Manufacturers also commented that we should issue guidance that outlines reasonable conditions and procedures for manufacturers to follow in requesting an emission measurement waiver. We do not believe that a specific guidance document on this issue is necessary. The basic conditions and procedures for requesting an EPA waiver to avoid measuring a pollutant is obvious enough. Waivers will be reviewed on a case

bycase basis.

2. Portable Emission Measurement Systems   Status and Availability Portable emission measurement systems will be used to measure the emissions and activity of vehicles tested in this program. Portable measurement systems have been under development for a little more than ten years. Currently, the status of these devices relative to their development and availability is different for gaseous and particulate emissions.

Studies conducted by EPA, CARB, and the product manufacturers have shown that the technologies used in portable systems for gaseous emissions have been effective in accurately measuring emissions from in use motor vehicles under the various conditions that could be expected in this test program. More specifically, commercial portable measurement systems have been available from a number of manufacturers since 2002 that measure THC, CO, and NOx emissions at the requisite exhaust concentrations associated with 2007 and later model year NTE standards. In 2004, units were introduced that 82 measure NMHC, although some extra work is being instituted to verify the accuracy and precision of these new systems. Also, EPA is working on a program, with cooperation from ARB and the engine manufacturers, under which portable emission measurement systems will undergo comprehensive testing, including the identification of data driven " measurement allowances." A measurement allowance is an emissions specific,

brakespecific value that will be added to the NTE standard to determine an NTE threshold for the purposes of the manufacturer in use testing program. Its purpose is to account for any differences between the accuracy of the portable measurement systems in the field and the accuracy of laboratory measurement systems in a lab. Additional details on this latter program are presented in section II. L. 3.

The development of portable systems for measuring PM has proven to be more challenging than the development of similar systems for measuring gaseous emissions.

Currently, prototype portable systems for measuring PM are available from equipment manufacturers, and we have tested them in the laboratory with encouraging results. This demonstrates that the overall technology has been identified, although more work is needed to demonstrate its accuracy and efficacy in the laboratory and in the field for the purposes of the in use testing program. In addition, work is continuing to miniaturize the on board sampling devices and develop suitable exhaust dilution sampling techniques and hardware.

In our proposal, we acknowledged the significance of the development effort for PM portable measurement systems, especially with regard to being able to start the pilot 83 program in 2005. Manufacturers echoed this concern in their comments. Specifically, we stated that if PM systems were not going to be available for the 2005 pilot program, we would consider delaying the PM requirement until 2006 or 2007, or temporarily relaxing the proposed equipment measurement tolerances. Consistent with that position, our current assessment of the state of portable PM emissions measurement systems has resulted in delaying the start of the pilot and fully enforceable programs for PM by one year from the dates contained in the proposed rulemaking.

We believe that the one year delay for the PM pilot program ( i. e., 2006) will result in the availability of prototype portable devices capable of measuring these emissions as required. We also believe that the one year delay for the fully enforceable program ( i. e.,

2008) will result in useable, accurate, and precise portable units in time for use in that program. Our position is based on work that EPA, CARB, equipment manufacturers, and the engine manufacturers either have underway or have committed to performing to resolve the remaining development and verification issues, as described below. However,

in recognition of the remaining uncertainties associated with these efforts, we have added a provision to the regulations that would suspend the in use test program as it applies to PM measurement if we determine that fundamental technical problems with portable inuse PM measurement systems are not resolvable in a reasonable time.

As noted above, prototype portable units for measuring PM have been successfully tested in the laboratory, but further development work is needed to resolve some key challenges. The most significant of these are: quantifying or weighing 30 second samples 84 of semi volatile hydrocarbons and dilute sulfuric acid PM at the NTE standard ( i. e., about 250 nano grams), proportionally diluting a partial flow of raw exhaust in order to sample PM at the same conditions as our laboratory procedures, and establishing a standard way of evaluating whether or not candidate systems actually meet these challenges. The work to resolve these remaining issues and to verify portable PM measurement technology in terms of usability, accuracy and precision, can generally be divided into four program areas.

The first is our ongoing program that takes prototype portable PM measurement technology, which equipment manufacturers continue to refine, and compare the measurement capability of that hardware with current laboratory measurements. In this regard, we have recently acquired more sophisticated prototype devices for testing. We are evaluating a laboratory scale quartz crystal microbalance ( QCM) versus our laboratory PM measurement procedures. This evaluation is intended to verify whether or not prototype QCM technology reports PM similarly to the laboratory's reported values. We are confident that the QCM is a viable technology for the following reasons:

a. The QCM measures PM by electrostatically depositing mass on the QCM, and as PM deposits on the QCM its oscillating frequency changes in proportion to the total mass of the deposited PM. Because the QCM measures total PM mass directly by inertial acceleration, the QCM measures the same physical property;

namely total mass, as compared to our laboratory filter based procedure, which measures mass by gravitational acceleration ( via a PM microbalance). 85 b. The design and construction of this technology is of a reasonable size and weight, and it's power consumption indicates that this technology is likely to be sufficiently portable for on vehicle use.

c. This PM PEMS technology is also specified to allow up to eight hours of continuous unattended operation so it will be appropriate for the HDIUT program.

d. Because QCM technology can measure " nano gram" levels of PM, we believe that it is sufficiently sensitive to measure 30 second samples of PM at the NTE standard. For example, under typical dilution conditions in the NTE, 30 seconds of PM at the 2007 NTE standard ( 0.03 g/ hp hr) is in the range of 200 to 300 nanograms when sampled at one liter per minute, which is the sample rate of the QCM.

We intend to expand the work described above to include an already available portable partial flow dilution system and a fully portable QCM.

The second is another internal EPA program that we anticipate beginning in the near future. In this program we will intend to develop techniques to generate " reference PM" in order to fully evaluate portable measurement systems using particles with similar physical characteristics and at the expected PM levels associated with the NTE standard and over intervals as short as 30 seconds.

The third is the PM pilot program. In the pilot, engine manufacturers will use best available portable measurement systems as part of their testing. This program will 86 give engine manufacturers an opportunity to evaluate the usability of these portable devices. We expect that information gained from this pilot program will be helpful for both EPA, equipment manufacturers, and engine manufacturers to prepare for the 2008 enforceable PM program.

The fourth is our cooperative research, development, and demonstration effort with CARB and the engine manufacturers. Under this comprehensive program, portable PM emission measurement systems will be rigorously tested and data driven " measurement allowances" will be identified. Additional details on this program are presented in section II. L. 3.

Based on the development and demonstration programs described above, as well as the ongoing work of equipment manufacturers, we remain optimistic that portable systems for PM testing will be available for the pilot program in 2006 and the fully enforceable in use program starting in 2008.

The technical support document that accompanies today's final rulemaking contains more information on the status and development of portable emission measurement systems.

Engine manufacturers had some specific comments regarding the availability of portable emission measurement systems. Detroit Diesel Corporation commented that EPA failed to recognize that in order to begin production of 2007 model year engines with 87 an appropriate level of confidence that those engines will meet in use requirements, the availability of in use measurement equipment will be required long before production of those engines begins. Specifically, the company referred to the need to conduct field validation of final engine calibrations as early as the winter of 2005/ 2006. Further, that testing would require equipment that has the capability for accurate measurement at below 1 gram/ bhp hr NOx development targets. Therefore, DDC concluded that it is unreasonable to expect that equipment being qualified at the 2.5 gram NOx level should also be adequate for development of engines at a 1 gram NOx level, and even more unreasonable to consider its use for developing at levels below the 0.2 gram NOx standard.

Our assessment shows that portable measurement systems with the capability to reliably measure NOx emission at the 2 g/ bhp hr level have been commercially available since 2002. Given that engine manufacturers are likely to certify MY2007 MY2010 engines at around the 1.1  1.3 g/ hp hr level, the corresponding NTE standard from MY2007 2010 will be about 2 g/ hp hr, depending upon vehicle mileage and other NTE flexibilities. Therefore, manufacturers could have started such field validation of final engine calibrations as early as about 2002. In fact, in 2003 Detroit Diesel Corporation gave public presentations showing how they are already using PEMS to field validate final engine calibrations. Therefore, we disagree with the comment in this area.

