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(continued)
(1.3) Test Equipment: For the testing required in section (j)(1), manufacturers shall utilize an off-board device to conduct the testing. Prior to conducting testing, manufacturers are required to request and receive Executive Officer approval of the off-board device that the manufacturer will use to perform the testing. The Executive Officer shall approve the request upon determining that the manufacturer has submitted data, specifications, and/or engineering analysis that demonstrate that the off-board device will verify vehicles will be able to perform all of the required functions in section (j)(1.4) with any other off-board device designed and built in accordance with the SAE J1978 generic scan tool specifications.
(1.4) Required Testing:
(1.4.1) The testing shall verify that the vehicle can properly establish communications between all emission-related on-board computers and any SAE J1978 scan tool designed to adhere strictly to the communication protocols allowed in section (f)(3);
(1.4.2) The testing shall further verify that the vehicle can properly communicate to any SAE J1978 scan tool:
(A) The current readiness status from all on-board computers required to support readiness status in accordance with SAE J1979 and section (f)(4.1) while the engine is running;
(B) The MIL command status while the MIL is commanded off and while the MIL is commanded on in accordance with SAE J1979 and section (f)(4.2) while the engine is running, and in accordance with SAE J1979 and sections (d)(2.1.2) during the MIL functional check and, if applicable, (f)(4.1.3) during the MIL readiness status check while the engine is off;
(C) All data stream parameters required in section (f)(4.2) in accordance with SAE J1979 including the identification of each data stream parameter as supported in SAE J1979 (e.g., Mode/Service $01, PID $00);
(D) The CAL ID, CVN, and VIN (if applicable) in accordance with SAE J1979 and sections (f)(4.6) through (4.8);
(E) An emission-related fault code (both confirmed and pending) in accordance with SAE J1979 (including correctly indicating the number of stored fault codes (e.g., Mode/Service $01, PID $01, Data A)) and section (f)(4.4);
(1.4.3) The testing shall also verify that the vehicle can properly respond to any SAE J1978 scan tool request to clear emission-related fault codes and reset readiness status.
(1.5) Reporting of Results:
(1.5.1) The manufacturer shall notify the Executive Officer within one month of identifying any vehicle that does not meet the requirements of section (j)(1.4). The manufacturer shall submit a written report of the problem(s) identified and propose corrective action (if any) to remedy the problem(s) to the Executive Officer for approval. Factors to be considered by the Executive Officer in approving the proposed corrective action shall include the severity of the problem(s), the ability of the vehicle to be tested in an I/M program, the ability of service technicians to access the required diagnostic information, the impact on equipment and tool manufacturers, and the amount of time prior to implementation of the proposed corrective action.
(1.5.2) Upon request of the Executive Officer, a manufacturer shall submit a report of the results of any testing conducted pursuant to section (j)(1) to the Executive Officer for review.
(1.5.3) In accordance with section (i)(6), manufacturers may request Executive Officer approval for a retroactive deficiency to be granted for items identified during this testing.
(2) Verification of Monitoring Requirements.
(2.1) For 2004 and subsequent model year vehicles, within the first six months after normal production begins, manufacturers shall conduct a complete evaluation of the OBD II system of one or more production vehicles (test vehicles) and submit the results of the evaluation to the Executive Officer.
(2.2) Selection of test vehicles:
(2.2.1) Prior to submitting any applications for certification for a model year, a manufacturer shall notify the Executive Officer of the test groups planned for that model year. The Executive Officer will then select the test group(s), in accordance with sections (j)(2.2.2) and (j)(2.2.3) below, that the manufacturer shall use as test vehicles to provide evaluation test results. This selection process may take place during durability demonstration test vehicle selection specified in section (g).
(2.2.2) A manufacturer shall evaluate one production vehicle per test group selected for monitoring system demonstration in section (g).
(2.2.3) In addition to the vehicles selected in section (j)(2.2.2) above, a manufacturer shall evaluate vehicles chosen from test groups that are not selected for monitoring system demonstration testing under section (g). The number of additional vehicles to be tested shall be equal to the number of vehicles selected for monitoring system demonstration in section (g).
(2.2.4) The Executive Officer may waive the requirements for submittal of evaluation results from one or more of the test groups if data has been previously submitted for all of the test groups.
(2.3) Evaluation requirements:
(2.3.1) The evaluation shall demonstrate the ability of the OBD II system on the selected production vehicle to detect a malfunction, illuminate the MIL, and store a confirmed fault code when a malfunction is present and the monitoring conditions have been satisfied for each individual diagnostic required by title 13, CCR section 1968.2.
(2.3.2) The evaluation shall verify that malfunctions detected by non-MIL illuminating diagnostics of components used to enable any other OBD II system diagnostic (e.g., fuel level sensor) will not inhibit the ability of other OBD II system diagnostics to properly detect malfunctions.
(2.3.3) On vehicles so equipped, the evaluation shall verify that the software used to track the numerator and denominator for purposes of determining in-use monitoring frequency correctly increments as required in section (d)(4).
(2.3.4) Malfunctions may be mechanically implanted or electronically simulated but internal on-board computer hardware or software changes may not be used to simulate malfunctions. Emission testing to confirm that the malfunction is detected before the appropriate emission standards are exceeded is not required.
