[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43960-43963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21843]


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DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Part 12

[T.D. 96-64]
RIN 1515-AB94


Emissions Standards for Imported Nonroad Engines

AGENCY: Customs Service, Department of the Treasury.

ACTION: Final rule.

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SUMMARY: This document sets forth amendments to the Customs Regulations 
which conform to regulations that have already been adopted by the 
Environmental Protection Agency (EPA), in order to ensure the 
compliance of imported nonroad engines with applicable EPA emissions 
standards required by law.

EFFECTIVE DATE: August 27, 1996.

FOR FURTHER INFORMATION CONTACT: Leo Wells, Trade Compliance Division, 
(202-927-0771).

SUPPLEMENTARY INFORMATION:

Background

    The Clean Air Act, as amended, (42 U.S.C. 7401 et seq.), which has 
long authorized the Environmental Protection Agency (EPA) to regulate 
on-highway motor vehicle and engine emissions, was amended in 1990 to 
extend EPA's regulatory authority to include as well nonroad engines 
and related vehicles and 2 equipment (see 42 U.S.C. 7521-7525, 7541-
7543, 7547, 7549, 7550, 7601(a)). In brief, EPA was given authority, 
inter alia, to regulate those categories or classes of new nonroad 
engines and associated vehicles and equipment that contribute to air 
pollution, if such nonroad emissions have been determined to be 
significant.
    To this end, the EPA has since conducted the requisite studies, and 
issued regulations in 40 CFR parts 89 and 90, which set emission 
standards for certain nonroad engines, specifically new nonroad 
compression-ignition engines at or above 50 horsepower (37 kilowatts) 
(nonroad large CI engines) as well as new nonroad spark-ignition 
engines at or below 25 horsepower (19 kilowatts) (nonroad small SI 
engines). For a complete discussion of the background and development 
of EPA's regulations concerning emissions standards for nonroad large 
CI and small SI engines, see 59 FR 31306 (June 17, 1994) and 60 FR 
34582 (July 3, 1995), respectively. The Customs Regulations set forth 
in this document are applicable to all nonroad engines incorporated 
into nonroad vehicles or nonroad equipment imported into the United 
States.
    Nonconforming nonroad large CI engines may only be imported by 
independent commercial importers (ICIs) who hold valid certificates of 
conformity issued by the EPA (see Sec. 12.74(c)(2), infra), unless an 
exemption or exclusion otherwise applies thereto. The ICI will be 
responsible for assuring that subsequent to importation, the nonroad 
engine is properly modified and/or tested to comply with EPA emission 
and other requirements over its useful life.
    By contrast, no ICI program exists for nonconforming nonroad small 
SI engines. However, an individual may import on a single occasion up 
to three nonconforming nonroad small SI engines, vehicles or equipment 
items for personal use (and not for purposes of resale). In fact, with 
specific exceptions, nonconforming nonroad small SI engines, vehicles 
and equipment are generally not permitted to be imported for resale. 
After an individual's limit of three, or after the first importation, 
additional small SI engines, vehicles, or equipment are not permitted 
importation, unless an exception or exclusion otherwise so provides.
    Exemptions or exclusions to the general restrictions on importing 
nonconforming nonroad engines are similar to those contained in 
Sec. 12.73, Customs Regulations (19 CFR 12.73) for nonconforming motor 
vehicles and their engines, and include exemptions for repair and 
alteration, testing, precertification, display, national security, 
hardship, use in competition, and certain nonroad engines proven to be 
identical, in all material respects, to their corresponding U.S. 
versions. Furthermore, foreign diplomatic or military personnel on 
assignment in the U.S. may import a nonconforming nonroad engine exempt 
from emissions requirements. In addition, nonroad engines greater than 
20 original production years old are not subject to EPA emissions 
requirements.
    Accordingly, Customs is amending its regulations to add a new 
Sec. 12.74 which conforms to the regulations that have already been 
adopted by EPA, in order to ensure the compliance of imported nonroad 
engines with applicable EPA emissions standards required by law.