Also, as described in the previous section ( see section II. L. 2.), portable units that measure THC and CO have also been available since 2002. Units capable of measuring 88 NMHC have been available since 2004. ( Further work is needed on these instruments to determine their accuracy and precision, but compliance with the associated NTE standard can optionally be demonstrated by measuring THC, as explained in section II. L. 1. of this preamble.)

Based on other comments, we acknowledge that compliance with NTE standards will require design engineers to better understand their engines' emission behavior over a wide range of possible engine operation, but we do not feel that access to field testing systems at an early stage of engine development is a prerequisite for the successful development of engines that meet the NTE standards. Though claims have been made that NTE standards might be interpreted to cover a theoretically infinite degree of variability during in use operation, we expect that by evaluating a range of in use duty cycles a consistent level of control for any additional operation may be predicted. This evaluation may be conducted solely in a laboratory by making careful measurements over a statistically sound sampling plan. Such a statistically based test plan provides reasonable certainty that any future emissions from an engine is likely to be within certain bounds.

This approach is frequently used to ensure reliability of engine parts and engine performance even though an engine manufacturer never tests such parts or performance over an infinite number of in use conditions. We expect a similar approach to be taken when designing engines to meet NTE standards.

Furthermore, we do not believe that manufacturers will need to test an " infinite" or inappropriately large number of steady state and transient combinations with field test 89 equipment. Rather, manufacturers will be able to quickly narrow their test programs in the laboratory to focus in on those areas of engine operation where emissions come closer to exceeding the NTE standards. Engineering experience and logic dictates that manufacturers will not expend resources testing areas where emissions are well understood and well below the NTE standards. Therefore, we expect that manufacturers can developed and demonstrate engine calibrations using existing portable measurement systems and normal engineering practices.

In another comment, engine manufacturers stated that the PM requirement was infeasible. They noted that verified portable sampling systems do not exist at this time.

Further, they commented that PM emissions should not be included in the program until such time as validated, properly field tested, on vehicle devices become commercially available. Finally, the industry association commented that it is uncertain whether any portable measurement system can actually measure the same physical quantities as the filter based method that is used in the laboratory, which is the basis for the regulatory definition of particulate, but also the underlying certification of heavy duty diesel engines.

We have accommodated the engine manufacturers concerns with regard to the availability of suitable PM measurement equipment in a number of ways as described previously in this section. First, we have delayed the start of the pilot and fully enforceable programs for PM by one year from the dates contained in the proposed rulemaking to provide additional time to complete the development of these units.

Second, we have committed to an internal EPA development program to resolve the 90 remaining technical challenges with measuring PM emission onboard the vehicle. Third,

we have entered into a comprehensive research, development, and demonstration program with CARB and the engine manufacturers to fully verify their usability, accuracy, and precision of portable PM measurement systems. Fourth, we have added a provision to the regulations that would suspend the in use test program as it applies to PM measurement if we determine that fundamental technical problems with portable in use PM measurement systems are not resolvable in a reasonable time. In summary, we believe there is an adequate basis to require PM measurement as part of the in use testing program.

Regarding the comment that it is uncertain whether any portable measurement system can actually measure the same physical quantities as the filter based method that is used in the laboratory, as noted above, quartz crystal microbalance measures PM by electrostatically depositing mass on the QCM, and as PM deposits on the QCM its oscillating frequency changes in proportion to the total mass of the deposited PM.

Because the QCM measures total PM mass directly by inertial acceleration, the QCM measures the same physical property; namely total mass, as compared to our laboratory filter based procedure, which measures mass by gravitational acceleration ( via a PM microbalance).

The final comment regards measuring altitude ( elevation) during an in use test. In the draft technical support document, we noted that NTE testing will require specific information on a number of ambient conditions to determine if the engine is operating within the defined boundaries of the NTE or to calculate actual test results. We proposed 91 to allow the direct measurement of these values with a specific technology or if the engine manufacturer determines that an engine's electronic control module ( ECM) accurately quantifies these parameters, the manufacturer may rely on ECM values for those parameters. For altitude, we identified the use a global positioning system ( GPS) as a suitable technology.

Detroit Diesel Corporation recommended that EPA also accept the sensing of barometric pressure as an adequate surrogate for altitude determination. They noted that detecting barometric pressure and determining the corresponding altitude using standard nominal barometric pressure versus altitude relationship has been practiced by the company and found to be reliable.

We believe that the guidance given in the draft technical support document remains appropriate. Direct measurement of the test altitude through GPS will be preferred as opposed to using a surrogate, e. g., sensing barometric pressure) for determining altitude.

Our preference is based on the understanding that there will likely be errors associated with relying on surrogates such as barometric pressure, since there would be other factors,

i. e., ambient conditions, inappropriately excluded from the altitude calculations.

Nevertheless, as the final technical support document continues to state, we will allow the engine manufacturers to use the engine's ECM to determine altitude, but only if it can be demonstrated that it can be done accurately. This would be evaluated on a case by case basis. 92 A more detailed discussion of our response to engine manufacturers comments regarding the status of portable particulate measurement technology is contained in the summary and analysis of comments document that accompanies today's final rule.

3. Measurement Accuracy Margin Development Program Manufacturer comments on the NPRM raised objections to EPA's proposed inuse accuracy margin value of five percent applicable to all pollutants covered by the program. As EPA sought clarification on these comments from the manufacturers and input from CARB, it became evident that there were legitimate concerns regarding whether or not the proposed accuracy margins had been sufficiently proven. In an effort to provide further data to develop final accuracy margins, EPA, CARB, and the engine manufacturers ( through the Engine Manufacturers Association ( EMA)) have entered into a Memorandum of Agreement ( MOA) that details a project for developing data driven accuracy margins for the gaseous emissions and PM fully enforceable programs. ( See section II. F. 3. i. of this preamble for more on the pilot program accuracy margins.) The MOA addresses the basic scope and objectives of the research, development and demonstration ( RDD) program, program milestones and schedules, implementation issues,

and intended implications for the regulations.

This RDD program is expected to be completed in two main phases. The first phase addresses gaseous emission accuracy margins, the second phase addresses PM accuracy margins. A full test plan has been prepared for the gaseous emissions RDD 93 program; the test plan for the PM program is addressed in the MOA, and is to be completed well prior to initiation of the RDD testing effort. Each of the two programs is expected to be completed in time to have data driven accuracy margins for the respective fully enforceable programs, 2007 model year for gaseous emissions and 2008 for PM emissions. EPA intends to promulgate these accuracy margins and any related provisions through rulemaking.

The gaseous emissions RDD program contains four basic components. First, it will assess emissions, exhaust flow, and torque measurement variability of PEMS units incremental to the laboratory measurement. Second, the effect of environmental parameters and of on vehicle time on measurement accuracy. Third, on vehicle/ trailer emission measurements versus PEMS emission measurements of the same operation. And fourth, it will consider manufacturer voluntary submissions of data that could be used to develop a margin component that accounts for the variability in key engine parameters used in the NTE brake specific emission calculations. All of this information will be used to develop and validate a computer model which will produce a data driven accuracy margin for each of the gaseous emissions to be proposed as discussed above.

The PM emissions RDD program, scheduled to begin in 2006, will assess the same basic questions as laid out above. Its schedule is offset by approximately one year to allow for full development of the PM RDD test program plan and continued development of PM PEMS capability. The PM accuracy margins and any related provisions are 94 expected to be promulgated through rulemaking, with the intention that they apply to the 2008 model year fully enforceable program for PM emissions.

The efforts under this MOA will be managed by EPA in close coordination with CARB and the involved engine manufacturers. Progress reports will be made publicly available. Interested readers are invited to review the full text of the MOA which is available in the public docket and at the EPA/ OTAQ website for this rule.

