EPA420 R 05 xxx June 2005 Test Procedures for Highway and Nonroad Engines and Omnibus Technical Amendments Technical Support Document and Summary and Analysis of Comments Assessment and Standards Division Office of Transportation and Air Quality U. S. Environmental Protection Agency Table of Contents Chapter 1: Highway engines and vehicles ( 40 CFR parts 85 and 86) . . . . . . . . . . . . . . . . . . . . . 1 Chapter 2: Land based nonroad diesel engines ( 40 CFR parts 89 and 1039) . . . . . . . . . . . . . . . 14 Chapter 3: Marine diesel engines ( 40 CFR part 94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Chapter 4: Locomotives ( 40 CFR part 92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Chapter 5: Small nonroad spark ignition engines ( 40 CFR part 90) . . . . . . . . . . . . . . . . . . . . . 45 Chapter 6: Large nonroad spark ignition engines ( 40 CFR part 1048) . . . . . . . . . . . . . . . . . . . 48 Chapter 7: Recreational vehicles ( 40 CFR part 1051) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Chapter 8: Test Procedures ( 40 CFR part 1065) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Chapter 9: Marine Spark Ignition Engines ( 40 CFR part 91) . . . . . . . . . . . . . . . . . . . . . . . . . 105 Chapter 10: General Compliance Provisions ( 40 CFR part 1068) . . . . . . . . . . . . . . . . . . . . . . 107 Technical Amendments 1 Chapter 1: Highway engines and vehicles ( 40 CFR parts 85 and 86)

I. Summary and Analysis of Comments We received comments on many of the proposed provisions in parts 85 and 86, with additional comments raising new issues for us to consider. The following discussion presents a summary and analysis of all these comments. Section II discusses the changes included in the proposal.

Issue Response 86.095 35: Volvo commented that we should allow branding for heavy duty highway engines We agree that the proposed provisions to allow another company's trademark on the engine label is also appropriate for heavy duty highway engines.

85.1511: The Engine Manufacturers Association ( EMA) recommended changing the repair exemption to align with the similar provisions for locomotive and marine diesel engines. This would generally allow engine operation as needed for transportation to facilitate repairs. We are concerned that allowing noncompliant heavy duty vehicles to drive to repair facilities in the United States would be much harder to monitor than the comparable provisions for locomotive or marine diesel engines. We are therefore not adopting these provisions at this time. We may in the future consider what additional requirements would be necessary to allow this type of operation without opening a loophole that would allow unanticipated use of this exemption to circumvent the regulations.

85.1713: Cummins and EMA responded to our request for comment related to a provision that would allow engine manufacturers to ship certified engines without applicable aftertreatment components, while providing for separate shipment of those components to equipment manufacturers. The manufacturers commented that such a provision should be set up to require either that the component cost be included in the price of the engine, or auditing requirements for engine manufacturers, but not both, since the equipment manufacturer has enough incentive to make the final installation without additional oversight. They also objected to the need to apply a temporary label, since it would add a burden that provides no added value. The preamble addresses the principal aspects of this comment. Regarding the temporary label, we believe that it would add an incremental improvement in preventing problems, primarily related to the possibility of a vehicle manufacturer inadvertently treating the engine as not requiring some specific aftertreatment component. We believe, however, that the requirement for engine manufacturers to receive confirmation that the vehicle manufacturer has ordered the aftertreatment component to adequately address this concern.

86.007 11: EMA commented that the flexibility of meeting the phase in requirements for heavy duty diesel engines based on either model year or calendar year should also apply to phase out engines. We intended for the proposed change to address this situation and have modified the regulatory language to make this clearer.

86.007 21: EMA noted that paragraph ( o)( 5) requiring submission of PM data was redundant, since paragraph ( o)( 1) already requires submission of data for all pollutants. We agree with this comment and are removing the redundant paragraph. Draft Technical Support Document 2 85.1713: Caterpillar commented that we should allow them to complete their engine assembly at different facilities, including some steps performed by another company under contract. We have added a new provision allowing manufacturers to assemble engines in different locations, provided that they maintain control of the engines at all times, and inform us that they are using this exemption. We may require that manufacturers take certain steps to ensure that engines end up in their certified configuration.

86.1305: EMA commented that part 1065 already provides for the use of partial flow sampling systems for transient PM measurements in the laboratory only after an equivalence demonstration, and that the standard setting part should not impose any further restriction. We agree with this comment and have taken out the specific reference to partial flow sampling in § 86.1305.

86.1301: EMA requested that we not require migration to the test procedures until 2010. This would minimize disruption in the transition, since manufacturers will start meeting the long term standards in that year. We agree that delaying mandatory testing under part 1065 until 2010 is appropriate. We have added clarifying language related to EPA testing in the transition period. We intend to upgrade to the more accurate test procedures for any confirmatory testing. For some provisions in part 1065, however, this would not be appropriate if manufacturers have not yet based their testing on the part 1065 procedures. We now specify that our testing will use the manufacturer's selected procedures for mapping engines, generating duty cycles, and applying cyclevalidation criteria. For any other parameters, EPA may conduct testing using either of the specified procedures.

86.1301: Similarly, Cummins and EMA requested that we initiate the migration to the new test procedures starting with the 2004 model year. In later comments, EMA requested that we delay the start of the new test procedures until the 2005 model year, but added no explanation to describe the changed recommendation. Manufacturers have already certified their 2004 and 2005 model year products, so selecting the starting point for the new test procedures has no bearing on the certification process for either of these model years. We are therefore staying with the manufacturers' initial suggestion of the 2004 model year for the most straightforward presentation in the regulations, since new emission standards also started in 2004.

86.1362 and 1363: EMA also requested that EPA allow the use of the original discrete mode test cycle and procedures from 2007 2009, rather than changing immediately to ramped modal testing in 2007, without allowing the original test procedures as an option. EMA said that some of its members had already made decisions for those model years based on the original test procedures. We agree with the comment and will allow the discretemode test cycle and procedures for model years 2007 through 2009.

86.1305: The incorrect reference to § 86.1358 2007 should be removed. We agree with this comment and have made the appropriate change to the regulations.

86.007 35, EMA pointed out that the model year for heavy duty engines may not match the model year of the vehicle if the engines are installed in light duty trucks. The labeling requirements should reflect this to avoid an anomalous requirement to identify the applicable fuel as low sulfur diesel, where the label should say ultra lowsulfur diesel. We agree with this comment and have made the appropriate change to the regulations. Technical Amendments 3 86.1807 07 and 86.1808 07: Similarly, manufacturers pointed out that the maintenance instructions and labeling requirements for light duty vehicles need to be updated to reflect the timing of our requirements to introduce ultra low sulfur fuel for gasoline vehicles. We agree with this comment and have made the appropriate change to the regulations.

86.884: Manufacturers requested that we remove the minimum specification for the placement of smokemeters, which is currently specified as 10 32 feet downstream of the exhaust manifold ( or other engine hardware). We agree that smokemeters can accurately measure smoke emissions closer than 10 feet downstream of engine components. We are changing the regulation to specify only a maximum distance of 32 feet. This change should have no effect on the stringency of applicable smoke standards.

86.413: The Motorcycle Industry Council pointed out that the label for highway motorcycles should identify emission rates in g/ km, not g/ mile. We agree that the label should identify the appropriate units as g/ km.

86.410: The Motorcycle Industry Council commented that the two year delay in permeation standards for smallvolume manufacturers of highway motorcycles was not in the regulations, even though this was clearly described in the preamble to that final rule. We inadvertently adopted the standards for highway motorcycles without this provision. The final rule includes this provision in § 68.410 2006.

In addition to these comments, we have identified a variety of additional minor changes and adjustments to include in the final rule. There are a variety of changes simply to correct typographical and nomenclature errors. In addition, these changes include:

" Cleaning up the provisions of § § 86.447 and 86.448. We revised the language in several places to more clearly address the situation for motorcycle manufacturers installing engines certified to other programs.

" Correcting units in § 86.1816 to reflect the appropriate requirements for testing heavy duty vehicles.

" Adding 86.1333 2010 to the list of sections in part 86, subpart N, that continue to apply after 2010. This section describes the applicable duty cycles for heavy duty engines.

" Adding a reference in § 86.1370 2007 to point to § 86.1301. This clarifies the applicability of the procedures in part 86 and part 1065 to Not To Exceed testing and field testing.

II. Summary of Rulemaking Changes The following discussion describes what we proposed to change for light duty vehicles, highway motorcycles, and heavy duty highway engines, with adjustments as noted above in response to public comments.

1. Light duty Vehicles a. Calculation Method for Nonmethane Hydrocarbons Draft Technical Support Document 4 We are revising regulatory provisions to properly align EPA and CARB calculation methods for measuring nonmethane hydrocarbons from gasoline, diesel, methanol, ethanol, and liquefied petroleum gas fueled light duty vehicles. Harmonization of EPA and CARB testing and calculation practices, including proper accounting for the methane response of the total hydrocarbon FID, was anticipated when Tier 2 regulations were developed. Modifying the language in 86.121 90( d) and 86.144 94( c)( 8)( vi) to explicitly require the use of a measured methane response factor, as opposed to the current CFR text which specifies an assumed methane response factor of 1.0, will align the calculation methods. Calculating nonmethane hydrocarbon using a measured methane response factor is the technically correct calculation and measurement method.

b. Correction to Tier 2 Regulations On December 6, 2002, we made some minor technical amendments to EPA's Tier 2/ Gasoline Sulfur regulations ( 67 FR 72821, December 6, 2002). However, those actions mistakenly reversed a prior correction to Table S04 2 in § 86.1811 04( c)( 6) that was made on February 28, 2000 ( 65 FR 10598, February 28, 2000). We are now reestablishing the correct version of that table. Specifically, in § 86.1811 04( c)( 6), in Table S04 2, the " Notes" entry corresponding with " Bin No. 9"' should read " a b e f g h".

c. Correction to Supplemental Federal Test Procedure Regulations We are making the following corrections to regulatory references, spelling, and the like with these technical amendments:

" An incorrect regulatory reference is corrected in § 86.158 00;

" Revision to section 86.161 00 inserts the correct humidity tolerance of plus or minus 5 grains of water/ pound of dry air; and " Revision to the equation in section 86.164 00 adds plus ("+") signs that were omitted in the regulations.

d. Correction to National Low Emission Vehicle Regulations In several places in the National Low Emission Vehicle ( NLEV) emissions standards there are typographical errors affecting emission standards and testing provisions which require correction:

" Incorrect in use formaldehyde standards for light duty vehicles in tables R99 5 and R99 6 ( § 86.1708 99).

" Incorrect model year applicability of in use standards for light duty trucks ( § 86.1709 99( c)( 1)).

" Missing standards for light duty trucks from 0 3750 loaded vehicle weight in Table R99 14.2 ( § 86.1709 99).

" Correction of fleet average NMOG standards for calculating credits for 1997 and 1998 model years in the Northeast Trading Region ( § 86.1710 99( c)( 8)).

" Correcting a reference to 86.1705 99( e)( 4) that should have been to 86.1707 99( d)( 4) ( § 86.1711 99). Technical Amendments 5 e. Revisions and corrections to dynamometer driving schedules.

i. SC03 and US06 driving cycles This rule corrects errors in the SC03 driving cycle and to reconcile several discrepancies between the CFR language and the second by second US06 and SC03 drive cycle traces in the appendices to part 86.

We are revising the SC03 cycle in Appendix I, paragraph ( h) so it is lengthened to 600 seconds by adding six seconds of zero miles per hour after 594 seconds. This change and additional language changes eliminates confusion in how to execute the requirements in sections 86.160 00( c)( 12) and 86.159 00( f)( 2)( ix). Sections 86.159 00( f)( 2)( ix) and 86.160 00( c)( 12) both state that the engine is turned off 2 seconds after the end of the deceleration ( which occurs at 594 seconds and driving stops at 596 seconds.)

With respect to the SC03 drive trace, section 86.160 00( c)( 10) reads " Twenty seconds after the engine starts, begin the initial vehicle acceleration of the driving schedule." However, this is incorrect. The printed driving schedule in Appendix I, paragraph ( h), correctly shows eighteen seconds of idle. The regulatory language is modified to reflect eighteen seconds of idle, rather than twenty.

