarding the comments on the proposed tiering structure, EPA
believes that it is necessary for the aftermarket to be able to access
OEM information in a variety of ways given the varying nature of how
the aftermarket services vehicles. However, we also agree with OEMs
that it is reasonable for them to have some flexibility in how they
design these tiers in order to ensure end-user satisfaction and to
provide the OEMs with the ability to minimize the administrative burden
in implementing a tiered approach. Therefore, EPA will finalize the
following provisions for the tiered access of OEM Web sites.
OEMs shall allow short-term, mid-term, and long-term access to
their Web sites. Short term access shall be for a period of 24-72
hours. Mid-term access shall be for a period of 30 days. Long-term
access shall be for a period of 365 days. Access includes the ability
to view and print the information. Based on comments received about
potential copyright violations, EPA will not require OEMs to make their
information available for downloading on to an end-user's computer
system.
In addition, for each of the tiers, OEMs are required to make their
entire site accessible for the respective period of time and price. In
other words, an OEM may not limit any or all of the tiers to just one
make or one model.
Regarding the Alliance and AIAM's legal discussion, EPA disagrees
with the assertion that the Agency's responsibility for ensuring
service information is provided to service providers is subsidiary to
its other responsibilities under the Act. Section 202(m)(5) contains no
language indicating that EPA's responsibilities and powers under that
part of the Act are somehow limited by its other general
responsibilities under the Act. Regarding the effect of these
regulations or OEMs' incentives to provide timely, detailed user-
friendly service information, Congress did not mandate that EPA create
an incentive program to motivate OEMs, but instead Congress mandated
that EPA promulgate regulations that bind their actions.

[[Page 38445]]

OEMs are required to provide the information in this regulation in a
timely user-friendly manner. Though EPA understands that OEMs will be
more motivated to do this if they receive more money, the requirements
in these regulations are not dependent on OEMs' motivation. In order to
accomplish Congress's intent to ensure service providers receive the
information needed to make emission-related diagnosis, service and
repair, the desire of OEMs to be compensated for providing such
information must be tempered by the need for service and repair
personnel to be able to afford such information. The regulations
therefore allow OEMs to charge for this information, but the charges
must be fair and reasonable.
Regarding their claim that these regulations may interfere with
copyright protections, the cases cited deal only with a state law and,
in an irrelevant context, an executive order. They do not deal with a
federal statute that on its face requires the disclosure of information
that may be copyrighted. It is clear from the statutory language and
the legislative history that these materials (e.g. service manuals),
which are generally available to at least some members of the public,
are among the types of materials that Congress intended to be provided
by this legislation. See Statements of Sens. Chafee and Gore , 136
Cong. Rec. 5391-92 (S3272) (March 27, 1990). It is worth noting that
Congress cited specifically to the ``trade secret protections'' of
section 208(c) but did not refer to the very different protections in
copyright law.
Regarding the Alliance and AIAM comments on EPA's ability to set
prices, though EPA does not agree with these comments, as discussed
above, EPA is not finalizing its proposal to set specific prices for
service information, though EPA retains its preexisting authority to
ensure that costs be reasonable.
EPA does not agree with the comments submitted by Mr. Haven that
the aftermarket should have free access to OEM information, though EPA
does agree that some current prices appear exorbitant. The legislative
history on the issue is quite clear that Congress understood that there
were some costs incurred by the OEMs for making information available
that were recoverable, but that this needed to be balanced with any
attempts by the OEMs to either price information in such a way that it
was not available or to turn aftermarket access to information into a
profit center.
In response to Mr. Truglia and Mr. Clark's comments that the most
effective way to ensure that all information is available to both
dealers and aftermarket technicians is to include a CD or manual with
the purchase of every new vehicle, EPA believes that, while there is
some merit to this proposal, it would not necessarily solve aftermarket
concerns to the availability and affordability of information. First,
OEM service information is subject to amendment and the addition of new
information (e.g. technical service bulletins) which would mean that
any information included with the purchase of a new vehicle would be
out of date or incomplete which will still put the aftermarket in a
position of somehow working with an OEM to determine if they have the
latest information.
Additionally, a vehicle is likely to change ownership several times
during its useful life and there is no guarantee that the information
that came with the vehicle will remain with the vehicle. Again, the
aftermarket would be in a position of having to obtain this information
directly from the OEM
In response to Mr. Truglia's proposal that new vehicles could be
installed with microchips that could take the place of the CD or paper
manual, while there may be some advantage to this approach in the
future, EPA is not in a position to finalize such a provision without
further research and debate on the feasibility of such an approach and
its costs and benefits to the service and repair of vehicles.

E. Availability of Enhanced Information for Scan Tools

Summary of Proposal: We proposed to require an increased level of
enhanced information to be made available to equipment and tool
companies to develop more functional aftermarket diagnostic scan tools.
We proposed that within 30 days of publication of the final rule
OEMs make available to companies who develop aftermarket scan tools all
generic and enhanced service information for MY 1996 and later needed
to manufacture diagnostic tools that can be used by aftermarket
technicians to diagnose, service and repair emission-related components
and systems. Enhanced service and repair information is defined as
information which is specific for an original equipment OEM's brand of
tools and equipment. Generic service and repair information is defined
as information which is not specific for an original equipment OEM's
brand of tools and equipment.
In addition, we proposed that OEMs provide information that
describes which interfaces or combination of interfaces, from each of
the categories in the sections above are used on each vehicle. This may
be organized by application, system or a combination of both provided
the information identifies which interfaces are used on each vehicle's
system/model/model year. OEMs may use the New Product Information
Guideline (NPIG) created by the Equipment and Tool Institute (ETI) as a
guide to help meet this requirement or provide a substitute matrix
approved by the Administrator.
We proposed that enhanced information includes, but is not limited
to:
(a) All serial data stream information
(b) Bi-directional controls (e.g., operation of actuators,
initiation of self-checks, etc.) Including any safety precautions
necessary prior to invoking the controls.
(c) Descriptions of non-proprietary logic and performance limits
and specifications used in the OEM specific tools to perform diagnostic
routines or sub-routines (E.g., injector or cylinder balance tests,
etc.)
(d) The physical hardware requirements for reprogramming events or
tools (e.g. system voltage requirements, cable terminals/pins,
connections such as RS232 or USB, wires, etc.);
(e) ECU data communication (e.g. serial data protocols,
transmission speed or baud rate, bit timing requirements, etc.);
(f) Information on the application physical interface (API) or
layers (i.e., processing algorithms or software design descriptions for
procedures such as connection, initialization, performing and verifying
programming/download, and termination);
(g) vehicle application information or any other related service
information such as special pins and voltages for reprogramming events
or additional vehicle connectors that require enablement and
specifications for the enablement.
Summary of Comments: STS commented that they agree that EPA's
proposed description of enhanced diagnostic information is sufficient.
The Alliance and AIAM commented that EPA proposed that data stream
information also be made available to equipment and tool companies. In
particular, the Alliance and AIAM commented that EPA's definition of
data stream information includes the words ``information * * * for use
by other modules * * * to conduct normal vehicle operation or for use
by diagnostic tools.'' The Alliance and AIAM do not take issue with
making available data stream information required for diagnostic
purposes. However, they do take issue with

[[Page 38446]]

making available data stream information related to normal vehicle
operation. The Alliance and AIAM further commented that they do make
this information available when it is directly related to diagnostics,
but there are instances where scaling of this information may be
different and the data may be combined differently with other data
values. The Alliance and AIAM request that EPA clarify that only data
stream information required for diagnostic purposes, and not the
redundant data stream information used for normal operation, be made
available to equipment and tool companies.
BMW commented that they interpret section (g)(12) as requiring OEMs
to provide generic scan tool companies information needed to enable
scan tools. BMW commented that it was in agreement in principle with
these sections but needed clarification. In particular, BMW comments
that sections (g)(11) and (g)(12) of the proposed regulatory language
appear to be contradictory. In section (g)(11) of the proposed
regulatory language, EPA proposed that OEMs make available
reprogramming procedures, including ``information on application
physical interface (API) or layers (i.e., processing algorithms or
software design descriptions for procedures such as connection,
initialization, performing and verifying programming/download, and
termination)''. In addition section g(11)(vii)(A), (B), and (D) specify
additional reprogramming-related information. However, section (12)(ii)
seems to intend that OEMs provide information for generic scan tools to
work with l996 and later model year vehicles, and proposes that the
same list of information be released for both reprogramming and generic
scan tools. BMW commented that scan tool companies only need data
stream information to enable capture and readout of generic and
enhanced fault codes and reprogramming information is not necessary for
developing generic diagnostic scan tools.
BMW is opposed to the release of any information to equipment and
tool companies that would allow them to incorporate reprogramming
capabilities because BMW considers this information to be proprietary
information and BMW sees an extensive need for verification of these
tools. In addition, BMW is able to implement the SAE J2534
specification for its 1999--2003 model year vehicles and can comply
with the required release of information to the equipment and tool
companies the information described above for the extra cable to allow
for reprogramming of their vehicles. BMW commented that they do not
have the resources to support tool and equipment companies who face
challenges in developing these reprogramming tools.
BMW also made recommendations as to how section (g)(11) and (g)(12)
should be rewritten to more clearly address what BMW believes EPA
intends to accomplish.
EPA Decision: In response to BMW's comments, several clarifying
points should be made. In paragraphs g(11) and g(12) of the proposed
regulatory language, EPA proposed two distinct provisions to deal with
two distinct issues. In paragraph g(11), we proposed that OEMs make
available certain information to equipment and scan tool companies to
allow for them to incorporate the reprogramming capability into
aftermarket scan tools prior to the implementation of the pass-through
reprogramming requirement (i.e. SAE J2534) in order to cover 1996-2002
model year vehicles. In paragraph g(12), we proposed that OEMs make an
increased level of enhanced diagnostic information available to
aftermarket to companies. In the 1995 regulations,EPA finalized a
rather generic provision that required OEMs to make available enhanced
diagnostic information to the equipment and tool companies for
incorporation into aftermarket tools. Other than specifically noting
that emissions-related data stream information be included, we left the
interpretation up to the OEM as to what was considered enhanced
diagnostic information. We found that the few OEMs who chose the option
of releasing information to equipment and tool companies (rather than
make their OEM specific tool for sale which was the other option
available to OEMs and the one that most chose to meet the scan tool
requirement) had different interpretations of what was considered
``enhanced diagnostic information.'' As a result, there was a fair
amount of difference among the OEMs in the information made available
to equipment and tool companies. In addition to the variety of
interpretations of ``enhanced diagnostic information'', our experience
in implementing the 1995 rule highlighted that there are very specific
pieces of information needed by equipment and tool companies to ensure
that aftermarket tools perform to their maximum capacity. As a result,
equipment and tool companies were not able to develop aftermarket tools
that adequately performed the enhanced diagnostic functions found in
OEM tools. Therefore, we proposed more specific provisions for two
important reasons. First, we believe it is necessary to increase the
consistency of information that is released to aftermarket tool
companies across OEMs to address some of the gaps we believe currently
exist. Second, we believe a higher level of information is needed by
aftermarket scan tools to increase the functionality of the aftermarket
scan tools that are heavily relied upon by independent technicians. EPA
is not finalizing a provision that will require OEMs to release the
information that was proposed in the NPRM unless they cannot use SAE
J2534 methods on 1996 to 2003 model year vehicles. Therefore, we
believe BMW's concerns about section g(11) of the proposed regulatory
language have been addressed.
With regard to the release of information to equipment and tool
companies, we agree with BMW that there does appear to be some
confusion in the lists of information that EPA proposed for both the
reprogramming and generic and enhanced scan tool information sections
in the regulatory language. In fact, the lists as proposed in these
sections of the regulatory language contain some factual and
typographical errors which are corrected here and in the final
regulatory language. In sections (g)(12)(ii) and (f)(12)(ii) of the
proposed regulatory language (``Reprogramming Information''), we
included language that would require OEMs to make available to
equipment and tool companies the necessary calibrations via CD-ROM,
diskette, or the Internet (item E). This particular piece of
information is one that would be purchased by an aftermarket service
provider to complete a reprogramming event and therefore belongs in the
``Reprogramming Information'' section of the final regulatory language,
which can be found in sections (g)(12) and (f)(12) of the regulatory
language. Ultimately, we believe that the information we proposed to be
made available is necessary for equipment and tool manufacturers to
develop aftermarket scan tools with the same sophisticated
functionality as is provided to dealerships using an OEM scan tool. In
addition, we believe that the list of information we are finalizing
today is not proprietary in nature and therefore should not concern
OEMs. Therefore, we will finalize a provision that requires the OEMs to
make available to equipment and tool companies the following
information.
(A) The physical hardware requirements for data communication (e.g.
system voltage requirements, cable terminals/pins, connections such as
RS232 or USB, wires, etc.)
(B) ECU data communication (e.g. serial data protocols,
transmission speed