M. Pilot Program To ensure a successful launch of the fully enforceable program for gaseous emissions testing in calendar year 2007, there will be a more limited mandatory pilot program in calendar years 2005 and 2006 for gaseous pollutants ( i. e., nonmethane hydrocarbons ( NMHC), carbon monoxide ( CO), and oxides of nitrogen ( NOx)).

Similarly, the fully enforceable program for PM will be preceded by a pilot program for that pollutant in calendar years 2006 and 2007. Additionally, one or both of the pilot programs could be extended, and the fully enforceable program delayed, in the unlikely event that the process of identifying the final accuracy margins, discussed above, is significantly delayed beyond the originally scheduled completion dates.

We will designate engine families for testing under the pilot program as described in section II. B. of this preamble. In all likelihood, we will select 2002 through 2006 model year engines for testing under the gaseous pilot program, and 2002 through 2007 95 model year engines under the PM pilot program. As discussed above, we will only designate families that have been designed to comply with the NTE. After receiving our selections, manufacturers will then conduct in use testing based on the Phase 1 testing criteria according to the scheme set forth in section II. C. of this preamble. Under those requirements, engine manufacturers must test up to 10 vehicles per designated engine family. However, Phase 1 testing will be limited to a total of five vehicles for engine manufacturers participating in the program to develop the final measurement accuracy margins for portable emission measurement systems as described in section II. L. 3. of this preamble. During the two year pilot programs for gaseous and PM emissions, both EPA and the heavy duty diesel engine manufacturers will gain valuable experience with the inuse testing protocols, and the generation, interpretation, and reporting of in use NTE emissions data.

The evaluation of these data for compliance purposes is limited to screening for exceedences of the FTP certification standards as well as the potential use of defeat devices as outlined in prior Agency guidance. The pilot program data could also be used to screen consent decree engines certified to pull ahead NTE requirements for compliance with the applicable NTE limits. If the test results for manufacturers subject to the full pilot program clearly show that the designated heavy duty diesel engine family passes the Phase 1 testing criteria ( i. e., 5 out of 5, 5 out of 6, or 8 out of 10 vehicles pass), no further testing will be is required of that engine family in that year. If the designated engine family does not clearly pass the test criteria ( i. e., 7 or fewer out of 10 vehicles pass) we will not pursue any form of remedial action based solely on that data. For manufacturers 96 participating in the program to develop the final accuracy measurement margins that must test five vehicles per designated engine family, we will likewise not pursue any form of remedial action based solely on that data. However, we may utilize these latter test results in conjunction with our own test data and other information to assess or pursue any appropriate enforcement or regulatory action.

We proposed that the certificate of conformity for an engine family may be voided if the engine manufacturer did not meet its obligations under the in use testing rules.

International Truck and Engine Company commented that during the settlement negotiations, all parties recognized that the 2005 and 2006 pilot programs must remain flexible in order for it to work. Therefore, the potential consequences of voiding a certificate of conformity for failing to strictly adhere to the 2005 and 2006 pilot programs directly contradicts the cooperative nature of the in use testing program.

We agree with the commenter that the pilot program needs to remain flexible and cooperative in nature. However, we are retaining the provision for the pilot program as a way to assure that all engine manufacturers participate in that part of the mandatory in use testing pilot program. We do not anticipate a reason to revoke a certificate of conformity if the manufacturer shows a good faith effort in conducting the pilot program.

N. Public Availability of In Use Testing Data We noted in the proposal that in use test data reported under the program would be available to the general public for review and analysis. The engine manufacturers 11 If EPA receives a request under the Freedom of Information Act for records relating to manufacturers' required in use testing, it is EPA's standard operating procedure to initially deny the requestor any responsive records containing information submitted under CBI claims by the manufacturers. The manufacturers who submitted the information under CBI claims will be required to substantiate their claims, and the EPA Office of General Counsel will make a final determination of 97 objected to providing public access to all test data and underlying information. They specifically stated that information pertaining to how a manufacturer " controls" an engine when achieving in use emissions compliance is confidential business information and must be treated as such. Manufacturers stated that public information should be limited to emission results and vehicle pass ratios.

Our goal is to ensure the confidentiality a manufacturer's confidential business information ( CBI) while making the in use test program as transparent and useful to others as possible. After carefully considering how to balance these competing interests,

we will make the following information publically available: engine family, model, and rating identification; description of test route and test conditions; engine speed and torque,

mass emissions, and work performed each at a 1 Hz interval; emissions results ( for each valid NTE event); vehicle pass ratio; and any other information needed to calculate the summary emissions results and the NTE zone for that engine. We will also make available a generic indication as to whether a deficiency or carve out has been encountered for each second of the test. Information that a manufacturer may designate as CBI will be safeguarded and withheld from public release by the Agency subject to EPA's CBI regulations. 11 Except as listed above as publically available, such information will include, confidentiality for the information. See 40 CFR 2.204 and 205.

98 but is not limited to, engine operating and control parameters designated CBI during the certification process ( including those associated with auxiliary emissions control devices)

and the information necessary to identify specific and complete regions of the NTE control zone where: 1) a manufacturer has been granted an allowance by EPA to temporarily exceed the NTE standards under certain limited circumstances ( i. e., deficiencies), or 2) the emissions contribution from a portion of the NTE zone has been limited in determining compliance with the NTE standards ( i. e., carve outs).

O. Implications for Other EPA Programs 1. EPA Testing and Supplemental Information EPA reserves its preexisting authority to conduct repeat testing or initiate our own in use testing of a manufacturer's heavy duty diesel engine family. The purpose of this testing would be primarily to verify and supplement, not duplicate, the testing program to be conducted by manufacturers. Therefore, we do not intend to conduct routine in use NTE testing of engines or engine families that satisfy the Phase 1 testing criteria, unless new information indicates that a potential nonconformity exists. We will also inform and invite the affected manufacturer to observe any in use testing that we may conduct which is related to this program. 99 2. Selective Enforcement Audit ( SEA) Testing We will limit the existing SEA program after full implementation of the manufacturer run, in use program solely to instances where credible evidence indicates the existence of a nonconformity. Such evidence may include: past noncompliance occurring in new engines or very early in the life of in use engines, a manufacturer's quality assurance/ quality control ( QA/ QC) reporting that identifies or otherwise indicates a problem, a significant number of consumer complaints or defect reports, or test data of any type.

In general, we anticipate that a robust, mature manufacturer run in use program would significantly reduce the role SEA plays in EPA's compliance program. Assembly line emissions audits ensure that the prototype emission control designs approved during the certification process successfully transfer into mass produced engines. More specifically, SEAs evaluate whether manufacturers' design enough compliance margin into the certified emissions levels to account for the emissions variability inherent to the design and manufacture of a particular engine and emissions control system.

It is expected that the in use program will require manufacturers to target emissions performance with enough compliance margin below the standards to account for expected in use deterioration, and that this margin will exceed normal emissions variability experienced in new engines. The use of aftertreatment as the primary means for emissions control is expected further to reduce EPA's reliance on SEAs as a compliance 100 tool. These systems typically function at high efficiency levels and without catastrophic failure on newer engines. If problems were to occur, it is often only apparent after the aftertreatment equipped engine has been in service for some period of time. During SEA testing, the aftertreatment system will have experienced little mileage accumulation and,

therefore, is expected to perform at essentially undeteriorated levels. For these reasons,

EPA believes SEA testing will be less critical for a vigorous enforcement program.

As mentioned previously, there are circumstances where SEAs would still be warranted. Those situations typically involve known or expected problems which occur relatively early in the engine's useful life, but have not been remedied by the manufacturer.

In those cases, it is less expensive and more effective to remedy the problem well in advance of in use testing. EPA is also interested in occasionally conducting SEAs for small engine families that may not be the focus of testing under the manufacturer run,

inuse testing program.

