Control of Air Pollution; Determination of Significance for Nonroad Sources and Emission Standards for New Nonroad CompressionIgnition Engines At or Above 37 Kilowatts

[Federal Register: June 17, 1994]

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 89
[FRL-4893-8]
RIN 2060-AD54

Control of Air Pollution; Determination of Significance for
Nonroad Sources and Emission Standards for New Nonroad CompressionIgnition
Engines At or Above 37 Kilowatts

AGENCY: Environmental Protection Agency.
ACTION: Final rule.

SUMMARY: Section 213 of the Clean Air Act (CAA) as amended requires the
Environmental Protection Agency (EPA) to make a determination of the
significance of the contribution of nonroad sources to nonattainment of
the National Ambient Air Quality Standards (NAAQS) for ozone and carbon
monoxide (CO) in more than one nonattainment area. If the Agency makes
a positive determination of significance, it must then promulgate
regulations that will result in reductions in emissions from nonroad
sources. In today's action, EPA is finalizing the determination of
significance of emissions from nonroad engines. EPA is also
promulgating standards for carbon monoxide (CO), hydrocarbon (HC),
particulate matter (PM), oxides of nitrogen (NO<INF>X) and smoke
emissions from large nonroad compression-ignition (CI) engines at or
above 37 kilowatts (kW) in power, with exclusions for certain types of
engines. The NO<INF>X standard is expected to reduce average per unit
NO<INF>X emissions from affected engines by 27 percent before the year
2010, with a 37 percent reduction by the year 2025.

EFFECTIVE DATE: This regulation is effective July 18, 1994. The
incorporation by reference of certain publications listed in the
regulations is approved by the Director of the Federal Register as of
July 18, 1994. The information collection requirements contained in 40
CFR 89.114-96 through 89.120-96, 89.122-96 through 89.127-96, 89.129-
96, 89.203-96 through 89.207-96, 89.209-96 through 89.211-96, 89.304-96
through 89.331-96, and 89.404-96 through 89.424-96 have not been
approved by the Office of Management and Budget (OMB) and are not
effective until OMB has approved them. A technical amendment will be
published in the Federal Register when OMB has approved the information
collection requirements.

ADDRESSES: Materials relevant to this final rule are contained in
Docket No. A-91-24 and A-91-18, located at the Air Docket, 401 M Street
SW., Washington, DC 20460, and may be reviewed in room M-1500 from 8
a.m. until noon and from 1:30 p.m until 3:30 p.m. Monday through
Friday. As provided in 40 CFR part 2, a reasonable fee may be charged
by EPA for photocopying docket materials.

FOR FURTHER INFORMATION CONTACT: Linda Hormes, Office of Mobile
Sources, Certification Division, (313) 668-4502.

SUPPLEMENTARY INFORMATION:

Electronic Availability

The preamble, regulatory language and regulatory support document
are available electronically on the Technology Transfer Network (TTN).
TTN is an electronic bulletin board system (BBS) operated by EPA's
Office of Air Quality Planning and Standards. Users are able to access
and download TTN files on their first call. After logging onto TTN BBS,
to navigate through the BBS to the files of interest, the user must
enter the appropriate command at each of a series of menus. The steps
required to access information on this rulemaking are listed below. The
service is free of charge, except for the cost of the phone call.

TTN BBS: 919-541-5742 (1200-14400 bps, no parity, 8 data bits, 1 stop
bit)

Voice Helpline: 919-541-5384

Internet address: TELNET ttnbbs.rtpnc.epa.gov
Off-line: Mondays from 8:00 AM to 12:00 Noon ET

Technology Transfer Network Top Menu <T> GATEWAY TO TTN
TECHNICAL AREAS (Bulletin Boards) Command: T
TTN Technical Information Areas <M> OMS--Mobile Sources
Information Command: M

OMS BBS === MAIN MENU <K> Rulemaking & Reporting Command: K
Rulemaking Packages <6> Non-Road Command: 6
NON-Road Rulemaking Area File area #2 . . . Non-Road Engines
Command: 2<CR>

Non-Road Engines

At this stage, the system will list all available nonroad engine
files. To download a file, select a transfer protocol which will match
the terminal software on your own computer, then set your own software
to receive the file using that same protocol.
If unfamiliar with handling compressed (i.e. ZIP'ed) files, go to
the TTN top menu, System Utilities (Command: 1) for information and the
necessary program to download in order to unZIP the files of interest
after downloading to your computer. After getting the files you want
onto your computer, you can quit the TTN BBS with the <G>oodbye
command.

I. Table of Contents

II. Legal Authority and Background
III. Determination of Significance
IV. Definition of Nonroad Engine
V. Requirements of the Final Rule
A. Applicability
B. Standards
C. Implementation Dates
D. Certification and Test Procedures
E. Enforcement
VI. Public Participation and Discussion of Comments
A. Conversion of Standards and Measure to Metric Units
B. Emission Standards
C. Lower Emission Standards
D. Exemptions
E. Particulate Test Procedure
F. Smoke Test Procedures
G. Use of the On-highway Federal Test Procedure
H. Alternate Procedures for Constant Speed Engines
I. Certification Test Fuel
J. Certification Test Engine
K. Miscellaneous Certification Issues
L. Implementation Dates
M. In-use Enforcement
N. Useful Life
O. Locomotive Engines
P. Vehicle and Equipment Manufacturer Requirements
Q. Alternative Fuels
R. Selective Enforcement Auditing
S. Averaging, Banking, and Trading
T. Nonroad Equipment Definition
U. Definition of New
V. Definition of Locomotive
VII. Cost Analysis
VIII. Environmental Benefits
IX. Cost Effectiveness
X. Administrative Requirements

II. Legal Authority and Background

Authority for the actions in this notice is granted to EPA by
sections 202, 203, 204, 205, 206, 207, 208, 209, 213, 215, 216, and 301
of the Clean Air Act as amended (42 U.S.C. 7521, 7522, 7523, 7524,
7525, 7541, 7542, 7543, 7547, 7549, 7550, 7601(a)).
On November 15, 1990, the Clean Air Act Amendments of 1990 (CAAA)
were enacted in order to broaden and strengthen the CAA. While the CAA
had long specifically authorized EPA regulation of on-highway vehicle
and engine emissions, the 1990 amendments extended EPA's authority to
regulate nonroad vehicles and engines. Specifically, revised section
213 directs EPA to: (1) Conduct a study of emissions from nonroad
engines and vehicles; (2) determine whether emissions of CO, NO<INF>X,
and volatile organic compounds (VOCs) from nonroad engines and vehicles
are significant contributors to ozone or CO in more than one area which
has failed to attain the NAAQS for ozone or CO; and (3) regulate those
categories or classes of new nonroad engines and vehicles that
contribute to such air pollution if nonroad emissions are determined to
be significant. EPA may also regulate other emissions from new nonroad
engines or vehicles if the Agency determines that they contribute to
air pollution which may reasonably be anticipated to endanger public
health or welfare. Finally, EPA is to regulate emissions from new
locomotives by 1995.

The Nonroad Engine and Vehicle Emission Study required by section
213(a)(1) was completed in November 1991.1 The purpose of this
final rule is to implement section 213(a) (2), (3), (4), and (5) by
determining that emissions from nonroad engines and vehicles are
significant contributors to ozone and CO nonattainment and by
promulgating regulations containing standards applicable to emissions
from certain nonroad engines and vehicles.

\1\The Nonroad Study is available in the docket for this
rulemaking. It is also available through the National Technical
Information Service, referenced as document PB 92-126960.

III. Determination of Significance

Section 213(a)(2) of the CAA provides that after notice and public
comment, EPA is to determine, based on the Nonroad Engine and Vehicle
Emission Study (hereafter called the Nonroad Study), whether nonroad
emissions are significant contributors to ozone or CO in more than one
nonattainment area. Based on the results of the Nonroad Study and
consideration of the public comments discussed below, EPA is finalizing
its proposed affirmative significance determination in today's
rulemaking.

The majority of commenters did not address EPA's proposed
determination of significance. Of those who did, most were in
opposition, including organizations representing equipment
manufacturers and users. Expressing support for the determination were
some engine manufacturers, state and local organizations and
environmental groups. A summary of comments is found in the Response to
Comments document contained in the docket for this rule. Major comments
are discussed below, accompanied by EPA's response.

Use of the EKMA Model

Several commenters stated that EPA had not adequately demonstrated
a significant contribution to ozone or CO nonattainment from nonroad
engines or vehicles, as directed by the Act. These commenters argued
that EPA had shown only the nonroad contribution to ozone precursor and
CO emission inventories, and not the nonroad contribution to ozone
formation or ozone and CO nonattainment. Some commenters questioned
EPA's use of the Empirical Kinetic Modeling Approach (EKMA model) as
the basis for its air quality analysis, and they suggested that EPA
should have used a grid-based air quality model.
However, the Agency did conduct photochemical modeling. Using the
EKMA model, the Agency analyzed the effects of nonroad engine emission
controls on ozone concentrations. The results of this analysis,
presented in more detail in the Notice of Proposed Rulemaking (NPRM)
(ref. 58 FR 28809, May 17, 1993), showed that by eliminating nonroad
engines in the studied areas, ozone levels would drop between four and
13 parts per billion (ppb) below current levels. This amounts to levels
roughly three to eight percent lower than current levels in the 16
ozone nonattainment areas included in the analysis.
The EKMA model has been used by the Agency for a number of years.
Although the decision to use this model was driven to some extent by
time and resource constraints, the Agency maintains its position that
this model is valid and appropriate for the nonroad analysis. The
Agency may utilize grid-based air quality modeling in future analyses.
Furthermore, the Agency has traditionally based regulatory
decisions on pollutant emission levels and the potential for their
reduction. Because of the wide variability inherent in photochemical
modeling (source emission levels, emission transport, and
meteorological effects including ambient temperatures, cloud cover,
sunlight intensity, wind patterns, and so forth), the Agency has
typically relied on estimates of potential reductions in source
emission inventories as the basis for regulatory analyses. These
emission reduction estimates and the well established VOC/NO<INF>X link
with tropospheric ozone formation, in conjunction with ozone monitors
showing unacceptably high ambient ozone levels, have formed the basis
of the Agency's regulatory approach toward ozone control for many
years. In addition, as discussed in the NPRM, the Senate Committee
Report, in discussing the significance of the contribution of nonroad
emissions to ozone problems, specifically discussed the percentage of
nationwide NO<INF>X and VOC emissions attributed to nonroad engines.
Thus, the Senate clearly understood the relationship between emissions
of NO<INF>X and VOCs to the creation of ozone.
The NPRM discussed in detail the Nonroad Study's findings regarding
the contribution from nonroad sources of summertime VOCs and NO<INF>X.
These findings clearly show that emissions from nonroad engines are a
major source of VOCs and NO<INF>X, as well as CO in most, if not all of
the nonattainment areas studied. Given the clear link between VOCs and
NO<INF>X and the formation of ozone, there can be no question that
emissions from nonroad engines are significant contributors to ozone
formation in at least two ozone nonattainment areas. Therefore, the
Agency has met the CAA mandate to ``determine * * * whether emissions *

* from new and existing nonroad engines or nonroad vehicles * * * are
significant contributors to ozone or carbon monoxide concentrations in
more than one area which has failed to attain the national ambient air
quality standards * * *''

NO<INF>X Transport

Some commenters asserted that EPA failed to properly consider both
the transport of ozone precursor emissions and the natural decay of
NO<INF>X concentrations, NO<INF>X having a lifetime of only six to ten
hours according to one commenter. One commenter suggested EPA had
erroneously assumed that ozone precursors emitted in rural areas are
transported toward, and never away from, urban areas. Some commenters
suggested that equipment operated primarily in rural areas should be
exempted from regulation since these areas do not have air quality
problems. Another commenter argued that reducing NO<INF>X can increase
ozone, therefore EPA must first show that NO<INF>X reductions will
result in reduced ozone nonattainment before promulgating regulations.
Those commenters suggesting the Agency had erroneously assumed that
NO<INF>X always will be transported toward, rather than away from, the
urban core, may have misunderstood the Agency's assumption. The Agency
assumed only that pollution transport can occur toward the urban core,
thereby contributing to high source emission inventories. It is obvious
that different days will produce different transport patterns, and that
the potential for rural NO<INF>X and/or rural ozone to be transported
toward the urban core exists.

As for the Agency's failure to account for the short lifetime of
NO<INF>X and its subsequent low likelihood of long-range transport, the
commenters failed to recognize NO<INF>X sinks. A NO<INF>X ``sink'' is a
molecular compound which stores NO<INF>X (NO and NO<INF>2) for
potential later release. Therefore, the NO<INF>X itself may disappear,
but it disappears into NO<INF>X sinks, sometimes referred to as NOy,
and can then be re-released at a later time. Examples of NO<INF>X sinks
include the nitrate radical (NO<INF>3), which forms at night in the
presence of ozone and nitrogen dioxide (NO<INF>2) and then quickly
photolyzes in the morning,\2\ and nitrous acid (HONO), probably formed
from NO<INF>2 and water, which is a major source of the hydroxyl
radical (OH), a primary constituent for tropospheric ozone
formation.\3\ Another NO<INF>X sink is peroxyacetyl nitrate (PAN),
which transports NO<INF>X over relatively large distances through the
atmosphere. The rate of PAN decomposition significantly increases with
temperature, so that it can be formed in colder regions, transported,
and then decomposed to deliver NO<INF>2 to warmer regions. Another
NO<INF>X sink, methyl peroxynitrate (CH<INF>3OONO<INF>2) can last as
many as two days in the upper troposphere and then quickly disassociate
under surface level temperature conditions, thereby providing a source
of NO<INF>2.\4\

\2\Finlayson-Pitts, B.J., and J.N. Pitts, Jr., ``Atmospheric
Chemistry of Tropospheric Ozone Formation: Scientific and Regulatory
Implications,'' Air & Waste, Vol. 43, August 1993, p. 1091.
\3\Rethinking the Ozone Problem in Urban and Regional Air
Pollution, National Research Council, 1991.
\4\Rethinking the Ozone Problem in Urban and Regional Air
Pollution, National Research Council, 1991.

Regarding comments that EPA is required to show that NO<INF>X
reductions will not lead to actual ozone increases, the Agency
disagrees. Most studies indicate that reductions of both VOC and
NO<INF>X will lead to reductions of ozone, except under specific
circumstances.\5\ The photochemical modeling of alternative emission
control strategies contained in the ROMNET report\6\ offers additional
support: ROMNET found that reductions in both VOC and NO<INF>X
emissions beyond the minimum requirements of the CAA and across the
northeastern U.S. would be required to bring the major East Coast
cities into attainment of the ozone standard. In addition, a National
Academy of Sciences Study\7\ states that, ``* * * ozone in rural areas
of the eastern U.S. is limited by the availability of NO<INF>X rather
than hydrocarbons, and that reductions in NO<INF>X probably will be
necessary to reduce rural ozone values.'' This same study also states
that, ``Control of NO<INF>X * * *, although it is predicted to lead to
an increase in ozone in some places, such as downtown Los Angeles and
New York City * * * will probably be necessary in addition to or
instead of VOC control to alleviate the ozone problem in many cities
and regions.'' Even under those circumstances where a NO<INF>X decrease
can result in an ozone increase, the ozone increase occurs only until a
``ridgeline'' is reached, after which further NO<INF>X control results
in reduced ozone concentrations. In areas with relatively high VOC/
NO<INF>X ratios, typical of suburban and rural areas, decreasing
NO<INF>X concentrations at constant VOC concentrations is very
effective in ozone reduction.\8\

\5\Rethinking the Ozone Problem in Urban and Regional Air
Pollution, National Research Council, 1991.
B.J. Finalyson-Pitts and J.N. Pitts, Jr., ``Atmospheric
Chemistry of Tropospheric Ozone Formation: Scientific and Regulatory
Implications,'' Air and Waste, Vol. 43, August 1993.
\6\U.S. Environmental Protection Agency, ``Regional Oxidant
Modeling for Northeast Transport (ROMNET), EPA-450/4-91-002a,
Research Triangle Park, NC: Office of Air Quality Planning and
Standards, June 1991.

\7\Rethinking the Ozone Problem in Urban and Regional Air
Pollution, National Research Council, 1991, pp. 363 and 377.
\8\B.J. Finlayson-Pitts and J.N. Pitts, Jr., ``Atmospheric
Chemistry of Tropospheric Ozone Formation: Scientific and Regulatory
Implications,'' Air and Waste, Vol. 43, August 1993.

3. Defining Significance

Some commenters argued that EPA cannot make a significance
determination without first defining a standard upon which to base that
determination, the claim being that without first defining what is
significant, any level of contribution could conceivably be deemed as
significant. Some commenters argued that the legislative history found
in a Senate report stating, ``Emissions from off-road and non-road
engines and vehicles now make up a significant portion of pollution * *

[E]missions inventories from EPA estimate that farm and construction
equipment emit 3.7 percent of CO nationwide, four percent of nationwide
NO<INF>X, and 1.3 percent of total hydrocarbons * * *,''\9\ does not
provide guidance on significance, as the NPRM stated.

\9\S.R. Rept. No. 101-228, p. 104 (emphasis added).

The Agency disagrees with the contention that a specific numerical
standard for significance must be determined prior to considering
whether nonroad emissions are significant. When Congress mandated that
EPA determine the significance of nonroad emissions, Congress could
have given EPA a specific numerical mandate for determining whether
such emissions are significant contributors. Instead, Congress gave EPA
wide discretion to determine whether the emissions of NO<INF>X, VOCs
and CO from nonroad engines and vehicles are significant contributors
to ozone or CO concentrations. In any case, any reasonable indicator of
significance would conclude that emissions from nonroad engines and
vehicles were indeed significant contributors. As presented in the NPRM
and discussed above, the Agency's photochemical modeling showed that
without nonroad sources, the ozone levels of 16 of the 19 analyzed
nonattainment areas would decrease from three to eight percent from
their current levels and differences in excess of five percent were
indicated in eight of the 16 areas. Additionally, NO<INF>X emission
levels from nonroad sources were found to be exceeded by only one other
source: the generation of electrical power. Nonroad VOC emission levels
were found to be exceeded by only two other sources: light-duty highway
vehicles and solvent evaporation. Nonroad CO emission levels were found
to be exceeded by only two other sources: light-duty highway vehicles
and residential fuel use. In addition, emissions from nonroad engines
and vehicles accounted for over ten percent of the inventory of:
(1) VOCs in 12 to 14 of the 19 nonattainment areas studied in the
nonroad study;

(2) NO<INF>X in 16 to 19 of the areas studied; and
(3) CO in six to seven of the areas studied.
As pointed out in the NPRM, in numerous nonattainment areas, other
sources are regulated that have lower emissions than the total from
nonroad engines in the area. Therefore, it is reasonable to conclude
that the higher contributions from nonroad sources in those areas are
also significant enough to justify the regulation of NO<INF>X, VOC and
CO emissions from nonroad engines and vehicles.

4. Operation in Rural Areas

Some commenters stated that some equipment covered by the proposed
regulations operates primarily (almost 80 percent based on number of
units) in areas already meeting federal clean air requirements;
therefore, these commenters concluded that such equipment should not be
regulated.

The Agency believes that these pieces of equipment can reasonably
be expected to contribute to ozone nonattainment. Also, the Agency has
determined that it should not regulate engines only in urban
nonattainment areas. Most commenters made strong arguments
substantiating the need for national uniformity of treatment for all
equipment incorporating regulated engines regardless of the intended
geographic area of equipment use. Moreover, Title II of the Act
generally requires national regulation of mobile sources, given the
inherent ability of such sources to move from one area to another.
Also, as discussed, nonroad sources have been clearly shown to
contribute significantly to pollution in several nonattainment areas.

5. Significance Determination for Classes and Categories of Nonroad
Engines

Some commenters stated that various subcategories of nonroad
equipment (e.g., farm equipment, mining equipment) individually
represent only a small contribution to national pollutant inventories
and to nonattainment and that a significance determination should be
made for each specific subcategory of nonroad engine, not for nonroad
engines as a whole.

These comments have misinterpreted the clear language of section
213(a). Paragraphs one and two of section 213(a) make it clear that
EPA's determination of significance should be based on whether
emissions from all new and existing nonroad engines are significant
contributors to ozone or CO concentrations. There is no indication that
the significance determination should be based on contributions from
various subcategories of nonroad engines or vehicles. By contrast, if
the Administrator makes an affirmative decision regarding significance,
then section 213(a)(3) requires the Administrator to promulgate
regulations for those classes and categories of nonroad engines and
vehicles ``which in the Administrator's judgment cause, or contribute
to, such air pollution.'' This mandate does not include any reference
to a determination of significance for classes and categories. Thus,
the Agency believes that Congress did not intend a showing of
significant contribution to be required for regulation of classes or
categories of nonroad engines and vehicles.
This interpretation is echoed by the language in section 213(a)(4)
which allows the Agency to regulate new nonroad engine emissions that
were not referred to in the Nonroad Study. Under this paragraph, if the
Agency determines that any such emissions significantly contribute to
air pollution which may reasonably be anticipated to endanger the
public health or welfare, the Agency may promulgate regulations
applicable to those classes or categories of new nonroad engines and
vehicles which in the Administrator's judgment cause or contribute to
such air pollution. Once again, there is a reference to significant
contribution regarding the initial determination on emissions from all
nonroad engines or vehicles, but there is no such reference to
significance in the subsequent language regarding regulation of classes
or categories of engines and vehicles. Therefore, it seems clear that
Congress intended that a showing of significance is not required for
regulation of classes or categories of nonroad engines and vehicles.
One commenter suggested that EPA had misinterpreted the statute's
requirements based on a perceived inconsistency between that
interpretation and the Agency's proposed consent decree settling
several lawsuits.10 This commenter stated that, in the proposed
consent decree, EPA had implicitly acknowledged its obligation to make
the significance determination for each category or class of products
it intends to regulate by specifically reserving its ``right'' to
determine that large gasoline and/or small diesel nonroad engines do
not cause or contribute to air pollution within the meaning of section
213(a)(3). Such a reservation, this commenter argued, would be
meaningless if EPA were permitted, as proposed in the NPRM, to regulate
any category or class of nonroad engine or nonroad vehicle regardless
of its contribution to ozone or CO concentrations in nonattainment
areas.

\1\0Sierra Club v. Browner, Civ. No. 93-0197 NHJ (D.D.C. 1993).

The Agency disagrees with the assertion that there is an
inconsistency between the Agency's proposed consent decree and the
NPRM. In fact, the consent decree does not discuss any determination of
``significant contribution'' for classes or categories of nonroad
engines. The decree only discusses ``contribution''. The Agency assumes
this comment is meant to suggest that prior to regulating, EPA must
first show that each equipment type (agricultural, construction,
mining, and so forth) contributes significantly to nonattainment. As
discussed above, the Agency interprets the Act to provide for
regulation of any classes or categories of nonroad engines and vehicles
that can be shown to cause or contribute to air pollution. The NPRM
discussed the contribution to air pollution of the engine size and type
being regulated today. The Agency reserves the right to use other class
or category types in future nonroad emissions regulations.

6. Equipment Distribution/Use of Consolidated Metropolitan Statistical
Areas (CMSA)

Some commenters stated that EPA's use of CMSAs to define the urban
areas was inappropriate. These commenters asserted that since many
CMSAs encompass an area roughly equivalent to a 100 mile diameter, much
of the CMSA is rural. Consequently, EPA has assumed a uniform
distribution of nonroad equipment resulting in as many farm tractors in
downtown New York City as in the surrounding countryside, according to
comments.

Comments that EPA assumed a uniform distribution of equipment
within areas evaluated in the Nonroad Study, thereby resulting in an
equal number of farm tractors in both downtown New York City and the
surrounding countryside, are incorrect. The equipment population
distributions used in the Nonroad Study were derived from estimates of
activity levels within specific counties of each CMSA. A county, such
as that containing Manhattan, would presumably show an activity index
for agricultural equipment presumably at or near zero. Therefore, the
agricultural equipment population estimate for Manhattan would also be
at or near zero.11

\1\1The methodology is documented in the Energy and
Environmental Analysis final report entitled ``Methodology to
Estimate Nonroad Equipment Populations by Nonattainment Areas,''
available for review in Docket #A-91-24, Item No. II-A-3.

7. Support of the Agency's Determination of Significance

Some commenters supported the Agency's proposed significance
determination. One engine manufacturer supported grouping the 80-plus
types of nonroad equipment together instead of evaluating and
regulating each type of equipment separately. This commenter also
stated that it is not cost effective to build parallel regulated/
unregulated engine families for the U.S. market to support regulated
and unregulated applications.

A State commented that it is particularly important that any EPA
regulation control emissions from construction and farm equipment, as
those emissions cannot be controlled by state or local agencies. It
cited its own estimates that agricultural equipment contributes over 90
tons per day of NO<INF>X in the State of California. Much of these
emissions occur in the San Joaquin valley and are a primary contributor
to the nonattainment status of that overwhelmingly agricultural area.
In addition, a major city agreed with the Agency's significance
determination, stating that further reductions in VOC, CO, and NO<INF>X
were essential to achieving attainment. A regional association of
states also supported the Agency's determination of significance,
stating that engines subject to the proposed standards are responsible
for approximately 11 percent of all NO<INF>X emitted in its region,
making control of emissions from these sources critical to their
efforts to meet the statutory requirements of the CAA. An environmental
association stated that without significant reductions from nonroad
engines, states will not be able to develop long-term plans for the
attainment and maintenance of ambient air quality standards.

IV. Definition of Nonroad Engine

CAA section 216(10) defines the term ``nonroad engine'' as ``an
internal combustion engine (including the fuel system) that is not used
in a motor vehicle or a vehicle used solely for competition, or that is
not subject to standards promulgated under section 111 or 202.''
Section 111(a)(3) of the CAA notes, however, that ``Nothing in Title II
of this Act relating to nonroad engines shall be construed to apply to
stationary internal combustion engines.''

Original Proposed Definition of Nonroad Engine

In the May 17, 1993 NPRM, EPA proposed that the engines encompassed
by the statutory definition of nonroad engine included internal
combustion engines meeting one of the following criteria:
(1) Any internal combustion engine (including the fuel system) of
any size which is used to propel any vehicle if the engine is not
otherwise excluded from this definition (see below). This includes any
internal combustion engine which serves a dual function (that is, to
both propel a vehicle and operate a device while stationary), such as a
mobile crane;

(2) Any internal combustion engine which is located in (or on) a
nonroad vehicle and which is an integral part of the nonroad vehicle at
the time of the nonroad vehicle's manufacture and which is not
otherwise excluded from this definition (see below); or
(3) Any internal combustion engine or combination of internal
combustion engines arranged to function together, regardless of
application, with a combined output of less than 175 hp, unless
otherwise excluded from this definition (see below).
Several specific exclusions were included in the proposed
definition of nonroad engines. An internal combustion engine would not
be considered a nonroad engine if:

(1) The engine is used to propel a motor vehicle or a vehicle used
solely for competition;

(2) The engine is regulated under section 111 or section 202 of the
Act, regardless of size; or

(3) The engine is located on a trailer or other platform attached
to (not an integral part of) a nonroad vehicle or is otherwise not an
integral part of a nonroad vehicle and the engine has an output greater
than or equal to 175 hp.

EPA received numerous comments in response to this NPRM definition.
The vast majority of commenters opposed all or part of the proposed
definition.

The primary reason cited by commenters for their opposition to the
proposed definition relates to the use of a horsepower (hp) cut-off
point as the means for determining which internal combustion engines
are classified as nonroad engines. The commenters asserted that the use
of a horsepower cut-off point would allow engines used in mobile
applications to be regulated as stationary sources, and would allow
stationary engines to be regulated as mobile sources, solely on the
basis of engine size. The commenters noted that this would result in
identical sources being regulated in a different manner based solely on
engine power. Commenters further indicated that the use of a horsepower
cut-off point is arbitrary and not reflective of the realities of
portable or transportable equipment, which can be and are moved from
one area to another and, therefore, should be classified as nonroad
regardless of horsepower.

According to these commenters, an engine should be classified on
the basis of its use as mobile or stationary, rather than on its
horsepower. In other words, the determination as to whether an engine
is a nonroad engine should depend on whether the engine is either used
in equipment that is mobile (that is, self-propelled, portable or
transportable), or in equipment that is in fact used in a stationary
manner at a particular location for an extended period of time.
Industry commenters indicated that to do otherwise could result in
costly and unnecessary administrative burdens for manufacturers.
According to these commenters, such administrative burdens would result
from engines and equipment that would be wrongly subjected to a myriad
of different mobile and stationary source regulations in states and
local air quality management districts. The commenters also indicated
that regulation by a multitude of regulatory agencies could result in
restricting the geographic operating range of certain engines and
equipment.

In addition, commenters indicated that it would be contrary to the
intent of the Act. In support of this position, these commenters noted
that Congress did not establish a horsepower cut-off point in the Act
for distinguishing between nonroad and stationary engines, and did not
require that nonroad vehicles be self-propelled to fall within the
nonroad definition.

The comments from state and local air pollution control agencies
also opposed the use of a horsepower cut-off point for determining
whether internal combustion engines would be classified as nonroad
engines. Local air pollution control agencies noted that they are
currently regulating stationary engines under 175 hp and would lose the
authority to continue regulating these engines under the proposed
nonroad definition.

For a detailed discussion of the comments regarding the nonroad
definition initially proposed see the Response to Comments in the
docket.

2. Revised Definition of Nonroad Engine

In response to the comments received regarding the nonroad
definition proposed in the May 17, 1993 NPRM, EPA revised the nonroad
engine definition. The revised definition was published in the Federal
Register on October 4, 1993 (58 FR 51595). The comment period was
reopened until October 25, 1993, so that interested parties could
provide comments on the following revised definition of nonroad engine:
(1) Except as discussed in (2) below, a nonroad engine is any
internal combustion engine:

(i) In or on a piece of equipment that is self-propelled or serves
a dual purpose by both propelling itself and performing another
function (such as a mobile crane); or

(ii) In or on a piece of equipment that is intended to be propelled
while performing its function (such as lawn mowers and string
trimmers); or

(iii) That, by itself or in or on a piece of equipment, is portable
or transportable, meaning designed to be and capable of being carried
or moved from one location to another. Indicia of transportability
include, but are not limited to, wheels, skids, carrying handles,
dolly, trailer, platform or mounting.

(2) An internal combustion engine is not a nonroad engine if:
(i) The engine is used to propel a motor vehicle or a vehicle used
solely for competition; or

(ii) The engine is regulated under section 111 or section 202 of
the Act; or

(iii) The engine otherwise included in (1)(iii) remains or will
remain at a location for more than 12 consecutive months, or a shorter
period of time where such period is representative of normal annual
source operation at a stationary source that resides at a fixed
location for more than 12 months (e.g., seasonal operations such as
canning facilities.) A location is any site at a building, structure,
facility, or installation. Any engine (or engines) that replaces an
engine at a location and that is intended to perform the same or
similar function as the engine replaced will be included in calculating
the consecutive time period.

A portable generator engine which functions as a permanent back-up
generator and which is replaced by a different engine (or engines) that
performs the same function would be an example of engines covered by
(2)(iii). In such a case, the cumulative residence time of both
generators, including the time between removal of the original engine
and installation of the replacement, would be counted toward the
consecutive residence time period.

EPA intended the revised definition of nonroad engines to address
concerns expressed by the commenters in response to the definition
originally proposed. Under the revised definition, an internal
combustion engine would be a nonroad engine if it is used in equipment
that is self-propelled or intended to be propelled while performing its
function, or if it is portable or transportable. The revised definition
specifically distinguishes between nonroad engines and stationary
internal combustion engines on the basis of engine mobility and
residence time, rather than on horsepower size.
EPA intended that stationary internal combustion engines be all
internal combustion engines regulated by a federal New Source
Performance Standard promulgated under section 111 of the Act and all
internal combustion engines that are neither nonroad engines nor
engines used to propel a motor vehicle or a vehicle used solely for
competition. Moreover, the revised definition specifically states that
portable and transportable engines remaining in a particular location
for over 12 months are not nonroad engines (this excludes engines in
self-propelled equipment and equipment intended to be propelled while
performing its intended function), thus ensuring that engines that are
actually used in a stationary manner are considered stationary engines.
The revised nonroad engine definition excluded from nonroad
regulation those engines that are used for normal annual source
operations at fixed stationary sources that only operate on a seasonal
basis, such as canneries. This provision is designed to ensure that
engines that operate as integral parts of these stationary sources are
considered stationary.

The revised nonroad engine definition also included a provision
that if an engine is replaced by another engine within the 12 month
period, the replacement engine should be considered in calculating the
consecutive time period. This provision is designed to ensure that
where an internal combustion engine is necessary for the operation of a
stationary facility, the replacement of one particular engine with
another would not prevent the engines from being included as part of
the stationary facility.

EPA included as a prohibited act any attempt to circumvent the
residence time exclusion of a portable or transportable engine in
(2)(iii) by means of removing the engine from its location for a period
and then returning it to that same location. In such cases, the time
between removal of the engine and its return to service (or
replacement) would be counted towards the time period specified in
(2)(iii).

3. Final Definition of Nonroad Engine

The majority of comments received on the revised definition
supported the usage-based definition, as opposed to the initially
proposed power-based definition. Still, most commenters requested that
EPA make two modifications to the revised nonroad engine definition.
The first modification requested by the commenters relates to
section (2)(ii) of the revised definition which stated that an engine
is not a nonroad engine if it is regulated under section 111 or section
202 of the CAA. The commenters expressed concern that this portion of
the definition would allow states to promulgate state regulations under
the authority of section 111, creating a loophole in the state
preemption framework, whereby states would be able to regulate
preempted engines. They contended that this would result in dual
standards for an engine, as both stationary and nonroad.
The second modification requested by the commenters relates to the
application of the 12 month residence time limitation to seasonal
operations. While most commenters agreed with the proposal to use a 12
month residence time limit to distinguish between mobile and stationary
use of portable or transportable engines, several commenters opposed
the proposal to consider residence time based on ``seasonal'' use.
These commenters asserted that excluding an undefined group of engines
for an indeterminate period of time, between one and 365 days, is
neither reasonable nor enforceable. Moreover, the same commenters
requested that EPA clarify that the 12 month residence time applies
only to those portable and transportable engines which are integral
parts of fixed stationary sources.

One commenter opposed the 12 month time limit on the grounds that
it could create a regulatory vacuum which would result in some engines
escaping all nonroad engine and stationary engine regulations. In
support of the revised nonroad engine definition, another commenter
stated that the equipment used on a military installation should be
designed so emissions are reduced by the engine manufacturer and not by
the end user. The commenter requested that EPA clarify the term
``location'' in a manner that would permit a ``location'' to exist
within a stationary source.

The comments from a State agency supported the elimination of the
horsepower criteria for nonroad engines, but expressed concern that the
new definition would cause it to lose permitting authority for engines
it was currently regulating as stationary engines. The commenter
suggested that those states with permitting programs be allowed to
maintain permitting authority over those engines which they had
previously determined to be stationary.
One local air pollution agency disagreed with EPA's conclusion that
portable engines are nonroad engines. In support of its position, the
agency cited title V of the CAA as evidence that Congress recognized
that some stationary sources were moveable. If EPA were to adopt a
definition based on residence time, the agency requested that three
months, rather than a year, be the cutoff point beyond which an engine
would no longer be considered nonroad.

The Agency believes that the revised nonroad definition eliminates
the potential for the arbitrary classification of internal combustion
engines as nonroad or stationary sources based on engine size. Rather,
as noted by the commenters, the revised definition is based on the use
of the engine, which is a more appropriate and reliable indicator of
its classification.

EPA has considered the modification requested by some commenters
regarding that portion of the definition that provides an internal
combustion engine is not a nonroad engine if it is regulated under CAA
section 111. The Agency has amended the revised definition to provide
that an internal combustion engine is not a nonroad engine if ``The
engine is regulated by a federal New Source Performance Standard
promulgated under section 111 of the Act.'' Thus, under provision
(2)(ii), national emission standards for an internal combustion engine
must be promulgated before it is classified as a stationary engine.
Contrary to the comments, EPA believes that it is appropriate to
exclude from the nonroad definition engines that remain at sources that
only operate on a seasonal basis. Although such sources, such as
canning facilities, may operate for less than 12 months in any one
year, they operate regularly for a similar time period year after year.
Operations for a seasonal source generally occur at the same location,
rather than traveling between different states or regions. Engines that
are located at a seasonal source during the full annual operations
period of that source should be considered a part of that source. They
are clearly integral parts of these facilities. Moreover, as such
sources produce emissions that can be calculated on a regular basis, a
local air quality agency or other authority should be able to
reasonably enforce stationary source regulations. As a result, the
Agency has maintained the seasonal source exclusion. However, as
requested by several commenters, EPA has revised the language for the
exclusion to make it clearer. EPA believes that a seasonal source is a
stationary source because it functions at only one location for its
full annual operating period, even if that period is less than 12
months. EPA has specified in the final regulations that a seasonal
source must remain at a single location on a permanent basis (that is,
at least two years) and must operate approximately three months or more
each year. EPA also clarified that an engine located at a seasonal
source is an engine that remains at the source for the full annual
operating period of the source. This should eliminate any confusion as
to whether certain sources are considered to be seasonal sources.
EPA also disagrees with commenters who believe that only engines
``fixed'' in place for more than 12 months should be excluded from the
nonroad definition. An internal combustion engine can be stationary
without being ``affixed'' to the ground or other structures. To require
otherwise could result in the improper classification of internal
combustion engines. For example, an engine that is not bolted or
otherwise attached to a structure but remains at one location for five
years would be classified under the commenters' proposition as a
nonroad engine, even though it operates in a stationary manner, as
evidenced by its remaining at the same location for an extended period
of time. Therefore, the Agency has decided that the fact that an engine
is not ``affixed'' to the ground or other structure does not
necessarily identify the internal combustion engine as a nonroad
engine.

The Agency also believes that 12 months is the appropriate time
limit for determining whether an internal combustion engine which is
either portable or transportable is to be classified as a stationary
engine. Generally, engines that remain at one site for more than 12
months will stay at that site either permanently or for an extended
period of time. In such cases, local or state air quality agencies
should be able to regulate the applicable engines as stationary
sources, since the emissions impact is occurring over a period of time
which is likely to have a measurable impact on an area's air quality.
The term ``location'' has been defined so as to permit a
``location'' to exist within a facility. Section (2)(iii) of the
revised definition defines ``location'' as ``any single site at a
building, structure, facility or installation.'' This definition of
``location'' provides more precision in classifying an engine as
nonroad if the engine is actually intended to be used in a mobile
manner within a stationary source. In other words, an engine would be
considered nonroad if it moves to different sites within a stationary
source.

EPA does not agree with the assertion made by one commenter that
title V of the CAA evidences Congress' recognition that some stationary
sources are moveable. Title V of the CAA deals with the permitting of
stationary sources and not with the determination as to which internal
combustion engines are nonroad engines and which are stationary
engines.

4. Nonroad Engines Manufactured Prior to the Effective Date of This
Definition

In the initial NPRM, EPA noted that it interprets the exclusion in
CAA section 302(z) to apply only to those internal combustion engines
that are manufactured after the effective date of these regulations.
EPA stated that this interpretation avoids a regulatory gap for engines
manufactured between the promulgation of the CAA and the date that
these regulations are promulgated. EPA received several comments
opposing this interpretation. These commenters claimed that the
language in section 302(z) applied to all nonroad engines at the time
of the passage of the 1990 CAAA, even though that term had not yet been
defined with any reasonable clarity. In addition, commenters asserted
that nonroad engines are generally preempted from regulation by states
under title II of the Act.

EPA continues to believe that internal combustion engines
manufactured prior to the effective date of these regulations should
not be considered preempted nonroad engines. First, EPA believes that
until the regulations finalizing the definition of nonroad engine (as
well as the regulations determining the scope of the term ``new'' as
applied to nonroad engines) were complete, no state or other entity
could be assured whether such engines would be defined as nonroad
engines or as stationary internal combustion engines and the extent to
which state regulations of such engines was preempted. Congress clearly
intended EPA to determine which internal combustion engines should be
defined as nonroad engines and which should be stationary internal
combustion engines.\12\ As has been discussed above, the final
definition of nonroad engine promulgated today is substantially revised
from the definition originally proposed. Moreover, as the comments
reveal, numerous other definitions of nonroad engine have been
suggested to the Agency, many of which are either significantly broader
or significantly narrower than EPA's final definition. EPA believes
that if the exclusionary language of section 302(z) were applied before
EPA's definition of nonroad engine became final, states would have been
frustrated from regulating any internal combustion engines manufactured
during that time, given the uncertain nature of such engines. For
example, a state would not know whether to include regulations of
engines in its New Source Review program, or whether such engines
should be regulated in a separate in-use operation program. Further,
until the initial regulations regarding nonroad engines were finalized,
states could not determine the extent to which their regulation of such
engines would be preempted, and thus were hampered from going forward
with specific programs to regulate such engines. EPA believes that
Congress did not intend states to be prevented from regulating these
engines before EPA defined what they were. In particular, EPA believes
that permits for internal combustion engines issued prior to July 18,
1994, are not precluded under section 209 and 302(z) if the permits
apply to internal combustion engines manufactured before July 18, 1994,
even if those engines are of a type that has been defined by EPA to be
nonroad engines.

\1\2See Report of House of Representatives Committee on Energy
and Commerce, Rept. 101-490, at 272 (May 17, 1990).

Moreover, even to the extent such engines are defined to be nonroad
engines in this final rule, such engines were not preempted from state
regulations under section 209 prior to the effective date of these
regulations. The two sections of the Act preempting state regulation of
nonroad engines, section 209(e)(1) and section 209(a) (as incorporated
by section 213(d)), refer to ``nonroad engines subject to regulation
under this Act'' or to engines ``subject to this part.'' EPA believes
that, until EPA promulgated final regulations defining nonroad engines
and subjecting such engines to regulation, these engines were not
preempted from state regulation under the Act, nor were they subject to
any regulation under title II of the Act.
Finally, some of the comments regarding the definition of nonroad
engines and the issue of grandfathering examined whether grandfathering
subjects an engine to dual regulation (i.e., regulation both by the
state as a stationary source and by EPA as a nonroad engine). There is
no such risk in this instance because EPA has not subjected any engines
manufactured before the effective date of this regulation to regulation
as new nonroad engines. Such engines, if they are regulated at all, are
regulated under title I programs.

Moreover, it should be noted that the vast majority of these
engines are no longer new nonroad engines. Thus, even if they are
viewed as preempted nonroad engines, they are subject to in-use
regulation by states.

As discussed below in section VI. U. (definition of new), states
are not precluded from regulating the use of nonroad engines. Nothing
in section 209 of the CAA prohibits local pollution control districts
from regulating the operation of nonroad engines, such as the hours of
usage, sulfur limits in fuel (state fuel restrictions may in some cases
be precluded under section 211), daily mass emission limits, and title
I operating permits. In addition, local districts can impose a
permitting fee consistent with the costs incurred for various
operational expenditures, such as monitoring usage and administrative
functions. EPA believes that utilization of this option will assist
local districts in achieving their targeted emission levels.
Moreover, states are not prevented from requiring retrofitting of
nonroad engines, as long as such requirements do not amount to a
standard relating back to the original design of the engine by the
original engine manufacturer. As discussed below, EPA believes modest
retrofit requirements may be required after a reasonable amount of
time, such as at the time of reregistration or rebuilding. Moreover,
after a sufficient time has passed after an engine ceases to be new,
for example, after the end of the useful life of the engine, a state
may institute more significant retrofit requirements. As the court
stated in Allway Taxi v. City of New York, 340 F. Supp. 1120, 1124
(S.D.N.Y.), aff'd, 468 F. 2d 624 (2d Cir. 1972), section 209 ``was made
not to hamstring localities in their fight against air pollution but to
prevent the burden on interstate commerce which would result if,
instead of uniform standards, every state and locality were left free
to impose different standards for exhaust emission control devices for
the manufacture and sale of new cars.'' The Act does not intend
preemption of regulations, like regulation of the use of nonroad
engines or modest retrofit requirements after an engine is no longer
new, that ``would cause only minimal interference with interstate
commerce, since they would be directed at intrastate activities and the
burden of compliance would be on individual owners and not on
manufacturers and distributors.'' Id.

EPA has added an interpretive rule in the form of an appendix to
these regulations summarizing its views on these issues (see Appendix I
to subpart A of part 89: Internal combustion engines manufactured prior
to the effective date of the nonroad engine definition). This
interpretive rule does not supersede, alter, replace, or change the
scope of these regulations. The appendix is intended to be interpretive
guidance and is not final agency action subject to judicial review.
Based on comments received from several of California's local air
quality districts, the Agency is concerned about the impact of the
nonroad definition on the unique situation that exists in these areas,
that is, the current local regulation of certain engines as stationary
sources which, as a result of the nonroad definition, will become
nonroad engines subject to emission standards promulgated only by EPA.
According to the commenters, classification of these engines as nonroad
by EPA may negatively affect the ability of local districts to achieve
targeted emission reduction levels. To some extent, the grandfathering
in of certain engines, discussed above, addresses this concern by
ensuring that engines regulated prior to the effective date of this
rulemaking continue to be regulated in the same manner. Nevertheless,
this may not, in all situations, allay concerns regarding the overall
impact that classification of these engines as nonroad will have on an
area. The Agency believes, however, that any additional concerns that
may exist following the effective date of this rule can be addressed by
local air quality districts through their regulation of nonroad engine
operations.

5. Equating Nonroad Engines With Nonroad Vehicles and Equipment

EPA received one comment on the October 4, 1993 notice that opposed
the revised definition of the term ``nonroad engine'' because,
according to the commenter, the definition equated nonroad engines with
nonroad equipment. This comment states that, by defining nonroad
engines in terms of their use ``in or on a piece of equipment,'' EPA
exceeded its authority because, according to the commenter, the CAA
only authorizes EPA to regulate nonroad engines and vehicles, not
nonroad equipment. This comment argues that EPA does not have equal
authority over off-highway mobile cranes, which are nonroad vehicles,
and lawnmowers and string trimmers, which are nonvehicular nonroad
equipment. This comment asks EPA to acknowledge that it lacks authority
to regulate nonroad equipment.

First, EPA disagrees with the commenter's contention that the
nonroad engine definition ``equates'' nonroad engines with nonroad
equipment. The nonroad engine definition is written to include only
engines, and cannot be read to include equipment. The definition
clearly refers only to ``engines used in'' certain applications, not to
the applications themselves. Moreover, this definition has been
promulgated pursuant to numerous comments received by the Agency,
discussed above, that assert that the most appropriate definition of
nonroad engine is one that refers to the use or application of the
engine.

EPA also notes that this rulemaking does not promulgate any
standards for nonroad equipment, only for nonroad engines. The only
restriction on nonroad equipment manufacturers in this rulemaking is a
prohibition on the use of uncertified nonroad engines manufactured
after the applicable implementation dates. This prohibition is
necessary to enforce the engine-based standards and is authorized under
the Clean Air Act.

In addition, EPA does not agree that it lacks authority to regulate
nonroad equipment or particular applications of nonroad engines. CAA
section 213, as well as section 301(a), provide EPA with authority to
regulate both nonroad equipment and particular applications of nonroad
engines, as well as nonroad engines and nonroad vehicles.
Congress used the terms ``nonroad engine,'' ``equipment,'' and
``vehicle'' interchangeably (see, e.g., S. Rep., Legislative History of
the 1990 Amendments to the Clean Air Act, Committee on Environment and
Public Works to accompany S. 1630, December 20, 1989, at 104-105). It
is EPA's belief that Congress intended nonroad vehicles and engines to
be inclusive terms covering all manner and types of equipment not
defined as motor vehicles, vehicles for competition, or stationary
sources (see, e.g., H. Rep., Legislative History of the 1990 Amendments
to the Clean Air Act, Committee on Energy and Commerce to accompany
H.R. 3030, May 17, 1990, at 310). There is no evidence that Congress
intended to limit the reach of its nonroad mandate to self-propelled
vehicles; on the contrary, it appears that Congress used the term
vehicle to include any carrier for the engine.
Section 213 and the rest of the CAA provide EPA with authority to
regulate nonroad equipment and particular applications of nonroad
engines in nonroad equipment. The Act provides equal authority to
regulate off-highway mobile cranes, which are nonroad vehicles, and
lawnmowers, which are nonroad equipment.
Moreover, the interpretation of EPA's authority suggested by the
commenter would undermine the environmental and public health benefits
of the nonroad emission reduction program by creating a gaping
loophole. EPA can find no evidence that Congress intended the
regulation of certain nonroad engines, vehicles, and equipment that
cause or contribute to air pollution, but not the regulation of others.
Finally, there is a practical interrelationship between an engine
and the equipment that houses it or is powered by it. Equipment or
vehicle characteristics may have a significant impact on the emissions
associated with the operation of the engine. The nonroad engine
definition relies to a great extent on this interrelationship between
an engine and a piece of equipment to determine whether an engine is a
mobile or stationary source. In the future development of the nonroad
program, EPA may determine that it is most effective to test and
certify a nonroad engine integrally with its related equipment, rather
than separately. Additionally, it may become necessary and appropriate
to regulate aspects of equipment to control fuel spillage, evaporative
emissions, or refueling emissions. EPA believes that the CAA provides
authority for such regulation. EPA does not believe Congress, in giving
EPA the authority to regulate all nonroad engines, intended to create
an artificial barrier between the engine and the equipment that houses
it. Therefore, if EPA determines in future rulemakings that the most
effective way to control emissions from nonroad engines is to regulate
directly the nonroad equipment housing the engines, EPA shall do so
using its authority under the Clean Air Act.

V. Requirements of the Final Rule

This section provides a general overview of the major elements of
the final rule. A general discussion of comments submitted to EPA
during the public comment periods is presented in section VI.

A. Applicability

The regulations of today's action apply to all new nonroad CI
engines at or above 37 kW with certain exemptions and exclusions.
Hereafter the engines included in this rule will be referred to as
``large nonroad CI engines.''

The vast majority of large nonroad CI engines currently being used
and manufactured are diesel-fueled engines. The use of alternative
fuels by nonroad engines will not be necessary to meet the emission
standards. However, these regulations apply to large nonroad CI engines
regardless of the fuel that is used (for example, diesel, compressed
natural gas (CNG), rapeseed, methanol, ethanol, and blends). Provisions
have been included which allow manufacturers to apply for Administrator
approval of alternative test procedures if fuel other than diesel is to
be used.

B. Standards

EPA is adopting the proposed NO<INF>X emission and smoke standards
for all large nonroad CI engines at or above 37 kW produced on or after
the implementation dates presented below. Furthermore, EPA is adopting
standards for HC, CO, and PM emissions for engines at or above 130 kW,
consistent with those standards adopted by California in sections 2420-
2427, chapter 11, title 13 of the California Code of Regulations,
``California Regulation for New 1996 and Later Heavy-duty Off-road
Diesel Cycle Engines.''

All standards and units have been converted to metric in the final
rule (discussed in more detail in section VI.A.). For ease of use, the
tables below and in section V.C. show the English units
parenthetically. The metric units, however, are the units used in the
regulations and thus all affected parties must follow these units in
complying with the standards promulgated today.

Smoke A/L/

Net Power kW(Hp) HC g/kW-hr CO g/kW-hr NO<INF>X g/kW-hr PM g/kW-hr P\1\
(g/bH p-hr) (g/bH p-hr) (g/bH p-hr) (g/bH p-hr) (Percent)

<gr-thn-eq>130 (<gr-thn-eq>175)................ 1.3 11.4 9.2 0.54 20/15/50
(1.0) (8.5) (6.9) (0.4)

<gr-thn-eq>75 to =130 (<gr-thn-eq>100 to <175). ........... ........... 9.2 ........... 20/15/50
(6.9)

<gr-thn-eq>37 to <75 (<gr-thn-eq>50 to <100)... ........... ........... 9.2 ........... 20/15/50
(6.9)

\1\Smoke Opacity Standards are reported in terms of percent opacity during an acceleration mode, a lug mode and
the peak opacity on either the acceleration or lug modes.

In addition, EPA is prepared to propose and adopt additional
standards for HC, CO, and PM emissions for engines from 37 kW to less
than 130 kW consistent with those to be adopted by the European
Community (EEC) and the United Nations Economic Commission for Europe
(ECE) as soon as these groups finalize their requirements for HC, CO,
and PM emissions. The European standards are currently projected to be
as follows:

PM g/kW-hr

Net Power kW (Hp) HC g/kW-hr CO g/kW-hr (g/bHp-hr)
(g/bHp-hr) (g/bHp-hr)

<gr-thn-eq>130...................... \1\1.3 5.0 \1\0.54
(<gr-thn-eq>175).................... (1.0) (3.7) (0.40)
<gr-thn-eq>75 to <130............... 1.3 5.0 0.70
(<gr-thn-eq>100 to <175)............ (1.0) (3.7) (0.52)
<gr-thn-eq>37 to <75................ 1.3 6.5 0.85
(<gr-thn-eq>50 to <100)............. (1.0) (4.8) (0.63)

\1\Consistent with the current California standards.

Note that the adopted CO standard for engines at or above 130 kW
may be changed from 11.5 g/kW-hr to 5.0 g/kW-hr when the European rules
are final. This would ensure consistency between EPA and the more
stringent European standard. This is also compatible with California
since engines certified to the lower European CO standard would clearly
be below the California CO standard.

C. Implementation Dates

All engines produced by an engine manufacturer on or after January
1 of the implementation year specified below by power category must be
certified by the engine manufacturer according to the requirements in
effect for that year. No nonroad vehicle or equipment manufacturer may
install in its vehicles or equipment nonroad engines manufactured after
January 1 of the implementation year specified below unless such
engines are certified engines. EPA expects nonroad vehicle and
equipment manufacturers to begin installing certified engines as soon
as they become available from engine manufacturers, although EPA
understands that some transition period may be necessary for vehicle
and equipment manufacturers to deplete their inventory.
Early certification is allowed one year prior to the applicable
implementation date for engines participating in the averaging,
banking, and trading (ABT) program for NO<INF>X.

Engine size, kW (Hp) Implementation date

<gr-thn-eq>130 to <ls-thn-eq>560 January 1, 1996.
(<gr-thn-eq>175 to <ls-thn-eq>750).
<gr-thn-eq>75 to <130 (<gr-thn- January 1, 1997.
eq>100 to <175).
<gr-thn-eq>37 to <75 (<gr-thn-eq>50 January 1, 1998.
to <100).
>560 (>750)........................ January 1, 2000.

D. Certification and Test Procedures

Engine Family Selection

EPA is adopting the engine family definition as proposed. EPA had
expressed some concern in its proposal that, should it adopt HC, CO and
PM emission standards in the final rule, it was uncertain whether
manufacturers should be allowed to include engines with different
numbers of cylinders or cylinder orientations in the same engine
family. EPA argued that it was uncertain whether deterioration of HC,
CO and PM emission performance would proceed at different rates in-use
for engines with different numbers of cylinders. One commenter
expressed a strong desire to be able to consolidate engine families as
much as practicable. The commenter also reminded EPA of the substantial
enforcement liability program in this rule that would provide adequate
incentive to ensure a manufacturer makes reasonable use of the engine
family flexibilities.

The Agency is aware that additional built-in safeguards such as the
manufacturers' burden to define engine families in such a way as to
ensure all engine configurations have similar emission characteristics,
and the manufacturers' recall liability if all engine configurations
are not as durable as expected. The Agency has no additional data at
this time to address its original concern. However, the Agency does
believe that the enforcement provisions in this rule will provide
incentive to manufacturers to ensure that their engines are properly
grouped so that they can be appropriately represented by the selected
test engines.

Exhaust Emission Test Procedures

The smoke test procedures are adopted as they were proposed.
The gaseous emission 8-mode test procedures are finalized as
proposed with minor revisions. These procedures apply to HC and CO
emissions as well as NO<INF>X.

For PM emission measurement, EPA is adopting the California test
procedures finalized in Sections 2420-2427, Title 13 of the California
Code of Regulations, ``California Regulation for New 1996 and Later
Heavy-duty Off-road Diesel Cycle Engines,'' as amended by California
Air Resources Board Resolution 92-2, described in CARB mailout #93-42
dated September 1, 1993. These procedures are incorporated by reference
in the regulations.

Manufacturers of engines that are not able to operate properly over
the 8-mode or smoke test cycles (such as engines with constant speed
governors) may petition the Administrator prior to certification to
allow use of an alternative test procedure. Upon adequate demonstration
of need, the Administrator may allow use of alternative procedures. If
an engine is unable to be operated over the smoke test procedure, the
manufacturer must submit an alternative test plan to the Administrator
for approval in advance of any testing performed for certification
purposes. Use of alternative test procedures to demonstrate exhaust
emission compliance is discussed in Section VI.H.
Certification Test Fuel

EPA is adopting the certification test fuel specifications as
proposed. This is because the most common diesel fuel available to
nonroad engines will have a higher sulfur content than that required
for highway CI engines. Furthermore, to ensure that no commercially
available fuel is inadvertently excluded by this rule, EPA has
broadened the band of fuel sulfur content to include all fuels ranging
from greater than .05 percent to .5 percent fuel sulfur. However, as a
provision of harmonizing with California emission standards, and
explained below, EPA will allow engine manufacturers the option to use
test fuel specified by California, which contains lower sulfur content.
California's particulate standard is predicated on the use of low
sulfur fuel, which is the State-wide fuel standard for both nonroad and
highway engines. Therefore, the particulate standard EPA is adopting is
likewise predicated on the use of low sulfur fuel. However, EPA cannot
require testing on a fuel that is not widely available. To compensate
for the effect of sulfur on particulate emissions, EPA is permitting
two options for demonstrating compliance with those standards. First,
EPA will allow testing on the low sulfur California-specified test fuel
for compliance with all emission standards because sulfur content does
not impact HC, CO or NO<INF>X emissions. Second, when testing is
conducted with the higher sulfur federal certification fuel, the
particulate measurement may be adjusted by using the following equation
to reflect the effects of higher sulfur content of the fuel on
particulate emissions:

PM<INF>adj = PM - [BSFC * 0.0917 *(FSF - USLF<INF>CA)]
Where:

PM<INF>adj = adjusted measured PM level [g/Kw-hr]
PM = measured weighted PM level [g/Kw-hr]
BSFC = measured brake specific fuel consumption [G/Kw-hr]
FSF = fuel sulfur weight fraction

USLF<INF>CA = upper sulfur level weight fraction of California
specification.13

\1\3Should European requirements be finalized using a different
fuel sulfur level but maintaining the same PM emission standards as
those adopted in this rule and allowing no adjustment for fuel
sulfur content, EPA will consider revising its regulations to
replace the upper sulfur level weight fractions from the California
specification (that is, USLF<INF>CA) with the upper sulfur level
weight fraction from the final European test fuel specification

(that is, USLF<INF>eu).

