[Federal Register Volume 59, Number 116 (Friday, June 17, 1994)]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 94-13956]
[Federal Register: June 17, 1994]
Environmental Protection Agency
40 CFR Parts 9 and 89
Determination of Significance for Nonroad Sources and Emission
Standards for New Nonroad Compression-Ignition Engine At or Above 37
Kilowatts; Final Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 89
Control of Air Pollution; Determination of Significance for
Nonroad Sources and Emission Standards for New Nonroad Compression-
Ignition 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 (NOX) 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 NOX standard is expected to reduce average per unit
NOX 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
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.
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
Voice Helpline: 919-541-5384
Internet address: TELNET ttnbbs.rtpnc.epa.gov
Off-line: Mondays from 8:00 AM to 12:00 Noon ET
1. Technology Transfer Network Top Menu GATEWAY TO TTN
TECHNICAL AREAS (Bulletin Boards) Command: T
2. TTN Technical Information Areas OMS--Mobile Sources
Information Command: M
3. OMS BBS === MAIN MENU Rulemaking & Reporting Command: K
4. Rulemaking Packages <6> Non-Road Command: 6
5. NON-Road Rulemaking Area File area #2 . . . Non-Road Engines
6. 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 oodbye
I. Table of Contents
II. Legal Authority and Background
III. Determination of Significance
IV. Definition of Nonroad Engine
V. Requirements of the Final Rule
C. Implementation Dates
D. Certification and Test Procedures
VI. Public Participation and Discussion of Comments
A. Conversion of Standards and Measure to Metric Units
B. Emission Standards
C. Lower Emission Standards
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, NOX,
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
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.
1. 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/NOX 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 NOX and VOC emissions attributed to nonroad engines.
Thus, the Senate clearly understood the relationship between emissions
of NOX 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 NOX.
These findings clearly show that emissions from nonroad engines are a
major source of VOCs and NOX, as well as CO in most, if not all of
the nonattainment areas studied. Given the clear link between VOCs and
NOX 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 * * *''
2. NOX Transport
Some commenters asserted that EPA failed to properly consider both
the transport of ozone precursor emissions and the natural decay of
NOX concentrations, NOX 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 NOX can increase
ozone, therefore EPA must first show that NOX reductions will
result in reduced ozone nonattainment before promulgating regulations.
Those commenters suggesting the Agency had erroneously assumed that
NOX 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 NOX 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
NOX and its subsequent low likelihood of long-range transport, the
commenters failed to recognize NOX sinks. A NOX ``sink'' is a
molecular compound which stores NOX (NO and NO2) for
potential later release. Therefore, the NOX itself may disappear,
but it disappears into NOX sinks, sometimes referred to as NOy,
and can then be re-released at a later time. Examples of NOX sinks
include the nitrate radical (NO3), which forms at night in the
presence of ozone and nitrogen dioxide (NO2) and then quickly
photolyzes in the morning,\2\ and nitrous acid (HONO), probably formed
from NO2 and water, which is a major source of the hydroxyl
radical (OH), a primary constituent for tropospheric ozone
formation.\3\ Another NOX sink is peroxyacetyl nitrate (PAN),
which transports NOX 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 NO2 to warmer regions. Another
NOX sink, methyl peroxynitrate (CH3OONO2) can last as
many as two days in the upper troposphere and then quickly disassociate
under surface level temperature conditions, thereby providing a source
\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 NOX
reductions will not lead to actual ozone increases, the Agency
disagrees. Most studies indicate that reductions of both VOC and
NOX 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 NOX
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 NOX rather
than hydrocarbons, and that reductions in NOX probably will be
necessary to reduce rural ozone values.'' This same study also states
that, ``Control of NOX * * *, 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 NOX decrease
can result in an ozone increase, the ozone increase occurs only until a
``ridgeline'' is reached, after which further NOX control results
in reduced ozone concentrations. In areas with relatively high VOC/
NOX ratios, typical of suburban and rural areas, decreasing
NOX 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
NOX, 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 NOX, 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, NOX 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
(2) NOX 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 NOX, 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
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
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
\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
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 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 NOX 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 NOX
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 NOX 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.''
1. 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
(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
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
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
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
For a detailed discussion of the comments regarding the nonroad
definition initially proposed see the Response to Comments in the
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
(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
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
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
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
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
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
4. Nonroad Engines Manufactured Prior to the Effective Date of This
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
\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
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
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.