Section 86.160 00( c)( 12) currently reads " Turn the engine off 2 seconds after the end of the last deceleration," but the Appendix I, paragraph ( h), drive schedule has no idle seconds at the end of the SC03 cycle. Idle speed values are added to the end of the SC03 drive schedule to make it consistent with the regulatory language. This clarifies that the first non zero speed value to be at trace time t= 19 seconds. This section is amended to clarify that driving stops at trace time t= 596 seconds.

The US06 drive schedule has a similar discrepancy. Section 86.159 00( f)( 2)( ix) reads " Turn the engine off 2 seconds after the end of the last deceleration." However, the drive schedule in Appendix I ( g) has six idle seconds at the end of the US06 cycle. We are amending this section to clarify that driving stops at trace time t= 596 seconds.

ii. Urban Dynamometer Driving Schedule We are also taking action to correct two minor errors in the Appendix I, paragraph ( a), Urban Dynamometer Driving Schedule ( UDDS) that have existed since the 1970' s. Originally published in the Federal Register on November 10, 1970 ( 35 FR 17311), the UDDS is the driving cycle that is the basis of the Federal Test Procedure. Since it was published, however, two speed values in the UDDS were erroneously modified. Specifically, the speed value at t= 961 seconds was changed from 5.3 mph to 5.0 mph in 1972, and the speed value at t= 1345 seconds was changed from 18.3 mph to 18.8 sometime between 1973 and 1977. The speed value of 5.0 mph at t= 961 creates an acceleration of 3.6 mph/ sec to 8.6 mph at t= 962, which is inconsistent with the Draft Technical Support Document 6 acknowledged 3.3 mph/ sec maximum acceleration rate due to dynamometer limitations. The speed value of 18.8 mph at t= 1345 is inconsistent with what should be a gradually decreasing acceleration rate from t= 1343 to t= 1347 seconds. This rule reverts these values back to the speed values as they were published in 1970. It is important to note that the regulated industry and EPA have been using the correct speed values since 1970, despite the error in the Code of Federal Regulations ( CFR).

In addition, a dynamometer manufacturer commented to EPA that the CFR has several errors in the Appendix I, paragraph ( b), version of the UDDS that is expressed in kilometers per hour. EPA has verified that these errors are not rounding errors when converting from miles per hour, but are more likely the result of errors in typing. The table below indicates the correct mile per hour and kilometer per hour values, as well as the incorrect value. This final rule makes these corrections.

Time ( seconds) Incorrect KPH Correct KPH Correct MPH 363 52.3 52.8 32.8 405 14.5 14.8 9.2 453 31 31.9 19.8 491 55.8 55.5 34.5 577 21.4 27.4 17.0 662 43.9 42.0 26.1 663 43.1 42.2 26.2 664 42.3 42.2 26.2 932 40.3 40.2 25.0 2. Highway Motorcycles a. Highway Motorcycle Labeling Requirements On January 15, 2004, we finalized new emission standards for highway motorcycles ( 69 FR 2398, January 15, 2004). These new standards are implemented in two stages: a " Tier 1" that is effective in the 2006 through 2009 model years, and a " Tier 2" that takes effect starting with the 2010 model year. These standards are generally harmonized with California emission standards that take effect two years earlier. Under the new standards, Class III motorcycles must comply with a new HC+ NOx emission standard on a corporate average basis. This new flexibility allows manufacturers to market motorcycles that produce more pollution than the designated average standard as long as they are balanced out by sales of less polluting models such that the manufacturers' sales weighted corporate average remains below the standard. Averaging is also optionally allowed for Class I and II motorcycles. Technical Amendments 7 Since publishing the final rule, however, we realized that the labeling language for highway motorcycles is not helpful in the context of the new averaging standard. The current federal labeling language ( see 40 CFR 86.413 78) only requires that a motorcycle label indicate compliance with EPA standards for a given model year. This is all that is needed when there is no uncertainty regarding what the applicable emission standards are. In the context of the type of averaging program we finalized, however, the manufacturers essentially choose their own emission standard ( up to a cap) for each engine family. The manufacturer selected emission standard is known as a " Family Emission Limit," or FEL. For example, a manufacturer with two engine families might market one meeting a standard of 2.2 grams/ mile HC+ NOx and another one meeting a standard of 0.5 grams/ mile HC+ NOx. If these are equally selling engine families, then the manufacturer will meet the required Tier 1 average of 1.4 grams/ mile HC+ NOx.

In the case described above, a label showing only the model year will not provide adequate information regarding the applicable emission standard. Historically both EPA and ARB have required labels that identify the specific applicable FEL for vehicles certified under averaging programs. Therefore, we are amending the labeling requirements with two goals in mind. First, the label must provide sufficient information regarding the applicable emission standard and model year, as well as specific tune up information. Second, the label requirements should be aligned with ARB to the greatest degree possible to prevent a situation where the manufacturer has to apply two labels to a motorcycle to meet two different sets of requirements. The new labeling language in 40 CFR 86.413 2006 accomplishes both of these goals.

b. Highway Motorcycle Fuel Specifications In our final rule setting new emission standards for highway motorcycles ( 69 FR 2398, January 15, 2004) we updated the fuel specifications for motorcycle emission testing to be consistent with the fuel specifications finalized on February 10, 2000, as part of our " Tier 2 Motor Vehicle Emissions Standards and Gasoline Sulfur Control Requirements" ( 65 FR 6697, February 10, 2000). This was necessary to ensure that motorcycles are tested using fuels consistent with those available in the marketplace. We received no negative comments on making this change. It is necessary at this time to correct some errors that were made in updating the motorcycle test fuel specification. The specific corrections are:

" Changing the volume percent of aromatics from " 35 minimum" to " 35 maximum";

" Changing the phosphorous g/ liter specification from 0.005 g/ liter to 0.0013 g/ liter ( the alternative specification is 0.005 g/ U. S. gallon);

" Changing the sulfur weight percent from 0.08 maximum to 0.008 maximum; and " Changing the volatility test procedure from " ASTM D 3231" to " ASTM D 323."

c. Highway Motorcycles with engines below 50 cc We are adopting modified language in § 86.447 and § 86.448 to clarify various aspects of the provision allowing manufacturers to use products certified to nonroad emission standards instead of the standards for highway motorcycles under part 86. These changes include the following: Draft Technical Support Document 1 " Guidance Regarding Test Procedures for Heavy Duty On Highway and Non Road Engines, " December 3, 2002.

8  Clarify the requirement related to the number of engines that may be certified under nonroad programs.  Define the requirements related to generating and using emission credits with these engines.  Add language to better define the legal responsibilities for companies involved in producing motorcycles under this provision.

3. Heavy duty highway engines a. Miscellaneous changes We are adopting the lab testing and field testing specifications in part 1065 for heavy duty highway engines, including both diesel and Otto cycle engines. These procedures replace those currently published in 40 CFR part 86, subpart N. We are making this transition over several model years to fully migrate to part 1065, no later than model year 2010. Manufacturers do not need to conduct new testing if they are able to use carryover data, but any new testing for 2010 and later model years must be done using the part 1065 procedures. Migrating heavy duty highway engines to the part 1065 procedures allows us to include all the testing related improvements in the HD2007 rule, including those we have adopted through guidance. 1 In addition, part 1065 incorporates revisions based on updated procedures for sampling low concentrations of PM.

We are also clarifying that certain data requirements related to Supplemental Emission Testing are required only when engines are subject to Maximum Allowable Emission Limits.

We are making a minor adjustment to the phase in process for the HD2007 standards to allow manufacturers to make their compliance demonstration either on the basis of model years or calendar years. This increases the flexibility for manufacturers to define their model year without affecting their ability to show that they meet their phase in obligations. Because the phase in period is three years under either approach, we believe this adjustment does not harm the environmental objectives of the program.

b. Ramped modal testing Manufacturers must meet emission standards using a Supplemental Emission Test ( SET) starting in 2007. The SET measures emissions during 13 separate steady state modes of engine operation. For the laboratory based SET specified in § 86.1360 2007, we are adopting a requirement for the 13 mode test cycle to be run using a Ramped Modal Cycle ( RMC), which is discussed below. Manufacturers may switch to using RMC starting with the 2007 model year, Technical Amendments 9 with full use of the RMC required starting with the 2010 model year. The timing of the implementation of the RMC is paired with the overall migration of test procedures to part 1065.

An RMC operates at the same engine speeds and loads as in conventional discrete mode testing, but the modes are connected by gradual ramps in engine speed and/ or torque for a single, continuous emission sampling period. For the RMC we are adopting for the SET, the steady state modes are connected with twenty second linear speed transitions and linear torque transitions, which is consistent with the transition time currently allowed in § 86.1360 2007. The difference is that these transitions are sampled as part of the SET. That is, emission sampling starts at the beginning of an RMC and does not stop until its last mode is completed.

The RMC for the SET involves a different sequence of modes than is currently specified in § 86.1360 2007. For example, the first mode, which is engine idle, is split so that half the idle mode occurs at the beginning of the test and half occurs at the end of the test. This helps facilitate certain technical aspects of emission sampling. Instead of using weighting factors for each steady state mode, an RMC specifies different time durations for each mode. Time durations of the modes and transitions are proportioned to the established modal weighting factors in § 86.1360 2007. The information needed to run the SET as an RMC is given in the table below.

There are several advantages to running the SET as an RMC. First, we anticipate that manufacturers will use aftertreatment systems with discrete regeneration events to meet the emission standards for 2007 and later model year heavy duty diesel engines ( January 18, 2001, 66 FR 5002). Under the current procedure for conducting an SET in § 86.1360 2007, manufacturers sample emissions for an unspecified time duration near the end of each of thirteen individual twominute modes ( except idle, which is four minutes). The result is thirteen separate measurements that must be combined mathematically to yield an overall emission result in g/ hp hr. Because discrete aftertreatment regeneration events typically cause short but large increases in emissions, the current procedure in § 86.1360 2007 may not be repeatable   a regeneration event may or may not be sampled in a given mode. For sampling low concentrations of PM, this effect is exaggerated because sample times per mode may be as short as twenty seconds. Furthermore, without specific start and stop times for sampling each mode, an anticipated regeneration event may be intentionally or unintentionally included or excluded. With an RMC, this variability is removed by requiring emissions sampling for the entire forty minute cycle.

The RMC involves one emission measurement rather than 13 separate measurements for each mode. The more frequent, separate measurements can cause inaccuracy, especially at low emission levels, since dead volumes in the sampling system and delayed sampling can cause the system to assign one mode's emissions to a different mode. The RMC avoids this by collecting the total emissions into a single sample and dividing by the total work done over the test period. A single measurement also substantially reduces the resource burden to conduct testing. Draft Technical Support Document 10 The RMC enables the use of batch sampling systems such as bag samplers. This is an advantage at low emissions, because these sampling systems are capable of quantifying lower levels than continuous sampling systems.

The longer sampling period for RMC testing also increases the total collected mass of pollutants. This is especially significant because the heavy duty highway diesel PM standard, effective in 2007, approaches current PM microbalance quantification limits. Sampling for 40 minutes over the RMC increases the total collected PM by 500 percent compared with the conventional discrete mode procedure.

4. Importation of nonconforming highway engines and vehicles.

The Agency is adopting revisions to 40 CFR part 85, subpart P regarding the applicable emission standards for imported nonconforming highway vehicles and engines, including lightduty vehicles ( passenger cars), light duty trucks, heavy duty vehicles, heavy duty engines, and motorcycles. This change clarifies that these nonconforming vehicles and engines are required to meet the emission standards in effect when the vehicle or engine was originally produced, not the emission standards in effect when the vehicle or engine is modified. This approach is consistent with the requirements for light duty Independent Commercial Importers ( ICIs) which have been in effect since 1996 ( 61 FR 5842, February 14, 1996).

Most of the issues related to this final rule were previously addressed in the 1996 rule. An excerpt from that 1996 rule provides the a brief summary of the basis for this final rule. Section I. A of the 1996 final rule reads in part: As proposed, EPA is eliminating the requirement that nonconforming light duty vehicles and Light duty trucks imported pursuant to 40 CFR 85.1501 or 85.1509 meet the part 86 emission standards in effect at the time of modification. These vehicles, with a few exceptions, will instead be required to meet emission standards ( with applicable deterioration factors applied) that were in effect at the time of original vehicle production, using currently applicable testing procedures.

The specific standards applicable to these vehicles are contained in a new § 85.1515....

As discussed in the proposal ( Supplementary Document pp. 27 28, Docket No. A 89 20), when EPA promulgated the prior requirement to meet standards applicable at the time of modification, the Agency had no data or evidence suggesting that older vehicles could not be modified to meet current year emission standards.