3. Deterioration Factor Testing Under our current emissions certification program requirements, manufacturers of heavy duty diesel engines are allowed considerable flexibility in generating deterioration factors ( DFs). The regulations only generally specify how to stabilize the engine system prior to conducting the durability testing. All other aspects of generating DFs, such as the durability test cycle and the duration of the testing, are left to the good engineering 101 judgement of the engine manufacturer. Given this latitude, manufacturers have settled on a fairly standard set of methodologies for generating DFs.

Deterioration factors are generated in the laboratory using an engine dynamometer. After the engine is stabilized, it is exercised over a durability driving cycle for a period of time or mileage established by the engine manufacturer as mentioned previously. Emissions are measured over this cycle at intervals specified by the engine manufacturer. The measured emissions are plotted as a function of time or mileage and a statistical curve fitting method is used to calculate emissions deterioration over time.

Since the emission tests are not typically performed to the end of engine's useful life, the curve fit is extrapolated to estimate useful life emissions. Either the measured initial,

early life emissions are subtracted from the extrapolated useful life emissions ( additive DF), or the useful life emissions are divided by the early life emissions ( multiplicative DF),

depending on the emissions control technology, to calculate the DF and arrive at the official deteriorated certification test results.

The 2004 and 2007 low emission standards required for heavy duty diesel engines has placed the efficacy of how these traditional DF methodologies are developed and applied under increased scrutiny by both EPA and the engine manufacturers. The reasons are twofold. First, aftertreatment and add on emissions control technologies such as cooled EGR are more prone to deterioration compared to past engine designs. Second,

compliance with the emissions standards becomes more sensitive to the uncertainty in the emissions trends resulting from these common DFs methods as the stringency of the 102 standards increases. In the past, manufacturers could target emissions far enough below the relatively relaxed emissions standards in order to account for the inherent DF variability. The increased stringency of the 2004 and 2007 standards have reduced those traditional compliance margins, leaving less headroom to account for DF uncertainty.

Exacerbating the issue is the traditional use of multiplicative DFs which mathematically result in a larger deteriorated emissions value compared to an additive approach.

The most likely solution for addressing the loss in confidence with current DF methods in the near term is for EPA and the engine manufacturers to work cooperatively to establish more robust accelerated DF methodologies in the laboratory. This would provide more certain deteriorated certification emission results. Discussions on such a solution have already started on an informal basis with individual manufacturers and will become more structured with industry in the near future.

As a longer term approach, it may be possible to reduce or eliminate the current laboratory based DF methods by using the test results generated as part of the proposed manufacturer run in use testing program or test data from other in use testing that utilizes portable emission measurement systems to more accurately predict in use deterioration.

For example, a manufacturer may be able to demonstrate that DFs generated from the inuse data are superior predictors of useful life deterioration, or at least correlate well with the more traditional laboratory approach to developing these factors. To this end, we intend to assess the generation and submission of DFs based on the proposed 2005 and 2006 pilot program. We will examine potential ways to diminish or eliminate burdens on 103 manufacturers of generating and submitted DFs, while still generating DFs that accurately predict in use deterioration. Any appropriate revisions for generating DFs would be promulgated in a subsequent rulemaking action, particularly in the rulemaking reexamining the accuracy margin discussed in II. F. above.

P. Limitations of Warranty Claims An exceedence of the NTE found through the in use testing program is not by itself sufficient to show a breach of the warranty under Section 207( a)( 1)( A) or ( B). A breach of this warranty would also require either: 1) that, at the time of sale, the engine or vehicle was designed, built and equipped in a manner that does not conform in all material respects reasonably related to emission controls to the engine as described in the application for certification and covered by the certificate, or 2) a defect in materials and workmanship of a component or part that causes the vehicle or engine to fail to conform to the applicable regulations for its useful life. To the extent that in use NTE testing does not reveal such a material deficiency at the time of sale in the design or manufacture of an engine compared to the certified engine, or a defect in the materials and workmanship of a component or part, test results showing an exceedence of the NTE by itself would not show a breach of the warranty under Section 207( a)( 1).

III. Economic Impacts 104 The costs associated with the rule to implement a manufacturer run, in use NTE testing program for heavy duty diesel engines depends primarily on how many vehicles are eventually tested under the Phase 1 and 2 testing schemes. This is difficult to estimate because the actual number for each designated engine family depends on how may vehicles pass, or fail, the vehicle pass criteria at various points in the tiered testing design. It is also highly dependent on the how manufacturers chose to conduct the test program and the availability of test vehicles. However, based on our experience with in use emissions testing, including the development and use of portable measurement systems for compliance testing, and comments from an engine manufacturer we identified a reasonable testing scenario that allow us to estimate the potential costs associated with the program. This analysis is based on 13 manufacturers who certified 71 engine families in 2005. Costs are in 2004 dollars.

Our analysis shows a total cost of approximately $ 1.6 million per year for the case where no manufacturer must test more than the minimum number of vehicles under Phase 1 ( i. e., 5 vehicles per engine family). If all manufacturers were to test the maximum number of vehicles required under Phase 1 ( i. e., 10 vehicles per engine family), the total cost would be about $ 1.7 million per year. In the most unlikely worst case scenario where all manufacturers must test the maximum vehicles in Phase 1 and 2 ( i. e., 20 vehicles per engine family), the total cost would be about $ 2.1 million per year. Our best estimate of the overall cost of the proposed program is $ 1.7 million per year for the entire industry.

The Technical Support Document for this rule contains a detailed description of our economic analysis. 105 Overall, while not insignificant, these costs are quite low compared to other in use compliance programs. Moreover, they are especially attractive in comparison to a more traditional in use testing program where the engine must be extracted from the vehicle and tested on an engine dynamometer in the laboratory. In that situation, each engine test could cost $ 25,000 if the vehicle could be procured from an in use fleet.

IV. Public Participation In the proposed rule, we invited public participation in a public hearing and a comment period for written comments. We held the public hearing on July 15, 2004 to receive comments on the rule. Only the on highway, heavy duty diesel engine manufacturers that are affected by the rule presented testimony. We also received written comments from about 10 organizations, ranging from state offices of environmental protection to the engine manufacturers. The previous sections of this preamble describe the significant comments and our responses. The Final Technical Support Document addresses the full range of comments.

V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 the Agency must determine whether the regulatory action is " significant" and therefore subject to review by the Office of Management and 106 Budget ( OMB) and the requirements of this Executive Order. The Executive Order defines a " significant regulatory action" as any regulatory action that is likely to result in a rule that may:

° Have an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition,

jobs, the environment, public health or safety, or State, Local, or Tribal governments or communities;

° Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

° Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or ° Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The Office of Management and Budget reviewed this rule under the provisions of Executive Order 12866. Any new costs associated with this rule will be small. See the Technical Support Document for more information.

B. Paperwork Reduction Act The Office of Management and Budget ( OMB) has approved the information collection requirements contained in this rule under the provisions of the Paperwork 107 Reduction Act, 44 U. S. C. 3501 et seq. and has assigned OMB control number 2060 0287 ( EPA ICR # 1684.08). The Agency will collect information to ensure compliance with the provisions in this rule. Section 208( a) of the Clean Air Act requires that engine manufacturers provide information the Administrator may reasonably require to determine compliance with the regulations; submission of the information is therefore mandatory.

We will consider confidential all information meeting the requirements of Section 208( c)

of the Clean Air Act.

As shown in Table V 1, the total annual burden associated with this proposal is about 3,614 hours and $ 1,669,000 based on a projection of 13 respondents. The estimated burden for on highway, heavy duty diesel engine manufacturers is a total estimate for both new and existing reporting requirements. Burden means the total time,

effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; and transmit or otherwise disclose the information.

Table V 1.  Estimated Burden for Reporting and Recordkeeping Requirements Industry Sector Number of Respondents Annual burden hours Annual costs 108 Engines 13 3,614 $ 1,669,000 An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

C. Regulatory Flexibility Act EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule.

For purposes of assessing the impacts of this final rule on small entities, a small entity is defined as: ( 1) A small business as defined by the Small Business Administration ( SBA)' s regulations at 13 CFR 121.201; ( 2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and ( 3) a small organization that is any not for profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's final rule on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities.