[[Page 38447]]

or baud rate, bit timing requirements, etc),
(C) Information on the application physical interface (API) or
layers. (i.e., processing algorithms or software design descriptions
for procedures such as connection, initialization, and termination)
(D) Vehicle application information or any other related service
information such as special pins and voltages or additional vehicle
connectors that require enablement and specifications for the
enablement.

VI. What Are the Administrative Requirements for This Final Rule?

A. EO 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735 October 4, 1993), EPA must
determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of this Executive Order. The Order defines a
``significant regulatory action'' as one that is likely to result in a
rule that may:

(1) Have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, Local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs, or the rights and obligations
of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.

EPA has determined that this rule is not a ``significant regulatory
action'' under the terms of Executive Order 12866 and is therefore not
subject to OMB review.

B. Paperwork Reduction Act

The information collection requirements in this rule will be
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
information collection requirements are not enforceable until OMB
approves them.
An Information Collection Request (ICR) document has been prepared
by EPA (ICR No.0783.45). EPA has established a public docket for this
ICR under Docket ID A-2000-49, which is available for viewing at the
EPA Air Docket (see the Addresses section for more information).
Respondent burden has been estimated by consulting with private
companies who perform Web site performance measurement for a wide
variety of clients. EPA estimates that each manufacturer can purchase
software or services from private companies that can perform Web site
performance activities for approximately $1000. EPA estimates that each
manufacturer will spend approximately $250 per month to gather and
maintain the information proposed to be collected for a total of $3000
per year per manufacturer. EPA estimates that the 45 potential
respondents will incur approximately 100 burden hours per year.
Under Title II of the Clean Air Act, (42 U.S.C. 7521 et seq.), EPA
is charged with requiring the manufacturers of vehicles and engines to
make available emissions-related repair information to aftermarket
service providers. To improve timely access to this information, EPA is
requiring that vehicle and engine manufacturers provide access to the
required emissions-related information in full-text via the World Wide
Web. To ensure compliance with these statutes, EPA is requiring that
manufacturers measure the performance of their Web sites as outlined in
Section II.B(3)(b) of this preamble and report this information to EPA
in electronic format on an annual basis. EPA will review the
information to determine that the manufacturers subject to the proposed
Web site requirements have developed Web sites with sufficient
infrastructure to support potentially thousands of aftermarket service
providers at any given time.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601-612, generally
requires federal agencies to conduct a regulatory flexibility analysis
of any rule subject to notice and comment rulemaking requirements
unless the agency certifies that the rule will not have a significant
economic impact on a substantial number of small entities. Small
entities include businesses, small not-for-profit enterprises, and
small governmental jurisdictions. This final rule would not have a
significant impact on a substantial number of small entities because
the regulated entities impacted by this rulemaking would not be
considered small entities.
Therefore, I certify that this action will not have a significant
economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory action on state, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures by state, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year. Before promulgation an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before we establish any regulatory requirement that may
significantly or uniquely affect small governments, including tribal
governments, we must develop, under section 203 of the UMRA, a small
government agency plan. The plan must provide for notifying potentially
affected small governments, enabling officials of affected small
governments to have

[[Page 38448]]

meaningful and timely input in the development of our regulatory
proposals with significant federal intergovernmental mandates. The plan
must also provide for informing, educating, and advising small
governments on compliance with the regulatory requirements.
EPA believes this final rule contains no federal mandates for
state, local, or tribal governments. Nor does this rule have federal
mandates that may result in the expenditures of $100 million or more in
any year by the private sector as defined by the provisions of Title II
of the UMRA. Nothing in the final rule would significantly or uniquely
affect small governments.

E. Executive Order 13132 (Federalism)

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule will impose no direct compliance costs on states.
Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
The requirements proposed by this action impact private sector
businesses, particularly the automotive and engine manufacturing
industries. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Children's Health Protection

Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be economically significant as
defined under E.O. 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
EPA believes this final rule is not subject to the Executive Order
because it is not an economically significant regulatory action as
defined by E.O. 12866.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Pub. L. 104-113, 12(d) (15 U.S.C. 272), directs
the EPA to use voluntary consensus standards (VCS) in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, business practices, etc.) that are developed or adopted by
voluntary consensus standard bodies. The NTTAA requires EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This final rule incorporates by reference technical standards
adopted by the Society of Automotive Engineers (SAE). We believe these
standards are well accepted by industry.

J. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to Congress and the Comptroller General of the United
States. We will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. A major rule cannot take effect until
60 days after it is published in the Federal Register. This action is
not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be
effective March 6, 2003.

List of Subjects in 40 CFR Part 86

Administrative practice and procedure, Air pollution control,
Gasoline, Incorporation by reference, Motor vehicles, Motor vehicle
pollution, Reporting and recordkeeping requirements.

Dated: May 30, 2003.
Christine Todd Whitman,
Administrator.

0
For the reasons stated in the preamble, title 40, chapter I of the Code
of Federal Regulations is amended as follows:

PART 86--CONTROL OF EMISSIONS FROM NEW AND IN-USE HIGHWAY VEHICLES
AND ENGINES

0
1. The authority citation for part 86 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

0
2. Section 86.1(b)(2) table is amended by adding the following entries
to the end of the table.

Sec. 86.1 Reference materials.

* * * * *
(b) * * *
(2) * * *

------------------------------------------------------------------------
Document No. and name 40 CFR part 86 reference
------------------------------------------------------------------------

* * * * *
SAE Recommended Practice J1930 (Revised, 86.096-38; 86.004-38; 86.007-
May, 1998), Electrical/ Electronic 38; 86.1808-01; 86.1808-07.
Systems Diagnostic Terms, Definitions,
Abbreviations, and Acronyms.

[[Page 38449]]

SAE Recommended Practice J1979 (Revised, 86.096-38; 86.004-38; 86.007-
September, 1997), E/E Diagnostic Test 38; 86.1808-01; 86.1808-07.
Modes.
SAE Recommended Practice J2284-3 (May, 86.096-38; 86.004-38; 86.007-
2001), High Speed CAN (HSC) for Vehicle 38; 86.1808-01; 86.1808-07.
Applications at 500 KBPS.
SAE Recommended Practice J2534 (February, 86.096-38; 86.004-38; 86.007-
2002), Recommended Practice for Pass- 38; 86.1808-01; 86.1808-07.
Thru Vehicle Programming.
------------------------------------------------------------------------

* * * * *

0
3. Section 86.094-38 is amended by adding paragraph (g)(21) to read as
follows:

Sec. 86.094-38 Maintenance instructions.

* * * * *
(g) * * *
(21) Beginning December 24, 2003, rather than meeting the
requirements of paragraphs (g)(5) through (g)(9) of this section, a
manufacturer must upload the required information in full text on its
manufacturer-specific Web site as required in Sec. 86.096-38 (g)(3),
except that for models not covered by Sec. 86.096-38 but covered by
Sec. 86.094-38, a manufacturer may upload an index of the required
information on its Web site consistent with paragraphs (g)(5), (g)(6),
and (g)(9) of this section. Manufacturers who upload an index must
allow parties identified in paragraph (g)(1) of this section to obtain
information listed in the index either directly from the Web site, or
from an alternate source whose telephone number is listed on the
manufacturer Web site, or from a Web site hyperlinked to the
manufacturer Web site. Manufacturers must also provide the price of
each item listed, as well as the price of items ordered on a
subscription basis. To the extent that any additional information is
added or changed for these model years, manufacturers shall update the
index as appropriate. Manufacturers will be responsible for ensuring
that all requested information, whether requested directly from the
manufacturer or the manufacturer's information distributors shall be
distributed within one regular business day of receiving the order.
Items that are less than 20 pages (e.g. technical service bulletins)
shall be faxed, if requested, to the requestor and manufacturers are
required to deliver the information overnight if requested and paid for
by the ordering party.

0
4-6. Section 86.096-38 is added to read as follows:

Sec. 86.096-38 Maintenance instructions.

This section includes text that specifies requirements that differ
from those specified in Sec. 86.087-38. Where a paragraph in Sec.
86.087-38 is identical and applicable to Sec. 86.096-38, this may be
indicated by specifying the corresponding paragraph and the statement
``[Reserved]. For guidance see Sec. 86.087-38.''
(a) through (f) [Reserved]. For guidance see Sec. 86.087-38.
(g) Emission control diagnostic service information:
(1) Manufacturers are subject to the provisions of this paragraph
(g) beginning in the 1996 model year for manufacturers of light-duty
vehicles and light-duty trucks, and beginning in the 2005 model year
for manufacturers of heavy-duty vehicles and heavy-duty engines
weighing 14,000 pounds gross vehicle weight (GVW) and less that are
subject to the OBD requirements of this part.
(2) General requirements. (i) Manufacturers shall furnish or cause
to be furnished to any person engaged in the repairing or servicing of
motor vehicles or motor vehicle engines, or the Administrator upon
request, any and all information needed to make use of the on-board
diagnostic system and such other information, including instructions
for making emission-related diagnoses and repairs, including but not
limited to service manuals, technical service bulletins, recall service
information, bi-directional control information, and training
information, unless such information is protected by section 208(c) of
the Act as a trade secret. No such information may be withheld under
section 208(c) of the Act if that information is provided (directly or
indirectly) by the manufacturer to franchised dealers or other persons
engaged in the repair, diagnosing, or servicing of motor vehicles or
motor vehicle engines.
(ii) Definitions. The following definitions apply for this
paragraph (g):
(A) Aftermarket service provider means any individual or business
engaged in the diagnosis, service, and repair of a motor vehicle or
engine, who is not directly affiliated with a manufacturer or
manufacturer-franchised dealership.
(B) Bi-directional control means the capability of a diagnostic
tool to send messages on the data bus that temporarily overrides the
module's control over a sensor or actuator and gives control to the
diagnostic tool operator. Bi-directional controls do not create
permanent changes to engine or component calibrations.
(C) Data stream information means information (i.e., messages and
parameters) originated within the vehicle by a module or intelligent
sensors (i.e., a sensor that contains and is controlled by its own
module) and transmitted between a network of modules and/or intelligent
sensors connected in parallel with either one or more communication
wires. The information is broadcast over the communication wires for
use by the OBD system to gather information on emissions-related
components or systems and from other vehicle modules that may impact
emissions, including but not limited to systems such as chassis or
transmission. For the purposes of this section, data stream information
does not include engine calibration-related information, or any data
stream information from systems or modules that do not impact
emissions.
(D) Emissions-related information means any information related to
the diagnosis, service, and repair of emissions-related components.
Emissions-related information includes, but is not limited to,
information regarding any system, component or part of a vehicle that
controls emissions and any system, component and/or part associated
with the powertrain system, including, but not limited to:
(1) The engine, the fuel system and ignition system,
(2) Information for any system, component or part that is likely to
impact emissions, such as transmission systems, and any other
information specified by the Administrator to be relevant to the
diagnosis and repair of an emissions-related problem; and
(3) Any other information specified by the Administrator to be
relevant for the diagnosis and repair of an emissions-related failure
found through the inspection and maintenance program after such finding
has been communicated to the affected manufacturer(s).
(E) Emissions-related training information means any information-
related training or instruction for the purpose of the diagnosis,
service, and repair of emissions-related components.
(F) Enhanced service and repair information means information which
is specific for an original equipment manufacturer's brand of tools and
equipment. This includes computer or anti-theft system initialization
information necessary for the