Since that rulemaking, EPA has obtained evidence suggesting that many older vehicles cannot be modified to meet current year standards without extraordinary cost, which makes the conversion financially unfeasible for many owners of such vehicles. Today's rule would give owners of older vehicles a way to import their vehicles.

In addition, it would have been significantly more difficult and costly for importers to modify vehicles to comply with the current model year standards beginning in January, 1996, when the standards applicable to small volume manufacturers became substantially more stringent. EPA agrees with the statements submitted by ICIs after the close of the comment period that the expense of such modifications would have a serious deleterious effect on their businesses and would not justify the costs.

Although the intent of the 1996 rule was clear, we are adopting regulation changes to make the regulation language consistent with the intent of the 1996 rule. The 1996 final rule added 40 CFR Technical Amendments 11 85.1515, which provided a list of the emission standards applicable to imported light duty vehicles and light duty trucks based on the original production ( OP) year of the vehicle. Tables 1 and 2 in 40 CFR 85.1515 correctly indicate that the emission standards applicable for pre 1994 imported lightduty vehicles and light duty trucks are based on the original production year of the vehicle. Tables 1 and 2 also correctly indicate ( in a footnote) that 1994 and later imported light duty vehicles and lightduty trucks are required to meet the applicable emission standards as " Specified in 40 CFR part 86 for the OP year of the vehicle, per 85.1515( c)." However § 85.1515( c)( 1) incorrectly indicates that " Nonconforming motor vehicles or motor vehicle engines of 1994 OP model year and later conditionally imported pursuant to § 85.1505 or § 85.1509 shall meet all of the emission standards specified in 40 CFR part 86 for the model year in which the motor vehicle or motor vehicle engine is modified." ( emphasis added)

This ambiguity in the regulations was unfortunately not corrected after the 1996 rule changes became effective. Nor was it corrected when Interim non Tier 2 and Tier 2 requirements were adopted for import vehicles ( 65 FR 6698, February 10, 2000). Although the 2000 rulemaking did not intend to change the highway engine or vehicle importation process, the regulations continued to indicate that nonconforming motor vehicles and motor vehicle engines must meet the emission standards in the model year in which the motor vehicle or motor vehicle engine is modified; see 40 CFR 85.1515( c)( 2)( ii) through ( d). We have now received several petitions from light duty ICIs to correct the regulations to permit vehicles imported by ICIs to meet OP year standards.

In summary, for the reasons discussed in the provisions of 61 FR 5842, February 14, 1996, we are adopting changes to correct the regulations for nonconforming highway vehicles so they are consistent with the intent of the 1996 final rule. This final rule will require imported highway vehicles to meet the emission standards in effect the year the vehicle was originally produced, not the emission standards in effect in the year the vehicle or engine is modified. We are, however, concerned that ICI provisions which apply OP year standards could be used as a way to circumvent our Tier 2 light duty standards and our new more stringent motorcycle standards. Thus we are capping each ICI's annual production of vehicles meeting OP year standards when OP year standards are less stringent than the standards that apply during the year of modification. We are adopting a cap of a total of 50 light duty vehicles and trucks and 50 motorcycles. This does not impact the number of vehicles an ICI may produce that are certified to the standards that apply during the year of modification.

While we have never had an ICI for highway HDEs, we are clarifying that the applicable standards for HDEs imported by an ICI are also those of the year of original production. For HDEs, we are adopting an annual cap of five on an ICI's production of engines certified to OP year standards that are less stringent than those that apply during the year of modification. This will address the possibility that ICIs could provide an avenue by which truck purchasers could avoid the additional costs of new trucks with engines meeting aftertreatment based engine standards. We are adopting a similar amendment for nonroad diesel engines, as described elsewhere in this document.

We believe it is appropriate to have different caps on the quantity of vehicles and engines that can be certified to OP year standards, where OP year standards are less stringent than those that apply during the year of modification. The sales of light duty vehicles and trucks are many times greater Draft Technical Support Document 12 than those of heavy duty highway engines and nonroad diesel engines combined. Further, we believe that the caps for light duty vehicles light duty trucks, and motorcycles should be larger than those for nonroad and highway engines to accommodate an industry that has grown up around the light duty ICI program. The light duty and motorcycle ICIs can provide additional consumer choice and also provide an avenue by which ( for a price) someone who has lived outside of the United States, including returning U. S. military personnel, can bring a used personal vehicle they acquired overseas into conformity with U. S. emission requirements. No such ICI industry exists for highway or nonroad engines. Where OP year standards are applied to highway and nonroad engines, we are adopting a lower cap. We believe it will be appropriate to limit the activities of engine ICIs, when previous model year engines are involved, to those specialized trucks or pieces of equipment for which demand is so low that normal certification didn't occur or might not occur. While we want to provide an opportunity for the importation of highly specialized vehicles or equipment that might otherwise be unavailable in the United States, we do not want to develop an industry that simply provides older equipment that will most likely be built with engines meeting significantly less stringent standards.

III. Maximum test speed In the proposal, we requested comment on an issue related to defining maximum test speed for heavy duty highway engines. Because maximum test speed in part 1065 differs from rated speed in part 86, we were considering a change to adjust how maximum test speed is applied to heavy duty highway diesel engines. These speeds are used to transform normalized speeds into reference speeds for emission testing. Specifically, we requested comment on whether or not we should specify that maximum test speed should be equal to the 112 % speed from the duty cycle for this particular sequence. As explained below, we have determined that is appropriate to set the 112 % speed from the duty cycle equal to the maximum test speed specified in part 1065, and have added a new section to do this in § 86.1333 2010.

For heavy duty highway diesel engines, we require emission testing over the sequence speeds and torques in 40 CFR part 86, Appendix I, paragraph ( f)( 2), where rated speed has been represented by 100 % speed ( 40 CFR 86.1333 90( g)) and the maximum engine speed that occurs over the test cycle is 112 % of rated speed. Part 1065 bases the denormalized duty cycles on " maximum test speed," which is intended to roughly represent the highest non idle speed at which the engine operates in use, without regard to maximum engine power.

Rated speed is generally declared by the manufacturer and must be at least as high as the lowest speed at which an engine generates 98 % maximum power. As stated in 40 CFR 86.1333 90( g), "[ Rated speed] is generally intended to represent the rpm at which maximum brake horsepower occurs." In contrast, maximum test speed in part 1065 is the speed that lies farthest from the zerospeed zero power point on an engine power map that is normalized to 100 % power and 100 % speed at that power. For engines with low torque rise, maximum test speed is at maximum power. So for these engines, there is little difference between maximum test speed and rated speed. ( Note that torque rise means an increase in maximum torque from maximum power to maximum torque.) We have observed, however, that all modern heavy duty highway diesel engines have high torque Technical Amendments 13 rise, which causes maximum test speed to be ( 15 to 35) % higher than rated speed. For these engines, denormalizing the duty cycle based on maximum test speed is necessary in order to test these engines over their complete operating ranges.

The regulations being adopted ( § 86.1333 2010) specify that heavy duty highway engine manufacturers determine the maximum test speed as described in Part 1065 and set this speed equal to the highest speed in the highway transient cycle, which is the 112 % speed. All other speeds will be normalized relative to this speed:

( ) Actualrpm rpm MaxTestSpeed CurbIdleSpeed CurbIdleSpeed =     + %

112 Note that the new § 86.1333 2010 is shorter than the older § 86.1333 90. Many of the provisions in the old § 86.1333 90, such as those related to mapping the engine, idle speed enhancements devices, and transmissions are no longer necessary since they are now addressed in part 1065. Draft Technical Support Document 14 Chapter 2: Land based nonroad diesel engines ( 40 CFR parts 89 and 1039)

I. Summary and Analysis of Comments We received comments on many of the proposed provisions, with additional comments raising new issues for us to consider. The following discussion presents a summary and analysis of all these comments. Section II identifies the changes included in the proposal, with a brief rationale for each of those changes.

Issue Response 89.1   Applicability: EMA pointed out that the regulations in part 89 don't have a provision corresponding to § 1048.620 to allow certain Large SI engines to certify to the standards in part 89. We agree with this comment and have changed the regulations accordingly.

89.2   Definitions: EMA stated a presumption that nonintegrated auxiliary engines would be considered landbased engines subject to the emission standards in 40 CFR part 89. We agree with this position, as described in Chapter 3. The definition of " marine engine," as proposed and as adopted, is consistent with this position.

89.130   Rebuilding: EMA noted that the rebuilding requirements currently do not apply to Tier 1 engines over 130 kW. We agree with the comment, except that the current requirements do not apply to Tier 1 engines at or above 37 kW. The regulations have been modified accordingly.

89.114: Southwest Research Institute and EMA requested clarification that updating the test procedure references from part 86 to part 1065 aren't intended to require lab upgrades. The references introduced in part 89 are intended only to facilitate the migration of specified test procedures for heavy duty highway engines from part 86, subpart N, to part 1065. Most of these references point to background information or optional systems. There is no intent to require new equipment or revised procedures as a result of these changed references. To ensure that this is the case, we are adding a provisions stating that any of the references to part 1065 may be taken from part 86 as a pre approved alternative procedure.

89.611: EMA recommended changing the exemption allowing an owner to import a nonroad engine solely for the purpose of repair or alteration. The change would align with the similar provisions for locomotive and marine diesel engines. This would generally allow engine operation for such engines as needed for transportation to facilitate repairs. Nonroad equipment generally does not need to travel under its own power for long distances to arrive at a repair facility. However, we agree that the equipment may need to be operated, for example, to drive up onto a trailer. We don't believe expanding the exemption will lead companies to improperly use engines under this provision, and have changed the regulation accordingly.

89.913   Engine dressing: EMA generally supports the expanded provision allowing manufacturers to use certified highway engines in nonroad applications without certifying them separately to nonroad emission standards. However, EMA believes a supplemental label should not be required. We are finalizing these provisions as proposed. As we have concluded in other programs with the engine dressing provisions, we believe it is important for engines that are modified and used in other applications to have a label identifying the company that made the conversion. The label also identifies the proper certification status of the engine for marine installations. Technical Amendments 15 89.1003   Replacement engines: EMA objects to the change that would require different labels for replacement engines that must meet standards that applied at the time the replaced engine was built, since they would need to make separate labels for each power rating. We are specifying label language for uncontrolled engines that is identical to the current regulation, which will prevent the need to revise labels that may already be designed and printed. For replacing certified engines, we believe it is important for the label to identify the fact that the replacement engine is subject to certain emission control requirements, and are therefore specifying the same label language as we specify in part 1068 for this situation, which we have modified to address EMA's concerns ( see Chapter 9). Separate labels are not needed for each power rating.

89.1009   branding: EMA supports the change to allow branding for Tier 2 and Tier 3 engines, but suggested using a reference to 40 CFR 1039.640 instead of repeating regulatory text. We agree with the comment and have amended the regulation in § 89.1009 accordingly.

89.1009   branding: Volvo requested that we clarify that the required contractual agreement include a legally binding arrangements without a formal contract. They also suggested that we allow them to use multiple trademarks. We agree that the requirement for a contractual agreement is general, such that any legally binding business arrangement meets the provisions of this section. The regulations specify that the manufacturer may put another company's trademark on each label. There is nothing to restrict the manufacturer from putting different trademarks on different labels, as long as there is a contractual agreement with each company represented by the different trademarks.

1039.240   Deterioration factors: EMA noted that and should be changed to or. We agree with the comment and have changed the regulations accordingly.

1039.625   Equipment manufacturer flexibility: EMA noted a typographical error in Table 1. We agree with the comment and have changed the regulations accordingly.

1039.705   ABT calculations: EMA objected to our proposed provision to limit manufacturers' ability to include in ABT calculations those engines sold in states with separate emission standards. California ARB has adopted our Tier 4 standards without any adjustments that would affect the stringency of standards. They also are not adopting any provisions that would require a separate calculation of ABT credits for engines sold in California. The proposed provision is therefore moot for the foreseeable future. If either of these factors change, we would intend to propose a regulatory provision requiring manufacturers to exclude California engines from their federal ABT calculations.

1039.101   Useful life: In response to our request for comment, EMA recommended keeping the provision to demonstrate shortened useful life. They further recommended adopting the analogous regulatory language for Large SI engines in part 1048. We continue to believe that the provisions for a shorter useful life are less likely to be needed than they are for other programs; however, we believe it is appropriate to keep the regulatory option in place. Harmonizing these provisions across programs is also appropriate, so we have changed the regulatory language in § 1039.101 to reflect the current provisions in part 1048.