This adjustment only applies to engines with no exhaust gas
aftertreatment. No adjustment is provided for engines with exhaust gas
aftertreatment.

The test fuel option selected by the manufacturer will not affect
enforcement testing for the HC, CO, NO<INF>X and smoke standards. EPA
may select either fuel, without constraints, for confirmatory or other
compliance testing for all of the standards, except particulate. For
particulate testing, EPA's options are constrained somewhat by the
manufacturer's choice of test fuel. If a manufacturer chooses to test
using low sulfur California test fuel, EPA would not use higher sulfur,
with the associated adjustment factor, for official enforcement of the
particulate standard. However, if a manufacturer chooses to test using
the higher sulfur fuel, EPA will presume the manufacturer accepts the
validity of the adjustment factor, in which case EPA could choose to do
a particulate enforcement test using either the higher sulfur fuel with
adjustment or the low sulfur fuel without adjustment. This issue is
discussed further in section VI. I. below.
4. Certification Test Engine Selection

EPA has revised the proposed certification test engine selection
criteria. The selection of an engine configuration within an engine
family will be based on the most fuel injected per stroke of an
injector at maximum power.

5. Labeling of Engines From Each Engine Family
EPA is adopting the proposed requirement to label each engine; some
minor modifications have been made to the proposal.
6. Definition of ``New''

EPA has added a definition of ``new'' as it pertains to nonroad
engines, vehicles and equipment.

7. Other Requirements

EPA is adopting as proposed:

(a) The requirement to obtain a federal certificate for each engine
family every model year;

(b) The recordkeeping and reporting requirements;
(c) Provisions for EPA confirmatory testing with minor technical
revisions; and

(d) The averaging, banking and trading provisions.
8. Fees

As discussed in the NPRM for this rulemaking, EPA is authorized
under section 217 of the CAA to establish fees to recover compliance
program costs associated with sections 206 and 207. EPA will propose to
establish fees for today's nonroad compliance program at some future
time, after associated costs are determined.

E. Enforcement

Prohibited Acts

EPA is adopting provisions that will prohibit introducing engines
into commerce in the U.S. which are not covered by a certificate of
conformity issued by EPA. Additionally it will be a prohibited act to
use a regulated but uncertified nonroad engine in nonroad vehicles or
equipment.

Selective Enforcement Auditing (SEA)
With the exception of some revisions described below, the SEA
program is being adopted as proposed. The large nonroad CI engine SEA
program is an emission compliance program for new production nonroad
engines and is authorized by CAA section 213. With this action EPA may
issue a SEA test order for any engine family for which EPA has issued a
certificate of conformity.

Emission Defect Warranty

EPA is adopting emission design and defect warranty requirements as
proposed. Nonroad engine manufacturers will be required to warrant
emission related components for a period of five years or 3,000 hours
from the date of purchase by the ultimate purchaser. This warranty will
help ensure the manufacturing of a durable emission system and will
require the manufacturer to cover all repairs and replacements
involving emission related components, at no cost to the ultimate
purchaser, during the warranty period.

Tampering Prohibitions

EPA is adopting as proposed prohibitions against tampering with
nonroad engines. Nonroad tampering provisions will help ensure that inuse
engines remain in certified configurations and continue to comply
with emission standards. All persons, will be prohibited from removing
or rendering inoperative any device or element of design installed on
or in a nonroad engine. The manufacturing, sale and installation of a
part or component intended for use with a nonroad engine, where a
principal effect of the part or component is to bypass, defeat, or
render inoperative a device or element of design of the nonroad engine
will also be prohibited.

Importation Restrictions

EPA is implementing the proposed restrictions on the importation of
nonconforming nonroad engines. Today's action will permit independent
commercial importers (ICIs) who hold valid certificates of conformity
issued by EPA to import nonconforming nonroad engines. Under this
program, the ICI must certify the engine to applicable U.S. regulations
via the certification process before an engine is imported. ICIs will
be responsible for assuring that subsequent to importation, the nonroad
engines are properly modified and/or tested to comply with EPA's
emission and other requirements over their useful lives. The ICIs will
also be responsible for recalls, maintenance instructions, emission
warranties, engine emission labeling, and maintaining adequate records
in the same manner as an engine manufacturer.
Today's action also provides certain exceptions to the restrictions
on importing nonconforming nonroad engines. These exceptions are
similar to the existing regulations on importing nonconforming motor
vehicles and motor vehicle engines and include exemptions for repairs
and alterations, testing, precertification, display, national security,
hardship, nonroad engines greater than 20 original production years
old, and certain nonroad engines proven to be identical, in all
material respects, to their corresponding U.S. versions. These
exceptions also include the exclusion of nonconforming engines used
solely for competition.

In-Use Enforcement

EPA is adopting the proposed regulations subjecting nonroad engine
manufacturers to the requirements of section 207 of the CAA. Under the
adopted regulations EPA has the authority to recall engines which do
not comply with emission standards in-use. As proposed, the in-use
testing liability period will be up to seven years or 6,000 hours,
which ever occurs first. The actual repair period for which a
manufacturer must remedy nonconformities would not be limited by actual
years or hours, thus any resulting recall will apply to all engines of
the recall family, regardless of the years or hours of an individual
engine.

In-use compliance with emission standards will be determined based
on test results using the same test procedure as that used in
certification. EPA is modeling its large nonroad CI engine recall
program after section 207 of the CAA and therefore the Administrator
may require manufacturers to recall applicable engines if a substantial
number of properly maintained and used engines are found to be out of
conformity with the regulations issued under section 213 of the CAA.
Defect Reporting

EPA is adopting the proposed emission defect reporting regulations
which require manufacturers to report to EPA emission-related defects
that affect a given class or category of engines. The emission defect
reporting regulations also specify procedural and reporting
requirements for manufacturers that initiate voluntary emission
recalls.

Exemptions

EPA is adopting the proposed regulations which allow manufacturers
and other persons, where appropriate, to request exemptions from
regulation for certain purposes. These purposes include testing,
display, national security, export, and for manufacturer-owned and
precertification nonroad engines.

VI. Public Participation and Discussion of Comments

EPA held a public hearing on June 25, 1993 at which testimony was
given by 14 individuals, including representatives from equipment and
engine manufacturers and states. The public comment period was open
until July 27, 1993. EPA received over 80 written comments during this
time. In addition, meetings were requested by two organizations and
held during the comment period. As mentioned previously, the public
comment period was reopened from October 4, 1993 through October 25,
1993. During this period, EPA received additional comments which were
given further consideration in developing the final rule. The
discussion of major comments and EPA's responses are divided into
general categories. More detailed Agency responses to comments may be
found in the ``Response to Comments'' document in the docket for this
rulemaking.

In addition, a related rule concerning preemption of state nonroad
regulations was proposed at 56 FR 45866, September 6, 1991. A public
hearing was conducted on September 20, 1991. Many industries presented
comments through an association or individually. Represented at the
hearing and in written comments are the following: engine
manufacturers; manufacturers and dealers of various types of equipment
including agricultural, construction, mining, utility, and lawn and
garden; manufacturers of emission controls; railroads; manufacturers of
industrial trucks; the San Diego Country Air Pollution Control
District; and the State of California. EPA considered these comments in
promulgating this final rule.

A. Conversion of Standards and Measures to Metric Units

EPA's proposed regulation presented standards and measures in nonmetric
units, with metric units given parenthetically. Comments were
received requesting that, for purposes of harmonization with Europe,
EPA present all standards and measures in metric units, forgoing the
non-metric units altogether. EPA has the authority to do so under the
Metric Conversion Act of 1975 and Executive Order of July 25, 1991.
Therefore, EPA is adopting metric units in the final rule.
In the final rule, the metric power equivalents (kilowatts (kW))
given for horsepower units in two cases are different from the proposed
equivalents. The 131 kW category in the NPRM is now 130 kW, and the 559
kW category is now 560 kW. EPA was requested to adopt the 130 and 560
kW categories because they are in harmony with categories currently
being developed by the European Community. An engine manufacturers'
association stated that so doing would not include or exclude any
engines that would not otherwise have been included or excluded in
EPA's proposed rule. EPA agrees that a one kW change will not
significantly affect the engine family implementation schedule.
The units in the tables of standards and implementation dates in
this preamble show the non-metric equivalents. The regulatory language
is exclusively metric.

B. Emission Standards

HC, CO, and PM Emission Standards

EPA proposed NO<INF>X and smoke standards and did not propose
standards for HC, CO, and PM. Since NO<INF>X emission was demonstrated
in the draft Regulatory Support Document to be largely unaffected by
transient operation, EPA is confident that an emission standard based
on the adopted steady-state 8-mode test procedures for NO<INF>X will
result in a sizable in-use emission reduction. Likewise for smoke, the
adopted on-highway smoke test procedures have both transient and
steady-state operating modes, giving EPA confidence that the necessary
technologies will be applied to meet the smoke standards which will
result in actual in-use emission reduction.
However, in its proposed rule, the Agency reasoned that sufficient
data and analyses had not been generated to adequately demonstrate that
the 8-mode test procedures are representative of potential transient
operation occurring in actual use. Since HC, CO, and PM emissions
typically increase during transient operation, the Agency was not
confident that standards for these three pollutants on the adopted
steady-state 8-mode test procedures would result in real emission
reduction in actual use and, thus, proposed not to regulate them.
However, EPA did request comment on the appropriateness of adopting
standards for these pollutants. In particular, EPA requested comment on
whether it should adopt California's standards for these pollutants.
State and local agencies, environmental groups, health agency
officials, and engine industry representatives all requested that
standards for HC, CO, and PM be included in the rule. The industry
argued that, while adequate data may not have been generated to
establish an emission reduction benefit of the additional standards,
adoption of the additional standards is critical to worldwide marketing
strategies which require regulatory harmony between the U.S. and
foreign government entities. The industry commenters claim, in this
context, that by harmonizing with the California standards and the
projected European standards presented in Section V.B., EPA would
actually reduce the cost to an engine manufacturer which would not be
compelled to build a different version of its engine for U.S.
consumption than would be built for the rest of the world. Arguments
were presented that in any case there would be no harm in regulating
these additional pollutant emissions and there might be some
consequential emission control or at least a capping effect on HC, CO,
and PM emissions.

EPA is committed to providing regulatory harmonization when it can
be done without compromising U.S. environmental goals. Since HC, CO,
and PM emissions are typically higher during transient operation, EPA
maintains its position that there is too much uncertainty about the
ability of the existing steady state test procedures to accurately
predict those emissions from in-use nonroad engines. Therefore, EPA
believes it is technically incorrect to claim emission reduction
benefits for HC, CO, and PM emissions as measured by the test procedure
being adopted. However, at the same time, EPA believes that adopting
these standards will not compromise U.S. nationally uniform
environmental goals.

In reaching the decision to regulate HC, CO, and PM, EPA had to
consider any additional costs which might be imposed, and queried the
industry during the public comment period. Engine manufacturers
responded that these additional standards would not result in added
cost, or that any added costs would be offset by the efficiency gained
by having harmonized standards. On the basis of these comments, EPA is
concluding that adopting HC, CO, and PM standards will not result in
increased cost burden.

EPA is not incorporating HC, CO, and PM into the averaging, banking
and trading option. The flexibility provided by this option is
desirable for NO<INF>X compliance, where there are quantifiable
environmental benefits to be gained. However, because HC, CO and PM
standards have been promulgated solely for harmonization with
California and Europe (neither of which allow ABT), and because the
benefits for HC, CO, and PM are not similarly quantifiable, ABT is not
appropriate for HC, CO, and PM. Moreover, the burden to the Agency and
to industry of tracking and enforcing ABT for HC, CO, and PM would
defeat the Agency's intent to minimize such burdens to the degree that
the Agency would reconsider its decision to adopt those standards at
all, an option the Agency is not willing to choose.
Smoke Standards

One commenter questioned EPA's authority to regulate smoke
emissions, stating that EPA did not demonstrate as required in CAA
section 213(a)(4) that smoke significantly contributes to air pollution
that may reasonably be anticipated to endanger public health or
welfare. EPA made a finding in the NPRM that smoke significantly
contributes to air pollution, based on smoke's impact on visibility. As
evidence of smoke's significant contribution to air pollution, EPA
specifically cited in its draft Regulatory Support Document the
agreement to reduce smoke from the Navajo Generating Station to improve
visibility in the Grand Canyon. EPA discussed in the NPRM why smoke may
reasonably be anticipated to endanger both public health and welfare.
EPA stated that ``there are indications that visible smoke may have an
adverse effect on health'' (58 FR 28809, 28845). The particles that
make up smoke, about 2.5 microns in diameter, are of a size that
reflects and refracts light. These particles are sufficiently small to
be inhaled into the lower lung cavities, thus posing a potential health
threat to the inhaler. See, for example, volume 329 of the New England
Journal of Medicine (December 9, 1993, p. 1753) for a discussion of the
association between particulate air pollution and mortality rates. EPA
also cited damage through soiling of urban buildings, homes, cars and
other property. EPA has met the statutory mandate of CAA section
213(a)(4) for smoke, and stands by its assessments presented in the
NPRM and RSD for this rulemaking. Hence, EPA is retaining the smoke
standards as proposed.

C. Lower Emission Standards

Environmentalists and states requested that EPA commit to a second
phase of emission standards for new large nonroad CI engines on an
``aggressive'' timeline. They are satisfied with the level of the
standard only on an interim basis and want to quickly move to a more
stringent standard. One commenter expressed concern that, without
specifying a deadline for promulgating a second phase of emission
standards in this rule, manufacturers will be slow to cooperate with
EPA in developing the new test procedures.
Engine manufacturers have asked for assurances that they will have
from five to eight years of ``regulatory stability'' before more
stringent standards are promulgated, in order to amortize their
investment in the current standards.

EPA believes that more stringent emission standards should not be
promulgated until the existing test cycle has been verified to be
representative, or until a more representative test cycle has been
developed. EPA is currently working with engine manufacturers to
evaluate actual in-use operating conditions and the test procedures
adopted in this rule. These data will be used to determine the
necessary modifications to the test procedures to ensure that more
stringent emission standards in the future result in actual in-use
emission reductions.

EPA has every intention of moving forward to determine the most
appropriate test procedures to use in future regulation of the engines
covered in this rule. EPA has found that coordination with industry on
clearly technical projects such as this is most beneficial since it
allows the Agency to receive early input as procedures are being
developed. Such early feedback creates an atmosphere of consensusbuilding
and allows the Agency to promulgate rules that are more
equitable, efficient and effective. At this point, however, EPA cannot
make assurances that it will provide engine manufacturers ``five to
eight years of regulatory stability,'' and neither can it commit to
promulgating more stringent standards on an ``aggressive'' timeline.

D. Exemptions

The American Mining Congress and other commenters in the mining
industry requested that surface mining equipment be exempted from
regulation since, according to the commenters, mining equipment
operates well outside nonattainment areas. One commenter within the
mining industry suggested that regulation of mining equipment should be
on a case-by-case basis. In other words, if the mining equipment at a
site is shown to contribute to ozone or CO nonattainment, the equipment
at that site should be subject to regulation. As an alternative, these
commenters suggested horsepower cutoffs ranging from 500 to 750
horsepower, above which nonroad equipment would be exempted from
compliance. These commenters also took exception to EPA's inclusion of
mining equipment in the construction equipment category, stating that
mining equipment is larger and more specialized than construction
equipment. Further, they stated that while construction equipment may
be used at a mine site, mining equipment is never used on a typical
urban construction site. These commenters also questioned EPA's
application of the proposed regulations to mining equipment since
emissions from such equipment were not included in the analysis
contained in the Nonroad Study.

The Agency sees no justifiable reason for exempting from regulation
all mining equipment or mining equipment above certain horsepower
cutoffs. The Agency is obliged to regulate all classes or categories of
new nonroad engines that cause or contribute (without reference to
significance) to ozone or CO pollution in more than one nonattainment
area. The Agency believes that such equipment, even if operating
outside nonattainment areas, is capable of contributing to ozone
nonattainment and, therefore, the Agency cannot justify an exemption of
mining equipment.

Regarding whether mining equipment is being inappropriately
included in the construction equipment category, the Agency believes
that mining equipment should not be treated as a separate class of
equipment. There is acknowledged crossover of equipment used on
construction and mining sites. For example, excavators, off-highway
trucks, crushing equipment, rubber tired loaders and dozers, and
crawler tractors are types of equipment commonly used by both mining
and construction industries. While some equipment may currently be used
only at mining sites, there is no way to predict future equipment use
with certainty. Given the high degree of similarity between
construction equipment and equipment used in mines, EPA believes that
it is justified in treating equipment used in mining as a subcategory
of construction equipment. EPA is not required, in determining classes
and categories of nonroad engines or vehicles, to subdivide such
engines into small subcategories of engines, each of which may have
less of an impact on nonattainment than the broader category in which
they are included.

Moreover, it should be noted that the American Mining Congress
specifically stated in its comments in the recent EPA rulemaking on
preemption of state standards for nonroad engines and vehicles that
surface mining equipment should be considered ``construction
equipment'' in the context of that rulemaking (EPA Docket No. A-91-18).
In addition, EPA held a meeting with the American Mining Congress on
July 22, 1993, and asked for specific information to support their
request for exemption from the proposed regulations. Such information
requests included specific dollar figures for the technology needed to
comply, a component level breakdown of costs, annual equipment sales
and horsepower ranges of mining equipment and other information
specifically targeted toward the impacts of mining equipment on ozone
and CO nonattainment.14 As of October 25, 1993, the close of this
rulemaking's second comment period, the Agency had not received this
information.

\1\4A complete breakdown of the information requested, as well
as a summary of the meeting, is contained in Docket #A-91-24, Item
No. IV-E-01.

Regarding the comment that mining equipment operates well outside
of nonattainment areas, the American Mining Congress submitted as part
of its public comment a report from the TRC Environmental Corporation
which states that 40 mine sites are located in ozone nonattainment
areas.15 Moreover, EPA is not required to make determinations of
nonroad contributions to air pollution on a site by site basis, or to
regulate on a site by site basis; CAA section 213 requires a national
program based on an aggregate significance determination.

\1\5``Analysis of Nonroad Engine Emissions in the Mining
Industry,'' TRC Environmental Corporation, July 1993, p. 1.

Commenters suggested the Agency use varying horsepower cutoffs
above which nonroad engines should not be regulated. The main rationale
given by commenters was that the technology improvements and/or design
changes to these larger engines would be too costly. EPA has received
very little data directly addressing the actual costs anticipated for
these changes, and no information was provided detailing the specific
unique high cost technologies that these engines would need, even after
the specific request by EPA discussed above. As discussed in section
VII, EPA agrees that the cost of compliance for engines over 560 kW
(750 horsepower) would be more than the average cost per engine
estimated in this rule. EPA uses the net present value of the retail
price increase per engine reported in this rule to estimate the cost of
this regulation to society, not to predict the cost of any particular
engine covered by this rule. While the Agency did not do a cost
breakout by engine size, EPA's assessment of the limited cost data
submitted by one manufacturer of engines greater than 560 kW suggests
that the retail price of these larger engines could increase by
approximately $100 per 75 kW due to this regulation. Therefore, in
absolute terms, the cost is greater for larger engines. However, in
relative terms, the price increase for larger engines only represents
about one percent of the total cost of the equipment in which the
engine is used. On average, this represents a slightly lower percentage
price increase than for smaller engines covered by this rule. EPA has
determined that this level of increase for extremely high cost
machinery is reasonable.

EPA also received several comments stating that certain farm
equipment, skid steer loaders in particular, should be exempted from
regulation because they do not significantly contribute to ozone
nonattainment. As discussed above, EPA is not required to make a
significance determination for every category of nonroad engine it
intends to regulate. The significance determination applies only to the
initial determination regarding emissions from all nonroad engines and
vehicles. Once that determination is made, the Agency shall promulgate
regulations for all classes and categories that contribute (without
reference to significance) to nonattainment in more than one area. The
Nonroad Study clearly shows that farm equipment air pollution causes or
contributes to nonattainment in several of the nonattainment areas
studied.

With regard to specific subcategories of farm equipment, EPA is not
required to make determinations regarding every subcategory of
equipment that it intends to regulate. The Senate, in fact, instructed
EPA not to disaggregate the universe of nonroad engines into small
subcategories.16 Therefore, given EPA's finding regarding farm
equipment, skid steer loaders and other subcategories of farm equipment
will not be exempted from the regulations promulgated in this notice.

\1\6Senate Report 101-228, p. 104. The Senate provisions
regarding nonroad engines were ultimately rejected in favor of the
House of Representatives' provisions, but the language in the Report
indicates the intent of Congress in determining the breadth of
categories.

E. Particulate Matter Test Procedures

EPA is adopting by reference the PM test procedures adopted by
California in Sections 2420-2427, Chapter 11, title 13 of the
California Code of Regulations, ``California Regulation for New 1996
and Later Heavy-Duty Off-Road Diesel Cycle Engines.'' California
developed its test procedures by combining portions of the June 2 and
June 30, 1992 versions of the test procedures being developed by the
International Standards Organization as ISO-8178 test procedures
recommended practices.

In determining the PM test procedures to adopt in the final rule,
EPA considered the need for harmonization and enforceability. EPA
determined that the California PM test procedures meet these two needs.
First, this procedure ensures harmonization with the State of
California, allowing manufacturers to design one engine for both the
California and federal markets. The California procedures include the
full range of the ISO-8178 recommended practices as published in June
1992, providing wide latitude for the conditions and methods used for
PM measurement. EPA is not concerned with allowing the engine
manufacturers to use the full latitude of ISO-8178 for certification
testing because, as previously discussed, no PM emission reduction
benefits are being claimed, and EPA has the ability to perform in-use
compliance testing over the entire range of the ISO-8178 procedures.
EPA is confident that its ability to perform compliance testing
using any procedure within the boundaries of ISO-8178 will ensure that
engine manufacturers use good judgment in selecting their specific PM
test procedures. At the same time, EPA recognizes the potential burden
of liability for emission compliance over the entire range of
conditions specified in ISO-8178. This burden results from an engine
manufacturer's responsibility to comply with emission standards under
any test conditions specified by the test procedures. Historically,
when a range of test conditions exist, manufacturers choose to test
with the conditions which are worst-case for emissions performance. To
the extent that a manufacturer is unable to determine with certainty
the worst-case conditions, it may be necessary to perform a number of
emission tests which bracket the range of test condition combinations
within the ISO-8178 procedures to ensure that the worst-case emissions
are accounted for. Thus the burden to the manufacturer is increased
testing dictated by the level of risk that a particular engine family
would fail EPA testing (compliance or in-use) due to an unaccounted-for
test condition specified in ISO-8178. However, EPA believes that the
overriding concern expressed in the comments for harmonization
outweighs the potential burden of liability to comply with a broad test
procedure. Furthermore, the Agency does not have an alternative test
procedure option that would ensure harmonization at this time.
EPA is satisfied that the adopted PM test procedures are
implementable and enforceable. The Agency is prepared to review any
proposals from the nonroad manufacturing industry to modify any
portions of the PM test procedures that would narrow the scope of test
conditions while maintaining the integrity of the procedures. EPA is
not prepared to make its own proposal to tighten the test procedure
specifications at this time as it might negatively impact harmonization
for an emittant for which EPA is claiming no emission benefit in this
rule.

EPA considered adopting a modified version of its current onhighway
engine test procedures for particulate contained in 40 CFR part
86, subpart N. This would address the flexibility issues regarding the
ISO-8178 procedure, because subpart N has tighter measurement
tolerances and specific methodologies and procedures for emission
measurement. However, EPA did not have an effective means to address
the various needs of the different manufacturers (that originally led
to the broad range of options in ISO-8178) in the time frame of this
rule without adversely affecting some manufacturers more than others.
Additionally, this approach presented some risk that the test
procedures developed from EPA's current regulations would contain some
elements not in harmony with California and Europe. Since EPA believes
the California PM test procedures will meet its needs and ensure
harmony, development of its own procedures based on subpart N was
determined less desirable at this time.
Finally, EPA considered, but rejected, adoption of the most recent
United Nation draft version of ISO-8178. This draft represents the most
current development of these test procedures and is compatible with
current European plans. However, the United Nation's draft version of
ISO-8178 must still go through a review process that could result in a
number of additional changes and will likely take one to two years
before being adopted. If EPA adopted the draft United Nations version,
the Agency could eventually find itself to be in harmony with neither
the California version nor the final adopted European version of ISO-
8178.

F. Smoke Test Procedures

Commenters requested that EPA revise the on-highway smoke
procedures in 40 CFR 86, Subpart I, which were proposed for this rule.
The same revisions were requested under a separate EPA action that
specifically focuses on technical clarification on the subpart I
procedures. Since part 89 regulations directly reference the part 86
subpart I procedures, EPA will not consider these comments in this
rule. Any revisions adopted under the separate EPA action of technical
amendments to part 86 subpart I procedures will likewise apply to
engines certified under part 89.

Manufacturers point out that this test was specifically designed
for on-highway truck engines and is less applicable to nonroad engine
usage, but agree that this test is the best available at this time. In
their comments, engine manufacturers agreed to use the on-highway smoke
test procedures until more representative and globally harmonized smoke
test procedures can be developed.

EPA is working closely with Europe and other government agencies as
well as with voluntary standard-setting organizations to develop new
smoke test procedures. These procedures are not sufficiently developed
at this time to reference or adopt.

EPA is willing to use cooperatively developed and harmonized smoke
test procedures that it determines meet its needs to control in-use
smoke emissions. A mechanism has been provided in this rule to allow
the use of such procedures via the alternative test procedures approval
process. With this process, the manufacturer requests EPA approval to
use the alternative test procedures in advance of certification. EPA
has authority to grant such a request if the procedures are determined
to be equivalent or better than the promulgated procedures.
In the absence of a ``world-wide'' smoke procedure, EPA is
confident the adopted procedures will reduce smoke emissions and will
ensure harmonization with California. California has pointed out it has
modified its test procedures somewhat by allowing the use of an in-line
smokemeter. EPA has included provisions by which a manufacturer may use
alternative measuring equipment upon demonstration that it correlates
with the current opacity meter.

G. Use of the On-highway Federal Test Procedure (FTP)

EPA has decided not to allow use of the on-highway FTP for any
aspect of nonroad engine certification. Based on data received during
the comment period and discussed in the Response to Comments document,
the ability of the on-highway test cycle to predict nonroad NO<INF>X
emissions for some types of engines is uncertain. In addition, even
those commenters in support of the on-highway FTP option stated that
they would likely make minimal use of it. These reasons form the basis
of EPA's decision not to adopt this option.

H. Alternate Test Procedures for Constant Speed Engines

A number of engine manufacturers requested that EPA allow use of an
alternate test procedure for engines that use constant speed governors.
These engines are typically used on applications such as generator sets
that must be capable of holding one precise speed during operation.
Commenters have stated that these engines are not properly represented
by, and may not be capable of operating over, the 8-mode test
procedures. Commenters recommended that EPA allow use of the ISO 8178-
D2 test procedures (2-mode) for constant speed engines.
EPA has a mechanism in the regulations that would allow this
request for alternate test procedures to be made with full technical
justification. Insufficient data were presented for EPA to determine
the need and appropriateness of adopting the specific ISO 8178-D2 test
procedures for constant speed engines in this final rule. However,
there may be adequate technical justification for such an alternate
test procedure. EPA has made available in the regulations provisions by
which an engine manufacturer may propose to the Administrator the use
of an alternate test procedure with adequate demonstration. This would
be the appropriate mechanism for manufacturers of constant speed
engines should they determine that the 8-mode test procedures are
unrepresentative for their engines.

I. Certification Test Fuel

EPA is adopting test fuel requirements which allow an engine
manufacturer to submit data either using a test fuel that falls within
the specification in the proposed regulations, modified to expand the
fuel sulfur range to greater than .05 percent to .5 percent fuel
sulfur, or a lower sulfur test fuel that is consistent with the test
fuel to be used in California. EPA retains the right to perform
confirmatory or in-use enforcement testing using either test fuel.
EPA modified the fuel sulfur concentration range of its proposed
test fuel based on concerns that the range specified may inadvertently
preclude the use of a fuel that could be available for use now or in
the future. For example, the current proposal in Europe specifies a
test fuel with sulfur content ranging from .1 percent to .2 percent.
Should the final European requirements specify such a fuel in the
future, EPA's proposal would not have allowed use of this fuel. As this
is not EPA's intent, the Agency chose to broaden the range of fuel
sulfur content specified in Table 4 to Appendix A of Subpart D in Part
89 of today's regulation.

EPA proposed that all nonroad engines be certified using test fuel
with a sulfur content of 0.2 to 0.5 percent sulfur by weight. EPA
reasoned that although federal on-highway and California state-wide
sulfur specifications will be .03 to .05 percent sulfur by weight, some
diesel fuel producers will continue to provide fuel with a higher
sulfur content for 49-state nonroad use. EPA believes some producers
will decide not to incur the cost of purchasing and operating
hydrotreating equipment necessary for sulfur removal in the absence of
a requirement to provide low sulfur fuel for the federal nonroad
segment of the market. Therefore, it is likely that the fuel available
to the majority of nonroad engines will be higher sulfur fuel.
Manufacturers requested to certify on low sulfur fuel because it
will save them the cost of performing an extra test (that is, one on
high sulfur fuel for the federal rule and one on low sulfur fuel for
California). They argued that because the sulfur content of the fuel
does not influence the production of NO<INF>X emission and smoke, they
should be allowed to use low sulfur fuel for certification testing.
EPA believes that using fuel specifications of commercially
available fuel for certification testing is an important demonstration
of emission performance of in-use nonroad engines. EPA acknowledges
that, in this case, the sulfur content of the test fuel will not impact
either NO<INF>X or smoke emissions. However, EPA has agreed to adopt PM
standards for the purposes of harmonization with California and Europe.
It is generally accepted that fuel sulfur has a noticeable impact on PM
emissions. The impact of fuel sulfur on PM, NO<INF>X and smoke
emissions is discussed further in the Response to Comments document.
Since fuel sulfur does have an impact on PM emissions, PM emissions in
the federal fleet will be higher in actual use than in the California
fleet where the only available fuel will have low sulfur content. While
this rationale would argue against allowing use of low sulfur
certification fuel, at the same time, it is likely that the engines
certified on low sulfur fuel will have no higher PM emission in actual
use than would have resulted had EPA promulgated only NO<INF>X and
smoke emission standards. Because harmonization, rather than emission
benefits, is the driving factor behind EPA's decision to impose the PM
standard, EPA sees no need to increase the testing burden by requiring
a different certification fuel specification to demonstrate compliance
with the PM standard.

For these reasons, EPA will, at this time, allow engine
manufacturers the option to use low sulfur test fuel as specified in
the regulatory language and consistent with California regulations. EPA
may not continue to allow this option in future regulations where
emission benefits for PM reduction are claimed, unless EPA is satisfied
that the low sulfur test fuel is the fuel generally used by the
regulated engines. Manufacturers using the higher sulfur test fuel may
normalize the PM emission results with the equation discussed in
section V.D.3.

J. Certification Test Engine Selection

EPA proposed that the test engine selected to represent an engine
family be a ``worst case emitter.'' This proposal allowed each
manufacturer to use its best technical judgment based on unique
understanding of the specific engine design it is certifying. The
flexibility of such a methodology could result in the most cost
effective and most accurate selections, because the selection would be
tailored to the specific engine family being considered.
Engine manufacturers were not comfortable taking on the uncertainty
of choosing their own ``worst case'' test engine, pointing out that
``worst case'' is ambiguous. For example, what is worst case for
NO<INF>X may not be worst case for smoke.
EPA is aware of this tendency for ``worst case'' to be emission
specific. For that reason, in the past, the federal on-highway rules
and CARB's rule have specified that the engine selected for
certification testing must be the one that injects the most fuel per
stroke of an injector at maximum power. This approach generally results
in the selection of the least efficient design within the engine
family. While this approach is more prescriptive than the proposal, it
generally results in more consistency and is more likely to assure the
selection of worst case for at least some of the emittants. It gives
manufacturers a more defined program and creates less administrative
burden than the proposed method which required manufacturers and EPA to
make determinations and evaluations for each engine family.
For the reasons discussed above, EPA is adopting this more
traditional engine selection criteria--most fuel per stroke of an
injector at maximum power--in the final rule.

K. Miscellaneous Certification Issues

Engine Labeling

Comments were received requesting that EPA modify some of the
proposed engine labeling requirements to be consistent with California
regulations. Some of the modifications requested were wording changes.
Others involved deleting or changing labeling requirements. EPA's
response to these requests is included in the Response to Comments
document. One request for a modification had the potential for a more
significant impact on industry. This request was to add a provision
requiring ``supplemental labels'' to be installed by the equipment
manufacturer should the original engine label be obscured after engine
installation. EPA believes this provision would impose an additional
burden on the equipment manufacturers (in the form of label costs and
recordkeeping to ensure the correct label was placed on the equipment)
and that no significant benefit would be gained. Thus, EPA is not
requiring the use of supplemental labels, but will not prohibit
equipment manufacturers from using such labels, provided the labels
meet the labeling requirements set forth in the regulation.
Requiring Yearly Certification, Accepting California and European
Certificates

Comments were received requesting that EPA not require yearly
certification in cases where no changes to the engine family were made.
EPA is retaining this requirement. It believes that the burden imposed
on manufacturers in cases where no changes are made is minimal (no
additional testing required and only the resubmission of paperwork from
the previous year), and that yearly certification ensures continuity
and equitable treatment among manufacturers.
A commenter also requested that EPA accept certification by
California or Europe in lieu of federal certification for reasons of
economy. EPA's on-highway certification program requires that every
vehicle sold in the United States be covered by a federal certificate
of conformity. On-highway manufacturers are permitted to ``carry
across'' emission data from testing performed to demonstrate compliance
with California regulations to satisfy federal requirements. This is
possible because the test procedures are identical. For the nonroad
certification program, EPA envisions that similar certification and
carryover/carry across policies will be in effect, which will allow
manufacturers to use the test data from a test performed for European
or California certification to satisfy federal requirements as long as
the manufacturer provides evidence that the procedures used comply with
the federal regulations. It is EPA's responsibility to assure
compliance with federal regulations. Manufacturers should be assured,
however, that the consistency and quality of the California
certification program is such that engine families certified by
California will very likely receive federal certification. At this
time, European regulations are not final, so EPA cannot yet officially
harmonize its requirements with Europe. Therefore, EPA is finalizing
its proposal to require an annual federal certificate for each engine
family.

Technical Certification Test Procedure Revisions
Comments were provided on subparts D and E of the regulatory
language, dealing with certification test equipment and test
procedures. In some cases, the comments were corrections of
typographical errors or inconsistencies within the regulatory language.
In other cases, EPA was requested to modify technical aspects of its
proposed procedure. EPA adopted some, but not all of, the requested
changes. These are discussed in the Response to Comments Document.

L. Implementation Dates

EPA is adopting the implementation schedule as proposed.
Environmental and state organizations commented that EPA should
shorten the total implementation period, stating that staggering
implementation up to the year 2000 would delay important emissions
benefits. On the other hand, engine manufacturers asked for one to two
years additional time, citing costs and facility constraints. Equipment
manufacturers also asked for one year to eighteen months to implement
necessary equipment changes.

In addressing state and environmental concerns, EPA considered a
number of factors in its phase-in schedule determination. First, the
category of engines to be regulated in 1996 represents about 30 percent
of the total population. This first group includes engines similar to
existing on-highway engines which can directly utilize the on-highway
emission control strategies and will produce a substantial early
benefit. The other three categories of engines belong to a
manufacturing segment of the nonroad industry that has, for the most
part, not previously been subject to EPA emission standards.
Manufacturers of these categories of engines have neither the
facilities in place to collect required information nor staff with
experience in the certification process. Further, the phase-in schedule
was designed to allow time for the technical development which will be
needed for the category of smaller-sized engines to comply with the
standards. Finally, over 95 percent of the total engine population to
be regulated will be in compliance by the 1998 model year. The final
category (in the year 2000, engines at or above 560 kW) represents a
small percentage of the yearly sales population.
EPA believes that engine and equipment manufacturers have been
provided enough flexibility in this rule (through such features as ABT
for NO<INF>X and staggered schedules) to allow enough lead time for
them to make any necessary changes or modifications by the
implementation date. Engine manufacturers have stated that they intend
to use the flexibilities of this rule to minimize the impact of these
regulations on their equipment manufacturer customers. EPA designed the
phase-in schedule so that smaller engines, which will be more difficult
to control to the adopted NO<INF>X standard, and equipment using these
engines, which may require the most modification due to tighter
packaging constraints, have an additional one to two years for
development before regulation. Furthermore, early banking allows
manufacturers to selectively forego modifying specific models by
collecting credits one year in advance of implementation from engines
that have been made to comply with the NO<INF>X standards before the
implementation date of the standard. Finally, ABT provides to
manufacturers of that small percentage of engines requiring extensive
modification the ongoing option to avoid situations where high cost or
tight time constraints make modifications unreasonable. Therefore, EPA
is retaining the implementation schedule as proposed. No additional
time is being granted to engine, vehicle or equipment manufacturers.
However, EPA will allow vehicle and equipment manufacturers a
reasonable amount of time after the implementation dates for the
different engine categories so that the equipment and vehicle
manufacturers can clear their inventory of unregulated engines.

M. In-use Enforcement

EPA proposed an in-use recall program which included testing of inuse
engines. EPA believes that a critical element in the success of its
nonroad program is assuring that manufacturers build engines that
continue to meet emission standards beyond the certification and
production stages.

Under the adopted regulations, EPA has the authority to recall
engines which do not comply with emission standards in-use. As
proposed, the in-use testing liability period will be up to seven years
or 6,000 hours, whichever occurs first. This represents 70 to 75
percent of the nonroad engine average expected useful life. The repair
period for which a manufacturer must remedy nonconformities would not
be limited by actual years or hours; thus any resulting recall may be
required to be applied to all engines of the recall family, regardless
of the years or hours of an individual engine. In-use compliance with
emission standards will be determined based on test results using the
same test procedure as that used in certification.
One commenter expressed concern that EPA's recall program carefully
select in-use engines which have been properly maintained and used and
that are representative of engines in-use. EPA acknowledges the concern
of this commenter. The Agency conducts its on-highway recall program
with careful attention to compliance with the requirements of the CAA
concerning proper maintenance and use, and will continue to do so for
the nonroad program, although differences between uses for on-highway
and nonroad equipment may require certain deviations from the onhighway
program. EPA is modeling its large nonroad CI engine recall
program after section 207 of the CAA and therefore the Administrator
may require manufacturers to recall applicable engines if a substantial
number of properly maintained and used engines are found to be out of
conformity with the regulations issued under section 213 of the CAA.
The recall regulations adopted today provide procedures and
requirements for manufacturers of engines for which a determination of
nonconformity has been made. Such requirements include notification to
be sent to engine owners, the manufacturer's remedial plan and EPA
approval of the plan, and procedures to be followed in the event that
the manufacturer requests a public hearing to contest the
Administrator's finding of nonconformity.

N. Useful Life

EPA is adopting the definition of useful life as proposed with
additional conditions. The useful life of engines covered by this rule
is ten years or 8,000 hours, whichever comes first. Further, the useful
life ends when the engine is scrapped or rebuilt. EPA is adding a
provision allowing the manufacturer to apply to the Administrator for a
shorter useful life period for engines that are subject to severe
service in seasonal equipment or that are designed specifically for
lower useful life hours to match equipment life.
Engine useful life defines the period of time a manufacturer is
liable for the emissions that the engine emits. In-use surveillance
emission testing may be conducted at any time by EPA to determine if an
engine family, after some time in use, is still meeting emission
standards. EPA is adopting an in-use testing and recall program based
on testing for a period of seven years or 6,000 hours, representing 70
to 75 percent of the average expected useful life for nonroad engines.
Therefore, while the manufacturer's liability for its engines covers
the full useful life, evaluation of an engine family's in-use
compliance will be based on those engines within the engine family that
have attained 70 to 75 percent or less of their expected useful life.
This not only allows EPA to find more properly maintained and used
engines, but also allows for variation in the durability of different
engine configurations within the same engine family without selecting
engines that are at the end of their useful life.
While generally agreeing with the ten year/8,000 hour useful life
for most engines, manufacturers expressed their concern that some
engine families are expected to have a useful life less than 8,000
hours. These engines are designed to be used in severe conditions,
often in seasonal equipment, or equipment with a short useful life.
Manufacturers are concerned that, should all engines be assumed to last
for 8,000 hours, in-use testing of these severe application engines at
6,000 hours (that is, 75 percent of the useful life) would unfairly
penalize severe application engines that could in fact be outside of
their designed shorter useful life. EPA understands that such a
situation could exist, and thus is providing means for the manufacturer
to petition the Administrator for an alternative useful life as stated
previously. Solid engineering data should accompany the request so that
a reliable engineering judgment can be made.
Two commenters requested that EPA adopt a shorter useful life
period for engine families with individual cylinder displacement below
a specified volume. It appears that this suggestion was intended to
provide a straightforward method to administer useful life at the time
of certification. However, EPA is not aware of a supportable technical
rationale that would suggest there is correlation between cylinder
volume and useful life, or that engines with smaller cylinder volumes
wear out faster than engines with larger cylinder volumes. Smaller
engines are also installed in smaller equipment and the relative work
expectation is no greater than larger engines in larger equipment. Most
engines covered by this rule are built to operate at full load/rated
speed most of the time. Therefore, in relative terms, engines are
generally equally stressed during their lifetime regardless of their
size or power. For these reasons, EPA does not believe it is
appropriate to define a shorter useful life for all engines under a
specified cylinder volume. EPA has provided a means for a manufacturer
to provide evidence that would allow severe service engines to be held
to a shorter useful life.

O. Locomotive Engines

EPA proposed to exclude engines used to propel locomotives from
this rulemaking, as regulation of such engines is being undertaken
separately. EPA did not, however, exclude other engines operated on
locomotives from this rulemaking. EPA requested comment as to whether
such other engines (``auxiliary engines'') should be regulated in this
or the later locomotives action.

EPA received several comments on this issue. The commenters all
noted that auxiliary engines are appropriately regulated under section
213(a)(5) as ``engines used in locomotives.'' EPA agrees with this
determination and is promulgating a definition of ``engines used in
locomotives'' that corresponds to this determination. While there was
general agreement with the regulatory authority under which auxiliary
engines used on locomotives can be regulated, comments were received
both agreeing and disagreeing with EPA's proposal that the auxiliary
engines should be regulated in today's rulemaking action. EPA believes
that the statutory mandate of section 213(a)(5) allows EPA to regulate
auxiliary engines in this rulemaking. Moreover, the standard under
which such engines are to be regulated is virtually identical to the
standard under section 213(a)(3). EPA also received comments indicating
that auxiliary engines are similar in design and performance to other
nonroad engines regulated in this rulemaking, and that such engines
should therefore be regulated in this rulemaking.
Therefore, EPA is including auxiliary large CI engines operated on
locomotives in this rulemaking. This issue is discussed further in the
Response to Comments in the docket.

P. Vehicle and Equipment Manufacturer Requirements

EPA is finalizing the requirement that nonroad vehicle and
equipment manufacturers and importers use certified nonroad engines.
EPA believes that the most effective way to ensure that certified
engines are used in nonroad vehicles and equipment is to require such
engines to be used.

In the May 17, 1993 NPRM, EPA stated that CAA section 213 provides
authority to require nonroad vehicle and equipment manufacturers to use
certified nonroad engines. However, EPA did not propose such a
requirement. Instead, EPA requested comment on how it might assure that
only certified nonroad engines be used in nonroad vehicles and
equipment. EPA received comments on this issue from a State and an
environmental association. Both comments requested that nonroad vehicle
and equipment manufacturers be required to use certified nonroad
engines. One comment agreed that EPA has authority under CAA section
213 to establish such a requirement, and the other pointed out that the
entire program would be undercut without such a requirement.
In the October 4, 1993 notice, EPA proposed requiring nonroad
vehicle and equipment manufacturers and importers to use certified
nonroad engines. EPA received 12 comments on this issue, from six
companies, four industry associations, one State, and one environmental
association.

Two commenters opposed the establishment of this requirement. One
company argued that failure to require use of certified engines would
not undercut the program because engine inventories are already kept to
a minimum as their purchase is a significant investment. An association
argued that without a technical support document and regulatory
language, it could not comment meaningfully.
EPA disagrees that industry inventory control practices can take
the place of a requirement that certified nonroad engines be used in
nonroad vehicles and equipment. Without a requirement that certified
engines be used, nonroad vehicle and equipment manufacturers would be
free to use uncertified engines, thus undermining the environmental and
public health benefits of the nonroad large CI engine emission
reduction program. EPA is not requiring vehicle or equipment
manufacturers to be responsible for certification or performance of
nonroad engines; that is the responsibility of the engine manufacturer.
The final regulations merely prohibit nonroad vehicle and equipment
manufacturers from using uncertified nonroad engines in their nonroad
vehicles and equipment. Violation of this prohibition would be a
violation of CAA section 203(a), and would subject nonroad vehicle and
equipment manufacturers to sanctions under sections 204 and 205. EPA
does not agree that the October 4, 1993 notice was so lacking in
specificity as to require reproposal. In fact, this prohibition was
clearly discussed in the October 4 notice. EPA does not find regulatory
language regarding prohibited acts to have been required in the October
4 notice because such language would have only restated the requirement
that nonroad vehicle and equipment manufacturers must use certified
nonroad engines. That requirement was clearly spelled out in the
notice.

Several commenters agreed with the requirement. Of the two
companies that supported the requirement, one stated that the
responsibility of vehicle and equipment manufacturers should be limited
to assuring that engines have emission compliance labels, and that
engine manufacturers should be responsible for certification, testing,
audits, warranty, and recall. A State that supported the requirement
said it is the only way to ensure that certified engines are used. An
environmental association said the requirement should improve the
enforceability of the rule. EPA agrees with these comments. The nonroad
vehicle and equipment manufacturer is responsible only for assuring
that certified engines are used.

Several commenters neither agreed nor disagreed with the
requirement but raised questions regarding it. Several commenters asked
about the use of noncertified engines built prior to the implementation
dates of this regulation. Several commenters requested implementation
dates for vehicles and equipment, to provide sufficient lead time for
engine manufacturers to produce certified engines for vehicle and
equipment manufacturers to use. Two commenters stated that an
implementation date for engine manufacturers was sufficient.
EPA is not establishing separate implementation dates for nonroad
vehicle and equipment manufacturers. However, EPA recognizes that
certified engines are not likely to be available in the numbers needed
by nonroad vehicle and equipment manufacturers on the implementation
date, and that vehicle and equipment manufacturers will continue to use
noncertified engines built prior to the implementation date until
noncertified engine inventories are used up and certified engines are
available. As long as vehicle and equipment manufacturers do not
inventory engines outside of normal business practices (that is, as
long as they do not stockpile noncertified engines), vehicle and
equipment manufacturers will be considered to be in compliance.
Another question raised by several commenters regards products
intended for export. Commenters asked whether engine manufacturers can
continue to produce noncertified engines for export, and whether
noncertified engines may be imported for use in nonroad vehicles and
equipment intended for export. One commenter requested an exemption
from liability for engine and equipment manufacturers if nonroad
vehicles or equipment sold for export are used in the U.S.
This regulation does not prohibit import of noncertified engines
for use in nonroad vehicles and equipment intended for export. As
originally proposed, the exemption for repair and alteration in 40 CFR
89.611-96(b)(1) will allow the import under bond of noncertified
engines for use in vehicles and equipment intended for export. Further,
this regulation does not prohibit the manufacture of noncertified
engines intended for export. Manufacture of noncertified engines
intended for export is allowed under the conditions specified in 40 CFR
89.909-96(a), as originally proposed. EPA is not providing a blanket
exemption from liability for nonroad manufacturers whose products,
intended for export, are used in the U.S. Such manufacturers may, in
fact, be liable for sanctions. Each case must be determined on its own
merits.

Q. Alternative Fuels

The Agency proposed that the use of alternative fuels would not be
necessary to comply with the emission standards, but allowed any
manufacturer wanting to use alternative fuels to petition the
Administrator for approval of alternative test procedures appropriate
for that fuel.

Two commenters addressed alternative fuels. One argued that
alternative-fueled CI engines should be exempt from regulation because
of increased costs and increased competition with non-CI alternativefueled
engines. The other commenter stated that EPA should include all
natural gas engines in this regulation, establish better test
procedures as soon as possible, and allow these engines to certify to
the same standards.

EPA will adopt as proposed its provisions to include alternative
fuel CI engines. No data were provided to support any of the statements
made by commenters. EPA still believes that including alternative fuel
engines is appropriate. Any additional cost for these engines to
certify is small and comparable to that of diesel fueled engines. EPA
reserves the right to adjust standards when necessary, such as
adjusting the HC standard to its non-methane equivalent, for certain
alternative fuels.

R. Selective Enforcement Auditing

EPA received a number of comments on its proposed Selective
Enforcement Auditing (SEA) program for large nonroad CI engines. The
proposed nonroad SEA program was designed to be similar to the existing
on-highway program for heavy-duty motor vehicle engines, with some
modifications to accommodate differences between the two industries.
Comments indicate that industry understands EPA's need for the SEA
program, but concern was expressed regarding EPA's proposed changes
from the on-highway program to adapt to the large nonroad CI engine
industry.

EPA proposed to determine annual limits for the number of SEAs a
manufacturer would receive. Each passing audit counts as one toward a
manufacturer's annual limit. EPA's on-highway light-duty vehicle (LDV),
light-duty truck (LDT) and heavy-duty engine (HDE) programs determine
annual limits by dividing a manufacturer's projected annual production
by 300,000 for LDV and LDT manufacturers and 30,000 for HDE
manufacturers, then rounding to the nearest whole number. If the
calculated production factor is less than one, the figure is set at one
for that manufacturer.

To compensate for differences between the on-highway and nonroad
industries, EPA proposed that nonroad engine manufacturers' annual
limits would be determined by first calculating two annual limit
factors, the production factor and the family factor. These factors
respectively represent the maximum number of audits based on yearly
annual sales and on the number of engine families produced in that
model year.

The production factor was derived from the annual limits currently
used in the on-highway SEA programs and the relative contributions of
emissions from on-highway and nonroad sources. EPA proposed that the
production factor should be the projected annual nonroad engine sales
of each manufacturer divided by 9,500 and rounded to the nearest whole
number. If the calculated production factor is less than one, the
figure is set at one for that manufacturer.
The family factor was proposed as an alternative method to
compensate for situations where manufacturers may have low production
but a large number of engine families. EPA proposed that the family
factor would be determined by dividing the number of engine families
certified by the manufacturer in a given model year by five and
rounding to the nearest whole number.

EPA proposed to use whichever value is higher of either the
production factor or the family factor as the annual limit of SEAs for
a manufacturer.

Manufacturers commented that EPA was putting a larger SEA burden on
nonroad manufacturers than on on-highway manufacturers. They
recommended eliminating the family factor and that annual limits be
determined, as in the on-highway HDE SEA program, by dividing by 30,000
and rounding to the nearest whole number.
Annual limits were also discussed at the public hearing for this
rule on June 30, 1993. At that time EPA expressed concern that if a
manufacturer were assigned an annual limit of one, and that
manufacturer passed an SEA early in the model year, the incentive to
maintain close control over emissions may decrease or the desire to
establish very low emission limits to maximize credits in an averaging
program might increase the risk of noncompliance. Similarly, the
manufacturer could modify its production to increase emissions with the
knowledge that no more SEAs would likely be assigned during that model
year.

EPA has decided to revise its proposed production factor method for
determining annual limits. As commented upon, EPA's proposed production
factor analysis did not take into consideration projected emission
reductions for large nonroad CI engines. EPA estimated that the
emission contribution for large nonroad CI engines is approximately
half of the contribution for on-highway sources. However, EPA estimates
that NO<INF>X emissions from nonroad engines will decrease by
approximately 37 percent by the year 2025 or when a complete fleet
turnover occurs. Therefore, EPA reevaluated its production factor
analysis and determined that the production factor divisor should be
16,000.

EPA has decided to retain the family factor method for determining
annual limits. This method was proposed to help compensate for the
expected low annual production per engine family and for the possible
multitude of engine families with relatively few SEAs per manufacturer
to check compliance. EPA estimates that the average annual production
per engine family for large nonroad CI engines, even with the expanded
engine family definition, will be less than one tenth and less than one
twentieth the average production of on-highway HDE and combined LDV/LDT
engine families respectively. Consequently, EPA believes the family
factor in combination with the production factor is necessary to assign
annual limits to large nonroad CI engine manufacturers.
As in the on-highway program, a goal of the nonroad SEA program is
to encourage manufacturers to perform self-auditing. Some manufacturers
commented that EPA should develop specific guidelines for counting
self-auditing against manufacturers' annual limits. Additionally, it
was suggested that EPA should count audits conducted by CARB toward
annual limits.

EPA recognizes the time, effort and cost manufacturers expend on
self-audit testing and considers the quality, scope and effectiveness
of such programs when assigning audits to a manufacturer. However,
EPA's on-highway HDE SEA program has had audit failures even when a
manufacturer's self-auditing showed that engines were in compliance
with standards. Consequently, EPA believes that spot checks of
manufacturer's self-audit programs by SEAs are necessary.
The criteria governing the assignment of audits are too numerous
and interconnected to make specific guidelines relating self-auditing
to annual limits useful. For instance, a manufacturer with a
comprehensive self-audit program who is reluctant to remedy
deficiencies and fails SEAs warrants continued attention by EPA just as
a manufacturer with a minimal program is likely to receive few SEAs if
it routinely designs and produces engines well below emission
standards. Likewise, manufacturers who set unusually low FELs in
averaging programs will be subject to extra scrutiny.
Substantial consideration will be given to assembly line testing
required by CARB on engine families sold nationwide when the CARB test
protocols (for example, sampling plan) are as stringent as EPA's. While
EPA will not reduce its annual limits based on CARB audits, it will
work together with CARB to exchange emission test data and consequently
more efficiently assess compliance with applicable standards.
Manufacturers will be notified of SEAs by means of a test order.
EPA proposed that the test order would specify the engine family to be
audited, or EPA could specify an engine configuration or range of
configurations from a family to be audited. Manufacturers commented
that, by auditing engine families, EPA could be significantly
increasing the SEA burden on manufacturers. However, as indicated in
the NPRM, EPA planned to consider requests by manufacturers to exclude
particular engines or configurations from test samples for reasons such
as urgent customer orders or to minimize test cell set-up time. EPA
still plans to consider those requests.
EPA proposed that imported engines could be selected at ports of
entry or storage locations in the U.S. SEA engines are typically
selected from the point of final engine assembly or from a storage or
shipping facility. Manufacturers commented that selecting foreignproduced
engines at ports should be an option but not a requirement.
Comments also indicated that port selections could significantly
increase the manufacturers' SEA costs.

However, as indicated in the NPRM, manufacturers could designate
selection locations to minimize disruption and shipping costs. EPA
would not likely select engines for SEAs that are only imported
installed in equipment; instead, SEAs of those engines would usually
occur during foreign trips by SEA staff.
The total number of engines tested in an SEA will be dictated by
the number of engines required to reach the statistically acceptable
pass/fail decision within the sampling plan applied. As in the onhighway
program, these sampling plans were designed to meet a 40
percent Acceptable Quality Level (AQL).
EPA proposed to use the same sampling plans used for the on-highway
HDE SEA program with two revisions. The proposed revisions were to
include a sampling plan (Plan AA) for lower production engines and to
permit the use of the on-highway sampling plan A on families with
projected production between 20 and 99 engines. Plan AA was proposed as
an option for families with projected annual production between 20 and
50 engines and to permit an audit pass decision in as few as three
tests with a maximum of 20 tests.

Manufacturers requested that EPA provide further flexibility in the
use of sampling plans. It was requested that EPA make each sampling
plan available for manufacturers regardless of the audited engine's
projected annual production. It was also requested that EPA permit the
use of CARB's low-volume sampling plan which permits a pass decision in
as few as two tests and has a maximum test sample of ten engines.
EPA is not adopting CARB's low-volume sampling plan for the SEA
program. EPA believes this sampling plan's consumer risk is too great
to justify its use in a federal emission compliance program. However,
EPA may consider requests by manufacturers to terminate testing early
during SEAs of low production families when the audit results are
significantly and consistently below each applicable standard or FEL,
and selection of additional engines would be difficult or cause a delay
in shipment of customer-ordered engines, or the manufacturer's test
facility does not have sufficient capacity to expeditiously conclude
the SEA.

As proposed, failure of an SEA may result in suspension or
revocation of the certificate of conformity for that engine family. To
have the certificate reinstated subsequent to a suspension, or reissued
subsequent to a revocation, the manufacturer must demonstrate, by
showing passing data that improvements, modifications, or replacement
have brought the family into compliance. The regulations include
hearing provisions which allow the manufacturer to challenge EPA's
suspension or revocation decision based on application of the sampling
plans or the manner in which tests were conducted.

S. Averaging, Banking and Trading (ABT)

Inclusion of ABT

EPA proposed ABT for NO<INF>X emissions from large nonroad CI
engines. This market-based incentive program is designed to provide
manufacturers with flexibility in meeting the NO<INF>X standard while
achieving a target level of environmental benefits.
Many commenters supported the inclusion of ABT. Others opposed the
program. One commenter believes that the program would be overly
complex, difficult to enforce, and would decrease the effectiveness of
the standard by increasing the overall emissions.
EPA disagrees. The target level of environmental benefits was
proposed with ABT in mind. In EPA's opinion, and as discussed in the
NPRM, the flexibilities afforded by ABT are appropriate to achieve the
9.2 g/kW-hr NO<INF>X average emission standard and the resultant target
37 percent reduction in fleet emissions upon fleet turnover. EPA is
confident that the target level of environmental benefits will be
achieved by this regulation.