(2.3.5) Manufacturers shall submit a proposed test plan for Executive Officer approval prior to evaluation testing being performed. The test plan shall identify the method used to induce a malfunction in each diagnostic. If the Executive Officer determines that the requirements of section (j)(2) are satisfied, the proposed test plan shall be approved.
(2.3.6) Subject to Executive Officer approval, manufacturers may omit demonstration of specific diagnostics. The Executive Officer shall approve a manufacturer's request if the demonstration cannot be reasonably performed without causing physical damage to the vehicle (e.g., on-board computer internal circuit faults).
(2.3.7) For evaluation of test vehicles selected in accordance with section (j)(2.2.2), manufacturers are not required to demonstrate diagnostics that were previously demonstrated prior to certification as required in section (g).
(2.4) Manufacturers shall submit a report of the results of all testing conducted pursuant to section (j)(2) to the Executive Officer for review. This report shall identify the method used to induce a malfunction in each diagnostic, the MIL illumination status, and the confirmed fault code(s) stored.
(2.5) In accordance with section (i)(6), manufacturers may request Executive Officer approval for a retroactive deficiency to be granted for items identified during this testing.
(3) Verification and Reporting of In-use Monitoring Performance.
(3.1) Manufacturers are required to collect and report in-use monitoring performance data representative of every test group certified by the manufacturer and equipped with in-use monitoring performance tracking software in accordance with section (d)(4) to the ARB within six months from either the time vehicles in the test group were first introduced into commerce or the start of normal production for such vehicles, whichever is later. The manufacturer may propose to the Executive Officer that multiple test groups be combined to collect representative data. Executive Officer approval shall be granted upon determining that the proposed groupings include test groups using the same OBD II strategies and similar calibrations and that are expected to have similar in-use monitoring performance. If approved by the Executive Officer, the manufacturer may submit one set of data for each of the approved groupings.
(3.2) For each test group or combination of test groups, the data must include all of the in-use performance tracking data reported through SAE J1979 (i.e., all numerators, denominators, and the ignition cycle counter), the date the data was collected, the vehicle VIN, and the ECM software calibration identification number.
(3.3) Manufacturers shall submit a plan to the Executive Officer for review and approval of the sampling method, number of vehicles to be sampled, time line to collect the data, and reporting format. The Executive Officer shall approve the plan upon determining that it provides for effective collection of data from a representative sample of vehicles that, at a minimum, is fifteen vehicles, will likely result in the collection and submittal of data within the required six month time frame, will generate data that are representative of California drivers and temperatures, and does not, by design, exclude or include specific vehicles in an attempt to collect data only from vehicles with the highest in-use performance ratios.
(3.4) Upon request of the manufacturer, the Executive Officer may for good cause extend the six month time requirement set forth in section (j)(3.1) up to a maximum of twelve months. In granting additional time, the Executive Officer shall consider, among other things, information submitted by the manufacturer to justify the delay, sales volume of the test group(s), and the sampling mechanism utilized by the manufacturer to procure vehicles. If an extension beyond six months is granted, the manufacturer shall additionally be required to submit an interim report within six months for data collected up to the time of the interim report.
(3.5) Upon request of the manufacturer, the Executive Officer may reduce the minimum sample size of fifteen vehicles set forth in section (j)(3.3) for test groups with low sales volume. In granting approval of a sampling plan with a reduced minimum sample size, the Executive Officer shall consider, among other things, information submitted by the manufacturer to justify the smaller sample size, sales volume of the test group(s), and the sampling mechanism utilized by the manufacturer to procure vehicles.
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[FN1] Unless otherwise noted, all section references refer to section 1968.2 of title 13, CCR.
[FN2] The requirements of section (f)(4.7) shall supercede the requirements set forth in title 13, CCR section 1968.1(l)(4.0).


Note: Authority cited: Sections 39600, 39601, 43000.5, 43013, 43018, 43100, 43101, 43104, 43105, 43105.5 and 43106, Health and Safety Code. Reference: Sections 39002, 39003, 39010, 39018, 39021.5, 39024, 39024.5, 39027, 39027.3, 39028, 39029, 39031, 39032, 39032.5, 39033, 39035, 39037.05, 39037.5, 39038, 39039, 39040, 39042, 39042.5, 39046, 39047, 39053, 39054, 39058, 39059, 39060, 39515, 39600-39601, 43000, 43000.5, 43004, 43006, 43013, 43016, 43018, 43100, 43101, 43102, 43104, 43105, 43105.5, 43106, 43150, 43151, 43152, 43153, 43154, 43155, 43156, 43204, 43211 and 43212, Health and Safety Code.



s 1968.5. Enforcement of Malfunction and Diagnostic System Requirements for 2004 and Subsequent Model-Year Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles and Engines.
(a) General
(1) Applicability.
(A) These procedures shall be used to assure compliance with the requirements of title 13, California Code of Regulations (CCR) section 1968.2 for all 2004 and subsequent model year vehicles equipped with OBD II systems that have been certified for sale in California.
(B) Vehicles manufactured prior to the 2004 model year are covered by the general enforcement and penalty provisions of the Health and Safety Code, and the specific provisions of title 13, CCR sections 1968.1 and 2111 through 2149.