We requested comment on the need to adopt provisions to address re importation of certified engines that had gone into service outside the United States where the engine may have used fuel that compromised the effectiveness of the engine's emission control system. EMA argued that this would be a minor problem and that the suggested fixes would be impractical and costly. We will continue to monitor this situation and will consider regulatory provisions in the future if that is appropriate. Draft Technical Support Document 16 1039.501   Laboratory test systems: EMA commented that part 1065 already provides for the use of partialflow sampling systems for transient PM measurements in the laboratory only after an equivalence demonstration, and that the standard setting part should not impose any further restriction. We agree with this comment and have taken out the specific reference to partial flow sampling in § 1039.501.

89.614: Manufacturers have expressed a need for an exemption that would allow them to import engines that are covered by a certificate, but are not yet in their certified configuration. Final assembly is planned inside the United States. We are including in the final rule a cross reference in part 89 to 40 CFR 1068.330, which was designed for this situation.

89.915: Caterpillar commented that we should allow them to complete their engine assembly at different facilities, including some steps performed by another company under contract. We have added a new provision allowing manufacturers to assemble engines in different locations, provided that they maintain control of the engines at all times, and inform us that they are using this exemption. We may require that manufacturers take certain steps to ensure that engines end up in their certified configuration.

In addition to these comments, we have identified a variety of additional minor changes and adjustments to include in the final rule, such as changes to correct organizational and nomenclature errors. In addition, these changes include:

" Revising § 89.603 to clarify that the sales limit for ICI's importing engines certified to standards based on the original production year are based on a corporate wide basis, not a per family basis. See the further discussion in Section II below.

" Removing § 1039.260, since this section has been replaced by § 1068.260.

" Adding a footnote to the table defining the transient duty cycle to clarify that percent torque is relative to maximum torque at the commanded engine speed.

" As described in Chapter 1, we identified a need to clarify a provisions related to the migration to the new test procedures in part 1065. We intend to upgrade to the more accurate test procedures for any confirmatory testing. For some provisions in part 1065, however, this would not be appropriate if manufacturers have not yet based their testing on the part 1065 procedures. We now specify that our testing will use the manufacturer's selected procedures for mapping engines, generating duty cycles, and applying cycle validation criteria. For any other parameters, EPA may conduct testing using either of the specified procedures.

" As described in the preamble, we believe it is appropriate in response to a comment from another category to remove the requirement in § 1039.120 to apply the emission related warranty to components that are covered by a service contract purchased by the consumer, where the emission related warranty was required to correspond with the service contract ( or extended warranty).

II. Summary of Rulemaking Changes We recently adopted a new tier of emission standards for nonroad diesel engines, codifying these standards in 40 CFR part 1039. That rulemaking led us to make several regulatory changes to the existing tiers of standards for these engines in 40 CFR part 89. In some cases, we discovered the Technical Amendments 17 need for changes after publishing the proposed rule, but we did not make those changes to part 89 in the final rule out of concern that the public had not had an opportunity for comment. We are adopting these changes in this final rule. Similarly, we are adopting some adjustments to part 1039, based on information that surfaced late in, or shortly after, that rulemaking. The following changes in part 89 and part 1039 were in the proposed rulemaking, with any appropriate adjustments as noted above.

" § 89.102: Clarify that equipment manufacturers using allowances under this section may use lower emitting engines than we currently require.

" § 89.110 and § 89.1009: Allow manufacturers to identify a different company's name and trademark on the emission control information label, with additional provisions to ensure that operators take certain steps to ensure that operators have the full benefit of the emissionrelated warranty.

" § 89.130: Refer to the nearly identical provisions for rebuilding engines in § 1068.120. These requirements do not apply to Tier 1 engines at or above 37 kW.

" § 89.410: Allow manufacturers to use ramped modal testing, as specified for engines that must meet the Tier 4 standards.

" Appendix A to subpart F: Correct the ranges of values to address an unintentional gap for sales volumes between 300 and 500.

" § § 89.913 and 89.914: Allow engine and equipment manufacturers to use the engine dressing provisions in § § 1039.605 and 1039.610.

" § 89.1003: Clarify that engine manufacturers may ensure that the replaced engine is destroyed instead of taking possession of it; add a new label requirement for replacement engines that are allowed to meet a less stringent set of standards that are in effect when the replacement engine is built ( to address the case where the engine being replaced was subject to emission standards less stringent than the current standards).

" § 89.1003: Clarify that violating the requirements to rebuild an engine to its original configuration is considered tampering with respect to the applicable penalties.

" § 89.1 and § 1039.5: Allow manufacturers to include auxiliary marine engines in an engine family certified under part 89 or 1039, subject to certain limitations.

" § 1039.1: Clarify that residence time limits do not apply to engines used in stationary applications if they have been certified to nonroad emission standards.

" § 1039.104, 1039.625, and 1039.655: Change cross reference from § 1039.260 to § 1068.265.

" § 1039.125: Clarify that a manufacturer's obligation to pay for scheduled maintenance under certain situations is limited to the useful life of the engine.

" § 1039.225: Include a modified FEL as the basis for a change to the application for certification, consistent with current practice.

" § 1039.240: Adding section references that were inadvertently omitted.

" § 1039.510: Remove provisions that are now covered by part 1065.

" § 1039.605 and § 1039.610: Clarify the ABT responsibilities relative to engines or vehicles that are certified under the motor vehicle program and used in nonroad applications.

" § 1039.740: Correct the provisions allowing the use of emission credits from previous tiers of emission standards to include an item that was inadvertently omitted from the Tier 4 final rule, as described in the preamble to that final rule. Draft Technical Support Document 18 " § 1039.801: Update various definitions to reflect the change to move the full text of these definitions to part 1068.

In addition, we are clarifying the standards applicable to Independent Commercial Importers under Part 89 Subpart G, which are also referenced in § 1039.660. The applicable standards for nonroad diesel engines imported by ICIs are those that applied during the year of the original production of the engine. The current regulations were written when Part 89 was new and there was only one tier of standards. At that time, there were only two categories of engines   those produced before the date of applicable standards and those produced after. Engines produced before any applicable standards are clearly unregulated under the Act and may be imported without any modification ( although that does not mean they can be freely installed in any piece of equipment). For those that were produced after the effective date of applicable standards, there was no question as to which set of standards applied ( what we now call Tier 1). Unfortunately, no amendments were made to the ICI provisions as first Tier 2, then Tier 3 and finally Tier 4 standards were promulgated.

In Chapter 1, we explain that we are correcting text in the ICI provisions applicable to motor vehicles and motor vehicle engines to make clear that the applicable standards for those vehicles and engines are those of the original production year. There we set forth, from a 1996 final rule, that " many older vehicles cannot be modified to meet current year standards without extraordinary cost, which makes the conversion financially unfeasible for many owners of such vehicles." Particularly with the stringency of the Tier 4 standards, we believe that this statement also applies to past model year nonroad engines that might be imported by ICIs. Thus, we believe that the appropriate standards are those from the original year of production. However, as a precaution against the ICI program being used to circumvent new standards for large numbers of motor vehicles and motor vehicle engines, we are capping each ICI's usage of the program at a total of 50 light duty vehicles and trucks, 50 motorcycles, and 5 motor vehicle engines in cases where the year of production standards are less stringent than the standards that apply during the year of modification.

We have issued only three certificates of conformity for nonroad engine ICIs in the history of our nonroad regulations, and each of those ICIs imported only a small number of engines. There are currently no ICIs with valid nonroad engine certificates. Additionally, the regulations generally require that, after certification, every third engine imported by an ICI be tested on an engine dynamometer under the federal test procedure ( FTP). For these reasons, we do not believe that specifying original production year standards for these engines will lead to significant importation of older nonroad equipment or engines in the Tier 4 timeframe as a way to avoid incremental costs associated with Tier 4 engines. Still, as a precaution, we are capping the number of nonroad diesel engines that may be imported by an ICI in a given model year at 5 per year where the original production year standards are less stringent than those that apply during the year of modification. We believe this cap eliminates any concern that the goals of the Tier 4 program might be jeopardized, without impacting the current activities of any ICI.. We believe it is appropriate to take this action to provide the opportunity for ICIs to participate in the U. S. market. They have historically been small businesses and their existence may help to increase equipment choices available in the U. S. We believe, for example, that ICIs may at some point provide a mechanism for the importation of unique and highly specialized machines where volumes are so small that the original engine manufacturer Technical Amendments 19 elects not to certify, so that the equipment might not be otherwise available in the U. S. We intend to monitor the usage of the ICI provisions when aftertreatment based standards take effect for nonroad engines. If we believe that the ICI provisions are being misused, or adversely impacting air quality in a particular location, we will consider addressing the problem through future rulemaking. Draft Technical Support Document 2Annex VI has been ratified by the required number of countries ( 15 countries representing at least 50 percent of the world's merchant shipping tonnage) and will enter into force May 20, 2005. The countries that have ratified are: Azerbaijan, Bahamas, Bangladesh, Barbados, Cyprus, Denmark, Germany, Greece, Liberia, Marshall Islands, Norway, Panama, Samoa, Singapore, Spain, Sweden, United Kingdom, and Vanuatu, representing about 59.9 percent of the world's merchant shipping tonnage. More information about this Convention can be found on our website, www. epa. gov/ otaq/ marine. htm and on the International Maritime Organization website, www. imo. org.

20 Chapter 3: Marine diesel engines ( 40 CFR part 94)

This chapter contains an explanation of several changes and clarifications to our marine diesel engine emission control program. We are adding a definition of amphibious vehicle and clarifying the meaning of auxiliary marine engine. We are also clarifying the application of certain certification flexibility provisions. These changes and clarifications are necessary to address issues that were raised by manufacturers and vessel owners as they implement this program. We received substantive comments on several of these changes, which are noted below along with our responses. The last section of this chapter contains a brief summary of comments on minor aspects of the program.

Note that the revisions described below do not affect the requirements contained in Annex VI, Air Pollution, to the International Convention on the Prevention of Pollution from Ships, 1978, as modified by the protocol of 1978 relating thereto. Engine manufacturers, boat builders, and vessel operators will be subject to those requirements once the Annex goes into force. 2 3.1 Definition of Amphibious Vehicle ( 94.2)

3.1.1 Background In our original nonroad diesel and marine engine emission control programs, we adopted a definition of marine vessel that is consistent with the General Provisions of 1 U. S. C. 3. ( see 40 CFR 89.2, 91.2, and 94.2). According to that definition, " the word ` vessel' includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water."

In our recreational vehicle rule ( 67 FR 68242, November 8, 2002), we adopted a different definition of marine vessel for our standards for spark ignition nonroad engines ( 40 CFR Parts 90 and 1048). According to this definition, a marine vessel is " a vehicle that is capable of operation in water but is not capable of operation out of water." This definition also specifies that " amphibious vehicles are not marine vessels." ( 40 CFR 90.2 and 40 CFR 1048.801). This modification was intended to address certain kinds of all terrain vehicles that can be used on both land and water. These include the Argo and the Max all terrain vehicles, which are offroad utility vehicles that can also be used in water. The body design of these nonroad vehicles allows them to float. They are propelled through Technical Amendments 3According to the U. S. Coast Guard, the three main types of vehicles used in the amphibious industry today were originally designed as military transports and are known as DUKWs ( D= 1942; U= Utility; K= Front Wheel Drive; and W= Two rear driving axels), LARCs ( Lighter, Amphibious, Resupply, Cargo), and ALVIS STALWARTs. DUKWs were originally manufactured in the early 1940s for the U. S. Army, while LARCs were manufactured for the Navy. STALWARTs were manufactured for the British Army in the late 1960s. See Navigation and Vessel Inspection Circular No. 1 01, Inspection of Amphibious Passenger Carrying Vehicles, COMDTPUB P16700.4 NVIC 1 01, 11 December 2000.

21 the water by their tires, which can act as linear propellers, or by a jet or other type of propeller. These vehicles are designed to carry up to six passengers or two passengers plus a payload and are often used as utility or research vehicles in wetlands and swampy areas. Some are also marketed for recreational fishing in such areas. Because these vehicles are primary intended for use on land, however, we determined that it is appropriate that they be certified to the applicable ATV or offroad utility vehicle standards.