Participation of California-certified Engines in ABT
EPA proposed that engines sold in California and subject to
California emissions standards would not be included in the federal ABT
program. EPA also proposed that engines sold in California but
preempted from California regulation or not subject to California
emission standards (primarily construction and farm equipment below 130
kW (175 hp)) be eligible to participate in ABT.
One commenter preferred to have a 50-state credit exchange program
which would include all engines shipped to all 50 states regardless of
the state regulations. Other commenters believed that the engines
subject to state regulations should be excluded from participation in
the program. Also, one commenter preferred that all engines sent to
California not be included in the federal ABT program and recommended
the compromise of having a California-only averaging set.
EPA believes that to maintain the effectiveness of the separate
California and national emission standards, any engines both sold in
California and subject to California regulations (or both subject to
regulations and sold in other states that adopt California's
regulations under section 209(e)(2)(B)) should not be allowed to
participate in the federal ABT program. Although a 50-state scenario
would reduce the tracking burden on manufacturers, reduced tracking
burden is not a sufficient reason in EPA's opinion to include
California engines. Because California does not allow ABT, all engines
both sold in the California market and subject to California
regulations will be at or below the NO<INF>X standard finalized by EPA
today. Therefore, including these engines in the national average could
cause the average emissions of engines in the other 49 states to exceed
the standard. Finally, engines sold in California but not subject to
California emission regulations are subject to federal regulations and,
thus, may participate in ABT.

Power Ratings for Credit Calculations
EPA proposed to calculate credits by taking the difference between
the standard and the FEL, times the sales volume of engines
participating in the program, times the power rating. The power rating
was proposed to be the largest power rating within an engine family for
those families using credits, and the smallest rating within an engine
family for families generating credits.
Some commenters claimed that the proposed method for determining
the power rating for credit calculations translates into a significant
(greater than 50 percent) reduction in the number of credits generated
and an increase in the number of credits used. They recommended that
families be divided into subfamilies, and the most environmentally-safe
power rating be drawn from each subfamily for credit calculations. An
engine family would have to consist of a broad range of power ratings
to realize either a 50 percent reduction in credit generation or a 50
percent increase in credit use. EPA stated in the NPRM that it would
not allow multi-configuration engine families to be arbitrarily divided
into multiple engine families to maximize credit generation or minimize
credit usage.

However, in those specific cases where such a broad range of power
ratings occur in one family, a manufacturer would likely be able to
demonstrate, consistent with Sec. 89.116-96(d) of the regulations, that
the expected useful life emission characteristics of some
configurations within a broad engine family warrant a separate engine
family designation. This would mitigate the credit reduction caused by
extremely broad engine families while maintaining EPA's intent that
subcategories not be established for the sole purpose of maximizing
credits.

Discounting of Credits

EPA's proposed ABT program did not include a discount on credits.
The proposal did specify a first in, first out (FIFO) accounting system
for credits used in averaging (see Sec. 89.204-96(b)); this effectively
extends FIFO to banking and trading because in order to ultimately use
banked or traded credits, they must be averaged.
Some commenters approved of the absence of a discount on banked or
traded credits. One commenter disapproved because discounting, which is
included in the on-highway heavy duty averaging program, is viewed as
ensuring that a tangible environmental benefit will accrue from a
banking program. This commenter would prefer a reduction in available
banked credits through discounting or the use of a last in, first out
(LIFO) accounting system to mitigate this effect over time.
EPA determined that a discount was appropriate for the on-highway
heavy duty ABT program.17 The rationale for the credit discount
was two-fold. First, additional environmental benefits were desired
from banking and trading over and above the benefits produced from the
averaging program already in place when banking and trading were added.
Credit discounting was determined to be an appropriate method of
providing a tangible environmental benefit, so that both manufacturers
and the public would share the benefits created by the addition of
banking and trading. Second, EPA believed that the amount of the
discount would not be a disincentive toward participation in the
program. Although a credit discount may be appropriate for the onhighway
heavy duty ABT program, where banking and trading were
promulgated separately from averaging, EPA is not promulgating a credit
discount for today's action. The level of environmental benefits, the
level of the emission standard, and the banking and trading components
of the ABT program were determined in conjunction with one another.
Therefore, a credit discount for today's action is not necessary.

\1\755 FR 30584, 30592-30593 (July 26, 1990).

One commenter requested that if EPA was not requiring discounting,
the Agency should require the use of LIFO as a means to minimize the
value of early banking and of banking in general. Under a FIFO
accounting system, older banked credits must be used in the current
year's average before credits generated in the current year. This
potentially allows manufacturers to bank all the current year's
credits, which will have a three year potential credit life, if
manufacturers are able to use previously-banked credits or purchased
credits to offset those engines with FELs above the standard. This
encourages manufacturers to achieve more emissions reductions earlier,
which may be beneficial for the environment. Mandating a LIFO
accounting system may discourage early emission reductions and was not
proposed by the Agency.

5. Allowing Early Banking of Emission Credits
Some commenters supported EPA's proposal to allow manufacturers to
bank credits one year in advance of the implementation date in order to
provide incentives to introduce clean technology a year early. One
commenter suggested allowing early banking starting in 1995 regardless
of the phase-in implementation date. One commenter believed that early
banking should be excluded in order to prevent the generation of
windfall credits.

The Agency believes that incentives should be provided for
manufacturers to make early use of clean technology. This consideration
outweighs the Agency's concerns regarding the minimal number of credits
that may be generated a year in advance by the small percentage of
engines which already meet the upcoming standard. EPA presented an
analysis in the NPRM demonstrating that credits from this small
percentage of engines did not represent significant windfall credits.
Although EPA supports early banking incentives for the introduction
of clean technology, EPA does not support allowing early banking
starting in 1995 regardless of the phase-in implementation date. EPA
proposed the phase-in implementation dates because many manufacturers
had informed EPA that additional leadtime is necessary for particular
sizes of engines. Although it would be beneficial to the environment to
have clean engines introduced earlier, EPA is not allowing early
banking beyond one year because the larger number of engine families
and the extended years of early banking would increase the potential of
windfall credits.

6. Early Banking Credit Generation Level
EPA proposed to allow manufacturers to generate credits one model
year prior to the implementation date of the standards. EPA proposed
that engines banking early must have NO<INF>X emissions below 9.2 g/kWhr
and could generate credits up to the 9.2 g/kW-hr according to
Sec. 89.207-96 and bank these credits for future use.
One commenter opposed the idea of early banking. However, several
commenters disagreed on the credit generation level. Some commenters
recommended that, to create an incentive for manufacturers to meet the
standards early, they should be allowed to generate credits up to 11.9
g/kW-hr. Another commenter opposed the credit generation level of 11.9
g/kW-hr.

EPA believes that it is inappropriate to establish a credit
generation level above 9.2 g/kW-hr due to the possibility of windfall
credits. EPA did not receive data to indicate that emission credits
granted to industry at the 11.9 g/kW-hr level would be, overall, less
than or equal to the environmental benefits gained by the early banking
program. Therefore, manufacturers participating in early banking may
only generate credits up to 9.2 g/kW-hr.
7. Liability and Noncompliance

Several commenters were concerned about the enforcement of the ABT
program. One commenter wanted assurance that strict penalties were in
place for exceeding FELs and other commenters wanted assurance that
adequate compliance demonstration methodologies were in place.
EPA has substantial experience in enforcement of vehicle and engine
emissions from the on-highway ABT program. This experience will be
carried forward to the nonroad program. EPA will ensure that
manufacturers are held responsible for meeting the FELs that they set,
that the FELs are carefully monitored by means of the SEA program, and
that overall compliance is effectively monitored. Further,
manufacturers will not be allowed to use credits to remedy FEL
exceedances detected by EPA enforcement.
8. Disclosure of Credit Information

Due to the connection between credit information and confidential
sales information, EPA regulations concerning the release of
confidential business information have restricted the public's
opportunity to review manufacturers' submission of credit generation
and usage. EPA is currently discussing with the participating
manufacturers in the on-highway ABT program the possibility of
implementing a means of allowing the public to access enough
information to make general assessments about the effectiveness of the
ABT program on a regular basis. The Engine Manufacturers Association
concurs that it is important to provide an ongoing opportunity for the
public to evaluate the overall progress of the program. EPA and EMA
expect to finalize an agreement in the near future on the periodic
release of credit data in a format that would be useful to the public.

T. Nonroad Equipment Definition

EPA is finalizing the following definition for the term nonroad
equipment: ``Nonroad equipment means equipment that is powered by
nonroad engines.'' This definition follows Congress' format for
defining ``nonroad vehicles.'' EPA believes this definition will
clarify use of the term nonroad equipment.
Defining the term nonroad equipment is a logical outgrowth of this
rulemaking, is in keeping with the intent of Congress, and clarifies
EPA's use of the term. EPA also notes that the definition of the term
``nonroad vehicle'' has been revised to match the statutory definition;
instead of defining nonroad vehicles as vehicles propelled by nonroad
engines, they are defined as vehicles powered by nonroad engines.

U. Definition of New

In the September 6, 1991 NPRM proposing regulations under section
209(e) of the CAA regarding preemption of state nonroad regulations,
EPA proposed a definition of ``new nonroad engine'' and ``new nonroad
vehicle.'' In that NPRM, EPA defined ``new nonroad engine'' and ``new
nonroad vehicle'' to mean a nonroad engine or a nonroad vehicle the
equitable or legal title to which has never been transferred to an
ultimate purchaser. EPA did not provide a definition of ``new'' in its
May 17, 1993 NPRM because EPA expected that the definition of ``new''
promulgated in the context of the section 209(e) rulemaking would
control how ``new'' would be defined in this rule. However, EPA has not
yet promulgated its section 209(e) regulations. Therefore, EPA is
finalizing a definition of ``new'' in this rulemaking relying in part
on the definition proposed in the September 6, 1991 NPRM and the
comments received in response to that NPRM.
Ultimate purchaser was proposed to be defined as the first person
who in good faith purchases such a new nonroad vehicle or nonroad
engine for purposes other than resale. Additionally, with respect to
imported nonroad engines, EPA proposed to define ``new'' nonroad engine
to be a nonroad engine manufactured after the effective date of a
regulation issued under section 213 which would be applicable to such
engine had it been manufactured for importation into the United States.
These definitions also applied to ``new locomotives'' and ``new engines
used in locomotives.''

Comments on EPA's proposed definition of ``new'' were several.
First, CARB, the San Diego Air Pollution Control Board (SDAPCB), and
the Manufacturers of Emissions Controls Association (MECA) supported
EPA's definition. CARB asked that EPA clarify which regulatory
activities states may perform; for example, whether states may require
in-use testing and impose add-on or retrofit requirements. On the other
hand, many commenters, including U.S. Representative Terry Bruce, the
Equipment Manufacturers Institute (EMI), the Engine Manufacturers
Association (EMA), and the Portable Power Equipment Manufacturers
Association (PPEMA), opposed EPA's proposed definition and proposed
that ``new'' should mean manufactured after either the effective date
of the Clean Air Act Amendments, November 15, 1990, or after federal
regulations take effect. These commenters believe that Congress
intended an ``absolute'' preemption. That is, the nonroad engines and
vehicles in the preempted categories manufactured after November 15,
1990 would never be subject to any kind of state emission regulation.
EMA commented that if EPA does not accept the latter definition, it
should expand its proposed definition so that engines remain ``new''
until they have exceeded their useful life.
Commenters in the railroad industry also supported a definition of
``new'' as ``manufactured after November 1990'' and stated further that
the railroad industry has traditionally been preempted from state
regulation, such as in the area of safety. The same commenters
indicated that they believe that state control of locomotive emissions
or state enforcement of federal standards would interfere with
interstate commerce. Railroad commenters also stated that any standards
for rebuilt or remanufactured engines or locomotives should be uniform
federal standards--not state standards. Furthermore, if remanufactured
engines were rebuilt to comply with such federal standards, they should
be considered ``new''.

Commenters also opposed the proposed definition regarding imported
vehicles and engines because the definition of ``new'' was different
depending upon whether the nonroad engine was produced domestically or
abroad.

These proposed definitions for ``new nonroad vehicles'' and ``new
nonroad engines'' parallel the definitions of ``new motor vehicles''
and ``new motor vehicle engines'' in section 216 of the Clean Air Act.
The definition of ``new'' proposed for imported nonroad engines was
intended to address nonconforming engines which may become subject to
federal emission requirements at the time the engine or vehicle is
imported into the United States. The Agency has decided to delete this
definition of ``new'' for imported engines. EPA agrees with the
commenters that imports and domestic products should generally be
treated alike for regulatory purposes. Today's rule treats domestic and
imported nonroad engines the same way for purposes of determining
whether they are new.

This final rule establishes for the purpose of these federal
regulations, a definition of ``new'' as it applies to all domestically
manufactured and imported ``new nonroad engines,'' ``new nonroad
vehicles,'' and ``new nonroad equipment.''18 New nonroad engines,
vehicles, and equipment are defined as engines, vehicles, and equipment
the equitable or legal title to which has not been transferred to an
ultimate purchaser. The ultimate purchaser is defined as the first
person who in good faith purchases such engine, vehicle, or equipment
for purposes other than resale. For some engines, vehicles, or
equipment the passage of title in the United States may not formally
occur or manufacturers may retain title and lease the engines or
equipment. In these cases, a domestic or imported nonroad engine,
nonroad vehicle, or nonroad equipment will retain its status as ``new''
until such engine or vehicle is ``placed into service.'' An engine,
vehicle, or equipment is considered ``placed into service'' when the
engine, vehicle, or equipment is used for its functional purposes. EPA
believes that the definition of new should include the ``placed into
service'' addition to the motor vehicle definition of new found in
section 216 of the Act because of the nature of the nonroad market.
Nonroad engines, nonroad vehicles and nonroad equipment are often
leased and maintained by the manufacturer well into the useful life of
the nonroad equipment. A piece of equipment, the title of which has
passed to the ultimate purchaser, should not be treated differently
than a piece of equipment which is being used but has not yet passed to
an ultimate purchaser.

\18\This final rule does not provide a final definition of
``new'' for the purposes of determining the scope of preemption of
state nonroad regulations under section 209(e). EPA shall finalize
its definition of ``new'' as applied to preemption of state
regulations in a later rulemaking.

The Agency believes that this definition of ``new'' comports with
the language, intent and structure of the Clean Air Act and is a
permissible construction of the statute. Contrary to the assertion of
some commenters, EPA's definition of ``new'' is consistent with the
dictionary definition of the word as ``having existed or been made but
a short time.'' Webster's Ninth New Collegiate Dictionary, 1990.
Generally speaking, manufactured products are sold soon after they are
made and are considered new until they are sold or used. The
commenters' definition of new--anything manufactured after the Clean
Air Act Amendments' enactment or an applicable regulation's
promulgation--would mean, by contrast, that any engine manufactured
after a certain date would be new forever. This is certainly not the
plain meaning of ``new.'' Congress could have stated that the federal
preemption applied to certain equipment manufactured after a certain
date, but Congress did not do so. Elsewhere in title II, Congress
specified that a provision only applied to products manufactured after
a certain date (see, section 218 requiring a ban on engines
manufactured after the 1992 model year that require leaded gasoline) or
first introduced into commerce after a certain date (see, section
211(f) regarding prohibition on fuels that are not substantially
similar to fuels used to certify vehicles as meeting emission
standards). The lack of such a date here further supports that Congress
intended ``new'' to mean newly manufactured and not yet sold.
The legislative record also shows Congressional intent that ``new''
should refer to newly manufactured products. In his colloquy with
Senator Wilson explaining the final version of section 209(e), Senator
Chafee notes that ``because the preemption is limited to new engine
standards only, States can continue to require existing and in-use
nonroad engines to reduce emissions * * *'' [Emphasis added] 136 Cong.
Rec. S17237 (October 26, 1990). This language is echoed by similar
language from Senator Baucus in his report to the Senate on the
conference bill. 136 Cong. Rec. S16976 (October 27, 1990). If Congress
intended the definition of new nonroad engines or equipment, and as a
result the preemption, to apply to an engine for its entire life, then
it would appear that there would be no distinction between new and inuse
nonroad engines, as an engine manufactured after a certain date
would always be new. Yet the statements of Senator Chafee and Senator
Baucus clearly contemplate such a distinction.
The Agency's definition of new is also consistent with the way the
Act approaches motor vehicle emission control. As noted earlier,
section 216 defines new in the context of motor vehicles as ``a motor
vehicle the equitable or legal title to which has never been
transferred to an ultimate purchaser.'' The Act applies federal
emissions standards to ``new'' vehicles. These federal standards are
enforced through certification, assembly line, and recall testing.
States, on the other hand, have a role in motor vehicle emission
control through inspection/maintenance programs and are not restricted
from controlling used vehicles. The section 209(a) prohibition of state
regulation of motor vehicles addresses only ``new'' motor vehicles and
engines and prohibits state regulation that occurs before sale,
titling, or registration of the vehicle.\19\

\19\Section 209(a) provides, in part, ``. . . No State shall
require certification, inspection, or any other approval relating to
the control of emissions from any new motor vehicle or new motor
vehicle engine as condition precedent to the initial retail sale,
titling (if any), or registration of such motor vehicle, motor
vehicle engine, or equipment.''

The Clean Air Act Amendments of 1990 take a parallel approach to
nonroad standards and enforcement. Section 213 provides EPA with
authority to set standards for ``new'' engines and provides for federal
enforcement of such standards in the same manner as motor vehicle
enforcement. Furthermore, nothing on the face of section 209(e) or
section 213 indicates that Congress intended ``new'' to be interpreted
differently in the nonroad and motor vehicle contexts.\20\ Given that
the preemption provisions for new motor vehicles and new nonroad
engines appear in the same section of the Clean Air Act, it is
reasonable to believe that Congress did not intend for the word ``new''
to be defined differently within the same section without stating this
intent explicitly.\21\

\20\Much of the argument below discusses the definition of
``new'' as applied to section 209 of the statute. However, these
arguments are equally valid for the purposes of defining ``new''
under section 213, especially given the integrated nature of Part A
of Title II, the legislative and statutory history, and practical
necessity. For example, consistent definitions of new under sections
209 and 213 are likely to ensure that there are no unintended gaps
in regulation or unintended dual regulation. Also, the statutory
definition of ``new motor vehicle'' and ``new motor vehicle engine''
are applicable equally to federal regulations and preemption of
state regulations. EPA generally sees no logical reason to treat
nonroad engines differently. However, see the discussion in footnote
21.

\21\EPA recognizes that regulation of locomotives presents
unique circumstances, including questions regarding interstate
commerce, that require special attention. EPA therefore believes
that the definition of ``new'' as used in ``new locomotive'' and
``new engine used in a locomotive'' may need to be treated
differently for the purposes of determining preemption of state
regulation under section 209(e) than it is treated for the purpose
of federal regulation under section 213(a). This issue will be
addressed in a later rulemaking.

There is not a compelling policy or factual justification for
defining new differently in the nonroad and motor vehicle contexts.
State regulation of nonroad engines does not generally present any
greater degree of disruption of the movement of products, engines or
equipment between states than does regulation of motor vehicles. The
comments provide little if any justification, in terms of relevant
distinctions between motor vehicles and nonroad engines, to justify
such a significant departure from EPA's established practice for
regulating mobile sources.

The Agency's definition of new is also consistent with case law. In
Allway Taxi, Inc. v. City of New York,22 the court held that where
the exercise of local police power serves the purpose of a federal
act--the Clean Air Act in that case--the preemptive effect of the act
should be narrowly construed. In keeping with that principle, EPA
believes that the definition of ``new'' should be construed narrowly in
order to protect states' rights, particularly in an area such as public
health in which states traditionally exercise control. California's
nonroad regulations will serve the purpose of the federal act by
improving air quality.

\2\2Allway Taxi, Inc. v. City of New York, 340 F. Supp. 1120
(S.D.N.Y.), aff'd, 468 F.2d 624 (2d Cir. 1972).

In Allway Taxi, the court discussed the federal preemption of new
motor vehicles and interpreted the meaning of new motor vehicle as
defined in Section 216 of the Act. The court noted that this definition
``reveals a clear congressional intent to preclude states and
localities from setting their own exhaust emission control standards
only with respect to the manufacture and distribution of new
automobiles.''23 The court stated further that the narrow purpose
in the definition is reinforced by prohibiting states and localities
from setting emission standards before the initial sale or registration
of an automobile. Congress specifically declared that section 209 did
not preempt states from regulation of the use or movement of motor
vehicles after they have reached their ultimate purchasers.24

\2\3Id. at 1124.

\2\4Id.

EPA believes that the further a state requirement is removed in
time from the manufacture and distribution of new engines, the less
interstate commerce is likely to be burdened. Furthermore, the legality
of particular regulatory controls that a state may impose on nonroad
vehicles or engines that are no longer new will depend upon the burden
that such controls place on interstate commerce. In fact, the court in
Allway Taxi stated that a state or locality is not free to impose its
own emission control measures the moment after a new car is bought and
registered. ``That would be an obvious circumvention of the Clean Air
Act and would defeat the congressional purpose of preventing
obstruction to interstate commerce.''25 The court further stated
that federal preemption does not, however, preclude a state from
imposing its own exhaust emission control standards upon the resale or
reregistration of the automobile. Furthermore, states are not precluded
from setting standards for licensing of vehicles for commercial use.
These types of regulations, which are more removed, ``would cause only
minimal interference with interstate commerce, since they would be
directed primarily to intrastate activities and the burden of
compliance would be on individual owners and in-state users and not on
manufacturers and distributors.''26

\2\5Id.

\2\6Id.

EPA expects that the principles articulated in Allway Taxi will be
applied by the courts to any State adoption of in-use controls. For
example, manufacturers have voiced a concern that California would
attempt to impose in-use emission control measures that would apply
immediately after a new vehicle or engine were purchased. As the Allway
Taxi court said, such standards applied to almost-new vehicles would be
an attempt to circumvent section 209 preemption and would obstruct
interstate commerce.27

\2\7Id. EPA expects the reasoning and policy outlined above in
the Allway Taxi discussion to apply to locomotives although its
implementation is dependent upon the ultimate definition of new
locomotive.

It should be noted that section 209(e)(2) of the Act does not
prevent California or other states from regulating nonroad engines and
vehicles in use.28 EPA believes that the requirements of section
209(e)(2) apply only to new nonroad engines and vehicles. The
requirements of section 209(e)(2) are only required for nonroad engines
and vehicles the regulation of which has been preempted. The language
of section 209(e)(2) does not state any clear preemption, either for
new or in use vehicles. The only clear preemption of state regulation
of nonroad engines occurs in section 209(e)(1) and section
209(a).29 Both of these subsections are limited to new engines and
vehicles. Given the general legal presumption against reading a
preemption more broadly than explicitly required, as discussed in
Allway Taxi, a preemption of state regulation of nonroad engines and
vehicles in use should not be readily implied.

\2\8In-use testing and recall programs of the type set forth in
section 207 ensure compliance with standards required to be met by
manufacturers at the time of certification of the engine. Because
these in-use standards relate to the original manufacture of the
engine and place the burden of compliance upon the manufacturer,
they are deemed to be standards affecting a new motor vehicle or a
new nonroad engine and thus require a waiver under the criteria of
section 209(b) or 209(e)(2) respectively.
\2\9Section 209(a) applies to nonroad vehicles because of the
language of section 213(d) of the Act, which specifically requires
that EPA's standards regulating nonroad engines and vehicles be
subject to sections 206, 207, 208 and 209 of the Act, with such
modifications of the applicable regulations as the Administrator
deems appropriate. Thus, Congress clearly anticipated that all of
section 209 would be applicable to nonroad engines. Subsections (a)
through (d) of section 209 do not specifically reference nonroad
engines, nor do sections 206, 207 or 208. However, the language of
section 213(d) clearly is intended to apply such provisions to
nonroad engines. Further indication of Congress' intent is the
language of the last sentence of section 209(e)(1), which states
that subsection 209(b) does not apply for purposes of subsection
(e)(1). (Section 209(b) provides the procedure under which
California can receive a waiver of section 209(a) preemption for
motor vehicles.) This sentence would not have been necessary unless
subsection 209(a) through (d) otherwise applied.

Another indication that section 209(e)(2) was not intended to apply
to most in-use regulations of nonroad engines is the fact that neither
the Senate nor the House version of the 1990 Act amendments would have
preempted state regulation of anything but new nonroad engines. Neither
version would have expressly preempted regulation in use. It would be
unusual for a bill to come out of conference with a broader preemption
than existed in either house and without any mention in the legislative
history that such broader preemption had been mandated. In fact, both
Senators Chafee and Baucus believed that the scope of the preemption
had been narrowed from the House bill, not widened.30

\3\0Both Senators declare that state preemption is limited to
new locomotives and new small farm and construction equipment. Both
mention that states may still regulate other new nonroad equipment,
presumably after receiving EPA approval. Finally, each declare that
states also fully retain existing authority to regulate emissions
from all types of existing or in-use nonroad engines by specifying
fuel quality specifications, operational modes or characteristics or
measures that limit the use of nonroad engines or equipment.

In fact, as the legislative history indicates, it appears that
Congress intended the preemption provisions of section 209, as applied
to nonroad engines, to be analogous to the preemption provisions as
applied to motor vehicles, except that California cannot request any
waiver of the Federal preemption of state regulation of new small farm
and construction equipment and locomotives.
Further indication that section 209(e)(2) was not intended to apply
to in-use regulations is the fact that, if the subsection were applied
to in-use regulations, then California would be the only government
(local, state or federal) that could directly set regulations for
nonroad engines in use. EPA's mandate under section 213 applies only to
new engines. Therefore, EPA will not promulgate standards for in-use
regulation of nonroad engines under section 213, beyond in-use
regulations normally associated with new certified engines (e.g. in-use
testing and recall requirements under section 207). States other than
California would not be able to regulate nonroad engines in use (e.g.
operation controls under section 209(d)) until California regulates
them and could only regulate them in a manner identical to California's
regulations. Nothing in the legislative history indicates such a
dramatic departure from the current ability of states and local
authorities to regulate emissions of mobile sources in use. Therefore,
if section 209(e)(2) is determined to apply to in-use regulations, the
entire United States regulatory scheme for regulation of nonroad
engines in use would be dependent on the actions of one state,
California. Congress could not have meant to grant such plenary power
to a single state.

This is especially true given the location-specific nature of inuse
regulations. In-use regulations, such as time of use or place of
use restrictions (e.g. high occupancy vehicle lanes) are typically very
site specific. An in-use regulation suitable for California, or in part
of California, may have little or no relevance or practicality to the
type of in-use regulation suitable for another area. Such regulations
which primarily effect local users are more appropriately controlled
and implemented by local and state governments.
Moreover, section 209(d) of the Act clearly limits the preemption
of state regulation in use. It states that ``nothing in this part shall
preclude or deny to any other State or political subdivision thereof
the right otherwise to control, regulate, or restrict the use,
operation or movement of registered or licensed motor vehicles.'' As
was stated above, section 209 as a whole applies equally to nonroad
engines. Thus, section 209(d) should be interpreted to mean that,
unless state regulation of use of nonroad engines is specifically
preempted, section 209 should not be interpreted to grant any implicit
preemption, except within the framework of Allway Taxi.
Given the language of section 209 and the lack of any express
preemption, the legislative history of these provisions, and the
general presumption against providing broad preemption where such
preemption is not made explicit, EPA believes that it is clear that
section 209(e)(2) does not apply to in use regulation of nonroad
engines.

While EPA recognizes the important principle of narrowly construing
the preemptive effect of the Act as explained in Allway Taxi, EPA also
notes that certain state regulations that may be characterized as ``inuse''
regulations may be preempted because they are effectively
regulations on the design of new engines rather than on the use of
``in-use'' engines. Industry has expressed concern that states might
impose retrofit requirements on nonroad engines and vehicles as soon as
they are introduced into commerce, or when such engines are being
rebuilt, or at a date after which nonroad engines are typically
rebuilt.31 EPA recognizes that CARB does not envision a retrofit
requirement and that, because of the nature of the nonroad market, it
is unlikely that other states would adopt such a requirement.32
However, given EPA's definition of new and the scope of the definition
within this rulemaking, this issue could arise when other states plan
their in-use emission strategy. In such a case, EPA believes that a
retrofit requirement mandating a retrofit of a nonroad engine
immediately after the engine is no longer new is adverse to the
Congressional intent of section 209(e) and the principles laid out in
Allway Taxi. Therefore, in this scenario, such a retrofit requirement
would be deemed an in-use emission standard relating back to the
original design of the new engine by the original engine manufacturer
(OEM) and would be subject to the waiver criteria of section 209(e)(2).
Within this same scenario, only California could adopt such a
requirement and other states could only adopt California's requirement
if California subsequently was granted a waiver. However, after a
reasonable amount of time has passed and the engine is no longer new
(most likely when an engine is being rebuilt), modest retrofit
requirements would most likely not be deemed to significantly affect
the OEM and thus such requirements would not be subject to subsection
209(e)(2). In this second scenario, the modest retrofit requirements
would still be subject to challenge in court under the Allway Taxi
criteria.33

\3\1See Oral Statement of the Engine Manufacturers Association,
Docket entry IV-F-7, which states ``The ultimate purchaser must have
the assurance that the engine * * * she might purchase, and which
properly meets EPA requirements * * * is 'good' until that engine is
ready to be rebuilt. No state should be allowed to impose retrofit
standards on engines which otherwise conform to EPA requirements.''
\3\2See Letter from Mr. Cackette, CARB to Mr. Mandel, EMA, dated
July 20, 1993, Docket entry IV-I-55.

\3\3EPA's definition of ``new'' does not present a problem for
engines or equipment that do not sell relatively quickly (e.g.,
within a year of being made) in California. If California's
regulation set standards applicable to ``new'' engines, i.e, as of
the date title passed, regardless of when the engine was produced,
then an engine manufactured in 1990 but not sold until 1994 would be
subject to 1994 emission standards. This problem is avoided since
California's Utility Engine Rule ties the date of manufacture to the
standard, therefore a 1990 engine would be subject to a 1990
standard and a 1994 engine subject to a 1994 standard.

Therefore, the Agency has determined that nonroad engines and
nonroad vehicles will be ``new'' for purposes of the Act until the
equitable or legal title passes to the ultimate purchaser, or if title
passage does not occur, then the engine or vehicle will be new until
placed into service.

V. Definition of Locomotive

The September 6, 1991 NPRM to the California nonroad preemption
regulation defined locomotive as a self-propelled piece of on-track
equipment (other than equipment designed for operation both on highways
and rails, specialized maintenance equipment, and other similar
equipment) designed for moving other equipment or carrying freight or
passenger traffic or both. As with the definition of ``new,'' EPA did
not propose a definition of locomotive in its May 17th NPRM, but is
finalizing a definition is this rulemaking, relying in part on the
definition proposed in the September 6, 1991 NPRM and the comments
received in response to that NPRM. The comments discussed below are
contained in Docket # A-91-18.

EMA noted a difference between the NPRM definition and the
definition given in the Locomotive Inspection Act (LIA) upon which the
EPA definition was based, but did not recommend EPA use the LIA
definition in the definition EMA provided. The only difference between
the EPA definition and the LIA definition is that the LIA definition of
locomotive includes a piece of equipment without propelling motors but
with one or more control stands. This item was not included by EPA
since if it has no propelling motors it will not be of concern for
purposes of engine emissions regulations. It is noted that neither the
Association of American Railroads (AAR) nor any railroad companies that
commented on the NPRM, such as Union Pacific and Southern Pacific, had
any specific comments on the definition of locomotive.
EMA provided definitions for ``locomotive'' and ``locomotive
engine''.34 Under this definition, the regulation of any engine
mounted on a locomotive (such as an engine driving a crane or winch)
would be preempted. The dictionary definition of ``locomotive'' is a
``self-propelled vehicle, usually diesel or electric, that travels on
rails and moves railroad cars.''35 EMA's definition of locomotive
engine goes beyond the specific purpose of locomotion to include any
other engine that might be placed on a locomotive. EPA believes that
the term ``locomotive engine'' is limited to the engine used to propel
the locomotive and other railroad cars. However, EPA does believe that
the term ``engines used in locomotives,'' as found in section
209(e)(1)(B), can be defined to include other engines which are mounted
on a locomotive regardless of whether they are used for purposes of
self-propulsion. EPA notes that under this definitional framework the
``locomotive'' is only that piece of on-track equipment which is selfpropelling
and is designed for moving other cars containing equipment,
freight, or passengers. ``Engines used in locomotives'' thus includes
an engine placed in the locomotive to propel the train and also
includes other engines mounted on the locomotive for auxiliary power
generation for the train, but does not include engines mounted on the
train elsewhere than the locomotive. An engine providing power for a
crane or winch, for example, would only be considered preempted from
state regulation (if it otherwise met the requirements for ``new'') as
``an engine used in [a] locomotive'' if such engine were mounted on the
locomotive. EPA believes these definitions reflect the intent of
Congress to reduce the burden on interstate commerce for the railroad
industry, and address EMA's concerns regarding auxiliary
engines.36

\3\4EMA recommended the following definitions: ``Locomotive''
means a self-propelled piece of on-track railroad equipment (other
than equipment designed for operation both on-highway and on-track)
and ``Locomotive engine'' means an engine included in a locomotive.
See Statement of Engine Manufacturers Association, Docket entry IVG
-19.

\3\5Websters II, New Riverside University Dictionary, 1988.
\3\6See Letter from Glenn Keller, EMA to Joanne Goldhand, EPA,
Docket entry IV-I-54.

EPA has stricken the word ``carrying'' from the definition of
locomotive. This was done to avoid implying that any persons or
property that were moved by the engine had to be located directly on
the locomotive. The word ``moving'' in the definition is all that is
needed to give the correct meaning.

For the final rule, EPA has decided that a ``locomotive'' means a
self-propelled piece of on-track equipment (other than equipment
designed for operation both on highways and rails, specialized
maintenance equipment, and other similar equipment) designed for moving
other equipment, freight or passenger traffic. EPA has also decided
that the term ``engines used in locomotives'' means either an engine
placed in the locomotive to move other equipment, freight , or
passenger traffic, or an engine mounted on the locomotive to provide
auxiliary power.

VII. Cost Analysis

EPA has adjusted its estimate of the average annual cost of this
rule upward from approximately $29 million to $70 million. EPA has
decided to make the adjustment after analyzing new information provided
by commenters with respect to the engine modifications required to meet
the adopted emission standards and updated cost information provided
confidentially by manufacturers. Based on EPA's revised analysis (see
the final version of the Regulatory Support Document in the docket),
the Agency has adjusted the present value of the per engine increase in
retail price of a 1996 model year engine upward from approximately $110
per engine to approximately $220 per engine (in 1992 dollars).
To maintain acceptable performance throughout the engine speed
band, some manufacturers commented that they will choose to use wastegate
technology in lieu of smoke limiters on some of their engine
models. These manufacturers stated that, for their engine designs,
applying a smoke limiter to control smoke could cause a performance
discontinuity that could present a safety concern under certain
operating conditions. While the cost of waste-gate technology was not
accounted for in EPA's proposed cost impact, the Agency believes it is
reasonable for manufacturers to use a costlier solution in those cases
where there is a potential performance or safety impact. EPA estimates
that half of the turbocharged engines could be fitted with this
technology. That represents approximately 30 percent of all engines
covered by this rule with a parallel 30 percent reduction in use of
smoke limiter technology. Based on average per piece cost figures
submitted by manufacturers, EPA has calculated that the addition of
waste-gate technology in the technology mix would result in a per
engine weighted hardware cost increase of approximately $35 per engine,
while the weighted cost due to use of smoke limiter technology will be
revised to $3 per engine.

EPA also assumed in its estimate of hardware cost that there would
be little or no cost involved with upgrading fuel pumps to increased
injection pressures (as opposed to changing pump type, rotary to inline,
in-line to unit injector). During the comment period,
manufacturers provided concrete evidence that there is a significant
cost increment to increasing injection pressures. Based on
manufacturers' data an average weighted cost of $73 per engine will be
assessed to account for modifications that will allow in-line fuel
pumps and unit fuel injection systems to accommodate incremental
increases in injection pressure.

Manufacturers also provided information on additional hardware
costs. Electronic control systems and low sac fuel injectors were two
strategies mentioned. While electronic control will reduce NO<INF>X
emission, EPA maintains that is not the most cost effective method to
meet the requirements of this rule. A number of marketing and
performance reasons unrelated to emission performance, such as fuel
economy and versatility, make such strategies attractive to
manufacturers. These reasons in and of themselves may cause
manufacturers to convert a portion of their fleets to electronic
controls. Because EPA's cost estimate is based on the necessary cost to
meet this rule and to maintain current performance and fuel economy
characteristics, the extra cost incurred by a manufacturer to install
electronic control will not be added to EPA cost estimates.
Similarly, manufacturers requested that EPA include the cost of low
sac injectors. Low sac injectors are an effective HC control strategy.
However, EPA's proposal did not contain HC standards, and the HC
standard adopted in the final rule can be expected to do no better than
cap the current HC levels. Furthermore, EPA requested that
manufacturers provide information on the cost ramifications of adopting
additional standards. Industry comments have stated that EPA's adoption
of the HC standard will not increase the cost of this rule.
EPA believes it has adequately accounted for costs of low sac
injectors in its fuel system cost estimates and will not report a
separate cost line to account for the limited usage of low sac
injectors caused by this rulemaking. A percentage of the engine
production volume by the 1996 model year will be using low sac
injectors whether regulations are in place or not. An additional
percentage of regulated engines that undergo fuel system modifications
will incorporate low sac injectors at that time. Manufacturers that
intend to do this have reported fuel system modification costs that
include the low sac injector costs. These costs are already included in
the EPA hardware cost estimate under the ``Fuel System Improvements''
section of the RSD.

Several manufacturers suggested that their engine model prices
would increase more than the proposed EPA per engine retail price
increase. It should be noted that the EPA present value per engine
retail price estimate is a relative estimate aggregated across engines
on a sales-weighted basis. Thus the estimate cannot be directly
translated into the price increase a consumer should expect to pay for
a particular piece of equipment. For engines greater than 130 kW, the
disaggregated data generally indicate that an engine purchaser can
expect a price increase of approximately $100 per 75 kW, which
represents less than one percent of the equipment price in most cases.
Price increases for engines between 37 kW and 130 kW will generally
increase between zero to two percent of the equipment price. These are
general estimates and there will be exceptions that do not show in
EPA's reported aggregate value. In any event, relative industry level
estimates calculated for regulatory analysis purposes would not be
expected to match the retail price of a particular engine design.
However, based on all data available (including confidential
manufacturers' submissions), EPA believes that its final adjusted
estimate reported in the rulemaking is accurate in the aggregate and is
consistent with accepted regulatory costing methodology.
Some comments suggested that the proposed rule would cause a
significant increase in fuel consumption. EPA maintains that the impact
of this rule on fleet average fuel consumption will be minimal. EPA's
experience with on-highway engines is that fuel consumption decreases
when the various technologies to control emissions are added. From 1988
to 1991, fuel consumption decreased one percent, while NO<INF>X and
smoke decreased about 40 percent for the average on-highway engine.
Specific power also increased four percent. EPA's on-highway findings
are consistent with an analysis presented by Caterpillar at the
American Petroleum Institute Off-Highway Forum in September, 1993 in
Milwaukee, Wisconsin (see the RSD for details of this analysis).
EPA's estimate of hardware costs accounts for those additional
costs needed to control fuel consumption beyond what is necessary to
reduce NO<INF>X emission levels to meet the standard. These methods to
both reduce NO<INF>X emissions and maintain current fuel consumption
and performance have been used for a number of years in the on-highway
fleet.

Since fuel economy and power are important criteria for the
consumers of these engines, most manufacturers commented that they are
going to add hardware to their engines in an effort to maintain current
levels of performance. Some manufacturers commented that while they
would do their best to fully maintain the baseline fuel economy levels,
selected engine models would incur a small fuel economy penalty despite
their efforts. While a small number of engine families may not be
capable, for either technical or cost reasons, to fully retain current
fuel consumption and power levels, EPA's past experience with the onhighway
program has shown that most engine models will be able to
attain the emission standards without compromising fuel consumption or
power. One manufacturer stated that it expected fuel efficiency to
increase over time as manufacturers optimize their engine designs. EPA
has strong evidence from its historical database suggesting that is the
case.

EPA maintains that the impact of this rule on equipment in which
regulated engines are installed will be minimal. EPA has accounted for
the cost of applying the range of engine technologies required to
maintain engine efficiency so that equipment modifications will not be
required. Furthermore, the added program flexibilities, such as the
later implementation date for lower power engines and the
implementation of the ABT program, provide means for manufacturers to
minimize any negative impacts. Based on EPA's analysis in the RSD and
further discussed in the Response to Comments document in the docket,
EPA believes that the adopted rules provide the means to avoid
equipment modifications in all but the most severe cases. These cases
will not affect the aggregate cost analysis presented in this rule.
Comments received with respect to equipment impacts centered around
the need to redesign the engine cooling system and increase maintenance
to offset an expected loss in engine efficiency. A number of commenters
disagreed with EPA's assessment of no impact on equipment.
EPA provided analysis in the draft RSD supporting minimal loss in
engine efficiency. Manufacturers did not provide data demonstrating
efficiency losses and did not refute the data provided by EPA. Four
equipment manufacturers and their association did provide average cost
figures. These cost figures were based on anticipated equipment
modifications and increased maintenance due to engine efficiency loss
estimates that were not supported with data. Furthermore, projections
and costs for equipment modification and maintenance were highly
aggregated and thus provided insufficient resolution to establish the
need for the projected equipment changes. Requests from EPA for
additional data from specific manufacturers were not responded to with
sufficient detail. Based on the information available to EPA (and
discussed further in the Response to Comments in the docket), the
Agency concludes that equipment modifications will rarely be needed to
accommodate certified engines.

VIII. Environmental Benefits

National Ambient Air Quality Standards (NAAQS) have been set for
criteria pollutants which adversely affect human health, vegetation,
materials, and visibility. Three criteria pollutants (nitrogen dioxide
(NO<INF>2), ozone (O<INF>3), and particles smaller than 10 microns
(PM<INF>10)), are impacted by NO<INF>X emissions. EPA has determined
the standards set in this rule will reduce NO<INF>X emissions and help
nonattainment areas come into compliance with the NAAQS for ozone. The
following provides a summary of the reduction expected of NO<INF>X
emissions. The underlying analysis is described in greater detail in
the Regulatory Support Document.

The Agency believes the adopted standards should reduce average
per-unit NO<INF>X emission from large nonroad CI engines by 27 percent
before the year 2010, with a fleet-wide 37 percent reduction once a
complete fleet turnover occurs or by the year 2025. This will result in
annual nationwide reductions of roughly 800,000 tons of NO<INF>X by the
year 2010 and over 1,200,000 tons of NO<INF>X by the year 2025. Based
on EPA projections of future emission levels, these reductions
represent four percent of total nationwide annual NO<INF>X emissions
expected in 2010.37

\3\7U.S. Environmental Protection Agency, National Air Pollutant
Emission Estimates: 1940-1990, EPA-450/4-91-026, November, 1991, p.
46.

IX. Cost Effectiveness

In evaluating various pollution control options, EPA considers the
cost effectiveness of the control. The cost effectiveness of a
pollution control measure is typically expressed as the cost per ton of
pollutant emissions reduced. Other things being equal, Agency guidance
directs that the regulatory option selected should, for a given level
of effectiveness, cost less per ton of emissions reduced.

A. Cost Per Ton of NO<INF>X Reduction

EPA has revised its cost effectiveness estimate of the NO<INF>X
standard upward to $188 per ton of NO<INF>X removed from the exhaust of
the affected engines. This figure is based on the ratio of the present
value of the stream of projected costs to the present value of the
stream of projected emission reduction benefits, and it reflects the
revised cost estimates presented in section VII.

B. Comparison to Cost Effectiveness of Other Emission Control
Strategies

The cost-effectiveness of the nonroad NO<INF>X standards may be
compared to other CAA measures that reduce NO<INF>X emissions. title I
of the 1990 CAAA requires certain areas to provide for reductions in
VOC and NO<INF>X emissions as necessary to attain the NAAQS for ozone.
Title I specifically outlines provisions for the application of
reasonably available control technology (RACT) and new source review
(NSR) for major NO<INF>X emitters. In addition, EPA anticipates that
more stringent reductions in NO<INF>X emissions will be necessary in
certain areas. Such reductions will be identified through dispersion
modeling analyses required under title I. The cost-effectiveness of
these measures is generally estimated to be in the range of $100 to
$5,000 per ton of NO<INF>X reduced.38

\3\8U.S. Environmental Protection Agency, The Clean Air Act
Section 183(d) Guidance on Cost-Effectiveness, EPA-450/2-91-008,
November 1991.

In addition to applying NO<INF>X control technologies to meet
requirements under CAA title I, many point sources will also be
required to meet NO<INF>X emission rate limits set forth in other
programs, including those established under CAA title IV, which
addresses acid deposition (that is, acid rain). EPA anticipates that
the cost of complying with regulations required under section 407 of
the CAA (Nitrogen Oxides Emission Reduction Program), which proposes
nationwide limits applicable to NO<INF>X emission from coal-fired power
plants, will be between $200 and $250 per ton.
The cost effectiveness of controlling NO<INF>X emissions from onhighway
mobile sources has also been estimated. The 1998 heavy-duty
highway engine NO<INF>X standard is estimated to cost between $210 and
$260 per ton of NO<INF>X reduced, and the recently promulgated on-board
diagnostics regulation is estimated to cost $1974 per ton of NO<INF>X
reduced from malfunctioning in-use light-duty vehicles.
In summary, the revised cost effectiveness of the NO<INF>X standard
included in this rule remains favorable relative to the cost
effectiveness of several other NO<INF>X control measures required under
the Clean Air Act. To the extent that cost effective nationwide
controls are applied to large nonroad CI engines, the need to apply in
the future more expensive additional controls to mobile and stationary
sources that also contribute to acid deposition, as well as ozone
nonattainment, nutrient loading, visibility, and PM nonattainment may
be reduced.

X. Administrative Requirements

A. Administrative Designation and Regulatory Analysis

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``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.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''
because it may adversely affect in a material way that sector of the
economy involved with the production of nonroad large CI engines and
nonroad vehicles and equipment using those engines, previously
unregulated by EPA. As such, this action was submitted to OMB for
review. Changes made in response to OMB suggestions or recommendations
will be documented in the public record.

B. Paperwork Reduction Act

The information collection requirements pertaining to certification
and ABT in this rule have been submitted for approval to the Office of
Management and Budget (OMB) under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. An Information Collection Request document has been
prepared by EPA (ICR No. 1684.01) and a copy may be obtained from Sandy
Farmer, Information Policy Branch, EPA/OPPE/ORME, 401 M Street SW.,
Washington, DC 20460 (Mail Code 2136) or by calling (202) 260-2740.
These requirements are not effective until OMB approves them and a
technical amendment to that effect is published in the Federal
Register.

This collection of information has an estimated reporting burden
averaging 5,800 hours annually for a typical engine manufacturer.
However, the hours spent annually on information collection activities
by a given manufacturer depends upon manufacturer-specific variables,
such as the number of engine families, production changes, emissions
defects, and so forth. This estimate includes time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.

Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to Chief, Information Policy Branch; EPA/OPPE/ORME; 401 M Street
SW., (Mail Code 2136); Washington, DC 20460; and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC 20503, marked ``Attention: EPA Desk Officer.''
All other information collection requirements in this rule have
been approved by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and have been assigned
the following control numbers:

OMB control

EPA ICR No. Type of information No.

ICR No. 11........ Selective Enforcement Auditing......... 2060-0064
ICR No. 282....... Emission Defect Reporting.............. 2060-0048
ICR No. 10........ Importation of Nonconforming Vehicles.. 2060-0095
ICR No. 12........ Exclusions............................. 2060-0124
ICR No. 95........ Exemptions............................. 2060-0007

C. Impact on Small Entities

The Regulatory Flexibility Act of 1980 requires federal agencies to
identify potentially adverse impacts of federal regulations upon small
entities. In instances where significant impacts are possible on a
substantial number of these entities, agencies are required to perform
a Regulatory Flexibility Analysis (RFA).
EPA has determined that this rule will not have a significant
effect on a substantial number of small entities. This regulation will
affect manufacturers of large nonroad CI engines, a group that does not
contain a substantial number of small entities. Manufacturers will be
able to take advantage of the flexibility afforded by the averaging,
banking, and trading program.

Therefore, as required under section 605 of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., I certify that this regulation
does not have a significant impact on a substantial number of small
entities.

List of Subjects

40 CFR Part 9

Reporting and recordkeeping requirements.

40 CFR Part 89

Environmental protection, Administrative practice and procedure,
Air pollution control, Confidential business information, Imports,
Incorporation by reference, Labeling, Nonroad source pollution,
Reporting and recordkeeping requirements.

Dated: May 31, 1994.

Carol M. Browner,
Administrator.

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

PART 9--[AMENDED]

The authority citation for part 9 continues to read as follows:

Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, 1326, 1330, 1334,
1345(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975
Comp p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1,
300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3,300j-
4, 300j-9, 1857 et. seq., 6901-6992k, 7401-7671q, 7542, 9601-9657,
11023, 11048.

2. Section 9.1 is amended by adding a new heading and entries to
the table in numerical order to read as follows:

Sec. 9.1 OMB approvals under the Paperwork Reduction Act.

* * * *

OMB control
40 CFR citations No.

Control of Emissions From New and In-Use Nonroad Engines
89.611..................................................... 2060-0007
89.905
89.906

89.801..................................................... 2060-0048
89.803
85.1903 through 85.1906
85.1908
85.1909

89.505 through 89.509...................................... 2060-0064
89.511
89.512

89.603 through 89.605...................................... 2060-0095
89.607 through 89.612

89.903..................................................... 2060-0124
89.1
89.2

* * * *

Part 89 is added to read as follows:

PART 89--CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD ENGINES

Subpart A--General

Sec.
89.1 Applicability.
89.2 Definitions.
89.3 Acronyms and abbreviations.
89.4 Section numbering.
89.5 Table and figure numbering; position.
89.6 Reference materials.
89.7 Treatment of confidential information.

Appendix A to Subpart A--Internal Combustion Engines Manufactured Prior
to the Effective Date of the Nonroad Engine Definition.

Subpart B--Emission Standards and Certification Provisions
89.101-96 Applicability.
89.102-96 Effective dates, optional inclusion.
89.103-96 Definitions.
89.104-96 Useful life, recall, and warranty periods.
89.105-96 Certificate of conformity.
89.106-96 Prohibited controls.
89.107-96 Defeat devices.
89.108-96 Adjustable parameters, requirements.
89.109-96 Maintenance instructions.
89.110-96 Emission control information label.
89.111-96 Averaging, banking, and trading of exhaust emissions.
89.112-96 Oxides of nitrogen, carbon monoxide, hydrocarbon, and
particulate matter exhaust emission standards.
89.113-96 Smoke emission standard.
89.114-96 Special test procedures.
89.115-96 Application for certificate.
89.116-96 Engine families.
89.117-96 Test fleet selection.
89.118-96 Service accumulation.
89.119-96 Emission tests.
89.120-96 Compliance with emission standards.
89.121-96 Certificate of conformity effective dates.
89.122-96 Certification.
89.123-96 Amending the application and certificate of conformity.
89.124-96 Record retention, maintenance, and submission.
89.125-96 Production engines, annual report.
89.126-96 Denial, revocation of certificate of conformity.
89.127-96 Request for hearing.
89.128-96 Hearing procedures.
89.129-96 Right of entry.
Subpart C--Averaging, Banking, and Trading Provisions
89.201-96 Applicability.
89.202-96 Definitions.
89.203-96 General provisions.
89.204-96 Averaging.
89.205-96 Banking.
89.206-96 Trading.
89.207-96 Credit calculation.
89.208-96 Labeling.
89.209-96 Certification.
89.210-96 Maintenance of records.
89.211-96 End-of-year and final reports.
89.212-96 Notice of opportunity for hearing.

Subpart D--Emission Test Equipment Provisions

89.301-96 Scope; applicability.
89.302-96 Definitions.
89.303-96 Symbols/abbreviations.
89.304-96 Equipment required for gaseous emissions; overview.
89.305-96 Equipment measurement accuracy/calibration frequency.
89.306-96 Dynamometer specifications and calibration weights.
89.307-96 Dynamometer calibration.
89.308-96 Sampling system requirements for gaseous emissions.
89.309-96 Analyzers required for gaseous emissions.
89.310-96 Analyzer accuracy and specifications.
89.311-96 Analyzer calibration frequency.
89.312-96 Analytical gases.
89.313-96 Initial calibration of analyzers.
89.314-96 Pre- and post-test calibration of analyzers.
89.315-96 Analyzer bench checks.
89.316-96 Analyzer leakage and response time.
89.317-96 NO<INF>X converter check.
89.318-96 Analyzer interference checks.
89.319-96 Hydrocarbon analyzer calibration.
89.320-96 Carbon monoxide analyzer calibration.
89.321-96 Oxides of nitrogen analyzer calibration.
89.322-96 Carbon dioxide analyzer calibration.
89.323-96 NDIR analyzer calibration.
89.324-96 Calibration of other equipment.
89.325-96 Engine intake air temperature measurement.
89.326-96 Engine intake air humidity measurement.
89.327-96 Charge cooling.
89.328-96 Inlet and exhaust restrictions.
89.329-96 Engine cooling system.
89.330-96 Lubricating oil and test fuels.
89.331-96 Test conditions.

Appendix A to Subpart D--Tables
Appendix B to Subpart D--Figures

Subpart E--Exhaust Emission Test Procedures

89.401-96 Scope; applicability.
89.402-96 Definitions.
89.403-96 Symbols/abbreviations.
89.404-96 Test procedure overview.
89.405-96 Recorded information.
89.406-96 Pre-test procedures.
89.407-96 Engine dynamometer test run.
89.408-96 Post-test procedures.
89.409-96 Data logging.
89.410-96 Engine test cycle.
89.411-96 Exhaust sample procedure--gaseous components.
89.412-96 Raw gaseous exhaust sampling and analytical system
description.
89.413-96 Raw sampling procedures.
89.414-96 Air flow measurement specifications.
89.415-96 Fuel flow measurement specifications.
89.416-96 Raw exhaust gas flow.
89.417-96 Data evaluation for gaseous emissions.
89.418-96 Raw emission sampling calculations.
89.419-96 Dilute gaseous exhaust sampling and analytical system
description.
89.420-96 Background sample.
89.421-96 Exhaust gas analytical system; CVS bag sample.
89.422-96 Dilute sampling procedures--CVS calibration.
89.423-96 CVS calibration frequency.
89.424-96 Dilute emission sampling calculations.
89.425-96 Particulate adjustment factor.

Appendix A to Subpart E--Figures
Appendix B to Subpart F--Table 1

Subpart F--Selective Enforcement Auditing

89.501-96 Applicability.
89.502-96 Definitions.
89.503-96 Test orders.
89.504-96 Testing by the Administrator.
89.505-96 Maintenance of records; submittal of information.
89.506-96 Right of entry and access.
89.507-96 Sample selection.
89.508-96 Test procedures.
89.509-96 Calculation and reporting of test results.
89.510-96 Compliance with acceptable quality level and passing and
failing criteria for selective enforcement audits.
89.511-96 Suspension and revocation of certificates of conformity.
89.512-96 Request for public hearing.
89.513-96 Administrative procedures for public hearing.
89.514-96 Hearing procedures.
89.515-96 Appeal of hearing decision.
89.516-96 Treatment of confidential information.

Appendix A to Subpart F--Sampling Plans for Selective Enforcement
Auditing of Nonroad Engines

Subpart G--Importation of Nonconforming Nonroad Engines
89.601-96 Applicability.
89.602-96 Definitions.
89.603-96 General requirements for importation of nonconforming
nonroad engines.
89.604-96 Conditional admission.
89.605-96 Final admission of certified nonroad engines.
89.606-96 Inspection and testing of imported nonroad engines.
89.607-96 Maintenance of independent commercial importer's records.
89.608-96 ``In Use'' inspections and recall requirements.
89.609-96 Final admission of modification nonroad engines and test
nonroad engines.
89.610-96 Maintenance instructions, warranties, emission labeling.
89.611-96 Exemptions and exclusions.
89.612-96 Prohibited acts; penalties.
89.613-96 Treatment of confidential information.

Subpart H--Recall Regulations

89.701 Applicability.
89.702 Definitions.
89.703 Applicability of part 85, subpart S.
Subpart I--Emission Defect Reporting Requirements
89.801 Applicability.
89.802 Definitions.
89.803 Applicability of part 85, subpart T.

Subpart J--Exemption Provisions

89.901 Applicability.
89.902 Definitions.
89.903 Application of section 216(10) of the Act.
89.904 Who may request an exemption.
89.905 Testing exemption.
89.906 Manufacturer-owned exemption and precertification exemption.
89.907 Display exemption.
89.908 National security exemption.
89.909 Export exemptions.
89.910 Granting of exemptions.
89.911 Submission of exemption requests.
89.912 Treatment of confidential information.
Subpart K--General Enforcement Provisions and Prohibited Acts
89.1001 Applicability.
89.1002 Definitions.
89.1003 Prohibited acts.
89.1004 General enforcement provisions.
89.1005 Injunction proceedings for prohibited acts.
89.1006 Penalties.
89.1007 Warranty provisions.
89.1008 In-use compliance provisions.

Authority: Sections 202, 203, 204, 205, 206, 207, 208, 209, 213,
215, 216, and 301(a) of the Clean Air Act, as amended (42 U.S.C.
7521, 7522, 7523, 7524, 7525, 7541, 7542, 7543, 7547, 7549, 7550,
and 7601(a)).

Subpart A--General

Sec. 89.1 Applicability.

(a) This part applies to nonroad compression-ignition engines that
have a gross power output at or above 37 kilowatts (kW) and that are
used for any purpose.
(b) The following nonroad engines are not subject to the provisions
of this part:
(1) Engines used in aircraft as defined in Sec. 87.1(a) of this
chapter;
(2) Engines used in underground mining or engines used in
underground mining equipment and regulated by the Mining Safety and
Health Administration (MSHA) in 30 CFR parts 7, 31, 32, 36, 56, 57, 70,
and 75;
(3) Engines used to propel a locomotive; and
(4) Engines used in marine vessels as defined in the General
Provisions of the United States Code, 1 U.S.C. 3 (1992).

Sec. 89.2 Definitions.

The following definitions apply to part 89. All terms not defined
herein have the meaning given them in the Act.
Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et.seq.
Adjustable parameter means any device, system, or element of design
which is physically capable of being adjusted (including those which
are difficult to access) and which, if adjusted, may affect emissions
or engine performance during emission testing.
Administrator means the Administrator of the Environmental
Protection Agency or his or her authorized representative.
Auxiliary emission control device (AECD) means any element of
design that senses temperature, vehicle speed, engine RPM, transmission
gear, or any other parameter for the purpose of activating, modulating,
delaying, or deactivating the operation of any part of the emission
control system.

Certification means, with respect to new nonroad engines, obtaining
a certificate of conformity for an engine family complying with the
nonroad engine emission standards and requirements specified in this
part.

Emission control system means any device, system, or element of
design which controls or reduces the emission of substances from an
engine.