The test procedures that are established by this rule pertain to heavy duty diesel engine 109 manufacturers. EPA has previously analyzed this category for impact on small entities when emission standards were finalized for this category of engines in October of 2000 ( 65 FR 59895, October 6, 2000). At that time, EPA noted that two small entities were known to be affected. Those entities were small businesses that certify alternative fuel engines or vehicles, either newly manufactured or modified from previously certified gasoline engines. The test procedures adopted by this action do not pertain to the engines manufactured by these small businesses and recent analysis supports that there are no additional small businesses that would be impacted by this action.

D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 ( UMRA), Public Law.

104 4, establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under Section 202 of the UMRA, EPA generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with " federal mandates" that may result in expenditures to state, local, and tribal governments, in the aggregate, or to the private sector, of $ 100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, Section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of Section 205 do not apply when they are inconsistent with applicable law. Moreover, Section 205 allows EPA to adopt an alternative other than the 110 least costly, most cost effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted.

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under Section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating,

and advising small governments on compliance with the regulatory requirements.

This rule contains no federal mandates for state, local, or tribal governments as defined by the provisions of Title II of the UMRA. The rule imposes no enforceable duties on any of these governmental entities. Nothing in the rule significantly or uniquely affects small governments. We have determined that this rule contains no federal mandates that may result in expenditures of more than $ 100 million to the private sector in any single year. The requirements of UMRA, therefore, do not apply to this action.

E. Executive Order 13132: Federalism Executive Order 13132, entitled " Federalism" ( 64 FR 43255, August 10, 1999),

requires EPA to develop an accountable process to ensure " meaningful and timely input by State and local officials in the development of regulatory policies that have federalism 111 implications." " Policies that have federalism implications" is defined in the Executive Order to include regulations that have " substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government."

Under Section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

Section 4 of the Executive Order contains additional requirements for rules that preempt State or local law, even if those rules do not have federalism implications ( i. e., the rules will not have substantial direct effects on the States, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government). Those requirements include providing all affected State and local officials notice and an opportunity for appropriate participation in the development of the regulation. If the preemption is not based on express or implied statutory authority, EPA also must consult, to the extent practicable, with appropriate 112 State and local officials regarding the conflict between State law and Federally protected interests within the agency's area of regulatory responsibility.

This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States,

or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled " Consultation and Coordination with Indian Tribal Governments" ( 65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure " meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications."

This rule does not have tribal implications as specified in Executive Order 13175.

This rule will be implemented at the Federal level and impose compliance costs only on heavy duty diesel, on highway engine manufacturers. Tribal governments will be affected only to the extent they purchase and use equipment with regulated engines. Thus,

Executive Order 13175 does not apply to this rule. 113 G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks Executive Order 13045, " Protection of Children from Environmental Health Risks and Safety Risks" ( 62 FR 19885, April 23, 1997) applies to any rule that ( 1) is determined to be " economically significant" as defined under Executive Order 12866, and ( 2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria,

Section 5 501 of the Order directs the Agency to evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to the Executive Order because it does not involve decisions on environmental health or safety risks that may disproportionately affect children.

H. Executive Order 13211: Actions that Significantly Affect Energy Supply,

Distribution, or Use This rule is not a " significant energy action" as defined in Executive Order 13211,

" Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, 114 or Use" ( 66 FR 28355 ( May 22, 2001)), because it is not likely to have a significant effect on the supply, distribution, or use of energy.

I. National Technology Transfer Advancement Act Section 12( d) of the National Technology Transfer and Advancement Act of 1995 (" NTTAA"), Public Law 104 113, Section 12( d) ( 15 U. S. C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e. g., materials specifications, test methods, sampling procedures,

and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. There are no voluntary consensus standards for the testing required under this final rule.

J. Congressional Review Act The Congressional Review Act, 5 U. S. C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U. S. Senate, the U. S. House of Representatives, and the Comptroller 115 General of the United States prior to publication of the rule in the Federal Register. This rule is not a " major rule" as defined by 5 U. S. C. 804( 2). The Office of Management and Budget reviewed this rule under the provisions of Executive Order 12866. Any new costs associated with this final rule will be minimal.

6. Statutory Provisions and Legal Authority Statutory authority for the engine controls adopted in this rule is in 42 U. S. C.

7401  7671q.

List of Subjects 40 CFR Part 9 Reporting and recordkeeping requirements.

40 CFR Part 86 Administrative practice and procedure, Confidential business information,

Labeling, Motor vehicle pollution, Reporting and recordkeeping requirements.

Dated:

___________________________________

Steven Johnson,

Administrator 116 For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as set forth below.

PART 9   OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT 1. The authority citation for part 9 continues to read as follows:

Authority: 7 U. S. C. 135 et seq., 136 136y; 15 U. S. C. 2001, 2003, 2005, 2006,

2601 2671; 21 U. S. C. 331j, 346a, 348; 31 U. S. C. 9701; 33 U. S. C. 1251 et seq., 1311,

1313d, 1314, 1318 1321, 1326, 1330, 1342 1344, 1345 ( d) and ( e), 1361; E. O. 11735, 38 FR 21243, 3 CFR, 1971 1975 Comp. p. 973; 42 U. S. C. 241, 242b, 243, 246, 300f, 300g,

300g 1, 300g 2, 300g 3, 300g 4, 300g 5, 300g 6, 300j 1, 300j 2, 300j 3, 300j 4, 300j 9,

1857 et seq., 6901 6992k, 7401 7671q, 7542, 9601 9657, 11023, 11048.

2. Section 9.1 is amended in the table by adding an entry in numerical order to read as follows:

§ 9.1 OMB approvals under the Paperwork Reduction Act.

* * * * *

40 CFR citation OMB control No.

* * * * *

Control of Emissions From New and In Use Marine Compression Ignition Engines 86.1920  86.1925 2060 0287 * * * * * 117 PART 86   CONTROL OF EMISSIONS FROM NEW AND IN USE HIGHWAY VEHICLES AND ENGINES 3. The authority citation for part 86 continues to read as follows:

Authority: 42 U. S. C. 7401  7671q.

4. Section 86.1 is amended by adding an entry at the end of the table in paragraph ( b)( 1)

and adding paragraph ( b)( 6) to read as follows:

§ 86.1 Reference materials.

* * * * *

( b) * * *

( 1) * * *

Document number and name 40 CFR part 86 reference * * * * * * *

ASTM D 975 04c Standard Specification for Diesel Fuel Oils 86.1910 * * * * *

( 6) NIST material. The following table lists material from the National Institute of Standards and Technology that we have incorporated by reference. The first column lists the number and name of the material. The second column lists the sections of this part where we reference it. Anyone may purchase copies of these materials from the Government Printing Office, Washington, DC 20402 or download them from the Internet at http:// www. nist. gov/. 118 Document number and name Part 86 reference NIST Special Publication 811, Guide for the Use of the International System of Units ( SI), 1995 Edition. 86.1901 5. Section 86.007 11 is amended by adding paragraph ( a)( 4)( vi) to read as follows:

§ 86.007 11 Emission standards and supplemental requirements for 2007 and later model year diesel heavy duty engines and vehicles.

* * * * *

( a)* * *

( 4)* * *

( vi) Manufacturers's are not required to provide engine information exclusively related to in use testing as part of initial certification. However, upon request from EPA the manufacturers must provide the information which clearly identifies parameters defining all NTE deficiencies described under paragraph ( a)( 4)( iv) of this section and parameters defining all NTE limited testing regions described under § 86.1370 2007( b)( 6) and ( 7) that are requested. When requested,

deficiencies and limited testing regions must be reported for all engine families and power ratings in English with sufficient detail for us to determine if a particular deficiency or limited testing region will be encountered in the emission test data from the portable emission sampling equipment and field testing procedures referenced in § 86.1375. Such information is to be provided within 60 days of the request from EPA.