[[Page 38450]]

completion of any emissions-related repair on motor vehicles that
employ integral vehicle security systems.
(G) Equipment and tool company means a registered automotive
equipment or software company either public or private that is engaged
in, or plans to engage in, the manufacture of automotive scan tool
reprogramming equipment or software.
(H) Generic service and repair information means information which
is not specific for an original equipment manufacturer's brand of tools
and equipment.
(I) Indirect information means any information that is not
specifically contained in the service literature, but is contained in
items such as tools or equipment provided to franchised dealers (or
others). This includes computer or anti-theft system initialization
information necessary for the completion of any emissions-related
repair on motor vehicles that employ integral vehicle security systems.
(J) Intermediary means any individual or entity, other than an
original equipment manufacturer, which provides service or equipment to
aftermarket service providers.
(K) Manufacturer-franchised dealership means any service provider
with which a manufacturer has a direct business relationship.
(L) Third-party information provider means any individual or
entity, other than an original equipment manufacturer, who consolidates
manufacturer service information and makes this information available
to aftermarket service providers.
(M) Third-party training provider means any individual or entity,
other than an original equipment manufacturer who develops and/or
delivers instructional and educational material for automotive training
courses.
(3) Information dissemination. By December 24, 2003, each
manufacturer shall provide or cause to be provided to the persons
specified in paragraph (g)(2)(i) of this section and to any other
interested parties a manufacturer-specific World Wide Web site
containing the information specified in paragraph (g)(2)(i) of this
section for 1996 and later model year vehicles which have been offered
for sale; this requirement does not apply to indirect information,
including the information specified in paragraphs (g)(12) through
(g)(16) of this section. Upon request and approval of the
Administrator, manufacturers who can demonstrate significant hardship
in complying with this provision within four months after the effective
date may request an additional six months lead time to meet this
requirement. Each manufacturer Web site shall:
(i) Provide access in full-text to all of the information specified
in paragraph (g)(5) of this section.
(ii) Be updated at the same time as manufacturer-franchised
dealership World Wide Web sites;
(iii) Provide users with a description of the minimum computer
hardware and software needed by the user to access that manufacturer's
information (e.g., computer processor speed and operating system
software). This description shall appear when users first log-on to the
home page of the manufacturer Web site.
(iv) Provide Short-Term (24 to 72 hours), Mid-Term (30 day period),
and Long-Term (365 day period) Web site subscription options to any
person specified in paragraph (g)(2)(i) of this section whereby the
user will be able to access the site, search for the information, and
purchase, view and print the information at a fair and reasonable cost
as specified in paragraph (g)(7) of this section for each of the
subscription options. In addition, for each of the subscription
options, manufacturers are required to make their entire site
accessible for the respective period of time and price. In other words,
a manufacturer may not limit any or all of the subscription options to
just one make or one model.
(v) Allow the user to search the manufacturer Web site by various
topics including but not limited to model, model year, key words or
phrases, etc., while allowing ready identification of the latest
vehicle calibration. Manufacturers who do not use model year to
classify their vehicles in their service information may use an
alternate vehicle delineation such as body series. Any manufacturer
utilizing this flexibility shall create a cross-reference to the
corresponding model year and provide this cross-reference on the
manufacturer Web site home page.
(vi) Provide accessibility using common, readily available software
and shall not require the use of software, hardware, viewers, or
browsers that are not readily available to the general public.
Manufacturers shall also provide hyperlinks to any plug-ins, viewers or
browsers (e.g. Adobe Acrobat or Netscape) needed to access the
manufacturer Web site.
(vii) Allow simple hyper-linking to the manufacturer Web site from
government Web sites and automotive-related Web sites.
(viii) Allow access to the manufacturer Web site with no limits on
the modem speed by which aftermarket service providers or other
interested parties can connect to the manufacturer Web site.
(ix) Possess sufficient server capacity to allow ready access by
all users and have sufficient capacity to assure that all users may
obtain needed information without undue delay.
(x) Correct or delete broken Web links on a weekly basis.
(xi) Allow for Web site navigation that does not require a user to
return to the manufacturer home page or a search engine in order to
access a different portion of the site.
(xii) Allow users to print out any and all of the materials
required to be made available on the manufacturer Web site including
the ability to print it at the user's location.
(4) Small volume provisions for information dissemination. (i)
Manufacturers with annual sales of less than 5,000 vehicles shall have
until June 28, 2004 to launch their individual Web sites as required by
paragraph (g)(3) of this section.
(ii) Manufacturers with annual sales of less than 1,000 vehicles
may, in lieu of meeting the requirement of paragraph (g)(3) of this
section, request the Administrator to approve an alternative method by
which the required emissions-related information can be obtained by the
persons specified in paragraph (g)(2)(i) of this section.
(5) Required information. All information relevant to the diagnosis
and completion of emissions-related repairs shall be posted on
manufacturer Web sites. This excludes indirect information specified in
paragraphs (g)(6) and (g)(12) through (g)(16) of this section. To the
extent that this information does not already exist in some form for
their manufacturer franchised dealerships, manufacturers are required
to develop and make available the information required by this section
to both their manufacturer franchised dealerships and the aftermarket.
The required information includes, but is not limited to:
(i) Manuals, including subsystem and component manuals developed by
a manufacturer's third party supplier that are made available to
manufacturer franchised dealerships, technical service bulletins
(TSBs), recall service information, diagrams, charts, and training
materials. Manuals and other such service information from third party
suppliers are not required to be made available in full-text on
manufacturer Web sites as described in paragraph (g)(3) of this
section. Rather, manufacturers must make available on the manufacturer
Web site as required by paragraph (g)(3) of this section an index of
the relevant information and

[[Page 38451]]

instructions on how to order such third party information. In the
alternative, a manufacturer can create a link from its Web site to the
Web site(s) of the third party supplier.
(ii) OBD system information which includes, but is not limited to,
the following:
(A) A general description of the operation of each monitor,
including a description of the parameter that is being monitored;
(B) A listing of all typical OBD diagnostic trouble codes
associated with each monitor;
(C) A description of the typical enabling conditions (either
generic or monitor-specific) for each monitor (if equipped) to execute
during vehicle operation, including, but not limited to, minimum and
maximum intake air and engine coolant temperature, vehicle speed range,
and time after engine startup. In addition, manufacturers shall list
all monitor-specific OBD drive cycle information for all major OBD
monitors as equipped including, but not limited to, catalyst, catalyst
heater, oxygen sensor, oxygen sensor heater, evaporative system,
exhaust gas re-circulation (EGR), secondary air, and air conditioning
system. Additionally, for diesel vehicles under 14,000 pounds. GVWR
which also perform misfire, fuel system and comprehensive component
monitoring under specific driving conditions (i.e., non-continuous
monitoring; as opposed to spark ignition engines that monitor these
systems under all conditions or continuous monitoring), the
manufacturer shall make available monitor-specific drive cycles. Any
manufacturer who develops generic drive cycles, either in addition to,
or instead of, monitor-specific drive cycles shall also make these
available in full-text on manufacturer Web sites;
(D) A listing of each monitor sequence, execution frequency and
typical duration;
(E) A listing of typical malfunction thresholds for each monitor;
(F) For OBD parameters for specific vehicles that deviate from the
typical parameters, the OBD description shall indicate the deviation
and provide a separate listing of the typical values for those
vehicles;
(G) Identification and scaling information necessary to interpret
and understand data available to a generic scan tool through ``mode
6,'' pursuant to Society of Automotive Engineers SAE J1979, ``EE
Diagnostic Test Modes'' (Incorporated by reference, see Sec. 86.1).
(H) Algorithms, look-up tables, or any values associated with look-
up tables are not required to be made available.
(iii) Any information regarding any system, component, or part of a
vehicle monitored by the OBD system that could in a failure mode cause
the OBD system to illuminate the malfunction indicator light (MIL);
(iv) Any information on other systems that can effect the emission
system within a multiplexed system (including how information is sent
between emission-related system modules and other modules on a
multiplexed bus);
(v) Manufacturer-specific emissions-related diagnostic trouble
codes (DTCs) and any related service bulletins, trouble shooting
guides, and/or repair procedures associated with these manufacturer-
specific DTCs; and
(vi) Information regarding how to obtain the information needed to
perform reinitialization of any vehicle computer or anti-theft system
following an emissions-related repair.
(6) Anti-theft system initialization information. Computer or anti-
theft system initialization information and/or related tools necessary
for the proper installation of on-board computers or necessary for the
completion of any emissions-related repair on motor vehicles that
employ integral vehicle security systems or the repair or replacement
of any other emission-related part shall be made available at a fair
and reasonable cost to the persons specified in paragraph (g)(2)(i) of
this section.
(i) Except as provided under paragraph (g)(6)(ii) of this section,
manufacturers must make this information available to persons specified
in paragraph (g)(2)(i) of this section, such that such persons will not
need any special tools or manufacturer-specific scan tools to perform
the initialization. Manufacturers may make such information available
through, for example, generic aftermarket tools, a pass-through device,
or inexpensive manufacturer-specific cables.
(ii) A manufacturer may request Administrator approval for an
alternative means to re-initialize vehicles for some or all model year
vehicles through the 2007 model year by 1 month following the effective
date of the final rule. The Administrator shall approve the request
only after the following conditions have been met:
(A) The manufacturer must demonstrate that the availability of such
information to aftermarket service providers would significantly
increase the risk of vehicle theft.
(B) The manufacturer must make available a reasonable alternative
means to install or repair computers, or to otherwise repair or replace
an emission-related part.
(C) Any alternative means proposed by a manufacturer cannot require
aftermarket technicians to use a manufacturer franchised dealership to
obtain information or special tools to re-initialize the anti-theft
system. All information must come directly from the manufacturer or a
single manufacturer-specified designee.
(D) Any alternative means proposed by an manufacturer must be
available to aftermarket technicians at a fair and reasonable price.
(E) Any alternative must be available to aftermarket technicians
within twenty-four hours of the initial request.
(F) Any alternative must not require the purchase of a special tool
or tools, including manufacturer-specific tools, to complete this
repair. Alternatives may include lease of such tools, but only for
appropriately minimal cost.
(G) In lieu of leasing their manufacturer-specific tool to meet
this requirement, a manufacturer may also release the necessary
information to equipment and tool manufacturers for incorporation into
aftermarket scan tools. Any manufacturer choosing this option must
release the information to equipment and tool manufacturers within 60
days of Administrator approval. Manufacturers may also comply with this
requirement using SAE J2534 for some or all model years through model
year 2007.
(7) Cost of required information. (i) All information required to
be made available by this section shall be made available at a fair and
reasonable price. In determining whether a price is fair and
reasonable, considerationmay be given to relevant factors, including,
but not limited to, the following:
(A) The net cost to the manufacturer-franchised dealerships for
similar information obtained from manufacturers, less any discounts,
rebates, or other incentive programs.
(B) The cost to the manufacturer for preparing and distributing the
information, excluding any research and development costs incurred in
designing and implementing, upgrading or altering the onboard computer
and its software or any other vehicle part or component. Amortized
capital costs for the preparation and distribution of the information
may be included.
(C) The price charged by other manufacturers for similar
information.
(D) The price charged by manufacturers for similar information
prior to the launch of manufacturer Web sites.
(E) The ability of aftermarket technicians or shops to afford the
information.