Engine, as used in this part, refers to nonroad engine.
Engine manufacturer means any person engaged in the manufacturing
or assembling of new nonroad engines or importing such engines for
resale, or who acts for and is under the control of any such person in
connection with the distribution of such engines. Engine manufacturer
does not include any dealer with respect to new nonroad engines
received by such person in commerce.

Engine used in a locomotive means either an engine placed in the
locomotive to move other equipment, freight, or passenger traffic, or
an engine mounted on the locomotive to provide auxiliary power.
EPA enforcement officer means any officer or employee of the
Environmental Protection Agency so designated in writing by the
Administrator (or by his or her designee).
Family emission limit (FEL) means an emission level that is
declared by the manufacturer to serve in lieu of an emission standard
for certification purposes and for the averaging, banking, and trading
program. A FEL must be expressed to the same number of decimal places
as the applicable emission standard.

Gross power means the power measured at the crankshaft or its
equivalent, the engine being equipped only with the standard
accessories (such as oil pumps, coolant pumps, and so forth) necessary
for its operation on the test bed. Alternators must be used, if
necessary, to run the engine. Fans, air conditioners, and other
accessories may be used at the discretion of the manufacturer, but no
power adjustments for these accessories may be made.
Identification number means a specification (for example, model
number/serial number combination) which allows a particular nonroad
engine to be distinguished from other similar engines.
Locomotive means a self-propelled piece of on-track equipment
(other than equipment designed for operation both on highways and
rails, specialized maintenance equipment, and other similar equipment)
designed for moving other equipment, freight or passenger traffic.
Model year (MY) means the manufacturer's annual new model
production period which includes January 1 of the calendar year, ends
no later than December 31 of the calendar year, and does not begin
earlier than January 2 of the previous calendar year. Where a
manufacturer has no annual new model production period, model year
means calendar year.

New, for the purposes of this part, means a domestic or imported
nonroad engine, nonroad vehicle, or nonroad equipment the equitable or
legal title to which has never been transferred to an ultimate
purchaser. Where the equitable or legal title to the engine, vehicle,
or equipment is not transferred to an ultimate purchaser until after
the engine, vehicle or equipment is placed into service, then the
engine, vehicle, or equipment will no longer be new after it is placed
into service. A nonroad engine, vehicle, or equipment is placed into
service when it is used for its functional purposes.
Nonroad compression-ignition engine means a nonroad engine which
utilizes the compression-ignition combustion cycle.
Nonroad engine means:

(1) Except as discussed in paragraph (2) of this definition, a
nonroad engine is any internal combustion engine:
(i) in or on a piece of equipment that is self-propelled or serves
a dual purpose by both propelling itself and performing another
function (such as garden tractors, off-highway mobile cranes and
bulldozers); or

(ii) in or on a piece of equipment that is intended to be propelled
while performing its function (such as lawnmowers and string trimmers);
or

(iii) that, by itself or in or on a piece of equipment, is portable
or transportable, meaning designed to be and capable of being carried
or moved from one location to another. Indicia of transportability
include, but are not limited to, wheels, skids, carrying handles,
dolly, trailer, or platform.

(2) An internal combustion engine is not a nonroad engine if:
(i) the engine is used to propel a motor vehicle or a vehicle used
solely for competition, or is subject to standards promulgated under
section 202 of the Act; or

(ii) the engine is regulated by a federal New Source Performance
Standard promulgated under section 111 of the Act; or
(iii) the engine otherwise included in paragraph (1)(iii) of this
definition remains or will remain at a location for more than 12
consecutive months or a shorter period of time for an engine located at
a seasonal source. A location is any single site at a building,
structure, facility, or installation. Any engine (or engines) that
replaces an engine at a location and that is intended to perform the
same or similar function as the engine replaced will be included in
calculating the consecutive time period. An engine located at a
seasonal source is an engine that remains at a seasonal source during
the full annual operating period of the seasonal source. A seasonal
source is a stationary source that remains in a single location on a
permanent basis (i.e., at least two years) and that operates at that
single location approximately three months (or more) each year. This
paragraph does not apply to an engine after the engine is removed from
the location.

Nonroad equipment means equipment that is powered by nonroad
engines.

Nonroad vehicle means a vehicle that is powered by a nonroad engine
as defined in this section and that is not a motor vehicle or a vehicle
used solely for competition.

Nonroad vehicle or nonroad equipment manufacturer means any person
engaged in the manufacturing or assembling of new nonroad vehicles or
equipment or importing such vehicles or equipment for resale, or who
acts for and is under the control of any such person in connection with
the distribution of such vehicles or equipment. A nonroad vehicle or
equipment manufacturer does not include any dealer with respect to new
nonroad vehicles or equipment received by such person in commerce.
Opacity means the fraction of a beam of light, expressed in
percent, which fails to penetrate a plume of smoke.
Operating hours means:

(1) For engine storage areas or facilities, all times during which
personnel other than custodial personnel are at work in the vicinity of
the storage area or facility and have access to it.
(2) For all other areas or facilities, all times during which an
assembly line is in operation or all times during which testing,
maintenance, service accumulation, production or compilation of
records, or any other procedure or activity related to certification
testing, to translation of designs from the test stage to the
production stage, or to engine manufacture or assembly is being carried
out in a facility.

Presentation of credentials means the display of the document
designating a person as an EPA enforcement officer or EPA authorized
representative.

Test fleet means the engine or group of engines that a manufacturer
uses during certification to determine compliance with emission
standards.

Ultimate purchaser means, with respect to any new nonroad engine,
new nonroad vehicle, or new nonroad equipment, the first person who in
good faith purchases such new nonroad engine, nonroad vehicle, or
nonroad equipment for purposes other than resale.
Used solely for competition means exhibiting features that are not
easily removed and that would render its use other than in competition
unsafe, impractical, or highly unlikely.

Sec. 89.3 Acronyms and abbreviations.

The following acronyms and abbreviations apply to part 89.
AECD Auxiliary emission control device.

ASME American Society of Mechanical Engineers.
ASTM American Society for Testing and Materials.
CAA Clean Air Act.
CAAA Clean Air Act Amendments of 1990.
CI Compression-ignition.
CO Carbon monoxide.
CO<INF>2 Carbon dioxide.
EPA Environmental Protection Agency.
FEL Family emission limit.
FTP Federal Test Procedure.
g/kW-hr Grams per kilowatt hour.
HC Hydrocarbons.
ICI Independent Commercial Importer.
kW Kilowatt.

NIST National Institute for Standards and Testing.
NTIS National Technical Information Service.
NO Nitric oxide.
NO<INF>2 Nitrogen dioxide.
NO<INF>X Oxides of nitrogen.
O<INF>2 Oxygen.
OEM Original equipment manufacturer.
SAE Society of Automotive Engineers.
SEA Selective Enforcement Auditing.
SI Spark-ignition.
U.S.C. United States Code.
VOC Volatile organic compounds.

Sec. 89.4 Section numbering.

(a) Sections are numbered sequentially by subpart.
(b) Where two different standards or requirements are concurrently
applicable, the model year of applicability is indicated by the number
following the main section number. The two digits following the hyphen
designate the first model year for which a section is effective.

Example: Section 89.304-96 applies to the 1996 and subsequent
model years until superseded. If a Sec. 89.304-98 is promulgated, it
would take effect beginning with the 1998 model year; Sec. 89.304-96
would apply to model years 1996 through 1997. Therefore, in calendar
year 1997, a manufacturer may be certifying both 1997 and 1998 model
year engines, requiring the use of different requirements
concurrently.

Note: Model year 2000 and later will appear sequentially with
1999 and earlier based on the order of the last two digits of the
year, not in calendar year order; that is, Sec. 89.304-03 will
appear before Sec. 89.304-99.

(c) A section without the model year designation is applicable to
all model years as designated in the applicability section for the
subpart or part or in the text of the section.

Sec. 89.5 Table and figure numbering; position.

(a) Tables for each subpart appear in an appendix at the end of the
subpart. Tables are numbered consecutively by order of appearance in
the appendix. The table title will indicate the model year (if
applicable) and the topic.

(b) Figures for each subpart appear in an appendix at the end of
the subpart. Figures are numbered consecutively by order of appearance
in the appendix. The figure title will indicate the model year (if
applicable) and the topic.

Sec. 89.6 Reference materials.

(a) Incorporation by reference. The documents in paragraph (b) of
this section have been incorporated by reference. The incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
inspected at US EPA, OAR, 401 M Street SW., Washington, DC 20460, or at
the Office of the Federal Register, 800 N. Capitol Street NW., Suite
700, Washington, DC.

(b) The following paragraphs and tables set forth the material that
has been incorporated by reference in this part.
(1) ASTM material. The following table sets forth material from the
American Society for Testing and Materials which has been incorporated
by reference. The first column lists the number and name of the
material. The second column lists the section(s) of this part, other
than Sec. 89.6, in which the matter is referenced. The second column is
presented for information only and may not be all inclusive. Copies of
these materials may be obtained from American Society for Testing and
Materials, 1916 Race St., Philadelphia, PA 19103.

Document number and name 40 CFR part 89 reference

ASTM D86-90:

Standard Test Method for Distillation of Petroleum Products........... Appendix A to Subpart D.
ASTM D93-90:

Standard Test Methods for Flash Point by Pensky-Martens Closed Tester. Appendix A to Subpart D.
ASTM D129-91:

Standard Test Method for Sulfur in Petroleum Products (General Bomb Appendix A to Subpart D.
Method).
ASTM D287-92

Standard Test Method for API Gravity of Crude Petroleum and Petroleum Appendix A to Subpart D.
Products (Hydrometer Method).
ASTM D445-88:

Standard Test Method for Kinematic Viscosity of Transparent and Opaque Appendix A to Subpart D.
Liquids (and the Calculation of Dynamic Viscosity).
ASTM D613-86:

Standard Test Method for Ignition Quality of Diesel Fuels by the Appendix A to Subpart D.
Cetane Method.
ASTM D1319-89:

Standard Test Method for Hydrocarbon Types in Liquid Petroleum Appendix A to Subpart D.
Products by Fluorescent Indicator Adsorption.
ASTM D2622-92:

Standard Test Method for Sulfur in Petroleum Products by X-ray Appendix A to Subpart D.
Spectrometry.
ASTM E29-90:

Standard Practice for Using Significant Digits in Test Data to 89.207-96; 89.509-96.
Determine Conformance with Specifications.

(2) SAE material. The following table sets forth material from the
Society of Automotive Engineers which has been incorporated by
reference. The first column lists the number and name of the material.
The second column lists the section(s) of this part, other than
Sec. 89.6, in which the matter is referenced. The second column is
presented for information only and may not be all inclusive. Copies of
these materials may be obtained from Society of Automotive Engineers
International, 400 Commonwealth Dr., Warrendale, PA 15096-0001.

40 CFR part 89
Document number and name reference

SAE J244 June 83:

Recommended Practice for Measurement of Intake Air
or Exhaust Gas Flow of Diesel Engines.............. 89.416-96
SAE J1937 November 89:
Recommended Practice for Engine Testing with Low
Temperature Charge Air Cooler Systems in a

Dynamometer Test Cell.............................. 89.327-96
SAE Paper 770141:
Optimization of a Flame Ionization Detector for

Determination of Hydrocarbon in Diluted Automotive
Exhausts, Glenn D. Reschke......................... 89.319-96

(3) California Air Resources Board Test Procedure. The following
table sets forth material from the Title 13, California Code of
Regulations, Sections 2420-2427, as amended by California Air Resources
Board Resolution 92-2 and published in California Air Resources Board
mail out #93-42, September 1, 1993) which has been incorporated by
reference. The first column lists the number and name of the material.
The second column lists the section(s) of this part, other than
Sec. 89.6, in which the matter is referenced. The second column is
presented for information only and may not be all inclusive. Copies of
these materials may be obtained from California Air Resources Board,
Haagen-Smit Laboratory, 9528 Telstar Avenue, El Monte, CA 91731-2990.

40 CFR part 89
Document number and name reference

California Regulations for New 1996 and Later Heavy-Duty
Off-Road Diesel Cycle Engines.......................... 89.112-96
89.119-96
89.508-96

Sec. 89.7 Treatment of confidential information.

(a) Any manufacturer may assert that some or all of the information
submitted pursuant to this part is entitled to confidential treatment
as provided by part 2, subpart B of this chapter.
(b) Any claim of confidentiality must accompany the information at
the time it is submitted to EPA.

(c) To assert that information submitted pursuant to this part is
confidential, a manufacturer must indicate clearly the items of
information claimed confidential by marking, circling, bracketing,
stamping, or otherwise specifying the confidential information.
Furthermore, EPA requests, but does not require, that the submitter
also provide a second copy of its submittal from which all confidential
information has been deleted. If a need arises to publicly release
nonconfidential information, EPA will assume that the submitter has
accurately deleted the confidential information from this second copy.
(d) If a claim is made that some or all of the information
submitted pursuant to this part is entitled to confidential treatment,
the information covered by that confidentiality claim will be disclosed
by the Administrator only to the extent and by means of the procedures
set forth in part 2, subpart B of this chapter.
(e) Information provided without a claim of confidentiality at the
time of submission may be made available to the public by EPA without
further notice to the submitter, in accordance with
Sec. 2.204(c)(2)(i)(A) of this chapter.

Appendix A to Subpart A--Internal Combustion Engines Manufactured
Prior to July 18, 1994

This appendix sets forth the Environmental Protection Agency's
(EPA's) interpretation of the Clean Air Act regarding the status of
certain internal combustion engines manufactured before July 18,
1994, (the effective date of the final rulemaking promulgating EPA's
definition of nonroad engine). This interpretation does not alter,
replace, supersede, or change the scope of subpart A. It is not
final agency action subject to judicial review.

EPA interprets the Clean Air Act as not precluding state
regulation of internal combustion engines manufactured prior to July
18, 1994, except that state regulation of such engines that are used
in motor vehicles or vehicles used solely for competition is
precluded. EPA believes that the language of Clean Air Act section
302(z) generally excluding emissions resulting directly from nonroad
engines and nonroad vehicles from the definition of stationary
source could not be applied until after the definition of nonroad
engine was specified in final regulations promulgated by EPA. EPA
believes that if the exclusionary language of section 302(z) were
applied before EPA's definition of nonroad engine became final,
states would have been frustrated from regulating internal
combustion engines manufactured during that time, given the
uncertain nature of the definition of such engines. EPA believes
that Congress did not intend states to be prevented from regulating
these engines before a final EPA definition was promulgated. EPA
does not believe that Congress intended the exclusionary language of
section 302(z) regarding nonroad engines and vehicles to be applied
retroactively to engines, vehicles, and equipment regulated pursuant
to a permit issued before the date that the terms nonroad engine and
nonroad vehicle were defined.

EPA further believes that internal combustion engines
manufactured prior to July 18, 1994 are not preempted, under Clean
Air Act section 209, from state regulation. The two sections of the
Act preempting state regulation of nonroad engines, section
209(e)(1) and section 209(a) (as incorporated by section 213(d)),
refer to ``nonroad engines subject to regulation under this Act'' or
to engines ``subject to this part'' (i.e., part A of title II of the
Act). EPA believes that, until EPA promulgated final regulations
defining nonroad engines and subjecting such engines to regulation,
these engines were not preempted from state regulation under the
Act, as the engines were not yet defined as nonroad engines, nor
were they subject to any regulation under title II of the Act. In
the regulations with an effective date of July 18, 1994, EPA has
issued final rules defining nonroad engines and, thus, subjecting
nonroad engines to regulation under part A of title II of the Act.
Accordingly, EPA believes that pursuant to Clean Air Act section
209, state regulation of new nonroad engines is preempted for
engines manufactured on or after that date, and is not preempted as
to engines manufactured before that date.
Moreover, EPA believes that states are not precluded under
section 209 from regulating the use and operation of nonroad
engines, such as regulations on hours of usage, daily mass emission
limits, or sulfur limits on fuel; nor are permits regulating such
operations precluded once the engine is placed into service or once
the equitable or legal title to the engine or vehicle is transferred
to an ultimate purchaser, as long as no certification, inspection,
or other approval related to the control on emissions is required as
a condition precedent to the initial retail sale, titling, or
registration of the engine or equipment. EPA believes that states
are not prevented by section 209 from requiring retrofitting of
nonroad engines in certain circumstances once a reasonable time has
passed after the engine is no longer new, as long as the
requirements do not amount to a standard relating back to the
original manufacturer. Therefore, EPA believes that modest retrofit
requirements may be required after a reasonable amount of time
(e.g., at the time of reregistration or rebuilding) and more
significant retrofit requirements may be required after a more
significant period of time (e.g., after the end of the useful life
of the engine).

Subpart B--Emission Standards and Certification Provisions

Sec. 89.101-96 Applicability.

The requirements of subpart B are applicable to all new nonroad
compression-ignition engines subject to the provisions of subpart A of
part 89, pursuant to the schedule delineated in Sec. 89.102-96.

Sec. 89.102-96 Effective dates, optional inclusion.

(a) This subpart applies to all engines described in Sec. 89.101-96
with the following gross power output and manufactured after the
following dates:

(1) Greater than or equal to 37 kW but less than 75 kW and
manufactured on or after January 1, 1998;
(2) Greater than or equal to 75 kW but less than 130 kW and
manufactured on or after January 1, 1997;
(3) Greater than or equal to 130 kW but less than or equal to 560
kW and manufactured on or after January 1, 1996;
(4) Greater than 560 kW and manufactured on or after January 1,
2000.

(b) A manufacturer can optionally certify engines manufactured up
to one calendar year prior to the effective date of mandatory
certification to earn emission credits under the averaging, banking,
and trading program. Such optionally certified engines are subject to
all provisions relating to mandatory certification and enforcement
described in this part.

Sec. 89.103-96 Definitions.

The definitions in subpart A of part 89 apply to this subpart. All
terms not defined herein or in subpart A have the meaning given them in
the Act.

Sec. 89.104-96 Useful life, recall, and warranty periods.

(a) The useful life is a period of 8,000 hours of operation or ten
years of use, whichever first occurs.

(b) Engines are subject to recall testing for a period of 6,000
hours of operation or seven years of use, whichever first occurs.
However, in a recall, engines in the subject class or category must be
recalled regardless of actual years or hours of operation.
(c) Warranties imposed by the Clean Air Act are for 3,000 hours of
operation or five years of use, whichever first occurs.
(d) Manufacturers may apply to the Administrator for approval for a
shorter useful life period for engines that are subject to severe
service in seasonal equipment, or are designed specifically for lower
useful life hours to match equipment life. Such an application must be
made prior to certification.

Sec. 89.105-96 Certificate of conformity.

Every manufacturer of a new nonroad compression-ignition engine
must obtain a certificate of conformity covering the engine family, as
described in Sec. 89.116-96. The certificate of conformity must be
obtained from the Administrator prior to selling, offering for sale,
introducing into commerce, or importing into the United States the new
nonroad compression-ignition engine for each model year.

Sec. 89.106-96 Prohibited controls.

(a) An engine may not be equipped with an emission control system
for the purpose of complying with emission standards if such system
will cause or contribute to an unreasonable risk to public health,
welfare, or safety in its operation or function.
(b) An engine with an emission control system may not emit any
noxious or toxic substance which would not be emitted in the operation
of such engine in the absence of such system except as specifically
permitted by regulation.

Sec. 89.107-96 Defeat devices.

(a) An engine may not be equipped with a defeat device.
(b) For purposes of this section, ``defeat device'' means any
device, system, or element of design which senses operation outside
normal emission test conditions and reduces emission control
effectiveness.

(1) Defeat device includes any auxiliary emission control device
(AECD) that reduces the effectiveness of the emission control system
under conditions which may reasonably be expected to be encountered in
normal operation and use unless such conditions are included in the
test procedure.

(2) Defeat device does not include such items which either operate
only during engine starting or are necessary to protect the engine (or
equipment in which it is installed) against damage or accident during
its operation.

Sec. 89.108-96 Adjustable parameters, requirements.

(a) Nonroad engines equipped with adjustable parameters must comply
with all requirements of this subpart for any adjustment in the
physically adjustable range.

(b) An operating parameter is not considered adjustable if it is
permanently sealed or otherwise not normally accessible using ordinary
tools.

(c) The Administrator may require that adjustable parameters be set
to any specification within its adjustable range for certification,
selective enforcement audit, or in-use testing to determine compliance
with the requirements of this subpart.

Sec. 89.109-96 Maintenance instructions.

The manufacturer must furnish or cause to be furnished to the
ultimate purchaser of each new nonroad engine written instructions for
the maintenance needed to assure proper functioning of the emission
control system.

Sec. 89.110-96 Emission control information label.

(a) The manufacturer must affix at the time of manufacture a
permanent and legible label identifying each nonroad engine. The label
must meet the following requirements:

(1) Be attached in such a manner that it cannot be removed without
destroying or defacing the label;
(2) Be durable and readable for the entire engine life;
(3) Be secured to an engine part necessary for normal engine
operation and not normally requiring replacement during engine life;
(4) Be written in English; and
(5) Be located so as to be readily visible to the average person
after the engine is installed in the equipment. A supplemental label
meeting all the requirements of this section may be attached to a
location other than the engine, in cases where the required label must
be obscured after the engine is installed in the equipment.
(b) The label must contain the following information:
(1) The heading ``Important Engine Information;''
(2) The full corporate name and trademark of the manufacturer;
(3) EPA standardized engine family designation;
(4) Engine displacement;
(5) Advertised power;
(6) Engine tuneup specifications and adjustments. These should
indicate the proper transmission position during tuneup, and
accessories (for example, air conditioner), if any, that should be in
operation;
(7) Fuel requirements;
(8) Date of manufacture (month and year). The manufacturer may, in
lieu of including the date of manufacture on the engine label, maintain
a record of the engine manufacture dates. The manufacturer shall
provide the date of manufacture records to the Administrator upon
request;
(9) Family emission limits (FELs) if applicable; and
(10) The statement: ``This engine conforms to [model year] U.S. EPA
regulations large nonroad compression- ignition engines.''
(c) Other information concerning proper maintenance and use or
indicating compliance or noncompliance with other standards may be
indicated on the label.
(d) Each engine must have a legible unique engine identification
number permanently affixed to or engraved on the engine.

Sec. 89.111-96 Averaging, banking, and trading of exhaust emissions.

Regulations regarding the availability of an averaging, banking,
and trading program along with applicable record- keeping requirements
are found in subpart C of this part. Participation in the averaging,
banking, and trading program is optional.

Sec. 89.112-96 Oxides of nitrogen, carbon monoxide, hydrocarbon, and
particulate matter exhaust emission standards.

(a) Nonroad engines to which this subpart is applicable must meet
the following exhaust emission standards:
(1) Exhaust emissions of oxides of nitrogen shall not exceed 9.2
grams per kilowatt hour (g/kW-hr).
(2) Exhaust emissions of carbon monoxide shall not exceed 11.4 g/
kW-hr for engines at and above 130 kW.
(3) Exhaust emissions of hydrocarbon shall not exceed 1.3 g/kW-hr
for engines at and above 130 kW.
(4) Exhaust emissions of particulate matter shall not exceed 0.54
g/kW-hr for engines at and above 130 kW.
(b) Exhaust emission of oxides of nitrogen, carbon monoxide, and
hydrocarbon is measured using the procedures set forth in subpart E of
this part.
(c) Exhaust emission of particulate matter is measured using the
California Regulations for New 1996 and Later Heavy-Duty Off-Road
Diesel Cycle Engines. This procedure is incorporated by reference. See
Sec. 89.6.
(d) In lieu of the standard specified in paragraph (a)(1) of this
section, manufacturers may elect to include engine families in the
averaging, banking, and trading program, the provisions of which are
specified in subpart C of this part. The manufacturer must set a family
emission limit (FEL) not to exceed 14.6 grams per kilowatt hour. This
FEL serves as the standard for that family.

Sec. 89.113-96 Smoke emission standard.

(a) Exhaust opacity from compression-ignition nonroad engines for
which this subpart is applicable must not exceed:
(1) 20 percent during the acceleration mode;
(2) 15 percent during the lugging mode; and
(3) 50 percent during the peaks in either the acceleration or
lugging modes.
(b) Opacity levels are to be measured and calculated as set forth
in part 86, subpart I.

Sec. 89.114-96 Special test procedures.

(a) Use of special test procedures by EPA. The Administrator may,
on the basis of written application by a manufacturer, establish
special test procedures other than those set forth in this part, for
any nonroad engine that the Administrator determines is not susceptible
to satisfactory testing under the specified test procedures set forth
in subpart E of this part or part 86, subpart I.
(b) Use of alternate test procedures by manufacturer.
(1) A manufacturer may elect to use an alternate test procedure
provided that it yields equivalent results to the specified procedures,
its use is approved in advance by the Administrator, and the basis for
equivalent results with the specified test procedures is fully
described in the manufacturer's application.
(2) The Administrator may reject data generated under alternate
test procedures which do not correlate with data generated under the
specified procedures.

Sec. 89.115-96 Application for certificate.

(a) For each engine family that complies with all applicable
standards and requirements, the engine manufacturer must submit to the
Administrator a completed application for a certificate of conformity.
(b) The application must be approved and signed by the authorized
representative of the manufacturer.
(c) The application will be updated and corrected by amendment as
provided for in Sec. 89.123-96 to accurately reflect the manufacturer's
production.
(d) Required content. Each application must include the following
information:
(1) A description of the basic engine design including, but not
limited to, the engine family specifications, the provisions of which
are contained in Sec. 89.116-96;
(2) An explanation of how the emission control system operates,
including a detailed description of all emission control system
components, each auxiliary emission control device (AECD), and all fuel
system components to be installed on any production or test engine(s);
(3) Proposed test fleet selection and the rationale for the test
fleet selection;
(4) Special or alternate test procedures, if applicable;
(5) The description of the operating cycle and the period of
operation necessary to accumulate service hours on test engines and
stabilize emission levels;
(6) A description of all adjustable operating parameters
(including, but not limited to, injection timing and fuel rate),
including the following:
(i) The nominal or recommended setting and the associated
production tolerances;
(ii) The intended physically adjustable range;
(iii) The limits or stops used to establish adjustable ranges;
(iv) Production tolerances of the limits or stops used to establish
each physically adjustable range; and
(v) Information relating to why the physical limits or stops used
to establish the physically adjustable range of each parameter, or any
other means used to inhibit adjustment, are effective in preventing
adjustment of parameters to settings outside the manufacturer's
intended physically adjustable ranges on in-use engines;
(7) For families participating in the averaging, banking, and
trading program, the information specified in subpart C of this part;
(8) A description of the test equipment and fuel proposed to be
used;
(9) All test data obtained by the manufacturer on each test engine;
(10) An unconditional statement certifying that all engines in the
engine family comply with all requirements of this part and the Clean
Air Act.
(b) At the Administrator's request, the manufacturer must supply
such additional information as may be required to evaluate the
application including, but not limited to, projected nonroad engine
production.

Sec. 89.116-96 Engine families.

(a) A manufacturer's product line is divided into engine families
that are comprised of engines expected to have similar emission
characteristics throughout their useful life periods.
(b) The following characteristics distinguish engine families:
(1) Fuel;
(2) Cooling medium;
(3) Method of air aspiration;
(4) Method of exhaust aftertreatment (for example, catalytic
converter or particulate trap);
(5) Combustion chamber design;
(6) Bore;
(7) Stroke;
(8) Number of cylinders, (engines with aftertreatment devices
only); and
(9) Cylinder arrangement (engines with aftertreatment devices
only).
(c) Upon a showing by the manufacturer that the useful life period
emission characteristics are expected to be similar, engines differing
in one or more of the characteristics in paragraph (b) of this section
may be grouped in the same engine family.
(d) Upon a showing by the manufacturer that the expected useful
life period emission characteristics will be different, engines
identical in all the characteristics of paragraph (b) of this section
may be divided into separate engine families.

Sec. 89.117-96 Test fleet selection.

(a) The manufacturer must select for testing, from each engine
family, the engine with the most fuel injected per stroke of an
injector at maximum power.
(b) Each engine in the test fleet must be constructed to be
representative of production engines.
(c) After review of the manufacturer's test fleet, the
Administrator may select from the available fleet one additional test
engine from each engine family.

Sec. 89.118-96 Service accumulation.

(a)(1) Each test engine in the test fleet must be operated with all
emission control systems operating properly for a period sufficient to
stabilize emissions.
(2) A manufacturer may elect to consider as stabilized emission
levels from engines with no more than 125 hours of service.
(b) No maintenance, other than recommended lubrication and filter
changes, may be performed during service accumulation without the
Administrator's approval.
(c) Service accumulation should be performed in a manner using good
engineering judgment to ensure that emissions are representative of inuse
engines.
(d) The manufacturer must maintain, and provide to the
Administrator if requested, records stating the rationale for selecting
the service accumulation period and records describing the method used
to accumulate service hours on the test engine(s).

Sec. 89.119-96 Emission tests.

(a) Manufacturer testing. (1) Upon completion of service
accumulation, the manufacturer must test each test engine using the
specified test procedures, except as provided in Sec. 89.114-96. The
procedures to be used are set forth in:
(i) Subpart E of this part;
(ii) The California Regulations for New 1996 and Later Heavy-Duty
Off-Road Diesel Cycle Engines. This procedure has been incorporated by
reference. See Sec. 89.6; and
(iii) Part 86, subpart I of this chapter.
(2) Each test engine must be configured to be representative of
actual in-use operation. The Administrator may specify the adjustment
of any adjustable parameter. All test results must be reported to the
Administrator.
(b) Confirmatory testing. The Administrator may conduct
confirmatory testing or other testing on any test engine. The
manufacturer must deliver test engines as directed by the
Administrator. When the Administrator conducts confirmatory testing or
other testing, those test results are used to determine compliance with
emission standards.
(c) Use of carryover test data. In lieu of testing to certify an
engine family for a given model year, the manufacturer may submit, with
the Administrator's approval, emission test data used to certify that
engine family in previous years. This ``carryover'' data is only
allowable if the submitted test data show that the test engine would
comply with the emission standard(s) for the model year for which
certification is being sought.
(d) Test fuels. EPA may use the fuel specified in either Table 4 or
Table 5 of appendix A to subpart D of this part in confirmatory testing
or other testing on any test engine. Emission test results based on use
of Table 5 fuel will be used to confirm compliance with HC, CO,
NO<INF>X, PM, and smoke standards. Emission test results based on Table
4 fuel will be used to confirm compliance with HC, CO, NO<INF>X, and
smoke standards; when a manufacturer uses the fuel specified in Table 4
of appendix A to subpart D of this part for its certification testing,
EPA has the option to use the PM emission result, corrected using the
PM correction factor specified in Sec. 89.425-96, to confirm compliance
with the PM standard.

Sec. 89.120-96 Compliance with emission standards.

(a) If all test engines representing an engine family have
emissions less than or equal to each emission standard, that family
complies with the emission standards.
(b) If any test engine representing an engine family has emissions
greater than each emission standard, that family will be deemed not in
compliance with the emission standard(s).
(c) If aftertreatment is employed by an engine family, then a
deterioration factor must be determined and applied.
(d) For engine families included in the averaging, banking, and
trading program, the families' emission limits (FELs) are used in lieu
of the applicable federal emission standard.

Sec. 89.121-96 Certificate of conformity effective dates.

The certificate of conformity is valid from the date of issuance by
EPA until 31 December of the model year or calendar year for which it
is issued.

Sec. 89.122-96 Certification.

(a) If, after a review of the manufacturer's application, request
for certificate, information obtained from any inspection, and such
other information as the Administrator may require, the Administrator
determines that the application is complete and that the engine family
meets the requirements of this part and the Clean Air Act, the
Administrator shall issue a certificate of conformity.
(b) If, after a review of the information described in paragraph
(a) of this section, the Administrator determines that the requirements
of this part and the Clean Air Act have not been met, the Administrator
will deny certification. The Administrator must give a written
explanation when certification is denied. The manufacturer may request
a hearing on a denial.

Sec. 89.123-96 Amending the application and certificate of conformity.

(a) The manufacturer of nonroad compression-ignition engines must
notify the Administrator when changes to information required to be
described in the application for certification are to be made to a
product line covered by a certificate of conformity. This notification
must include a request to amend the application or the existing
certificate of conformity. Except as provided in paragraph (e) of this
section, the manufacturer shall not make said changes or produce said
engines prior to receiving approval from EPA.
(b) A manufacturer's request to amend the application or the
existing certificate of conformity shall include the following
information:
(1) A full description of the change to be made in production or of
the engine to be added;
(2) Engineering evaluations or data showing that engines as
modified or added will comply with all applicable emission standards;
and
(3) A determination whether the manufacturer's original test fleet
selection is still appropriate, and if the original test fleet
selection is determined not to be appropriate, proposed test fleet
selection(s) representing the engines changed or added which would have
been required if the engines had been included in the original
application for certification.
(c) The Administrator may require the manufacturer to perform tests
on the engine representing the engine to be added or changed.
(d) Decision by Administrator. (1) Based on the description of the
proposed amendment and data derived from such testing as the
Administrator may require or conduct, the Administrator will determine
whether the proposed change or addition would still be covered by the
certificate of conformity then in effect.
(2) If the Administrator determines that the change or new
engine(s) meets the requirements of this subpart and the Act, the
appropriate certificate of conformity is amended.
(3) If the Administrator determines that the changed or new
engine(s) does not meet the requirements of this subpart and the Act,
the certificate of conformity will not be amended. The Administrator
shall provide a written explanation to the manufacturer of the decision
not to amend the certificate. The manufacturer may request a hearing on
a denial.
(e) A manufacturer may make changes in or additions to production
engines concurrently with notifying the Administrator as required by
paragraph (a) of this section, if the manufacturer complies with the
following requirements:
(1) In addition to the information required in paragraph (b) of
this section, the manufacturer must supply supporting documentation,
test data, and engineering evaluations as appropriate to demonstrate
that all affected engines will still meet applicable emission
standards.
(2) If, after a review, the Administrator determines additional
testing is required, the manufacturer must provide required test data
within 30 days or cease production of the affected engines.
(3) If the Administrator determines that the affected engines do
not meet applicable requirements, the Administrator will notify the
manufacturer to cease production of the affected engines and to recall
and correct at no expense to the owner all affected engines previously
produced.
(4) Election to produce engines under this paragraph will be deemed
to be a consent to recall all engines which the Administrator
determines do not meet applicable standards and to cause such
nonconformity to be remedied at no expense to the owner.

Sec. 89.124-96 Record retention, maintenance, and submission.

(a) The manufacturer of any nonroad compression-ignition engine
must maintain the following adequately organized records:
(1) Copies of all applications filed with the Administrator.
(2) A detailed history of each test engine used for certification
including the following:

(i) A description of the test engine's construction, including a
general description of the origin and buildup of the engine, steps
taken to ensure that it is representative of production engines,
description of components specially built for the test engine, and the
origin and description of all emission-related components;
(ii) A description of the method used for service accumulation,
including date(s) and the number of hours accumulated;
(iii) A description of all maintenance, including modifications,
parts changes, and other servicing performed, and the date(s) and
reason(s) for such maintenance;
(iv) A description of all emission tests performed (except tests
performed by the EPA directly) including routine and standard test
documentation, as specified in subpart E of this part, date(s) and the
purpose of each test;
(v) A description of all tests performed to diagnose engine or
emission control performance, giving the date and time of each and the
reason(s) for the test; and
(vi) A description of any significant event(s) affecting the engine
during the period covered by the history of the test engine but not
described by an entry under one of the previous paragraphs of this
section.
(b) Routine emission test data, such as those reporting test cell
temperature and relative humidity at start and finish of test and raw
emission results from each mode or test phase, must be retained for a
period of one year after issuance of all certificates of conformity to
which they relate. All other information specified in paragraph (a) of
this section must be retained for a period of eight years after
issuance of all certificates of conformity to which they relate.
(c) Records may be kept in any format and on any media, provided
that at the Administrator's request, organized, written records in
English are promptly supplied by the manufacturer.
(d) The manufacturer must supply, at the Administrator's request,
copies of any engine maintenance instructions or explanations issued by
the manufacturer.

Sec. 89.125-96 Production engines, annual report.

(a) Upon the Administrator's request, the manufacturer must supply
a reasonable number of production engines for testing and evaluation.
These engines must be representative of typical production and must be
supplied for testing at such time and place and for such reasonable
periods as the Administrator may require.
(b) The manufacturer must annually, within 30 days after the end of
the model year, notify the Administrator of the number of engines
produced by engine family, by gross power, by displacement, by fuel
system, or by other categories as the Administrator may require.

Sec. 89.126-96 Denial, revocation of certificate of conformity.

(a) If, after review of the manufacturer's application, request for
certification, information obtained from any inspection, and any other
information the Administrator may require, the Administrator determines
that one or more test engines do not meet applicable standards (or
family emission limits, as appropriate), then the Administrator will
notify the manufacturer in writing, setting forth the basis for this
determination.

(b) Notwithstanding the fact that engines described in the
application may comply with all other requirements of this subpart, the
Administrator may deny the issuance of, suspend, or revoke a previously
issued certificate of conformity if the Administrator finds any one of
the following infractions to be substantial:
(1) The manufacturer submits false or incomplete information;
(2) The manufacturer denies an EPA enforcement officer or EPA
authorized representative the opportunity to conduct authorized
inspections;
(3) The manufacturer fails to supply requested information or amend
its application to include all engines being produced;
(4) The manufacturer renders inaccurate any test data which it
submits or otherwise circumvents the intent of the Act or this part;
(5) The manufacturer denies an EPA enforcement officer or EPA
authorized representative reasonable assistance (as defined in
Sec. 89.129-96(e)).
(c) If a manufacturer knowingly commits an infraction specified in
paragraph (b)(1) or (b)(4) of this section, knowingly commits any other
fraudulent act which results in the issuance of a certificate of
conformity, or fails to comply with the conditions specified in
Secs. 89.203-96(f), 89.206-96(d), 89.209-96(c) or 89.210-96(g), the
Administrator may deem such certificate void ab initio.
(d) When the Administrator denies, suspends, revokes, or voids ab
initio a certificate of conformity the manufacturer will be provided a
written determination. The manufacturer may request a hearing under
Sec. 89.127-96 on the Administrator's decision.
(e) Any suspension or revocation of a certificate of conformity
shall extend no further than to forbid the introduction into commerce
of engines previously covered by the certification which are still in
the hands of the manufacturer, except in cases of such fraud or other
misconduct that makes the certification invalid ab initio.

Sec. 89.127-96 Request for hearing.

(a) A manufacturer may request a hearing on the Administrator's
denial, suspension, voiding ab initio or revocation of a certificate of
conformity.
(b) The manufacturer's request must be filed within 30 days of the
Administrator's decision, be in writing, and set forth the
manufacturer's objections to the Administrator's decision and data to
support the objections.
(c) If, after review of the request and supporting data, the
Administrator finds that the request raises a substantial and factual
issue, the Administrator will grant the manufacturer's request for a
hearing.

Sec. 89.128-96 Hearing procedures.

(a)(1) After granting a request for a hearing the Administrator
shall designate a Presiding Officer for the hearing.
(2) The hearing will be held as soon as practicable at a time and
place determined by the Administrator or by the Presiding Officer.
(3) The Administrator may, at his or her discretion, direct that
all argument and presentation of evidence be concluded within a
specified period established by the Administrator. Said period may be
no less than 30 days from the date that the first written offer of a
hearing is made to the manufacturer. To expedite proceedings, the
Administrator may direct that the decision of the Presiding Officer
(who may, but need not, be the Administrator) shall be the final EPA
decision.
(b)(1) Upon appointment pursuant to paragraph (a) of this section,
the Presiding Officer will establish a hearing file. The file shall
consist of the following:
(i) The determination issued by the Administrator under
Sec. 89.126-96(d);
(ii) The request for a hearing and the supporting data submitted
therewith;
(iii) All documents relating to the request for certification and
all documents submitted therewith; and
(iv) Correspondence and other data material to the hearing.
(2) The hearing file will be available for inspection by the
applicant at the office of the Presiding Officer.
(c) An applicant may appear in person or may be represented by
counsel or by any other duly authorized representative.
(d)(1) The Presiding Officer, upon the request of any party or at
his or her discretion, may arrange for a prehearing conference at a
time and place he/she specifies. Such prehearing conference will
consider the following:
(i) Simplification of the issues;
(ii) Stipulations, admissions of fact, and the introduction of
documents;
(iii) Limitation of the number of expert witnesses;
(iv) Possibility of agreement disposing of any or all of the issues
in dispute; and
(v) Such other matters as may aid in the disposition of the
hearing, including such additional tests as may be agreed upon by the
parties.
(2) The results of the conference shall be reduced to writing by
the Presiding Officer and made part of the record.
(e)(1) Hearings shall be conducted by the Presiding Officer in an
informal but orderly and expeditious manner. The parties may offer oral
or written evidence, subject to the exclusion by the Presiding Officer
of irrelevant, immaterial, and repetitious evidence.
(2) Witnesses will not be required to testify under oath. However,
the Presiding Officer shall call to the attention of witnesses that
their statements may be subject to the provisions of 18 U.S.C. 1001
which imposes penalties for knowingly making false statements or
representations or using false documents in any matter within the
jurisdiction of any department or agency of the United States.
(3) Any witness may be examined or cross-examined by the Presiding
Officer, the parties, or their representatives.
(4) Hearings shall be reported verbatim. Copies of transcripts of
proceedings may be purchased by the applicant from the reporter.
(5) All written statements, charts, tabulations, and similar data
offered in evidence at the hearings shall, upon a showing satisfactory
to the Presiding Officer of their authenticity, relevancy, and
materiality, be received in evidence and shall constitute a part of the
record.
(6) Oral argument may be permitted at the discretion of the
Presiding Officer and shall be reported as part of the record unless
otherwise ordered by the Presiding Officer.
(f)(1) The Presiding Officer shall make an initial decision which
shall include written findings and conclusions and the reasons or basis
regarding all the material issues of fact, law, or discretion presented
on the record. The findings, conclusions, and written decision shall be
provided to the parties and made a part of the record. The initial
decision shall become the decision of the Administrator without further
proceedings, unless there is an appeal to the Administrator or motion
for review by the Administrator within 20 days of the date the initial
decision was filed. If the Administrator has determined under paragraph
(a) of this section that the decision of the Presiding Officer is
final, there is no right of appeal to the Administrator.
(2) On appeal from or review of the initial decision, the
Administrator shall have all the powers which he or she would have in
making the initial decision, including the discretion to require or
allow briefs, oral argument, the taking of additional evidence, or the
remanding to the Presiding Officer for additional proceedings. The
decision by the Administrator may adopt the original decision or shall
include written findings and conclusions and the reasons or basis
therefor on all the material issues of fact, law, or discretion
presented on the appeal or considered in the review.

Sec. 89.129-96 Right of entry.

(a) Any manufacturer who has applied for certification of a new
engine or engine family subject to certification testing under this
subpart shall admit or cause to be admitted to any of the following
facilities during operating hours any EPA enforcement officer or EPA
authorized representative on presentation of credentials.
(1) Any facility where any such certification testing or any
procedures or activities connected with such certification testing are
or were performed;
(2) Any facility where any new engine which is being, was, or is to
be tested is present;
(3) Any facility where any construction process or assembly process
used in the modification or buildup of such an engine into a
certification engine is taking place or has taken place; and
(4) Any facility where any record or other document relating to any
of the above is located.
(b) Upon admission to any facility referred to in paragraph (a)(1)
of this section, any EPA enforcement officer or EPA authorized
representative shall be allowed:
(1) To inspect and monitor any part or aspect of such procedures,
activities, and testing facilities, including, but not limited to,
monitoring engine preconditioning, emission tests and service
accumulation, maintenance, and engine storage procedures, and to verify
correlation or calibration of test equipment;
(2) To inspect and make copies of any such records, designs, or
other documents; and
(3) To inspect and photograph any part or aspect of any such
certification engine and any components to be used in the construction
thereof.
(c) To allow the Administrator to determine whether production
engines conform in all material respects to the design specifications
applicable to those engines, as described in the application for
certification for which a certificate of conformity has been issued,
any manufacturer shall admit any EPA enforcement officer or EPA
authorized representative on presentation of credentials to:
(1) Any facility where any document, design, or procedure relating
to the translation of the design and construction of engines and
emission-related components described in the application for
certification or used for certification testing into production engines
is located or carried on; and
(2) Any facility where any engines to be introduced into commerce
are manufactured or assembled.
(d) On admission to any such facility referred to in paragraph (c)
of this section, any EPA enforcement officer or EPA authorized
representative shall be allowed:
(1) To inspect and monitor any aspects of such manufacture or
assembly and other procedures;
(2) To inspect and make copies of any such records, documents or
designs; and
(3) To inspect and photograph any part or aspect of any such new
engines and any component used in the assembly thereof that are
reasonably related to the purpose of his or her entry.
(e) Any EPA enforcement officer or EPA authorized representative
shall be furnished by those in charge of a facility being inspected
with such reasonable assistance as he or she may request to help the
enforcement officer or authorized representative discharge any function
listed in this paragraph. Each applicant for or recipient of
certification is required to cause those in charge of a facility
operated for its benefit to furnish such reasonable assistance without
charge to EPA whether or not the applicant controls the facility.
(1) Reasonable assistance includes, but is not limited to,
clerical, copying, interpretation and translation services; the making
available on request of personnel of the facility being inspected
during their working hours to inform the EPA enforcement officer or EPA
authorized representative of how the facility operates and to answer
the officer's questions; and the performance on request of emission
tests on any engine which is being, has been, or will be used for
certification testing. Such tests shall be nondestructive, but may
require appropriate service accumulation.
(2) A manufacturer may be compelled to cause any employee at a
facility being inspected to appear before an EPA enforcement officer or
EPA authorized representative. The request for the employee's
appearance shall be in writing, signed by the Assistant Administrator
for Air and Radiation, and served on the manufacturer. Any employee who
has been instructed by the manufacturer to appear will be entitled to
be accompanied, represented, and advised by counsel.
(f) The duty to admit or cause to be admitted any EPA enforcement
officer or EPA authorized representative applies whether or not the
applicant owns or controls the facility in question and applies both to
domestic and to foreign manufacturers and facilities. EPA will not
attempt to make any inspections which it has been informed that local
law forbids. However, if local law makes it impossible to do what is
necessary to ensure the accuracy of data generated at a facility, no
informed judgment that an engine is certifiable or is covered by a
certificate can properly be based on those data. It is the
responsibility of the manufacturer to locate its testing and
manufacturing facilities in jurisdictions where this situation will not
arise.
(g) Any entry without 24 hours prior written or oral notification
to the affected manufacturer shall be authorized in writing by the
Assistant Administrator for Enforcement.

Subpart C--Averaging, Banking, and Trading Provisions

Sec. 89.201-96 Applicability.

Nonroad compression-ignition engines subject to the provisions of
subpart A of this part are eligible to participate in the averaging,
banking, and trading program described in this subpart.

Sec. 89.202-96 Definitions.

The definitions in subpart A of this part apply to this subpart.
The following definitions also apply to this subpart:
Averaging for nonroad engines means the exchange of emission
credits among engine families within a given manufacturer's product
line.

Banking means the retention of nonroad engine emission credits by
the manufacturer generating the emission credits for use in future
model year averaging or trading as permitted by these regulations.
Emission credits represent the amount of emission reduction or
exceedance, by a nonroad engine family, below or above the emission
standard, respectively. Emission reductions below the standard are
considered as ``positive credits,'' while emission exceedances above
the standard are considered as ``negative credits.'' In addition,
``projected credits'' refer to emission credits based on the projected
applicable production/sales volume of the engine family. ``Reserved
credits'' are emission credits generated within a model year waiting to
be reported to EPA at the end of the model year. ``Actual credits''
refer to emission credits based on actual applicable production/sales
volume as contained in the end-of-year reports submitted to EPA. Some
or all of these credits may be revoked if EPA review of the end-of-year
reports or any subsequent audit action(s) uncovers problems or errors.
Trading means the exchange of nonroad engine emission credits
between manufacturers.

Sec. 89.203-96 General provisions.

(a) The averaging, banking, and trading program for NO<INF>X
emissions from eligible nonroad engines is described in this subpart.
Participation in this program is voluntary.
(b) A nonroad engine family is eligible to participate in the
averaging, banking, and trading program for NO<INF>X emissions if it is
subject to regulation under subpart B of this part with certain
exceptions specified in subsection (c) of this section. No averaging,
banking, and trading program is available for meeting the HC, CO, PM,
or smoke emission standards specified in subpart B of this part.
(c) Nonroad engines may not participate in the averaging, banking,
and trading program if they are subject to state engine emission
standards, are exported, or use an alternate or special test procedure
under Sec. 89.114-96.
(d) A manufacturer may certify one or more nonroad engine families
at family emission limits (FELs) above or below the applicable emission
standard, provided the summation of the manufacturer's projected
balance of all credit transactions in a given model year is greater
than or equal to zero, as determined under Sec. 89.207-96.
(1) FELs for NO<INF>X may not exceed 14.6 grams per kilowatt hour.
(2) An engine family certified to an FEL is subject to all
provisions specified in subparts B, D, E, G, H, I, J, and K of this
part, except that the applicable FEL replaces the NO<INF>X emission
standard for the family participating in the averaging, banking, and
trading program.
(3) A manufacturer of an engine family with an FEL exceeding the
applicable emission standard must obtain emission credits sufficient to
address the associated credit shortfall via averaging, banking, or
trading.
(4) An engine family with an FEL below the applicable standard may
generate emission credits for averaging, banking, trading, or a
combination thereof. Emission credits may not be used to offset an
engine family's emissions that exceed its applicable FEL. Credits may
not be used to remedy nonconformity determined by a Selective
Enforcement Audit (SEA) or by recall (in-use) testing. However, in the
case of an SEA failure, credits may be used to allow subsequent
production of engines for the family in question if the manufacturer
elects to recertify to a higher FEL.
(e) Credits generated in a given model year may be used in the
following three model years. Credits not used by the end of the third
model year after being generated are forfeited. Credits generated in
one model year may not be used for prior model years.
(f) Manufacturers must demonstrate compliance under the averaging,
banking, and trading program for a particular model year by 270 days
after the model year. Engine families without an adequate amount of
emission credits will violate the conditions of the certificates of
conformity. The certificates of conformity may be voided ab initio
under Sec. 89.126-96(c) for those engine families.

Sec. 89.204-96 Averaging.

(a) A manufacturer may use averaging to offset an emission
exceedance of a nonroad engine family caused by an FEL above the
applicable emission standard. Credits used in averaging may be obtained
from credits generated by another engine family in the same model year,
credits banked in the three previous model years, or credits obtained
through trading.
(b) Credits scheduled to expire in the earliest model year must be
used first, before using other available credits.

Sec. 89.205-96 Banking.

(a) A manufacturer of a nonroad engine family with an FEL below the
applicable standard for a given model year may bank credits in that
model year for use in averaging and trading in the following three
model years. Credits not withdrawn within the three model years after
they are banked are forfeited.
(b) A manufacturer of a nonroad engine family may bank credits up
to one calendar year prior to the effective date of mandatory
certification. Such engines must meet the requirements of subparts A,
B, D, E, F, G, H, I, J, and K of this part.
(c) A manufacturer may bank actual credits only after the end of
the model year and after EPA has reviewed the manufacturer's end-ofyear
reports. During the model year and before submittal of the end-ofyear
report, credits originally designated in the certification process
for banking will be considered reserved and may be redesignated for
trading or averaging in the end-of-year report and final report.
(d) Credits declared for banking from the previous model year that
have not been reviewed by EPA may be used in averaging or trading
transactions. However, such credits may be revoked at a later time
following EPA review of the end-of-year report or any subsequent audit
actions.

Sec. 89.206-96 Trading.

(a) A nonroad engine manufacturer may exchange emission credits
with other nonroad engine manufacturers in trading.
(b) Credits for trading can be obtained from credits banked in the
three previous model years or credits generated during the model year
of the trading transaction. Traded credits expire if they are not used
in averaging within three model years following the model year in which
they were generated.
(c) Traded credits can be used for averaging, banking, or further
trading transactions.
(d) In the event of a negative credit balance resulting from a
transaction, both the buyer and the seller are liable, except in cases
involving fraud. Certificates of all engine families participating in a
negative trade may be voided ab initio under Sec. 89.126-96(c).

Sec. 89.207-96 Credit calculation.

For each participating engine family, emission credits (positive or
negative) are to be calculated according to one of the following
equations and rounded, in accordance with ASTM E29-90, to the nearest
one-tenth of a megagram per hour (Mg/hr). ASTM E29-90 has been
incorporated by reference. See Sec. 89.6. Consistent units are to be
used throughout the equation.
(a) For determining credit availability from all engine families
generating credits:

Emission credits=(Std - FEL) x (Volume) x (MinPR) x
(10-6)

(b) For determining credit usage for all engine families requiring
credits to offset emissions in excess of the standard:

Emission credits= (Std-FEL) x (Volume) x (MaxPR) x (10-6)

Where:

Std=the current and applicable nonroad engine emission standard in
grams per brake horsepower hour.

FEL=the family emission limit for the engine family in grams per
brake horsepower hour.

Volume=the number of nonroad engines eligible to participate in the
averaging, banking, and trading program within the given engine
family during the model year. Quarterly production projections are
used for initial certification. Actual applicable production/sales
volumes is used for end-of-year compliance determination.
MinPR=the power rating of the configuration within an engine family
with the lowest power rating.

MaxPR=the power rating of the configuration within an engine family
with the highest power rating.

Sec. 89.208-96 Labeling.

For all nonroad engines included in the averaging, banking, and
trading program, the family emission limit to which the engine is
certified must be included on the label required in Sec. 89.110-96.

Sec. 89.209-96 Certification.

(a) In the application for certification a manufacturer must:
(1) Declare its intent to include specific engine families in the
averaging, banking, and trading program.
(2) Submit a statement that the engines for which certification is
requested will not, to the best of the manufacturer's belief, cause the
manufacturer to have a negative credit balance when all credits are
calculated for all the manufacturer's engine families participating in
the averaging, banking, and trading program.
(3) Declare an FEL for each engine family participating in
averaging, banking, and trading.
(i) The FEL must be to the same number of significant digits as the
emission standard.
(ii) In no case may the FEL exceed the upper limit prescribed in
Sec. 89.203-96(d).
(4) Indicate the projected number of credits generated/needed for
this family; the projected applicable production/sales volume, by
quarter; and the values required to calculate credits as given in
Sec. 89.207-96.
(5) Submit calculations in accordance with Sec. 89.207-96 of
projected emission credits (positive or negative) based on quarterly
production projections for each participating family.
(6) (i) If the engine family is projected to have negative emission
credits, state specifically the source (manufacturer/engine family or
reserved) of the credits necessary to offset the credit deficit
according to quarterly projected production.
(ii) If the engine family is projected to generate credits, state
specifically (manufacturer/engine family or reserved) where the
quarterly projected credits will be applied.
(b) All certificates issued are conditional upon manufacturer
compliance with the provisions of this subpart both during and after
the model year of production.
(c) Failure to comply with all provisions of this subpart will be
considered to be a failure to satisfy the conditions upon which the
certificate was issued, and the certificate may be deemed void ab
initio.
(d) The manufacturer bears the burden of establishing to the
satisfaction of the Administrator that the conditions upon which the
certificate was issued were satisfied or waived.
(e) Projected credits based on information supplied in the
certification application may be used to obtain a certificate of
conformity. However, any such credits may be revoked based on review of
end-of-year reports, follow-up audits, and any other verification steps
deemed appropriate by the Administrator.

Sec. 89.210-96 Maintenance of records.

(a) The manufacturer of any nonroad engine that is certified under
the averaging, banking, and trading program must establish, maintain,
and retain the following adequately organized and indexed records for
each such engine produced:
(1) EPA engine family;
(2) Engine identification number;
(3) Engine model year and build date,
(4) Power rating;
(5) Purchaser and destination; and
(6) Assembly plant.
(b) The manufacturer of any nonroad engine family that is certified
under the averaging, banking, and trading program must establish,
maintain, and retain the following adequately organized and indexed
records for each such family:
(1) EPA engine family;
(2) Family emission limit (FEL);
(3) Power rating for each configuration tested;
(4) Projected applicable production/sales volume for the model
year; and
(5) Actual applicable production/sales volume for the model year.
(c) Any manufacturer producing an engine family participating in
trading reserved credits must maintain the following records on a
quarterly basis for each engine family in the trading program:
(1) The engine family;
(2) The actual quarterly and cumulative applicable production/sales
volume;
(3) The value required to calculate credits as given in
Sec. 89.207-96;
(4) The resulting type and number of credits generated/required;
(5) How and where credit surpluses are dispersed; and
(6) How and through what means credit deficits are met.
(d) The manufacturer must retain all records required to be
maintained under this section for a period of eight years from the due
date for the end-of-model-year report. Records may be retained as hard
copy or reduced to microfilm, ADP diskettes, and so forth, depending on
the manufacturer's record retention procedure; provided, that in every
case all information contained in the hard copy is retained.
(e) Nothing in this section limits the Administrator's discretion
in requiring the manufacturer to retain additional records or submit
information not specifically required by this section.
(f) Pursuant to a request made by the Administrator, the
manufacturer must submit to the Administrator the information that the
manufacturer is required to retain.
(g) EPA may void ab initio under Sec. 89.126-96(c) a certificate of
conformity for an engine family for which the manufacturer fails to
retain the records required in this section or to provide such
information to the Administrator upon request.

Sec. 89.211-96 End-of-year and final reports.

(a) End-of-year and final reports must indicate the engine family,
the actual applicable production/sales volume, the values required to
calculate credits as given in Sec. 89.207-96, and the number of credits
generated/required. Manufacturers must also submit how and where credit
surpluses were dispersed (or are to be banked) and/or how and through
what means credit deficits were met. Copies of contracts related to
credit trading must be included or supplied by the broker, if
applicable. The report shall include a calculation of credit balances
to show that the summation of the manufacturer's use of credits results
in a credit balance equal to or greater than zero.
(b) The applicable production/sales volume for end-of-year and
final reports must be based on the location of the point of first
retail sale (for example, retail customer, dealer, secondary
manufacturer) also called the final product purchase location.
(c)(1) End-of-year reports must be submitted within 90 days of the
end of the model year to: Director, Manufacturers Operations Division
(6405-J), U.S. Environmental Protection Agency, 401 M Street SW.,
Washington, DC 20460.
(2) Final reports must be submitted within 270 days of the end of
the model year to: Director, Manufacturers Operations Division (6405-
J), U.S. Environmental Protection Agency, 401 M Street SW., Washington,
DC 20460.
(d) Failure by a manufacturer participating in the averaging,
banking, or trading program to submit any end-of-year or final reports
in the specified time for all engines is a violation of sections
203(a)(1) and 213 of the Clean Air Act for each engine.
(e) A manufacturer generating credits for deposit only who fails to
submit end-of-year reports in the applicable specified time period (90
days after the end of the model year) may not use the credits until
such reports are received and reviewed by EPA. Use of projected credits
pending EPA review is not permitted in these circumstances.
(f) Errors discovered by EPA or the manufacturer in the end-of-year
report, including errors in credit calculation, may be corrected in the
final report up to 270 days from the end of the model year.
(g) If EPA or the manufacturer determines that a reporting error
occurred on an end-of-year or final report previously submitted to EPA
under this section, the manufacturer's credits and credit calculations
will be recalculated. Erroneous positive credits will be void except as
provided in paragraph (h) of this section. Erroneous negative credit
balances may be adjusted by EPA.
(h) If within 270 days of the end of the model year, EPA review
determines a reporting error in the manufacturer's favor (that is,
resulting in an increased credit balance) or if the manufacturer
discovers such an error within 270 days of the end of the model year,
the credits shall be restored for use by the manufacturer.