(2) Purpose. The purpose of this section is to establish the enforcement protocol that shall be used by the ARB to assure that vehicles certified for sale in California are equipped with OBD II systems that properly function and meet the purposes and requirements of title 13, CCR section 1968.2.
(3) Definitions. The definitions applicable to these rules include those set forth in Health and Safety Code section 39010 et seq. and in title 13, CCR sections 1900(b) and 1968.2(b), which are incorporated by reference herein. The following definitions are specifically applicable to section 1968.5 and take precedence over any contrary definitions.
(A) "Days", when computing any period of time, unless otherwise noted, means normal working days that a manufacturer is open for business.
(B) "Executive Officer" means the Executive Officer of the Air Resources Board or his or her authorized representative.
(C) "Influenced OBD II-Related Recall" means an inspection, repair, adjustment, or modification program initiated and conducted by a manufacturer as a result of enforcement testing conducted by the ARB or any other information for the purpose of correcting any nonconforming OBD II system for which direct notification of vehicle or engine owners is necessary.
(D) "Major Monitor" means those monitors covered by the requirements set forth in title 13, CCR section 1968.2(e)(1.0) through (e)(8.0), (e)(11.0) through (e)(15.0), and (e)(17.0).
(E) "Motor Vehicle Class" means a group or set of vehicles or engines subject to enforcement testing that have been determined by the Executive Officer to share common or similar hardware, software, OBD II monitoring strategy, or emission control strategy.
(F) "Motor Vehicle Manufacturer" means the manufacturer granted certification to sell motor vehicles in the State of California.
(G) "Nonconforming OBD II System" means an OBD II system on a production vehicle that has been determined not to comply with the requirements of title 13, CCR section 1968.2. For purposes of section 1968.5, a motor vehicle class shall be considered nonconforming irrespective of whether vehicles in the motor vehicle class, on average, meet applicable tailpipe or evaporative emission standards.
(H) "OBD II Emission Testing" refers to testing conducted to determine compliance with the malfunction criteria in title 13, CCR section 1968.2(e) that are based on a multiple of a tailpipe emission standard (e.g., 1.5 times the applicable FTP emission standards).
(I) "OBD II Ratio Testing" refers to testing conducted to determine compliance with the required in-use monitor performance ratio in title 13, CCR section 1968.2(d)(3.2.1).
(J) "Ordered OBD II-Related Recall" means an inspection, repair, adjustment, or modification program required by the ARB to be conducted by the manufacturer to correct any nonconforming OBD II system for which direct notification of vehicle or engine owners is necessary.
(K) "Quarterly Reports" refer to the following calendar periods: January 1 - March 31; April 1 - June 30; July 1 - September 30; October 1 - December 31.
(L) "Test Sample Group" means a group of production vehicles in a designated motor vehicle class that are equipped with OBD II systems and are selected and tested as part of the ARB enforcement testing program set forth in section (b).
(M) "Voluntary OBD II-Related Recall" means an inspection, repair, adjustment, or modification program voluntarily initiated and conducted by a manufacturer to correct any nonconforming OBD II system for which direct notification of vehicle or engine owners is necessary.
(b) Testing Procedures
(1) Purpose. To assure that OBD II systems on production motor vehicles and engines comply with the requirements of title 13, CCR section 1968.2, the ARB may periodically evaluate vehicles and engines from a motor vehicle class.
(2) Preliminary Testing and Evaluation.
(A) As part of his or her evaluation of vehicles to determine compliance with the requirements of title 13, CCR section 1968.2, the Executive Officer may routinely conduct testing on any production vehicles that have been certified for sale in California.
(B) Based upon such testing or any other information, including data from California or other State Inspection and Maintenance (I&M) stations, warranty information reports, and field information reports, the Executive Officer may conduct enforcement testing pursuant to sections (b)(3) through (5) below.
(3) Vehicle Selection for Enforcement Testing.
(A) Determining the Motor Vehicle Class.
(i) Upon deciding to conduct enforcement testing, the Executive Officer shall determine the motor vehicle class to be tested. In determining the scope of the motor vehicle class to be tested, the Executive Officer shall consider the similarities and differences in the OBD II systems of potentially affected vehicles. Among other things, the Executive Officer shall consider whether vehicles share similar computer hardware and software, calibrations, or OBD II monitoring and emission control strategies.
(ii) The default motor vehicle class is the test group or OBD II group used by the manufacturer to certify the vehicles to be tested. However, upon concluding that a subgroup of vehicles differs from other vehicles in the identified test group or OBD II group and that a reasonable basis exists to believe that the differences may directly impact the type of testing that will be performed, the Executive Officer may determine that a subgroup of the test group or OBD II group is the appropriate motor vehicle class for testing.
(iii) Similarly, upon concluding that vehicles from several OBD II groups (which may include OBD II groups from different model years) share such common characteristics that a reasonable basis exists to believe that results of enforcement testing may be applicable to a motor vehicle class larger than a specific test group or OBD II group, the Executive Officer may determine that the appropriate motor vehicle class includes more than one test group or OBD II group.