We have since learned that there are similar amphibious vehicles that use compression ignition engines. These include small vehicles like the Supacat as well as larger vehicles like the DUKW, LARC, and ALVIS STALWART. 3 The existence of these land/ sea vehicles leads us to reconsider the definition of marine vessel in our other nonroad programs with the goal of treating such vessels the same across our programs and to have a uniform definition.

3.1.2 Definition of Amphibious Vehicle For the purpose of our mobile source emission control program, we are defining amphibious vehicle as a vehicle with two or more wheels or with tracks and which is designed to be operated primarily on land but is also capable of operating in water. Amphibious vehicles are not considered marine vessels and are instead subject to the emission standards that apply to the land based equivalent of the vehicle. We believe this approach is appropriate, because it subjects all vehicles of a similar nature to the same set of emission standards. Otherwise, a manufacturer who makes available a marine capable version of a land based vehicle would have to certify the vehicle to two different standards.

We are adding this definition to our regulations for land based compression ignition nonroad engines ( 40 CFR 89), spark ignition marine engines ( 40 CFR 91), compression ignition marine engines ( 40 CFR 94), spark ignition nonroad engine below 19 kW ( 40 CFR 90), spark ignition nonroad engine above 19 kW ( 40 CFR 1048), and recreational vehicles ( 40 CFR 1051). We are also making the necessary changes to the definition of marine vessel in those regulations.

3.1.3 Applicable Emission Standards Amphibious vehicles can be street legal, such as excursion vehicles for tourism purposes ( e. g., TrolleyBoats) or designed only for off highway use ( e. g., Argo, Max, DUKW). The applicable emission standards are those that apply to the land based application. This means that any vehicle Draft Technical Support Document 22 that meets our definition of " motor vehicle" in 85.1703( a) must meet the highway emission standards that would otherwise be applicable to the vehicle if it were not capable of operating in water. So, for example, a street legal TrolleyBoat must have an engine that meets our standards for heavy duty highway diesel engines.

If an amphibious vehicle is not street legal, i. e., it is designed only for off highway use, then it must meet the emission standards in effect for a similar nonroad vehicle. If it has a compressionignition engine ( e. g., a DUKW), it must be certified to meet our nonroad diesel engine standards. If it has a spark ignition engine, it must be certified to meet the applicable nonroad standards: all terrain vehicle standards, small SI (< 19 kW) standards, or large (> 19 kW) SI standards ( see table X. 1 1).

Table 3.1 1 Application of Nonroad to Amphibious Vehicles Cycle Terrain Vehicle Characteristics Applicable Standards Spark ignition Rough Saddle and handlebar ATV Rough No saddle, < 25 mph Small SI Rough No saddle, > 25 mph ATV Non rough < 19 kW Small SI Non rough > 19 kW Large SI Compression Ignition Rough or non rough Any Nonroad CI The new definition of amphibious vehicle and revision of our definition of marine vessel are intended solely for the purpose of our national emission control programs. These definitions do not affect in any way how these vehicles are treated by the U. S. Coast Guard or any other federal, state, or local agency that may have requirements for the safety, registration, or operation of such vehicles. It also does not affect the requirements for amphibious vessels under MARPOL Annex VI. Specifically, after the Annex comes into force, amphibious vessels with diesel engines above 130 kW that are built or undergo a major conversion on or after January 1, 2000, will be required to have MARPOL compliant engines as demonstrated by an Engine International Air Pollution Prevention ( EIAPP) certificate and related documentation ( Technical File and Record Book of Engine Parameters). In addition, vessels above 400 gross tons will be required to have an International Air Pollution Prevention ( IAPP) certificate. These requirements are described in our rulemaking for marine diesel engines at or above 30 liters per cylinder, which is available on our website, < www. epa. gov/ otaq/ marine. htm>. Technical Amendments 23 3.1.4 Hovercraft We have learned that there are small hydrofoils ( hovercraft) that can also operate on land as well as water. One example is the Griffon Hovercraft, which includes models weighing from 825 to 2,200 lbs, with the ability to carry 5 to 80 passengers.

A hovercraft is not considered an amphibious vehicle under the above definition because it has neither wheels nor tracks. Instead, it is considered a marine vessel and its engines are subject to our marine engine emission control program. To meet these requirements, a hovercraft manufacturer may either purchase and install a certified marine engine or take advantage of our marine engine dresser provision. This provision allows an engine manufacturer, post manufacturer marinizer, or boat builder to install a certified land based nonroad or highway engine on a marine vessel as long as the engine has a valid certificate of conformity, it is properly labeled, and no changes are made to the engine that could reasonably be expected to increase its emissions. There are certain conditions associated with this flexibility: the original engine label must be clearly visible, a supplemental label must be affixed to the engine identifying it as a dressed engine, and certain information must be submitted to EPA with respect to the engine and the identity of the manufacturer. Section 3.4, below, has additional information about our engine dresser program.

3.2 Auxiliary Engines ( 94.2)

3.2.1 Background In our December 1999 marine diesel engine rulemaking, we adopted a definition of " marine engine" that is based on whether an engine is installed or intended to be installed on a marine vessel ( 40 CFR 94.2). Some manufacturers have requested further interpretation of the phrase " installed or intended to be installed" as used in the definition to determine whether their engines are subject to emission standards for land based or marine engines.

The definition adopted in 1999 states:

Marine engine means an engine that is installed or intended to be installed on a marine vessel. This definition does not include portable auxiliary engines for which the fueling, cooling and exhaust systems are not integral parts of the vessel. ( 64 FR 73334)

In our rule, we explained some background we considered in adopting this definition:

In the final land based nonroad engine rule, we determined that a portable auxiliary engine used onboard a marine vessel should not be considered a marine engine ( October 23, 1998, 63 FR 56967). Instead, a portable auxiliary engine is considered to be a land based engine subject to the requirements of 40 CFR Part 89. To distinguish a marine auxiliary engine installed on a marine vessel from a land based portable auxiliary engine used on a marine vessel, we specified in that rulemaking that an auxiliary engine is installed on a marine vessel if its fuel, cooling, or exhaust systems are an integral part of the vessel. These auxiliary engines are therefore not fundamentally different than land based engines and we regulate them under 40 CFR Part 89. ( 64 FR 73302, discussing EPA's determination in " Summary and Analysis of Comments: Control of Emissions from Nonroad Diesel Engines," August 1998, p. 92) Draft Technical Support Document 24 The regulatory text and explanation in the final rule permit some narrow amount of portability for an engine to be considered " installed or to be installed on a marine vessel" and thus a marine engine. However, this portability is limited to engines that have systems that are integral to the vessel. If the engine does not have systems that are integral to the vessel, it will be considered a land based nonroad engine.

3.2.2 Clarification of " portable"

Since we finalized the above definition, we learned that there continues to be confusion about what is meant by " portable" in our definition of marine engine. At least one engine manufacturer sought further clarification about whether, for example, an engine that is attached to a barge would be considered portable.

EPA will not consider an engine " installed" if it can easily be removed from a vessel to provide power to another application without modifications. In this case, a pump engine that is bolted onto the main deck of a boat or barge will not be considered installed if it can be readily disconnected from the pump machinery and lifted off the vessel to power a pump ( or other device) elsewhere. Such an engine operates more as a stand alone auxiliary engine than a marine engine. In contrast, EPA will consider an engine installed if it is mounted in such a way that requires significant effort to remove the engine ( i. e., there is more to the mounting than a few brackets or straps).

The one exception to this " removability" interpretation of the regulation is for those engines that can easily be removed from a vessel, but whose fueling, cooling or exhaust systems are integral to the vessel. Such an engine, though conceptually portable because of its relationship to the vessel, cannot operate without a connection to the vessel. For example, if a portable engine is designed with a quick connect access to the onboard fuel supply or with other hardware that allows the engine to tie into the vessel's cooling or exhaust systems, EPA will consider such an engine installed. Even though it is portable, such an engine generally cannot operate without the fueling or other systems available on the vessel. In other words, it cannot be operated once it is removed from the vessel.

One commenter requested further clarification. This commenter assumed that a " non integrated" auxiliary engine such as a generator set or air compressor that sits on the deck of a marine vessel would be considered to be subject to Part 89. According to the above discussion this would be correct only if none of the criteria that make an engine a marine diesel auxiliary engine are met. As explained above, a marine diesel engine is characterized by how it is installed or intended to be installed on a vessel. The fact that a generator set or air compressor " sits on the deck of a marine vessel" is not in and of itself enough to ensure that the engine is covered by Part 89. What matters is if its fuel, cooling, exhaust or other systems are an integral part of the vessel, i. e., whether the engine can be removed from a vessel to provide power to another application without modification. If an engine can be removed in this way, it operates more as a stand alone auxiliary engine than a marine engine. If the engine is mounted in such a way that would require significant effort to remove the engine ( i. e., there is more to the mounting than a few brackets or straps) it is considered a marine engine. Technical Amendments 25 3.2.3 Regulatory revision The clarification described in this section does not require further regulatory text in 40 CFR 94. However, we are adding this definition to our other nonroad programs, including our land based compression ignition nonroad engine regulations ( 40 CFR 89), our spark ignition marine engine regulations ( 40 CFR 91), our spark ignition nonroad engine < 19 kW regulations ( 40 CFR 90), and our spark ignition nonroad engine > 19 kW regulations ( 40 CFR 1048).

3.3 Certification of Marine Auxiliary Engines ( 94.912)

3.3.1 Background As explained above, an auxiliary engine would be considered a marine auxiliary engine if ( 1) it is tied to the ship's fuel, cooling, or exhaust systems, or ( 2) it is mounted on the vessel in such a way that requires significant effort to remove it.

The general industry practice is to produce marine engines by modifying land based engines so they are suitable for marine application. The most important changes usually relate to tuning the power characteristics for marine propulsion, adapting the engine for use with water based cooling, and changing various parts for improved corrosion resistance or compliance with Coast Guard requirements. In these cases, the changes made to the engine may affect its emission characteristics and therefore certification to the marine standards is required. However, manufacturers have also informed us that they sometimes sell engines for marine auxiliary service that are identical to landbased engines. These engines are not modified for use on marine vessels; however, they fall under the definition of marine engine because they are installed on the vessel in such as way that they are not easily removed. To avoid the regulatory and compliance burdens associated with certifying identical auxiliary engines under two separate programs, land based and marine, we are adopting provisions to allow streamlined certification.

3.3.2 Streamlined certification for marine auxiliary engines Under the streamline certification approach for marine auxiliary engines, manufacturers may include auxiliary marine diesel engines in a land based engine family certified under 40 CFR part 89 or 1039, with the following conditions:

" The marine engine must be identical in all material respects to a land based engine covered by a valid certificate of conformity;

" The marine engine may not be used as a propulsion engine;

" The engine must have the emission control information label required under the land based program, including additional information to identify the engine as certified also for marine auxiliary purposes;

" The number of marine engines in the engine family must be smaller than the number of landbased engines; and Draft Technical Support Document 4MARPOL Annex VI is Annex VI, Air Pollution, to the International Convention on the Prevention of Pollution from Ships, 1978, as modified by the protocol of 1978 relating thereto. More information about this Convention can be found on our website, www. epa. gov/ otaq/ marine. htm and on the International Maritime Organization website, www. imo. org.

26 " The application for certification must identify the possibility of marine auxiliary installations, including projected sales of marine engines; if the projected marine sales are substantial, we may ask for the year end report of production volumes to include actual marine auxiliary engine sales.

The requirement that the marine engine be identical in all material respect to a land based engine covered by a valid certificate of conformity means that there must be no changes to the engine for use in the marine application. There can be no changes to the fuel system, the turbocharger, the cooling system requirements or any other characteristic that may affect emissions. The engine must be able to be used interchangeably in a marine or land based application without modification.

This streamlined certification for auxiliary engines is intended solely for the purpose of our national emission control programs. This streamlined certification does not affect in any way how these engines are treated by the U. S. Coast Guard or any other federal, state, or local agency that may have requirements for the safety, registration, or other operation of such engines. It also does not affect the requirements for auxiliary engines under MARPOL Annex VI. 4 Specifically, after the Annex comes into force, any diesel engine above 130 kW installed on a marine vessel constructed on or after January 1, 2000, and any engine above 130 kW that undergoes a substantial conversion on or after January 1, 2000, will be required to be MARPOL compliant as demonstrated by an Engine International Air Pollution Prevention ( EIAPP) certificate and related documentation ( Technical File and Record Book of Engine Parameters). Therefore, engine manufacturers who take advantage of the streamlined certification for auxiliary engines and who may sell those engines for use on vessels subject to MARPOL Annex VI should make sure they obtain the necessary MARPOL Annex VI certification when they apply for certification of their land based family. The MARPOL Annex VI requirements are described in our rulemaking for marine diesel engines at or above 30 liters per cylinder, which is available on our website, < www. epa. gov/ otaq/ marine. htm>.