Sec. 89.212-96 Notice of opportunity for hearing.

Any voiding of the certificate under Secs. 89.203-96(f), 89.206-
96(d), 89.209-96(c) and 89.210-96(g) will be made only after the
manufacturer concerned has been offered an opportunity for a hearing
conducted in accordance with Secs. 89.512 and 89.513 and, if a
manufacturer requests such a hearing, will be made only after an
initial decision by the Presiding Officer.

Subpart D--Emission Test Equipment Provisions

Sec. 89.301-96 Scope; applicability.

(a) This subpart describes the equipment required in order to
perform exhaust emission tests on new nonroad compression-ignition
engines subject to the provisions of subpart B of part 89.
(b) Exhaust gases, either raw or dilute, are sampled while the test
engine is operated using an 8-mode test cycle on an engine dynamometer.
The exhaust gases receive specific component analysis determining
concentration of pollutant, exhaust volume, the fuel flow, and the
power output during each mode. Emission is reported as grams per
kilowatt hour (g/kw-hr). See subpart E of this part for a complete
description of the test procedure.
(c) General equipment and calibration requirements are given in
Sec. 89.304-96 through 89.324-96. Sections 89.325-96 through 89.331-96
set forth general test specifications.
(d) Additional information about system design, calibration
methodologies, and so forth, for raw gas sampling can be found in part
86, subpart D of this chapter. Examples for system design, calibration
methodologies, and so forth, for dilute exhaust gas sampling can be
found in part 86, subpart N of this chapter.

Sec. 89.302-96 Definitions.

The definitions in subpart A of part 89 apply to this subpart. For
terms not defined in part 89, the definitions in part 86, subparts A,
D, I, and N apply to this subpart. The following definition also
applies to this subpart.

Specific emissions, g/kW-hr, is expressed on the basis of observed
gross brake power. When it is not possible to test the engine in the
gross conditions, for example, if the engine and transmission form a
single integral unit, the engine may be tested in the net condition.
Power corrections from net to gross conditions will be allowed with
prior approval of the Administrator.

Sec. 89.303-96 Symbols/abbreviations.

(a) The abbreviations in Sec. 86.094-3 or part 89.3 of this chapter
apply to this subpart.
(b) The abbreviations in Table 1 in appendix A of this subpart
apply to this subpart. Some abbreviations from Sec. 89.3 have been
included for the convenience of the reader.
(c) The symbols in Table 2 in appendix A of this subpart apply to
this subpart.

Sec. 89.304-96 Equipment required for gaseous emissions; overview.

(a) All engines subject to this subpart are tested for exhaust
emissions. Engines are operated on dynamometers meeting the
specification given in Sec. 89.306-96.
(b) The exhaust is tested for gaseous emissions using a raw gas
sampling system as described in Sec. 89.412-96 or a constant volume
sampling (CVS) system as described in Sec. 89.419-96. Both systems
require analyzers (see paragraph (c) of this section) specific to the
pollutant being measured.
(c) Analyzers used are a non-dispersive infrared (NDIR) absorption
type for carbon monoxide and carbon dioxide analysis; paramagnetic
(PMD), zirconia (ZRDO), or electrochemical type (ECS) for oxygen
analysis; a heated flame ionization (HFID) type for hydrocarbon
analysis; and a chemiluminescent detector (CLD) or heated
chemiluminescent detector (HCLD) for oxides of nitrogen analysis.
Sections 89.309-96 through 89.324-96 set forth a full description of
analyzer requirements and specifications.

Sec. 89.305-96 Equipment measurement accuracy/calibration frequency.

The accuracy of measurements must be such that the maximum
tolerances shown in Table 3 in appendix A of this subpart are not
exceeded. Calibrate all equipment and analyzers according to the
frequencies shown in Table 3 in Appendix A of this subpart.

Sec. 89.306-96 Dynamometer specifications and calibration weights.

(a) Dynamometer specifications. The dynamometer test stand and
other instruments for measurement of power output must meet the
accuracy and calibration frequency requirements shown in Table 3 in
appendix A of this subpart. The dynamometer must be capable of
performing the test cycle described in Sec. 89.410-96.
(b) Dynamometer calibration weights. A minimum of six calibration
weights for each range used are required. The weights must be spaced to
reflect good engineering judgement such that they cover the range of
weights required and must be traceable to within 0.5 percent of NIST
weights. Laboratories located in foreign countries may certify
calibration weights to local government bureau standards.

Sec. 89.307-96 Dynamometer calibration.

(a) If necessary, follow the dynamometer manufacturer's
instructions for initial start-up and basic operating adjustments.
(b) Check the dynamometer torque measurement for each range used by
the following method:
(1) Warm up the dynamometer following the dynamometer
manufacturer's specifications.
(2) Determine the dynamometer calibration moment arm (a distance/
weight measurement). Dynamometer manufacturer's data, actual
measurement, or the value recorded from the previous calibration used
for this subpart may be used.
(3) When calibrating the engine flywheel torque transducer, any
lever arm used to convert a weight or a force through a distance into a
torque must be in a horizontal position (<plus-minus>5 degrees).
(4) Calculate the indicated torque (IT) for each calibration weight
to be used by:

IT = calibration weight (N) x calibration moment arm (m)

(5) Attach each calibration weight specified in Sec. 89.306-96 to
the moment arm at the calibration distance determined in paragraph
(b)(2) of this section. Record the power measurement equipment response
(N-m) to each weight.
(6) For each calibration weight, compare the torque value measured
in paragraph (b)(5) of this section to the calculated torque determined
in paragraph (b)(4) of this section.
(7) The measured torque must be within 2 percent of the calculated
torque.
(8) If the measured torque is not within 2 percent of the
calculated torque, adjust or repair the system. Repeat steps in
paragraphs (b)(1) through (b)(6) of this section with the adjusted or
repaired system.
(c) Optional. A master load-cell or transfer standard may be used
to verify the torque measurement system.
(1) The master load-cell and read out system must be calibrated
with weights at each test weight specified in Sec. 89.306-96. The
calibration weights must be traceable to within 0.1 percent of
applicable national standards.
(2) Warm up the dynamometer following the equipment manufacturer's
specifications.
(3) Attach the master load-cell and loading system.
(4) Load the dynamometer to a minimum of 6 equally spaced torque
values as indicated by the master load-cell for each in-use range used.
(5) The in-use torque measurement must be within 2 percent of the
torque measured by the master system for each load used.
(6) If the in-use torque is not within 2 percent of the master
torque, adjust or repair the system. Repeat steps in paragraphs (c)(2)
through (c)(5) of this section with the adjusted or repaired system.
(d) Calibrated resistors may not be used for engine flywheel torque
transducer calibration, but may be used to span the transducer prior to
engine testing.
(e) Perform other engine dynamometer system calibrations as
dictated by good engineering practice.

Sec. 89.308-96 Sampling system requirements for gaseous emissions.

(a) For each component (pump, sample line section, filters, and so
forth) in the heated portion of the sampling system that has a separate
source of power or heating element, use engineering judgment to locate
the coolest portion of that component and monitor the temperature at
that location. If several components are within an oven, then only the
surface temperature of the component with the largest thermal mass and
the oven temperature need be measured.
(b) If water is removed by condensation, the sample gas temperature
or sample dewpoint must be monitored either within the water trap or
downstream. It may not exceed 7 deg.C.

Sec. 89.309-96 Analyzers required for gaseous emissions.

(a) Analyzers. The following instruments are required for analyzing
the measured gases:
(1) Carbon Monoxide (CO) analysis. (i) The carbon monoxide analyzer
must be of the non-dispersive infrared (NDIR) absorption type.
(ii) The use of linearizing circuits is permitted.
(2) Carbon Dioxide (CO<INF>2) analysis. (i) The carbon dioxide
analyzer must be of the non-dispersive infrared (NDIR) absorption type.
(ii) The use of linearizing circuits is permitted.
(3) Oxygen (O<INF>2) analysis. Oxygen (O<INF>2) analyzers may be of
the paramagnetic (PMD), zirconia (ZRDO) or electrochemical type (ECS).
(4) Hydrocarbon (HC) analysis. (i) The hydrocarbon analyzer must be
of the heated flame ionization (HFID) type.
(ii) If the temperature of the exhaust gas at the sample probe is
below 190 deg.C, the temperature of the valves, pipework, and so
forth, must be controlled so as to maintain a wall temperature of 190
deg.C <plus-minus> 11 deg.C. If the temperature of the exhaust gas at
the sample probe is above 190 deg.C, the temperature of the valves,
pipework, and so forth, must be controlled so as to maintain a wall
temperature greater than 180 deg.C.
(iii) The oven must be capable of maintaining temperature within 2
deg.C of the set point.
(iv) Fuel and burner air must conform to the specifications in
Sec. 89.312-96.
(v) The percent of oxygen interference must be less than 3 percent,
as specified in Sec. 89.319-96(d).
(5) Oxides of nitrogen (NO<INF>X) analysis. (i) This analysis
device must consist of the subsequent items, following the sample
probe, in the given order:
(A) Pipework, valves, and so forth, controlled so as to maintain a
wall temperature above 60 deg.C.
(B) A NO<INF>2 to NO converter. The NO<INF>2 to NO converter
efficiency must be at least 90 percent.
(C) An ice bath or other cooling device located after the NO<INF>X
converter.
(D) A chemiluminescent detector (CLD).
(ii) The quench interference must be less than 3.0 percent as
measured in Sec. 89.318-96.
(b) Other gas analyzers yielding equivalent results may be used
with advance approval of the Administrator.
(c) The following requirements must be incorporated in each system
used for testing under this subpart.
(1) Carbon monoxide and carbon dioxide measurements must be made on
a dry basis (for raw exhaust measurement only). Specific requirements
for the means of drying the sample can be found in Sec. 89.309-96(e).
(2) Calibration or span gases for the NO<INF>X measurement system
must pass through the NO<INF>2 to NO converter.
(d) The electromagnetic compatibility (EMC) of the equipment must
be on a level as to minimize additional errors.
(e) Gas drying. Chemical dryers are not an acceptable method of
removing water from the sample. Water removal by condensation is
acceptable. A water trap performing this function and meeting the
specifications in Sec. 89.308-96(b) is an acceptable method. Means
other than condensation may be used only with prior approval from the
Administrator.

Sec. 89.310-96 Analyzer accuracy and specifications.

(a) Measurement accuracy--general. The analyzers must have a
measuring range which allows them to measure the concentrations of the
exhaust gas sample pollutants with the accuracies shown in Table 3 in
Appendix A of this subpart.
(1) Response time. The analyzer response time must be measured and
accounted for before recording of data begins.
(2) Precision. The precision of the analyzer must be, at worst,
<plus-minus>1 percent of full-scale concentration for each range used
at or above 100 ppm (or ppmC) or <plus-minus>2 percent for each range
used below 100 ppm (or ppmC). The precision is defined as 2.5 times the
standard deviation(s) of 10 repetitive responses to a given calibration
or span gas.
(3) Noise. The analyzer peak-to-peak response to zero and
calibration or span gases over any 10-second period must not exceed 2
percent of full-scale chart deflection on all ranges used.
(4) Zero drift. The analyzer zero-response drift during a 1-hour
period must be less than 2 percent of full-scale chart deflection on
the lowest range used. The zero-response is defined as the mean
response including noise to a zero-gas during a 30-second time
interval.
(5) Span drift. The analyzer span drift during a 1-hour period must
be less than 2 percent of full-scale chart deflection on the lowest
range used. The analyzer span is defined as the difference between the
span-response and the zero-response. The span-response is defined as
the mean response including noise to a span gas during a 30-second time
interval.
(b) Operating procedure for analyzers and sampling system. Follow
the start-up and operating instructions of the instrument manufacturer.
Adhere to the minimum requirements given in Sec. 89.314-96 to
Sec. 89.323-96.
(c) Emission measurement accuracy--Bagged sampling. (1) Good
engineering practice dictates that exhaust emission sample analyzer
readings below 15 percent of full-scale chart deflection should
generally not be used.
(2) Some high resolution read-out systems, such as computers, data
loggers, and so forth, can provide sufficient accuracy and resolution
below 15 percent of full scale. Such systems may be used provided that
additional calibrations are made to ensure the accuracy of the
calibration curves. If a gas divider is used, the gas divider must
conform to the accuracy requirements specified in Sec. 89.312-96(c).
The following procedure for calibration below 15 percent of full scale
may be used:
(i) Span the full analyzer range using a top range calibration gas
meeting the accuracy requirements of Sec. 89.312-96(c).
(ii) Generate a calibration curve according to, and meeting the
requirements of, Secs. 89.319-96 through 89.323-96.
(iii) Select a calibration gas (a span gas may be used for
calibrating the CO<INF>2 analyzer) with a concentration midway between
the two lowest calibration gases or non-zero gas divider increments.
This gas must be ``named'' to an accuracy of <plus-minus>2.0 percent of
NIST gas standards, or other standards approved by the Administrator.
(iv) Using the calibration curve fitted to the points generated in
paragraphs (c)(2)(i) and (ii) of this section, check the concentration
of the gas selected in paragraph (c)(2)(iii) of this section. The
concentration derived from the curve must be within <plus-minus>2.3
percent (<plus-minus>2.8 percent for CO<INF>2 span gas) of the original
named gas concentration.
(v) Provided the requirements of paragraph (c)(2)(iv) of this
section are met, use the gas divider with the gas selected in paragraph
(c)(2)(iii) of this section and determine the remainder of the
calibration points. Fit a calibration curve per Secs. 89.319-96 through
89.322-96 of this chapter for the entire analyzer range.
(d) Emission measurement accuracy--continuous sampling. Analyzers
used for continuous analysis must be operated such that the measured
concentration falls between 15 and 100 percent of full-scale chart
deflection. Exceptions to these limits are:
(1) The analyzer's response may be less than 15 percent or more
than 100 percent of full scale if automatic range change circuitry is
used and the limits for range changes are between 15 and 100 percent of
full-scale chart deflection;
(2) The analyzer's response may be less than 15 percent of full
scale if:
(i) Alternative (c)(2) of this section is used to ensure that the
accuracy of the calibration curve is maintained below 15 percent; or
(ii) The full-scale value of the range is 155 ppm (or ppmC) or
less.

Sec. 89.311-96 Analyzer calibration frequency.

(a) Prior to initial use and after major repairs, bench check each
analyzer (see Sec. 89.315-96).
(b) Calibrations are performed as specified in Secs. 89.319-96
through 89.324-96.
(c) At least monthly, or after any maintenance which could alter
calibration, the following calibrations and checks are performed.
(1) Leak check the vacuum side of the system (see Sec. 89.316-96).
(2) Check that the analysis system response time has been measured
and accounted for.
(3) Verify that the automatic data collection system (if used)
meets the requirements found in Table 3 in Appendix A of this subpart.
(4) Check the fuel flow measurement instrument to insure that the
specifications in Table 3 in appendix A of this subpart are met.
(d) Verify that all NDIR analyzers meet the water rejection ratio
and the CO<INF>2 rejection ratio as specified in Sec. 89.318-96.
(e) Verify that the dynamometer test stand and power output
instrumentation meet the specifications in Table 3 in Appendix A of
this subpart.

Sec. 89.312-96 Analytical gases.

(a) The shelf life of all calibration gases must not be exceeded.
The expiration date of the calibration gases stated by the gas
manufacturer shall be recorded.
(b) Pure gases. The required purity of the gases is defined by the
contamination limits given below. The following gases must be available
for operation:
(1) Purified nitrogen (Contamination <ls-thn-eq> 1 ppm C,
<ls-thn-eq> 1 ppm CO, <ls-thn-eq> 400 ppm CO<INF>2, <ls-thn-eq> 0.1 ppm
NO)
(2) Purified oxygen (Purity 99.5 percent vol O<INF>2)
(3) Hydrogen-helium mixture (40 <plus-minus> 2 percent hydrogen,
balance helium) (Contamination <ls-thn-eq> 31 ppm C, <ls-thn-eq> 400
ppm CO)
(4) Purified synthetic air (Contamination <ls-thn-eq> 1 ppm C,
<ls-thn-eq> 1 ppm CO, <ls-thn-eq> 400 ppm CO<INF>2, <ls-thn-eq> 0.1 ppm
NO) (Oxygen content between 18-21 percent vol.)
(c) Calibration and span gases. (1) Calibration gas values are to
be derived from NIST Standard Reference Materials (SRM's) or other
standardized gas samples and are to be single blends as listed in the
following paragraph.
(2) Mixtures of gases having the following chemical compositions
shall be available:

C<INF>3H<INF>8 and purified synthetic air (dilute measurements);
C<INF>3H<INF>8 and purified nitrogen (raw measurements);
CO and purified nitrogen;

NO<INF>X and purified nitrogen (the amount of NO<INF>2 contained in
this calibration gas must not exceed 5 percent of the NO content);

CO<INF>2 and purified nitrogen

(3) The true concentration of a span gas must be within
<plus-minus>2 percent of the NIST gas standard. The true concentration
of a calibration gas must be within <plus-minus>1 percent of the NIST
gas standard. The use of precision blending devices (gas dividers) to
obtain the required calibration gas concentrations is acceptable,
provided that the blended gases are accurate to within <plus-minus>1.5
percent of NIST gas standards, or other gas standards which have been
approved by the Administrator. This accuracy implies that primary gases
used (or blending) must be ``named'' to an accuracy of at least
<plus-minus>1 percent, traceable to NIST or other approved gas
standards. All concentrations of calibration gas shall be given on a
volume basis (volume percent or volume ppm).
(4) The gas concentrations used for calibration and span may also
be obtained by means of a gas divider, either diluting with purified
N<INF>2 or diluting with purified synthetic air. The accuracy of the
mixing device must be such that the concentration of the diluted gases
may be determined to within <plus-minus>2 percent.
(d) Oxygen interference check gases shall contain propane with 350
ppmC <plus-minus>75 ppmC hydrocarbon. The concentration value shall be
determined to calibration gas tolerances by chromatographic analysis of
total hydrocarbons plus impurities or by dynamic blending. Nitrogen
shall be the predominant diluent with the balance oxygen.
(e) Fuel for the FID shall be a blend of 40 percent <plus-minus>2
percent hydrogen with the balance being helium. The mixture shall
contain less than 1 ppm equivalent carbon response; 98 to 100 percent
hydrogen fuel may be used with advance approval of the Administrator.
(f) Hydrocarbon analyzer burner air. The concentration of oxygen
must be within 1 mole percent of the oxygen concentration of the burner
air used in the latest oxygen interference check (%O<INF>2I). If the
difference in oxygen concentration is greater than 1 mole percent, then
the oxygen interference must be checked and, if necessary, the analyzer
adjusted to meet the %O<INF>2I requirements. The burner air must
contain less than 2 ppmC hydrocarbon.

Sec. 89.313-96 Initial calibration of analyzers.

(a) Warming-up time. The warming-up time should be according to the
recommendations of the manufacturer. If not specified, a minimum of two
hours shall be allowed for warming up the analyzers.
(b) NDIR and HFID analyzer. The NDIR analyzer shall be tuned and
maintained according to the instrument manufacturer's instructions. The
combustion flame of the HFID analyzer shall be optimized in order to
meet the specifications in Sec. 89.319-96(b)(2).
(c) Zero setting and calibration. (1) Using purified synthetic air
(or nitrogen), the CO, CO<INF>2, NO<INF>X, and HC analyzers shall be
set at zero.
(2) Introduce the appropriate calibration gases to the analyzers
and the values recorded. The same gas flow rates shall be used as when
sampling exhaust.
(d) Rechecking of zero setting. The zero setting shall be rechecked
and the procedure described in paragraph (c) of this section repeated,
if necessary.

Sec. 89.314-96 Pre- and post-test calibration of analyzers.

Each operating range used during the test shall be checked prior to
and after each test in accordance with the following procedure. (A
chronic need for parameter adjustment can indicate a need for
instrument maintenance.):
(a) The calibration is checked by using a zero gas and a span gas
whose nominal value is between 80 percent and 100 percent of fullscale,
inclusive, of the measuring range.
(b) After the emission test a zero gas and the same span gas will
be used for rechecking. The analysis will be considered acceptable if
the difference between the two measuring results is less than 2 percent
of full scale.

Sec. 89.315-96 Analyzer bench checks.

(a) Prior to initial use and after major repairs verify that each
analyzer complies with the specifications given in Table 3 in appendix
A of this subpart.
(b) If a stainless steel NO<INF>2 to NO converter is used,
condition all new or replacement converters. The conditioning consists
of either purging the converter with air for a minimum of 4 hours or
until the converter efficiency is greater than 90 percent. The
converter must be at operational temperature while purging. Do not use
this procedure prior to checking converter efficiency on in-use
converters.

Sec. 89.316-96 Analyzer leakage and response time.

(a) Vacuum side leak check. (1) Any location within the analysis
system where a vacuum leak could affect the test results must be
checked.
(2) The maximum allowable leakage rate on the vacuum side is 0.5
percent of the in-use flow rate for the portion of the system being
checked. The analyzer flows and bypass flows may be used to estimate
the in-use flow rates.
(3) The sample probe and the connection between the sample probe
and valve V2 (see Figure 1 in appendix B of this subpart) may be
excluded from the leak check.
(b) Pressure side leak check. The maximum allowable leakage rate on
the pressure side is 5 percent of the in-use flow rate.
(c) The response time shall be accounted for in all emission
measurement and calculations.

Sec. 89.317-96 NO<INF>X converter check.

(a) Prior to its introduction into service, and monthly thereafter,
the chemiluminescent oxides of nitrogen analyzer shall be checked for
NO<INF>2 to NO converter efficiency. Figure 2 in appendix B of this
subpart is a reference for the following paragraphs.
(b) Follow good engineering practices for instrument start-up and
operation. Adjust the analyzer to optimize performance.
(c) Zero the oxides of nitrogen analyzer with zero-grade air or
zero-grade nitrogen.
(d) Connect the outlet of the NO<INF>X generator to the sample
inlet of the oxides of nitrogen analyzer which has been set to the most
common operating range.
(e) Introduce into the NO<INF>X generator analyzer-system an NO-innitrogen
(N<INF>2) mixture with an NO concentration equal to
approximately 80 percent of the most common operating range. The
NO<INF>2 content of the gas mixture shall be less than 5 percent of the
NO concentration.
(f) With the oxides of nitrogen analyzer in the NO mode, record the
concentration of NO indicated by the analyzer.
(g) Turn on the NO<INF>X generator O<INF>2 (or air) supply and
adjust the O<INF>2 (or air) flow rate so that the NO indicated by the
analyzer is about 10 percent less than indicated in paragraph (b)(5) of
this section. Record the concentration of NO in this NO+O<INF>2
mixture.
(h) Switch the NO<INF>X generator to the generation mode and adjust
the generation rate so that the NO measured on the analyzer is 20
percent of that measured in paragraph (b)(5) of this section. There
must be at least 10 percent unreacted NO at this point. Record the
concentration of residual NO.

(i) Switch the oxides of nitrogen analyzer to the NO<INF>X mode and
measure total NO<INF>X. Record this value.
(j) Switch off the NO<INF>X generator but maintain gas flow through
the system. The oxides of nitrogen analyzer will indicate the NO<INF>X
in the NO+O<INF>2 mixture. Record this value.
(k) Turn off the NO<INF>X generator O<INF>2 (or air) supply. The
analyzer will now indicate the NO<INF>X in the original NO-in-N<INF>2
mixture. This value should be no more than 5 percent above the value
indicated in paragraph (b)(4) of this section.
(l) Calculate the efficiency of the NO<INF>X converter by
substituting the concentrations obtained into the following equation:

<GRAPHIC><TIFF>TR17JN94.000

Where:

a=concentration obtained in paragraph (i),
b=concentration obtained in paragraph (j),
c=concentration obtained in paragraph (g),
d=concentration obtained in paragraph (h).

If converter efficiency is not greater than 90 percent, corrective
action will be required.

Sec. 89.318-96 Analyzer interference checks.

(a) Gases present in the exhaust other than the one being analyzed
can interfere with the reading in several ways. Positive interference
occurs in NDIR and PMD instruments when the interfering gas gives the
same effect as the gas being measured, but to a lesser degree. Negative
interference occurs in NDIR instruments by the interfering gas
broadening the absorption band of the measured gas and in CLD
instruments by the interfering gas quenching the radiation. The
interference checks described in this section are to be made initially
and after any major repairs that could affect analyzer performance.
(b) CO analyzer water and CO<INF>2 interference checks. Prior to
its introduction into service and annually thereafter, the NDIR carbon
monoxide analyzer shall be checked for response to water vapor and
CO<INF>2:
(1) Follow good engineering practices for instrument start-up and
operation. Adjust the analyzer to optimize performance on the most
sensitive range to be used.
(2) Zero the carbon monoxide analyzer with either zero-grade air or
zero-grade nitrogen.
(3) Bubble a mixture of 3 percent CO<INF>2 in N<INF>2 through water
at room temperature and record analyzer response.
(4) An analyzer response of more than 1 percent of full scale for
ranges above 300 ppm full scale or more than 3 ppm on ranges below 300
ppm full scale requires corrective action. (Use of conditioning columns
is one form of corrective action which may be taken.)
(c) NO<INF>X analyzer quench check. The two gases of concern for
CLD (and HCLD) analyzers are CO<INF>2 and water vapor. Quench responses
to these two gases are proportional to their concentrations and,
therefore, require test techniques to determine quench at the highest
expected concentrations experienced during testing.
(1) NO<INF>X analyzer CO<INF>2 quench check. A CO<INF>2 span gas
having a concentration of 80 percent to 100 percent of full scale of
the maximum operating range used during testing shall be passed through
the CO<INF>2 NDIR analyzer and the value recorded as a. It is diluted
approximately 50 percent with NO span gas and then passed through the
CO<INF>2 NDIR and CLD (or HCLD), with the CO<INF>2 and NO values
recorded as b and c respectively. The CO<INF>2 shall then be shut off
and only the NO span gas passed through the CLD (or HCLD) and the NO
value recorded as d. Percent CO<INF>2 quench shall be calculated as
follows and shall not exceed 3 percent:

<GRAPHIC><TIF1>TR17JN94.001

Where:

a=Undiluted CO<INF>2 concentration (percent)
b=Diluted CO2 concentration (percent)

c=Diluted NO concentration (ppm)

d=Undiluted NO concentration (ppm)

(2) NO<INF>X analyzer water quench check. (i) This check applies to
wet measurements only. An NO span gas having a concentration of 80
percent to 100 percent of full scale of a normal operating range shall
be passed through the CLD (or HCLD) and the response recorded as D. The
NO span gas shall then be bubbled through water at room temperature and
passed through the CLD (or HCLD) and the analyzer response recorded as
AR. Determine and record the analyzer absolute operating pressure and
the bubbler water temperature. (It is important that the NO span gas
contains minimal NO<INF>2 concentration for this check. No allowance
for absorption of NO<INF>2 in water has been made in the following
quench calculations.)

(ii) Calculations for water quench must consider dilution of the NO
span gas with water vapor and scaling of the water vapor concentration
of the mixture to that expected during testing. Determine the mixture's
saturated vapor pressure (designated as Pwb) that corresponds to the
bubbler water temperature. Calculate the water concentration (Z1,
percent) in the mixture by the following equation:

<GRAPHIC><TIF2>TR17JN94.002

where GP = analyzer operating pressure (Pa)

(iii) Calculate the expected dilute NO span gas and water vapor
mixture concentration (designated as D1) by the following equation:

<GRAPHIC><TIF3>TR17JN94.003

(iv) For diesel (compression-ignition) exhaust, the maximum raw or
dilute exhaust water vapor concentration expected during testing
(designated as Wm) can be estimated from the CO<INF>2 span gas
(designated as A) criteria in paragraph (c)(1) of this section and the
assumption of a fuel atom H/C ratio of 1.8:1 as:

<GRAPHIC><TIF4>TR17JN94.004

Where:

A = undiluted CO<INF>2 concentration.

Percent water quench shall not exceed 3 percent and shall be
calculated by:

<GRAPHIC><TIF5>TR17JN94.005

Sec. 89.319-96 Hydrocarbon analyzer calibration.

(a) The FID hydrocarbon analyzer shall receive the initial and
periodic calibration as described in this section. The HFID used with
petroleum-fueled diesel (compression-ignition) engines shall be
operated to a set point <plus-minus>5.5 deg.C between 185 and 197
deg.C.
(b) Initial and periodic optimization of detector response. Prior
to introduction into service and at least annually thereafter, adjust
the FID hydrocarbon analyzer for optimum hydrocarbon response as
specified in this paragraph. Alternate methods yielding equivalent
results may be used, if approved in advance by the Administrator.
(1) Follow good engineering practices for initial instrument startup
and basic operating adjustment using the appropriate fuel (see
Sec. 89.312-96(e)) and zero-grade air.
(2) One of the following procedures is required for FID or HFID
optimization:
(i) The procedure outlined in Society of Automotive Engineers (SAE)
paper No. 770141, ``Optimization of a Flame Ionization Detector for
Determination of Hydrocarbon in Diluted Automotive Exhausts''; author,
Glenn D. Reschke. This procedure has been incorporated by reference.
See Sec. 89.6.
(ii) The HFID optimization procedures outlined in Sec. 86.331-79 of
this chapter.
(iii) Alternative procedures may be used if approved in advance by
the Administrator.
(3) After the optimum flow rates have been determined, record them
for future reference.
(c) Initial and periodic calibration. Prior to introduction into
service and monthly thereafter, the FID or HFID hydrocarbon analyzer
shall be calibrated on all normally used instrument ranges using the
steps in this paragraph. Use the same flow rate and pressures as when
analyzing samples. Calibration gases shall be introduced directly at
the analyzer, unless the ``overflow'' calibration option of
Sec. 86.1310-90(b)(3)(i) of this chapter for the HFID is taken.
(1) Adjust analyzer to optimize performance.
(2) Zero the hydrocarbon analyzer with zero-grade air.
(3) Calibrate on each used operating range with propane-in-air
(dilute) or propane-in-nitrogen (raw) calibration gases having nominal
concentrations starting between 10-15 percent and increasing in at
least six incremental steps to 90 percent of that range. The
incremental steps are to be spaced to represent good engineering
practice. For each range calibrated, if the deviation from a leastsquares
best-fit straight line is 2 percent or less of the value at
each data point, concentration values may be calculated by use of a
single calibration factor for that range. If the deviation exceeds 2
percent at any point, the best-fit non-linear equation which represents
the data to within 2 percent of each test point shall be used to
determine concentration.
(d) Oxygen interference optimization. Choose a range where the
oxygen interference check gases will fall in the upper 50 percent.
Conduct the test, as outlined in this paragraph, with the oven
temperature set as required by the instrument manufacturer. Oxygen
interference check gas specifications are found in Sec. 89.312-96(d).
(1) Zero the analyzer.
(2) Span the analyzer with the purified synthetic air specified in
Sec. 89.312-96(b)(4).
(3) Recheck zero response. If it has changed more than 0.5 percent
of full scale repeat paragraphs (d)(1) and (d)(2) of this section to
correct problem.
(4) Introduce the 5 percent and 10 percent oxygen interference
check gases.
(5) Recheck the zero response. If it has changed more <plus-minus>1
percent of full scale, repeat the test.
(6) Calculate the percent of oxygen interference (designated as
percent O<INF>2I) for each mixture in paragraph (d)(4) of this section.

<GRAPHIC><TIF6>TR17JN94.006

A=hydrocarbon concentration (ppmC) of the span gas used in paragraph
(d)(2) of this section.
B=hydrocarbon concentration (ppmC) of the oxygen interference check
gases used in paragraph (d)(4) of this section.

<GRAPHIC><TIF7>TR17JN94.007

D=percent of full-scale analyzer response due to A.

(7) The percent of oxygen interference (designated as %O<INF>2I)
must be less than <plus-minus> 3.0 percent for all required oxygen
interference check gases prior to testing.
(8) If the oxygen interference is greater than the specifications,
incrementally adjust the air flow above and below the manufacturer's
specifications, repeating paragraphs (d)(1) through (d)(7) of this
section for each flow.
(9) If the oxygen interference is greater than the specification
after adjusting the air flow, vary the fuel flow and thereafter the
sample flow, repeating paragraphs (d)(1) through (d)(7) of this section
for each new setting.
(10) If the oxygen interference is still greater than the
specifications, repair or replace the analyzer, FID fuel, or burner air
prior to testing. Repeat this section with the repaired or replaced
equipment or gases.

Sec. 89.320-96 Carbon monoxide analyzer calibration.

(a) Calibrate the NDIR carbon monoxide as described in this
section.
(b) Initial and periodic interference check. Prior to its
introduction into service and annually thereafter, the NDIR carbon
monoxide analyzer shall be checked for response to water vapor and
CO<INF>2 in accordance with Sec. 318.96(b).
(c) Initial and periodic calibration. Prior to its introduction
into service and monthly thereafter, the NDIR carbon monoxide analyzer
shall be calibrated.
(1) Adjust the analyzer to optimize performance.
(2) Zero the carbon monoxide analyzer with either zero-grade air or
zero-grade nitrogen.
(3) Calibrate on each used operating range with carbon monoxide-inN
<INF>2 calibration gases having nominal concentrations starting
between 10 and 15 percent and increasing in at least six incremental
steps to 90 percent of that range. The incremental steps are to be
spaced to represent good engineering practice. For each range
calibrated, if the deviation from a least-squares best-fit straight
line is 2 percent or less of the value at each data point,
concentration values may be calculated by use of a single calibration
factor for that range. If the deviation exceeds 2 percent at any point,
the best-fit non-linear equation which represents the data to within 2
percent of each test point shall be used to determine concentration.
(d) The initial and periodic interference, system check, and
calibration test procedures specified in part 86, subpart D of this
chapter may be used in lieu of the procedures specified in this
section.

Sec. 89.321-96 Oxides of nitrogen analyzer calibration.

(a) The chemiluminescent oxides of nitrogen analyzer shall receive
the initial and periodic calibration described in this section.
(b) Prior to its introduction into service, and monthly thereafter,
the chemiluminescent oxides of nitrogen analyzer is checked for
NO<INF>2 to NO converter efficiency according to Sec. 89.317-96.
(c) Initial and periodic calibration. Prior to its introduction
into service, and monthly thereafter, the chemiluminescent oxides of
nitrogen analyzer shall be calibrated on all normally used instrument
ranges. Use the same flow rate as when analyzing samples. Proceed as
follows:

(1) Adjust analyzer to optimize performance.
(2) Zero the oxides of nitrogen analyzer with zero-grade air or
zero-grade nitrogen.
(3) Calibrate on each normally used operating range with NO-inN
<INF>2 calibration gases with nominal concentrations starting at
between 10 and 15 percent and increasing in at least six incremental
steps to 90 percent of that range. The incremental steps are to be
spaced to represent good engineering practice. For each range
calibrated, if the deviation from a least-squares best-fit straight
line is 2 percent or less of the value at each data point,
concentration values may be calculated by use of a single calibration
factor for that range. If the deviation exceeds 2 percent at any point,
the best-fit non-linear equation which represents the data to within 2
percent of each test point shall be used to determine concentration.
(d) The initial and periodic interference, system check, and
calibration test procedures specified in part 86, subpart D of this
chapter may be used in lieu of the procedures specified in this
section.

Sec. 89.322-96 Carbon dioxide analyzer calibration.

(a) Prior to its introduction into service, and monthly thereafter,
the NDIR carbon dioxide analyzer shall be calibrated as follows:
(1) Follow good engineering practices for instrument start-up and
operation. Adjust the analyzer to optimize performance.
(2) Zero the carbon dioxide analyzer with either zero-grade air or
zero-grade nitrogen.
(3) Calibrate on each normally used operating range with carbon
dioxide-in-N<INF>2 calibration or span gases having nominal
concentrations starting between 10 and 15 percent and increasing in at
least six incremental steps to 90 percent of that range. The
incremental steps are to be spaced to represent good engineering
practice. For each range calibrated, if the deviation from a leastsquares
best-fit straight line is 2 percent or less of the value at
each data point, concentration values may be calculated by use of a
single calibration factor for that range. If the deviation exceeds 2
percent at any point, the best-fit non-linear equation which represents
the data to within 2 percent of each test point shall be used to
determine concentration.
(b) The initial and periodic interference, system check, and
calibration test procedures specified in part 86, subpart D of this
chapter may be used in lieu of the procedures in this section.

Sec. 89.323-96 NDIR analyzer calibration.

(a) Detector optimization. If necessary, follow the instrument
manufacturer's instructions for initial start-up and basic operating
adjustments.
(b) Calibration curve. Develop a calibration curve for each range
used as follows:
(1) Zero the analyzer.
(2) Span the analyzer to give a response of approximately 90
percent of full-scale chart deflection.
(3) Recheck the zero response. If it has changed more than 0.5
percent of full scale, repeat the steps given in paragraphs (b)(1) and
(b)(2) of this section.
(4) Record the response of calibration gases having nominal
concentrations starting between 10 and 15 percent and increasing in at
least six incremental steps to 90 percent of that range. The
incremental steps are to be spaced to represent good engineering
practice.
(5) Generate a calibration curve. The calibration curve shall be of
fourth order or less, have five or fewer coefficients. If any range is
within 2 percent of being linear a linear calibration may be used.
Include zero as a data point. Compensation for known impurities in the
zero gas can be made to the zero-data point. The calibration curve must
fit the data points within 2 percent of point.
(6) Optional. A new calibration curve need not be generated if:
(i) A calibration curve conforming to paragraph (b)(5) of this
section exists; or
(ii) The responses generated in paragraph (b)(4) of this section
are within 1 percent of full scale or 2 percent of point, whichever is
less, of the responses predicted by the calibration curve for the gases
used in paragraph (b)(4) of this section.
(7) If multiple range analyzers are used, the lowest range used
must meet the curve fit requirements below 15 percent of full scale.

Sec. 89.324-96 Calibration of other equipment.

Other test equipment used for testing shall be calibrated as often
as required by the instrument manufacturer or as necessary according to
good practice.

Sec. 89.325-96 Engine intake air temperature measurement.

(a) Engine intake air temperature measurement must be made within
122 cm of the engine. The measurement location must be made either in
the supply system or in the air stream entering the supply system.
(b) The temperature measurements shall be accurate to within
<plus-minus>2 deg.C.

Sec. 89.326-96 Engine intake air humidity measurement.

(a) Humidity conditioned air supply. Air that has had its absolute
humidity altered is considered humidity- conditioned air. For this type
of intake air supply, the humidity measurements must be made within the
intake air supply system and after the humidity conditioning has taken
place.
(b) Nonconditioned air supply procedure. Humidity measurements in
nonconditioned intake air supply systems must be made in the intake air
stream entering the supply system. Alternatively, the humidity
measurements can be measured within the intake air supply stream.

Sec. 89.327-96 Charge cooling.

For engines with an air-to-air intercooler (or any other low
temperature charge air cooling device) between the turbocharger
compressor and the intake manifold, follow SAE J1937. This procedure
has been incorporated by reference. See Sec. 89.6. The temperature of
the cooling medium and the temperature of the charge air shall be
monitored and recorded.

Sec. 89.328-96 Inlet and exhaust restrictions.

(a) The manufacturer is liable for emission compliance over the
full range of restrictions that are specified by the manufacturer for
that particular engine.
(b) Perform testing at the following inlet and exhaust restriction
settings.
(1) Equip the test engine with an air inlet system presenting an
air inlet restriction at the upper limit at maximum air flow, as
specified by the engine manufacturer for a clean air cleaner. A system
representative of the installed engine may be used. In other cases a
test shop system may be used.
(2) The exhaust backpressure must be at the upper limit at maximum
declared power, as specified by the engine manufacturer. A system
representative of the installed engine may be used. In other cases a
test shop system may be used.

Sec. 89.329-96 Engine cooling system.

An engine cooling system is required with sufficient capacity to
maintain the engine at normal operating temperatures as prescribed by
the engine manufacturer.

Sec. 89.330-96 Lubricating oil and test fuels.

(a) Lubricating oil. Use the engine lubricating oil for testing
that meets the requirements as specified by the manufacturer for a
particular engine and intended usage. Record the specifications of the
lubricating oil used for the test.
(b) Test fuels. (1) Use diesel fuels for testing which are clean
and bright, with pour and cloud points adequate for operability. The
diesel fuel may contain nonmetallic additives as follows: Cetane
improver, metal deactivator, antioxidant, dehazer, antirust, pour
depressant, dye, dispersant, and biocide.
(2) Use only petroleum fuel meeting the specifications in Table 4
in appendix A of this subpart, or substantially equivalent
specifications approved by the Administrator, for exhaust emission
testing. Alternatively, petroleum fuel meeting the specifications in
Table 5 in appendix A of this subpart may be used in exhaust emission
testing. The grade of diesel fuel used must be commercially designated
as ``Type 2-D'' grade diesel fuel and recommended by the engine
manufacturer. If the fuel specified in Table 4 in Appendix A of this
subpart is used, the adjustment factor specified in Sec. 89.425-96 may
be applied to particulate emission values to account for the impact of
sulfur in fuel on particulate emissions.
(c) Other fuels may be used for testing provided they meet the
following qualifications:
(1) They are commercially available;
(2) Information acceptable to the Administrator is provided to show
that only the designated fuel would be used in customer service;
(3) Use of a fuel listed under paragraph (b) of this section would
have a detrimental effect on emissions or durability; and
(4) Fuel specifications are approved in writing by the
Administrator prior to the start of testing.
(d) Report the specification range of the fuel to be used under
paragraphs (b)(2) and (c)(1) through (c)(4) of this section in the
application for certification in accordance with Sec. 89.115-96 (a)(8).

Sec. 89.331-96 Test conditions.

(a) General requirements. Calculate all volumes and volumetric flow
rates at standard conditions for temperature and pressure (0 deg.C and
101.3 kPa), and these conditions must be used consistently throughout
all calculations.
(b) Engine test conditions. Measure the absolute temperature
(designated as T and expressed in Kelvin) of the engine air at the
inlet to the engine, and the dry atmospheric pressure (designated as p
and expressed in kPa), and determine the parameter f according to the
following provisions:
(1) Naturally aspirated and mechanically supercharged engines:

<GRAPHIC><TIF8>TR17JN94.008

(2) Turbocharged engine with or without cooling of inlet air:

<GRAPHIC><TIF9>TR17JN94.009

<GRAPHIC><TIF10>TR17JN94.010

Appendix A to Subpart D--Tables

Table 1.--Abbreviations Used in Subpart D

CLD......... Chemiluminescent detector.
CO.......... Carbon monoxide.
CO<INF>2......... Carbon dioxide.
HC.......... Hydrocarbons.
HCLD........ Heated chemiluminescent detector.
HFID........ Heated flame ionization detector.
NDIR........ Non-dispersive infra-red analyzer.

NIST........ National Institute for Standards and Testing.
NO.......... Nitric Oxide.
NO<INF>2......... Nitrogen Dioxide.
NOx......... Oxides of nitrogen.
O<INF>2.......... Oxygen.
PMD......... Paramagnetic detector.
ZROD........ Zirconiumdioxyde sensor.

Table 2.--Symbols Used in Subpart D

Symbol Term Unit

Conc...... Concentration (ppm by volume)................... ppm
f......... Engine specific parameter considering ..........
atmospheric conditions.

F<INF>FCB...... Fuel specific factor for the carbon balance ..........
calculation.

F<INF>FD....... Fuel specific factor for exhaust flow ..........
calculation on dry basis.

F<INF>FH....... Fuel specific factor representing the hydrogen ..........
to carbon ratio.

F<INF>FW....... Fuel specific factor for exhaust flow ..........
calculation on wet basis.

G<INF>AIRW..... Intake air mass flow rate on wet basis.......... kg/h
G<INF>AIRD..... Intake air mass flow rate on dry basis.......... kg/h
G<INF>EXHW..... Exhaust gas mass flow rate on wet basis......... kg/h
G<INF>Fuel..... Fuel mass flow rate............................. kg/h
H......... Absolute humidity (water content related to dry g/kg
air).

i......... Subscript denoting an individual mode........... ..........
K<INF>H........ Humidity correction factor...................... ..........
L......... Percent torque related to maximum torque for the %
test mode.

Mass...... Pollutant mass flow............................. g/h
n<INF>d,i...... Engine speed (average at the i'th mode during 1/min
the cycle).

P<INF>s........ Dry atmospheric pressure........................ kPa
P<INF>d........ Test ambient saturation vapor pressure at kPa
ambient temperature.

P......... Gross power output uncorrected.................. kW
P<INF>AUX...... Declared total power absorbed by auxiliaries kW
fitted for the test.

P<INF>M........ Maximum power measured at the test speed under kW
test conditions.

P<INF>i........ P<INF>i=P<INF>M,i+P<INF>AUX,i.................................. .<INF>...<INF>.....<INF>.
P<INF>B........ Total barometric pressure (average of the pre- kPa
test and post-test values).

R<INF>a........ Relative humidity of the ambient air............ %
S......... Dynamometer setting............................. kW
T......... Absolute temperature at air inlet............... K
T<INF>be....... Air temperature after the charge air cooler (if K
applicable) (average).

T<INF>clout.... Coolant temperature outlet (average)............ K
T<INF>Dd....... Absolute dewpoint temperature................... K
T<INF>d,i...... Torque (average at the i'th mode during the N-m
cycle).

T<INF>SC....... Temperature of the intercooled air.............. K
T<INF>ref...... Reference temperature........................... K
V<INF>EXHD..... Exhaust gas volume flow rate on dry basis....... m3/h
V<INF>AIRW..... Intake air volume flow rate on wet basis........ m3/h
P<INF>B........ Total barometric pressure....................... kPa
V<INF>EXHW..... Exhaust gas volume flow rate on wet basis....... m3/h
WF........ Weighing factor.................................
WF<INF>E....... Effective weighing factor ......................

Table 3.--Measurement Accuracy Calibration Frequency (MY96 and Later)

Permissible deviation
No. from reading\1\ Calibration

Item --------------------------- frequency
Nonidle Idle

1.. Engine speed......... <plus-minus>2 <plus-minu 30 days.
%. s2%.

2.. Torque............... <plus-minus>2 <plus-minu 30 days.
%. s5%.

3.. Fuel consumption..... <plus-minus>1 <plus-minu 30 days.
%. s5%.

4.. Air consumption...... <plus-minus>2 <plus-minu As required.
%. s5%.

5.. Coolant temperature.. <plus-minus>2 Same...... As required.
deg.K.

6.. Lubricant temperature <plus-minus>2 Same...... As required.
deg.K.

7.. Exhaust backpressure. <plus-minus>5 Same...... As required.
%.

8.. Inlet depression..... <plus-minus>5 Same...... As required.
%.

9.. Exhaust gas <plus-minus>1 Same...... As required.
temperature. 5 deg.K.

10. Air inlet temperature <plus-minus>2 Same...... As required.
(combustion air). deg.K.

11. Atmospheric pressure. <plus-minus>0 Same...... As required.
.5%.

12. Humidity (combustion <plus-minus>3 Same...... As required.
air) (relative). .0%.

13. Fuel temperature..... <plus-minus>2 Same...... As required.
deg.K.

14. Temperature with <plus-minus>2 Same...... As required.
regard to dilution deg.K.
tunnel.

15. Dilution air humidity <plus-minus>3 Same...... As required.
% absolute.

16. HC analyzer.......... <plus-minus>2 Same...... 30 days.
%2.

17. CO analyzer.......... <plus-minus>2 Same...... 30 days.
%2.

18. NO<INF>X analyzer......... <plus-minus>2 Same...... 30 days.
%2.

19. NO<INF>X converter 90%.......... Same...... 30 days.
efficiency check.

20. CO<INF>2 analyzer......... <plus-minus>2 Same...... 30 days.
%2.

\1\All accuracy requirements pertain to the final recorded value which
is inclusive of the data acquisition system.

\2\If reading is under 100 ppm then the accuracy shall be <plus-minus>2
ppm.

Table 4. Test Fuel Specifications for MY96 and Later:Federal Specifications

Value (type
Item Procedure (ASTM)\1\ 2-D)

Cetane.............................................................. D613-86..................... 42-50
Distillation range:

IBP, deg.C..................................................... D86-90...................... 171-204
10% point, deg.C............................................... D86-90...................... 204-235
50% point, deg.C............................................... D86-90...................... 243-283
90% point, deg.C............................................... D86-90...................... 293-332
EP, deg.C...................................................... D86-90...................... 321-366
Gravity, API.................................................... D287-92..................... 33-37
Total sulfur, %mass............................................. D129-91 or D2622-92......... >0.05--0.5
Hydrocarbon composition:

Aromatics, %vol................................................. D1319-89.................... \2\10
Parafins,....................................................... D1319-89.................... (3)
Napthenes,...................................................... ............................ ............
Olefins,........................................................ ............................ ............
Flashpoint, deg.C (minimum).................................... D93-90...................... 54
Viscosity @ 38 deg.C, Centistokes.............................. D445-88..................... 2.0-3.2

\1\All ASTM procedures in this table have been incorporated by reference. See Sec. 89.6.
\2\Minimum.
\3\Remainder.

Table 5.--Test Fuel Specifications for MY96 and Later: California Specifications

Value (type
Item Procedure (ASTM)\1\ 2-D)

Cetane.............................................................. D613-86..................... 40-48
Distillation range:

Aromatics %vol.................................................. D1319-89.................... 10\2\
Parafins........................................................ D1319-89.................... (3)
Napthenes....................................................... ............................ ............
Olefins......................................................... ............................ ............
Flashpoint, deg.C (minimum).................................... D93-90...................... 54
Viscosity @ 38 deg.C, centistokes.............................. D445-88..................... 2.0-3.2

\1\All ASTM procedures in this table have been incorporated by reference. See Sec. 89.6.
\2\Minimum.
\3\Remainder.

BILLING CODE 6560-50-P
Appendix B to Subpart D--Figures
<GRAPHIC><TIF11>TR17JN94.036
<GRAPHIC><TIF12>TR17JN94.037
BILLING CODE 6560-50-C
Subpart E--Exhaust Emission Test Procedures

Sec. 89.401-96 Scope; applicability.

(a) This subpart describes the procedures to follow in order to
perform exhaust emission tests on new nonroad compression-ignition
engines subject to the provisions of subpart B of this part.
(b) Exhaust gases, either raw or dilute, are sampled while the test
engine is operated using an 8-mode test cycle on an engine dynamometer.
The exhaust gases receive specific component analysis determining
concentration of pollutant, exhaust volume, the fuel flow, and the
power output during each mode. Emission is reported as grams per
kilowatt hour (g/kW-hr).

Sec. 89.402-96 Definitions.

The definitions in subpart A of this part apply to this subpart.
For terms not defined in this part, the definitions in part 86,
subparts A, D, I, and N of this chapter apply to this subpart. The
following definition also applies to this subpart.
Specific emissions, (g/kW-hr), shall be expressed on the basis of
observed gross power.

When it is not possible to test the engine in the gross conditions,
for example, if the engine and transmission form a single integral
unit, the engine may be tested in the net condition. Power corrections
from net to gross conditions will be allowed with prior approval of the
Administrator.

Sec. 89.403-96 Symbols/abbreviations.

(a) The abbreviations in Sec. 86.094-3 or Sec. 89.3 of this chapter
apply to this subpart.
(b) The abbreviations in Table 1 in appendix A to subpart D also
apply to this subpart. Some abbreviations from Sec. 89.3 have been
included for the convenience of the reader.
(c) The symbols in Table 2 in appendix A to subpart D apply to this
subpart.

Sec. 89.404-96 Test procedure overview.

(a) The test consists of prescribed sequences of engine operating
conditions to be conducted on an engine dynamometer. The exhaust gases,
generated raw or dilute during engine operation, are sampled for
specific component analysis through the analytical train. The test is
applicable to engines equipped with catalytic or direct-flame
afterburners, induction system modifications, or other systems, or to
uncontrolled engines.

(b) The test is designed to determine the brake-specific emissions
of hydrocarbons, carbon monoxide, and oxides of nitrogen. The test
consists of one idle mode, four power modes at one speed and three
power modes at another speed. These procedures require the
determination of the concentration of each pollutant, exhaust volume,
the fuel flow, and the power output during each mode. The measured
values are weighted and used to calculate the grams of each pollutant
emitted per kilowatt hour (g/kW-hr).
(c) (1) When an engine is tested for exhaust emissions, the
complete engine shall be tested with all emission control devices
installed and functioning.
(2) On air-cooled engines, the fan shall be installed.
(3) Additional accessories (for example, oil cooler, alternators,
or air compressors) may be installed but such accessory loading will be
considered parasitic in nature and observed power shall be used in the
emission calculation.
(d) All emission control systems installed on or incorporated in
the application must be functioning during all procedures in this
subpart. In cases of component malfunction or failure, maintenance to
correct component failure or malfunction must be authorized in
accordance with Sec. 86.094-25 of this chapter.
(e) The engine must be equipped with an electrical generation
device typical of one used in customer service (such as an alternator).
The power drain from it must be no greater than what is sufficient to
operate the engine on the test stand.

Sec. 89.405-96 Recorded information.

(a) The information described in this section must be recorded,
where applicable, for each test.
(b) Engine description and specification. A copy of the information
specified in this paragraph must accompany each engine sent to the
Administrator for compliance testing. The manufacturer need not record
the information specified in this paragraph for each test if the
information, with the exception of paragraphs (b)(3) and (b)(9) of this
section, is included in the manufacturer's application for
certification.
(1) Engine-system combination.
(2) Engine identification numbers.
(3) Number of hours of operation accumulated on engine.
(4) Rated maximum horsepower and torque.
(5) Maximum horsepower and torque speeds.
(6) Engine displacement.
(7) Governed speed.
(8) Idle rpm.
(9) Fuel consumption at maximum power and torque.
(10) Maximum air flow.
(11) Air inlet restriction.
(12) Exhaust pipe diameter(s).
(13) Maximum exhaust system backpressure.
(c) Test data; general.
(1) Engine-system combination.
(2) Engine identification number.
(3) Instrument operator.
(4) Engine operator.
(5) Number of hours of operation accumulated on the engine prior to
beginning the warm-up portion of the test.
(6) Fuel identification.
(7) Date of most recent analytical assembly calibration.
(8) All pertinent instrument information such as tuning, gain,
serial numbers, detector number, and calibration curve numbers. As long
as this information is available for inspection by the Administrator,
it may be summarized by system number or analyzer identification
numbers.
(d) Test data; pre-test.
(1) Date and time of day.
(2) Test number.
(3) Barometric pressure, pre-test segment.
(4) Engine intake humidity, pre-test segment for compressionignition
engines with non-conditioned air supply systems.
(5) Maximum observed torque for intermediate and rated speeds.
(6) Recorder chart or equivalent. Identify for each test segment
zero traces for each range used, and span traces for each range used.
(7) Air temperature after and pressure drop across the charge air
cooler (if applicable) at maximum observed torque and rated speed.
(e) Test data; modal.
(1) Recorder chart or equivalent. Identify for each test mode the
emission concentration traces and the associated analyzer range(s). The
start and finish of each test.
(2) Observed engine torque.
(3) Observed engine rpm.
(4) Record engine torque and engine rpm continuously with a chart
recorder or equivalent recording device.
(5) Intake air flow and depression for each mode.
(6) Engine intake air temperature for each mode.
(7) Mass fuel flow for each mode.
(8) Engine intake humidity.
(9) Coolant temperature outlet.
(10) Engine fuel inlet temperature, location to be representative
of in-use as specified by each manufacturer.
(f) Test data; post-test.
(1) Recorder chart or equivalent. Identify the zero traces for each
range used and the span traces for each range used. Identify hangup
check, if performed.
(2) Total number of hours of operation accumulated on the engine.
(3) Barometric pressure, post-test segment.
(4) Engine intake humidity, post-test segment for compressionignition
engines with non-conditioned air supply systems.

Sec. 89.406-96 Pre-test procedures.

(a) Allow a minimum of 30 minutes warmup in the standby or
operating mode prior to spanning the analyzers.
(b) Replace or clean the filter elements and then vacuum leak check
the system per Sec. 89.316-96(a). A pressure leak check is also
permitted per Sec. 89.316-96(b). Allow the heated sample line, filters,
and pumps to reach operating temperature.
(c) Perform the following system checks:
(1) Check the sample-line temperature (see Sec. 86.310-79 of this
chapter for raw test procedures or Sec. 86.1310-90 of this chapter for
dilute test procedures).
(2) Check that the system response time has been accounted for
prior to sample collection data recording.
(3) A hang-up check is permitted, but is optional.
(d) Check analyzer zero and span at a minimum before and after each
test. Further, check analyzer zero and span any time a range change is
made or at the maximum demonstrated time span for stability for each
analyzer used.
(e) Check system flow rates and pressures.

Sec. 89.407-96 Engine dynamometer test run.