* * * * * 119 6. A new § 86.1375 2007 is added to read as follows:

§ 86.1375 2007 Equipment specifications for field testing.

For testing conducted with engines installed in vehicles, including field testing conducted to measure emissions under Not To Exceed test procedures, use the test procedures and equipment specified in 40 CFR part 1065, subpart J.

7. A new subpart T is added to read as follows:

Subpart T   Manufacturer Run In Use Testing Program for Heavy Duty Diesel Engines Sec.

86.1901 What testing requirements apply to my engines that have gone into service?

86.1905 How does this program work?

86.1908 How must I select and screen my in use engines?

86.1910 How must I prepare and test my in use engines?

86.1912 How do I determine whether an engine meets the vehicle pass criteria?

86.1915 What are the requirements for Phase 1 and Phase 2 testing?

86.1917 How does in use testing under this subpart relate to the emission related warranty in Section 207( a)( 1) of the Clean Air Act?

86.1920 What in use testing information must I report to EPA?

86.1925 What records must I keep?

86.1930 What special provisions apply from 2005 through 2007?

86.1935 What special provisions may apply as a consequence of a delay in the accuracy margin report for portable emission measurement systems? 120 Appendix I to Subpart T   Sample Graphical Summary of NTE Emission Results § 86.1901 What testing requirements apply to my engines that have gone into service?

( a) If you manufacture diesel heavy duty engines above 8500 lbs. GVWR that are subject to engine based exhaust emission standards under this part, you must test them as described in this subpart. You must measure all emissions listed in § 86.1910( d) other than PM beginning in calendar year 2005 and you must measure PM emissions beginning in calendar year 2006. See § § 86.1930 and 86.1935 for special provisions that may apply to manufacturers in the early years of this program.

( b) We may void your certificate of conformity for an engine family if you do not meet your obligations under this subpart. We may also void individual tests and require you to retest those vehicles or take other appropriate measures in instances where you have not performed the testing in accordance with the requirements described in this subpart.

( c) In this subpart, the term " you" refers to the certificate holder for any engines subject to the requirements of this subpart.

( d) In this subpart, round means to round numbers according to NIST Special Publication 811( incorporated by reference in § 86.1).

§ 86.1905 How does this program work?

( a) You must test in use engines from the families we select. We may select the following number of engine families for testing, except as specified in paragraph ( b) of this section: 121 ( 1) We may select up to 25 percent of your engine families in any calendar year,

calculated by dividing the number of engine families you certified in the model year corresponding to the calendar year by four and rounding to the nearest whole number.

We will consider only engine families with annual U. S. directed production volumes above 1,500 units in calculating the number of engine families subject to testing each calendar year under the annual 25 percent engine family limit. In addition, for model year 2007 through 2009, identical engine families that are split into two subfamilies under § 86.007 15( m)( 9) will count as only one engine family. If you have only three or fewer families that each exceed an annual U. S. directed production volume of 1,500 units, or if you have no engine families above this limit, we may select one engine family per calendar year for testing.

( 2) Over any four year period, we will not select more than the average number of engine families that you have certified over that four year period ( the model year when the selection is made and the preceding three model years), based on rounding the average value to the nearest whole number.

( b) If there is clear evidence of a nonconformity with regard to an engine family, we may select that engine family without counting it as a selected engine family under paragraph ( a) of this section. We will consult with you in reaching a conclusion whether clear evidence of a nonconformity exists for any engine family. In general, there is clear evidence of a nonconformity regarding an engine family under this subpart in any of the following cases: 122 ( 1) The engine family was not remedied but is a carry over from an engine family you tested under this subpart and was subsequently remedied based at least in part on the Phase 1 or Phase 2 testing outcomes described in § 86.1915.

( 2) The engine family was not remedied but is a carry over from an engine family that was remedied based on an EPA in use testing program.

( c) We may select any individual engine family for testing, regardless of its production volume, as long as we do not select more than the number of engine families described in paragraph ( a) of this section. We may select an engine family from the current model year or any previous model year, except that we will not select any engine families from model years before 2007 beginning in the following calendar years:

( 1) 2007 for all emissions testing other than PM testing.

( 2) 2008 for PM testing.

( d) You must complete all the required testing and reporting under this subpart within 18 months after we direct you to test a particular engine family. We will typically select engine families for testing and notify you in writing by June 30 of the applicable calendar year. You may ask for up to six months longer to complete Phase 2 testing if there is a reasonable basis for needing more time. In very unusual circumstances you may request an additional six months to complete Phase 2 testing.

( e) If you make a good faith effort to access enough test vehicles to complete Phase 1 or Phase 2 testing requirements under this subpart for an engine family, but are unable to do so, you must ask us either to modify the testing requirements for the selected engine family or, in the case of Phase 1 testing, to select a different engine family. 123 ( f) After you complete the in use testing requirements for an engine family that we selected for testing in a given calendar year, we may select that same family in a later year to evaluate the engine family's compliance closer to the end of its useful life. This would count as an additional engine family selection under paragraph ( a) of this section, except as described in paragraph ( b) of this section.

( g) For any communication related to this subpart, contact the Engine Programs Group Manager ( 6405 J), U. S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,

Washington, DC 20460.

§ 86.1908 How must I select and screen my in use engines?

( a) Once we direct you to do testing under this subpart, you must make arrangements to select test vehicles and engines that meet the following criteria:

( 1) The engines must be representative of the engine family.

( 2) The usage of the vehicles must be representative of typical usage for the vehicles'

particular application.

( 3) The vehicles come from at least two independent sources.

( 4) The key vehicle/ engine systems ( e. g., power train, drive train, emission control)

have been properly maintained and used.

( 5) The engines have not been tampered with, rebuilt or undergone major repair that could be expected to affect emissions.

( 6) The engines have not been misfueled. For example, an engine may be considered misfueled if operated on a biodiesel fuel blend that is either not listed as allowed or 124 otherwise indicated to be an unacceptable fuel in the vehicle's owner or operator manual.

( 7) The engines do not have an illuminated MIL or stored OBD trouble code that lead you to reject the vehicle from the test program as described in § 86.1910( b)( 2).

( 8) The vehicles are likely to operate for at least three hours ( excluding idle) over a complete shift day, as described in § 86.1910( g).

( 9) The vehicles have not exceeded the applicable useful life, in miles or years ( see subpart A of this part); you may otherwise not exclude engines from testing based on their age or mileage.

( 10) The vehicle has appropriate space for safe and proper mounting of the PEMS equipment.

( b) You must keep any records of a vehicle's maintenance and use history you obtain from the owner or operator, as required by § 86.1925. You must report the engine's maintenance and use history and information related to the OBD system, as described in § 86.1920.

( c) You must notify us before rejecting a candidate vehicle for reasons other than failing to meet the acceptance criteria in paragraph ( a) of this section. A candidate vehicle is any prospective vehicle you have identified to potentially fulfill your testing requirements under this subpart. Include your reasons for rejecting each vehicle. If an owner declines to participate in the test program, you may reject the vehicle without prior notification.

Such a rejection must be reported as described in § 86.1920. We may allow you to replace the rejected vehicle with another candidate vehicle to meet your testing requirements for the specific engine family. 125 ( d) You must report when, how, and why you reject candidate vehicles, as described in § 86.1920.

§ 86.1910 How must I prepare and test my in use engines?

( a) You must limit maintenance to what is in the owners manual for engines with that amount of service and age. For anything we consider an adjustable parameter ( see § 86.094 21( b)( 1)( ii) and § 86.094 22( e)), you may adjust that parameter only if it is outside of its adjustable range. You must then set the adjustable parameter to the midpoint of its adjustable range or your recommended setting, unless we approve your request to do otherwise. You must receive permission from us before adjusting anything not considered to be an adjustable parameter. You must keep records of all maintenance and adjustments, as required by § 86.1925. You must send us these records, as described in § 86.1920( b)( 3)( x), unless we instruct you not to send them.