Inapplicability of Public Notice and Comment and Delayed Effective Date 
Requirements, the Regulatory Flexibility Act, and Executive Order 12866

    Inasmuch as these amendments merely conform the Customs Regulations 
to existing law and

[[Page 43961]]

regulation as noted above, pursuant to 5 U.S.C. 553(b)(B), notice and 
public procedure thereon are unnecessary and pursuant to 5 U.S.C. 
553(d)(3), a delayed effective date is not required. Since this 
document is not subject to the notice and public procedure requirements 
of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). Nor do these amendments meet 
the criteria for a ``significant regulatory action'' under E.O. 12866.

    Drafting Information. The principal author of this document was 
Russell Berger, Regulations Branch, U.S. Customs Service. However, 
personnel from other offices participated in its development.

List of Subjects in 19 CFR Part 12

    Customs duties and inspection, Imports, Motor vehicles, Motor 
vehicle safety, Nonroad engines, Reporting and recordkeeping 
requirements.

Amendments to the Regulations

    Part 12, Customs Regulations (19 CFR part 12), is amended as set 
forth below.

PART 12--SPECIAL CLASSES OF MERCHANDISE

    1. The general authority citation for part 12 continues to read as 
follows, and the specific authority for Sec. 12.73 is revised by adding 
a reference to Sec. 12.74 to read as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 20, 
Harmonized Tariff Schedule of the United States (HTSUS)), 1624;
* * * * *
    Sections 12.73 and 12.74 also issued under 19 U.S.C. 1484, 42 
U.S.C. 7522, 7601;
* * * * *
    2. Part 12 is amended by revising the undesignated centerhead 
preceding Sec. 12.73, and by adding a new Sec. 12.74 following 
Sec. 12.73, to read as follows:

Entry of Motor Vehicles, Motor Vehicle Engines and Nonroad Engines 
Under the Clean Air Act, As Amended

* * * * *


Sec. 12.74  Nonroad engine compliance with Federal antipollution 
emission requirements.

