MSO #2002-02

State of California

Notice of Public Availability of Modified Text


Public Hearing Date: December 13, 2001
Internet Posting Date: March 22, 2002
Public Availability Date: March 29, 2002
Deadline for Public Comment: April 15, 2002

At its December 13, 2001, public hearing, the Air Resources Board (the "Board" or "ARB") approved the adoption of section 1969, Title 13, California Code of Regulations (CCR), and sections 60060.1 through 60060.34, Title 17, CCR, which respectively provide the requirements and administrative hearing procedures for the availability of emission-related service information in California. The proposed regulations implement the legislative directives of Senate Bill No. 1146, Chapter 1077, which was approved by the Governor on September 30, 2000.

At the hearing, the Board adopted Resolution 01-55 (A copy of the adopted resolution is attached hereto as Attachment 1) approving the proposed regulations with modifications. Within the resolution, the Board directed the Executive Officer to adopt the proposed regulations after making available for public comment all changes specifically directed by the Board and any other necessary changes to the regulatory language as originally proposed in the Staff Report released on October 26, 2001. The Board further directed that the Executive Officer make available for comment any additional supporting documents and information relied upon by the ARB in adopting these regulations. The modifications specifically directed by the Board prior to adopting the Resolution are summarized below. All proposed modifications are set forth in detail in Attachments 2 and 3.

- Title 13, California Code of Regulations

§1969(c)(3): The definition of "covered person" has been modified. The scope of the definition has been modified to include only persons falling in one of four designated categories: (1) persons licensed with the Bureau of Automotive Repair, (2) persons engaged in the service and repair of vehicles belonging to a business fleet, (3) tool and equipment companies, and (4) persons engaged in the manufacturer or remanufacturer of emission-related parts. The definition is in accord with the purpose and intent of the Legislature in enacting SB1146. All parties to the regulatory proceedings acknowledge that commercial businesses and government entities that repair and service their own vehicle fleets have as much need for service information as service and repair facilities that are licensed or registered with the Bureau of Automotive Repair. Also, the Legislature specifically provided equipment and tool companies with access to information under the regulations as prescribed by Health and Safety Code Section 43105.5(a)(2). As parties entitled to information, they should be included within the definition of covered persons and afforded the rights and responsibilities provided to covered persons under the statute and regulations.

§1969(f): This section has been subdivided into three distinct headings: Diagnostic and Reprogramming Tools; Data Stream and Bi-Directional Control Information; and Reprogramming Information. Language has been added to the paragraph for data stream and bi-directional information to give motor vehicle manufacturers the right to petition the Executive Officer for approval to refuse to provide such information to specific tool and equipment companies based on a reasonable belief that the requesting company will not produce safe and functionally accurate diagnostic tools. Under the proposed modification, the Executive Officer could approve such a petition, after consultation with the affected parties, upon a determination that the belief is indeed reasonable. If not, the motor vehicle manufacturer would have to make the information available within 2 days of the refusal of the petition.

Further, for the above three headings, motor vehicle manufacturers would have to make the required tools or information available through reasonable business means within a reasonable time (as specified in the modified text).

§1969(j)(9): As initially proposed, this paragraph would permit the Executive Officer to reject a compliance plan if that plan would not bring the motor vehicle manufacturer into compliance within 45 days once it is approved. The language has been modified to make paragraph (j)(9) consistent with paragraph (j)(8), which provides that, if necessary, the Executive Officer may provide manufacturers with additional time beyond 45 days to come into compliance.

In addition to the above changes, the staff is proposing additional minor amendments to the initially proposed regulations:

§1969(a): The applicability of the service information regulations is to passenger cars, light-duty trucks, and medium-duty vehicles that are certified to the requirements for second-generation on-board diagnostic (OBD II) systems. Language has been added to also include passenger cars, light-duty trucks, and medium-duty vehicles that comply with any future OBD requirements adopted by the ARB.

§1969(c)(5): The definition of "days" has been clarified. Except as provided below, the modifications would make clear that if the last permitted day to exercise a right or to perform an act falls on a Saturday, Sunday, or California-recognized holiday observed by the motor vehicle manufacturer, the deadline would be the next day. However, for purposes of section 1969(e), deadlines that fall on a Saturday would not be extended to the next day, unless the Saturday was a California-recognized holiday observed by the manufacturer. This exception is consistent with the language proposed at the December 2001 Board hearing. The requirement that responses to e-mail inquiries should be made within two days, including Saturdays, recognizes the fact that many independent service and repair facilities are open for business on Saturdays and that information to effectively service and repair vehicles should be provided as expeditiously as possible. Further, for purposes of consistency, all references to "48 hours" have been changed to "2 days."

§1969(c)(10): The definition of "fair, reasonable, and nondiscriminatory price" is based on eight factors that must be considered when determining the appropriateness of costs charged by a motor vehicle manufacturer for emission-related service information. In contrast, the U.S. EPA's proposed amendments to its own service information regulations place specific caps on the monetary amounts a manufacturer can charge a covered person using its service information website. Although the proposed ARB regulations do not set specific cap limits, the staff believes that the pricing structure eventually adopted by the U.S. EPA is relevant and should be included as another factor in considering what is a "fair, reasonable, and nondiscriminatory price." This proposal would provide additional consistency with federal requirements.