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
EPA is adopting the proposed NOX 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.
Net Power kW(Hp) HC g/kW-hr CO g/kW-hr NOX 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)
130 (175)................ 1.3 11.4 9.2 0.54 20/15/50
(1.0) (8.5) (6.9) (0.4)
75 to =130 (100 to <175). ........... ........... 9.2 ........... 20/15/50
37 to <75 (50 to <100)... ........... ........... 9.2 ........... 20/15/50
\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
Net Power kW (Hp) HC g/kW-hr CO g/kW-hr (g/bHp-hr)
130...................... \1\1.3 5.0 \1\0.54
(175).................... (1.0) (3.7) (0.40)
75 to <130............... 1.3 5.0 0.70
(100 to <175)............ (1.0) (3.7) (0.52)
37 to <75................ 1.3 6.5 0.85
(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 NOX.
Engine size, kW (Hp) Implementation date
130 to 560 January 1, 1996.
(175 to 750).
75 to <130 (100 to <175).
37 to <75 (50 January 1, 1998.
>560 (>750)........................ January 1, 2000.
D. Certification and Test Procedures
1. 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
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
2. 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 NOX.
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.
3. 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 NOX 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
PMadj = PM - [BSFC * 0.0917 *(FSF - USLFCA)]
PMadj = 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
USLFCA = upper sulfur level weight fraction of California
\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, USLFCA) with the upper sulfur level
weight fraction from the final European test fuel specification
(that is, USLFeu).
This adjustment only applies to engines with no exhaust gas
aftertreatment. No adjustment is provided for engines with exhaust gas
The test fuel option selected by the manufacturer will not affect
enforcement testing for the HC, CO, NOX 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
(d) The averaging, banking and trading provisions.
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.
1. 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
2. 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.
3. 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.
4. Tampering Prohibitions
EPA is adopting as proposed prohibitions against tampering with
nonroad engines. Nonroad tampering provisions will help ensure that in-
use 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.
5. 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.
6. 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
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.
7. 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
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
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 non-
metric 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
1. HC, CO, and PM Emission Standards
EPA proposed NOX and smoke standards and did not propose
standards for HC, CO, and PM. Since NOX 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 NOX 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
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 NOX 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.
2. 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
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 consensus-
building 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.
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
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
\1\4A complete breakdown of the information requested, as well
as a summary of the meeting, is contained in Docket #A-91-24, Item
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
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
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
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
EPA considered adopting a modified version of its current on-
highway 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-
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 NOX
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 NOX 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 NOX 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, NOX 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 NOX 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
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
NOX 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
1. 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.
2. Requiring Yearly Certification, Accepting California and European
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
3. 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 NOX 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 NOX 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 NOX 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 in-
use 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
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 on-
highway 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
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
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
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 alternative-
fueled 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
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
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
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
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
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 NOX 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
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
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 foreign-
produced 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 on-
highway 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
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)
1. Inclusion of ABT
EPA proposed ABT for NOX emissions from large nonroad CI
engines. This market-based incentive program is designed to provide
manufacturers with flexibility in meeting the NOX 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 NOX 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.
2. 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 NOX 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.
3. 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
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
4. 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 on-
highway 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
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
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 NOX emissions below 9.2 g/kW-
hr 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
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
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 in-
use 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
\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\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.
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
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
\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
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 in-
use 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
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 ``in-
use'' 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
\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 self-
propelling 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
\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 IV-
\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
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 waste-
gate 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 in-
line, 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 NOX
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 NOX 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 NOX emission levels to meet the standard. These methods to
both reduce NOX emissions and maintain current fuel consumption
and performance have been used for a number of years in the on-highway
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 on-
highway 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
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
(NO2), ozone (O3), and particles smaller than 10 microns
(PM10)), are impacted by NOX emissions. EPA has determined
the standards set in this rule will reduce NOX emissions and help
nonattainment areas come into compliance with the NAAQS for ozone. The
following provides a summary of the reduction expected of NOX
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 NOX 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 NOX by the
year 2010 and over 1,200,000 tons of NOX by the year 2025. Based
on EPA projections of future emission levels, these reductions
represent four percent of total nationwide annual NOX 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.