( b) You may treat a vehicle with an illuminated MIL or stored trouble code as follows:

( 1) If the length of MIL illumination or trouble code storage is consistent with proper maintenance and use, either test the prospective test vehicle as received or repair the vehicle before testing. If you elect to repair the vehicle/ engine, but ultimately determine that repairs cannot be completed in a timely manner, you may reject the vehicle from the test program and replace it with another vehicle. If you repair or reject the vehicle, you must describe the MIL or trouble code information in your report under § 86.1920.

( 2) If the length of MIL illumination or trouble code storage is inconsistent with proper maintenance and use, either test the prospective test vehicle as received, repair 126 the vehicle before testing, or reject the vehicle from the test program and replace it with another vehicle. If you repair or reject the vehicle, you must describe the MIL or trouble code information in your report under § 86.1920.

( 3) If a MIL is illuminated or a trouble code is set during an in use test, do one of the following:

( i) Stop the test, repair the vehicle, and restart the testing. In this case, only the portion of the full test results without the MIL illuminated or trouble code set would be used in the vehicle pass determination as described in § 86.1912.

Describe the MIL or trouble code information in your report under § 86.1920.

( ii) Stop the test, repair the vehicle, and initiate a new test. In this case, only the post repair test results would be used in the vehicle pass determination as described in § 86.1912. Describe the MIL or trouble code information in your report under § 86.1920.

( iii) If three hours of non idle operation have been accumulated prior to the time a MIL is illuminated or trouble code set, stop the test and use the accumulated test results in the vehicle pass determination as described in § 86.1912.

( iv) If three hours of non idle operation have not been accumulated prior to the time a MIL is illuminated or trouble code is set, and you elect to repair the vehicle/ engine, but ultimately determine that repairs cannot be completed in a timely manner, you may reject the vehicle from the test program and replace it with another vehicle. If you repair or reject the vehicle, you must describe the MIL or trouble code information in your report under § 86.1920.

( c) Use appropriate fuels for testing, as follows: 127 ( 1) You may use any diesel fuel that meets the ASTM D 975 specifications for No. 2

D S500 or No. 2 D S15, as required in the calendar year that in use testing occurs ( incorporated by reference in § 86.1).

( 2) You may use any biodiesel fuel blend that is either expressly allowed or not otherwise indicated as an unacceptable fuel in the vehicle's owner or operator manual or in the engine manufacturer's published fuel recommendations.

( 3) You may drain a prospective test vehicle's fuel tank( s) and refill the tank( s) with diesel fuel conforming to ASTM D 975 specifications described in paragraph ( c)( 1) of this section.

( 4) Any fuel that is added to the fuel tank( s) of a prospective test vehicle, or during an in use test, must be purchased at a local retail establishment near the site of vehicle procurement or screening, or along the test route. Alternatively, the fuel may be drawn from a central fueling source, provided that the fuel used is representative of that which is commercially available in the area where the vehicle is operated.

( 5) No post refinery fuel additives are allowed, except that one or more specific fuel additives may be used during in use testing if you can document that the owner/ operator of the prospective test vehicle has a history of normally using the fuel treatment( s), and the fuel additive( s) is not prohibited in the vehicle's owner or operator manual or in the engine manufacturer's published fuel additive recommendations.

( 6) You may take fuel samples from test vehicles to ensure that appropriate fuels were used during in use testing. If a vehicle fails the vehicle pass criteria and you can show that an inappropriate fuel was used during the failed test, that particular test may be 128 voided. You may drain the vehicle's fuel tank( s) and refill the tank( s) with diesel fuel conforming to the ASTM D 975 specifications described in paragraph ( c)( 1) of this section. You must report any fuel tests that are the basis of voiding a test in your report under § 86.1920.

( d) You must test the selected engines while they remain installed in the vehicle. Use portable emission sampling equipment and field testing procedures referenced in § 86.1375. Measure emissions of THC, NMHC ( by any method specified in 40 CFR part 1065, subpart J), CO, NOx, PM ( as appropriate), O 2, and CO 2.

( e) For Phase 1 testing, you must test the engine under conditions reasonably expected to be encountered during normal vehicle operation and use consistent with the general NTE requirements described in § 86.1370 2007( a). For the purposes of this subpart, normal operation and use would generally include consideration of the vehicle's normal routes and loads ( including auxiliary loads such as air conditioning in the cab), normal ambient conditions, and the normal driver.

( f) For Phase 2 testing, we may give specific directions, as described in § 86.1915( c)( 2).

( g) Once an engine is set up for testing, test the engine for at least one shift day. To complete a shift day's worth of testing, start sampling at the beginning of a shift and continue sampling for the whole shift, subject to the calibration requirements of the portable emissions measurement systems. A shift day is the period of a normal workday for an individual employee. If the first shift day of testing does not involve at least 3 hours of accumulated non idle operation, repeat the testing for a second shift day. If the second shift day of testing also does not result in least 3 hours of accumulated non idle operation,

you may choose whether or not to continue testing with that vehicle. If after two shift 129 days you discontinue testing before accumulating 3 hours of non idle operation on either day, evaluate the valid NTE samples as described in § 86.1912 and include the data in the reporting and record keeping requirements specified in § § 86.1920 and 1925. Count the engine toward meeting your testing requirements under this subpart and use the data for deciding whether additional engines must be tested under the applicable Phase 1 or Phase 2 test plan.

( h) You have the option to test longer than the two shift day period described in paragraph ( g) of this section.

( i) You may count a vehicle as meeting the vehicle pass criteria described in § 86.1912 if a shift day of testing or two shift days of testing ( with the requisite non idle/ idle operation time as in paragraph ( g) of this section), or if the extended testing you elected under paragraph ( h) of this section does not generate a single valid NTE sampling event, as described in § 86.1912( b). Count the engine towards meeting your testing requirements under this subpart.

( j) You may ask us to waive measurement of particular emissions if you can show that inuse testing for such emissions is not necessary.

§ 86.1912 How do I determine whether an engine meets the vehicle pass criteria?

In general, the average emissions for each regulated pollutant must remain at or below the NTE threshold in paragraph ( a) of this section for at least 90 percent of the valid NTE sampling events, as defined in paragraph ( b) of this section. For 2007 through 2009 model year engines, the average emissions from every NTE sampling event must also 130 remain below the NTE thresholds in paragraph ( f)( 2) of this section. Perform the following steps to determine whether an engine meets the vehicle pass criteria:

( a) Determine the NTE threshold for each pollutant subject to an NTE standard by adding all three of the following terms and rounding the result to the same number of decimal places as the applicable NTE standard:

( 1) The applicable NTE standard.

( 2) The in use compliance testing margin specified in § 86.007 11( h), if any.

( 3) An accuracy margin for portable in use equipment when testing is performed under the special provisions of § 86.1930, depending on the pollutant, as follows:

( i) NMHC: 0.17 grams per brake horsepower hour.

( ii) CO: 0.60 grams per brake horsepower hour.

( iii) NOx: 0.50 grams per brake horsepower hour.

( iv) PM: 0.10 grams per brake horsepower hour.

( 4) Accuracy margins for portable in use equipment for testing not performed under the special provisions of § 86.1930, to be determined by rulemaking as indicated in § 86.1935.

( b) For the purposes of this subpart, a valid NTE sampling event consists of at least 30 seconds of continuous operation in the NTE control area. An NTE event begins when the engine starts to operate in the NTE control area and continues as long as engine operation remains in this area ( see § 86.1370). When determining a valid NTE sampling event,

exclude all engine operation in approved NTE limited testing regions under § 86.1370

2007( b)( 6) and any approved NTE deficiencies under § 86.007 11( a)( 4)( iv). Engine operation in the NTE control area of less than 30 contiguous seconds does not count as a 131 valid NTE sampling event; operating periods of less than 30 seconds in the NTE control area, but outside of any allowed deficiency area or limited testing region, will not be added together to make a 30 second or longer event. Exclude any portion of a sampling event that would otherwise exceed the 5.0 percent limit for the time weighted carve out defined in § 86.1370 2007( b)( 7). For EGR equipped engines, exclude any operation that occurs during the cold temperature operation defined by the equations in § 86.1370 2007( f)( 1).