[[Page 38452]]

(F) The means by which the information is distributed;
(G) The extent to which the information is used, which includes the
number of users, and frequency, duration, and volume of use.
(H) Inflation.
(ii) By August 25, 2003, each manufacturer shall submit to the
Administrator a request for approval of their pricing structure for
their Web sites and amounts to be charged for the information required
to be made available under paragraphs (g)(3) and (g)(5) of this
section. Subsequent to the approval of the manufacturer Web site
pricing structure, manufacturers shall notify the Administrator upon
the increase in price of any one or all of the subscription options of
20 percent or more above the previously-approved price, taking
inflation into account.
(A) The manufacturer shall submit a request to the Administrator
that sets forth a detailed description of the pricing structure and
amounts, and support for the position that the pricing structure and
amounts are fair and reasonable by addressing, at a minimum, each of
the factors specified in paragraph (g)(7)(i) of this section.
(B) The Administrator will act upon the request within 180 days
following receipt of a complete request or following receipt of any
additional information requested by the Administrator.
(C) The Administrator may decide not to approve, or to withdraw
approval for a manufacturer's pricing structure and amounts based on a
conclusion that this pricing structure and/or amounts are not, or are
no longer, fair and reasonable, by sending written notice to the
manufacturer explaining the basis for this decision.
(D) In the case of a decision by the Administrator not to approve
or to withdraw approval, the manufacturer shall within three months
following notice of this decision, obtain Administrator approval for a
revised pricing structure and amounts by following the approval process
described in this paragraph (g)(7)(ii).
(8) Unavailable information. Any information which is not provided
at a fair and reasonable price shall be considered unavailable, in
violation of these regulations and section 202(m)(5) of the Clean Air
Act.
(9) Third-party information providers. By December 24, 2003,
manufacturers shall, for model year 2004 and later vehicles and
engines, make available to third-party information providers as defined
in paragraph (g)(2)(ii) of this section with whom they engage in
licensing or business arrangements;
(i) The required emissions-related information as specified in
paragraph (g)(5) of this section either:
(A) Directly in electronic format such as diskette or CD-ROM using
non-proprietary software, in English; or
(B) Indirectly via a Web site other than that required by paragraph
(g)(3) of this section;
(ii) For any manufacturer who utilizes an automated process in
their manufacturer-specific scan tool for diagnostic fault trees, the
data schema, detail specifications, including category types/codes and
vehicle codes, and data format/content structure of the diagnostic
trouble trees.
(iii) Manufacturers can satisfy the requirement of paragraph
(g)(9)(ii) of this section by making available diagnostic trouble trees
on their manufacturer Web sites in full-text.
(iv) Manufacturers are not responsible for the accuracy of the
information distributed by third parties. However, where manufacturers
charge information intermediaries for information, whether through
licensing agreements or other arrangements, manufacturers are
responsible for inaccuracies contained in the information they provide
to third-party information providers.
(10) Required emissions-related training information. By December
24, 2003, for emissions-related training information, manufacturers
shall:
(i) Video tape or otherwise duplicate and make available for sale
on manufacturer Web sites within 30 days after transmission any
emissions-related training courses provided to manufacturer franchised
dealerships via the Internet or satellite transmission;
(ii) Provide on the manufacturer Web site an index of all
emissions-related training information available for purchase by
aftermarket service providers for 1994 and newer vehicles. For model
years subsequent to 2003, the required information must be made
available for purchase within 3 months of model introduction and then
must be made available at the same time it is made available to
manufacturer franchised dealerships, whichever is earlier. The index
shall describe the title of the course or instructional session, the
cost of the video tape or duplicate, and information on how to order
the item(s) from the manufacturer Web site. All of the items available
must be shipped within 24 hours of the order being placed and are to be
made available at a fair and reasonable price as described in paragraph
(g)(7) of this section. Manufacturers unable to meet the 24 hour
shipping requirement under circumstances where orders exceed supply and
additional time is needed by the distributor to reproduce the item
being ordered, may exceed the 24 hour shipping requirement, but in no
instance can take longer than 14 days to ship the item.
(iii) Provide access to third-party training providers as defined
in paragraph (g)(2)(ii) of this section all emission-related training
courses transmitted via satellite or Internet offered to their
manufacturer franchised dealerships. Manufacturers may not charge
unreasonable up-front fees to third-party training providers for this
access, but may require a royalty, percentage, or other arranged fee
based on per-use enrollment/subscription basis. Manufacturers may take
reasonable steps to protect any copyrighted information and are not
required to provide this information to parties that do not agree to
such steps.
(11) Timeliness and maintenance of information dissemination. (i)
General Requirements. Subsequent to the initial launch of the
manufacturer's Web site, manufacturers must make the information
required under paragraph (g)(5) of this section available on their Web
site within six months of model introduction, or at the same time it is
made available to manufacturer franchised dealerships, whichever is
earlier. After this six-month period, the information must be available
and updated on the manufacturer Web site at the same time that the
updated information is made available to manufacturer franchised
dealerships, except as otherwise specified in this section.
(ii) Archived information. Beginning with the 1996 model year,
manufacturers must maintain the required information on their Web sites
in full-text as defined in paragraph (g)(5) of this section for a
minimum of 15 years after model introduction. Subsequent to this
fifteen year period, manufacturers may archive the information in the
manufacturer's format of choice and provide an index of the archived
information on the manufacturer Web site and how it can be obtained by
interested parties. Manufacturers shall index their available
information with a title that adequately describes the contents of the
document to which it refers. Manufacturers may allow for the ordering
of information directly from their Web site, or from a Web site
hyperlinked to the manufacturer Web site. In the alternative,
manufacturers shall list a phone number and address where aftermarket
service providers can call or write to obtain the desired information.
Manufacturers must also

[[Page 38453]]

provide the price of each item listed, as well as the price of items
ordered on a subscription basis. To the extent that any additional
information is added or changed for these model years, manufacturers
shall update the index as appropriate. Manufacturers will be
responsible for ensuring that all information, including information
that is distributed through information distributors, is provided
within one regular business day of receiving the order. Items that are
less than 20 pages (e.g. technical service bulletins) shall be faxed,
if requested, to the requestor and manufacturers are required to
deliver the information overnight if requested and paid for by the
ordering party. Archived information must be made available on demand
and at a fair and reasonable price.
(12) Reprogramming information. (i) For model years 1996 and later,
manufacturers shall make available to the persons specified in
paragraph (g)(2)(i) of this section all emissions-related recalibration
or reprogramming events (including driveability reprogramming events
that may affect emissions) in the format of its choice at the same time
they are made available to manufacturer franchised dealerships. This
requirement takes effect on September 25, 2003, and within 3 months of
model introduction for all new model years.
(ii) For model years 1996 and later manufacturers shall provide
persons specified in paragraph (g)(2)(i) of this section with an
efficient and cost-effective method for identifying whether the
calibrations on vehicles are the latest to be issued. This requirement
takes effect on September 25, 2003, and within 3 months of model
introduction for all new model years.
(iii) For all 2004 and later OBD vehicles equipped with
reprogramming capability, manufacturers shall comply with SAE J2534
(Incorporated by reference, see Sec. 86.1). Any manufacturer who
cannot comply with SAE J2534 in model year 2004 may request one year
additional lead time from the Administrator.
(iv) For model years 2004 and later, manufacturers shall make
available to aftermarket service providers the necessary manufacturer-
specific software applications and calibrations needed to initiate
pass-through reprogramming. This software shall be able to run on a
standard personal computer that utilizes standard operating systems as
specified in SAE J2534 (Incorporated by reference, see Sec. 86.1).
(v) For model years prior to 2004, manufacturers may use SAE J2534
as described above, provided they make available to the aftermarket any
additional required hardware (i.e. cables). Manufacturers may not
require the purchase or use of a manufacturer-specific scan tool to
receive or use this additional hardware. Manufacturers must also make
available the necessary manufacturer-specific software applications and
calibrations needed to initiate pass-through reprogramming.
Manufacturers must also make available to equipment and tool companies
any information needed to develop aftermarket equivalents of the
manufacturer-specific hardware.
(vi) Manufacturers may take any reasonable business precautions
necessary to protect proprietary business information and are not
required to provide this information to any party that does not agree
to these reasonable business precautions. The requirement to make
hardware available and to release the information to equipment and tool
companies takes effect on September 25, 2003, and within 3 months of
model introduction for all new model years.
(vii) Manufacturers who cannot comply with paragraphs (g)(12)(v)
and (g)(12)(vi) of this section shall make available to equipment and
tool companies by September 25, 2003 the following information
necessary for reprogramming the Electronic Control Unit (ECU):
(A) The physical hardware requirements for reprogramming events or
tools (e.g. system voltage requirements, cable terminals/pins,
connections such as RS232 or USB, wires, etc.).
(B) ECU data communication (e.g. serial data protocols,
transmission speed or baud rate, bit timing requirements, etc.).
(C) Information on the application physical interface (API) or
layers (descriptions for procedures such as connection, initialization,
performing and verifying programming/download, and termination).
(D) Vehicle application information or any other related service
information such as special pins and voltages for reprogramming events
or additional vehicle connectors that require enablement and
specifications for the enablement.
(E) Information that describes what interfaces or combinations of
interfaces are used to deliver calibrations from database media (e.g.
PC using CDROM to the reprogramming device e.g. scan tool or black
box).
(viii) A manufacturer can propose an alternative to the
requirements of paragraph (g)(12)(vii) of this section for how
aftermarket service providers can reprogram an ECU. The Administrator
will approve this alternative if the manufacturer demonstrates all of
the following:
(A) That it cannot comply with paragraph (g)(12)(v) of this section
for the vehicles subject to the alternative plan;
(B) That a very small percentage of its vehicles in model years
prior to 2004 cannot be reprogrammed with the provisions described in
paragraph (g)(12)(v) of this section, or that releasing the information
to tool companies would likely not result in this information being
incorporated into aftermarket tools; and
(C) That aftermarket service providers will be able to reprogram
promptly at a reasonable cost.
(ix) In meeting the requirements of paragraphs (g)(12)(v) through
(g)(12)(vii) of this section, manufacturers may take any reasonable
business precautions necessary to protect proprietary business
information and are not required to provide this information to any
party that does not agree to these reasonable business precautions.
(13) Generic and enhanced information for scan tools. By September
25, 2003, manufacturers shall make available to equipment and tool
companies all generic and enhanced service information including bi-
directional control and data stream information as defined in paragraph
(g)(2)(ii) of this section. This requirement applies for 1996 and later
model year vehicles.
(i) The information required by paragraph (g)(13) of this section
shall be provided electronically using common document formats to
equipment and tool companies with whom they have appropriate licensing,
contractual, and/or confidentiality arrangements. To the extent that a
central repository for this information (e.g. the TEK-NET library
developed by the Equipment and Tool Institute) is used to warehouse
this information, the Administrator shall have free unrestricted
access. In addition, information required in paragraph (g)(13) of this
section shall be made available to equipment and tool companies who are
not otherwise members of any central repository and shall have access
if the non-members have arranged for the appropriate licensing,
contractual and/or confidentiality arrangements with the manufacturer
and/or a central repository.
(ii) In addition to the generic and enhanced information defined in
paragraph (g)(2)(ii) of this section, manufacturers shall also make
available