    (a) Applicability of EPA requirements. This section is ancillary to 
the regulations of the U.S. Environmental Protection Agency (EPA) 
issued under the Clean Air Act, as amended (42 U.S.C. 7401 et seq.), 
and found in 40 CFR parts 89 and 90. Nothing in this section should be 
construed as limiting or changing in any way the applicability of the 
EPA regulations. Those regulations should be consulted for more 
detailed information concerning EPA emission requirements. These 
requirements apply to nonroad combustion-ignition engines at or above 
37 kilowatts (kW), and nonroad spark-ignition engines at or below 19 
kW. For the purpose of this section, the term ``nonroad engine'' 
includes all nonroad engines incorporated into nonroad equipment or 
nonroad vehicles when imported into the United States.
    (b) Importation of complying nonroad engines. (1) Labeled engines. 
Nonroad engines which in their condition as imported are covered by an 
EPA certificate of conformity and which bear the manufacturer's label 
showing such conformity and other EPA-required information shall be 
deemed in compliance with applicable emission requirements for the 
purpose of Customs admissibility and entry liquidation determinations. 
This paragraph does not apply to importations by independent commercial 
importers covered by paragraph (c) of this section.
    (2) Pending certification. Nonroad engines otherwise covered by 
paragraph (b)(1) of this section which were manufactured for compliance 
with applicable emission requirements, but for which an application for 
a certificate of conformity is pending with the EPA may be 
conditionally released from Customs custody pending production of the 
certificate of conformity within 120 days of release.
    (c) Importation of nonconforming engines.
    (1) By other than an independent commercial importer (ICI). Except 
for nonroad engines imported in the particular circumstances covered by 
paragraphs (d)-(m) of this section, an individual or business, other 
than an independent commercial importer (ICI) holding a currently valid 
EPA certificate of conformity for the same nonroad engine class and 
fuel type as the engine being imported, may not enter into the United 
States a nonconforming nonroad engine to which EPA emissions 
requirements apply. Individuals and businesses may, however, arrange 
for the importation of nonconforming nonroad engines through an ICI. In 
these circumstances, the ICI will not act as an agent or broker for 
Customs transaction purposes unless otherwise licensed or authorized to 
do so.
    (2) By an ICI. (i) Definition. Generally, an ICI is an importer 
that holds a certificate of conformity from EPA, but that lacks a 
contract with a foreign or domestic nonroad engine manufacturer for 
distributing nonroad engines into the United States market and cannot 
therefore export as an original equipment manufacturer. Further 
specific discussion of who qualifies as an ICI is set forth in the EPA 
regulations.
    (ii) Procedure. An ICI may enter into the United States certain 
nonroad engines, only if it holds a currently valid EPA certificate of 
conformity for the same nonroad engine class and fuel type as the 
nonroad engines being entered. A ``certificate of conformity'' is the 
document which is issued by the Administrator, EPA, to the ICI, and 
which entitles the ICI to import nonconforming nonroad engines into the 
United States, and ensure that such nonroad engines are brought into 
conformance with applicable EPA emissions standards. 40 CFR 89.602-96.
    (d) Importation of nonconforming spark-ignition engines at or below 
19 kW. (1) General. A nonconforming engine at or below 19 kW may not be 
imported by any person, business or ICI, except for purposes other than 
resale under paragraph (d)(2) of this section, or unless an exemption 
or exclusion applies as provided in paragraphs (e)-(m) of this section.
    (2) Importation for purposes other than resale. Any individual may 
import on a one-time basis 3 or fewer nonconforming spark-ignition 
engines at or below 19 kW for purposes other than resale under 40 CFR 
90.611. Such an engine may be conditionally admitted without prior EPA 
approval and without bond.
    (e) Exemptions and exclusions from emissions requirements based on 
age of engine. The following nonroad engines may be imported by any 
person and do not have to be shown to be in compliance with emissions 
requirements before being entitled to admissibility:
    (1) All spark-ignition engines greater than 19 kW, unless regulated 
under 19 CFR 12.73;
    (2) All compression-ignition engines less than 37 kW;
    (3) Spark-ignition engines less than or equal to 19 kW originally 
manufactured before the 1997 model year;
    (4) Compression-ignition engines greater than or equal to 37 kW but 
less than 75 kW originally manufactured before January 1, 1998;
    (5) Compression-ignition engines greater than or equal to 75 kW but 
less than 130 kW originally manufactured before January 1, 1997;
    (6) Compression-ignition engines greater than or equal to 130 kW 
but less than or equal to 560 kW originally manufactured before January 
1, 1996;
    (7) Compression-ignition engines greater than 560 kW originally

[[Page 43962]]