(iv) Except for testing to determine if an OBD II system has been designed to deactivate based on age and/or mileage (title 13, CCR section 1968.2 (d)(1.3)), the Executive Officer may not conduct testing of a motor vehicle class whose vehicles, on average, exceed the defined full useful life of the motor vehicle class. For purposes of the determination of this average, the Executive Officer shall use the accrual rates appropriate for vehicles in the motor vehicle class as defined in EMFAC2000 "Public Meeting to Consider Approval of Revisions to the State's On-Road Motor Vehicle Emissions Inventory: Technical Support Document, Section 7.1, 'Estimation of Average Mileage Accrual Rates from Smog Check Data,"' May 2000, incorporated by reference.
(B) Size of Test Sample Group. After determining the motor vehicle class to be tested, the Executive Officer shall determine the appropriate number of vehicles to include in the test sample group for enforcement testing in accordance with the following guidelines:
(i) For OBD II emission testing, the Executive Officer shall follow the provisions of title 13, CCR section 2137 regarding test sample size. In accordance with section 2137, the Executive Officer shall test 10 vehicles that have been procured following the protocol of section (b)(3)(C) below and meet the selection criteria of section (b)(3)(D)(i) below to determine the emissions characteristics of the motor vehicle class being tested.
(ii) For OBD II ratio testing, the Executive Officer shall collect data from a test sample group of 30 vehicles that have been procured following the protocol of section (b)(3)(C) below and meet the selection criteria of section (b)(3)(D)(ii) below to determine the in-use OBD II monitoring performance of the motor vehicle class being tested.
(iii) In determining compliance with any other requirements of title 13, CCR section 1968.2 (e.g., diagnostic connector location, communication protocol standards, MIL illumination protocol, evaporative system diagnostics, etc.), the Executive Officer shall determine, on a case by case basis, the number of vehicles meeting the selection criteria of section (b)(3)(D)(iii) needed to assure that the results of such testing may be reasonably inferred to the motor vehicle class. The Executive Officer's determination shall be based upon the nature of the noncompliance and the scope of the motor vehicle class. The test sample group could be as few as two test vehicles.
(C) Protocol for Procuring Vehicles for Test Sample Group.
(i) For OBD II emission and ratio testing, the Executive Officer shall procure vehicles consistent with the procurement process followed by the Executive Officer under title 13, CCR section 2137 (e.g., obtaining lists of all vehicles in the motor vehicle class within a specified geographical area, mailing postcards soliciting participation of vehicles within the specified area, selecting vehicles from those that responded to the solicitation, inspecting selected vehicles to determine whether appropriate to include in sample group, etc.). In selecting vehicles for OBD II emission testing, the Executive Officer shall include only vehicles meeting the criteria set forth in section (b)(3)(D)(i) below. For OBD II ratio testing, the Executive Officer shall include only vehicles meeting the criteria set forth in section (b)(3)(D)(ii) below.
(ii) For all other testing, the Executive Officer shall, on a case by case basis, determine the appropriate manner for procuring vehicles. In making his or her determination, the Executive Officer shall consider the nature of the noncompliance and the scope of the motor vehicle class. If the Executive Officer concludes that a reasonable basis exists to believe that a vehicle operator's driving or maintenance habits would not substantially impact test results to determine noncompliance, he or she may procure vehicle(s) by any means that assures effective collection and testing of vehicles (e.g., rental car agencies, fleet vehicles, etc.). In all cases, however, the selection process must ensure proper selection of vehicles in accord with section (b)(3)(D)(iii) below.
(D) Vehicles to be included in a Test Sample Group.
(i) In selecting vehicles to be included in a test sample group for enforcement OBD II emission testing, the Executive Officer shall include only vehicles that:
a. Are certified to the requirements of title 13, CCR section 1968.2 and California exhaust emission standards.
b. Are registered for operation in California.
c. Have mileage that is equal to or less than 75 percent of the certified full useful life mileage and have an age of less than the certified full useful life age for the subject vehicles.
d. Have not been tampered with or equipped with add-on or modified parts that would cause the OBD II system not to comply with the requirements of title 13, CCR section 1968.2 or would have a permanent effect on exhaust emission performance.
e. Have not been subjected to abuse (e.g., racing, overloading, misfueling) neglect, improper maintenance, or other factors that would cause the OBD II system not to comply with the requirements of title 13, CCR section 1968.2 or would have a permanent effect on exhaust emission performance.
f. Have no detected or known malfunction(s) that would affect the performance of the OBD II system and are unrelated to the monitor or system being evaluated. At its discretion, the ARB may elect to repair a vehicle with a detected or known malfunction and then include the vehicle in the test sample group.
g. Have had no major repair to the engine or major repair of the vehicle resulting from a collision.
h. Have no problem that might jeopardize the safety of laboratory personnel.