[[Page 38454]]

the following information necessary for developing generic diagnostic
scan tools:
(A) The physical hardware requirements for data communication (e.g.
system voltage requirements, cable terminals/pins, connections such as
RS232 or USB, wires, etc.),
(B) ECU data communication (e.g. serial data protocols,
transmission speed or baud rate, bit timing requirements, etc.),
(C) Information on the application physical interface (API) or
layers. (i.e., processing algorithms or software design descriptions
for procedures such as connection, initialization, and termination),
(D) Vehicle application information or any other related service
information such as special pins and voltages or additional vehicle
connectors that require enablement and specifications for the
enablement.
(iii) Any manufacturer who utilizes an automated process in its
manufacturer-specific scan tool for diagnostic fault trees shall make
available to equipment and tool companies the data schema, detail
specifications, including category types/codes and vehicle codes, and
data format/content structure of the diagnostic trouble trees.
(iv) Manufacturers can satisfy the requirement of paragraph
(g)(13)(iii) of this section by making available diagnostic trouble
trees on their manufacturer Web sites in full-text.
(14) Availability of manufacturer-specific scan tools.
Manufacturers shall make available for sale to the persons specified in
paragraph (g)(2)(i) of this section their own manufacturer-specific
diagnostic tools at a fair and reasonable cost. These tools shall also
be made available in a timely fashion either through the manufacturer
Web site or through a manufacturer-designated intermediary.
Manufacturers who develop different versions of one or more of their
diagnostic tools that are used in whole or in part for emission-related
diagnosis and repair shall insure that all emission-related diagnosis
and repair information is available for sale to the aftermarket at a
fair and reasonable cost. Manufacturers shall provide technical support
to aftermarket service providers for the tools described in this
section, either themselves or through a third party of its choice.
Factors for determining fair and reasonable cost include, but are not
limited to:
(i) The net cost to the manufacturer's franchised dealerships for
similar tools obtained from manufacturers, less any discounts, rebates,
or other incentive programs;
(ii) The cost to the manufacturer for preparing and distributing
the tools, excluding any research and development costs;
(iii) The price charged by other manufacturers of similar sizes for
similar tools;
(iv) The capabilities and functionality of the manufacturer tool;
(v) The means by which the tools are distributed;
(vi) Inflation.
(vii) The ability of aftermarket technicians and shops to afford
the tools.
(15) Changing content of manufacturer-specific scan tools.
Manufacturers who opt to remove non-emissions related content from
their manufacturer-specific scan tools and sell them to the persons
specified in paragraph (g)(2)(i) of this section shall adjust the cost
of the tool accordingly lower to reflect the decreased value of the
scan tool. All emissions-related content that remains in the
manufacturer-specific tool shall be identical to the information that
is contained in the complete version of the manufacturer specific tool.
Any manufacturer who wishes to implement this option must request
approval from the Administrator prior to the introduction of the tool
into commerce.
(16) Special tools. (i) Manufacturers who have developed special
tools to extinguish the malfunction indicator light (MIL) for Model
Years 1994 through 2003 shall make available the necessary information
to equipment and tool companies to design a comparable generic tool.
This information shall be made available to equipment and tool
companies no later than September 25, 2003.
(ii) Manufacturers are prohibited from requiring special tools to
extinguish the malfunction indicator light (MIL) beginning with Model
Year 2004.
(17) Reference materials. Manufacturers shall conform with the
following Society of Automotive Engineers (SAE) standards.
(i) For Web-based delivery of service information, manufacturers
shall comply with SAE Recommended Practice J1930 (Revised, May 1998),
``Electrical/Electronic Systems Diagnostic Terms, Definitions,
Abbreviations, and Acronyms'' (Incorporated by reference, see Sec.
86.1). This recommended practice standardizes various terms,
abbreviations, and acronyms associated with on-board diagnostics.
Manufacturers shall comply with SAE J1930 beginning with Model Year
2004.
(ii) For identification and scaling information necessary to
interpret and understand data available to a generic scan tool through
``mode 6,'' manufacturers shall comply with SAE Recommended Practice
J1979 (Revised, September, 1997), ``EE Diagnostic Test Modes''
(Incorporated by reference, see Sec. 86.1). This recommended practice
describes the implementation of the diagnostic test modes for
emissions-related test data. Manufacturers shall comply with SAE J1979
(Incorporated by reference, see Sec. 86.1) beginning with Model Year
2004.
(iii) For allowing ECU and equipment and tool manufacturers to
satisfy the needs of multiple end users with minimum modification to a
basic ECU design, manufacturers shall comply with ``Recommended
Practice J2284-3 (May, 2001), ``High Speed CAN (HSC) for Vehicle
Applications at 500 KBPS'' (Incorporated by reference, see Sec. 86.1).
SAE J2284-3 establishes standard ECU physical layer, data link layer,
and media design criteria. Manufacturers may comply with SAE J2284-3
beginning with model year 2003 and shall comply with SAE J2284-3
beginning with model year 2008.
(iv) For pass-through reprogramming capabilities, manufacturers
shall comply with SAE Recommended Practice J2534 (February, 2002),
``Recommended Practice for Pass-Thru Vehicle Programming''
(Incorporated by reference, see Sec. 86.1). This recommended practice
provides technical specifications and information that manufacturers
must supply to equipment and tool companies to develop aftermarket
pass-through reprogramming tools. Manufacturers shall comply with SAE
J2534 beginning with model year 2004.
(18) Reporting requirements. Manufacturers shall provide to the
Administrator reports on an annual basis within 30 days of the end of
the calendar year and upon request of the Administrator, that describe
the performance of their individual Web sites. These annual reports
shall be submitted to the Administrator electronically utilizing non-
proprietary software in the format as agreed to by the Administrator
and the manufacturers. Manufacturers may request Administrator approval
to report on parameters other than those described below if the
manufacturer can demonstrate that those alternate parameters will
provide sufficient and similar information for the Administrator to
effectively evaluate the manufacturer Web site. These annual reports
shall include, at a minimum, monthly measurements of the following
parameters:

[[Page 38455]]

(i) Total successful requests (measured in number of files
including graphic interchange formats (GIFs) and joint photographic
expert group (JPEG) images, i.e. electronic images such as wiring or
other diagrams or pictures). This is defined as the total successful
request counts of all the files which have been requested, including
pages, graphics, etc.
(ii) Total failed requests (measured in number of files). This is
defined as the total failed request counts of all the files which were
requested but failed because they could not be found or were read-
protected. This includes pages, graphics, etc.
(iii) Average data transferred per day (measured by bytes). This is
defined as average amount of data transferred per day from one place to
another.
(iv) Daily Summary (measured in number of files/pages by day of
week). This is defined as the total number of requests each day of the
week, over the time period given at the beginning of the report.
(v) Daily report (measured in number of files/pages by the day of
the month). This is defined as how many requests there were in each day
of a specific month.
(vi) Browser Summary (measured in number of files/pages by browser
type, i.e., Netscape, Internet Explorer). This is defined as the
versions of a browser by vendor.
(vii) Any other information deemed necessary by the Administrator
to determine the adequacy of a manufacturer Web site.
(19) Prohibited acts, liability and remedies. (i) It is a
prohibited act for any person to fail to promptly provide or cause a
failure to promptly provide information as required by this paragraph
(g), or to otherwise fail to comply or cause a failure to comply with
any provision of this paragraph (g).
(ii) Any person who fails or causes the failure to comply with any
provision of this paragraph (g) is liable for a violation of that
provision. A corporation is presumed liable for any violations of this
subpart that are committed by any of its subsidiaries, affiliates or
parents that are substantially owned by it or substantially under its
control.
(iii) Any person who violates a provision of this paragraph (g)
shall be subject to a civil penalty of not more than $ 31,500 per day
for each violation. This maximum penalty is shown for calendar year
2002. Maximum penalty limits for later years may be set higher based on
the Consumer Price Index, as specified in 40 CFR part 19. In addition,
such person shall be liable for all other remedies set forth in Title
II of the Clean Air Act, remedies pertaining to provisions of Title II
of the Clean Air Act, or other applicable provisions of law.

0
7. Section 86.004-38 is amended by revising the introductory text of
this section and paragraph (g) to read as follows:

Sec. 86.004-38 Maintenance instructions.

This section includes text that specifies requirements that differ
from those specified in Sec. 86.096-38. Where a paragraph in Sec.
86.096-38 is identical and applicable to Sec. 86.004-38, this may be
indicated by specifying the corresponding paragraph and the statement
``[Reserved]. For guidance see Sec. 86.096-38.''.
* * * * *
(g) [Reserved]. For guidance see Sec. 86.096-38. For incorporation
by reference see Sec. Sec. 86.1 and 86.096-38.
* * * * *

0
8. Section 86.007-38 is amended by revising the introductory text of
this section and paragraph (g) to read as follows:

Sec. 86.007-38 Maintenance instructions.

This section includes text that specifies requirements that differ
from those specified in Sec. 86.096-38 or Sec. 86.004-38. Where a
paragraph in Sec. 86.096-38 or Sec. 86.004-38 is identifical and
applicable to Sec. 86.007-38, this may be indicated by specifying the
corresponding paragraph and the statement ``[Reserved]. For guidance
see Sec. 86.096-38., or [Reserved]. For guidance see Sec. 86.004-
38.''.
* * * * *
(g) [Reserved]. For guidance see Sec. 86.096-38. For incorporation
by reference see Sec. Sec. 86.1 and 86.096-38.
* * * * *

0
9. Section 86.1801-01 is amended by revising paragraph (f) to read as
follows:

Sec. 86.1808-01 Maintenance instructions.