(a) Measure and record the temperature of the air supplied to the
engine, the fuel temperature at the pump inlet, and the observed
barometric pressure.
(b) The governor and fuel system shall have been adjusted to
provide engine performance at the levels reported in the application
for certification required under Sec. 89.115-96.
(c) The following steps are taken for each test:
(1) Install instrumentation and sample probes as required.
(2) Perform the pre-test procedure as specified in Sec. 89.406-96.
(3) Read and record the general test data as specified in
Sec. 89.405-96(c).
(4) Start cooling system.
(5) Precondition (warm up) the engine in the following manner:
(i) Operate the engine at idle for 2 to 3 minutes;
(ii) Operate the engine at approximately 50 percent power at the
peak torque speed for 5 to 7 minutes;
(iii) Operate the engine at rated speed and maximum horsepower for
25 to 30 minutes;
(iv) Optional. It is permitted to precondition the engine at rated
speed and maximum horsepower until the oil and water temperatures are
stabilized. The temperatures are defined as stabilized if they are
maintained within <plus-minus>2 deg.C for 2 minutes. The engine must
be operated a minimum of 10 minutes for this option. This optional
procedure may be substituted for the procedure in paragraph (c)(5)(iii)
of this section;
(v) Optional. If the engine has been operating on service
accumulation for a minimum of 40 minutes, the service accumulation may
be substituted for the procedure in paragraphs (c)(5)(i) through (iii)
of this section.
(6) Read and record all pre-test data specified in Sec. 89.405-
96(d).
(7) Start the test cycle (see Sec. 89.410-96) within 20 minutes of
the end of the warmup. (See paragraph (c)(13) of this section.)
(8) During the first mode calculate the torque corresponding to 75,
50, and 10 percent of the maximum observed torque for the rated speed.
(9) During the fifth mode calculate the torque corresponding to 75
and 50 percent of the maximum observed torque for the intermediate
speed.
(10) Record all modal data specified in Sec. 89.405-96(e) during a
minimum of the last 60 seconds of each mode.
(11) Record the analyzer(s) response to the exhaust gas during the
a minimum of the last 60 seconds of each mode.
(12) Test modes may be repeated, as long as the engine is
preconditioned by running the previous mode.
(13) If a delay of more than 20 minutes occurs between the end of
one mode and the beginning of another mode, the test is void. If the
delay is under four hours, the test may be restarted without
preconditioning (begin at the point in the procedure described at
paragraph (c)(6) of this section). If the delay exceeds 4 hours, the
test shall include preconditioning (begin at paragraph (c)(2) of this
section).
(14) The engine speed and torque must be measured within the
accuracy requirements of Table 3 (in appendix A to subpart D), and
maintained within the requirements of Table 1 (in appendix B to this
subpart) during a minimum of the last 60 seconds of each mode.
(15) If at any time during a test mode, the test equipment
malfunctions or the specifications in paragraph (c)(14) of this section
are not met, the test mode is void and may be aborted. The test mode
may be restarted without preconditioning (begin with paragraph (c)(6)
of this section).
(16) Fuel flow and air flow during the idle load condition may be
determined just prior to or immediately following the dynamometer
sequence, if longer times are required for accurate measurements.
(d) Exhaust gas measurements. (1) Measure HC, CO, CO<INF>2, and
NO<INF>X concentration in the exhaust sample.
(2) Each analyzer range that may be used during a test mode must
have the zero and span responses recorded prior to the execution of
that test mode. Only the zero and span for the range(s) used to measure
the emissions during a test mode are required to be recorded after the
completion of the test mode.
(3) It is permissible to change filter elements between test modes.
(4) A leak check is permitted between test segments.
(5) A hangup check is permitted between test segments.
(6) If, during the emission measurement portion of a test segment,
the value of the gauges downstream of the NDIR analyzer(s) G3 or G4
(see Figure 1 in appendix B to subpart D) differs by more than
<plus-minus>0.5 kPa from the pretest value, the test segment is void.

Sec. 89.408-96 Post-test procedures.

(a) A hangup check is recommended at the completion of the last
test mode using the following procedure:
(1) Within 30 seconds introduce a zero-grade gas or room air into
the sample probe or valve V2 (see Figure 1 in appendix B to subpart D)
to check the ``hangup zero'' response. Simultaneously start a time
measurement.
(2) Select the lowest HC range used during the test.
(3) Within four minutes of beginning the time measurement in
paragraph (a)(1) of this section, the difference between the span-zero
response and the hangup zero response shall not be greater than 5.0
percent of full scale or 10 ppmC whichever is greater.
(b) Begin the analyzer span checks within 6 minutes after the
completion of the last mode in the test. Record for each analyzer the
zero and span response for each range used during the preceding test or
test segment.
(c) If during the test, the filter element(s) were replaced or
cleaned, a vacuum check must be performed per Sec. 89.316-96(a)
immediately after the span checks. If the vacuum side leak check does
not meet the requirements of Sec. 89.316-96(a), the test is void.
(d) Record the post-test data specified in Sec. 89.405-96(f).
(e) For a valid test, the analyzer drift between the before-mode
and after-mode span checks for each analyzer must meet the following
requirements:
(1) The span drift (defined as the change in the difference between
the zero response and the span response) must not exceed 2 percent of
full-scale chart deflection for each range used.
(2) The zero response drift must not exceed 2 percent of full-scale
chart deflection for each range used above 155 ppm (or ppmC) or 3
percent of full-scale chart deflection for each range below 155 ppm (or
ppmC).

Sec. 89.409-96 Data logging.

(a) A computer or any other automatic data processing device(s) may
be used as long as the system meets the requirements of this subpart.
(b) Determine from the data collection records the analyzer
responses corresponding to the end of each mode.
(c) Record data at a minimum of once every 5 seconds.
(d) Determine the final value for CO<INF>2, CO, HC, and NO<INF>X
concentrations by averaging the concentration of each point taken
during the sample period for each mode.
(e) For purposes of this section, calibration data includes
calibration curves, linearity curves, span-gas responses, and zero-gas
responses.

Sec. 89.410-96 Engine test cycle.

(a) The 8-mode cycle (see Table 1 in Appendix B to this subpart)
shall be followed in dynamometer operation tests of compressionignition
nonroad engines.
(b) During each non-idle mode, hold the specified speed and load to
within <plus-minus>2 percent of point. During each idle mode, speed
must be held within the manufacturer's specifications for the engine,
and the throttle must be in the fully closed position and torque must
not exceed 5 percent of the peak torque value of mode 5.
(c) If the operating conditions specified in paragraph (b) of this
section for modes 2, 3, 4, 6, and 7 cannot be maintained, the
Administrator may authorize deviations from the specified load
conditions. Such deviations shall not exceed 10 percent of the maximum
torque at the test speed. The minimum deviations, above and below the
specified load, necessary for stable operation shall be determined by
the manufacturer and approved by the Administrator prior to the test
run.
(d) Power generated during the idle mode may not be included in the
calculation of emission results.

Sec. 89.411-96 Exhaust sample procedure--gaseous components.

(a) Automatic data collection equipment requirements. The analyzer
response may be read by automatic data collection (ADC) equipment such
as computers, data loggers, and so forth. If ADC equipment is used, the
following is required:
(1) For bag sample analysis, the analyzer response must be stable
at greater than 99 percent of the final reading for the dilute exhaust
sample bag. A single value representing the average chart deflection
over a 10-second stabilized period shall be stored.
(2) For continuous analysis systems, a single value representing
the average integrated concentration over a cycle shall be stored.
(3) The chart deflections or average integrated concentrations
required in paragraphs (a)(1) and (a)(2) of this section may be stored
on long-term computer storage devices such as computer tapes, storage
discs, punch cards, and so forth, or they may be printed in a listing
for storage. In either case a chart recorder is not required and
records from a chart recorder, if they exist, need not be stored.
(4) If ADC equipment is used to interpret analyzer values, the ADC
equipment is subject to the calibration specifications of the analyzer
as if the ADC equipment is part of analyzer system.
(b) Data records from any one or a combination of analyzers may be
stored as chart recorder records.
(c) Bag sample analysis. For bag sample analysis perform the
following sequence:
(1) Warm up and stabilize the analyzers; clean and/or replace
filter elements, conditioning columns (if used), and so forth, as
necessary.
(2) Obtain a stable zero reading.
(3) Zero and span the analyzers with zero and span gases. The span
gases must have concentrations between 75 and 100 percent of full-scale
chart deflection. The flow rates and system pressures during spanning
shall be approximately the same as those encountered during sampling. A
sample bag may be used to identify the required analyzer range.
(4) Recheck zero response. If this zero response differs from the
zero response recorded in paragraph (c)(3) of this section by more than
1 percent of full scale, then paragraphs (c)(2), (c)(3), and (c)(4) of
this section must be repeated.
(5) If a chart recorder is used, identify and record the most
recent zero and span response as the pre-analysis values.
(6) If ADC equipment is used, electronically record the most recent
zero and span response as the pre-analysis values.
(7) Measure HC, CO, CO<INF>2, and NO<INF>X background
concentrations in the sample bag(s) with approximately the same flow
rates and pressures used in paragraph (c)(3) of this section.
(Constituents measured continuously do not require bag analysis.)
(8) A post-analysis zero and span check of each range must be
performed and the values recorded. The number of events that may occur
between the pre- and post-analysis checks is not specified. However,
the difference between pre-analysis zero and span values (recorded in
paragraph (c)(5) or (c)(6) of this section) versus those recorded for
the post-analysis check may not exceed the zero drift limit or the span
drift limit of 2 percent of full-scale chart deflection for any range
used. Otherwise the test is void.
(d) Continuous sample analysis. For continuous sample analysis
perform the following sequence:
(1) Warm up and stabilize the analyzers; clean and/or replace
filter elements, conditioning columns (if used), and so forth, as
necessary.
(2) Leak check portions of the sampling system that operate at
negative gauge pressures when sampling, and allow heated sample lines,
filters, pumps, and so forth to stabilize at operating temperature.
(3) Optional: Perform a hangup check for the HFID sampling system:
(i) Zero the analyzer using zero air introduced at the analyzer
port.
(ii) Flow zero air through the overflow sampling system. Check the
analyzer response.
(iii) If the overflow zero response exceeds the analyzer zero
response by 2 percent or more of the HFID full-scale deflection, hangup
is indicated and corrective action must be taken.
(iv) The complete system hangup check specified in paragraph (e) of
this section is recommended as a periodic check.
(4) Obtain a stable zero reading.
(5) Zero and span each range to be used on each analyzer operated
prior to the beginning of the test cycle. The span gases shall have a
concentration between 75 and 100 percent of full-scale chart
deflection. The flow rates and system pressures shall be approximately
the same as those encountered during sampling. The HFID analyzer shall
be zeroed and spanned through the overflow sampling system.
(6) Re-check zero response. If this zero response differs from the
zero response recorded in paragraph (d)(5) of this section by more than
1 percent of full scale, then paragraphs (d)(4), (d)(5), and (d)(6) of
this section must be repeated.
(7) If a chart recorder is used, identify and record the most
recent zero and span response as the pre-analysis values.
(8) If ADC equipment is used, electronically record the most recent
zero and span response as the pre-analysis values.
(9) Collect background HC, CO, CO<INF>2, and NO<INF>X in a sample
bag (for dilute exhaust sampling only, see Sec. 89.420-96).
(10) Perform a post-analysis zero and span check for each range
used at the conditions specified in paragraph (d)(5) of this section.
Record these responses as the post-analysis values.
(11) Neither the zero drift nor the span drift between the preanalysis
and post-analysis checks on any range used may exceed 3
percent for HC, or 2 percent for NO<INF>X, CO, and CO<INF>2, of full
scale chart deflection, or the test is void. (If the HC drift is
greater than 3 percent of full-scale chart deflection, hydrocarbon
hangup is likely.)
(12) Determine background levels of NO<INF>X, CO, or CO<INF>2 (for
dilute exhaust sampling only) by the bag sample technique outlined in
paragraph (c) of this section.
(e) Hydrocarbon hangup. If HC hangup is indicated, the following
sequence may be performed:
(1) Fill a clean sample bag with background air.
(2) Zero and span the HFID at the analyzer ports.
(3) Analyze the background air sample bag through the analyzer
ports.
(4) Analyze the background air through the entire sample probe
system.
(5) If the difference between the readings obtained is 2 ppm or
more, clean the sample probe and the sample line.
(6) Reassemble the sample system, heat to specified temperature,
and repeat the procedure in paragraphs (e)(1) through (e)(6) of this
section.

Sec. 89.412-96 Raw gaseous exhaust sampling and analytical system
description.

(a) Schematic drawing. An example of a sampling and analytical
system which may be used for testing under this subpart is shown in
Figure 1 in appendix B to subpart D. All components or parts of
components that are wetted by the sample or corrosive calibration gases
shall be either chemically cleaned stainless steel or inert material,
for example, polytetrafluoroethylene resin. The use of ``gauge savers''
or ``protectors'' with nonreactive diaphragms to reduce dead volumes is
permitted.
(b) Sample probe. (1) The sample probe shall be a straight, closedend,
stainless steel, multi-hole probe. The inside diameter shall not
be greater than the inside diameter of the sample line plus 0.03 cm.
The wall thickness of the probe shall not be greater than 0.10 cm. The
fitting that attaches the probe to the exhaust pipe shall be as small
as practical in order to minimize heat loss from the probe.
(2) The probe shall have a minimum of three holes. The spacing of
the radial planes for each hole in the probe must be such that they
cover approximately equal cross-sectional areas of the exhaust duct.
See Figure 1 in appendix A to this subpart. The angular spacing of the
holes must be approximately equal. The angular spacing of any two holes
in one plane may not be 180 deg. <plus-minus>20 deg. (that is, section
view C-C of Figure 1 in appendix A to this subpart). The holes should
be sized such that each has approximately the same flow. If only three
holes are used, they may not all be in the same radial plane.
(3) The probe shall extend radially across the exhaust duct. The
probe must pass through the approximate center and must extend across
at least 80 percent of the diameter of the duct.
(c) Sample transfer line. (1) The maximum inside diameter of the
sample line shall not exceed 1.32 cm.
(2) If valve V2 is used, the sample probe must connect directly to
valve V2. The location of optional valve V2 may not be greater than
1.22 m from the exhaust duct.
(3) The location of optional valve V16 may not be greater than 61
cm from the sample pump. The leakage rate for this section on the
pressure side of the sample pump may not exceed the leakage rate
specification for the vacuum side of the pump.
(d) Venting. All vents, including analyzer vents, bypass flow, and
pressure relief vents of regulators, should be vented in such a manner
to avoid endangering personnel in the immediate area.
(e) Any variation from the specifications in this subpart including
performance specifications and emission detection methods may be used
only with prior approval by the Administrator.
(f) Additional components, such as instruments, valves, solenoids,
pumps, switches, and so forth, may be employed to provide additional
information and coordinate the functions of the component systems.
(g) The following requirements must be incorporated in each system
used for raw testing under this subpart.
(1) The sample for all components shall be taken with one sample
probe, except as allowed under Sec. 89.413-96, and internally split to
the different analyzers.
(2) The sample transport system from the engine exhaust pipe to the
HC analyzer and the NO<INF>X analyzer must be heated as indicated in
Figure 1 in appendix B of subpart D.

Sec. 89.413-96 Raw sampling procedures.

Follow these procedures when sampling for gaseous emissions.
(a) The gaseous emission sampling probe must be installed at least
0.5 m or 3 times the diameter of the exhaust pipe--whichever is the
larger--upstream of the exit of the exhaust gas system.
(b) In the case of a multi-cylinder engine with a branched exhaust
manifold, the inlet of the probe shall be located sufficiently far
downstream so as to ensure that the sample is representative of the
average exhaust emissions from all cylinders.
(c) In multi-cylinder engines having distinct groups of manifolds,
such as in a ``Vee'' engine configuration, it is permissible to:
(1) Sample after all exhaust pipes have been connected together
into a single exhaust pipe.
(2) For each mode, sample from each exhaust pipe and average the
gaseous concentrations to determine a value for each mode.
(3) Sample from all exhaust pipes simultaneously with the sample
lines connected to a common manifold prior to the analyzer. It must be
demonstrated that the flow rate through each individual sample line is
<plus-minus>4 percent of the average flow rate through all the sample
lines.
(4) Use another method, if it has been approved in advance by the
Administrator.
(d) All heated sampling lines shall be fitted with a heated filter
to extract solid particles from the flow of gas required for analysis.
The sample line for CO, CO<INF>2, and O<INF>2 analysis may be heated or
unheated.
(e) If the composition of the exhaust gas is influenced by any
treatment such as heat exchanger or air injection (except catalysts and
soot filters) then the exhaust probe must be taken upstream of this
device.

Sec. 89.414-96 Air flow measurement specifications.

(a) The air flow measurement method used must have a range large
enough to accurately measure the air flow over the engine operating
range during the test. Overall measurement accuracy must be
<plus-minus>2 percent of the reading for all modes except the idle
mode. For the idle mode, the measurement accuracy shall be
<plus-minus>5 percent or less of the reading. The Administrator must be
advised of the method used prior to testing.
(b) When an engine system incorporates devices that affect the air
flow measurement (such as air bleeds) that result in understated
exhaust emission results, corrections to the exhaust emission results
shall be made to account for such effects.

Sec. 89.415-96 Fuel flow measurement specifications.

The fuel flow rate measurement instrument must have a minimum
accuracy of <plus-minus>1 percent of full-scale flow rate for each
measurement range used. An exception is allowed at the idle point. For
this mode (idle), the minimum accuracy is <plus-minus>2 percent of
full-scale flow rate for the measurement range used. The controlling
parameters are the elapsed time measurement of the event and the weight
or volume measurement.

Sec. 89.416-96 Raw exhaust gas flow.

The exhaust gas flow shall be determined by one of the methods
described in this section and conform to the tolerances of Table 3 in
appendix A to subpart D:
(a) Measurement of the air flow and the fuel flow by suitable
metering systems (for details see SAE J244. This procedure has been
incorporated by reference. See Sec. 89.6.) and calculation of the
exhaust gas flow as follows:

G<INF>EXHW=G<INF>AIRW+G<INF>FUEL (for wet exhaust mass)

V<INF>EXHD=V<INF>AIRD+(-.767) x G<INF>FUEL (for dry exhaust volume)

V<INF>EXHW=V<INF>AIRW+.749 x G<INF>FUEL (for wet exhaust volume)

(b) Exhaust mass calculation from fuel consumption (see
Sec. 89.415-96) and exhaust gas concentrations using the method found
in Sec. 89.418-96.

Sec. 89.417-96 Data evaluation for gaseous emissions.

For the evaluation of the gaseous emission recording, the last 60
seconds of each mode are recorded, and the average values for HC, CO,
CO<INF>2, and NO<INF>X during each mode are determined from the average
concentration readings determined from the corresponding calibration
data.

Sec. 89.418-96 Raw emission sampling calculations.

(a) The final test results shall be derived through the steps
described in this section.
(b) The exhaust gas flow rate G<INF>EXHW and V<INF>EXHW shall be
determined (see Sec. 89.416-96) for each mode.
(c) When applying G<INF>EXHW the measured concentration shall be
converted to a wet basis according to the following formula, if not
already measured on a wet basis.

<GRAPHIC><TIF13>TR17JN94.011

F<INF>FH=1.783 if air/fuel ratio is 1.00
1.865 if air/fuel ratio is 1.35
1.920 if air/fuel ratio is 3.50

(d) As the NO<INF>X emission depends on ambient air conditions, the
NO<INF>X concentration shall be corrected for ambient air temperature
and humidity with the factor K<INF>H given in the following formulas.
Equation (1) of this paragraph is to be used when testing in
uncontrolled dynamometer rooms or at other sites with uncontrolled
temperatures and humidities. Equation (2) of this paragraph is to be
used for all testing when performed in controlled condition rooms. For
engines operating on alternative combustion cycles, other correction
formulas may be used if they can be justified or validated.
(1) For compression-ignition engines operating in uncontrolled
conditions:

<GRAPHIC><TIF14>TR17JN94.012

Where:

A=0.309 (f/a)-0.0266

B=-0.209 (f/a)+0.00954

T=temperature of the air in K
H=humidity of the inlet air in grams of water per kilogram of dry air
in which:

<GRAPHIC><TIF15>TR17JN94.013

(2) For compression-ignition engines operating in controlled
conditions:

<GRAPHIC><TIF16>TR17JN94.014

If required the dry fuel/air ratio may be calculated from the following
equation:

Where:

<GRAPHIC><TIF17>TR17JN94.016

(e) The pollutant mass flow for each mode shall be calculated as
follows:

Gas mass = u x Gas conc. x G<INF>EXHW
Gas mass = v x Gas conc. x V<INF>EXHD
Gas mass = w x Gas conc. x V<INF>EXHW
The coefficients u (wet), v (dry), and w (wet) are to be used
according to the following table:

Gas u v w Conc.

NO<INF>X...................... 0.001587 0.00205 0.00205 ppm.
CO....................... 0.000966 0.00125 0.00125 ppm.
HC....................... 0.000478 0.000618 ppm.
CO<INF>2...................... 15.19 19.64 19.64 percent.
O<INF>2....................... 11.05 14.29 14.29 percent.

Note: The given coefficients u, v, and w are calculated for
273.15 deg.K (0 deg.C) and 101.3 kPa. In cases where the reference
conditions vary from those stated, an error may occur in the
calculations.

(f) The following equations may be used to calculate the
coefficients u, v, and w in paragraph (e) of this section for other
conditions of temperature and pressure.
(1) For ideal gases at 273.15 deg.K (0 deg.C) and 101.3 kPa:
For the calculation of u, v, and w for NO<INF>X (as NO<INF>2), CO,
HC (in paragraph (e) of this section as H<INF>1.85; CO<INF>2; O<INF>2

w=4.4615.10-5 * M if conc. in ppm
w=4.4615.10-1 * M if conc. in percent
v=w

u=w/P<INF>Air

M=Molecular weight

p<INF>Air=Density of dry air at 273.15 deg.K (0 deg.C), 101.3
kPa=1.293 kg/m3

(2) For real gases at 273.15 deg.K (0 deg.C) and 101.3 kPa: For
the calculation of u, v, and w

w=gas x 10-6 if conc. in ppm
v=w

u = w/p<INF>Air

p<INF>Gas = Density of measured gas at 0 deg.C, 101.3 kPas in g/
m3

(3) General formulas for the calculation of concentrations at
temperature (designated as T) and pressure (designated as p):

--for ideal gases

<GRAPHIC><TIF18>TR17JN94.017

--for real gases

<GRAPHIC><TIF19>TR17JN94.018

with:

1% = 104 ppm
M = Molecular weight in g/Mo1
M<INF>v = Molecular Volume = 22.414 x 10-3 m3/Mol for ideal
gases

T\ = reference temperature 273.15 K
p\ = reference pressure 101.3 kPa
T = Temperature in deg.C
p = pressure in kPa
p<INF>Gas = Density of the measured gas at 0 deg.C, 101.3 kPa
Conc. = Gas concentration

(g) The emission shall be calculated for all individual components
in the following way:

<GRAPHIC><TIF20>TR17JN94.019

The weighting factors and the number of modes (n) used in the above
calculation are according to Sec. 89.410-96.

Sec. 89.419-96 Dilute gaseous exhaust sampling and analytical system
description.

(a) General. The exhaust gas sampling system described in this
section is designed to measure the true mass of gaseous emissions in
the exhaust of petroleum-fueled nonroad compression-ignition engines.
This system utilizes the CVS concept (described in Sec. 86.1310-90 of
this chapter) of measuring mass emissions of HC, CO, and CO<INF>2. A
continuously integrated system is required for HC and NO<INF>X
measurement and is allowed for all CO and CO<INF>2 measurements. The
mass of gaseous emissions is determined from the sample concentration
and total flow over the test period. As an option, the measurement of
total fuel mass consumed over a cycle may be substituted for the
exhaust measurement of CO<INF>2. General requirements are as follows:
(1) This sampling system requires the use of a PDP-CVS and a heat
exchanger or a CFV-CVS with either a heat exchanger or electronic flow
compensation. Figure 2 in appendix A to this subpart is a schematic
drawing of the PDP-CVS system. Figure 3 in appendix A to this subpart
is a schematic drawing of the CFV-CVS system.
(2) The HC analytical system for petroleum-fueled compressionignition
engines requires a heated flame ionization detector (HFID) and
heated sample system (191 <plus-minus>11 deg.C).
(i) The HFID sample must be taken directly from the diluted exhaust
stream through a heated probe and integrated continuously over the test
cycle. Unless compensation for varying flow is made, the HFID must be
used with a constant flow system to ensure a representative sample.
(ii) The heated probe shall be located in the primary dilution
tunnel and far enough downstream of the mixing chamber to ensure a
uniform sample distribution across the CVS duct at the point of
sampling.
(3) The CO and CO<INF>2 analytical system requires:
(i) Bag sampling (see Sec. 86.1309-90 of this chapter) and
analytical capabilities (see Sec. 86.1311-90 of this chapter), as shown
in Figure 2 and Figure 3 in appendix A to this subpart; or
(ii) Continuously integrated measurement of diluted CO and CO<INF>2
meeting the minimum requirements and technical specifications contained
in paragraph (b)(4) of this section. Unless compensation for varying
flow is made, a constant flow system must be used to ensure a
representative sample.
(4) The NO<INF>X analytical system requires a continuously
integrated measurement of diluted NO<INF>X meeting the minimum
requirements and technical specifications contained in paragraph (b)(4)
of this section. Unless compensation for varying flow is made, a
constant flow system must be used to ensure a representative sample.
(5) Since various configurations can produce equivalent results,
exact conformance with these drawings is not required. Additional
components such as instruments, valves, solenoids, pumps, and switches
may be used to provide additional information and coordinate the
functions of the component systems. Other components, such as snubbers,
which are not needed to maintain accuracy on some systems, may be
excluded if their exclusion is based upon good engineering judgment.
(6) Other sampling and/or analytical systems may be used if shown
to yield equivalent results and if approved in advance by the
Administrator.
(b) Component description. The components necessary for exhaust
sampling shall meet the following requirements:
(1) Exhaust dilution system. The PDP-CVS shall conform to all of
the requirements listed for the exhaust gas PDP-CVS in Sec. 86.1309-
90(b) of this chapter. The CFV-CVS shall conform to all of the
requirements listed for the exhaust gas CFV-CVS in Sec. 86.1309-90(c)
of this chapter. In addition, the CVS must conform to the following
requirements:
(i) The flow capacity of the CVS must be sufficient to maintain the
diluted exhaust stream at or below the temperature required for the
measurement of hydrocarbon emissions noted in the following paragraph
and to prevent condensation of water at any point in the dilution
tunnel.
(ii) The flow capacity of the CVS must be sufficient to maintain
the diluted exhaust stream in the primary dilution tunnel at a
temperature of 191 deg.C or less at the sampling zone for hydrocarbon
measurement and as required to prevent condensation at any point in the
dilution tunnel. Gaseous emission samples may be taken directly from
this sampling point.
(iii) For the CFV-CVS, either a heat exchanger or electronic flow
compensation is required (see Figure 3 in appendix A to this subpart).
(iv) For the CFV-CVS when a heat exchanger is used, the gas mixture
temperature, measured at a point immediately ahead of the critical flow
venturi, shall be within <plus-minus>11 deg.C) of the average
operating temperature observed during the test with the simultaneous
requirement that condensation does not occur. The temperature measuring
system (sensors and readout) shall have an accuracy and precision of
<plus-minus>2 deg.C. For systems utilizing a flow compensator to
maintain proportional flow, the requirement for maintaining constant
temperature is not necessary.
(v) The primary dilution air shall have a temperature of 25 deg.C
<plus-minus>5 deg.C.
(2) Continuous HC measurement system. (i) The continuous HC sample
system (as shown in Figure 2 or 3 in appendix A to this subpart) uses
an ``overflow'' zero and span system. In this type of system, excess
zero or span gas spills out of the probe when zero and span checks of
the analyzer are made. The ``overflow'' system may also be used to
calibrate the HC analyzer per Sec. 86.1321-90(b) of this chapter,
although this is not required.
(ii) No other analyzers may draw a sample from the continuous HC
sample probe, line or system, unless a common sample pump is used for
all analyzers and the sample line system design reflects good
engineering practice.
(iii) The overflow gas flow rates into the sample line shall be at
least 105 percent of the sample system flow rate.
(iv) The overflow gases shall enter the heated sample line as close
as practical to the outside surface of the CVS duct or dilution tunnel.
(v) The continuous HC sampling system shall consist of a probe
(which must raise the sample to the specified temperature) and, where
used, a sample transfer system (which must maintain the specified
temperature). The continuous hydrocarbon sampling system (exclusive of
the probe) shall:
(A) Maintain a wall temperature of 191 deg.C <plus-minus>11 deg.C
as measured at every separately controlled heated component (that is,
filters, heated line sections), using permanent thermocouples located
at each of the separate components.
(B) Have a wall temperature of 191 deg.C <plus-minus>11 deg.C
over its entire length. The temperature of the system shall be
demonstrated by profiling the thermal characteristics of the system
where possible at initial installation and after any major maintenance
performed on the system. The profiling shall be accomplished using the
insertion thermocouple probing technique. The system temperature will
be monitored continuously during testing at the locations and
temperature described in Sec. 86.1310-90(b)(3)(v).
(C) Maintain a gas temperature of 191 deg.C <plus-minus>11 deg.C
immediately before the heated filter and HFID. These gas temperatures
will be determined by a temperature sensor located immediately upstream
of each component.
(vi) The continuous hydrocarbon sampling probe shall:
(A) Be defined as the first 25 cm to 76 cm of the continuous
hydrocarbon sampling system.
(B) Have a 0.48 cm minimum inside diameter.
(C) Be installed in the primary dilution tunnel at a point where
the dilution air and exhaust are well mixed (that is, approximately 10
tunnel diameters downstream of the point where the exhaust enters the
dilution tunnel).
(D) Be sufficiently distant (radially) from other probes and the
tunnel wall so as to be free from the influence of any wakes or eddies.
(E) Increase the gas stream temperature to 191 deg.C
<plus-minus>11 deg.C at the exit of the probe. The ability of the
probe to accomplish this shall be demonstrated using the insertion
thermocouple technique at initial installation and after any major
maintenance. Compliance with the temperature specification shall be
demonstrated by continuously recording during each test the temperature
of either the gas stream or the wall of the sample probe at its
terminus.
(vii) The response time of the continuous measurement system shall
be no greater than:
(A) 1.5 seconds from an instantaneous step change at the port
entrance to the analyzer to within 90 percent of the step change.
(B) 20 seconds from an instantaneous step change at the entrance to
the sample probe or overflow span gas port to within 90 percent of the
step change. Analysis system response time shall be coordinated with
CVS flow fluctuations and sampling time/test cycle offsets if
necessary.
(C) For the purpose of verification of response times, the step
change shall be at least 60 percent of full-scale chart deflection.
(3) Primary dilution tunnel. (i) The primary dilution tunnel shall
be:
(A) Small enough in diameter to cause turbulent flow (Reynolds
Number greater than 4000) and of sufficient length to cause complete
mixing of the exhaust and dilution air;
(B) At least 46 cm in diameter; (engines below 110 kW may use a
dilution tunnel that is 20 cm in diameter or larger)
(C) Constructed of electrically conductive material which does not
react with the exhaust components; and
(D) Electrically grounded.
(ii) The temperature of the diluted exhaust stream inside of the
primary dilution tunnel shall be sufficient to prevent water
condensation.
(iii) The engine exhaust shall be directed downstream at the point
where it is introduced into the primary dilution tunnel.
(4) Continuously integrated NO<INF>X, CO, and CO<INF>2 measurement
systems. (i) The sample probe shall:
(A) Be in the same plane as the continuous HC probe, but shall be
sufficiently distant (radially) from other probes and the tunnel wall
so as to be free from the influences of any wakes or eddies.
(B) Heated and insulated over the entire length, to prevent water
condensation, to a minimum temperature of 55 deg.C. Sample gas
temperature immediately before the first filter in the system shall be
at least 55 deg.C.
(ii) The continuous NO<INF>X, CO, or CO<INF>2 sampling and analysis
system shall conform to the specifications of part 86, subpart D of
this chapter with the following exceptions and revisions:
(A) The system components required to be heated by part 86, subpart
D of this chapter need only be heated to prevent water condensation,
the minimum component temperature shall be 55 deg.C.
(B) The system response shall be no greater than 20 seconds.
Analysis system response time shall be coordinated with CVS flow
fluctuations and sampling time/test cycle offsets, if necessary.
(C) Alternative NO<INF>X measurement techniques outlined in
Sec. 86.346-79 of this chapter are not permitted for NO<INF>X
measurement in this subpart.
(D) All analytical gases must conform to the specifications of
Sec. 89.312-96.

(E) Any range on a linear analyzer below 155 ppm must have and use
a calibration curve conforming to Sec. 89.310-96.
(iii) The chart deflections or voltage output of analyzers with
non-linear calibration curves shall be converted to concentration
values by the calibration curve(s) specified in Sec. 89.323-96 before
flow correction (if used) and subsequent integration takes place.

Sec. 89.420-96 Background sample.

(a) Background samples are produced by drawing a sample of the
dilution air during the 60 second exhaust collection phase of each test
cycle mode.
(1) Individual background samples may be produced and analyzed for
each mode. Hence, a unique background value will be used for the
emission calculations for each mode.
(2) Alternatively, a single background sample may be produced by
drawing a sample during the collection phase of each of the test cycle
modes. Hence, a single cumulative background value will be used for the
emission calculations for each mode.
(b) For analysis of the individual sample described in paragraph
(a)(1) of this section, a single value representing the average chart
deflection over a 10-second stabilized period is stored. All readings
taken during the 10-second interval must be stable at the final value
to within <plus-minus>1 percent of full scale.
(c) Measure HC, CO, CO<INF>2, and NO<INF>X exhaust and background
concentrations in the sample bag(s) with approximately the same flow
rates and pressures used during calibration.

Sec. 89.421-96 Exhaust gas analytical system; CVS bag sample.

(a) Schematic drawings. Figure 4 in appendix A to this subpart is a
schematic drawing of the exhaust gas analytical system used for
analyzing CVS bag samples from compression- ignition engines. Since
various configurations can produce accurate results, exact conformance
with the drawing is not required. Additional components such as
instruments, valves, solenoids, pumps and switches may be used to
provide additional information and coordinate the functions of the
component systems. Other components such as snubbers, which are not
needed to maintain accuracy in some systems, may be excluded if their
exclusion is based upon good engineering judgment.
(b) Major component description. The analytical system, Figure 4 in
appendix A to this subpart, consists of a flame ionization detector
(FID) (heated for petroleum-fueled compression-ignition engines to 191
deg.C <plus-minus>6 deg.C) for the measurement of hydrocarbons,
nondispersive infrared analyzers (NDIR) for the measurement of carbon
monoxide and carbon dioxide, and a chemiluminescence detector (CLD) (or
HCLD) for the measurement of oxides of nitrogen. The exhaust gas
analytical system shall conform to the following requirements:
(1) The CLD (or HCLD) requires that the nitrogen dioxide present in
the sample be converted to nitric oxide before analysis. Other types of
analyzers may be used if shown to yield equivalent results and if
approved in advance by the Administrator.
(2) If CO instruments are used which are essentially free of
CO<INF>2 and water vapor interference, the use of the conditioning
column may be deleted. (See Secs. 86.1322-84 and 86.1342-90 of this
chapter.)
(3) A CO instrument will be considered to be essentially free of
CO<INF>2 and water vapor interference if its response to a mixture of 3
percent CO<INF>2 in N2, which has been bubbled through water at room
temperature, produces an equivalent CO response, as measured on the
most sensitive CO range, which is less than 1 percent of full scale CO
concentration on ranges above 300 ppm full scale or less than 3 ppm on
ranges below 300 ppm full scale. (See Sec. 86.1322-84 of this chapter.)
(c) Alternate analytical systems. Analysis systems meeting the
specifications of part 86, subpart D of this chapter (with the
exception of Secs. 86.346-79 and 86.347-79) may be used for the testing
required under this subpart. Heated analyzers may be used in their
heated configuration.
(d) Other analyzers and equipment. Other types of analyzers and
equipment may be used if shown to yield equivalent results and if
approved in advance by the Administrator.

Sec. 89.422-96 Dilute sampling procedures--CVS calibration.

(a) The CVS is calibrated using an accurate flowmeter and
restrictor valve.
(1) The flowmeter calibration must be traceable to NIST
measurements, and will serve as the reference value (NIST ``true''
value) for the CVS calibration. (Note: In no case should an upstream
screen or other restriction which can affect the flow be used ahead of
the flowmeter unless calibrated throughout the flow range with such a
device.)
(2) The CVS calibration procedures are designed for use of a
``metering venturi'' type flowmeter. Large radius or ASME flow nozzles
are considered equivalent if traceable to NIST measurements. Other
measurement systems may be used if shown to be equivalent under the
test conditions in this section and traceable to NIST measurements.
(3) Measurements of the various flowmeter parameters are recorded
and related to flow through the CVS.
(4) Procedures used by EPA for both PDP-CVS and CFV-CVS are
outlined below. Other procedures yielding equivalent results may be
used if approved in advance by the Administrator.
(b) After the calibration curve has been obtained, verification of
the entire system may be performed by injecting a known mass of gas
into the system and comparing the mass indicated by the system to the
true mass injected. An indicated error does not necessarily mean that
the calibration is wrong, since other factors can influence the
accuracy of the system (for example, analyzer calibration, leaks, or HC
hangup). A verification procedure is found in paragraph (e) of this
section.
(c) PDP-CVS calibration. (1) The following calibration procedure
outlines the equipment, the test configuration, and the various
parameters which must be measured to establish the flow rate of the
PDP-CVS pump.
(i) All the parameters related to the pump are simultaneously
measured with the parameters related to a flowmeter which is connected
in series with the pump.
(ii) The calculated flow rate, in
(cm\3\/s), (at pump inlet absolute pressure and temperature) can then
be plotted versus a correlation function which is the value of a
specific combination of pump parameters.
(iii) The linear equation which relates the pump flow and the
correlation function is then determined.
(iv) In the event that a CVS has a multiple speed drive, a
calibration for each range used must be performed.
(2) This calibration procedure is based on the measurement of the
absolute values of the pump and flowmeter parameters that relate the
flow rate at each point. Two conditions must be maintained to assure
the accuracy and integrity of the calibration curve:
(i) The temperature stability must be maintained during
calibration. (Flowmeters are sensitive to inlet temperature
oscillations; this can cause the data points to be scattered. Gradual
changes in temperature are acceptable as long as they occur over a
period of several minutes.)
(ii) All connections and ducting between the flowmeter and the CVS
pump must be absolutely void of leakage.
(3) During an exhaust emission test the measurement of these same
pump parameters enables the user to calculate the flow rate from the
calibration equation.
(4) Connect a system as shown in Figure 5 in appendix A to this
subpart. Although particular types of equipment are shown, other
configurations that yield equivalent results may be used if approved in
advance by the Administrator. For the system indicated, the following
measurements and accuracies are required:
Calibration Data Measurements

Parameter Symbol Units Sensor-readout tolerances

Barometric pressure (corrected)..................... P<INF>B kPa.......... <plus-minus>.34 kPa
Ambient temperature................................. T<INF>A deg.C....... <plus-minus>.3 deg.C
Air temperature into metering venturi............... ETI deg.C....... <plus-minus>1.1 deg.C
Pressure drop between the inlet and throat of EDP kPa.......... <plus-minus>.01 kPa
metering venturi.

Air flow............................................ Q<INF>S m3/min....... <plus-minus>.5% of NIST
value.

Air temperature at CVS pump inlet................... PTI deg.C....... <plus-minus>1.1 deg.C
Pressure depression at CVS pump inlet............... PPI kPa.......... <plus-minus>.055 kPa
Pressure head at CVS pump outlet.................... PPO kPa.......... <plus-minus>.055 kPa
Air temperature at CVS pump outlet (optional)....... PTO deg.C....... <plus-minus>1.1 deg.C
Pump revolutions during test period................. N Revs......... <plus-minus>1 Rev.
Elapsed time for test period........................ t s............ <plus-minus>.5 s.

(5) After the system has been connected as shown in Figure 5 in
appendix A to this subpart, set the variable restrictor in the wide
open position and run the CVS pump for 20 minutes. Record the
calibration data.
(6) Reset the restrictor valve to a more restricted condition in an
increment of pump inlet depression that will yield a minimum of six
data points for the total calibration. Allow the system to stabilize
for 3 minutes and repeat the data acquisition.
(7) Data analysis:
(i) The air flow rate, Q<INF>s, at each test point is calculated in
standard cubic meters per minute (0 deg.C, 101.3 kPa) from the
flowmeter data using the manufacturer's prescribed method.
(ii) The air flow rate is then converted to pump flow, V<INF>o, in
cubic meter per revolution at absolute pump inlet temperature and
pressure:

<GRAPHIC><TIF21>TR17JN94.020

Where:

V<INF>o=Pump flow, (m3/rev) at T<INF>p, P<INF>p.
Q<INF>s=Meter air flow rate in standard cubic meters per minute,
standard conditions are 0 deg.C, 101.3 kPa.
n=Pump speed in revolutions per minute.
T<INF>p=Pump inlet temperature deg.K=P<INF>ti+273 deg.K,
P<INF>ti=Pump inlet temp deg.C
P<INF>p=Absolute pump inlet pressure, (kPa)
=P<INF>B-P<INF>PI

Where:

P<INF>B=barometric pressure, (kPa).
P<INF>PI=Pump inlet depression, (kPa).

(iii) The correlation function at each test point is then
calculated from the calibration data:

<GRAPHIC><TIF22>TR17JN94.021

X<INF>o=correlation function.

<greek-D>p=The pressure differential from pump inlet to pump outlet,
(kPa).

=P<INF>e-P<INF>p.

P<INF>e=Absolute pump outlet pressure, (kPa)
=P<INF>B+P<INF>PO

Where:

P<INF>PO=Pressure head at pump outlet, (kPa).

(iv) A linear least squares fit is performed to generate the
calibration equation which has the form:

V<INF>o=D<INF>o-M(X<INF>o)
D<INF>o and M are the intercept and slope constants, respectively,
describing the regression line.

(8) A CVS system that has multiple speeds must be calibrated on
each speed used. The calibration curves generated for the ranges will
be approximately parallel and the intercept values, D<INF>o, will
increase as the pump flow range decreases.
(9) If the calibration has been performed carefully, the calculated
values from the equation will be within <plus-minus>0.50 percent of the
measured value of V<INF>o. Values of M will vary from one pump to
another, but values of D<INF>o for pumps of the same make, model, and
range should agree within <plus-minus>3 percent of each other.
Calibrations should be performed at pump start-up and after major
maintenance to assure the stability of the pump slip rate. Analysis of
mass injection data will also reflect pump slip stability.
(d) CFV-CVS calibration. (1) Calibration of the CFV is based upon
the flow equation for a critical venturi. Gas flow is a function of
inlet pressure and temperature:

<GRAPHIC><TIF23>TR17JN94.022

Where:

Qs=flow.
Kv=calibration coefficient.
P=absolute pressure.
T=absolute temperature.

The calibration procedure described in paragraph (d)(3) of this section
establishes the value of the calibration coefficient at measured values
of pressure, temperature, and air flow.
(2) The manufacturer's recommended procedure shall be followed for
calibrating electronic portions of the CFV.
(3) Measurements necessary for flow calibration are as follows:
Calibration Data Measurements

Parameter Symbol Units Tolerances

Barometric Pressure (corrected)..................... P<INF>B kPa.......... <plus-minus>.34 kPa
Air temperature, into flowmeter..................... ETI deg.C....... (<plus-minus>.3 deg.C
Pressure drop between the inlet and throat of EDP kPa.......... <plus-minus>.01 kPa
metering venturi.

Air flow............................................ Q<INF>S m\3\/min..... <plus-minus>.5% of NIST
value.

CFV inlet depression................................ PPI kPa.......... <plus-minus>.055 kPa
Temperature at venturi inlet........................ T<INF>V deg.C....... <plus-minus>2.2 deg.C

(4) Set up equipment as shown in Figure 6 in Appendix A to subpart
and eliminate leaks. (Leaks between the flow measuring devices and the
critical flow venturi will seriously affect the accuracy of the
calibration.)
(5) Set the variable flow restrictor to the open position, start
the blower, and allow the system to stabilize. Record data from all
instruments.
(6) Vary the flow restrictor and make at least eight readings
across the critical flow range of the venturi.
(7) Data analysis. The data recorded during the calibration are to
be used in the following calculations:
(i) The air flow rate (designated as Q<INF>s) at each test point is
calculated in standard cubic feet per minute from the flow meter data
using the manufacturer's prescribed method.
(ii) Calculate values of the calibration coefficient for each test
point:

<GRAPHIC><TIF24>TR17JN94.023

Where:

Q<INF>s = Flow rate in standard cubic meter per minute, at the standard
conditions of 0 deg.C, 101.3 kPa.

T<INF>v = Temperature at venturi inlet, deg.K.
P<INF>v = PB - PPI (= Pressure at venturi inlet, kPA)
Where:

P<INF>PI = Venturi inlet pressure depression, (kPa).

(iii) Plot K<INF>v as a function of venturi inlet pressure. For
choked flow, K<INF>v will have a relatively constant value. As pressure
decreases (vacuum increases), the venturi becomes unchoked and K<INF>v
decreases. (See Figure 7 in appendix A to this subpart.)
(iv) For a minimum of eight points in the critical region calculate
an average K<INF>v and the standard deviation.
(v) If the standard deviation exceeds 0.3 percent of the average
K<INF>v, take corrective action.
(e) CVS system verification. The following ``gravimetric''
technique can be used to verify that the CVS and analytical instruments
can accurately measure a mass of gas that has been injected into the
system. (Verification can also be accomplished by constant flow
metering using critical flow orifice devices.)
(1) Obtain a small cylinder that has been charged with 99.5 percent
or greater propane or carbon monoxide gas (Caution--carbon monoxide is
poisonous).
(2) Determine a reference cylinder weight to the nearest 0.01
grams.
(3) Operate the CVS in the normal manner and release a quantity of
pure propane into the system during the sampling period (approximately
5 minutes).
(4) The calculations are performed in the normal way except in the
case of propane. The density of propane (0.6109 kg/m\3\/carbon atom))
is used in place of the density of exhaust hydrocarbons.
(5) The gravimetric mass is subtracted from the CVS measured mass
and then divided by the gravimetric mass to determine the percent
accuracy of the system.
(6) Good engineering practice requires that the cause for any
discrepancy greater than <plus-minus>2 percent must be found and
corrected.

Sec. 89.423-96 CVS calibration frequency.

The CVS positive displacement pump or critical flow venturi shall
be calibrated following initial installation, major maintenance or as
necessary when indicated by the CVS system verification (described in
Sec. 89.352-96(e)).

Sec. 89.424-96 Dilute emission sampling calculations.

(a) The final reported emission test results are computed by use of
the following formula:

<GRAPHIC><TIF25>TR17JN94.024

Where:

A<INF>wm = Weighted mass emission level (HC, CO, CO<INF>2, or NO<INF>X)
in grams per kilowatt-hour.

g<INF>i = Mass emission level in grams, measured during the mode.
WF<INF>i = Effective weighing factor.
kW-hr<INF>i = Total kilowatt-hours (kilowatts integrated over time) for
the mode.

(b) The mass of each pollutant for each mode for bag measurements
and diesel heat exchanger system measurements is determined from the
following equations:

(1) Hydrocarbon mass:

HC<INF>mass = V<INF>mix x Density<INF>HC x (HC<INF>conc/106)

(2) Oxides of nitrogen mass:

NO<INF>Xmass = V<INF>mix x Density<INF>NO2 x KH x (NO<INF>Xconc/
106)

(3) Carbon monoxide mass:

CO<INF>mass = V<INF>mix x Density<INF>CO x (CO<INF>conc/106)

(4) Carbon dioxide mass:

CO<INF>2mass = V<INF>mix x Density<INF>CO2 x (CO<INF>2conc/
10<INF>2)

(c) The mass of each pollutant for the mode for flow compensated
sample systems is determined from the following equations:

<GRAPHIC><TIF26>TR17JN94.025

<GRAPHIC><TIF27>TR17JN94.026

(d) Meaning of symbols:

(1) For hydrocarbon equations:

HC<INF>mass = Hydrocarbon emissions, in grams per test mode.
Density<INF>HC = Density of hydrocarbons is (.5800 kg/m3) for #1
diesel, and (0.5746 kg/m3) for #2 diesel, assuming an average
carbon to hydrogen ratio of 1:1.93 for #1 diesel, and 1:1.80 for #2
diesel at 20 deg.C and 101.3 kPa pressure.
HC<INF>conc = Hydrocarbon concentration of the dilute exhaust sample
corrected for background, in ppm carbon equivalent (that is, equivalent
propane times 3).

<GRAPHIC><TIF28>TR17JN94.027

Where:

HC<INF>e = Hydrocarbon concentration of the dilute exhaust bag sample
or, for diesel heat exchanger systems, average hydrocarbon
concentration of the dilute exhaust sample as calculated from the
integrated HC traces, in ppm carbon equivalent. For flow compensated
sample systems (HC<INF>e)<INF>i is the instantaneous concentration.
HC<INF>d = Hydrocarbon concentration of the dilution air as measured,
in ppm carbon equivalent.

(2) For oxides of nitrogen equations:

NO<INF>Xmass = Oxides of nitrogen emissions, in grams per test mode.
Density NO<INF>2 = Density of oxides of nitrogen is 1.913 kg/m3,
assuming they are in the form of nitrogen dioxide, at 20 deg.C and
101.3 kPa pressure.

NO<INF>Xconc = Oxides of nitrogen concentration of the dilute exhaust
sample corrected for background, in ppm:

<GRAPHIC><TIF29>TR17JN94.028

Where:

NO<INF>Xe = Oxides of nitrogen concentration of the dilute exhaust bag
sample as measured, in ppm. For flow compensated sample systems
(NO<INF>Xe)<INF>i is the instantaneous concentration.
NO<INF>Xd = Oxides of nitrogen concentration of the dilute air as
measured, in ppm.

(3) For carbon monoxide equations:

CO<INF>mass=Carbon monoxide emissions, grams per test mode.
Density<INF>CO=Density of carbon monoxide (1.164 kg/m3 at 20
deg.C and 101.3 kPa pressure).

CO<INF>conc=Carbon monoxide concentration of the dilute exhaust sample
corrected for background, water vapor, and CO<INF>2 extraction, ppm.

<GRAPHIC><TIF30>TR17JN94.029

Where:

CO<INF>e=Carbon monoxide concentration of the dilute exhaust bag sample
volume corrected for water vapor and carbon dioxide extraction, ppm.
For flow compensated sample systems, (CO<INF>e)<INF>i is the
instantaneous concentration.

The following calculation assumes the carbon to hydrogen ratio of
the fuel is 1:1.85. As an option the measured actual carbon to hydrogen
ratio may be used:

CO<INF>e=[1-0.01925CO<INF>2e-0.000323R]CO<INF>em
Where:

CO<INF>em=Carbon monoxide concentration of the dilute exhaust sample as
measured, ppm.

CO<INF>2e=Carbon dioxide concentration of the dilute exhaust bag
sample, in percent, if measured. For flow compensated sample systems,
(CO<INF>2e)<INF>i is the instantaneous concentration. For cases where
exhaust sampling of CO<INF>2 is not performed, the following
approximation is permitted:

<GRAPHIC><TIF31>TR17JN94.030

a=Average carbon to hydrogen ratio.
M1=Fuel mass consumed during the test cycle.
R=Relative humidity of the dilution air, percent.
CO<INF>d=Carbon monoxide concentration of the dilution air corrected
for water vapor extraction, ppm.

CO<INF>d=(1-0.000323R)CO<INF>dm
Where:

CO<INF>dm=Carbon monoxide concentration of the dilution air sample
as measured, ppm.

Note: If a CO instrument which meets the criteria specified in
Sec. 86.1311-90 of this chapter is used and the conditioning column
has been deleted, CO<INF>em must be substituted directly for
CO<INF>e and CO<INF>dm must be substituted directly for CO<INF>d.
(4) For carbon dioxide equation:

CO<INF>2mass=Carbon dioxide emissions, in grams per test mode.
Density CO<INF>2=Density of carbon dioxide is 1.830 kg/m3, at 20
deg.C and 760 mm Hg pressure.

CO<INF>2conc=Carbon dioxide concentration of the dilute exhaust sample
corrected for background, in percent.

<GRAPHIC><TIF32>TR17JN94.031

Where:

CO<INF>2d=Carbon dioxide concentration of the dilution air as measured,
in percent.

<GRAPHIC><TIF33>TR17JN94.032

(6) KH=Humidity correction factor. For compression-ignition
engines:

KH=1/[1-0.0182 (H-10.71)].

Where:

H=Absolute humidity of the engine intake air in grams of water per
kilogram of dry air and

H =(6.211)R<INF>i x P<INF>d)/(P<INF>b-(P<INF>d x R<INF>i/100))
Where:

R<INF>i=Relative humidity of the engine intake air, in percent.
P<INF>d=Saturated vapor pressure (kPa) at the engine intake air dry
bulb temperature.

P<INF>B=Barometric pressure (kPa).

(e) The final reported brake-specific fuel consumption (BSFC) shall be
computed by use of the following formula:

<GRAPHIC><TIF34>TR17JN94.033

Where:

BSFC=brake-specific fuel consumption in grams of fuel per kilowatt-hr
(kW-hr)

M=mass of fuel in grams, used by the engine during a mode
kW-hr=total kilowatts integrated with respect to time for a mode

(f) The mass of fuel for the mode is determined from mass fuel flow
measurements made during the mode, or from the following equation:

<GRAPHIC><TIF35>TR17JN94.034

Where:

M=Mass of fuel, in grams, used by the engine during the mode.
G<INF>s=Grams of carbon measured during the mode:

<GRAPHIC><TIF36>TR17JN94.035

R<INF>2=Grams C in fuel per gram of fuel
Where:

HC<INF>mass=hydrocarbon emissions, in grams for the mode
CO<INF>2mass=carbon monoxide emissions, in grams for the mode
CO<INF>2mass=carbon dioxide emissions, in grams for the mode
<greek-a>=The atomic hydrogen to carbon ratio of the fuel.

Sec. 89.425-96 Particulate adjustment factor.

The following equation may be used to adjust the particulate
measurement when the test fuel specified in Table 4 of Subpart D of
this Part is used:

PM<INF>adj=PM-[BSFC *0.0917 *(FSF-USLF<INF>CA)]
Where:

PM<INF>adj=adjusted measured PM level [g/Kw-hr]
PM=measured weighted PM level [g/Kw-hr]
BSFC=measured brake specific fuel consumption [G/Kw-hr]
FSF=fuel sulfur weight fraction

USLF<INF>CA=upper sulfur level weight fraction of California
specification.

This adjustment only applies to engines with no exhaust gas after
treatment. No adjustment is provided for engines with exhaust gas after
treatment.

BILLING CODE 6560-50-P

Appendix A to Subpart E--Figures

<GRAPHIC><TIF37>TR17JN94.038
<GRAPHIC><TIF38>TR17JN94.039
<GRAPHIC><TIF39>TR17JN94.040
<GRAPHIC><TIF40>TR17JN94.041
<GRAPHIC><TIF41>TR17JN94.042
<GRAPHIC><TIF42>TR17JN94.043
<GRAPHIC><TIF43>TR17JN94.044

BILLING CODE 6560-50-C

Appendix B to Subpart E--Table 1
Table 1.--8. Mode Test Cycle (MY96 and Later)

Observed Time in mode
torque(\2\) (minutes)

Test segment Mode Engine speed(\1\) (percent of ---------------- Weighting
No. maximum factors
observed) Min Max

1............................. 1 Rated........................ 100 5.0 20.0 0.15
1............................. 2 Rated........................ 75 5.0 20.0 0.15
1............................. 3 Rated........................ 50 5.0 20.0 0.15
1............................. 4 Rated........................ 10 5.0 20.0 0.10
2............................. 5 Int.......................... 100 5.0 20.0 0.10
2............................. 6 Int.......................... 75 5.0 20.0 0.10
2............................. 7 Int.......................... 50 5.0 20.0 0.10
2...................... 8 Idle.................... 0 5.0 20.0 0.15
(\1\)Engine speed (non-idle): <plus-minus>1 percent of rated or <plus-minus>3 rpm, which ever is greater. Engine
speed (idle): Within manufacturer's specifications. Rated speed, intermediate speed, and idle speed are
specified by the manufacturer. If no intermediate speed is stated, 60 percent of rated speed shall be used.
(\2\)Torque (non-idle): Throttle fully open for 100 percent points. Other non-idle points: <plus-minus>2 percent
of set point. Torque (idle): Throttle fully closed. Load less than 5 percent of peak torque.

Subpart F--Selective Enforcement Auditing

Sec. 89.501-96 Applicability.

The requirements of subpart F are applicable to all nonroad engines
subject to the provisions of subpart A of part 89.

Sec. 89.502-96 Definitions.

The definitions in subpart A of this part apply to this subpart.
The following definitions also apply to this subpart.
Acceptable quality level (AQL) means the maximum percentage of
failing engines that can be considered a satisfactory process average
for sampling inspections.
Configuration means any subclassification of an engine family which
can be described on the basis of gross power, emission control system,
governed speed, injector size, engine calibration, and other parameters
as designated by the Administrator.
Inspection criteria means the pass and fail numbers associated with
a particular sampling plan.
Test engine means an engine in a test sample.
Test sample means the collection of engines selected from the
population of an engine family for emission testing.

Sec. 89.503-96 Test orders.

(a) A test order addressed to the manufacturer is required for any
testing under this subpart.
(b) The test order is signed by the Assistant Administrator for Air
and Radiation or his or her designee. The test order must be delivered
in person by an EPA enforcement officer or EPA authorized
representative to a company representative or sent by registered mail,
return receipt requested, to the manufacturer's representative who
signed the application for certification submitted by the manufacturer,
pursuant to the requirements of the applicable section of subpart B of
this part. Upon receipt of a test order, the manufacturer must comply
with all of the provisions of this subpart and instructions in the test
order.
(c) Information included in test order. (1) The test order will
specify the engine family to be selected for testing, the
manufacturer's engine assembly plant or associated storage facility or
port facility (for imported engines) from which the engines must be
selected, the time and location at which engines must be selected, and
the procedure by which engines of the specified family must be
selected. The test order may specify the configuration to be audited
and/or the number of engines to be selected per day. Engine
manufacturers are required to select a minimum of four engines per day
unless an alternate selection procedure is approved pursuant to
Sec. 89.507-96(a), or unless total production of the specified
configuration is less than four engines per day. If total production of
the specified configuration is less than four engines per day, the
manufacturer selects the actual number of engines produced per day.
(2) The test order may include alternate families to be selected
for testing at the Administrator's discretion in the event that engines
of the specified family are not available for testing because those
engines are not being manufactured during the specified time or are not
being stored at the specified assembly plant, associated storage
facilities, or port of entry.
(3) If the specified family is not being manufactured at a rate of
at least two engines per day in the case of manufacturers specified in
Sec. 89.508-96(g)(1), or one engine per day in the case of
manufacturers specified in Sec. 89.508-96(g)(2), over the expected
duration of the audit, the Assistant Administrator or her or his
designated representative may select engines of the alternate family
for testing.
(4) In addition, the test order may include other directions or
information essential to the administration of the required testing.
(d) A manufacturer may submit a list of engine families and the
corresponding assembly plants, associated storage facilities, or (in
the case of imported engines) port facilities from which the
manufacturer prefers to have engines selected for testing in response
to a test order. In order that a manufacturer's preferred location be
considered for inclusion in a test order for a particular engine
family, the list must be submitted prior to issuance of the test order.
Notwithstanding the fact that a manufacturer has submitted the list,
the Administrator may order selection at other than a preferred
location.
(e) Upon receipt of a test order, a manufacturer must proceed in
accordance with the provisions of this subpart.
(f)(1) During a given model year, the Administrator may not issue
to a manufacturer more Selective Enforcement Auditing (SEA) test orders
than an annual limit determined to be the larger of the following
factors:
(i) Production factor, determined by dividing the projected nonroad
engine sales in the United States for that model year, as declared by
the manufacturer under Sec. 89.505- 96(c)(1), by 16,000 and rounding to
the nearest whole number. If the projected sales are less than 8,000,
this factor is one.
(ii) Family factor, determined by dividing the manufacturer's total
number of certified engine families by five and rounding to the nearest
whole number.
(2) If a manufacturer submits to EPA in writing prior to or during
the model year a reliable sales projection update or adds engine
families or deletes engine families from its production, that
information is used for recalculating the manufacturer's annual limit
of SEA test orders.
(3) Any SEA test order for which the family fails under
Sec. 89.510-96 or for which testing is not completed is not counted
against the annual limit.
(4) When the annual limit has been met, the Administrator may issue
additional test orders to test those families for which evidence exists
indicating noncompliance. An SEA test order issued on this basis will
include a statement as to the reason for its issuance.