(ii) In selecting vehicles to be included in a test sample group for enforcement OBD II ratio testing, the Executive Officer shall include only vehicles that:
a. Are certified to the requirements of title 13, CCR section 1968.2.
b. Have collected sufficient vehicle operation data for the monitor to be tested. For monitors required to meet the in-use monitor performance ratio and to track and report ratio data pursuant to title 13, CCR section 1968.2(d)(3.2), sufficient vehicle operation data shall mean the denominator meets the criteria set forth in paragraphs 1. and 2. below. For monitors required to meet the in-use monitor performance ratio but not required to track and report ratio data pursuant to title 13, CCR section 1968.2(d)(3.2), sufficient vehicle operation data shall mean that vehicles that have a denominator that meets the criteria set forth in paragraphs 1. and 2. below after undergoing testing as set forth in section (b)(4)(C)(ii) below. Specifically, the denominator, as defined in title 13, CCR section 1968.2(d)(4.3), for the monitor to be tested must have a value equal to or greater than:
1. 150 for evaporative system monitors, secondary air system monitors, and monitors utilizing a denominator incremented in accordance with title 13, CCR sections 1968.2(d)(4.3.2)(E) or (F) (e.g., cold start monitors, air conditioning system monitors, etc.), or
2. 300 for catalyst, oxygen sensor, EGR, VVT, and all other component monitors.
c. Have not been tampered with or equipped with add-on or modified parts that would cause the OBD II system not to comply with the requirements of title 13, CCR section 1968.2.
d. Have mileage and age that are less than or equal to the certified full useful life mileage and age for the subject vehicles.
(iii) In selecting vehicles to be included in a test sample group for enforcement testing of any other requirement of title 13, CCR section 1968.2 (not covered by sections (b)(3)(D)(i) or (ii) above), the Executive Officer shall include only vehicles that:
a. Are certified to the requirements of title 13, CCR section 1968.2.
b. Have not been tampered with or equipped with add-on or modified parts that would cause the OBD II system not to comply with the requirements of title 13, CCR section 1968.2.
c. Have no detected or known malfunction(s) that would affect the performance of the OBD II system and are unrelated to the monitor or system being evaluated. At its discretion, the ARB may elect to repair a vehicle with a detected or known malfunction and then include the vehicle in the test sample group.
d. Have mileage and age that are less than or equal to the certified full useful life mileage and age for the subject vehicles.
(iv) If the Executive Officer discovers, by either evidence presented by the manufacturer as provided in section (b)(7) or on his or her own, that a vehicle fails to meet one or more of the applicable criteria of section (b)(3)(D)(i) through (iii), the Executive Officer shall remove the vehicle from the test sample group. The Executive Officer may replace any vehicle removed with an additional vehicle selected in accordance with sections (b)(3)(C) and (D) above. Test results relying on data from the removed vehicle shall be recalculated without using the data from the removed vehicle.
(4) Enforcement Testing Procedures.
(A) Prior to conducting any testing under section (b)(4), the Executive Officer may replace components monitored by the OBD II system with components that are sufficiently deteriorated or simulated to cause malfunctions that exceed the malfunction criteria established pursuant to title 13, CCR section 1968.2(e) in a properly operating system. The Executive Officer may not use components deteriorated or simulated to represent failure modes that could not have been foreseen to occur by the manufacturer (e.g., the use of leaded gasoline in an unleaded vehicle, etc.). Upon request by the Executive Officer, the manufacturer shall make available all test equipment (e.g., malfunction simulators, deteriorated "threshold" components, etc.) necessary to duplicate testing done by the manufacturer to determine the malfunction criteria used for major monitors subject to OBD II emission testing.
(B) OBD II Emission Testing. After the test sample group has been selected and procured, the Executive Officer may perform one or more of the following tests:
(i) Emission testing with the test procedures used by the Executive Officer for in-use testing of compliance with exhaust emission standards in accordance with title 13, CCR sections 2138 and 2139.
(ii) On-road or dynamometer testing with the vehicle being driven in a manner that reasonably ensures that all of the monitoring conditions disclosed in the manufacturer's certification application for the tested monitor are encountered.
(C) OBD II Ratio Testing.
(i) For OBD II ratio testing of monitors required to meet the in-use monitor performance ratio and to track and report ratio data pursuant to title 13, CCR section 1968.2(d)(3.2), after the test sample group has been selected and procured, the Executive Officer shall download the data from monitors required to track and report such data.
(ii) For OBD II ratio testing of monitors required to meet the in-use monitor performance ratio but not required to track and report ratio data pursuant to title 13, CCR section 1968.2(d)(3.2), after the test sample group has been selected and procured, the Executive Officer shall collect data by installing instrumentation or data-logging equipment on the vehicles. After installation of the equipment, the vehicles shall be returned to the vehicle owner/operator to continue to operate the vehicle until the minimum denominator criteria (see section (b)(3)(D)(ii)b.) are satisfied. The Executive Officer shall then calculate the ratio from the data collected in a manner that will allow the Executive Officer to effectively determine the in-use monitor performance ratio in accordance with the requirements of title 13, CCR section 1968.2(d)(3.2).
(D) Testing for compliance with any other requirement of title 13, CCR section 1968.2. After the test sample group has been selected and procured, the Executive Officer may perform one or more of the following tests:
(i) Emission testing on the applicable FTP cycle or other applicable emission test cycle used for measuring exhaust or evaporative emissions.
(ii) On-road or dynamometer testing with the vehicle being driven in a manner that reasonably ensures that all of the monitoring conditions disclosed in the manufacturer's certification application for the tested monitor are encountered.
(iii) Any other testing determined to be necessary by the Executive Officer. This may include, but is not limited to, the use of special test equipment to verify compliance with standardization requirements.
(5) Additional Testing.