* * * * *
(f) Emission control diagnostic service information:
(1) Manufacturers are subject to the provisions of this paragraph
(f) beginning in the 2001 model year for manufacturers of light-duty
vehicles and light-duty trucks, and beginning in the 2005 model year
for manufacturers of heavy-duty vehicles and heavy-duty engines
weighing 14,000 pounds gross vehicle weight (GVW) and less that are
subject to the OBD requirements of this part.
(2) General requirements. (i) Manufacturers shall furnish or cause
to be furnished to any person engaged in the repairing or servicing of
motor vehicles or motor vehicle engines, or the Administrator upon
request, any and all information needed to make use of the on-board
diagnostic system and such other information, including instructions
for making emission-related diagnoses and repairs, including but not
limited to service manuals, technical service bulletins, recall service
information, bi-directional control information, and training
information, unless such information is protected by section 208(c) of
the Act as a trade secret. No such information may be withheld under
section 208(c) of the Act if that information is provided (directly or
indirectly) by the manufacturer to franchised dealers or other persons
engaged in the repair, diagnosing, or servicing of motor vehicles or
motor vehicle engines.
(ii) Definitions. The following definitions apply for this
paragraph (f):
(A) Aftermarket service provider means any individual or business
engaged in the diagnosis, service, and repair of a motor vehicle or
engine, who is not directly affiliated with a manufacturer or
manufacturer-franchised dealership.
(B) Bi-directional control means the capability of a diagnostic
tool to send messages on the data bus that temporarily overrides the
module's control over a sensor or actuator and gives control to the
diagnostic tool operator. Bi-directional controls do not create
permanent changes to engine or component calibrations.
(C) Data stream information means information (i.e., messages and
parameters) originated within the vehicle by a module or intelligent
sensors (i.e., a sensor that contains and is controlled by its own
module) and transmitted between a network of modules and/or intelligent
sensors connected in parallel with either one or more communication
wires. The information is broadcast over the communication wires for
use by the OBD system to gather information on emissions-related
components or systems and from other vehicle modules that may impact
emissions, including but not limited to systems such as chassis or
transmission. For the purposes of this section, data stream information
does not include engine calibration related information, or any data
stream information from systems or modules that do not impact
emissions.
(D) Emissions-related information means any information related to
the diagnosis, service, and repair of emissions-related components.
Emissions-related information includes, but is not limited to,
information regarding any system, component or

[[Page 38456]]

part of a vehicle that controls emissions and any system, component
and/or part associated with the powertrain system, including, but not
limited to:
(1) The engine, the fuel system and ignition system;
(2) Information for any system, component or part that is likely to
impact emissions, such as transmission systems, and any other
information specified by the Administrator to be relevant to the
diagnosis and repair of an emissions-related problem; and
(3) Any other information specified by the Administrator to be
relevant for the diagnosis and repair of an emissions-related failure
found through the inspection and maintenance program after such finding
has been communicated to the affected manufacturer(s).
(E) Emissions-related training information means any information
related to training or instruction for the purpose of the diagnosis,
service, and repair of emissions-related components.
(F) Enhanced service and repair information means information which
is specific for an original equipment manufacturer's brand of tools and
equipment. This includes computer or anti-theft system initialization
information necessary for the completion of any emissions-related
repair on motor vehicles that employ integral vehicle security systems.
(G) Equipment and tool company means a registered automotive
equipment or software company either public or private that is engaged
in, or plans to engage in, the manufacture of automotive scan tool
reprogramming equipment or software.
(H) Generic service and repair information means information which
is not specific for an original equipment manufacturer's brand of tools
and equipment.
(I) Indirect information means any information that is not
specifically contained in the service literature, but is contained in
items such as tools or equipment provided to franchised dealers (or
others). This includes computer or anti-theft system initialization
information necessary for the completion of any emissions-related
repair on motor vehicles that employ integral vehicle security systems.
(J) Intermediary means any individual or entity, other than an
original equipment manufacturer, which provides service or equipment to
aftermarket service providers.
(K) Manufacturer-franchised dealership means any service provider
with which a manufacturer has a direct business relationship.
(L) Third-party information provider means any individual or
entity, other than an original equipment manufacturer, who consolidates
manufacturer service information and makes this information available
to aftermarket service providers.
(M) Third-party training provider means any individual or entity,
other than an original equipment manufacturer who develops and/or
delivers instructional and educational material for automotive training
courses.
(3) Information dissemination. By December 24, 2003, each
manufacturer shall provide or cause to be provided to the persons
specified in paragraph (f)(2)(i) of this section and to any other
interested parties a manufacturer-specific World Wide Web site
containing the information specified in paragraph (f)(2)(i) of this
section for 2001 and later model year vehicles which have been offered
for sale; this requirement does not apply to indirect information,
including the information specified in paragraphs (f)(12) through
(f)(16) of this section. Upon request and approval of the
Administrator, manufacturers who can demonstrate significant hardship
in complying with this provision within four months after the effective
date may request an additional six months lead time to meet this
requirement. Each manufacturer Web site shall:
(i) Provide access in full-text to all of the information specified
in paragraph (f)(5) of this section.
(ii) Be updated at the same time as manufacturer-franchised
dealership World Wide Web sites;
(iii) Provide users with a description of the minimum computer
hardware and software needed by the user to access that manufacturer's
information (e.g., computer processor speed and operating system
software). This description shall appear when users first log-on to the
home page of the manufacturer's Web site.
(iv) Provide Short-Term (24 to 72 hours), Mid-Term (30-day period),
and Long-Term (365-day period) Web site subscription options to any
person specified in paragraph (f)(2)(i) of this section whereby the
user will be able to access the site, search for the information, and
purchase, view and print the information at a fair and reasonable cost
as specified in paragraph (f)(7) of this section for each of the
options. In addition, for each of the subscription options,
manufacturers are required to make their entire site accessible for the
respective period of time and price. In other words, a manufacturer may
not limit any or all of the subscription options to just one make or
one model.
(v) Allow the user to search the manufacturer Web site by various
topics including but not limited to model, model year, key words or
phrases, etc., while allowing ready identification of the latest
vehicle calibration. Manufacturers who do not use model year to
classify their vehicles in their service information may use an
alternate vehicle delineation such as body series. Any manufacturer
utilizing this flexibility shall create a cross-reference to the
corresponding model year and provide this cross-reference on the
manufacturer Web site home page.
(vi) Provide accessibility using common, readily available software
and shall not require the use of software, hardware, viewers, or
browsers that are not readily available to the general public.
Manufacturers shall also provide hyperlinks to any plug-ins, viewers or
browsers (e.g. Adobe Acrobat or Netscape) needed to access the
manufacturer Web site.
(vii) Allow simple hyper-linking to the manufacturer Web site from
government Web sites and automotive-related Web sites.
(viii) Allow access to the manufacturer Web sites with no limits on
the modem speed by which aftermarket service providers or other
interested parties can connect to the manufacturer Web site.
(ix) Possess sufficient server capacity to allow ready access by
all users and have sufficient capacity to assure that all users may
obtain needed information without undue delay.
(x) Correct or delete broken Web links on a weekly basis.
(xi) Allow for Web site navigation that does not require a user to
return to the manufacturer home page or a search engine in order to
access a different portion of the site.
(xii) Allow all users to print out any and all of the materials
required to be made available on the manufacturers Web site, including
the ability to print it at the users location.
(4) Small volume provisions for information dissemination. (i)
Manufacturers with annual sales of less than 5,000 vehicles shall have
until June 28, 2004 to launch their individual Web sites as required by
paragraph (f)(3) of this section.
(ii) Manufacturers with annual sales of less than 1,000 vehicles
may, in lieu of meeting the requirement of paragraph (f)(3) of this
section, request the Administrator to approve an alternative method by
which the required emissions-related information can be

[[Page 38457]]

obtained by the persons specified in paragraph (f)(2)(i) of this
section.
(5) Required information. All information relevant to the diagnosis
and completion of emissions-related repairs shall be posted on
manufacturer Web sites. This excludes indirect information specified in
paragraphs (f)(6) and (f)(12) through (f)(16) of this section. To the
extent that this information does not already exist in some form for
their manufacturer-franchised dealerships, manufacturers are required
to develop and make available the information required by this section
to both their manufacturer-franchised dealerships and the aftermarket.
The required information includes, but is not limited to:
(i) Manuals, including subsystem and component manuals developed by
a manufacturer's third party supplier that are made available to
manufacturer-franchised dealerships, technical service bulletins
(TSBs), recall service information, diagrams, charts, and training
materials. Manuals and other such service information from third party
suppliers are not required to be made available in full-text on
manufacturer Web sites as described in paragraph (f)(3) of this
section. Rather, manufacturers must make available on the manufacturer
Web site as required by paragraph (f)(3) of this section an index of
the relevant information and instructions on how to order such third
party information. In the alternative, a manufacturer can create a link
from its Web site to the Web site(s) of the third party supplier.
(ii) OBD system information which includes, but is not limited to,
the following:
(A) A general description of the operation of each monitor,
including a description of the parameter that is being monitored;
(B) A listing of all typical OBD diagnostic trouble codes
associated with each monitor;
(C) A description of the typical enabling conditions (either
generic or monitor-specific) for each monitor (if equipped) to execute
during vehicle operation, including, but not limited to, minimum and
maximum intake air and engine coolant temperature, vehicle speed range,
and time after engine startup. In addition, manufacturers shall list
all monitor-specific OBD drive cycle information for all major OBD
monitors as equipped including, but not limited to, catalyst, catalyst
heater, oxygen sensor, oxygen sensor heater, evaporative system,
exhaust gas re-circulation (EGR), secondary air, and air conditioning
system. Additionally, for diesel vehicles under 14,000 pounds GVWR
which also perform misfire, fuel system and comprehensive component
monitoring under specific driving conditions (i.e., non-continuous
monitoring; as opposed to spark ignition engines that monitor these
systems under all conditions or continuous monitoring), the
manufacturer shall make available monitor-specific drive cycles. Any
manufacturer who develops generic drive cycles, either in addition to,
or instead of, monitor-specific drive cycles shall also make these
available in full-text on manufacturer Web sites;
(D) A listing of each monitor sequence, execution frequency and
typical duration;
(E) A listing of typical malfunction thresholds for each monitor;
(F) For OBD parameters for specific vehicles that deviate from the
typical parameters, the OBD description shall indicate the deviation
and provide a separate listing of the typical values for those
vehicles;
(G) Identification and scaling information necessary to interpret
and understand data available to a generic scan tool through ``mode
6'', pursuant to Society of Automotive Engineers SAE J1979, ``EE
Diagnostic Test Modes''(Incorporated by reference, see Sec. 86.1).
(H) Algorithms, look-up tables, or any values associated with look-
up tables are not required to be made available.
(iii) Any information regarding any system, component, or part of a
vehicle monitored by the OBD system that could in a failure mode cause
the OBD system to illuminate the malfunction indicator light (MIL);
(iv) Any information on other systems that can effect the emission
system within a multiplexed system (including how information is sent
between emission-related system modules and other modules on a
multiplexed bus);
(v) Manufacturer-specific emissions-related diagnostic trouble
codes (DTCs) and any related service bulletins, trouble shooting
guides, and/or repair procedures associated with these manufacturer-
specific DTCs; and
(vi) Information regarding how to obtain the information needed to
perform reinitialization of any vehicle computer or anti-theft system
following an emissions-related repair.
(6) Anti-theft system initialization information. Computer or anti-
theft system initialization information and/or related tools necessary
for the proper installation of on-board computers or necessary for the
completion of any emissions-related repair on motor vehicles that
employ integral vehicle security systems or the repair or replacement
of any other emission-related part shall be made available at a fair
and reasonable cost to the persons specified in paragraph (f)(2)(i) of
this section.
(i) Except as provided under paragraph (f)(6)(ii) of this section,
manufacturers must make this information available to persons specified
in paragraph (f)(2)(i) of this section, such that such persons will not
need any special tools or manufacturer-specific scan tools to perform
the initialization. Manufacturers may make such information available
through, for example, generic aftermarket tools, a pass-through device,
or inexpensive manufacturer specific cables.
(ii) A manufacturer may request Administrator approval for an
alternative means to re-initialize vehicles for some or all model year
vehicles through the 2007 model year by 1 month following the effective
date of the final rule. The Administrator shall approve the request
only after the following conditions have been met:
(A) The manufacturer must demonstrate that the availability of such
information to aftermarket service providers would significantly
increase the risk of vehicle theft.
(B) The manufacturer must make available a reasonable alternative
means to install or repair computers, or to otherwise repair or replace
an emission-related part.
(C) Any alternative means proposed by a manufacturer cannot require
aftermarket technicians to use a manufacturer-franchised dealership to
obtain information or special tools to re-initialize the anti-theft
system. All information must come directly from the manufacturer or a
single manufacturer-specified designee.
(D) Any alternative means proposed by and manufacturer must be
available to aftermarket technicians at a fair and reasonable price.
(E) Any alternative must be available to aftermarket technicians
within twenty-four hours of the initial request.
(F) Any alternative must not require the purchase of a special tool
or tools, including manufacturer-specific tools, to complete this
repair. Alternatives may include lease of such tools, but only for
appropriately minimal cost.
(G) In lieu of leasing their manufacturer-specific tool to meet
this requirement, a manufacturer may also release the necessary
information to equipment and tool manufacturers for incorporation into
aftermarket scan tools. Any manufacturer choosing this option must
release the information to equipment and tool manufacturers within 60
days of Administrator approval. Manufacturers may also