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 NOX Reduction
EPA has revised its cost effectiveness estimate of the NOX
standard upward to $188 per ton of NOX 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
The cost-effectiveness of the nonroad NOX standards may be
compared to other CAA measures that reduce NOX emissions. title I
of the 1990 CAAA requires certain areas to provide for reductions in
VOC and NOX 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 NOX emitters. In addition, EPA anticipates that
more stringent reductions in NOX 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 NOX reduced.38
\3\8U.S. Environmental Protection Agency, The Clean Air Act
Section 183(d) Guidance on Cost-Effectiveness, EPA-450/2-91-008,
In addition to applying NOX control technologies to meet
requirements under CAA title I, many point sources will also be
required to meet NOX 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 NOX emission from coal-fired power
plants, will be between $200 and $250 per ton.
The cost effectiveness of controlling NOX emissions from on-
highway mobile sources has also been estimated. The 1998 heavy-duty
highway engine NOX standard is estimated to cost between $210 and
$260 per ton of NOX reduced, and the recently promulgated on-board
diagnostics regulation is estimated to cost $1974 per ton of NOX
reduced from malfunctioning in-use light-duty vehicles.
In summary, the revised cost effectiveness of the NOX standard
included in this rule remains favorable relative to the cost
effectiveness of several other NOX 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
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
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:
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
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,
For the reasons set out in the preamble title 40, chapter I of the
Code of Federal Regulations is amended as follows:
1. 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,
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.
* * * * *
40 CFR citations No.
Control of Emissions From New and In-Use Nonroad Engines
85.1903 through 85.1906
89.505 through 89.509...................................... 2060-0064
89.603 through 89.605...................................... 2060-0095
89.607 through 89.612
* * * * *
3. Part 89 is added to read as follows:
PART 89--CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD ENGINES
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
89.102-96 Effective dates, optional inclusion.
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.
89.123-96 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
89.203-96 General provisions.
89.207-96 Credit calculation.
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.
89.304-96 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 NOX 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.
89.404-96 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
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
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
89.503-96 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
89.603-96 General requirements for importation of nonconforming
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
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
89.703 Applicability of part 85, subpart S.
Subpart I--Emission Defect Reporting Requirements
89.803 Applicability of part 85, subpart T.
Subpart J--Exemption Provisions
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
89.1003 Prohibited acts.
89.1004 General enforcement provisions.
89.1005 Injunction proceedings for prohibited acts.
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,
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
(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,
(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
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
Emission control system means any device, system, or element of
design which controls or reduces the emission of substances from an
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
(ii) in or on a piece of equipment that is intended to be propelled
while performing its function (such as lawnmowers and string trimmers);
(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
Nonroad equipment means equipment that is powered by nonroad
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
Test fleet means the engine or group of engines that a manufacturer
uses during certification to determine compliance with emission
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.
CO Carbon monoxide.
CO2 Carbon dioxide.
EPA Environmental Protection Agency.
FEL Family emission limit.
FTP Federal Test Procedure.
g/kW-hr Grams per kilowatt hour.
ICI Independent Commercial Importer.
NIST National Institute for Standards and Testing.
NTIS National Technical Information Service.
NO Nitric oxide.
NO2 Nitrogen dioxide.
NOX Oxides of nitrogen.
OEM Original equipment manufacturer.
SAE Society of Automotive Engineers.
SEA Selective Enforcement Auditing.
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
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
Standard Test Method for Distillation of Petroleum Products........... Appendix A to Subpart D.
Standard Test Methods for Flash Point by Pensky-Martens Closed Tester. Appendix A to Subpart D.
Standard Test Method for Sulfur in Petroleum Products (General Bomb Appendix A to Subpart D.
Standard Test Method for API Gravity of Crude Petroleum and Petroleum Appendix A to Subpart D.
Products (Hydrometer Method).
Standard Test Method for Kinematic Viscosity of Transparent and Opaque Appendix A to Subpart D.
Liquids (and the Calculation of Dynamic Viscosity).
Standard Test Method for Ignition Quality of Diesel Fuels by the Appendix A to Subpart D.
Standard Test Method for Hydrocarbon Types in Liquid Petroleum Appendix A to Subpart D.
Products by Fluorescent Indicator Adsorption.
Standard Test Method for Sulfur in Petroleum Products by X-ray Appendix A to Subpart D.
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
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.
1. 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.
2. 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.