Sec. 89.504-96 Testing by the Administrator.

(a) The Administrator may require by test order under Sec. 89.503-
96 that engines of a specified family be selected in a manner
consistent with the requirements of Sec. 89.507-96 and submitted to the
Administrator at the place designated for the purpose of conducting
emission tests. These tests will be conducted in accordance with
Sec. 89.508-96 to determine whether engines manufactured by the
manufacturer conform with the regulations with respect to which the
certificate of conformity was issued.
(b) Designating official data. (1) Whenever the Administrator
conducts a test on a test engine or the Administrator and manufacturer
each conduct a test on the same test engine, the results of the
Administrator's test comprise the official data for that engine.
(2) Whenever the manufacturer conducts all tests on a test engine,
the manufacturer's test data is accepted as the official data, provided
that if the Administrator makes a determination based on testing
conducted under paragraph (a) of this section that there is a
substantial lack of agreement between the manufacturer's test results
and the Administrator's test results, no manufacturer's test data from
the manufacturer's test facility will be accepted for purposes of this
subpart.
(c) If testing conducted under Sec. 89.503-96 is unacceptable under
paragraph (b)(2) of this section, the Administrator must:
(1) Notify the manufacturer in writing of the Administrator's
determination that the test facility is inappropriate for conducting
the tests required by this subpart and the reasons therefor; and
(2) Reinstate any manufacturer's data upon a showing by the
manufacturer that the data acquired under Sec. 89.503-96 was erroneous
and the manufacturer's data was correct.
(d) The manufacturer may request in writing that the Administrator
reconsider the determination in paragraph (b)(2) of this section based
on data or information which indicates that changes have been made to
the test facility and these changes have resolved the reasons for
disqualification.

Sec. 89.505-96 Maintenance of records; submittal of information.

(a) The manufacturer of any new nonroad engine subject to any of
the provisions of this subpart must establish, maintain, and retain the
following adequately organized and indexed records:
(1) General records. A description of all equipment used to test
engines in accordance with Sec. 89.508-96 pursuant to a test order
issued under this subpart, specifically, the equipment requirements
specified in Secs. 86.884-8 and 86.884-9 of this chapter and the
equipment requirements specified in Secs. 89.306-96, 89.308-96, 89.309-
96, and 89.312-96.
(2) Individual records. These records pertain to each audit
conducted pursuant to this subpart and include:
(i) The date, time, and location of each test;
(ii) The number of hours of service accumulated on the engine when
the test began and ended;
(iii) The names of all supervisory personnel involved in the
conduct of the audit;
(iv) A record and description of any repairs performed prior to
and/or subsequent to approval by the Administrator, giving the date,
associated time, justification, name(s) of the authorizing personnel,
and names of all supervisory personnel responsible for the conduct of
the repair;
(v) The date the engine was shipped from the assembly plant,
associated storage facility or port facility, and date the engine was
received at the testing facility;
(vi) A complete record of all emission tests performed pursuant to
this subpart (except tests performed directly by EPA), including all
individual worksheets and/or other documentation relating to each test,
or exact copies thereof, to be in accordance with the record
requirements specified in Sec. 89.404-96 or Sec. 86.884-10 of this
chapter.
(vii) A brief description of any significant audit events not
described under paragraph (a)(2) of this section, commencing with the
test engine selection process and including such extraordinary events
as engine damage during shipment.
(3) The manufacturer must record test equipment description,
pursuant to paragraph (a)(1) of this section, for each test cell that
can be used to perform emission testing under this subpart.
(b) The manufacturer must retain all records required to be
maintained under this subpart for a period of one year after completion
of all testing in response to a test order. Records may be retained as
hard copy or reduced to microfilm, floppy disc, and so forth, depending
upon the manufacturer's record retention procedure; provided, that in
every case, all the information contained in the hard copy is retained.
(c) The manufacturer must, upon request by the Administrator,
submit the following information with regard to engine production:
(1) Projected production for each engine configuration within each
engine family for which certification is requested;
(2) Number of engines, by configuration and assembly plant,
scheduled for production for the time period designated in the request;
(3) Number of engines, by configuration and by assembly plant,
storage facility or port facility, scheduled to be stored at facilities
for the time period designated in the request; and
(4) Number of engines, by configuration and assembly plant,
produced during the time period designated in the request that are
complete for introduction into commerce.
(d) Nothing in this section limits the Administrator's discretion
in requiring the manufacturer to retain additional records or submit
information not specifically required by this section.
(e) All reports, submissions, notifications, and requests for
approvals made under this subpart are addressed to: Director,
Manufacturers Operations Division, U.S. Environmental Protection
Agency, 6405-J, 401 M Street SW, Washington, DC 20460.

Sec. 89.506-96 Right of entry and access.

(a) To allow the Administrator to determine whether a manufacturer
is complying with the provisions of this subpart and a test order
issued thereunder, EPA enforcement officers or EPA authorized
representatives may enter during operating hours and upon presentation
of credentials any of the following places:
(1) Any facility where any engine to be introduced into commerce,
including ports of entry, or any emission-related component is
manufactured, assembled, or stored;
(2) Any facility where any tests conducted pursuant to a test order
or any procedures or activities connected with these tests are or were
performed;
(3) Any facility where any engine which is being tested, was
tested, or will be tested is present; and
(4) Any facility where any record or other document relating to any
of the above is located.
(b) Upon admission to any facility referred to in paragraph (a) of
this section, EPA enforcement officers or EPA authorized
representatives are authorized to perform the following inspectionrelated
activities:
(1) To inspect and monitor any aspects of engine manufacture,
assembly, storage, testing and other procedures, and the facilities in
which these procedures are conducted;
(2) To inspect and monitor any aspect of engine test procedures or
activities, including, but not limited to, engine selection,
preparation, service accumulation, emission test cycles, and
maintenance and verification of test equipment calibration;
(3) To inspect and make copies of any records or documents related
to the assembly, storage, selection, and testing of an engine in
compliance with a test order; and
(4) To inspect and photograph any part or aspect of any engine and
any component used in the assembly thereof that is reasonably related
to the purpose of the entry.
(c) EPA enforcement officers or EPA authorized representatives are
authorized to obtain reasonable assistance without cost from those in
charge of a facility to help the officers perform any function listed
in this subpart and they are authorized to request the recipient of a
test order to make arrangements with those in charge of a facility
operated for the manufacturer's benefit to furnish reasonable
assistance without cost to EPA whether or not the recipient controls
the facility.
(1) Reasonable assistance includes, but is not limited to,
clerical, copying, interpretation and translation services; the making
available on an EPA enforcement officer's or EPA authorized
representative's request of personnel of the facility being inspected
during their working hours to inform the EPA enforcement officer or EPA
authorized representative of how the facility operates and to answer
the officer's or representative's questions; and the performance on
request of emission tests on any engine which is being, has been, or
will be used for SEA testing.
(2) A manufacturer may be compelled to cause the personal
appearance of any employee at such a facility before an EPA enforcement
officer or EPA authorized representative by written request for his
appearance, signed by the Assistant Administrator for Air and
Radiation, served on the manufacturer. Any such employee who has been
instructed by the manufacturer to appear will be entitled to be
accompanied, represented, and advised by counsel.
(d) EPA enforcement officers or EPA authorized representatives are
authorized to seek a warrant or court order authorizing the EPA
enforcement officers or EPA authorized representatives to conduct
activities related to entry and access as authorized in this section,
as appropriate, to execute the functions specified in this section. EPA
enforcement officers or authorized representatives may proceed ex parte
to obtain a warrant whether or not the EPA enforcement officers or EPA
authorized representatives first attempted to seek permission of the
recipient of the test order or the party in charge of the facilities in
question to conduct activities related to entry and access as
authorized in this section.
(e) A recipient of a test order must permit an EPA enforcement
officer(s) or EPA authorized representative(s) who presents a warrant
or court order to conduct activities related to entry and access as
authorized in this section and as described in the warrant or court
order. The recipient must also cause those in charge of its facility or
a facility operated for its benefit to permit entry and access as
authorized in this section pursuant to a warrant or court order whether
or not the recipient controls the facility. In the absence of a warrant
or court order, an EPA enforcement officer(s) or EPA authorized
representative(s) may conduct activities related to entry and access as
authorized in this section only upon the consent of the recipient of
the test order or the party in charge of the facilities in question.
(f) It is not a violation of this part or the Clean Air Act for any
person to refuse to permit an EPA enforcement officer(s) or EPA
authorized representative(s) to conduct activities related to entry and
access as authorized in this section if the officer(s) or
representative(s) appears without a warrant or court order.
(g) A manufacturer is responsible for locating its foreign testing
and manufacturing facilities in jurisdictions where local law prohibits
an EPA enforcement officer(s) or EPA authorized representative(s) from
conducting the entry and access activities specified in this section.
EPA will not attempt to make any inspections which it has been informed
that local foreign law prohibits. Sec. 89.507-96 Sample selection.

(a) Engines comprising a test sample will be selected at the
location and in the manner specified in the test order. If a
manufacturer determines that the test engines cannot be selected in the
manner specified in the test order, an alternative selection procedure
may be employed, provided the manufacturer requests approval of the
alternative procedure prior to the start of test sample selection, and
the Administrator approves the procedure.
(b) The manufacturer must assemble the test engines of the family
selected for testing using its normal mass production process for
engines to be distributed into commerce. If, between the time the
manufacturer is notified of a test order and the time the manufacturer
finishes selecting test engines, the manufacturer implements any
change(s) in its production processes, including quality control, which
may reasonably be expected to affect the emissions of the engines
selected, then the manufacturer must, during the audit, inform the
Administrator of such changes. If the test engines are selected at a
location where they do not have their operational and emission control
systems installed, the test order will specify the manner and location
for selection of components to complete assembly of the engines. The
manufacturer must assemble these components onto the test engines using
normal assembly and quality control procedures as documented by the
manufacturer.
(c) No quality control, testing, or assembly procedures will be
used on the test engine or any portion thereof, including parts and
subassemblies, that have not been or will not be used during the
production and assembly of all other engines of that family, unless the
Administrator approves the modification in assembly procedures pursuant
to paragraph (b) of this section.
(d) The test order may specify that an EPA enforcement officer(s)
or authorized representative(s), rather than the manufacturer, select
the test engines according to the method specified in the test order.
(e) The order in which test engines are selected determines the
order in which test results are to be used in applying the sampling
plan in accordance with Sec. 89.510-96.
(f) The manufacturer must keep on hand all untested engines, if
any, comprising the test sample until a pass or fail decision is
reached in accordance with Sec. 89.510-96(e). The manufacturer may ship
any tested engine which has not failed the requirements as set forth in
Sec. 89.510-96(b). However, once the manufacturer ships any test
engine, it relinquishes the prerogative to conduct retests as provided
in Sec. 89.508-96(i).

Sec. 89.508-96 Test procedures.

(a)(1) For nonroad engines subject to the provisions of this
subpart, the prescribed test procedures are the nonroad engine 8-mode
test procedure as described in subpart E of this part, the federal
smoke test as described in part 86, subpart I of this chapter, and the
particulate test procedure as adopted in the California Regulations for
New 1996 and Later Heavy-Duty Off-Road Diesel Cycle Engines. This
procedure is incorporated by reference. See Sec. 89.6.
(2) The Administrator may, on the basis of a written application by
a manufacturer, prescribe test procedures other than those specified in
paragraph (a)(1) of this section for any nonroad engine he or she
determines is not susceptible to satisfactory testing using the
procedures specified in paragraph (a)(1) of this section.
(b)(1) The manufacturer may not adjust, repair, prepare, or modify
the engines selected for testing and may not perform any emission tests
on engines selected for testing pursuant to the test order unless this
adjustment, repair, preparation, modification, and/or tests are
documented in the manufacturer's engine assembly and inspection
procedures and are actually performed or unless these adjustments and/
or tests are required or permitted under this subpart or are approved
in advance by the Administrator.
(2) The Administrator may adjust or cause to be adjusted any engine
parameter which the Administrator has determined to be subject to
adjustment for certification and Selective Enforcement Audit testing in
accordance with Sec. 89.108-96, to any setting within the physically
adjustable range of that parameter, as determined by the Administrator
in accordance with Sec. 89.108-96, prior to the performance of any
tests. However, if the idle speed parameter is one which the
Administrator has determined to be subject to adjustment, the
Administrator may not adjust it to any setting which causes a lower
engine idle speed than would have been possible within the physically
adjustable range of the idle speed parameter if the manufacturer had
accumulated 125 hours of service on the engine under paragraph (c) of
this section, all other parameters being identically adjusted for the
purpose of the comparison. The manufacturer may be requested to supply
information needed to establish an alternate minimum idle speed. The
Administrator, in making or specifying these adjustments, may consider
the effect of the deviation from the manufacturer's recommended setting
on emission performance characteristics as well as the likelihood that
similar settings will occur on in-use engines. In determining
likelihood, the Administrator may consider factors such as, but not
limited to, the effect of the adjustment on engine performance
characteristics and surveillance information from similar in-use
engines.
(c) Service Accumulation. Prior to performing exhaust emission
testing on an SEA test engine, the manufacturer may accumulate on each
engine a number of hours of service equal to the greater of 125 hours
or the number of hours the manufacturer accumulated during
certification on the emission data engine corresponding to the family
specified in the test order.
(1) Service accumulation must be performed in a manner using good
engineering judgment to obtain emission results representative of
normal production engines. This service accumulation must be consistent
with the new engine break-in instructions contained in the applicable
owner's manual.
(2) The manufacturer must accumulate service at a minimum rate of
16 hours per engine during each 24-hour period, unless otherwise
approved by the Administrator.
(i) The first 24-hour period for service begins as soon as
authorized checks, inspections, and preparations are completed on each
engine.
(ii) The minimum service or mileage accumulation rate does not
apply on weekends or holidays.
(iii) If the manufacturer's service or target is less than the
minimum rate specified (16 hours per day), then the minimum daily
accumulation rate is equal to the manufacturer's service target.
(3) Service accumulation must be completed on a sufficient number
of test engines during consecutive 24-hour periods to assure that the
number of engines tested per day fulfills the requirements of
paragraphs (g)(1) and (g)(2) of this section.
(d) The manufacturer may not perform any maintenance on test
engines after selection for testing, nor may the Administrator allow
deletion of any engine from the test sequence, unless requested by the
manufacturer and approved by the Administrator before any engine
maintenance or deletion.
(e) The manufacturer must expeditiously ship test engines from the
point of selection to the test facility. If the test facility is not
located at or in close proximity to the point of selection, the
manufacturer must assure that test engines arrive at the test facility
within 24 hours of selection. The Administrator may approve more time
for shipment based upon a request by the manufacturer accompanied by a
satisfactory justification.
(f) If an engine cannot complete the service accumulation or an
emission test because of a malfunction, the manufacturer may request
that the Administrator authorize either the repair of that engine or
its deletion from the test sequence.
(g) Whenever a manufacturer conducts testing pursuant to a test
order issued under this subpart, the manufacturer must notify the
Administrator within one working day of receipt of the test order as to
which test facility will be used to comply with the test order. If no
test cells are available at a desired facility, the manufacturer must
provide alternate testing capability satisfactory to the Administrator.
(1) A manufacturer with projected nonroad engine sales for the
United States market for the applicable year of 7,500 or greater must
complete emission testing at a minimum rate of two engines per 24-hour
period, including each voided test and each smoke test.
(2) A manufacturer with projected nonroad engine sales for the
United States market for the applicable year of less than 7,500 must
complete emission testing at a minimum rate of one engine per 24-hour
period, including each voided test and each smoke test.
(3) The Administrator may approve a lower daily rate of emission
testing based upon a request by a manufacturer accompanied by a
satisfactory justification.
(h) The manufacturer must perform test engine selection, shipping,
preparation, service accumulation, and testing in such a manner as to
assure that the audit is performed in an expeditious manner.
(i) Retesting. (1) The manufacturer may retest any engines tested
during a Selective Enforcement Audit once a fail decision for the audit
has been reached in accordance with Sec. 89.510-96(e).
(2) The Administrator may approve retesting at other times based
upon a request by the manufacturer accompanied by a satisfactory
justification.
(3) The manufacturer may retest each engine a total of three times.
The manufacturer must test each engine or vehicle the same number of
times. The manufacturer may accumulate additional service before
conducting a retest, subject to the provisions of paragraph (c) of this
section.
(j) A manufacturer must test engines with the test procedure
specified in subpart E of this part to demonstrate compliance with the
exhaust emission standard (or applicable FEL) for oxides of nitrogen.
If alternate procedures were used in certification pursuant to
Sec. 89.114-96, then those alternate procedures must be used.

Sec. 89.509-96 Calculation and reporting of test results.

(a) Initial test results are calculated following the applicable
test procedure specified in paragraph (a) of Sec. 89.508-96. The
manufacturer rounds these results, in accordance with ASTM E29-90, to
the number of decimal places contained in the applicable emission
standard expressed to one additional significant figure. This procedure
has been incorporated by reference. See Sec. 89.6.
(b) Final test results are calculated by summing the initial test
results derived in paragraph (a) of this section for each test engine,
dividing by the number of tests conducted on the engine, and rounding
in accordance with ASTM E29-90 to the same number of decimal places
contained in the applicable standard expressed to one additional
significant figure.
(c) Within five working days after completion of testing of all
engines pursuant to a test order, the manufacturer must submit to the
Administrator a report which includes the following information:
(1) The location and description of the manufacturer's exhaust
emission test facilities which were utilized to conduct testing
reported pursuant to this section;
(2) The applicable standards and/or FEL against which the engines
were tested;
(3) A description of the engine and its associated emission-related
component selection method used;
(4) For each test conducted;
(i) Test engine description, including:
(A) Configuration and engine family identification;
(B) Year, make, and build date;
(C) Engine identification number; and
(D) Number of hours of service accumulated on engine prior to
testing;
(ii) Location where service accumulation was conducted and
description of accumulation procedure and schedule;
(iii) Test number, date, test procedure used, initial test results
before and after rounding, and final test results for all exhaust
emission tests, whether valid or invalid, and the reason for
invalidation, if applicable;
(iv) A complete description of any modification, repair,
preparation, maintenance, and/or testing which was performed on the
test engine and has not been reported pursuant to any other paragraph
of this subpart and will not be performed on all other production
engines;
(v) Where an engine was deleted from the test sequence by
authorization of the Administrator, the reason for the deletion;
(vi) Any other information the Administrator may request relevant
to the determination as to whether the new engines being manufactured
by the manufacturer do in fact conform with the regulations with
respect to which the certificate of conformity was issued; and
(5) The following statement and endorsement:

This report is submitted pursuant to sections 213 and 208 of the
Clean Air Act. This Selective Enforcement Audit was conducted in
complete conformance with all applicable regulations under 40 CFR
part 89 et seq. and the conditions of the test order. No emissionrelated
changes to production processes or quality control
procedures for the engine family tested have been made between
receipt of the test order and conclusion of the audit. All data and
information reported herein is, to the best of (Company Name)
knowledge, true and accurate. I am aware of the penalties associated
with violations of the Clean Air Act and the regulations thereunder.
(Authorized Company Representative.)

Sec. 89.510-96 Compliance with acceptable quality level and passing
and failing criteria for selective enforcement audits.

(a) The prescribed acceptable quality level is 40 percent.
(b) A failed engine is one whose final test results pursuant to
Sec. 89.509-96(b), for one or more of the applicable pollutants, exceed
the applicable emission standard or family emission level.
(c) The manufacturer must test engines comprising the test sample
until a pass decision is reached for all pollutants or a fail decision
is reached for one pollutant. A pass decision is reached when the
cumulative number of failed engines, as defined in paragraph (b) of
this section, for each pollutant is less than or equal to the pass
decision number, as defined in paragraph (d) of this section,
appropriate to the cumulative number of engines tested. A fail decision
is reached when the cumulative number of failed engines for one or more
pollutants is greater than or equal to the fail decision number, as
defined in paragraph (d) of this section, appropriate to the cumulative
number of engines tested.
(d) The pass and fail decision numbers associated with the
cumulative number of engines tested are determined by using the tables
in appendix A to this subpart, ``Sampling Plans for Selective
Enforcement Auditing of Nonroad Engines,'' appropriate to the projected
sales as made by the manufacturer in its report to EPA under
Sec. 89.505-96(c)(1). In the tables in appendix A to this subpart,
sampling plan ``stage'' refers to the cumulative number of engines
tested. Once a pass or fail decision has been made for a particular
pollutant, the number of engines with final test results exceeding the
emission standard for that pollutant shall not be considered any
further for the purposes of the audit.
(e) Passing or failing of an SEA occurs when the decision is made
on the last engine required to make a decision under paragraph (c) of
this section.
(f) The Administrator may terminate testing earlier than required
in paragraph (c) of this section.

Sec. 89.511-96 Suspension and revocation of certificates of
conformity.

(a) The certificate of conformity is suspended with respect to any
engine failing pursuant to paragraph (b) of Sec. 89.510-96 effective
from the time that testing of that engine is completed.
(b) The Administrator may suspend the certificate of conformity for
a family which does not pass an SEA, pursuant to paragraph Sec. 89.510-
96(c), based on the first test or all tests conducted on each engine.
This suspension will not occur before ten days after failure of the
audit, unless the manufacturer requests an earlier suspension.
(c) If the results of testing pursuant to these regulations
indicate that engines of a particular family produced at one plant of a
manufacturer do not conform to the regulations with respect to which
the certificate of conformity was issued, the Administrator may suspend
the certificate of conformity with respect to that family for engines
manufactured by the manufacturer at all other plants.
(d) Notwithstanding the fact that engines described in the
application may be covered by a certificate of conformity, the
Administrator may suspend such certificate immediately in whole or in
part if the Administrator finds any one of the following infractions to
be substantial:
(1) The manufacturer refuses to comply with the provisions of a
test order issued by the Administrator under Sec. 89.503-96.
(2) The manufacturer refuses to comply with any of the requirements
of this subpart.
(3) The manufacturer submits false or incomplete information in any
report or information provided to the Administrator under this subpart.
(4) The manufacturer renders inaccurate any test data submitted
under this subpart.
(5) An EPA enforcement officer(s) or EPA authorized
representative(s) is denied the opportunity to conduct activities
related to entry and access as authorized in this subpart and a warrant
or court order is presented to the manufacturer or the party in charge
of a facility in question.
(6) An EPA enforcement officer(s) or EPA authorized
representative(s) is unable to conduct activities related to entry and
access as authorized in Sec. 89.506-96 because a manufacturer has
located a facility in a foreign jurisdiction where local law prohibits
those activities.
(e) The Administrator must notify the manufacturer in writing of
any suspension or revocation of a certificate of conformity in whole or
in part; a suspension or revocation is effective upon receipt of the
notification or ten days, except that the certificate is immediately
suspended with respect to any failed engines as provided for in
paragraph (a) of this section.
(f) The Administrator may revoke a certificate of conformity for a
family when the certificate has been suspended pursuant to paragraph
(b) or (c) of this section if the proposed remedy for the
nonconformity, as reported by the manufacturer to the Administrator, is
one requiring a design change or changes to the engine and/or emission
control system as described in the application for certification of the
affected family.
(g) Once a certificate has been suspended for a failed engine, as
provided for in paragraph (a) of this section, the manufacturer must
take the following actions before the certificate is reinstated for
that failed engine:
(1) Remedy the nonconformity.
(2) Demonstrate that the engine conforms to applicable standards or
family emission levels by retesting the engine in accordance with these
regulations.
(3) Submit a written report to the Administrator, after successful
completion of testing on the failed engine, which contains a
description of the remedy and test results for each engine in addition
to other information that may be required by this part.
(h) Once a certificate for a failed family has been suspended
pursuant to paragraph (b) or (c) of this section, the manufacturer must
take the following actions before the Administrator will consider
reinstating the certificate:
(1) Submit a written report to the Administrator which identifies
the reason for the noncompliance of the engines, describes the proposed
remedy, including a description of any proposed quality control and/or
quality assurance measures to be taken by the manufacturer to prevent
future occurrences of the problem, and states the date on which the
remedies will be implemented.
(2) Demonstrate that the engine family for which the certificate of
conformity has been suspended does in fact comply with these
regulations by testing engines selected from normal production runs of
that engine family, at the plant(s), port facility(ies) or associated
storage facility(ies) specified by the Administrator, in accordance
with the conditions specified in the initial test order. If the
manufacturer elects to continue testing individual engines after
suspension of a certificate, the certificate is reinstated for an
engine actually determined to be in conformance with the applicable
standards or family emission levels through testing in accordance with
the applicable test procedures, provided that the Administrator has not
revoked the certificate pursuant to paragraph (f) of this section.
(i) Once the certificate for a family has been revoked under
paragraph (f) of this section and the manufacturer desires to continue
introduction into commerce of a modified version of that family, the
following actions must be taken before the Administrator may consider
issuing a certificate for that modified family:
(1) If the Administrator determines that the proposed change(s) in
engine design may have an effect on emission performance deterioration,
the Administrator will notify the manufacturer, within five working
days after receipt of the report in paragraph (g) of this section,
whether subsequent testing under this subpart is sufficient to evaluate
the proposed change or changes or whether additional testing is
required; and
(2) After implementing the change or changes intended to remedy the
nonconformity, the manufacturer must demonstrate that the modified
engine family does in fact conform with these regulations by testing
engines selected from normal production runs of that modified engine
family in accordance with the conditions specified in the initial test
order. If the subsequent audit results in passing of the audit, the
Administrator will reissue the certificate or issue a new certificate,
as the case may be, to include that family, provided that the
manufacturer has satisfied the testing requirements of paragraph (i)(1)
of this section. If the subsequent audit is failed, the revocation
remains in effect. Any design change approvals under this subpart are
limited to the family affected by the test order.
(j) At any time subsequent to an initial suspension of a
certificate of conformity for a test engine pursuant to paragraph (a)
of this section, but not later than 15 days (or such other period as
may be allowed by the Administrator) after notification of the
Administrator's decision to suspend or revoke a certificate of
conformity in whole or in part pursuant to paragraph (b), (c), or (f)
of this section, a manufacturer may request a hearing as to whether the
tests have been properly conducted or any sampling methods have been
properly applied.
(k) Any suspension of a certificate of conformity under paragraph
(d) of this section:
(1) will be in writing and will include the offer of an opportunity
for a hearing conducted in accordance with Secs. 89.512-96, 89.513-96,
and 89.514-96 and
(2) need not apply to engines no longer in the hands of the
manufacturer.
(l) After the Administrator suspends or revokes a certificate of
conformity pursuant to this section and prior to the commencement of a
hearing under Sec. 89.512-96, if the manufacturer demonstrates to the
Administrator's satisfaction that the decision to suspend, revoke, or
void the certificate was based on erroneous information, the
Administrator will reinstate the certificate.
(m) To permit a manufacturer to avoid storing non-test engines when
conducting an audit of a family subsequent to a failure of an SEA and
while reauditing of the failed family, it may request that the
Administrator conditionally reinstate the certificate for that family.
The Administrator may reinstate the certificate subject to the
condition that the manufacturer consents to recall all engines of that
family produced from the time the certificate is conditionally
reinstated if the family fails the subsequent audit at the level of the
standard and to remedy any nonconformity at no expense to the owner.

Sec. 89.512-96 Request for public hearing.

(a) If the manufacturer disagrees with the Administrator's decision
under Sec. 89.511-96 (b), (c), (d), or (f) to suspend or revoke a
certificate or disputes the basis for an automatic suspension pursuant
to Sec. 89.511-96 (a), the manufacturer may request a public hearing.
(b) The manufacturer's request must be filed with the Administrator
not later than 15 days after the Administrator's notification of the
decision to suspend or revoke, unless otherwise specified by the
Administrator. The manufacturer must simultaneously serve two copies of
this request upon the Director of the Manufacturers Operations Division
and file two copies with the Hearing Clerk of the Agency. Failure of
the manufacturer to request a hearing within the time provided
constitutes a waiver of the right to a hearing. Subsequent to the
expiration of the period for requesting a hearing as of right, the
Administrator may, at her or his discretion and for good cause shown,
grant the manufacturer a hearing to contest the suspension or
revocation.
(c) The manufacturer's request for a public hearing must include:
(1) A statement as to which engine configuration(s) within a family
is to be the subject of the hearing;
(2) A concise statement of the issues to be raised by the
manufacturer at the hearing, except that in the case of the hearing
requested under Sec. 89.511-96(j), the hearing is restricted to the
following issues:
(i) Whether tests have been properly conducted, specifically,
whether the tests were conducted in accordance with applicable
regulations under this part and whether test equipment was properly
calibrated and functioning;
(ii) Whether sampling plans have been properly applied,
specifically, whether sampling procedures specified in Appendix A of
this subpart were followed and whether there exists a basis for
distinguishing engines produced at plants other than the one from which
engines were selected for testing which would invalidate the
Administrator's decision under Sec. 89.511-96(c);
(3) A statement specifying reasons why the manufacturer believes it
will prevail on the merits of each of the issues raised; and
(4) A summary of the evidence which supports the manufacturer's
position on each of the issues raised.
(d) A copy of all requests for public hearings will be kept on file
in the Office of the Hearing Clerk and will be made available to the
public during Agency business hours.

Sec. 89.513-96 Administrative procedures for public hearing.

(a) The Presiding Officer is an Administrative Law Judge appointed
pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930 as amended).
(b) The Judicial Officer is an officer or employee of the Agency
appointed as a Judicial Officer by the Administrator, pursuant to this
section, who meets the qualifications and performs functions as
follows:
(1) Qualifications. A Judicial Officer may be a permanent or
temporary employee of the Agency who performs other duties for the
Agency. The Judicial Officer may not be employed by the Office of
Enforcement or have any connection with the preparation or presentation
of evidence for a hearing held pursuant to this subpart. The Judicial
Officer must be a graduate of an accredited law school and a member in
good standing of a recognized Bar Association of any state or the
District of Columbia.
(2) Functions. The Administrator may consult with the Judicial
Officer or delegate all or part of the Administrator's authority to act
in a given case under this section to a Judicial Officer, provided that
this delegation does not preclude the Judicial Officer from referring
any motion or case to the Administrator when the Judicial Officer
determines such referral to be appropriate.
(c) For the purposes of this section, one or more Judicial Officers
may be designated. As work requires, a Judicial Officer may be
designated to act for the purposes of a particular case.
(d) Summary decision. (1) In the case of a hearing requested under
Sec. 89.511-96(j), when it clearly appears from the data and other
information contained in the request for a hearing that no genuine and
substantial question of fact or law exists with respect to the issues
specified in Sec. 89.512-96(c)(2), the Administrator may enter an order
denying the request for a hearing and reaffirming the original decision
to suspend or revoke a certificate of conformity.
(2) In the case of a hearing requested under Sec. 89.512-96 to
challenge a suspension of a certificate of conformity for the reasons
specified in Sec. 89.511-96(d), when it clearly appears from the data
and other information contained in the request for the hearing that no
genuine and substantial question of fact or law exists with respect to
the issue of whether the refusal to comply with the provisions of a
test order or any other requirement of Sec. 89.503-96 was caused by
conditions and circumstances outside the control of the manufacturer,
the Administrator may enter an order denying the request for a hearing
and suspending the certificate of conformity.
(3) Any order issued under paragraph (d)(1) or (d)(2) of this
section has the force and effect of a final decision of the
Administrator, as issued pursuant to Sec. 89.515-96.
(4) If the Administrator determines that a genuine and substantial
question of fact or law does exist with respect to any of the issues
referred to in paragraphs (d)(1) and (d)(2) of this section, the
Administrator will grant the request for a hearing and publish a notice
of public hearing in the Federal Register or by such other means as the
Administrator finds appropriate to provide notice to the public.
(e) Filing and service. (1) An original and two copies of all
documents or papers required or permitted to be filed pursuant to this
section and Sec. 89.512-96(c) must be filed with the Hearing Clerk of
the Agency. Filing is considered timely if mailed, as determined by the
postmark, to the Hearing Clerk within the time allowed by this section
and Sec. 89.512-96(b). If filing is to be accomplished by mailing, the
documents must be sent to the address set forth in the notice of public
hearing referred to in paragraph (d)(4) of this section.
(2) To the maximum extent possible, testimony will be presented in
written form. Copies of written testimony will be served upon all
parties as soon as practicable prior to the start of the hearing. A
certificate of service will be provided on or accompany each document
or paper filed with the Hearing Clerk. Documents to be served upon the
Director of the Manufacturers Operations Division must be sent by
registered mail to: Director, Manufacturers Operations Division, U.S.
Environmental Protection Agency, 6405-J, 401 M Street SW, Washington,
DC 20460. Service by registered mail is complete upon mailing.
(f) Computation of Time. (1) In computing any period of time
prescribed or allowed by this section, except as otherwise provided,
the day of the act or event from which the designated period of time
begins to run is not included. Saturdays, Sundays, and federal legal
holidays are included in computing the period allowed for the filing of
any document or paper, except that when the period expires on a
Saturday, Sunday, or federal legal holiday, the period is extended to
include the next following business day.
(2) A prescribed period of time within which a party is required or
permitted to do an act is computed from the time of service, except
that when service is accomplished by mail, three days will be added to
the prescribed period.
(g) Consolidation. The Administrator or the Presiding Officer in
his discretion may consolidate two or more proceedings to be held under
this section for the purpose of resolving one or more issues whenever
it appears that consolidation will expedite or simplify consideration
of these issues. Consolidation does not affect the right of any party
to raise issues that could have been raised if consolidation had not
occurred.
(h) Hearing Date. To the extent possible hearings under
Sec. 89.512-96 will be scheduled to commence within 14 days of receipt
of the application in Sec. 89.512-96.

Sec. 89.514-96 Hearing procedures.

The procedures provided in Sec. 86.1014-84 (i) to (s) apply for
hearings requested pursuant to Sec. 89.512-96, suspension, revocation,
or voiding of a certificate of conformity.

Sec. 89.515-96 Appeal of hearing decision.

The procedures provided in Sec. 86.1014-84 (t) to (aa) apply for
appeals filed with respect to hearings held pursuant to Sec. 89.514-96.

Sec. 89.516-96 Treatment of confidential information.

The provisions for treatment of confidential information as
described in Sec. 89.7 apply.

Appendix A to Subpart F of Part 89--Sampling Plans for Selective
Enforcement Auditing of Nonroad Engines
Table 1.--Sampling Plan Code Letter

Code
Annual engine family sales letter

20-50....................................................... AA1
20-99....................................................... A
100-299..................................................... B
300-299..................................................... C
500 or greater.............................................. D

\1\A manufacturer may optionally use either the sampling plan for code
letter ``AA'' or sampling plan for code letter ``A'' for Selective
Enforcement Audits of engine families with annual sales between 20 and
50 engines. Additionally, the manufacturer may switch between these
plans during the audit.

Table 2.--Sampling Plan for Code Letter ``AA''
[Sample inspection criteria]

Stage Pass No. Fail No.

Table 3.--Sampling Plan for Code Letter ``A''
[Sample inspection criteria]

Stage Pass No. Fail No.

Table 4.--Sampling Plan for Code Letter ``B''
[Sample Inspection Criteria]

Stage Pass No. Fail No.

\1\Test sample passing not permitted at this stage.
\2\Test sample failure not permitted at this stage.

Table 5.--Sampling Plan for Code Letter ``C''
[Sample Inspection Criteria]

Stage Pass No. Fail No.

1............................................. (\1\) (\2\)
2............................................. (\1\) (\2\)
3............................................. (\1\) (\2\)
4............................................. (\1\) (\2\)
5............................................. 0 (\2\)
6............................................. 0 6
7............................................. 1 7
8............................................. 2 7
9............................................. 2 8
10............................................ 3 9
11............................................ 3 9
12............................................ 4 10
13............................................ 4 10
14............................................ 5 11
15............................................ 5 11
16............................................ 6 12
17............................................ 6 12
18............................................ 7 13
19............................................ 7 13
20............................................ 8 14
21............................................ 8 14
22............................................ 9 15
23............................................ 10 15
24............................................ 10 16
25............................................ 11 16
26............................................ 11 17
27............................................ 12 17
28............................................ 12 18
29............................................ 13 18
30............................................ 13 19
31............................................ 14 19
32............................................ 14 20
33............................................ 15 20
34............................................ 15 21
35............................................ 16 21
36............................................ 16 22
37............................................ 17 22
38............................................ 18 23
39............................................ 18 23
40............................................ 19 24
41............................................ 19 24
42............................................ 20 25
43............................................ 20 25
44............................................ 21 26
45............................................ 21 27
46............................................ 22 27
47............................................ 22 27
48............................................ 23 27
49............................................ 23 27
50............................................ 26 27

\1\Test sample passing not permitted at this stage.
\2\Test sample failure not permitted at this stage.

Table 6.--Sampling Plan for Code Letter ``D''
[Sample Inspection Criteria]

Stage Pass No. Fail No.

1............................................. (\1\) (\2\)
2............................................. (\1\) (\2\)
3............................................. (\1\) (\2\)
4............................................. (\1\) (\2\)
5............................................. 0 (\2\)
6............................................. 0 6
7............................................. 1 7
8............................................. 2 8
9............................................. 2 8
10............................................ 3 9
11............................................ 3 9
12............................................ 4 10
13............................................ 4 10
14............................................ 5 11
15............................................ 5 11
16............................................ 6 12
17............................................ 6 12
18............................................ 7 13
19............................................ 7 13
20............................................ 8 14
21............................................ 8 14
22............................................ 9 15
23............................................ 9 15
24............................................ 10 16
25............................................ 11 16
26............................................ 11 17
27............................................ 12 17
28............................................ 12 18
29............................................ 13 19
30............................................ 13 19
31............................................ 14 20
32............................................ 14 20
33............................................ 15 21
34............................................ 15 21
35............................................ 16 22
36............................................ 16 22
37............................................ 17 23
38............................................ 17 23
39............................................ 18 24
40............................................ 18 24
41............................................ 19 25
42............................................ 19 26
43............................................ 20 26
44............................................ 21 27
45............................................ 21 27
46............................................ 22 28
47............................................ 22 28
48............................................ 23 29
49............................................ 23 29
50............................................ 24 30
51............................................ 24 30
52............................................ 25 31
53............................................ 25 31
54............................................ 26 32
55............................................ 26 32
56............................................ 27 33
57............................................ 27 33
58............................................ 28 33
59............................................ 28 33
60............................................ 32 33

\1\Test sample passing not permitted at this stage.
\2\Test sample failure not permitted at this stage.

Subpart G--Importation of Nonconforming Nonroad Engines

Sec. 89.601-96 Applicability.

(a) Except where otherwise indicated, this subpart is applicable to
nonroad engines for which the Administrator has promulgated regulations
under this part prescribing emission standards and nonroad vehicles and
equipment containing such nonroad engines that are offered for
importation or imported into the United States, but which engines, at
the time of conditional importation, are not covered by certificates of
conformity issued under section 213 and section 206(a) of the Clean Air
Act as amended (that is, which are nonconforming nonroad engines as
defined in Sec. 89.602-96), and this part. Compliance with regulations
under this subpart does not relieve any person or entity from
compliance with other applicable provisions of the Clean Air Act.
(b) Regulations prescribing further procedures for the importation
of nonroad engines and nonroad vehicles and equipment into the customs
territory of the United States, as defined in 19 U.S.C. 1202, are set
forth in U.S. Bureau of Customs regulations.
(c) For the purposes of this subpart, the term ``nonroad engine''
includes all nonroad engines incorporated into nonroad equipment or
nonroad vehicles at the time they are imported or offered for import
into the United States.

Sec. 89.602-96 Definitions.

The definitions in subpart A of this part apply to this subpart.
The following definitions also apply to this subpart.
Certificate of conformity. The document issued by the Administrator
under section 213 and section 206(a) of the Act.
Currently valid certificate of conformity. A certificate of
conformity for which the current date is within the effective period as
specified on the certificate of conformity, and which has not been
withdrawn, superseded, voided, suspended, revoked, or otherwise
rendered invalid.

Fifteen working day hold period. The period of time between a
request for final admission and the automatic granting of final
admission (unless EPA intervenes) for a nonconforming nonroad engine
conditionally imported pursuant to Sec. 89.605-96 or Sec. 89.609-96.
Day one of the hold period is the first working day (see definition
below) after the Manufacturers Operations Division of EPA receives a
complete and valid application for final admission.
Independent commercial importer (ICI). An importer who is not an
original engine manufacturer (OEM) (see definition below), but is the
entity in whose name a certificate of conformity for a class of nonroad
engines has been issued.

Model year for imported engines. The manufacturer's annual
production period (as determined by the Administrator) which includes
January 1 of the calendar year; provided, that if the manufacturer has
no annual production period, the term ``model year'' means the calendar
year in which a nonroad engine is modified. An independent commercial
importer (ICI) is deemed to have produced a nonroad engine when the ICI
has modified (including labeling) the nonconforming nonroad engine to
meet applicable emission requirements.

Nonconforming nonroad engine. A nonroad engine which is not covered
by a certificate of conformity prior to final or conditional admission
(or for which such coverage has not been adequately demonstrated to
EPA) and which has not been finally admitted into the United States
under the provisions of Sec. 89.605-96 or Sec. 89.609-96.
Original engine manufacturer (OEM). The entity which originally
manufactured the nonroad engine.

Original production (OP) year. The calendar year in which the
nonroad engine was originally produced by the OEM.
Original production (OP) years old. The age of a nonroad engine as
determined by subtracting the original production year of the nonroad
engine from the calendar year of importation.
Production changes. Those changes in nonroad engine configuration,
equipment, or calibration which are made by an OEM or ICI in the course
of nonroad engine production and required to be reported under
Sec. 89.123-96.

United States. United States includes the customs territory of the
United States as defined in 19 U.S.C. 1202, and the Virgin Islands,
Guam, American Samoa, and the Commonwealth of the Northern Mariana
Islands.

Useful life. A period of time as specified in subpart B of this
part which for a nonconforming nonroad engine begins at the time of
resale (for a nonroad engine owned by the ICI at the time of
importation) or release to the owner (for a nonroad engine not owned by
the ICI at the time of importation) of the nonroad engine by the ICI
after modification and/or testing pursuant to Sec. 89.605-96 or
Sec. 89.609-96.

Working day. Any day on which federal government offices are open
for normal business. Saturdays, Sundays, and official federal holidays
are not working days.

Sec. 89.603-96 General requirements for importation of nonconforming
nonroad engines.

(a) A nonconforming nonroad engine offered for importation into the
United States is to be imported only by an Independent Commercial
Importer (ICI) who is a holder of a currently valid certificate of
conformity unless an exemption or exclusion is granted by the
Administrator under Sec. 89.611-96 of this subpart. For a nonroad
engine imported pursuant to Sec. 89.605-96, the ICI must hold a
currently valid certificate of conformity for that specific nonroad
engine model.
(b) Any nonroad engine imported into the United States must have a
legible unique engine identification number permanently affixed to or
engraved on the engine.
(c) Final admission may not be granted unless:
(1) The nonroad engine is covered by a certificate of conformity
issued under subpart B of this part in the name of the ICI and the ICI
has complied with all requirements of Sec. 89.605-96; or
(2) The nonroad engine is modified and emission tested in
accordance with the provisions of Sec. 89.609-96 and the ICI has
complied with all other requirements of Sec. 89.609-96; or
(3) The nonroad engine is exempted or excluded under Sec. 89.611-
96.
(d) The ICI must submit to the Manufacturers Operations Division of
EPA a copy of all approved applications for certification used to
obtain certificates of conformity for the purpose of importing
nonconforming nonroad engines pursuant to Sec. 89.605-96 or
Sec. 89.609-96. In addition, the ICI must submit to the Manufacturers
Operations Division a copy of all approved production changes
implemented pursuant to Sec. 89.605-96 or subpart B of this part.
Documentation submitted pursuant to this paragraph must be provided to
the Manufacturers Operations Division within 10 working days of
approval of the certification application (or production change) by the
Certification Division of EPA.

Sec. 89.604-96 Conditional admission.

(a) A nonroad engine offered for importation under Sec. 89.605-96
or Sec. 89.609-96 may be conditionally admitted into the United States.
These engines are refused final admission, unless at the time of
conditional admission the importer has submitted to the Administrator a
written report that the subject nonroad engine has been permitted
conditional admission pending EPA approval of its application for final
admission under Sec. 89.605-96 or Sec. 89.609-96. This written report
is to contain the following:
(1) Identification of the importer of the nonroad engine and the
importer's address, telephone number, and taxpayer identification
number;
(2) Identification of the nonroad engine owner, the owner's
address, telephone number, and taxpayer identification number;
(3) Identification of the nonroad engine including make, model,
identification number, and original production year;
(4) Information indicating under what provision of these
regulations the nonroad engine is to be imported;
(5) Identification of the place where the subject nonroad engine is
to be stored until EPA approval of the importer's application to the
Administrator for final admission;
(6) Authorization for EPA enforcement officers to conduct
inspections or testing otherwise permitted by the Act or regulations
thereunder;
(7) Identification of the Independent Commercial Importer's (ICI)
certificate of conformity that permits the ICI to import that nonroad
engine (for importation under Sec. 89.605-96 or Sec. 89.609-96); and
(8) Such other information as is deemed necessary by the
Administrator.
(b) EPA will not require a U.S. Customs Service bond for a
nonconforming nonroad engine which is imported under Sec. 89.605-96 or
Sec. 89.609-96. The period of conditional admission may not exceed 120
days. Nonroad engines imported under Sec. 89.605-96 or Sec. 89.609-96
may not be operated during the period of conditional admission except
for that operation necessary to comply with the requirements of this
subpart. During the period of conditional admission applicable to
Sec. 89.605-96 or Sec. 89.609-96, the importer must store the nonroad
engine at a location where the Administrator has reasonable access to
the nonroad engine for inspection.
(c) During the period of conditional admission under Sec. 89.605-96
or Sec. 89.609-96, an ICI may transfer responsibility of a nonroad
engine to another qualified ICI for the purposes of complying with this
subpart.
(1) The transferee ICI must be a holder of a currently valid
certificate of conformity for the specific nonroad engine being
transferred or be authorized to import the nonroad engine pursuant to
Sec. 89.609-96 as of the transfer date. The transferee ICI must comply
with all the requirements of Sec. 89.603-96, Sec. 89.604-96, and either
Sec. 89.605-96 or Sec. 89.609-96, as applicable.
(2) For the purpose of this subpart, the transferee ICI has
``imported'' the nonroad engine as of the transfer date as designated
in a written record that is signed by both ICIs.
(3) The ICI that originally imported the nonroad engine is
responsible for all requirements of this subpart from the actual date
of importation until the date of transfer as designated in the written
record. The transferee ICI is responsible for all requirements of this
subpart beginning on the date of transfer.
(4) A copy of the written record is to be submitted to the
Manufacturers Operations Division of EPA within five working days of
the transfer date.
(d) Notwithstanding any other requirement of this subpart or U.S.
Customs Service regulations, an ICI may also assume responsibility for
the modification and testing of a nonconforming nonroad engine which
was previously imported by another party. The ICI must be a holder of a
currently valid certificate of conformity for that specific nonroad
engine or authorized to import it pursuant to Sec. 89.609-96 at the
time of assuming such responsibility. The ICI must comply with all the
requirements of Sec. 89.603-96, Sec. 89.604-96, and either Sec. 89.605-
96 or Sec. 89.609-96, as applicable. For the purposes of this subpart,
the ICI has ``imported'' the nonroad engine as of the date the ICI
assumes responsibility for the modification and testing of the nonroad
engine. The ICI must submit written notification to the Manufacturers
Operations Division of EPA within 10 working days of the assumption of
that responsibility.

Sec. 89.605-96 Final admission of certified nonroad engines.

(a) A nonroad engine may be finally admitted into the United States
upon approval of the ICI's application to the Administrator. The
application is made by completing EPA forms in accordance with EPA
instructions. The application contains:
(1) The information required in Sec. 89.604-96(a);
(2) Information demonstrating that the nonroad engine has been
modified in accordance with a valid certificate of conformity.
Demonstration is made in one of the following ways:
(i) The ICI attests that the nonroad engine has been modified in
accordance with the provisions of the ICI's certificate of conformity;
presents to EPA a statement written by the applicable Original Engine
Manufacturer (OEM) that the OEM must provide to the ICI, and to EPA,
information concerning production changes to the class of nonroad
engines described in the ICI's application for certification; delivers
to the Manufacturers Operations Division of EPA notification by the ICI
of any production changes already implemented by the OEM at the time of
application and their effect on emissions; and obtains from EPA written
approval to use this demonstration option; or
(ii) The ICI attests that the nonroad engine has been modified in
accordance with the provisions of the ICI's certificate of conformity.
The ICI also attests that it has conducted, within 120 days of entry,
an applicable and valid emission test on every third nonroad engine
imported under that certificate of conformity to demonstrate compliance
with federal emission requirements. The test is to be conducted at a
laboratory located within the United States. Sequencing of the tests is
determined by the date of importation of each nonroad engine beginning
with the prototype nonroad engine used to obtain the applicable
certificate of conformity. Should the ICI exceed a threshold of 300
nonroad engines imported under the certificate of conformity without
adjustments or other changes in accordance with paragraph (a)(3) of
this section, the amount of required testing is reduced to every fifth
nonroad engine.
(3) The results of every emission test which the ICI conducted on
the nonroad engine pursuant to paragraph (a)(2)(ii) of this section.
Should a subject nonroad engine fail an emission test at any time, the
following procedures are applicable:
(i) The ICI may either:
(A) Conduct one retest that involves no adjustment of the nonroad
engine from the previous test (for example, adjusting the RPM, timing,
air-to-fuel ratio, and so forth) other than adjustments to adjustable
parameters that, upon inspection, were found to be out of tolerance.
When such an allowable adjustment is made, the parameter may be reset
only to the specified (that is, nominal) value (and not any other value
within the tolerance band); or
(B) Initiate a change in production (production change) under the
provisions of subpart B of this part that causes the nonroad engine to
meet federal emission requirements.
(ii) If the ICI chooses to retest in accordance with paragraph
(a)(3)(i)(A) of this section:
(A) The retests are to be completed no later than five working days
subsequent to the first emission test;
(B) Should the subject nonroad engine fail the second emission
test, then the ICI must initiate a change in production (a production
change) under the provisions of subpart B of this part that causes the
nonroad engine to meet federal emission requirements.
(iii) If the ICI chooses to initiate a change in production (a
production change) under the provisions of subpart B of this part that
causes the nonroad engine to meet federal requirements, a change
involving adjustments of adjustable nonroad engine parameters (for
example, adjusting the RPM, timing, air/fuel ratio) represents a change
in the specified (that is, nominal) value to be deemed acceptable by
EPA.
(iv) A production change made in accordance with this section is to
be implemented on all subsequent nonroad engines imported under the
certificate of conformity after the date of importation of the nonroad
engine which gave rise to the production change.
(v) Commencing with the first nonroad engine receiving the
production change, every third nonroad engine imported under the
certificate of conformity is to be emission tested to demonstrate
compliance with federal emission requirements until, as in paragraph
(a)(2)(ii) of this section, a threshold of 300 nonroad engines imported
under the certificate of conformity is exceeded without adjustments or
other changes in accordance with paragraph (a)(3)(i)(A) of this
section, at which time the amount of required emission testing is
reduced to every fifth nonroad engine.
(vi) A report concerning these production changes is to be made to
both the Manufacturers Operations and Certification Divisions of EPA
within ten working days of initiation of the production change. The
cause of any failure of an emission test is to be identified, if known;
(4) The applicable deterioration factor, if any;
(5) The emission test results adjusted by the deterioration factor;
(6) Other information that may be specified by applicable
regulations or on the certificate of conformity under which the nonroad
engine has been modified in order to assure compliance with
requirements of the Act;
(7) All information required under Sec. 89.610-96 related to
maintenance, warranties, and labeling;
(8) An attestation by the ICI that the ICI is responsible for the
nonroad engine's compliance with federal emission requirements,
regardless of whether the ICI owns the nonroad engine imported under
this section;
(9) The name, address, and telephone number of the person who the
ICI prefers to receive EPA notification under Sec. 89.605-96(c);
(10) An attestation by the ICI that all requirements of
Sec. 89.607-96 and Sec. 89.610-96 have been met; and
(11) Other information as is deemed necessary by the Administrator.
(b) EPA approval for final admission of a nonroad engine under this
section is to be presumed not to have been granted if a requirement of
this subpart has not been met. This includes, but is not limited to,
properly modifying the nonroad engine to be in conformity in all
material respects with the description in the application for
certification or not complying with the provisions of Sec. 89.605-
96(a)(2) or if the final emission test results, adjusted by the
deterioration factor, if applicable, do not comply with applicable
emission standards.
(c) Except as provided in paragraph (b) of this section, EPA
approval for final admission of a nonroad engine under this section is
presumed to have been granted if the ICI does not receive oral or
written notice from EPA to the contrary within 15 working days of the
date that the Manufacturers Operations Division of EPA receives the
ICI's application under paragraph (a) of this section. EPA notice of
nonapproval may be made to any employee of the ICI. It is the
responsibility of the ICI to ensure that the Manufacturers Operations
Division of EPA receives the application and to confirm the date of
receipt. During this 15 working day hold period, the nonroad engine is
to be stored at a location where the Administrator has reasonable
access to the nonroad engine for the Administrator's inspection. The
storage is to be within 50 miles of the ICI's testing facility to allow
the Administrator reasonable access for inspection and/or testing. A
storage facility not meeting this criterion must be approved in writing
by the Administrator prior to the submittal of the ICI's application
under paragraph (a) of this section.

Sec. 89.606-96 Inspection and testing of imported nonroad engines.

(a) In order to allow the Administrator to determine whether an
ICI's production nonroad engines comply with applicable emission
requirements or requirements of this subpart, an EPA enforcement
officer or authorized representative is authorized to conduct
inspections and/or tests of nonroad engines imported by the ICI. The
ICI must admit an EPA enforcement officer or authorized representative
during operating hours to any of the following places upon demand and
upon presentation of credentials:

(1) Any facility where any nonroad engine imported by the ICI under
this subpart was or is being modified, tested, or stored and
(2) Any facility where any record or other document relating to
modification, testing, or storage of the nonroad engine, or required to
be kept by Sec. 89.607-96, is located. EPA may require inspection or
testing of nonroad engines at the test facility used by the ICI or at
an EPA-designated testing facility, with transportation and/or testing
costs to be borne by the ICI.
(b) Upon admission to any facility referred to in paragraph (a) of
this section, an EPA enforcement officer or authorized representative
is allowed during operating hours:
(1) To inspect and monitor any part or aspect of activities
relating to the ICI's modification, testing, and/or storage of nonroad
engines imported under this subpart;
(2) To inspect and make copies of record(s) or document(s) related
to modification, testing, and storage of a nonroad engine, or required
by Sec. 89.607-96; and
(3) To inspect and photograph any part or aspect of the nonroad
engine and any component used in the assembly thereof.
(c) An EPA enforcement officer or authorized representative is to
be furnished, by those in charge of a facility being inspected, with
such reasonable assistance as the officer or representative may request
to help discharge any function listed in this subpart. An ICI must make
arrangements with those in charge of a facility operated for its
benefit to furnish such reasonable assistance without charge to EPA.
Reasonable assistance includes, but is not limited to, clerical,
copying, interpretation and translation services, and the making
available on request of personnel of the facility being inspected
during their working hours to inform the EPA enforcement officer or
authorized representative of how the facility operates and to answer
any questions.
(d) The requirements of paragraphs (a), (b), and (c) of this
section apply whether or not the ICI owns or controls the facility in
question. It is the ICI's responsibility to make such arrangements as
may be necessary to assure compliance with paragraphs (a), (b), and (c)
of this section. Failure to do so, or other failure to comply with
paragraphs (a), (b), or (c), may result in sanctions as provided for in
the Act or Sec. 89.612-96(e).
(e) Duly designated enforcement officers are authorized to proceed
ex parte to seek warrants authorizing the inspection or testing of the
nonroad engines described in paragraph (a) of this section whether or
not the enforcement officers first attempted to seek permission from
the ICI or facility owner to inspect such nonroad engines.
(f) The results of the Administrator's test under this section
comprise the official test data for the nonroad engine for purposes of
determining whether the nonroad engine should be permitted final entry
under Sec. 89.605-96 or Sec. 89.609-96.

Sec. 89.607-96 Maintenance of independent commercial importer's
records.