manufactured before January 1, 2000; and
    (8) Engines not otherwise exempt from EPA emission requirements and 
more than 20 years old. (Age is determined by subtracting the calendar 
year of production (as opposed to model year) from the calendar year of 
importation.)
    (f) Exemption for exports. Nonroad engines which will be used in 
nonroad vehicles or equipment intended solely for export to a country 
which does not have in force emissions standards identical to EPA 
standards are exempt from applicable EPA emissions requirements if both 
the engine and its container bear a label or tag indicating that it is 
intended solely for export. 40 CFR 89.909 and 90.909. The EPA publishes 
in the Federal Register a list of foreign countries that have emissions 
standards identical to EPA standards.
    (g) Exemptions for diplomats, foreign military personnel and 
nonresidents. Subject to the conditions that they are not resold in the 
United States and are subsequently exported or destroyed or brought 
into conformity with EPA emissions requirements, the following nonroad 
engines are exempt from EPA emission requirements:
    (1) A nonroad engine imported solely for the personal use of a 
nonresident importer or consignee where the use will not exceed one 
year and the engine subsequently will be exported; and
    (2) A nonroad engine of a member of the armed forces of a foreign 
country on assignment in the United States, or of a member of the 
personnel of a foreign government on assignment in the United States or 
other individual who comes within the class of persons for whom free 
entry of nonroad engines has been authorized by the Department of 
State. For special documentation requirements, see paragraph (n)(4) of 
this section.
    (h) Exemption for repairs or alterations. An engine may be imported 
by anyone solely for repairs or alterations. Under this exemption, the 
engine may not be sold or leased in the United States. 40 CFR 89.611-
96(b)(1) and 90.612(b)(1).
    (i) Testing exemption. An engine may be imported by anyone solely 
for testing. Such engine may only be operated as an integral part of 
the test. 40 CFR 89.611-96(b)(2) and 90.612(b)(2). This exemption is 
limited to a period not exceeding one year from the date of importation 
unless a request is made under 40 CFR 89.905(f) or 90.905(f), as 
applicable, for a one-year extension.
    (j) Precertification exemption. An engine may be imported by an 
individual as well as by an ICI for use as a prototype in applying for 
EPA certification, unless otherwise specified. 40 CFR 89.611-96(b)(3) 
and 89.906. Unless the engine is brought into conformity within 180 
days from the date of entry, it shall be exported or otherwise disposed 
of subject to paragraph (q) of this section.
    (k) Display exemption. An engine may be imported by anyone solely 
for display in relation to a business or the public interest, as 
determined by EPA, if the engine will not be sold in the United States. 
This exemption is limited to a period of 12 months or for the duration 
of the display, whichever is shorter. Two extensions are available of 
up to 12 months each, if approved by EPA, but, in no case may the total 
extension period exceed 36 months. 40 CFR 89.611-96(b)(4) and 
90.612(b)(3).
    (l) Exemption for engines identical to U.S.-certified versions. An 
engine may be imported by its owner other than for resale if it is 
proven to be identical, in all material respects, to an engine 
certified by the original manufacturer for sale in the United States. 
40 CFR 89.611-96(c)(3) and 90.612(c)(3).
    (m) Exemptions and exclusions based on prior EPA approval. The 
following exemptions or exclusions from EPA emission standards apply to 
nonroad engines, if prior approval has been obtained in writing from 
EPA:
    (1) Competition exemption. An engine may be imported for use to 
propel a vehicle or to power equipment used solely for competition. 40 
CFR 89.611-96(e) and 90.612(e);
    (2) National security exemption. An engine that received a national 
security exemption in writing from EPA may be imported. 40 CFR 89.611-
96(c)(1), 89.908, 90.612(c)(1) and 90.908; and
    (3) Hardship exemption. An engine that received a hardship 
exemption in writing from EPA may be imported. 40 CFR 89.911-96(c)(2) 
and 90.612(c)(2).
    (n) Documentation requirements. (1) Exception for conforming 
engines. The special documentation requirements of paragraphs (n)(2) 
and (n)(3) of this section do not apply to the entry into the United 
States of any nonroad engines shown to be in compliance with applicable 
emission requirements under paragraph (b)(1) of this section relating 
to labeling.
    (2) Declarations of other importers. Release from Customs custody 
shall be refused with respect to all entries of nonconforming nonroad 
engines into the United States unless there is filed with the entry in 
duplicate a declaration in which the importer or consignee declares or 
affirms its status as an original equipment manufacturer, an ICI 
holding a relevant certificate of conformity, an individual importer, 
or other status, and further declares or affirms the status or 
condition of the imported engines and the circumstances concerning 
importation including a citation to the specific paragraph in this 
section upon which application for conditional or final release from 
Customs custody is made.
    (3) Other documentation and information. The EPA requires, pursuant 
to its regulations at 40 CFR 89.604(a) and 40 CFR 90.604(c), that the 
following information shall be included or submitted with the 
importer's declaration:
    (i) The importer's name, address and telephone number;
    (ii) Identification of the engine, including the unique engine 
number, the engine owner's taxpayer identification number, and his or 
her current address and telephone number in the United States if 
different from that provided in paragraph (n)(3)(i) of this section;
    (iii) Identification, where applicable, of the place where the 
engine will be stored until EPA approval of the importer's application 
to EPA for final admission;
    (iv) Authorization for EPA enforcement officers to conduct 
inspections or testing otherwise permitted by the Clean Air Act and 
regulations promulgated thereunder;
    (v) Identification, in the case of importation by an ICI, of the 
certificate of conformity by means of which the engine is being 
imported;
    (vi) The date of manufacture of the engine;
    (vii) The date of entry;
    (viii) Identification of the vessel or carrier on which the 
merchandise was shipped;
    (ix) The entry number, where applicable;
    (x) Where prior written approval from EPA is required for an 
exemption or exclusion, a statement to the effect that such EPA 
approval has been given; and
    (xi) Such other further information as may be required by the EPA.
    (4) Documentation from diplomats or foreign military personnel. For 
entries for which an exemption is claimed under paragraph (g)(2) of 
this section, a statement must also be included with the declaration, 
identifying and describing the engine importer's official orders, if 
any, or, giving the name of the embassy to which the importer is 
accredited if the importer is a qualifying member of the personnel of a 
foreign government on assignment in the United States.