[[Page 38458]]

comply with this requirement using SAE J2534 for some or all model
years through model year 2007.
(7) Cost of required information. (i) All information required to
be made available by this section, shall be made available at a fair
and reasonable price. In determining whether a price is fair and
reasonable, consideration may be given to relevant factors, including,
but not limited to, the following:
(A) The net cost to the manufacturer-franchised dealerships for
similar information obtained from manufacturers, less any discounts,
rebates, or other incentive programs.
(B) The cost to the manufacturer for preparing and distributing the
information, excluding any research and development costs incurred in
designing and implementing, upgrading or altering the onboard computer
and its software or any other vehicle part or component. Amortized
capital costs for the preparation and distribution of the information
may be included.
(C) The price charged by other manufacturers for similar
information.
(D) The price charged by manufacturers for similar information
prior to the launch of manufacturer Web sites.
(E) The ability of aftermarket technicians or shops to afford the
information.
(F) The means by which the information is distributed.
(G) The extent to which the information is used, which includes the
number of users, and frequency, duration, and volume of use.
(H) Inflation.
(ii) By August 26, 2003, each manufacturer shall submit to the
Administrator a request for approval of their pricing structure for
their Web sites and amounts to be charged for the information required
to be made available under paragraphs (f)(3) and (f)(5) of this
section. Subsequent to the approval of the manufacturer Web site
pricing structure, each manufacturer shall notify the Administrator
upon the increase in price of any one or all of the subscription
options of 20 percent or more above the previously approved price,
taking inflation into account.
(A) The manufacturer shall submit a request to the Administrator
that sets forth a detailed description of the pricing structure and
amounts, and support for the position that the pricing structure and
amounts are fair and reasonable by addressing, at a minimum, each of
the factors specified in paragraph (f)(7)(i) of this section.
(B) The Administrator will act upon on the request within 180 days
following receipt of a complete request or following receipt of any
additional information requested by the Administrator.
(C) The Administrator may decide not to approve, or to withdraw
approval for a manufacturer's pricing structure and amounts based on a
conclusion that this pricing structure and/or amounts are not, or are
no longer, fair and reasonable, by sending written notice to the
manufacturer explaining the basis for this decision.
(D) In the case of a decision by the Administrator not to approve
or to withdraw approval, the manufacturer shall within three months
following notice of this decision, obtain Administrator approval for a
revised pricing structure and amounts by following the approval process
described in this paragraph (f)(7)(ii).
(8) Unavailable information. Any information which is not provided
at a fair and reasonable price shall be considered unavailable, in
violation of these regulations and section 202(m)(5) of the Clean Air
Act.
(9) Third-party information providers. By December 24, 2003,
manufacturers shall, for model year 2004 and later vehicles and
engines, make available to third-party information providers as defined
in paragraph (f)(2)(ii) of this section with whom they engage in
licensing or business arrangements;
(i) The required emissions-related information as specified in
paragraph (f)(5) of this section either:
(A) Directly in electronic format such as diskette or CD-ROM using
non-proprietary software, in English; or
(B) Indirectly via a Web site other than that required by paragraph
(f)(3) of this section;
(ii) For any manufacturer who utilizes an automated process in
their manufacturer-specific scan tool for diagnostic fault trees, the
data schema, detail specifications, including category types/codes and
vehicle codes, and data format/content structure of the diagnostic
trouble trees.
(iii) Manufacturers can satisfy the requirement of paragraph
(f)(9)(ii) of this section by making available diagnostic trouble trees
on their manufacturer Web sites in full-text.
(iv) Manufacturers are not responsible for the accuracy of the
information distributed by third parties. However, where manufacturers
charge information intermediaries for information, whether through
licensing agreements or other arrangements, manufacturers are
responsible for inaccuracies contained in the information they provide
to third-party information providers.
(10) Required emissions-related training information. By December
24, 2003, for emissions-related training information, manufacturers
shall:
(i) Video tape or otherwise duplicate and make available for sale
on manufacturer Web sites within 30 days after transmission any
emissions-related training courses provided to manufacturer-franchised
dealerships via the Internet or satellite transmission;
(ii) Provide on the manufacturer Web site an index of all
emissions-related training information available for purchase by
aftermarket service providers for 1994 and newer vehicles. For model
years subsequent to 2003, the required information must be made
available for purchase within 3 months of model introduction and then
must be made available at the same time it is made available to
manufacturer-franchised dealerships, whichever is earlier. The index
shall describe the title of the course or instructional session, the
cost of the video tape or duplicate, and information on how to order
the item(s) from the manufacturer Web site. All of the items available
must be shipped within 24 hours of the order being placed and are to be
made available at a fair and reasonable price as described in section
(f)(7) of this section. Manufacturers unable to meet the 24 hour
shipping requirement under circumstances where orders exceed supply and
additional time is needed by the distributor to reproduce the item
being ordered, may exceed the 24 hour shipping requirement, but in no
instance can take longer than 14 days to ship the item.
(iii) Provide access to third-party training providers as defined
in paragraph (f)(2)(ii) of this section all emission-related training
courses transmitted via satellite or Internet offered to their
manufacturer-franchised dealerships. Manufacturers may not charge
unreasonable up-front fees to third-party training providers for this
access, but may require a royalty, percentage, or other arranged fee
based on per-use enrollment/subscription basis. Manufacturers may take
reasonable steps to protect any copyrighted information and are not
required to provide this information to parties that do not agree to
such steps.
(11) Timeliness and maintenance of information dissemination. (i)
General requirements. Subsequent to the initial launch of the
manufacturer's Web site, manufacturers must make the information
required under paragraph (f)(5) of this section available on their Web
site within six months of model introduction, or at the same time it is
made available to manufacturer-

[[Page 38459]]

franchised dealerships, whichever is earlier. After this six-month
period, the information must be available and updated on the
manufacturer Web site at the same time that the updated information is
made available to manufacturer-franchised dealerships, except as
otherwise specified in this section.
(ii) Archived information. Manufacturers must maintain the required
information on their Web sites in full-text as defined in paragraph
(f)(5) of this section for a minimum of 15 years after model
introduction. Subsequent to this fifteen year period, manufacturers may
archive the information in the manufacturer's format of choice and
provide an index of the archived information on the manufacturer Web
site and how it can be obtained by interested parties. Manufacturers
shall index their available information with a title that adequately
describes the contents of the document to which it refers.
Manufacturers may allow for the ordering of information directly from
their Web site, or from a Web site hyperlinked to the manufacturer Web
site. In the alternative, manufacturers shall list a phone number and
address where aftermarket service providers can call or write to obtain
the desired information. Manufacturers must also provide the price of
each item listed, as well as the price of items ordered on a
subscription basis. To the extent that any additional information is
added or changed for these model years, manufacturers shall update the
index as appropriate. Manufacturers will be responsible for ensuring
that all information, including information that is distributed through
information distributors, is provided within one regular business day
of receiving the order. Items that are less than 20 pages (e.g.
technical service bulletins) shall be faxed, if requested, to the
requestor and distributors are required to deliver the information
overnight if requested and paid for by the ordering party. Archived
information must be made available on demand and at a fair and
reasonable price.
(12) Reprogramming information. (i) Manufacturers shall make
available to the persons specified in paragraph (f)(2)(i) of this
section all emissions-related recalibration or reprogramming events
(including driveability reprogramming events that may affect emissions)
in the format of its choice at the same time they are made available to
manufacturer-franchised dealerships. This requirement takes effect on
September 25, 2003, and within 3 months of model introduction for all
new model years.
(ii) Manufacturers shall provide persons specified in paragraph
(f)(2)(i) of this section with an efficient and cost-effective method
for identifying whether the calibrations on vehicles are the latest to
be issued. This requirement takes effect on September 25, 2003, and
within 3 months of model introduction for all new model years.
(iii) For all 2004 and later OBD vehicles equipped with
reprogramming capability, manufacturers shall comply with SAE J2534
(Incorporated by reference, see Sec. 86.1). Any manufacturer who
cannot comply with SAE J2534 in model year 2004 may request one year
additional lead time from the Administrator.
(iv) For model years 2004 and later, manufacturers shall make
available to aftermarket service providers the necessary manufacturer-
specific software applications and calibrations needed to initiate
pass-through reprogramming. This software shall be able to run on a
standard personal computer that utilizes standard operating systems as
specified in SAE J2534 (Incorporated by reference, see Sec. 86.1).
(v) For model years prior to 2004, manufacturers may use SAE J2534
as described above, provided they make available to the aftermarket any
additional required hardware (i.e., cables). Manufacturers may not
require the purchase or use of a manufacturer-specific scan tool to
receive or use this additional hardware. Manufacturers must also make
available the necessary manufacturer-specific software applications and
calibrations needed to initiate pass-through reprogramming.
Manufacturers must also make available to equipment and tool companies
any information needed to develop aftermarket equivalents of the
manufacturer-specific hardware.
(vi) Manufacturers may take any reasonable business precautions
necessary to protect proprietary business information and are not
required to provide this information to any party that does not agree
to these reasonable business precautions. The requirement to make
hardware available and to release the information to equipment and tool
companies takes effect on September 25, 2003, and within 3 months of
model introduction for all new model years.
(vii) Manufacturers who cannot comply with paragraphs (f)(12)(v)
and (f)(12)(vi) of this section shall make available to equipment and
tool companies by September 25, 2003 the following information
necessary for reprogramming the ECU:
(A) The physical hardware requirements for reprogramming events or
tools (e.g. system voltage requirements, cable terminals/pins,
connections such as RS232 or USB, wires, etc.).
(B) ECU data communication (e.g. serial data protocols,
transmission speed or baud rate, bit timing requirements, etc.).
(C) Information on the application physical interface (API) or
layers (descriptions for procedures such as connection, initialization,
performing and verifying programming/download, and termination).
(D) Vehicle application information or any other related service
information such as special pins and voltages for reprogramming events
or additional vehicle connectors that require enablement and
specifications for the enablement.
(E) Information that describes what interfaces or combinations of
interfaces are used to deliver calibrations from database media (e.g.
PC using CDROM to the reprogramming device e.g. scan tool or black
box).
(viii) A manufacturer can propose an alternative to the
requirements of paragraph (f)(12)(vii) of this section for how
aftermarket service providers can reprogram an ECU. The Administrator
will approve this alternative if the manufacturer demonstrates all of
the following:
(A) That it cannot comply with paragraph (f)(12)(v) of this section
for the vehicles subject to the alternative plan;
(B) That a very small percentage of its vehicles in model years
prior to 2004 cannot be reprogrammed with the provisions described in
paragraph (f)(12)(v) of this section, or that releasing the information
to tool companies would likely not result in this information being
incorporated into aftermarket tools; and
(C) That aftermarket service providers will be able to reprogram
promptly at a reasonable cost.
(ix) In meeting the requirements of paragraphs (f)(12)(v) through
(f)(12)(vii) of this section, manufacturers may take any reasonable
business precautions necessary to protect proprietary business
information and are not required to provide this information to any
party that does not agree to these reasonable business precautions.
(13) Generic and enhanced information for scan tools. By September
25, 2003, manufacturers shall make available to equipment and tool
companies all generic and