(A) Based upon testing of the motor vehicle class in section (b)(4) above and after review of all evidence available at the conclusion of such testing, the Executive Officer may elect to conduct further testing of a subgroup of vehicles from the motor vehicle class if the Executive Officer has determined that:
(i) a subgroup of tested vehicles differs sufficiently enough from other vehicles in the tested motor vehicle class, and
(ii) a reasonable basis exists to believe that the identified differences may indicate that the subgroup may be nonconforming whereas the tested motor vehicle class as a whole is not.
(B) Hereinafter all references to motor vehicle class shall be applicable to the subgroup meeting the conditions of section (b)(5)(A) above.
(C) In any testing of a subgroup of vehicles under section (b)(5), the Executive Officer shall follow the vehicle selection and testing procedures set forth in sections (b)(3) and (4) above.
(6) Finding of Nonconformance after Enforcement Testing. After conducting enforcement testing pursuant to section (b)(4) above, the Executive Officer shall make a finding of nonconformance of the OBD II system in the identified motor vehicle class if:
(A) OBD II Emission Testing.
(i) Intermediate In-Use Thresholds. For 2004 through 2008 model year vehicles, the results of the OBD II emission tests indicate that 50 percent or more of the vehicles in the test sample do not properly illuminate the MIL when emissions exceed:
a. 2.0 times the FTP standards for malfunction criteria defined in title 13, CCR section 1968.2(e) that require MIL illumination at 1.5 or 1.75 times the FTP standards;
b. 3.5 times the FTP standards for malfunction criteria defined in title 13, CCR section 1968.2(e) that require MIL illumination at 2.5 times the FTP standards; or
c. 4.5 times the FTP standards for malfunction criteria defined in title 13, CCR section 1968.2(e) that require MIL illumination at 3.5 times the FTP standards.
(ii) For 2009 and subsequent model year vehicles, the results of the OBD II emission tests indicate that 50 percent or more of the vehicles in the test sample do not properly illuminate the MIL when the emission malfunction criteria defined in title 13, CCR section 1968.2(e) are exceeded.
(B) OBD II Ratio Testing.
(i) For 2004 through 2008 model year vehicles certified to a ratio of 0.100 in accordance with title 13, CCR section 1968.2(d)(3.2.1)(D), the data collected from the vehicles in the test sample indicate either that the average in-use monitor performance ratio for one or more of the monitors in the test sample group is less than 0.100 or that 66.0 percent or more of the vehicles in the test sample group have an in-use monitor performance ratio of less than 0.100 for the same monitor.
(ii) For 2006 and subsequent model year vehicles certified to the ratios in title 13, CCR sections 1968.2(d)(3.2.1)(A) through (C), the data collected from the vehicles in the test sample indicate either that 66.0 percent or more of the vehicles in the test sample group have an in-use monitor performance ratio of less than the required minimum ratio defined in title 13, CCR section 1968.2(d)(3.2.1) for the same monitor or that the average in-use monitor performance ratio for one or more of the monitors in the motor vehicle class is less than the required minimum ratio defined in title 13, CCR section 1968.2(d)(3.2.1) as defined by determining the average in-use monitor performance ratio for one or more of the monitors in the test sample group is less than:
a. 0.230 for secondary air system monitors and other cold start related monitors utilizing a denominator incremented in accordance with title 13, CCR section 1968.2(d)(4.3.2)(E) (e.g., cold start strategy monitors, etc.);
b. For evaporative system monitors:
1. 0.230 for monitors designed to detect malfunctions identified in title 13, CCR section 1968.2(e)(4.2.2)(C) (i.e., 0.020 inch leak detection);
2. 0.460 for monitors designed to detect malfunctions identified in title 13, CCR section 1968.2(e)(4.2.2)(A) and (B) (i.e., purge flow and 0.040 inch leak detection);
c. 0.297 for catalyst, oxygen sensor, EGR, VVT system, and all other monitors specifically required in section title 13, CCR section 1968.2(e) to meet the monitoring condition requirements of title 13, CCR section 1968.2(d)(3.2).
(C) All Other OBD II Testing.
(i) The results of the testing indicate that at least 30 percent of the vehicles in the test sample do not comply with the same requirement of title 13, CCR section 1968.2.
(ii) If the finding of nonconformance under section (b)(6)(C)(i) above concerns vehicles that do not comply with the requirements of title 13, CCR section 1968.2(d)(4) or (5) (e.g., numerators or denominators are not properly being incremented), it shall be presumed that the nonconformance would result in an OBD II ratio enforcement test result that would be subject to an ordered OBD II-related recall in accord with the criterion in section (c)(3)(A)(i). The manufacturer may rebut such a presumption by presenting evidence in accord with section (b)(7)(C)(iii) below that demonstrates to the satisfaction of the Executive Officer that the identified nonconformance would not result in an ordered OBD II-related recall under section (c)(3)(A)(i).
(7) Executive Officer Notification to the Manufacturer Regarding Determination of Nonconformance.
(A) Upon making the determination of nonconformance in section (b)(6) above, the Executive Officer shall notify the manufacturer in writing.