We received two comments on this provision, recommending that the requirements for additional information on the engine label and sales projections be deleted. We disagree with the recommendation to delete the requirement that the emission control label identify the engine as being certified for marine auxiliary applications. In general, any marine diesel engine installed on a vessel must be compliant with the marine diesel emission program. This is demonstrated by the manufacturer's label. Because these auxiliary engines are still marine engines, they must also be labeled as such. Without this label, the vessel manufacturer or owner will not know if they are purchasing and installing an auxiliary engine that is certified for use in a marine application. In addition, the absence of a label may lead vessel manufacturers and owners to form the mistaken impression that any nonroad auxiliary engine is suitable for installation on a marine vessel. The label will indicate that the engine is either certified under Part 94 or it falls under the streamlined Technical Amendments 27 certification program and the engine manufacturer has met the requirements set out in 94.912. Otherwise, there would be no mechanism to determine if an engine certified under Part 89 has met the requirements. The people who are intended to be informed by this information are boat builders, vessel owners, and various inspection personnel. Recognizing that the engine manufacturer may not know when the engine is produced if it will be used in a marine application, the entity exercising the exemption will be the entity required to attach this label to the engine.

We also do not agree with the recommendation to delete the request for sales projections to determine that the marine auxiliary engines do not represent more than 50 percent of the annual sales of an engine family. The commenter wrote that the engine manufacturers may not be able to predict at the time of certification the number of engines sold into marine applications. We do not find this reason compelling and continue to believe that engine manufacturers should be able to reasonably estimate, based on past sales or their internal sales projections, the proportion of an engine family's sales that are expected to go into marine applications. It should be remembered that this program is intended only for those marine auxiliary engines that are exactly identical to their land based counterparts ( no changes to any aspect of the engine for installation on a marine vessel). We do not believe there will be substantial numbers of engines that will meet the requirements of this program, since most engines that are installed on a vessel are modified in some way. Finally, regardless of EPA's program, engine manufacturers will need to account for at least those engines that qualify that are above 130 kW, since those engines may still need to be certified to the NOx standards of MARPOL Annex VI.

3.4 Engine Dressing Provisions ( 94.907)

3.4.1 Background Some companies produce marine engines by modifying new, land based engines and modifying for installation on a marine vessel. This can be done in a way that does not affect emissions. For example, the modifications may consist of adding a generator or reduction gears for propulsion. It can also involve installing a new marine cooling system that meets original manufacturer specifications and duplicates the cooling characteristics of the land based engine, but with a different cooling medium ( i. e., water). This is similar to the process of buying certified land based engines to make a generator or other equipment. This simplified approach of producing an engine can be described as dressing an engine for a particular marine application. Because the modified land based engine is subsequently used on a marine vessel, however, it will be considered a marine diesel engine pursuant to our definition of marine engine.

We included a provision in our final commercial marine diesel engine rule that exempts engines from the marine certification requirements if the marinizing company meets the following conditions ( 64 CFR 73303, December 29, 1999; see 40 CFR 907):

" The engine being dressed, ( the " base" engine) must be a heavy duty highway, land based nonroad, or locomotive engine, certified pursuant to 40 CFR 86, 40 CFR 89, or 40 CFR 92. The base engine must be certified to the standards that apply at the time the base engine Draft Technical Support Document 5Post manufacturer marinizers are companies that produce a marine engine by modifying a non marine engine and vessel manufacturers that substantially modify marine engines.

28 manufacturer completes assembly of the engine. We don't allow stockpiling of uncertified engines.

" The dressing process must not involve any changes that could reasonably be expected to increase engine emissions. This includes a requirement that engine cooling and aftercooling systems stay within the ranges specified by the original engine manufacturer.

" The original emissions related label must remain on the engine.

" The dressing company must report annually to us the models that are exempt under this provision.

" The engine model must not be primarily for marine application.

Note that the goal of our engine dressing provisions is to eliminate the burden of certification and other compliance requirements where we have confidence that an engine already certified to comparable standards for another program will meet marine engine emission standards. However, the certificate holder for the base engine continues to be liable, under the terms of the original certification, for the emissions performance of the dressed engine.

3.4.2 Regulatory Changes The engine dresser provisions as they are currently written can be exercised by engine manufacturers, including post manufacturer marinizers. 5 We are expanding the list of companies that can use this flexibility to include boat builders that produce a marine engine by installing a non marine engine on a vessel without substantially modifying it. This provision is intended to cover circumstances, like the hovercraft example described in Section 3.2, in which a vessel manufacturer uses a highway or nonroad engine on a vessel but does not modify it in any way that could affect its emissions. In the hovercraft example, the engine is used to run an air compressor that inflates the floating platform and generates air turbulence to propel the vessel forward. The engine does not require marine engine cooling systems, it is not adjusted to provide more power, and it requires no special fuel handling systems. A similar situation exists for airboats, where a highway or nonroad engine is used to run a large fan to propel the vessel forward. Because such engines are installed on a vessel they are considered to be marine engines. Under our existing programs, the boat builder manufacturer must certify the engines as marine engines even if they have a certificate of conformity under our highway or nonroad emission control programs because they do not qualify as engine manufacturers or post manufacturer marinizers. The revised regulations make clear that these vessel manufacturers also qualify for the engine dressing exemption.

In addition, we are clarifying the provision regarding the requirement to demonstrate that the engine model is not primarily used in marine applications. This demonstration requires that the engine manufacturer show that fewer than 50 percent of the engine model's total sales for the model year are dressed engines. This includes engines dressed by others as well as the manufacturer of the base engine. This can be shown based on sales information. Engine dressers who are not also the Technical Amendments 29 manufacturer of the base engine must get the original manufacturer to confirm that the engine is not primarily a marine engine.

We are also clarifying the requirements related to generating and using emission credits with these engines. Engines adapted for marine use through the engine dressing provisions may not generate or use emission credits under part 94. However, they may generate credits or use credits under the averaging, banking, and trading ( ABT) provisions of the program under which they are originally regulated ( highway, land based nonroad, locomotive).

One commenter wrote that we should revise the proposed regulatory language to delete paragraph ( g) regarding failure to comply because it restates the obvious point that engines not meeting the requirement set out in 94.907 are not eligible for the exemption. The purpose of paragraph ( g) is to clarify that if an engine that takes advantage of this exemption is not in fact exempt ( it does not meet the criteria set out in 94.907), then not only is the engine not certified under Part 94 but in addition the engine manufacturer has violated the prohibited acts described in 94.1103( a)( 1) and may be subject to penalties. While this may be obvious to large engine manufacturers, it may not be obvious for small engine manufacturers for whom this provision was originally intended. It is also important to clarify exactly which regulatory prohibitions apply, since this exemption addresses engines that are at varying stages subject to different provisions.

This commenter also wrote that the use of the word " eligible" in ( d) does not seem to be appropriate. We describe the engines as " eligible" for the exemption simply because manufacturers may in some cases choose to certify the engines to the standards in part 94, even though the earlier certification could be used to meet the requirements of part 94. In such a case, an eligible engine is not exempt until the manufacturer exercises the provisions of this section.

3.4.3 Requirement to Submit Emission Data Under our existing program, base engine manufacturers utilizing the dressing exemption must submit marine specific emission data on their dressed marine engines. In addition, we may request marine specific data from the original engine manufacturer if another company is dressing their engines for marine application. We are not changing this provision.

We intend to use this data for program oversight, to determine the validity of the exemption. This is important because marine engines are not operated in the same way as highway or land based nonroad engines. This is reflected in the different duty cycles used for certification testing.

Specifically, we will use the test data to evaluate the extent to which the highway or land based nonroad engines can be expected to achieve our marine engine emission limits when operated as marine engines. If we find that highway or land based nonroad engines exceed the marine standards based on the marine duty cycle we will consider suspending this flexibility. The suspension of this flexibility would not affect marine engines already in the fleet, unless there is a substantial emission exceedence. Draft Technical Support Document 30 Using the data obtained under the engine dresser flexibility program to evaluate the validity of the exemption suggests that engine manufacturers will need to design their highway or land based nonroad engine certification test programs to include the marine duty cycle if the engine may be sold into a marine application. We do not believe this will be burdensome, especially considering that the alternative is to do a full certification application for the marine engine.

As discussed above, land based engines that are credit users are eligible for the engine dressing exemption. Although they are properly certified, such dressed marine diesel engines may exceed the marine emission standards. We will take ABT credit use into account when we evaluate the validity of the program.

3.4.4 Other engine dressing provisions remain unchanged The other components of our engine dressing provisions remain unchanged. These include the following:

" Any certified heavy duty highway, nonroad, or locomotive engine will be eligible for the dressing exemption.

" The marine not to exceed ( NTE) zone provisions do not apply to dressed engines, unless NTE provisions are in place for the certified base engine.

" Engines that qualify as dressed engines are considered to have a certificate under regulatory programs for both land based and marine engines.

" If we find that a company with an engine dressing exemption does not, in fact, meet the criteria spelled out in the regulations, the engines are not exempt and we may pursue enforcement for selling uncertified marine engines and/ or tampering with certified engines.

" The engine dressing company must put a supplemental label on each exempted engine stating the name of the dressing company and the fact that the engine was marinized without affecting emission controls. This will make clear that the engine is acceptable for use in a marine vessel. In addition, dressing companies will need to give us minimal notification that they are modifying certified engines. This can be done once annually for a company's whole range of dressed marine engines.

In addition to the labeling requirement, we encourage engine manufacturers to inform companies dressing their engines of these requirements. This will not only aid us in educating affected companies, it may help protect engine manufacturers from exposure to liability if their engines are ever found in a marine vessel without proper documentation.

The dressing provisions are intended solely for the purpose of our national emission control programs. This streamlined certification does not affect in any way how these engines are treated by the U. S. Coast Guard or any other federal, state, or local agency that may have requirements for the safety, registration, or other operation of such engines. It also does not affect the requirements for Technical Amendments 6MARPOL Annex VI is Annex VI, Air Pollution, to the International Convention on the Prevention of Pollution from Ships, 1978, as modified by the protocol of 1978 relating thereto. More information about this Convention can be found on our website, www. epa. gov/ otaq/ marine. htm and on the International Maritime Organization website, www. imo. org.

31 engines under MARPOL Annex VI. 6 Specifically, after the Annex comes into force, any diesel engine above 130 kW installed on a marine vessel constructed on or after January 1, 2000, and any engine above 130 kW that undergoes a substantial conversion on or after January 1, 2000, will be required to be MARPOL compliant as demonstrated by an Engine International Air Pollution Prevention ( EIAPP) certificate and related documentation ( Technical File and Record Book of Engine Parameters). Therefore, engine manufacturers who take advantage of the engine dressing provisions and who may sell those engines for use on vessels subject to MARPOL Annex VI should be sure they obtain the necessary MARPOL Annex VI certification when they apply for certification of their landbased family. The MARPOL Annex VI requirements are described in our rulemaking for marine diesel engines at or above 30 liters per cylinder, which is available on our website, < www. epa. gov/ otaq/ marine. htm>.

3.5 Engine Repowers ( 94.1103( b))

We have received several requests for clarification about vessel repowers. Much of the existing confusion results from the fact that our marine engine program and the Annex VI program are slightly different and have different results depending on whether the engine used to repower the vessel is new or used.

3.5.1 Repowering With a New Engine If a vessel owner is going to replace an existing engine on an existing vessel with a new engine, then the new engine must comply with the requirements of MARPOL Annex VI and the EPA program. Under MARPOL Annex VI, the engine must meet the Regulation 13 NOx limits ( it must have a Statement of Voluntary Compliance or an EIAPP). Under the EPA program, the engine must comply with the emission limits that are in effect when the repower occurs. Note that if the replacement engine is certified to our Tier 2 standards it should also have a Statement of Voluntary Compliance or EIAPP and therefore will meet both the MARPOL Annex VI NOx requirements and the EPA requirements.