3. 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
(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,
(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
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
(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
(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
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
(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
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
(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
(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
(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
(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
(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
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
(d) Required content. Each application must include the following
(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
(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
(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
(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
(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
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:
(2) Cooling medium;
(3) Method of air aspiration;
(4) Method of exhaust aftertreatment (for example, catalytic
converter or particulate trap);
(5) Combustion chamber design;
(8) Number of cylinders, (engines with aftertreatment devices
(9) Cylinder arrangement (engines with aftertreatment devices
(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
(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
(c) Service accumulation should be performed in a manner using good
engineering judgment to ensure that emissions are representative of in-
(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
(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
(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,
NOX, PM, and smoke standards. Emission test results based on Table
4 fuel will be used to confirm compliance with HC, CO, NOX, 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
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
(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;
(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
(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
(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
(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
(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
(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
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
(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
(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
(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
(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
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
(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
(ii) The request for a hearing and the supporting data submitted
(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
(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
(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
(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
(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
(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
(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
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
Sec. 89.203-96 General provisions.
(a) The averaging, banking, and trading program for NOX
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 NOX 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 NOX 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 NOX emission
standard for the family participating in the averaging, banking, and
(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
(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
(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-of-
year reports. During the model year and before submittal of the end-of-
year 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
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
(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
Emission credits=(Std - FEL) x (Volume) x (MinPR) x
(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)
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
(ii) In no case may the FEL exceed the upper limit prescribed in
(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
(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
(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
(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
(3) The value required to calculate credits as given in
(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,
(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
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
(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 (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
(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
(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
(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
(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 (CO2) 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 (O2) analysis. Oxygen (O2) 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 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
(v) The percent of oxygen interference must be less than 3 percent,
as specified in Sec. 89.319-96(d).
(5) Oxides of nitrogen (NOX) 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 NO2 to NO converter. The NO2 to NO converter
efficiency must be at least 90 percent.
(C) An ice bath or other cooling device located after the NOX
(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 NOX measurement system
must pass through the NO2 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
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,
1 percent of full-scale concentration for each range used
at or above 100 ppm (or ppmC) or 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
(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
(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
(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 CO2 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 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 2.3
percent (2.8 percent for CO2 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
(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
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
(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 CO2 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
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
(1) Purified nitrogen (Contamination 1 ppm C,
1 ppm CO, 400 ppm CO2, 0.1 ppm
(2) Purified oxygen (Purity 99.5 percent vol O2)
(3) Hydrogen-helium mixture (40 2 percent hydrogen,
balance helium) (Contamination 31 ppm C, 400
(4) Purified synthetic air (Contamination 1 ppm C,
1 ppm CO, 400 ppm CO2, 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
(2) Mixtures of gases having the following chemical compositions
shall be available:
C3H8 and purified synthetic air (dilute measurements);
C3H8 and purified nitrogen (raw measurements);
CO and purified nitrogen;
NOX and purified nitrogen (the amount of NO2 contained in
this calibration gas must not exceed 5 percent of the NO content);
CO2 and purified nitrogen
(3) The true concentration of a span gas must be within
2 percent of the NIST gas standard. The true concentration
of a calibration gas must be within 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 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
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
N2 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 2 percent.
(d) Oxygen interference check gases shall contain propane with 350
ppmC 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 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 (%O2I). 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 %O2I 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, CO2, NOX, 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
(d) Rechecking of zero setting. The zero setting shall be rechecked
and the procedure described in paragraph (c) of this section repeated,
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
(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 full-
scale, 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 NO2 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
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
(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 NOX converter check.
(a) Prior to its introduction into service, and monthly thereafter,
the chemiluminescent oxides of nitrogen analyzer shall be checked for
NO2 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
(d) Connect the outlet of the NOX 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 NOX generator analyzer-system an NO-in-
nitrogen (N2) mixture with an NO concentration equal to
approximately 80 percent of the most common operating range. The
NO2 content of the gas mixture shall be less than 5 percent of the
(f) With the oxides of nitrogen analyzer in the NO mode, record the
concentration of NO indicated by the analyzer.
(g) Turn on the NOX generator O2 (or air) supply and
adjust the O2 (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+O2
(h) Switch the NOX 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 NOX mode and
measure total NOX. Record this value.
(j) Switch off the NOX generator but maintain gas flow through
the system. The oxides of nitrogen analyzer will indicate the NOX
in the NO+O2 mixture. Record this value.
(k) Turn off the NOX generator O2 (or air) supply. The
analyzer will now indicate the NOX in the original NO-in-N2
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