(B) The Executive Officer shall include in the notice:
(i) a description of each group or set of vehicles or engines in the motor vehicle class covered by the determination;
(ii) the factual basis for the determination, including a summary of the test results relied upon for the determination;
(iii) a statement that the Executive Officer shall provide to the manufacturer, upon request and consistent with the California Public Records Act, Government Code section 6250 et seq., all records material to the Executive Officer's determination;
(iv) a provision allowing the manufacturer no less than 90 days from the date of issuance of the notice to provide the Executive Officer with any information contesting the findings set forth in the notice; and
(v) a statement that if a final determination is made that the motor vehicle class is equipped with a nonconforming OBD II system, the manufacturer may be subject to appropriate remedial action, including recall and monetary penalties.
(C) Within the time period set by the Executive Officer in section (b)(7)(B)(iv) and any extensions of time granted under section (b)(7)(H), the manufacturer shall provide the Executive Officer, consistent with paragraphs (i) through (iii) below, with any test results, data, or other information derived from vehicle testing that may rebut or mitigate the results of the ARB testing, including any evidence that a motor vehicle class, if determined to be nonconforming, should be exempted from mandatory recall. (See section (c)(3)(B) below.).
(i) For OBD II emission testing and OBD II ratio testing:
a. The manufacturer may submit evidence to demonstrate that vehicles in the test sample group used by the Executive Officer were inappropriately selected, procured, or tested in support of a request to have vehicles excluded from the test sample group in accordance with section (b)(3)(D)(iv).
b. If the manufacturer elects to conduct additional testing of vehicles or engines in the motor vehicle class and submit the results of such testing to the Executive Officer, the manufacturer shall:
1. Present evidence that it has followed the vehicle procurement and test procedures set forth in sections (b)(3) and (4) above, or
2. If the manufacturer elects to use different procurement and testing procedures, submit a detailed description of the procedures used and evidence that such procedures provide an equivalent level of assurance that the results are representative of the motor vehicle class.
(ii) If the manufacturer objects to the size of the test sample group or the method used to procure vehicles in the test sample group used by the Executive Officer pursuant to section (b)(3)(B)(iii) or (b)(3)(C)(ii), the manufacturer shall set forth what it considers to be the appropriate size and procurement method, the reasons therefore, and test data from vehicles that confirm the manufacturer's position.
(iii) If the manufacturer elects to present evidence to overcome the presumption of nonconformance in section (b)(6)(C)(ii) above, the manufacturer shall demonstrate that the vehicles in the motor vehicle class comply with in-use monitor performance ratio requirements of title 13, CCR section 1968.2(d)(3.2) by presenting:
a. Evidence in accord with the procurement and testing requirements of sections (b)(3) and (4).
b. Any other evidence that provides an equivalent level of proof that vehicles operated in California comply with the in-use monitor performance ratio requirements.
(D) The Executive Officer may, but is not required to, accept any information submitted by a manufacturer pursuant to section (b)(7)(C) above after the time established for submission of such information has passed unless the manufacturer could not have reasonably foreseen the need for providing the information within the time period provided. In determining whether to accept late information, the Executive Officer will consider the lateness of the submission, the manufacturer's reasons for why such information was not timely presented, the materiality of the information to the Executive Officer's final determination, and what effect any delay may have on effective enforcement and the health and welfare of the State.
(E) The requirements of section (b)(7) shall not be construed to abridge the manufacturer's right to assert any privilege or right provided under California law.
(F) After receipt of any information submitted by the manufacturer pursuant to section (b)(7)(C) above, the Executive Officer shall consider all information submitted by the manufacturer and may conduct any additional testing that he or she believes is necessary.
(G) Final Determination.
(i) Within 60 days after completing any additional testing that the Executive Officer deemed necessary under section (b)(7)(F) above, the Executive Officer shall notify the manufacturer of his or her final determination regarding the finding of nonconformity of the OBD II system in the motor vehicle class. The determination shall be made after considering all of the information collected and received, including all information that has been received from the manufacturer.
(ii) The notice must include a description of each test group(s), OBD II group(s), or subgroups thereof, that has been determined to have a nonconforming OBD II system and set forth the factual bases for the determination.
(H) Extensions. The Executive Officer may for good cause extend the time requirements set forth in section (b)(7). In granting additional time to a manufacturer, the Executive Officer shall consider, among other things, any documentation submitted by the manufacturer regarding the time that it reasonably believes is necessary to conduct its own testing, why such information could not have been more expeditiously presented, and what effect any delay caused by granting the extension may have on effective enforcement and the health and welfare of the State. The Executive Officer shall grant a manufacturer a reasonable extension of time upon the manufacturer demonstrating that despite the exercise of reasonable diligence, the manufacturer has been unable to produce relevant evidence in the time initially provided.
(c) Remedial Action
(1) Voluntary OBD II-Related Recalls. If a manufacturer initiates a voluntary OBD II-related recall campaign, the manufacturer shall notify the Executive Officer of the recall at least 45 days before owner notification is to begin. The manufacturer shall also submit a voluntary OBD II-related recall plan for approval, as prescribed under section (d)(1) below. A voluntary recall plan shall be deemed approved unless disapproved by the Executive Officer within 30 days after receipt of the recall plan.
(2) Influenced OBD II-Related Recalls.
(A) Upon being notified by the Executive Officer, pursuant to section (b)(7)(G), that a motor vehicle class is equipped with a nonconforming OBD II system, the manufacturer may, within 45 days from the date of service of such notification, elect to conduct an influenced OBD II-related recall of all vehicles within the motor vehicle class for the purpose of correcting the nonconforming OBD II systems. Upon such an election, the manufacturer shall submit an influenced OBD II-related recall plan for approval, as prescribed under section (d)(1) below.
