WASHINGTON-Nine automotive aftermarket associations filed a lawsuit Aug. 9 against the Environmental Protection Agency and two California agencies, claiming they violated federal law by allowing anti-tampering devices on new vehicles equipped with onboard emissions control diagnostic equipment. The defendants have not yet responded to the parts industry complaint. Automakers, meanwhile, insist the anti-tampering devices will not keep any independent auto repairer from getting the technical information he needs to repair auto emissions control equipment.
Clean Air Act regulations forbid government certification of cars and light trucks containing ``restrictive anti-tampering protection'' for their onboard diagnostic (OBD) systems, according to the suit filed in the U.S. District Court for the District of Columbia. Yet California mandates anti-tampering devices on new vehicles, and the EPA readily certifies such cars and trucks.
``California's anti-tampering regulations deny the aftermarket legitimate access to the OBD system and present significant legal and technical barriers to the manufacturing and rebuilding of automotive parts for, and servicing of, OBD vehicles,'' the lawsuit states.
When the Congress amended the Clean Air Act in 1990, it ``recognized the potential for anti-competitive abuse of OBD which could give vehicle manufacturers total control over access to the systems and a license to channel all service through their franchised dealers,'' according to the aftermarket associations.
Because of this, Congress made ``very specific provisions'' in the 1990 law to ensure aftermarket access to the OBD market and preserve consumer choice in auto repairs, they said.
The associations seek a court injunction against California and the EPA, preventing the requirement of OBD anti-tampering devices and certification of vehicles which have them. They also seek court costs, attorneys' fees and expert witness fees.
This lawsuit is strictly for the benefit of independent auto parts manufacturers and will not help independent auto repairers at all, stated a spokesman for the American Automobile Manufacturers Association.
``Independent repair facilities have the same access to information on emissions system repair as anyone else,'' the spokesman said.
What anti-tampering devices block is access to the OBD computer programs, which are proprietary and constitute trade secrets. The only reason anyone wants access to those programs, he said, is to build identical parts.
There are two traditional ways the auto aftermarket has always made replacements for original equipment parts, according to the spokesman. One is ``reverse engineer-ing''-taking apart an OE part to see how it is made-although admittedly this is difficult with OBD equipment.
The other is to make business arrangements with the automakers, which some aftermarket manufacturers already are doing, he said.
But Marc L. Fleischaker, the Washington attorney representing the aftermarket associations, said the issue is one of basic fairness.
``Some products can be reverse-engineered, but not all,'' Mr. Fleischaker said. ``Automakers have been arguing for business agreements with the aftermarket for some time. But the problem is that such agreements put them in control.
``The aftermarket business is left at the tender mercies of the auto industry, which can decide who it wants to deal with and how much they want to charge,'' he continued. ``The aftermarket is simply not prepared to deal with that.''
California and the EPA have 60 days to respond to the complaint, according to Mr. Fleischaker. ``Whether they'll respond before that, I don't know,'' he said. ``They may respond by granting our waiver.''
The nine aftermarket associations listed as plaintiffs in the lawsuit are: the Motor & Equipment Manufacturers Association; the Specialty Equipment Market Association; the Auto International Association; the Automotive Engine Rebuilders Association; the Automotive Parts & Accessories Association; the Automotive Parts Rebuilders Association; the Automotive Service Industry Association; the Automotive Warehouse Distributors Association; and the Coalition for Auto Repair Equality.