We provide an exemption in 40 CFR 94.1103( b)( 3) which allows a vessel owner to replace an existing engine with a new uncertified engine or a new engine certified to an earlier standard engine if it can be demonstrated that no new engine that is certified to the emission limits in effect at that time is produced by any manufacturer with the appropriate physical or performance characteristics needed to repower the vessel. In other words, if a new certified engine is not available that can be used, an engine manufacturer may produce a replacement engine that does not meet all of the requirements of our marine emission control program. For example, if an vessel has twin uncertified engines and it Draft Technical Support Document 32 becomes necessary to replace one of them, the vessel owner can request approval for an engine manufacture to produce a new uncertified engine if it can be demonstrated that the vessel will not function properly if the engines are not identically matched.

There are certain conditions for this exemption. The replacement engine must meet standards at least as stringent as those of the original engine. So, for example, if the original engine is a pre Tier 1 engine, then the replacement engine need not meet emission limits. If it is a Tier 1 engine, it need not meet the Tier 2 limits if those are the limits in place when the replacement occurs. It should be noted, however, that engines that qualify for this exemption may still be subject to the Annex VI engine requirements. The Annex VI NOx limits apply to any engine that undergoes a major conversion on or after January 1, 2000. This includes the case where an engine is replaced by a new engine built on or after January 1, 2000. If a new replacement engine is installed, that engine must be certified to the Annex VI NOx limits.

Also as a condition for the exemption, the engine manufacturer must take possession of the original engine or make sure it is destroyed. In addition, the replacement engine must be clearly labeled to show that it does not comply with the standards and that sale or installation of the engine for any purpose other than as a replacement engine is a violation of federal law and subject to civil penalty. Our regulations contain the information that must be on the label; we are adding a provision to cover the case where the engine meets a previous tier of standards.

One commenter objected to the new label provision, asserting that such a requirement would be overly burdensome on the engine manufacturers. This is because the requirement would require the engine manufacturer to create a different label for every rating that it wants to continue to sell as replacement engines. The commenter also objected to the provision requiring a determination by the Administrator that no certified engine is produced by any manufacturer with the appropriate physical or performance characteristics needed before it allows an engine manufacturer to produce and sell an uncertified replacement engine. The commenter wrote that this requirement " imposes an unreasonable and onerous burden on engine manufacturers." The replacement engine situation typically arises when there is a catastrophic failure of an engine. Waiting for the Administrator to make a determination may take a considerable amount of time, which could impose significant costs on the vessel owner. The commenter recommended that EPA modify this provision to make it consistent with § 89.1003( b)( 7), which allows the engine manufacturer to make the determination.

With regard to the labeling requirements, we are revising the requirements to be consistent with the provisions we are finalizing for nonroad diesel engines ( see Chapter 2). We continue to believe it is important to label these replacement engines to ensure that the ship owner understands his responsibilities with regard to the replacement engine, that a vessel surveyor can verify that the engine is compliant, and that the engine is not used for unauthorized purposes at some later date. We believe that the simplified language for the label will make it easier for engine manufacturers to comply with this requirement.

We did not propose to revise the requirement that the determination be made by the Administrator that no compliant engine will meet the appropriate physical or performance Technical Amendments 33 characteristics needed before an engine manufacturer may produce and sell an uncertified replacement engine. We originally adopted the provision as it is because marine vessels are different from other types of nonroad equipment in that the physical and performance constraints for replacement engines are not as great. Most nonroad equipment have tightly constrained engine compartments that impose physical limitations on replacement engines. This is not the case for most marine vessels, given the large size of the engine compartment and potentially greater flexibility in how an engine is installed.

In subsequent discussions, engine manufacturers indicated that their concern about the Administrator determination arises from the time constraint associated with the conditions under which a vessel owner would be requesting a replacement engine. This typically occurs when there has been a catastrophic engine failure. In these cases the vessel is not usable until a replacement engine is found and installed. The engine manufacturers are concerned that Administrator review would take a considerable amount of time. In addition, they are also concerned that reviewing all potential replacement engines for suitability would also take a lot of time.

After considering these comments, we are revising this provision to allow manufacturer determination that no compliant engine can be used for a replacement engine, provided that certain conditions are met. First, the manufacturer must deterimine that no certified engine is available, either from its own product lineup or that of the manufacturer of the original engine ( if different). In cases where a vessel owner simply wants to replace an engine with a new version of the same engine as part of a vessel overhaul for example, it will still be necessary to obtain Administrator approval. Second, the engine manufacturer must document the reasons why an engine of a newer tier is not usable, and this report must made available to EPA upon request. Finally, no other significant modifications to the vessel can be made as part of the process of replacing the engine, or for a period of 6 months thereafter. This is to avoid the situation where an engine is replaced prior to a vessel modification that would otherwise result in the vessel becoming " new" and its engines becoming subject to the new engine standards. In addition, the replacement of important navigation systems at the same time may actually allow the use of a newer tier engine.

3.5.2 Repowering With a Used ( Rebuilt) Engine If a vessel owner replaces an existing engine with a used ( rebuilt) engine, then that replacement engine is not required to be certified to our marine standards.

Note however, that if a vessel owner is going to replace an existing engine on an existing vessel constructed on or after January 1 2000 with a used ( rebuilt) engine, the engine must comply with the requirements of MARPOL Annex VI. Under these requirements, the Annex VI NOx limits apply if the used ( rebuilt) engine undergoes a major conversion. This means it is substantially modified during the rebuilding process ( e. g., more was done than simply replacing used parts with identical new part) or it has a maximum continuous rating more than 10 percent higher than the old engine. If the original engine is being replaced by an identical used ( rebuilt) engine, then there are no Annex VI emission requirements for the used ( rebuilt) engine. Draft Technical Support Document 34 The MARPOL Annex VI requirements apply to diesel marine engines above 130 kW. If the engine is not a diesel engine or is a diesel engine at or below 130 kW, then there are no requirements for the used ( rebuilt) engine under Annex VI.

3.5.3 Disposal of the Replaced Engine Our current regulations require the engine manufacturer to take possession of the engine that is replaced. We are revising this provision to allow the manufacturer to confirm that the engine has been destroyed instead.

3.6 Other Revisions 3.6.1 Excluded and Exempted Engines ( 94.904)

We are adding a new provision to Subpart J, Exclusion and Exemption Provisions, to allow an engine manufacturer to take an action with respect to an exempted or excluded engine that would otherwise be prohibited, such as selling it. Before the engine manufacturer can take such an action, the engine must either be certified or modified to make it identical to an engine that is already covered by a certificate.

One commenter recommended that EPA delete this provision, noting that the language of the exemption, " If you want to take an action with respect to an exempted or excluded engine that is prohibited by the exemption or exclusion, such as selling it, you need to certify the engine" appears to restate the obvious.

The purpose of the new language in 94.904 was intended to explicitly allow the engine manufacturer to remove an engine from exempted or excluded status and allow it to be transferred to an ultimate purchaser or owner or some other action to be taken. Otherwise, it is not clear that the exempted or excluded designation can be changed once it is applied to an engine. This provision also describes what must be done to the otherwise exempted or excluded engine to allow such an action: it must be certified or made identical to a certified engine. This is identical to the provision we recently adopted for nonroad land based diesel. We are finalizing the provision as proposed.

3.6.2 Requirements Applicable to Vessel Manufacturers, Owners, and Operators ( 94.1001)

We considered revising the applicability provisions in § 94.1001 in Subpart K, Requirements Applicable to Vessel Manufacturers, Owners, and Operators, to specify that some of the requirements in that subpart apply to manufacturers, owners, and operators of marine vessels that contain engines with per cylinder displacement of at least 2.5 liters. Currently, the provisions in this subpart apply only to manufacturers, owners, and operators of marine vessels that contain engines with per cylinder displacement at or above 30 liters.

One commenter objected to this change, noting that the requirement in 94.1003( c) that requires vessel manufacturers, owners, and operators to allow emission tests and inspections to be conducted Technical Amendments 35 and provide reasonable assistance to perform such tests or inspections would be too onerous for vessels smaller than those with Category 3 marine diesel engines. This commenter noted that this requirement " infringes on the rights of vessel owners and operators by requiring them to make their vessels available for testing and inspections." The commenter also note that EPA proposed this change without consulting with owners and operators of smaller vessels. The commenter recommend that, at minimum, EPA specify that 94.1004( a), ( d), and ( e) do not apply to smaller vessels.

We agree with this comment and are retaining the applicability of these requirements to engines with per cylinder displacement at or above 30 liters with minor editorial changes to reflect that the requirements apply only to Category 3 marine diesel engines. We are also modifying § 94.211( k), which originally specified that engine manufacturers must provide the Technical File required under MARPOL Annex VI to boat owners; we believe this provision should apply only to Category 3 engines at this time. Note that some of the provisions outlined in this section are the same as those required by MARPOL Annex VI and the NOx Technical Code, and that those provisions will apply to engines above 130 kW once the Annex goes into force.

3.6.3 Useful Life One commenter wrote that the current useful life periods for marine diesel engines are " arbitrarily" set at 10,000 hours for Category 1 engines, 20,000 hours for Category 2 engines, and 1,000 hours for recreational engines. This commenter " believes that these values do not fairly represent the useful lives of current marine engines and that this section should be changed accordingly." They also provided a proposal for changing the prescribed useful life periods.

We acknowledge the commenter's concern about the length of the useful life period for marine diesel engines. The rationale for the useful lives in our current regulations is set out in our previous rulemakings ( see 64 FR 73300, December 29, 1999 and 67 FR 68242, November 8, 2002. A revision of these periods was not proposed and would require considerable analysis of data about the ways in which these engines are used that are not available at this time. It would also require considerable discussion with many engine manufacturers, including recreational marine diesel engine manufacturers, as well as with other stakeholders. Because the information presented is not substantial enough to justify revision of the useful lives in our current regulations , we are not adopting any changes to our useful life provisions in this action. Instead, we will consider the proposal as we develop our new marine diesel engine proposal ( see Advance Notice of Proposed Rulemaking, Control of Emissions of Air Pollution from New Locomotive Engines and New Marine Compression Ignition Engines Less Than 30 Liters per Cylinder, 69 FR 39276, June 29, 2004).

3.6.4 Test Cycle One commenter requested EPA allow the use of the E3 duty cycle for certifying propeller law operated variable speed auxiliary engines as an optional alternative to the use of the C1 duty cycle. Another commenter subsequently informed EPA that this revision is needed because auxiliary engines that are used to drive liquid pumps operate in such a way that the " load used to drive it is proportional to the engine speed cubed ... which is the same as a propeller curve." Consequently, it Draft Technical Support Document 36 would make more sense to use the E3 duty cycle for engines operated in that way. This is not currently possible because the provisions of § 94.105( b) state that the E3 cycle applies to propulsion engines with fixed pitch propellers and engines for which the other specified duty cycles do not apply.

After consideration of this issue we agree that the E3 cycle most appropriately tests marine auxiliary engines used in this way. Therefore, we are revising § 94.105( b) to clarify that some marine auxiliary engines can be certified using the E3 duty cycle, so long as the manufacturer can demonstrate, as is the case with auxiliary engines used to drive liquid pumps, that the E3 cycle is more appropriate than any of the other specified cycles. It should be noted that MARPOL Annex VI allows use of the E3 duty cycle for propeller law operated main and propeller law operated auxiliary engines.

3.6.5 Miscellaneous Corrections.

We are making the following additional changes to address minor corrections from the proposal:  94.2 Definitions: Remove obsolete definitions for auxiliary and propulsion engines.  94.9 Useful life: We are revising the provisions for manufacturers to request a shorter useful life with the similar provisions already in place for Large SI engines, consistent with comments received from manufacturers or marine diesel engines. This also involves labeling engines with useful life information only if the applicable useful life is different than the specified default values.  94.12 Small volume provisions: Fix cross references.  94.106 NTE testing procedures: Fix the formula for the lower bound on the NTE zone to match the formula given in the corresponding figure.  94.212 Labeling: Correct improper reference, and remove the requirement to include useful life from the label in situations where the manufacturer uses the default value specified in the regulation. Manufacturers would need to include useful life on the label only if they specify a shorter or longer useful life under the provisions of § 94.9( a)( 2) or ( a)( 3).  94.806 Importation of partially complete engines: To allow for importation of engines that are not yet in their certified configuration, we are adding a reference to 40 CFR 1068.330. This includes certain limitations to prevent importers from abusing this provision.  94.907 Engine dressing: Fix cross reference.  94.912 Exemption for marine engines in land based family: Make sure that the overview information in § 94.904 references this new section.  94.915 Staged assembly exemption: As described in Chapter 1, we have added a new provision allowing manufacturers to assemble engines in different locations, provided that they maintain control of the engines at all times, and inform us that they are using this exemption. We may require that manufacturers take certain steps to ensure that engines end up in their certified configuration.  94.1103 Engine repower: Fix paragraph numbering. Technical Amendments 37 Chapter 4: Locomotives ( 40 CFR part 92)

Changes Being Adopted We are making the following changes to 40 CFR part 92. A large number of these changes were proposed. One is a correction to update the reference to the appropriate test method. The remainder are being made in response to public comments. In most cases, the comment came from the Engine Manufacturers Association. See the text after the table for additional discussion of the public comments.