(a) The Independent Commercial Importer (ICI) subject to any of the
provisions of this subpart must establish and maintain adequately
organized and indexed records, correspondence and other applicable
documents relating to the certification, modification, test, purchase,
sale, storage, registration, and importation of that nonroad engine.
The ICI must retain such records for 8 years from the date of final
admission or exportation of a nonconforming nonroad engine imported by
the ICI. These records include, but are not limited to:
(1) The declaration required by U.S. Bureau of Customs regulations.
(2) Any documents or other written information required by a
federal government agency to be submitted or retained in conjunction
with the certification, importation or emission testing (if applicable)
of nonroad engines;
(3) All bills of sale, invoices, purchase agreements, purchase
orders, principal or agent agreements, and correspondence between the
ICI and the ultimate purchaser of each nonroad engine and between any
agents of the above parties;
(4) For nonroad engines imported by an ICI pursuant to Sec. 89.605-
96 or Sec. 89.609-96, documents providing parts identification data
(including calibration changes and part numbers and location of such
parts on each nonroad engine) associated with the emission control
system installed on each nonroad engine demonstrating that such
emission control system was properly installed on such nonroad engine;
(5) For nonroad engines imported by an ICI pursuant to Sec. 89.605-
96 or Sec. 89.609-96, documents demonstrating that, where applicable,
each nonroad engine was emission tested in accordance with subpart E of
this part and part 86, subpart I of this chapter;
(6) Documents providing evidence that the requirements of
Sec. 89.610-96 have been met;
(7) Documents providing evidence of compliance with all relevant
requirements of the Clean Air Act;
(8) Documents providing evidence of the initiation of the 15
working day hold period (that is, evidence that the application
submitted pursuant to Sec. 89.605-96(a) or Sec. 89.609-96(b) was
received by EPA) for each nonroad engine imported pursuant to
Sec. 89.605-96 or Sec. 89.609-96;
(9) For nonroad engines owned by the ICI at the time of
importation, documents providing evidence of the date of sale and date
of delivery to the ultimate purchaser, together with the name, address,
and telephone number of the ultimate purchaser for each nonroad engine
imported pursuant to Sec. 89.605-96 or Sec. 89.609-96;
(10) For nonroad engines not owned by the ICI at the time of
importation, documents providing evidence and date of release to the
owner (including owner's name, address, and telephone number) for each
nonroad engine imported pursuant to Sec. 89.605-96 or Sec. 89.609-96;
(11) Documents providing evidence of the date of original
manufacture of the nonroad engine. The importer may substitute an
alternate date in lieu of the date of original manufacture, provided
that the substitution of such alternate date is approved in advance by
the Administrator.

(b) The ICI is responsible for ensuring the maintenance of records
required by this section, regardless of whether or not facilities used
by the ICI to comply with requirements of this subpart are under the
control of the ICI.

Sec. 89.608-96 ``In Use'' inspections and recall requirements.

(a) Nonroad engines which have been imported by an Independent
Commercial Importer (ICI) pursuant to Sec. 89.605-96 or Sec. 89.609-96
and finally admitted by EPA may be inspected and emission tested by EPA
for the recall period specified in Sec. 89.104-96(b).
(b) ICIs must maintain for eight years, and provide to EPA upon
request, a list of owners or ultimate purchasers of all nonroad engines
imported by the ICI under this subpart.
(c) The Administrator must notify the ICI whenever the
Administrator has determined that a substantial number of a class or
category of the ICI's nonroad engines, although properly maintained and
used, do not conform to the regulations prescribed under section 213 of
the Act when in actual use throughout their useful lives. After such
notification, the recall regulations at subpart H of this part govern
the ICI's responsibilities. References to a manufacturer in the recall
regulations apply to the ICI.

Sec. 89.609-96 Final admission of modification nonroad engines and
test nonroad engines.

(a) A nonroad engine may be imported under this section by an
Independent Commercial Importer (ICI) possessing a currently valid
certificate of conformity only if:
(1) The nonroad engine is six original production years old or
older; and
(2) The ICI's name has not been placed on a currently effective EPA
list of ICIs ineligible to import such modification/test nonroad
engines, as described in paragraph (e) of this section; and
(3) The ICI has a currently valid certificate of conformity for the
same nonroad engine class and fuel type as the nonroad engine being
imported.
(b) A nonroad engine conditionally imported under this section may
be finally admitted into the United States upon approval of the ICI's
application by the Administrator. The application is to be made by
completing EPA forms, in accordance with EPA instructions. The ICI
includes in the application:
(1) The identification information required in Sec. 89.604-96;
(2) An attestation by the ICI that the nonroad engine has been
modified and tested in accordance with the applicable emission tests as
specified in Subpart B Sec. 89.119-96(a) of this part at a laboratory
within the United States;
(3) The results of all emission tests;
(4) The applicable deterioration factor assigned by EPA, if any;
(5) The emission test results adjusted by the applicable
deterioration factor;
(6) All information required under Sec. 89.610-96 related to
maintenance, warranties, and labeling;
(7) An attestation by the ICI that the ICI is responsible for the
nonroad engine's compliance with federal emission requirements,
regardless of whether the ICI owns the nonroad engine imported under
this section;
(8) The applicable address and telephone number of the ICI, or the
name, address, and telephone number of the person who the ICI prefers
to receive EPA notification under Sec. 89.609-96(d);
(9) An attestation by the ICI that all requirements of Sec. 89.607-
95 and Sec. 89.610-96 have been met; and
(10) Such other information as is deemed necessary by the
Administrator.
(c) EPA approval for final admission of a nonroad engine under this
section is presumed not to have been granted if any requirement of this
subpart has not been met.
(d) Except as provided in paragraph (c) of this section, EPA
approval for final admission of a nonroad engine under this section is
presumed to have been granted if the ICI does not receive oral or
written notice from EPA to the contrary within 15 working days of the
date that the Manufacturers Operations Division of EPA receives the
ICI's application under paragraph (b) of this section. Such EPA notice
of nonapproval may be made to any employee of the ICI. It is the
responsibility of the ICI to ensure that the Manufacturers Operations
Division of EPA receives the application and to confirm the date of
receipt. During this 15 working day hold period, the nonroad engine is
stored at a location where the Administrator has reasonable access to
the nonroad engine for the Administrator's inspection. The storage is
to be within 50 miles of the ICI's testing facility to allow the
Administrator reasonable access for inspection and/or testing. A
storage facility not meeting this criterion must be approved in writing
by the Administrator prior to the submittal of the ICI's application
under paragraph (b) of this section.
(e) EPA list of ICIs ineligible to import nonroad engines for
modification/test. EPA maintains a current list of ICIs who have been
determined to be ineligible to import nonroad engines under this
section. The determination of ineligibility is made in accordance with
the criteria and procedures in Sec. 89.612-96(e) of this subpart.
(f) Inspections. Prior to final admission, a nonroad engine
imported under this section is subject to special inspections as
described in Sec. 89.606-96 with these additional provisions:
(1) If, in the judgment of the Administrator, a significant number
of nonroad engines imported by an ICI fail to comply with emission
requirements upon inspection or retest or if the ICI fails to comply
with a provision of these regulations that pertain to nonroad engines
imported pursuant to Sec. 89.609-96, the ICI may be placed on the EPA
list of ICIs ineligible to import nonroad engines under this section as
specified in paragraph (e) of this section and Sec. 89.612-96(e).
(2) An individual nonroad engine which fails a retest or inspection
is to be repaired and retested, as applicable, to demonstrate
compliance with emission requirements before final admission is granted
by EPA.
(3) Unless otherwise specified by EPA, the ICI bears the costs of
all retesting under this subsection, including transportation.
(g) In-use inspection and testing. A nonroad engine imported under
this section may be tested or inspected by EPA at any time during the
recall period specified in Sec. 89.104-96(b), in accordance with
Sec. 89.608-96(a). If, in the judgment of the Administrator, a
significant number of properly maintained and used nonroad engines
imported by the ICI pursuant to this section fail to meet emission
requirements, the name of the ICI may be placed on the EPA list of ICIs
ineligible to import nonroad engines under the modification/test
provision as specified in paragraph (e) of this section and
Sec. 89.612-96(e).

Sec. 89.610-96 Maintenance instructions, warranties, emission
labeling.

The provisions of this section are applicable to all nonroad
engines imported under the provisions of Sec. 89.605-96 or Sec. 89.609-
96.
(a) Maintenance Instructions. (1) The Independent Commercial
Importer (ICI) must furnish to the purchaser, or to the owner of each
nonroad engine imported under Sec. 89.605-96 or Sec. 89.609-96 of this
subpart, written instructions for the maintenance and use of the
nonroad engine by the purchaser or owner. Each application for final
admission of a nonroad engine is to provide an attestation that such
instructions have been or will be (if the ultimate purchaser is
unknown) furnished to the purchaser or owner of such nonroad engine at
the time of sale or delivery. The ICI must maintain a record of having
furnished such instructions.
(2) For each nonroad engine imported under Sec. 89.609-96, a copy
of the maintenance and use instructions is to be maintained in a file
containing the records for that nonroad engine.
(3) The maintenance and use instructions are not to contain
requirements more restrictive than those set forth in Sec. 89.109-96
(Maintenance Instructions) and are to be in sufficient detail and
clarity that a mechanic of average training and ability can maintain or
repair the nonroad engine.
(4) For each nonroad engine imported pursuant to Sec. 89.605-96 or
Sec. 89.609-96, ICIs must furnish with each nonroad engine a list of
the emission control parts, emission-related parts added by the ICI,
and the emission control and emission-related parts furnished by the
Original Engine Manufacturer (OEM).
(5) The information required in this section to be furnished to the
ultimate purchaser or owner is to be copied and maintained in a file
containing the records for that nonroad engine prior to submitting each
application for final admission pursuant to Sec. 89.605-96(a) or
Sec. 89.609-96(b).
(b) Warranties. (1) ICIs must submit to the Manufacturers
Operations Division of EPA sample copies (including revisions) of any
warranty documents required by this section prior to importing nonroad
engines under this subpart.
(2) ICIs must provide to nonroad engine owners emission warranties
identical to those required by sections 207(a) of the Act. The warranty
period for each nonroad engine is to commence on the date the nonroad
engine is delivered by the ICI to the ultimate purchaser or owner.
(3) ICIs must provide warranty insurance coverage by a prepaid
mandatory service insurance policy underwritten by an independent
insurance company. The policy is to:
(i) Be subject to the approval of the Administrator if the
insurance coverage is less than the required warranty;
(ii) At a minimum, provide coverage for emission-related components
installed or modified by the ICI and, to the maximum extent possible,
the emission-related components installed by the OEM;
(iii) Be transferable to each successive owner for the periods
specified in Sec. 89.104-96(c); and
(iv) Provide that in the absence of an ICI's facility being
reasonably available (that is, within 50 miles) for performance of
warranty repairs, the warranty repairs may be performed anywhere.
(4) ICIs must attest in each application for final admission that
the warranty requirements have been met, that the mandatory insurance
has been paid and is in effect, and that certificates and statements of
the warranties have been or will be provided to the owner or ultimate
purchaser. A copy of the warranties and evidence that the warranties
are paid and in effect is to be maintained in a file containing the
records for each nonroad engine prior to submitting each application
for final admission pursuant to Sec. 89.605-96(a) or Sec. 89.609-96(b).
(c) Emission labeling. (1) For each nonroad engine imported
pursuant to Sec. 89.605-96 or Sec. 89.609-96, the ICI must affix a
permanent legible label which identifies each nonroad engine and also
satisfies the following:
(i) The label meets all the requirements of Sec. 89.110-96 and
contains the following statement ``This nonroad engine was originally
produced in (month and year of original production). It has been
imported and modified by (ICI's name, address, and telephone number) to
conform to United States emission regulations applicable to the (year)
model year.''
(ii) If the nonroad engine is owned by the ICI at the time of
importation, the label also states ``This nonroad engine is warranted
for five years or 3000 hours of operation from the date of purchase,
whichever first occurs.''
(iii) If the nonroad engine is not owned by the ICI at the time of
importation, the label states ``This nonroad engine is warranted for
five years or 3000 hours of operation from the date of release to the
owner, whichever first occurs.''
(iv) For nonroad engines imported under Sec. 89.609-96, the label
clearly states in bold letters that ``This nonroad engine has not been
manufactured under a certificate of conformity but conforms to United
States emission regulations under a modification/test program.'' For
all nonroad engines imported pursuant to Sec. 89.605-96 or Sec. 89.609-
96, the label contains the vacuum hose routing diagram applicable to
the nonroad engines.
(2) As part of the application to the Administrator for final
admission of each individual nonroad engine under Sec. 89.609-96, the
ICI must maintain a copy of the labels for each nonroad engine in a
file containing the records for that nonroad engine prior to submitting
each application for final admission. ICIs importing under Sec. 89.605-
96 or Sec. 89.609-96 must attest to compliance with the preceding
labeling requirements of this section in each application for final
admission.

Sec. 89.611-96 Exemptions and exclusions.

(a) Individuals, as well as ICIs, are eligible for importing
nonroad engines into the United States under the provisions of this
section, unless otherwise specified.
(b) Notwithstanding other requirements of this subpart, a nonroad
engine entitled to one of the temporary exemptions of this paragraph
may be conditionally admitted into the United States if prior written
approval for the conditional admission is obtained from the
Administrator. Conditional admission is to be under bond. The
Administrator may request that the U.S. Customs Service require a
specific bond amount to ensure compliance with the requirements of the
Act and this subpart. A written request for approval from the
Administrator is to contain the identification required in Sec. 89.604-
96(a) (except for Sec. 89.604-96(a)(5)) and information that
demonstrates that the importer is entitled to the exemption.
Noncompliance with provisions of this section may result in the
forfeiture of the total amount of the bond or exportation of the
nonroad engine. The following temporary exemptions are permitted by
this paragraph:
(1) Exemption for repairs or alterations. Upon written approval by
EPA, an owner of nonroad engines may conditionally import under bond
such nonroad engines solely for purpose of repair(s) or alteration(s).
The nonroad engines may not be operated in the United States other than
for the sole purpose of repair or alteration. They may not be sold or
leased in the United States and are to be exported upon completion of
the repair(s) or alteration(s).
(2) Testing exemption. A test nonroad engine may be conditionally
imported by a person subject to the requirements of Sec. 89.905. A test
nonroad engine may be operated in the United States provided that the
operation is an integral part of the test. This exemption is limited to
a period not exceeding one year from the date of importation unless a
request is made by the appropriate importer concerning the nonroad
engine in accordance with Sec. 89.905(f) for a subsequent one-year
period.
(3) Precertification exemption. A prototype nonroad engine for use
in applying to EPA for certification pursuant to this subpart may be
conditionally imported subject to applicable provisions of Sec. 89.906
and the following requirements:
(i) No more than one prototype nonroad engine for each engine
family for which an importer is seeking certification is to be
imported.
(ii) The granting of precertification exemptions by the
Administrator is discretionary. Normally, no more than three
outstanding precertification exemptions are allowed for each importer.
No precertification exemption is allowed if the importer requesting the
exemption is in noncompliance with any requirement of this subpart
until the noncompliance is corrected.
(iii) Unless a certificate of conformity is issued for the
prototype nonroad engine and the nonroad engine is finally admitted
pursuant to the requirements of Sec. 89.605 within 180 days from the
date of entry, the total amount of the bond is to be forfeited or the
nonroad engine exported unless an extension is granted by the
Administrator. A request for an extension is to be in writing and
received by the Administrator prior to the date that the
precertification exemption expires.
(iv) Such precertification nonroad engine may not be operated in
the United States other than for the sole purpose of the
precertification exemption.
(4) Display exemptions. (i) A nonroad engine intended solely for
display may be conditionally imported subject to the requirements of
Sec. 89.907.
(ii) A display nonroad engine may be imported by any person for
purposes related to a business or the public interest. Such purposes do
not include collections normally inaccessible or unavailable to the
public on a daily basis, display of a nonroad engine at a dealership,
private use, or other purpose that the Administrator determines is not
appropriate for display exemptions. A display nonroad engine may not be
sold in the United States and may not be operated in the United States
except for the operation incident and necessary to the display purpose.
(iii) A temporary display exemption is granted for 12 months or for
the duration of the display purpose, whichever is shorter. Two
extensions of up to 12 months each are available upon approval by the
Administrator. In no circumstances, however, may the total period of
exemption exceed 36 months. The U.S. Customs Service bonds a temporary
display exemption.
(c) Notwithstanding any other requirement of this subpart, a
nonroad engine may be finally admitted into the United States under
this paragraph if prior written approval for such final admission is
obtained from the Administrator. Conditional admission of these nonroad
engines under this subpart is not permitted for the purpose of
obtaining such written approval from the Administrator. A request for
approval is to contain the identification information required in
Sec. 89.604-96(a) (except for Sec. 89.604-96(a)(5)) and information
that demonstrates that the importer is entitled to the exemption or
exclusion. The following exemptions or exclusions are permitted by this
paragraph:
(1) National security exemption. A nonroad engine may be imported
under the national security exemption found at Sec. 89.908.
(2) Hardship exemption. The Administrator may exempt on a case-bycase
basis a nonroad engine from federal emission requirements to
accommodate unforeseen cases of extreme hardship or extraordinary
circumstances.
(3) Exemption for nonroad engines identical to United States
certified versions.
(i) A person (including businesses) is eligible for importing a
nonroad engine into the United States under the provisions of this
paragraph. An exemption will be granted if the nonroad engine:
(A) is owned by the importer;
(B) is not offered for importation for the purpose of resale; and
(C) is proven to be identical, in all material respects, to a
nonroad engine certified by the Original Engine Manufacturer (OEM) for
sale in the United States or is proven to have been modified to be
identical, in all material respects, to a nonroad engine certified by
the OEM for sale in the United States according to complete written
instructions provided by the OEM's United States representative, or
his/her designee.
(ii) Proof of Conformity. (A) Documentation submitted pursuant to
this section for the purpose of proving conformity of individual
nonroad engines is to contain sufficiently organized data or evidence
demonstrating that the nonroad engine identified pursuant to
Sec. 89.604-96(a) is identical, in all material respects, to a nonroad
engine identified in an OEM's application for certification.
(B) If the documentation does not contain all the information
required by this part, or is not sufficiently organized, EPA notifies
the importer of any areas of inadequacy, and that the documentation
does not receive further consideration until the required information
or organization is provided.
(C) If EPA determines that the documentation does not clearly or
sufficiently demonstrate that a nonroad engine is eligible for
importation, EPA notifies the importer in writing.
(D) If EPA determines that the documentation clearly and
sufficiently demonstrates that a nonroad engine is eligible for
importation, EPA grants approval for importation and notifies the
importer in writing. Notwithstanding any other requirement of this
subpart, the notice constitutes approval for final admission into the
United States.
(d) Foreign diplomatic and military personnel may import a
nonconforming nonroad engine without bond. At the time of admission,
the importer must submit to the Administrator the written report
required in Sec. 89.604-96(a) (except for information required by
Sec. 89.604-96(a)(5)) and a statement from the U.S. Department of State
confirming qualification for this exemption. The nonroad engine may not
be sold in the United States and must be exported if the individual's
diplomatic status is no longer applicable, as determined by the
Department of State, unless subsequently brought into conformity in
accordance with Secs. 89.605-96, 89.609-96, or 89.611-96(c)(3).
(e) Competition exclusion. A nonconforming engine may be imported
by any person provided the importer demonstrates to the Administrator
that the engine is used to propel a vehicle used solely for competition
and obtains prior written approval from the Administrator. A
nonconforming engine imported pursuant to this paragraph may not be
operated in the United States except for that operation incident and
necessary for the competition purpose, unless subsequently brought into
conformity with United States emission requirements in accordance with
Secs. 89.605-96, 89.609-96, or 89.611-96(c)(3).
(f) Exclusions/exemptions based on date of original manufacture.
(1) Notwithstanding any other requirements of this subpart, the
following nonroad engines are excluded, as determined by the engine's
gross power output, from the requirements of the Act in accordance with
section 213 of the Act and may be imported by any person:
(i) All nonroad engines greater than or equal to 37 kW but less
than 75 kW originally manufactured prior to January 1, 1998.
(ii) All nonroad engines greater than or equal to 75 kW but less
than 130 kW originally manufactured prior to January 1, 1997.
(iii) All nonroad engines greater than or equal to 130 kW but less
than or equal to 560 kW originally manufactured prior to January 1,
1996.
(iv) All nonroad engines greater than 560 kW originally
manufactured prior to January 1, 2000.
(2) Notwithstanding other requirements of this subpart, a nonroad
engine not subject to an exclusion under Sec. 89.611-96(f)(1) but
greater than 20 original production (OP) years old is entitled to an
exemption from the requirements of the Act, provided that it has not
been modified in those 20 OP years and it is imported into the United
States by an ICI. At the time of admission, the ICI must submit to the
Administrator the written report required in Sec. 89.604-96(a) (except
for information required by Sec. 89.604-96(a)(5)).
(g) An application for exemption and exclusion provided for in
paragraphs (b), (c), and (e) of this section is to be mailed to: U.S.
Environmental Protection Agency, Office of Mobile Sources,
Manufacturers Operations Division (6405-J), 401 M Street, SW,
Washington, DC 20460, Attention: Imports.

Sec. 89.612-96 Prohibited acts; penalties.

(a) The importation of a nonroad engine, including a nonroad engine
incorporated into a nonroad vehicle or nonroad equipment, which is not
covered by a certificate of conformity other than in accordance with
this subpart and the entry regulations of the U.S. Customs Service is
prohibited. Failure to comply with this section is a violation of
section 213(d) and section 203 of the Act.
(b) Unless otherwise permitted by this subpart, during a period of
conditional admission, the importer of a nonroad engine may not:
(1) Register, license, or operate the nonroad engine in the United
States;
(2) Sell or offer the nonroad engine for sale;
(3) Store the nonroad engine on the premises of a dealer (unless
approved by the Administrator), owner, or purchaser;
(4) Relinquish control of the nonroad engine to the owner or
purchaser; or
(5) Cause a nonroad engine to be altered in any manner subsequent
to modification and testing, if applicable, for which an application
for final admission is based and submitted to the Administrator, unless
approved in advance by the Administrator.
(c) A nonroad engine conditionally admitted pursuant to
Sec. 89.604-96 and not granted final admission within 120 days of such
conditional admission, or within such additional time as the
Administrator and the U.S. Customs Service may allow, is deemed to be
unlawfully imported into the United States in violation of section
213(d) and section 203 of the Act, unless the nonroad engine has been
delivered to the U.S. Customs Service for export or other disposition
under applicable Customs laws and regulations. A nonroad engine not so
delivered is subject to seizure by the U.S. Customs Service.
(d) An importer who violates section 213(d) and section 203 of the
Act is subject to the provisions of section 209 of the Act and is also
subject to a civil penalty under section 205 of the Act of not more
than $25,000 for each nonroad engine subject to the violation. In
addition to the penalty provided in the Act, where applicable, a person
or entity who imports an engine under the exemption provisions of
Sec. 89.611-96(b) and, who fails to deliver the nonroad engine to the
U.S. Customs Service is liable for liquidated damages in the amount of
the bond required by applicable Customs laws and regulations.
(e)(1) An ICI whose nonroad engines imported under Sec. 89.605-96
or Sec. 89.609-96 fail to conform to federal emission requirements
after modification and/or testing or who fails to comply with
applicable provisions of this subpart, may, in addition to any other
applicable sanctions and penalties, be subject to any, or all, of the
following sanctions:
(i) The ICI's currently held certificates of conformity may be
revoked or suspended;
(ii) The ICI may be deemed ineligible to apply for new certificates
of conformity for up to three years; and
(iii) The ICI may be deemed ineligible to import nonroad engines
under Sec. 89.609-96 in the future and be placed on a list of ICIs
ineligible to import nonroad engines under the provisions of
Sec. 89.609-96.
(2) Grounds for the actions described in paragraph (e)(1) of this
section include, but are not limited to, the following:
(i) Action or inaction by the ICI or the laboratory performing the
emission test on behalf of the ICI, which results in fraudulent,
deceitful, or grossly inaccurate representation of any fact or
condition which affects a nonroad engine's eligibility for admission to
the United States under this subpart;
(ii) Failure of a significant number of imported nonroad engines to
comply with federal emission requirements upon EPA inspection or
retest; or
(iii) Failure by an ICI to comply with requirements of this
subpart.
(3) The following procedures govern any decision to suspend,
revoke, or refuse to issue certificates of conformity under this
subpart:
(i) When grounds appear to exist for the actions described in
paragraph (e)(1) of this section, the Administrator must notify the ICI
in writing of any intended suspension or revocation of a certificate of
conformity, proposed ineligibility to apply for new certificates of
conformity, or intended suspension of eligibility to conduct
modification/testing under Sec. 89.609-96, and the grounds for such
action.
(ii) Except as provided by paragraph (e)(3)(iv), the ICI must take
the following actions before the Administrator will consider
withdrawing notice of intent to suspend or revoke the ICI's certificate
of conformity or to deem the ICI ineligible to apply for new
certification or to deem the ICI ineligible to perform modification/
testing under Sec. 89.609-96:
(A) Submit a written report to the Administrator which identifies
the reason for the noncompliance of the nonroad engine, describes the
proposed remedy, including a description of any proposed quality
control and/or quality assurance measures to be taken by the ICI to
prevent the future occurrence of the problem, and states the date on
which the remedies are to be implemented or
(B) Demonstrate that the nonroad engine does in fact comply with
applicable regulations in this chapter by retesting, if applicable, the
nonroad engine in accordance with the applicable emission test
specified in subpart E of this part.
(iii) An ICI may request, within 15 calendar days of the
Administrator's notice of intent to suspend or revoke the ICI's
certificate of conformity or to deem the ICI ineligible to apply for
new certificates or to deem the ICI ineligible to perform modification/
testing under Sec. 89.609- 96, that the Administrator grant such ICI a
hearing:
(A) As to whether the tests, if applicable, have been properly
conducted,
(B) As to any substantial factual issue raised by the
Administrator's proposed action.
(iv) If, after the Administrator notifies an ICI of the intent to
suspend or revoke the ICI's certificate of conformity or to deem the
ICI ineligible to apply for new certificates or to deem the ICI
ineligible to perform modification/testing under Sec. 89.609-96 and
prior to any final suspension or revocation, the ICI demonstrates to
the Administrator's satisfaction that the decision to initiate
suspension or revocation of the certificate of conformity or
eligibility to perform modification/testing under Sec. 89.609- 96 was
based on erroneous information, the Administrator will withdraw the
notice of intent.
(4) Hearings on suspensions and revocations of certificates of
conformity or of eligibility to apply for new certificates or of
eligibility to perform modification/testing under Sec. 89.609-96 will
be held in accordance with the following:
(i) The procedures prescribed by this section will apply whenever
an ICI requests a hearing pursuant to paragraph (e)(3)(iii) of this
section.
(ii) Hearings under paragraph (e)(3)(iii) will be held in
accordance with the procedures outlined in Sec. 86.614 of this chapter,
where applicable, provided that where Sec. 86.612 is referred to in
Sec. 86.614: Sec. 86.612(a) is replaced by Sec. 89.612-96(e)(2); and
Sec. 86.612(i) is replaced by Sec. 89.612-96(e)(3)(iii).
(5) When a hearing is requested under this section and it clearly
appears from the data or other information contained in the request for
a hearing, or submitted at the hearing, that no genuine and substantial
question of fact exists with respect to the issue of whether the ICI
failed to comply with this subpart, the Administrator will enter an
order denying the request for a hearing, or terminating the hearing,
and suspending or revoking the certificate of conformity and/or deeming
the ICI ineligible to apply for new certificates or to perform
modification/testing under Sec. 89.609-96.
(6) In lieu of requesting a hearing under paragraph (e)(3)(iii) of
this section, an ICI may respond in writing to EPA's charges in the
notice of intent to suspend or revoke. An ICI's written response must
be received by EPA within 30 days of the date of EPA's notice of
intent. No final decision to suspend or revoke will be made before that
time.

Sec. 89.613-96 Treatment of confidential information.

The provisions for treatment of confidential information as
described in Sec. 89.7 apply.

Subpart H--Recall Regulations

Sec. 89.701 Applicability.

The requirements of subpart H are applicable to all nonroad engines
subject to the provisions of subpart A of part 89.

Sec. 89.702 Definitions.

The definitions in subpart A of this part apply to this subpart.

Sec. 89.703 Applicability of part 85, subpart S.

(a) Nonroad engines subject to provisions of subpart B of this part
are subject to recall regulations specified in part 85, subpart S of
this title, except for the items set forth in this section.
(b) Reference to section 214 of the Clean Air Act in Sec. 85.1801
is replaced by reference to section 216 of the Clean Air Act.
(c) Reference to section 202 of the Act in Sec. 85.1802(a) is
replaced by reference to section 213 of the Act.
(d) Reference to ``family particulate emission limits as defined in
Part 86 promulgated under section 202 of the Act'' in Sec. 85.1803(a)
and Sec. 85.1805(a)(1) is replaced by reference to family emission
limits as defined in part 89 promulgated under section 213 of the Act.
(e) Reference to ``vehicles or engines'' throughout the subpart is
replaced by reference to ``engines.''

Subpart I--Emission Defect Reporting Requirements

Sec. 89.801 Applicability.

The requirements of subpart I are applicable to all nonroad engines
subject to the provisions of subpart A of part 89. The requirement to
report emission-related defects affecting a given class or category of
engines remains applicable for five years from the end of the model
year in which such engines were manufactured.

Sec. 89.802 Definitions

The definitions in subpart A of this part apply to this subpart.

Sec. 89.803 Applicability of part 85, subpart T.

(a) Nonroad engines subject to provisions of subpart B of this part
are subject to emission defect reporting requirements specified in part
85, subpart T of this chapter, except for the items set forth in this
section.
(b) Section 85.1901 is replaced by Sec. 89.801.
(c) Reference to the Clean Air Act, 42 U.S.C. 1857 in
Sec. 85.1902(a) is replaced by reference to the Clean Air Act, 42
U.S.C. 7401.
(d) Reference to the ``approved Application for Certification
required by 40 CFR 86.077-22 and like provisions of Part 85 and Part 86
of Title 40 of the Code of Federal Regulations'' in Sec. 85.1902(b) is
replaced by reference to the approved application for certification
required by Sec. 89.115-96 and like provisions of part 89 of this
chapter.
(e) Reference to section 202(d) of the Act in Sec. 85.1902(c) is
replaced by reference to section 202(d) and section 213 of the Act.
(f) Reference to section 214 of the Act in Sec. 85.1902 (e) and (f)
is replaced by reference to section 216 of the Act.
(g) Reference to ``vehicles or engines'' throughout the subpart is
replaced by reference to ``engines.''

Subpart J--Exemption Provisions

Sec. 89.901 Applicability.

The requirements of subpart J are applicable to all nonroad engines
subject to the provisions of subpart A of part 89.

Sec. 89.902 Definitions.

The definitions in subpart A of this part apply to this subpart.
The following definitions also apply to this subpart.
Exemption means exemption from the prohibitions of Sec. 89.1006.
Export exemption means an exemption granted under Sec. 89.1004(b)
for the purpose of exporting new nonroad engines.
National security exemption means an exemption which may be granted
under Sec. 89.1004(b) for the purpose of national security.
Manufacturer-owned nonroad engine means an uncertified nonroad
engine owned and controlled by a nonroad engine manufacturer and used
in a manner not involving lease or sale by itself or in a vehicle or
piece of equipment employed from year to year in the ordinary course of
business for product development, production method assessment, and
market promotion purposes.

Testing exemption means an exemption which may be granted under
Sec. 89.1004(b) for the purpose of research investigations, studies,
demonstrations or training, but not including national security.

Sec. 89.903 Application of section 216(10) of the Act.

(a) For the purpose of determining the applicability of section
216(10) of the Act, an internal combustion engine (including the fuel
system) that is not used in a motor vehicle is deemed a nonroad engine
if it meets the definition in subpart A of this part.
(b) EPA will maintain a list of nonroad engines that have been
determined to be excluded because they are used solely for competition.
This list will be available to the public and may be obtained by
writing to the following address: Chief, Selective Enforcement Auditing
Section, Manufacturers Operations Division (6405-J), Environmental
Protection Agency, 401 M Street SW, Washington, DC 20460.
(c) Upon written request, EPA will make written determinations as
to whether certain engines are or are not nonroad engines. Engines that
are determined not to be nonroad engines are excluded from regulations
under this part.

Sec. 89.904 Who may request an exemption.

(a) Any person may request a testing exemption under Sec. 89.905.
(b) Any nonroad engine manufacturer may request a national security
exemption under Sec. 89.908.

(c) For nonroad engine manufacturers, nonroad engines manufactured
for export purposes are exempt without application, subject to the
provisions of Sec. 89.909.

(d) For eligible manufacturers, as determined by Sec. 89.906,
manufacturer-owned nonroad engines are exempt without application,
subject to the provisions of Sec. 89.906.
(e) For any person, display nonroad engines are exempt without
application, subject to the provisions of Sec. 89.907.

Sec. 89.905 Testing exemption.

(a) Any person requesting a testing exemption must demonstrate the
following:
(1) That the proposed test program has a purpose which constitutes
an appropriate basis for an exemption in accordance with this section;
(2) That the proposed test program necessitates the granting of an
exemption;
(3) That the proposed test program exhibits reasonableness in
scope; and

(4) That the proposed test program exhibits a degree of control
consonant with the purpose of the test program and EPA's monitoring
requirements.

(5) Paragraphs (b), (c), (d), and (e) of this section describe what
constitutes a sufficient demonstration for each of the four identified
elements.

(b) With respect to the purpose of the proposed test program, an
appropriate purpose would be research, investigations, studies,
demonstrations, or training, but not national security. A concise
statement of purpose is a required item of information.
(c) With respect to the necessity that an exemption be granted,
necessity arises from an inability to achieve the stated purpose in a
practicable manner without performing or causing to be performed one or
more of the prohibited acts under Sec. 89.1003. In appropriate
circumstances, time constraints may be a sufficient basis for
necessity, but the cost of certification alone, in the absence of
extraordinary circumstances, is not a basis for necessity.
(d) With respect to reasonableness, a test program must exhibit a
duration of reasonable length and affect a reasonable number of
engines. In this regard, required items of information include:
(1) An estimate of the program's duration, and
(2) The maximum number of nonroad engines involved.
(e) With respect to control, the test program must incorporate
procedures consistent with the purpose of the test and be capable of
affording EPA monitoring capability. As a minimum, required items of
information include:

(1) The technical nature of the test;
(2) The site of the test;

(3) The time or mileage duration of the test;
(4) The ownership arrangement with regard to the engines involved
in the test;

(5) The intended final disposition of the engines;
(6) The manner in which the engine identification numbers will be
identified, recorded, and made available; and
(7) The means or procedure whereby test results will be recorded.
(f) A manufacturer of new nonroad engines may request a testing
exemption to cover nonroad engines intended for use in test programs
planned or anticipated over the course of a subsequent one-year period.
Unless otherwise required by the Director, Manufacturers Operations
Division, a manufacturer requesting such an exemption need only furnish
the information required by paragraphs (a)(1) and (d)(2) of this
section along with a description of the record-keeping and control
procedures that will be employed to assure that the engines are used
for purposes consistent with paragraph (a) of this section.

Sec. 89.906 Manufacturer-owned exemption and precertification
exemption.

(a) Except as provided in paragraph (b) of this section, any
manufacturer-owned nonroad engine, as defined by Sec. 89.902, is exempt
from Sec. 89.1003, without application, if the manufacturer complies
with the following terms and conditions:
(1) The manufacturer must establish, maintain, and retain the
following adequately organized and indexed information on each exempted
engine:
(i) Engine identification number,
(ii) Use of the engine on exempt status and
(iii) Final disposition of any engine removed from exempt status;
and
(2) The manufacturer must provide right of entry and access to
these records to EPA authorized representatives as outlined in
Sec. 89.506-96.
(3) Unless the requirement is waived or an alternate procedure is
approved by the Director, Manufacturers Operations Division, the
manufacturer must permanently affix a label to each nonroad engine on
exempt status. This label should
(i) Be affixed in a readily visible portion of the engine,
(ii) Be attached in such a manner that cannot be removed without
destruction or defacement,
(iii) State in the English language and in block letters and
numerals of a color that contrasts with the background of the label,
the following information:
(A) The label heading ``Emission Control Information;''
(B) Full corporate name and trademark of manufacturer;
(C) Engine displacement, engine family identification, and model
year of engine; or person of office to be contacted for further
information about the engine;
(D) The statement ``This nonroad engine is exempt from the
prohibitions of 40 CFR section 90.1003.''
(4) No provision of paragraph (a)(3) of this section prevents a
manufacturer from including any other information it desires on the
label.
(b) Any independent commercial importer that desires a
precertification exemption pursuant to Sec. 89.611(b)(3) and is in the
business of importing, modifying, or testing uncertified nonroad
engines for resale under the provisions of Sec. 89.611 et seq., must
apply to the Director, Manufacturers Operations Division. The Director
may require such independent commercial importer to submit information
regarding the general nature of the fleet activities, the number of
nonroad engines involved, and a demonstration that adequate recordkeeping
procedures for control purposes will be employed.

Sec. 89.907 Display exemption.

Where an uncertified nonroad engine is a display engine to be used
solely for display purposes, will only be operated incident and
necessary to the display purpose, and will not be sold unless an
applicable certificate of conformity has been received or the engine
has been finally admitted pursuant to subpart G of this part, no
request for exemption of the engine is necessary.

Sec. 89.908 National security exemption.

A manufacturer requesting a national security exemption must state
the purpose for which the exemption is required and the request must be
endorsed by an agency of the federal government charged with
responsibility for national defense.

Sec. 89.909 Export exemptions.

(a) A new nonroad engine intended solely for export, and so labeled
or tagged on the outside of the container and on the engine itself, is
subject to the provisions of Sec. 89.1003, unless the importing country
has new nonroad engine emission standards which differ from EPA
standards.
(b) For the purpose of paragraph (a) of this section, a country
having no standards, whatsoever, is deemed to be a country having
emission standards which differ from EPA standards.
(c) EPA will maintain a list of foreign countries that have in
force nonroad emission standards identical to EPA standards and have so
notified EPA. This list may be obtained by writing to the following
address: Chief, Selective Enforcement Auditing Section, Manufacturers
Operations Division (6405-J), Environmental Protection Agency, 401 M
Street, S.W., Washington, D.C. 20460. New nonroad engines exported to
such countries must comply with EPA certification regulations.
(d) It is a condition of any exemption for the purpose of export
under paragraph (a) of this section, that such exemption is void ab
initio with respect to a new nonroad engine intended solely for export,
where such nonroad engine is sold, or offered for sale, to an ultimate
purchaser or otherwise distributed or introduced into commerce in the
United States for purposes other than export.

Sec. 89.910 Granting of exemptions.

(a) If upon completion of the review of an exemption request made
pursuant to Sec. 89.905 or Sec. 89.908, EPA determines it is
appropriate to grant such an exemption, a memorandum of exemption is to
be prepared and submitted to the person requesting the exemption. The
memorandum is to set forth the basis for the exemption, its scope, and
such terms and conditions as are deemed necessary. Such terms and
conditions generally include, but are not limited to, agreements by the
applicant to conduct the exempt activity in the manner described to
EPA, create and maintain adequate records accessible to EPA at
reasonable times, employ labels for the exempt engines setting forth
the nature of the exemption, take appropriate measures to assure that
the terms of the exemption are met, and advise EPA of the termination
of the activity and the ultimate disposition of the engines.
(b) Any exemption granted pursuant to paragraph (a) of this section
is deemed to cover any subject engine only to the extent that the
specified terms and conditions are complied with. A breach of any term
or condition causes the exemption to be void ab initio with respect to
any engine. Consequently, the causing or the performing of an act
prohibited under Sec. 89.1003( a)(1) or (a)(3), other than in strict
conformity with all terms and conditions of this exemption, renders the
person to whom the exemption is granted, and any other person to whom
the provisions of Sec. 89.1003(a) are applicable, liable to suit under
sections 204 and 205 of the Act.

Sec. 89.911 Submission of exemption requests.

Requests for exemption or further information concerning exemptions
and/or the exemption request review procedure should be addressed to:
Chief, Selective Enforcement Auditing Section, Manufacturers Operations
Division (6405-J), Environmental Protection Agency, 401 M Street SW,
Washington, DC 20460.

Sec. 89.912 Treatment of confidential information.

The provisions for treatment of confidential information as
described in Sec. 89.7 apply.

Subpart K--General Enforcement Provisions and Prohibited Acts

Sec. 89.1001 Applicability.

The requirements of subpart K are applicable to all nonroad engines
subject to the provisions of subpart A of part 89, and to all nonroad
vehicles and equipment that contain such nonroad engines.

Sec. 89.1002 Definitions.

The definitions in subpart A of this part apply to this subpart.

Sec. 89.1003 Prohibited acts.

(a) The following acts and the causing thereof are prohibited:
(1)(i) In the case of a manufacturer of new nonroad engines,
vehicles, or equipment for distribution in commerce, the sale, or the
offering for sale, or the introduction, or delivery for introduction,
into commerce, of any new nonroad engine manufactured after the
applicable effective date under this part, or any nonroad vehicle or
equipment containing such engine, unless such engine is covered by a
certificate of conformity issued (and in effect) under regulations
found in this part.
(ii) In the case of any person, except as provided in subpart G of
this part, the importation into the United States of any new nonroad
engine manufactured after the applicable effective date under this
part, or any nonroad vehicle or equipment containing such engine,
unless such engine is covered by a certificate of conformity issued
(and in effect) under regulations found in this part.
(2)(i) For a person to fail or refuse to permit access to or
copying of records or to fail to make reports or provide information
required under Sec. 89.1004.
(ii) For a person to fail or refuse to permit entry, testing, or
inspection authorized under Secs. 89.129-96, 89.506-96 or 89.1004.
(iii) For a person to fail or refuse to perform tests, or to have
tests performed as required under Secs. 89.119-96 or 89.1004.
(iv) For a person to fail to establish or maintain records as
required under Sec. 89.1004.
(3)(i) For a person to remove or render inoperative a device or
element of design installed on or in a nonroad engine, vehicle or
equipment in compliance with regulations under this part prior to its
sale and delivery to the ultimate purchaser, or for a person knowingly
to remove or render inoperative such a device or element of design
after the sale and delivery to the ultimate purchaser; or
(ii) For a person to manufacture, sell or offer to sell, or
install, a part or component intended for use with, or as part of, a
nonroad engine, vehicle or equipment, where a principal effect of the
part or component is to bypass, defeat, or render inoperative a device
or element of design installed on or in a nonroad engine in compliance
with regulations issued under this part, and where the person knows or
should know that the part or component is being offered for sale or
installed for this use or put to such use.
(4) For a manufacturer of a new nonroad engine subject to standards
prescribed under this part:
(i) To sell, offer for sale, or introduce or deliver into commerce,
a nonroad engine unless the manufacturer has complied with the
requirements of Sec. 89.1007.
(ii) To sell, offer for sale, or introduce or deliver into
commerce, a nonroad engine unless a label or tag is affixed to the
engine in accordance with Sec. 89.110-96.
(iii) To fail or refuse to comply with the requirements of
Sec. 89.1008.
(iv) Except as provided in Sec. 89.109-96, to provide directly or
indirectly in any communication to the ultimate purchaser or a
subsequent purchaser that the coverage of a warranty under the Act is
conditioned upon use of a part, component, or system manufactured by
the manufacturer or a person acting for the manufacturer or under its
control, or conditioned upon service performed by such persons.
(v) To fail or refuse to comply with the terms and conditions of
the warranty under Sec. 89.1007.
(5) For a person to circumvent or attempt to circumvent the
residence time requirements of subsection (b)(2)(iii) of the nonroad
engine definition in Sec. 89.2.
(6) For a manufacturer of nonroad vehicles or equipment to
distribute in commerce, sell, offer for sale, or introduce into
commerce nonroad vehicles or equipment which contain an engine not
covered by a certificate of conformity.
(b) For the purposes of enforcement of this part, the following
apply:
(1) Nothing in paragraph (a)(3) of this section is to be construed
to require the use of manufacturer parts in maintaining or repairing a
nonroad engine.
(2) Actions for the purpose of repair or replacement of a device or
element of design or any other item are not considered prohibited acts
under Sec. 89.1003(a) if the action is a necessary and temporary
procedure, the device or element is replaced upon completion of the
procedure, and the action results in the proper functioning of the
device or element of design.
(3) Actions for the purpose of a conversion of a nonroad engine for
use of a clean alternative fuel (as defined in Title II of the Act) are
not considered prohibited acts under Sec. 89.1003(a) if:
(i) the vehicle complies with the applicable standard when
operating on the alternative fuel, and the device or element is
replaced upon completion of the conversion procedure, and
(ii) in the case of engines converted to dual fuel or flexible use,
the action results in proper functioning of the device or element when
the nonroad engine operates on conventional fuel.
(4) Certified nonroad engines shall be used in all vehicles and
equipment that are self-propelled, portable, transportable, or are
intended to be propelled while performing their function unless the
manufacturer of the vehicle or equipment can prove that the vehicle or
equipment will be used in a manner consistent with paragraph (2) of the
definition of nonroad engine in Sec. 89.2 of this part. Nonroad vehicle
and equipment manufacturers may continue to use noncertified nonroad
engines built prior to the effective date until noncertified engine
inventories are depleted; however, stockpiling of noncertified nonroad
engines will be considered a violation of this section.

Sec. 89.1004 General enforcement provisions.

(a) Information collection provisions. (1) Every manufacturer of
new nonroad engines and other persons subject to the requirements of
this part must establish and maintain records, perform tests where such
testing is not otherwise reasonably available under this part, make
reports and provide information the Administrator may reasonably
require to determine whether the manufacturer or other person has acted
or is acting in compliance with this part or to otherwise carry out the
provisions of this part, and must, upon request of an officer or
employee duly designated by the Administrator, permit the officer or
employee at reasonable times to have access to and copy such records.
The manufacturer shall comply in all respects with the requirements of
Subpart I of this part.
(2) For purposes of enforcement of this part, an officer or
employee duly designated by the Administrator, upon presenting
appropriate credentials, is authorized:
(i) to enter, at reasonable times, any establishment of the
manufacturer, or of any person whom the manufacturer engaged to perform
any activity required under paragraph (a) (1) of this section, for the
purposes of inspecting or observing any activity conducted pursuant to
paragraph (a)(1) of this section, and
(2) to inspect records, files, papers, processes, controls, and
facilities used in performing an activity required by paragraph (a)(1)
of this section, by the manufacturer or by a person whom the
manufacturer engaged to perform the activity.
(b) Exemption provision. The Administrator may exempt a new nonroad
engine from Sec. 89.1003 upon such terms and conditions as the
Administrator may find necessary for the purpose of export, research,
investigations, studies, demonstrations, or training, or for reasons of
national security.
(c) Importation provision. (1) A new nonroad engine, vehicle, or
equipment offered for importation or imported by a person in violation
of Sec. 89.1003 is to be refused admission into the United States, but
the Secretary of the Treasury and the Administrator may, by joint
regulation, provide for deferring a final determination as to admission
and authorizing the delivery of such a nonroad engine offered for
import to the owner or consignee thereof upon such terms and conditions
(including the furnishing of a bond) as may appear to them appropriate
to insure that the nonroad engine will be brought into conformity with
the standards, requirements, and limitations applicable to it under
this part.
(2) If a nonroad engine is finally refused admission under this
paragraph, the Secretary of the Treasury shall cause disposition
thereof in accordance with the customs laws unless it is exported,
under regulations prescribed by the Secretary, within 90 days of the
date of notice of the refusal or additional time as may be permitted
pursuant to the regulations.
(3) Disposition in accordance with the customs laws may not be made
in such manner as may result, directly or indirectly, in the sale, to
the ultimate consumer, of a new nonroad engine that fails to comply
with applicable standards of the Administrator under this part.
(d) Export provision. A new nonroad engine intended solely for
export, and so labeled or tagged on the outside of the container and on
the engine itself, shall be subject to the provisions of Sec. 89.1003,
except that if the country that is to receive the engine has emission
standards that differ from the standards prescribed under subpart B of
this part, then the engine must comply with the standards of the
country that is to receive the engine.

Sec. 89.1005 Injunction proceedings for prohibited acts.

(a) The district courts of the United States have jurisdiction to
restrain violations of Sec. 89.1003(a).
(b) Actions to restrain violations of Sec. 89.1003(a) must be
brought by and in the name of the United States. In an action,
subpoenas for witnesses who are required to attend a district court in
any district may run into any other district.

Sec. 89.1006 Penalties.

(a) Violations. A violation of the requirements of this subpart is
a violation of the applicable provisions of the Act, including sections
213(d) and 203, and is subject to the penalty provisions thereunder.
(1) A person who violates Sec. 89.1003(a)(1), (a)(4), or (a)(6), or
a manufacturer or dealer who violates Sec. 89.1003(a)(3)(i), is subject
to a civil penalty of not more than $25,000 for each violation.
(2) A person other than a manufacturer or dealer who violates
Sec. 89.1003(a)(3)(i) or any person who violates Sec. 89.1003(a)(3)(ii)
is subject to a civil penalty of not more than $2,500 for each
violation.
(3) A violation with respect to Sec. 89.1003 (a)(1), (a)(3)(i),
(a)(4), or (a)(6) constitutes a separate offense with respect to each
nonroad engine.
(4) A violation with respect to Sec. 89.1003(a)(3)(ii) constitutes
a separate offense with respect to each part or component. Each day of
a violation with respect to Sec. 89.1003(a)(5) constitutes a separate
offense.
(5) A person who violates Sec. 89.1003(a)(2) or (a)(5) is subject
to a civil penalty of not more than $25,000 per day of violation.
(b) Civil actions. The Administrator may commence a civil action to
assess and recover any civil penalty under paragraph (a) of this
section.
(1) An action under this paragraph may be brought in the district
court of the United States for the district in which the defendant
resides or has the Administrator's principal place of business, and the
court has jurisdiction to assess a civil penalty.
(2) In determining the amount of a civil penalty to be assessed
under this paragraph, the court is to take into account the gravity of
the violation, the economic benefit or savings (if any) resulting from
the violation, the size of the violator's business, the violator's
history of compliance with Title II of the Act, action taken to remedy
the violation, the effect of the penalty on the violator's ability to
continue in business, and such other matters as justice may require.
(3) In any such action, subpoenas for witnesses who are required to
attend a district court in any district may run into any other
district.
(c) Administrative assessment of certain penalties--(1)
Administrative penalty authority. In lieu of commencing a civil action
under paragraph (b) of this section, the Administrator may assess any
civil penalty prescribed in paragraph (a) of this section, except that
the maximum amount of penalty sought against each violator in a penalty
assessment proceeding shall not exceed $200,000, unless the
Administrator and the Attorney General jointly determine that a matter
involving a larger penalty amount is appropriate for administrative
penalty assessment. Any such determination by the Administrator and the
Attorney General is not subject to judicial review. Assessment of a
civil penalty shall be by an order made on the record after opportunity
for a hearing held in accordance with the procedures found at part 22
of this chapter. The Administrator may compromise, or remit, with or
without conditions, any administrative penalty which may be imposed
under this section.
(2) Determining amount. In determining the amount of any civil
penalty assessed under this paragraph, the Administrator shall take
into account the gravity of the violation, the economic benefit or
savings (if any) resulting from the violation, the size of the
violator's business, the violator's history of compliance with Title II
of the Act, action taken to remedy the violation, the effect of the
penalty on the violator's ability to continue in business, and such
other matters as justice may require.
(3) Effect of administrator's action.
(i) Action by the Administrator under this paragraph does not
affect or limit the Administrator's authority to enforce any provisions
of the Act; except that any violation with respect to which the
Administrator has commenced and is diligently prosecuting an action
under this paragraph, or for which the Administrator has issued a final
order not subject to further judicial review and for which the violator
has paid a penalty assessment under this paragraph shall not be the
subject of a civil penalty action under paragraph (b) of this section.
(ii) No action by the Administrator under this paragraph shall
affect a person's obligation to comply with a section of this part.
(4) Finality of order. An order issued under this subsection is to
become final 30 days after its issuance unless a petition for judicial
review is filed under paragraph (c)(5) of this section.
(5) Judicial review. A person against whom a civil penalty is
assessed in accordance with this subsection may seek review of the
assessment in the United States District Court for the District of
Columbia or for the district in which the violation is alleged to have
occurred, in which such person resides, or where the person's principal
place of business is located, within the 30-day period beginning on the
date a civil penalty order is issued. The person shall simultaneously
send a copy of the filing by certified mail to the Administrator and
the Attorney General. The Administrator shall file in the court within
30 days a certified copy, or certified index, as appropriate, of the
record on which the order was issued. The court is not to set aside or
remand any order issued in accordance with the requirements of this
paragraph unless substantial evidence does not exist in the record,
taken as a whole, to support the finding of a violation or unless the
Administrator's assessment of the penalty constitutes an abuse of
discretion, and the court is not to impose additional civil penalties
unless the Administrator's assessment of the penalty constitutes an
abuse of discretion. In any proceedings, the United States may seek to
recover civil penalties assessed under this section.
(6) Collection. (i) If any person fails to pay an assessment of a
civil penalty imposed by the Administrator as provided in this part
after the order making the assessment has become final or after a court
in an action brought under paragraph (c)(5) of this section has entered
a final judgment in favor of the Administrator, the Administrator shall
request that the Attorney General bring a civil action in an
appropriate district court to recover the amount assessed (plus
interest at rates established pursuant to section 6621(a)(2) of the
Internal Revenue Code of 1986 from the date of the final order or the
date of final judgment, as the case may be). In such an action, the
validity, amount, and appropriateness of the penalty is not subject to
review.
(ii) A person who fails to pay on a timely basis the amount of an
assessment of a civil penalty as described in paragraph (c)(6)(i) of
this section shall be required to pay, in addition to that amount and
interest, the United States' enforcement expenses, including attorney's
fees and costs for collection proceedings, and a quarterly nonpayment
penalty for each quarter during which the failure to pay persists. The
nonpayment penalty is an amount equal to ten percent of the aggregate
amount of that person's penalties and nonpayment penalties which are
unpaid as of the beginning of such quarter.

Sec. 89.1007 Warranty provisions.

(a) The manufacturer of each nonroad engine must warrant to the
ultimate purchaser and each subsequent purchaser that the engine is
designed, built, and equipped so as to conform at the time of sale with
applicable regulations under section 213 of the Act, and is free from
defects in materials and workmanship which cause such engine to fail to
conform with applicable regulations for its warranty period (as
determined under Sec. 89.104-96).
(b) In the case of a nonroad engine part, the manufacturer or
rebuilder of the part may certify according to Sec. 85.2112 that use of
the part will not result in a failure of the engine to comply with
emission standards promulgated in this part.
(c) For the purposes of this section, the owner of any nonroad
engine warranted under this part is responsible for the proper
maintenance of the engine. Proper maintenance includes replacement and
service, at the owner's expense at a service establishment or facility
of the owner's choosing, such items as spark plugs, points, condensers,
and any other part, item, or device related to emission control (but
not designed for emission control) under the terms of the last sentence
of section 207(a)(3) of the Act, unless such part, item, or device is
covered by any warranty not mandated by this Act.

Sec. 89.1008 In-use compliance provisions.

(a) Effective with respect to nonroad vehicles, equipment, and
engines manufactured during model years 1996 and after:
(1) If the Administrator determines that a substantial number of
any class or category of engines, although properly maintained and
used, do not conform to the regulations prescribed under section 213 of
the Act when in actual use throughout their recall period (as defined
under Sec. 89.104-96(b)), the Administrator shall immediately notify
the manufacturer of such nonconformity and require the manufacturer to
submit a plan for remedying the nonconformity of the engines with
respect to which such notification is given.
(i) The manufacturer's plan shall provide that the nonconformity of
any such engines which are properly used and maintained will be
remedied at the expense of the manufacturer.
(ii) If the manufacturer disagrees with such determination of
nonconformity and so advises the Administrator, the Administrator shall
afford the manufacturer and other interested persons an opportunity to
present their views and evidence in support thereof at a public
hearing. Unless, as a result of such hearing, the Administrator
withdraws such determination of nonconformity, the Administrator shall,
within 60 days after the completion of such hearing, order the
manufacturer to provide prompt notification of such nonconformity in
accordance with paragraph (a)(2) of this section. The manufacturer
shall comply in all respects with the requirements of subpart G of this
part.
(2) Any notification required to be given by the manufacturer under
paragraph (a)(1) of this section with respect to any class or category
of engines shall be given to dealers, ultimate purchasers, and
subsequent purchasers (if known) in such manner and containing such
information as required in subparts H and I of this part.
(3)(i) The manufacturer shall furnish with each new nonroad engine
written instructions for the proper maintenance and use of the engine
by the ultimate purchaser as required under Sec. 89.109-96. The
manufacturer shall provide in boldface type on the first page of the
written maintenance instructions notice that maintenance, replacement,
or repair of the emission control devices and systems may be performed
by any nonroad engine repair establishment or individual using any
nonroad engine part which has been certified as provided in
Sec. 89.1007(a).
(ii) The instruction under paragraph (3)(i) of this section must
not include any condition on the ultimate purchaser's using, in
connection with such engine, any component or service (other than a
component or service provided without charge under the terms of the
purchase agreement) which is identified by brand, trade, or corporate
name. Subject instructions also must not directly or indirectly
distinguish between service performed by the franchised dealers of such
manufacturer, or any other service establishments with which such
manufacturer has a commercial relationship, and service performed by
independent nonroad engine repair facilities with which such
manufacturer has no commercial relationship.
(iii) The prohibition of paragraph (a)(3)(ii) of this section may
be waived by the Administrator if:
(A) The manufacturer satisfies the Administrator that the engine
will function properly only if the component or service so identified
is used in connection with such engine, and
(B) The Administrator finds that such a waiver is in the public
interest.
(iv) In addition, the manufacturer shall indicate by means of a
label or tag permanently affixed to the engine that the engine is
covered by a certificate of conformity issued for the purpose of
assuring achievement of emission standards prescribed under section 213
of the Act. This label or tag shall also contain information relating
to control of emissions as prescribed under Sec. 89.110-96.
(b) The manufacturer bears all cost obligation a dealer incurs as a
result of a requirement imposed by paragraph (a) of this section. The
transfer of any such cost obligation from a manufacturer to a dealer
through franchise or other agreement is prohibited.
(c) If a manufacturer includes in an advertisement a statement
respecting the cost or value of emission control devices or systems,
the manufacturer shall set forth in the statement the cost or value
attributed to these devices or systems by the Secretary of Labor
(through the Bureau of Labor Statistics). The Secretary of Labor, and
his or her representatives, has the same access for this purpose to the
books, documents, papers, and records of a manufacturer as the
Comptroller General has to those of a recipient of assistance for
purposes of section 311 of the Act.
(d) Any inspection of a nonroad engine for purposes of paragraph
(a)(1) of this section, after its sale to the ultimate purchaser, is to
be made only if the owner of such vehicle or engine voluntarily permits
such inspection to be made, except as may be provided by any state or
local inspection program.

[FR Doc. 94-13956 Filed 6-16-94; 8:45 am]
BILLING CODE 6560-50-P

Notices For
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Control of Air Pollution; Determination of Significance for Nonroad Sources and Emission Standards for New Nonroad CompressionIgnition Engines At or Above 37 Kilowatts

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