(B) If a manufacturer does not elect to conduct an influenced OBD II-related recall under section (c)(2)(A) above, the Executive Officer may order the manufacturer to undertake appropriate remedial action, up to and including the recall and repair of the nonconforming OBD II systems.
(3) Ordered Remedial Action-Mandatory Recall.
(A) Except as provided in sections (c)(3)(B) below, the Executive Officer shall order the recall and repair of all vehicles and engines in a motor vehicle class that have been determined to be equipped with a nonconforming OBD II system if enforcement testing conducted pursuant to section (b) above or information received from the manufacturer indicates that:
(i) For 2006 and subsequent model year vehicles certified to the ratios in title 13, CCR sections 1968.2 (d)(3.2.1)(A) through (C), the average in-use monitor performance ratio for one or more of the major monitors in the test sample group is less than or equal to 33.0 percent of the applicable required minimum ratio established in title 13, CCR section 1968.2(d)(3.2.1) (e.g., if the required ratio is 0.336, less than or equal to a ratio of 0.111) or 66.0 percent or more of the vehicles in the test sample group have an in-use monitor performance ratio of less than or equal to 33.0 percent of the applicable required minimum ratio established in title 13, CCR section 1968.2(d)(3.2.1) for the same major monitor. For 2004 through 2008 model year vehicles certified to the 0.100 ratio in title 13, CCR section 1968.2 (d)(3.2.1)(D), the Executive Officer shall determine the remedial action for nonconformances regarding the in-use monitor performance ratio in accordance with section (c)(4) below.
(ii) When the vehicle is tested on-road and driven so as to reasonably encounter all monitoring conditions disclosed in the manufacturer's certification application, the OBD II system is unable to detect and illuminate the MIL for a malfunction of a component/system monitored by a major monitor (other than the monitors for misfire causing catalyst damage and the evaporative system) prior to emissions exceeding two times the malfunction criteria of title 13, CCR section 1968.2(e) (e.g., if the malfunction criteria is 1.75 times the applicable FTP standard, recall would be required when emissions exceed 3.5 times the applicable FTP standard). Additionally, for the first two years that a new major monitor is required (e.g., 2006 and 2007 model year for cold start strategy monitoring in title 13, CCR section (e)(11)), the Executive Officer shall use three times the malfunction criteria in lieu of two times the malfunction criteria (e.g., if the malfunction criterion is 1.5 times the applicable FTP standard, recall would be required when emissions exceed 4.5 times the applicable FTP standard). For purposes of the emission exceedance determination, carbon monoxide (CO) emissions are not considered.
(iii) The monitor for misfire causing catalyst damage is unable to properly detect and illuminate the MIL for misfire rates that are more than 20 percentage points greater than the misfire rates disclosed by the manufacturer in its certification application as causing catalyst damage (e.g., if the disclosed misfire rate is 12 percent, recall would be required if the misfire rate is greater than 32 percent without proper detection).
(iv) When the vehicle is tested on-road and driven so as to reasonably encounter all monitoring conditions disclosed in the manufacturer's certification application, the evaporative system monitor is unable to detect and illuminate the MIL for a cumulative leak or leaks in the evaporative system equivalent to that caused by an orifice with a diameter of at least 1.5 times the diameter of the required orifice in title 13, CCR section 1968.2(e)(4.2.2)(C).
(v) When the vehicle is tested on-road and driven so as to reasonably encounter all monitoring conditions disclosed in the manufacturer's certification application, the OBD II system cannot detect and illuminate the MIL for a malfunction of a non-major monitor component that effectively disables a major monitor and the major monitor, by being disabled, meets the criteria for recall identified in sections (c)(3)(A)(ii) or (iv) above (e.g. is unable to detect and illuminate the MIL for malfunctions that cause FTP emissions to exceed two times the malfunction criteria).
(vi) The motor vehicle class cannot be tested so as to obtain valid test results in accordance with the procedures of the California Inspection & Maintenance (I/M) program applicable at the time of vehicle certification due to the nonconforming OBD II system. If the I/M test procedures have been amended within two years prior to the time of certification, the motor vehicle manufacturer may elect to use the preceding procedures.
(B) A motor vehicle class shall not be subject to mandatory recall if the Executive Officer determines that, even though a monitor meets a criterion set forth in section (c)(3)(A)(i)-(vi) for mandatory recall:
(i) The OBD II system can still detect and illuminate the MIL for all malfunctions monitored by the nonconforming monitor (e.g., monitor "A" is non-functional but monitor "B" is able to detect all malfunctions of the component(s) monitored by monitor "A").
(ii) The monitor meets the criterion solely due to a failure or deterioration mode of a monitored component or system that could not have been reasonably foreseen to occur by the manufacturer.
(iii) The failure or deterioration of the monitored component or system that cannot be properly detected causes the vehicle to be undriveable (e.g., vehicle stalls continuously or the transmission will not shift out of first gear, etc.) or causes an overt indication such that the driver is certain to respond and have the problem corrected (e.g., illumination of an over-temperature warning light or charging system light that uncorrected will result in an undriveable vehicle, etc.). (continued)