[[Page 43963]]

    (5) Retention and submission of records to Customs. Documents 
supporting the information contained in or accompanying the declaration 
as set forth in paragraphs (n) (2)-(4) of this section must be retained 
by the importer for a period of at least 5 years from the date of 
entry, or withdrawal from warehouse, for consumption of the nonroad 
engine (see Sec. 162.1c of this chapter), and shall be provided to 
Customs upon request.
    (o) Release under bond. If a declaration filed in accordance with 
paragraph (n)(2) of this section states that the entry is being filed 
under circumstances described in either paragraph (h), (i), (j), or (k) 
of this section, the entry shall be accepted only if the importer or 
consignee gives a bond on Customs Form 301, containing the bond 
conditions set forth in Sec. 113.62 of this chapter for the production 
of an EPA statement that the engine is in conformity with Federal 
emission requirements. Within the period in paragraph (i) or (j) of 
this section, or in the case of paragraph (h) or (k) of this section, 
the period specified by EPA in its authorization for an exemption, or 
such additional period as the port director of Customs may allow for 
good cause shown, the importer or consignee shall deliver to the port 
director the prescribed statement. If the statement is not delivered to 
the director of the port of entry within the specified period, the 
importer or consignee shall deliver or cause to be delivered to the 
port director those engines which were released under a bond required 
by this paragraph. In the event that the engine is not redelivered 
within 5 days following the specified period, liquidated damages shall 
be assessed in the full amount of the bond, if it is a single entry 
bond, or if a continuous bond is used, the amount that would have been 
taken under a single entry bond. Liquidated damages under the bond 
generally would be equal to 3 times the value of the merchandise 
involved in the default (see Sec. 113.62(k) of this chapter).
    (p) Notice of inadmissibility or detention. If an engine is 
determined to be inadmissible before release from Customs custody, or 
inadmissible after release from Customs custody, the importer or 
consignee shall be notified in writing of the inadmissibility 
determination and/or redelivery requirement. However, if an engine 
cannot be released from Customs custody merely because the importer has 
failed to furnish with the entry the information required by paragraph 
(n) of this section, the engine shall be held in detention by the port 
director for a period not to exceed 30 days after filing of the entry 
at the risk and expense of the importer pending submission of the 
missing information. An additional 30-day extension may be granted by 
the port director upon application for good cause shown. If at the 
expiration of a period not over 60 days the required documentation has 
not been filed, a notice of inadmissibility will be issued.
    (q) Disposal of engines not entitled to admission. An engine denied 
admission under any provision of this section shall be disposed of in 
accordance with applicable Customs laws and regulations. However, an 
engine will not be disposed of in a manner in which it may ultimately 
either directly or indirectly reach a consumer in a condition in which 
it is not in conformity with applicable EPA emission requirements.
    (r) Prohibited importations. The importation of nonroad engines 
otherwise than in accordance with this section and the regulations of 
EPA in 40 CFR parts 89 and 90 is prohibited.
George J. Weise,
Commissioner of Customs.

    Approved: June 24, 1996.
Dennis M. O'Connell,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 96-21843 Filed 8-26-96; 8:45 am]
BILLING CODE 4820-02-P