§1969(d)(3): As proposed, this section would provide manufacturers with lead time through the 2004 model year to provide computer or anti-theft system initialization information and/or tools to covered persons. The added lead time is subject to Executive Officer approval, and conditioned upon the manufacturer providing reasonable alternative means to achieve the objectives of the requirement. Based on manufacturers' continued lead time concerns, and the staff's belief that lead time through the 2004 model year does not provide sufficient time for manufacturers to address their initialization concerns in a practical manner, the section has been modified to extend the lead time provision through the 2007 model year.

In conjunction with the above modification, the staff is also proposing to modify the conditional requirement that manufacturers requesting lead time provide the independent service and repair industry with alternative means to initialize vehicles. The requirement has been modified to additionally require manufacturers to demonstrate that the proposed alternative would not put the independent service and repair industry, as a class, at a competitive disadvantage (as compared to franchised dealerships) in its ability to carry out repairs involving the initialization of vehicle anti-theft systems. The Executive Officer would have authority to audit previously issued approvals in accordance with paragraph (j) and have them rescinded if evidence produced at a hearing held before the Executive Officer demonstrated that the service and repair industry, as a class, has been placed at a competitive disadvantage. In such cases, the Executive Officer would require the manufacturer to provide the independent service and repair industry with all initialization information and/or related tools required under section 1969(d)(3).

§1969(e)(1): The responsibilities of vehicle manufacturers that transition out of the regulatory provision for small volume manufacturers have been clarified. The proposed modification makes clear that manufacturers are not required to retroactively post service information on the internet for vehicle models produced before manufacturer sales exceeded an average of 300 vehicles for three consecutive model years. Further, the manufacturer would not have to provide direct Internet access to service information for vehicle models in carry-over test groups that were initially certified while the small volume provision was in effect. This modification is being made to prevent an affected manufacturer from having to re-format existing service information for direct Internet access when such information has already been made available through alternate reasonable business means.

§1969(f)(2): The reference to Society of Automotive Engineers (SAE) Recommended Practice J2534 has been updated to incorporate the finalized document into the regulations. The official publication date is February 2002.

§1969(h): For clarity, the term "emission-related part" has been replaced with "emissions-related motor vehicle part." With the modification, the term is identical to that defined by the Health and Safety Code, and Title 13, CCR, section 1969(c)(7).

§1969(i): The trade secret portion of the regulations has been modified for clarity and also to require the disclosure of requested information in the event a motor vehicle manufacturer makes a determination that the information is not a trade secret during the 14-day period provided in the regulations for notifying the covered person.

§1969(l)(1): Language has been added to clarify that a noncomplying motor vehicle manufacturer may be assessed penalties for each calendar day of noncompliance, including Saturdays, Sundays, and holidays, after the 30 day grace period to correct the violation has passed.

- Title 17, California Code of Regulations

§60060.8(d): This section has been modified to correct an inadvertent omission regarding the hearing officer's ability to impose conditions on intervenors who are granted the right to participate under paragraph (c) as well as paragraph (b).

Staff has made other minor modifications throughout the Title 13 and Title 17 regulations to improve clarity, and to correct citations and references.

The ARB is also adding the following documents to the rulemaking record. The ARB staff relied upon these documents in adopting the service information regulations.

Letter sent from the Honorable John L. Burton, President Pro Tempore of the California State Senate, to Tom Cackette, ARB Deputy Executive Officer, dated August 21, 2001.

SAE Recommended Practice J2534, "Recommended Practice for Pass-Thru Vehicle Programming", February 2002.

The text of the modified language to section 1969, Title 13, CCR, and sections 60060.1 through 60060.34, Title 17, CCR, are attached as Attachments 2 and 3, respectively. Additions to the originally proposed language are shown in underline and deletions are shown in strikeout. The other materials referenced in the regulatory language are available for public inspection from the Clerk of the Board at 1001 "I" Street, 23rd floor, Sacramento, California 95814.

All of the aforementioned attachments may be obtained from the Internet at the address below:


The other materials referenced in the regulatory language are available for public inspection from the Clerk of the Board at 1001 "I" Street, 23rd floor, Sacramento, California 95814.

In accordance with section 11346.8 of the Government Code, the Board directed the Executive Officer to adopt section 1969, Title 13, CCR, and sections 60060.1 through 60060.34, Title 17, CCR, after making them available to the public for comment for a period of at least 15 days. The Board further provided that the Executive Officer shall consider such written comments as may be submitted during this period, shall make such modifications as may be appropriate in light of the comments received, and shall present the regulations to the Board for further consideration if warranted.

Written comments on the modifications must be submitted by postal mail, electronic mail, or facsimile as follows:

Postal mail must be sent to:

Clerk of the Board
Air Resources Board
P.O. Box 2815
Sacramento, California 95812

Electronic mail is to be sent to:

Facsimile submissions are to be transmitted to the Clerk of the Board at: (916) 322-3928.

All comments shall be received no later than April 15, 2002, for consideration by the Executive Officer prior to final action. Only comments relating to the above described modifications to the regulations shall be considered by the Executive Officer.



Allen Lyons, Chief
New Vehicle / Engine Programs Branch
Mobile Source Operations Division


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