Regulatory Section Description of Change Proposed or Response to Comment § 92.1 ( a) & ( d) Add paragraph ( d) to clarify that subpart L applies to everyone. Proposed § 92.2 Change " unique" to " specific" in definition of calibration. Proposed § 92.2 Add to definition of locomotive an option to allow low power locomotives to be certified under part 92 Response to Comment § 92.2 Clarify that 750 hp limit applies to total combined power for multiengine locomotives Response to Comment § 92.2 Add " manufactured" to paragraph ( 5) of definition of new locomotive Proposed § 92.2 Add " percent" to definition of repower Proposed § 92.8( b) Add allowance to measure crankcase emissions separately Response to Comment § 92.104( b)( 1)( i) Add reference to speed and load " setpoints" and add 1.0 hp lower limit for load setpoint tolerance Response to Comment § 92.105( d) Delete separate voltmeter, ammeter, and wattmeter accuracy and precision specification Response to Comment § 92.106( b)( 1)( ii) Relax torque accuracy requirements Response to Comment § 92.109( c)( 3) Change reference for alcohol fuels to part 1065 subpart I Correction § 92.114( a)( 2) Limit demonstration requirement to notch 8 operation Response to Comment § 92.114( d)( 2) Allow lower backpressures Proposed § 92.114( e)( 1) Change reference for " subpart N of part 86" to " 40 CFR part 1065" Proposed § 92.123 ( a)( 2)( i) Move the word " only" Response to Comment § 92.123 ( a)( 2)( ii) Delete the word " not" Proposed Draft Technical Support Document 38 Footnote 2 of Table B124 1 Allow shorter time in notch for smoke testing Response to Comment Table B124 1 Clarify that 15 minute maximum refers to time after lowest idle setting is reached Proposed § 92.126 ( b)( 3) Allow longer averaging times Response to Comment § 92.131 ( b)( 3) Allow option to average steady state smoke measurements Response to Comment § 92.132( d) Correct equation: KH= [ C1+ C2exp(( .0143)( 10.714))]/ [ C1+ C2exp(( 0.0143)( 1000H))] Proposed § 92.203( d)( 1)( i) Correct reference from § 92.208 to § 92.204 Proposed § 92.204( a) Clarify that separate families are required for freshly manufactured and remanufactured locomotives Response to Comment § 92.205( a)&( e), § 92.210( d)( 2)&(#), § 92.215( b) Correct reference from " subpart" to " part" Proposed § 92.208( a) and ( b) Change " in which" to " for which". Proposed § 92.210 Make reference plural in paragraph ( b)( 1), and add paragraph ( b)( 2) to clarify that manufacturers making engine modifications within an engine family must show that the modified engines still meet emission standards. Proposed § 92.212 Correct typo in ( b)( 2)( v)( G), replace " Locomotive" with " Engine" in ( c)( 2)( v)( A), correct the applicable manufacture date in ( c)( 2)( v)( D)( 2), and clarify that manufacturers and remanufacturers may add a subheading to minimize mislabeling Proposed and Response to Comment § 92.215( a)( 2)( i) ( A) Correct typo in " process" Proposed § 92.216 Delete paragraph ( a)( 2) to allow the Office of Air and Radiation to represent itself at hearings. Proposed § 92.403( b) Change " effect" to " affect" Response to Comment § 92.508( e) and § 92.511( g) Change 30 days to 45 days Response to Comment § 92.512( e) Delete " is made" Proposed § 92.806 Add section to apply 40 CFR 1068.330 Response to Comment § 92.906( a) Delete " as defined in § 92.2". Proposed Technical Amendments 7" Inclusion of the Railpower Green Goat Hybrid Locomotive 40 CFR 92 Averaging, Trading, and Banking" e mail from Christopher Weaver, Railpower, May 7, 2004 ( Docket # OAR 2004 0017 0003).

39 § 92.907( a)( 3) and ( b)( 3) Increase sales limits Response to Comment § 92.912 Add a new provision allowing manufacturers to assemble engines in different locations, as described in Chapter 1. Response to Comment § 92.1106( a) Correct the penalty for tampering to be based on each engine in violation, as opposed to each engine and each day. Proposed Appendix IV to part 92 Correct " 13 mode" to " 10 mode" Proposed Public Comments Definition of Locomotives and Hybrids By definition, the standards for locomotive engines currently do not apply to engines used in locomotives if the locomotive has a maximum power below 750 kW. These engines are generally designed and manufactured for other applications, so they were excluded from locomotive standards and procedures. Prior to the proposal, we received a request to allow engines below 750 kW that are used in locomotives to optionally certify to locomotive standards instead of the otherwise applicable requirements of 40 CFR part 89, and we requested comment regarding this issue and the related issue of hybrid locomotives. 7 We are finalizing a provision that will allow manufacturers to certify locomotives that have total power less than 750kW. This provision will allow manufacturers of hybrid locomotives to certify under 40 CFR part 92. EMA commented that if we do this, we should specify test procedures and duty cycle weightings for such hybrids. We agree that this would be appropriate in the long term, but do not believe that this rulemaking would be the proper place for such provisions. Instead, we expect to rely the testing and calculation flexibility of § 92.207 and § 92.132( e) to certify hybrids on a caseby case basis in order to meet the stated goal of § 92.103 to measure emissions " in a manner representative of a typical operating cycle." A manufacturer seeking a certificate for a hybrid should first identify the typical operating cycle for the locomotive. EPA would then determine the typical operating modes to be tested and how to weight them to be representative of a typical operating cycle.

This flexibility would not allow EPA to account for the lower engine horsepower needed with hybrids to provide equivalent tractive horsepower. While we agree in concept that such adjustment may be appropriate, the existing flexibility does not allow for them and we believe it would be beyond the scope of this rule to revise the regulations to allow for such adjustments. These regulatory changes would more properly be considered in a rulemaking more focused on issues of emission standard stringency. Draft Technical Support Document 40 Definition of Remanufacture The existing definition says that " remanufacture means to replace, or inspect and qualify, each and every power assembly of a locomotive or locomotive engine, whether during a single maintenance event or cumulatively within a five year period." EMA asked that remanufacturers be allowed to limit the practice of " inspecting and qualifying" ( i. e., not replacing every power assembly with remanufactured power assemblies at the time of engine remanufacture). However, remanufacturers already can limit this practice. Therefore we do not need to make any changes to the regulations in response to this comment.

More importantly, the remanufacturer is actually expected to maintain this kind of control over the remanufacturing process. By allowing an engine to be remanufactured under its certificate, the remanufacturer is assuming responsibility for the emission performance of that remanufactured engine. As such, it should take whatever steps are necessary to ensure that the remanufactured locomotive is identical to the locomotive described in the application for certification. Remanufacturers should allow inspecting and qualifying power assemblies only in those cases in which they can be certain that the previously used power assembly will not cause an engine to exceed an emission standard. The remanufacturer might also limit the certificate to only those engines remanufactured by installers that been properly trained.

While certificate holders have responsibility for the emission performance of locomotives remanufactured under their certificates, § 92.209 also assigns responsibility to others involved in the remanufacturing process. In practice, EPA will generally try to require remedial action for in use noncompliance from the persons who caused the problem.

Fuel Flow Measurements The regulations specify one minute or lower averaging times for continuous fuel flow measurements. EMA ask to allow longer averaging times. We agree that longer averaging time may be appropriate. Revised section 92.126( b)( 3) states:

Sampling periods greater than one minute are allowed, consistent with good engineering practice. Fuel flow averaging periods should generally match the emission sampling periods as closely as is practicable.

Assuming that actual fuel flow rates are constant in each notch, longer averaging times should be consistent with " good engineering practice". However, if the fuel flow rate varies with time, then the averaging period should be such that it best represents the amount of fuel consumed during the same period over which emissions are being averaged.

Test Fuel EMA asked that EPA lower the required sulfur content of locomotive and marine diesel test fuel to be limited to 500 ppm, consistent with the upcoming change to the in use fuel. However, such a Technical Amendments 41 change would have the effect of relaxing the existing PM standards. We believe that any change to the test fuel specifications must be made in conjunction with a revision to the Tier 0, 1, and 2 PM emission standards.

Test Conditions EMA commented that testing should be limited to temperatures between 45 ° F and 105 ° F, and EPA eliminate the option for manufacturers/ remanufacturers to test at higher temperatures without correction. However, we see no harm in allowing manufacturers/ remanufacturers the option of testing at higher temperatures. Given the size of locomotives, outdoor testing can be more practical than indoor testing in some cases, and in some regions of the country, temperature spikes above 105 ° F will occur. This option allows manufacturers/ remanufacturers to use higher temperature test data instead of retesting. It is also important to note that EPA does not have this option, and thus, this option does not create any risk to manufacturers/ remanufacturers.

Smoke Testing The previous regulations define the steady state smoke emission rates as the highest reading occurring more than two minutes after the notch change ( excluding peaks lasting less than 5 seconds, caused by such random events as the cycling of an air compressor). EMA commented that steadystate smoke emission rate should instead be an average value. The existing regulations were intended to allow the steady state value to be easily read from a strip chart recorder without mathematical manipulation. Peaks caused by the cycling of an air compressor can be readily ignored using this approach, and the highest non peak value can be readily identified. We still believe that this is the best approach for reading strip chart smoke traces. However, we agree that this is not the best approach for digitally recorded smoke measurements. Mathematical averaging is simple with digitally recorded data, but identifying compressor peaks can be more complicated. Thus, we are revising § 92.131( b)( 3) to allow manufacturers the option to use the average value including peaks. Using the average value instead of the highest value would lower the smoke value for digital data, while including the compressor peaks would raise the value. We believe that the combination of these two effects would result in no net change in the stringency of the steady state smoke standard.

NOx Correction Section 92.132( e) allows for the use of calculations other than those listed in the regulations. EMA suggested in its comments the following specific criteria for the approval of alternative correction equations:

( a) The manufacturer will define the ambient temperature and humidity range for which their developed NOx correction factor will apply. ( b) ( 1) Temperature and humidity effects on NOx concentration in the engine exhaust must be evaluated at a minimum of 3 points across the defined temperature and defined humidity range. ( 2) The manufacturer will be required to measure NOx emissions, for each temperature/ humidity matrix point, at a minimum of three engine notch or power settings as follows  Draft Technical Support Document 42 ° full load ° intermediate load ° idle ( c) The alternative correction factor must adjust to standard ambient conditions of 86 ° F for temperature and humidity of 75 grains moisture per pound of dry air for locomotive engine operations. ( d) Test variability should be minimized, to the extent possible, for other parameters that are not directly relevant to the investigation of the effects on NOx emissions that result from changes in ambient temperature and humidity. ( e) All test data and calculations used in the development of the manufacturer's alternative correction factor will be submitted to EPA for review and approval. ( f) EPA will review manufacturers' submissions and grant or deny approval within 90 calendar days of receipt of the request by EPA.

While we believe that these criteria would generally be appropriate, we are not incorporating these specifications into the regulations at this time. We agree completely with paragraphs ( c), ( d), and ( e) of EMA's recommendation, but see EMA's recommendation of the number of data points required in paragraph ( b) as a minimum number. Good engineering practice would obviously require additional points where test to test variability is significant or where the fit of the data is not linear. We agree with EMA's paragraph ( a), with the clarification that EMA means that corrections cannot be used outside of the range of data. For example, if the lowest temperature tested to develop the correction factor is 60 ° F, then the correction cannot be used for testing below 60 ° F. Finally, given the potential complexity involve in NOx correction factors, we cannot agree to always approve or deny approval within 90 days. Nevertheless, we will attempt to complete the approval process as quickly as possible.