[[Page 38460]]

enhanced service information including bi-directional control and data
stream information as defined in paragraph (f)(2)(ii) of this section.
This requirement applies for 2001 and later model year vehicles.
(i) The information required by this paragraph (f)(13) of this
section shall be provided electronically using common document formats
to equipment and tool companies with whom they have appropriate
licensing, contractual, and/or confidentiality arrangements. To the
extent that a central repository for this information (e.g. the TEK-NET
library developed by the Equipment and Tool Institute) is used to
warehouse this information, the Administrator shall have free
unrestricted access. In addition, information required by paragraph
(f)(13) of this section shall be made available to equipment and tool
companies who are not otherwise members of any central repository and
shall have access if the non-members have arranged for the appropriate
licensing, contractual and/or confidentiality arrangements with the
manufacturer and/or a central repository.
(ii) In addition to the generic and enhanced information defined in
paragraph (f)(2)(ii) of this section, manufacturers shall also make
available the following information necessary for developing generic
diagnostic scan tools:
(A) The physical hardware requirements for data communication (e.g.
system voltage requirements, cable terminals/pins, connections such as
RS232 or USB, wires, etc.)
(B) ECU data communication (e.g. serial data protocols,
transmission speed or baud rate, bit timing requirements, etc.),
(C) Information on the application physical interface (API) or
layers. (i.e., processing algorithms or software design descriptions
for procedures such as connection, initialization, and termination),
(D) Vehicle application information or any other related service
information such as special pins and voltages or additional vehicle
connectors that require enablement and specifications for the
enablement.
(iii) Any manufacturer who utilizes an automated process in its
manufacturer-specific scan tool for diagnostic fault trees shall make
available to equipment and tool companies the data schema, detail
specifications, including category types/codes and vehicle codes, and
data format/content structure of the diagnostic trouble trees.
(iv) Manufacturers can satisfy the requirement of this paragraph
(f)(13)(iii) by making available diagnostic trouble trees on their
manufacturer Web sites in full-text.
(14) Availability of manufacturer-specific scan tools.
Manufacturers shall make available for sale to the persons specified in
paragraph (f)(2)(i) of this section their own manufacturer-specific
diagnostic tools at a fair and reasonable cost. These tools shall also
be made available in a timely fashion either through the manufacturer
Web site or through a manufacturer-designated intermediary.
Manufacturers who develop different versions of one or more of their
diagnostic tools that are used in whole or in part for emission-related
diagnosis and repair shall insure that all emission-related diagnosis
and repair information is available for sale to the aftermarket at a
fair and reasonable cost. Manufacturers shall provide technical support
to aftermarket service providers for the tools described in this
section, either themselves or through a third party of its choice.
Factors for determining fair and reasonable cost include, but are not
limited to:
(i) The net cost to the manufacturer's franchised dealerships for
similar tools obtained from manufacturers, less any discounts, rebates,
or other incentive programs;
(ii) The cost to the manufacturer for preparing and distributing
the tools, excluding any research and development costs;
(iii) The price charged by other manufacturers of similar sizes for
similar tools;
(iv) The capabilities and functionality of the manufacturer tool;
(v) The means by which the tools are distributed;
(vi) Inflation;
(vii) The ability of aftermarket technicians and shops to afford
the tools.
(15) Changing content of manufacturer-specific scan tools.
Manufacturers who opt to remove non-emissions related content from
their manufacturer-specific scan tools and sell them to the persons
specified in paragraph (f)(2)(i) of this section shall adjust the cost
of the tool accordingly lower to reflect the decreased value of the
scan tool. All emissions-related content that remains in the
manufacturer-specific tool shall be identical to the information that
is contained in the complete version of the manufacturer specific tool.
Any manufacturer who wishes to implement this option must request
approval from the Administrator prior to the introduction of the tool
into commerce.
(16) Special tools. (i) Manufacturers who have developed special
tools to extinguish the malfunction indicator light (MIL) for Model
Years 2001 through 2003 shall make available the necessary information
to equipment and tool companies to design a comparable generic tool.
This information shall be made available to equipment and tool
companies no later than September 23, 2003.
(ii) Manufacturers are prohibited from requiring special tools to
extinguish the malfunction indicator light (MIL) beginning with Model
Year 2004.
(17) Reference materials. Manufacturers shall conform with the
following Society of Automotive Engineers (SAE) standards.
(i) For Web-based delivery of service information, manufacturers
shall comply with SAE Recommended Practice J1930 (Revised, May 1998),
``Electrical/Electronic Systems Diagnostic Terms, Definitions,
Abbreviations, and Acronyms'' (Incorporated by reference, see Sec.
86.1). This recommended practice standardizes various terms,
abbreviations, and acronyms associated with on-board diagnostics.
Manufacturers shall comply with SAE J1930 (Incorporated by reference,
see Sec. 86.1) beginning with Model Year 2004.
(ii) For identification and scaling information necessary to
interpret and understand data available to a generic scan tool through
``mode 6'', manufacturers shall comply with SAE Recommended Practice
J1979 (Revised, September, 1997), ``EE Diagnostic Test Modes''
(Incorporated by reference, see Sec. 86.1). This recommended practice
describes the implementation of the diagnostic test modes for
emissions-related test data. Manufacturers shall comply with SAE J1979
beginning with Model Year 2004.
(iii) For allowing ECU and equipment and tool manufacturers to
satisfy the needs of multiple end users with minimum modification to a
basic ECU design, manufacturers shall comply with SAE Recommended
Practice J2284-3 (May, 2001), ``High Speed CAN (HSC) for Vehicle
Applications at 500 KBPS'' (Incorporated by reference, see Sec. 86.1).
SAE J2284-3 establishes standard ECU physical layer, data link layer,
and media design criteria. Manufacturers may comply with SAE J2284-3
beginning with model year 2003 and shall comply with SAE J2284-3
beginning with model year 2008.
(iv) For pass-through reprogramming capabilities, manufacturers
shall comply with SAE Recommended Practice J2534 (February, 2002),
``Recommended Practice for Pass-Thru Vehicle Programming''
(Incorporated by reference, see Sec. 86.1). This

[[Page 38461]]

recommended practice provides technical specifications and information
that manufacturers must supply to equipment and tool companies to
develop aftermarket pass-through reprogramming tools. Manufacturers
shall comply with SAE J2534 beginning with model year 2004.
(18) Reporting requirements. Manufacturers shall provide to the
Administrator reports on an annual basis within 30 days of the end of
the calendar year and upon request of the Administrator, that describe
the performance of their individual Web sites. These annual reports
shall be submitted to the Administrator electronically utilizing non-
proprietary software in the format as agreed to by the Administrator
and the manufacturers. Manufacturers may request Administrator approval
to report on parameters other than those described below if the
manufacturer can demonstrate that those alternate parameters will
provide sufficient and similar information for the Administrator to
effectively evaluate the manufacturer Web site. These annual reports
shall include, at a minimum, monthly measurements of the following
parameters:
(i) Total successful requests (measured in number of files
including graphic interchange formats (GIFs) and joint photographic
expert group (JPEG) images, i.e. electronic images such as wiring or
other diagrams or pictures). This is defined as the total successful
request counts of all the files which have been requested, including
pages, graphics, etc.
(ii) Total failed requests (measured in number of files). This is
defined as the total failed request counts of all the files which were
requested but failed because they could not be found or were read-
protected. This includes pages, graphics, etc.
(iii) Average data transferred per day (measured by bytes). This is
defined as average amount of data transferred per day from one place to
another.
(iv) Daily Summary (measured in number of files/pages by day of
week). This is defined as the total number of requests each day of the
week, over the time period given at the beginning of the report.
(v) Daily report (measured in number of files/pages by the day of
the month). This is defined as how many requests there were in each day
of a specific month.
(vi) Browser Summary (measured in number of files/pages by browser
type, i.e., Netscape, Internet Explorer). This is defined as the
versions of a browser by vendor.
(vii) Any other information deemed necessary by the Administrator
to determine the adequacy of an manufacturer Web site.
(19) Prohibited Acts, Liability and Remedies. (i) It is a
prohibited act for any person to fail to promptly provide or cause a
failure to promptly provide information as required by this paragraph
(f), or to otherwise fail to comply or cause a failure to comply with
any provision of this paragraph (f).
(ii) Any person who fails or causes the failure to comply with any
provision of this paragraph (f) is liable for a violation of that
provision. A corporation is presumed liable for any violations of this
subpart that are committed by any of its subsidiaries, affiliates or
parents that are substantially owned by it or substantially under its
control.
(iii) Any person who violates a provision of this paragraph (f)
shall be subject to a civil penalty of not more than $ 31,500 per day
for each violation. This maximum penalty is shown for calendar year
2002. Maximum penalty limits for later years may be set higher based on
the Consumer Price Index, as specified in 40 CFR part 19. In addition,
such person shall be liable for all other remedies set forth in Title
II of the Clean Air Act, remedies pertaining to provisions of Title II
of the Clean Air Act, or other applicable provisions of law.

0
10. Section 86.1808-07 is amended by revising paragraphs (a) through
(f) to read as follows:

Sec. 86.1808-07 Maintenance instructions.

* * * * *
(a) through (e) [Reserved]. For guidance see Sec. 86.1808-1.
(f) [Reserved]. For guidance see Sec. 86.1808-1. For incorporation
by reference see Sec. Sec. 86.1 and 86.1808-1.
* * * * *

[FR Doc. 03-14461 Filed 6-26-03; 8:45 am]

BILLING CODE 6560-50-P