( c) Calculate the average emission level for each pollutant over each valid NTE sampling event as specified in 40 CFR part 1065, subpart G, using each NTE event as an individual test interval. This should include valid NTE events from all days of testing.

( d) Calculate a time weighted vehicle pass ratio ( R pass) for each pollutant. To do this,

first sum the time from each valid NTE sampling event whose average emission level is at or below the NTE threshold for that pollutant, then divide this value by the sum of the engine operating time from all valid NTE events for that pollutant. Round the resulting vehicle pass ratio to two decimal places.

( 1) Calculate the time weighted vehicle pass ratio for each pollutant as follows:

pass 1 pass 1 n m n k t R t =

= =

total Where: 132 n pass = the number of valid sampling events for which the average emission level is at or below the NTE threshold.

n total = the total number of valid NTE sampling events.

( 2) For both the numerator and the denominator of the vehicle pass ratio, use the smallest of the following values for determining the duration, t, of any NTE sampling event:

( i) The measured time in the NTE control area that is valid for an NTE sampling event.

( ii) 600 seconds.

( iii) 10 times the length of the shortest valid NTE sampling event for all testing with that engine.

( e) The following example illustrates how to select the duration of NTE sampling events for calculations, as described in paragraph ( d) of this section:

NTE sample Duration of NTE sample ( seconds) Duration Limit Applied? Duration used in calculations ( seconds) 1 45 No 45 2 168 No 168 3 605 Yes. Use 10 times shortest valid NTE. 450 4 490 Yes. Use 10 times shortest valid NTE. 450 5 65 No 65 ( f) Engines meet the vehicle pass criteria under this section if they meet both of the following criteria: 133 ( 1) The vehicle pass ratio calculated according to paragraph ( d) of this section must be at least 0.90 for each pollutant.

( 2) For model year 2007 through 2009 engines, emission levels from every valid NTE sampling event must be less than 2.0 times the NTE thresholds calculated according to paragraph ( a) of this section for all pollutants, except that engines certified to a NOx FEL at or below 0.50 g/ bhp hr may meet the vehicle pass criteria for NOx if measured NOx emissions from every valid NTE sample are less than either 2.0 times the NTE threshold for NOx or 2.0 g/ bhp hr, whichever is greater.

§ 86.1915 What are the requirements for Phase 1 and Phase 2 testing?

For all selected engine families, you must do the following:

( a) To determine the number of engines you must test from each selected engine family under Phase 1 testing, use the following criteria:

( 1) Start by measuring emissions from five engines using the procedures described in § 86.1375. If all five engines comply fully with the vehicle pass criteria in § 86.1912 for all pollutants, you may stop testing. This completes your testing requirements under this subpart for the applicable calendar year for that engine family.

( 2) If one of the engines tested under paragraph ( a)( 1) of this section fails to comply fully with the vehicle pass criteria in § 86.1912 for one or more pollutants, test one more engine. If this additional engine complies fully with the vehicle pass criteria in § 86.1912 for all pollutants, you may stop testing. This completes your testing requirements under this subpart for the applicable calendar year for that engine family. 134 ( 3) If your testing results under paragraphs ( a)( 1) and ( 2) of this section do not satisfy the criteria for completing your testing requirements under those paragraphs for all pollutants, test four additional engines so you have tested a total of ten engines.

( 4) An engine that fails to fully comply with the vehicle pass criteria in § 86.1912 for any pollutant does not comply with the vehicle pass criteria in § 86.1912 for the purposes of determining the number of engines to test from each selected engine family under this paragraph.

( b) For situations where a total of ten engines must be tested under paragraph ( a)( 3) of this section, the results of Phase 1 testing lead to the following outcomes:

( 1) If at least eight of the ten engines comply fully with the vehicle pass criteria in § 86.1912 for all pollutants, you may stop testing. This completes your testing requirements under this subpart for the applicable calendar year for that engine family.

( 2) If six or seven vehicles from the Phase 1 sample of test vehicles comply fully with the vehicle pass criteria in § 86.1912 for all pollutants, then you must engage in followup discussions with us to determine whether any further testing ( including Phase 2 testing), data submissions, or other actions may be warranted.

( 3) If fewer than six of the ten engines tested under paragraph ( a) of this section comply fully with the vehicle pass criteria in § 86.1912 for all pollutants, we may require you to initiate Phase 2 testing, as described in paragraph ( c) of this section.

( 4) You may under any circumstances elect to conduct Phase 2 testing following the completion of Phase 1 testing. All the provisions of paragraph ( c) of this section apply to this Phase 2 testing.

( c) If you perform Phase 2 testing for any reason, test your engines as follows: 135 ( 1) You must test ten additional engines using the test procedures described in § 86.1375, unless we require you to test fewer vehicles.

( 2) We may give you any of the following additional directions in selecting and testing engines:

( i) We may require you to select a certain subset of your engine family. This may include, for example, engines within a specific power range, engines used in particular applications, or engines installed in vehicles from a particular manufacturer.

( ii) We may direct you to test engines in a way that simulates the type of driving and ambient conditions associated with high emissions experienced during Phase 1 testing.

( iii) We may direct you to test engines in a specific state or any number of contiguous states.

( iv) We may direct you to select engines from the same sources used for previous testing, or from different sources.

( v) We may require that you complete your testing and reporting under Phase 2 within a certain period. This period may not be shorter than three months and must allow a reasonable amount of time to identify and test enough vehicles. We would generally expect this testing to be completed within the overall time period specified in § 86.1905( d).

§ 86.1917 How does in use testing under this subpart relate to the emission related warranty in Section 207( a)( 1) of the Clean Air Act? 136 ( a) An exceedance of the NTE found through the in use testing program under this subpart is not by itself sufficient to show a breach of warranty under Clean Air Act section 207( a)( 1) ( 42 U. S. C. 7541( a)( 1)). A breach of warranty would also require one of the following things:

( 1) That, at the time of sale, the engine or vehicle was designed, built, and equipped in a manner that does not conform in all material respects reasonably related to emission controls to the engine as described in the application for certification and covered by the certificate; or ( 2) A defect in materials or workmanship of a component causes the vehicle or engine to fail to conform to the applicable regulations for its useful life.

( b) To the extent that in use NTE testing does not reveal such a material deficiency at the time of sale in the design or manufacture of an engine compared with the certified engine,

or a defect in the materials and workmanship of a component or part, test results showing an exceedance of the NTE by itself would not show a breach of the warranty under 42 U. S. C. 7541( a)( 1).

§ 86.1920 What in use testing information must I report to EPA?

( a) Send us electronic reports at inuse@ epa. gov using an approved information format.

If you want to use a different format, send us a written request with justification.

( b) Within 30 days after the end of each calendar quarter, send us reports containing the test data from each engine for which testing was completed during the calendar quarter.

Alternatively, you may separately send us the test data within 30 days after you complete 137 testing for an engine. Once you send us information under this section, you need not send that information again in later reports. Prepare your test reports as follows:

( 1) For each engine family, describe how you recruited vehicles. Describe how you used any criteria or thresholds to narrow your search or to screen individual vehicles.

( 2) Include a summary of the candidate vehicles you have rejected and the reasons you rejected them, whether you base the rejection on the criteria in § 86.1908( a) or anything else. If you rejected a candidate vehicle due to misfueling, included the results of any fuel sample tests.

( 3) For the test vehicle, include the following background information:

( i) The EPA engine family designation, and the engine's model number, total displacement, and power rating.

( ii) The applicable test phase ( Phase 1 or Phase 2).

( iii) The date EPA selected the engine family for testing.

( iv) The vehicle's make and model and the year it was built.

( v) The vehicle identification number and engine serial number.

( vi) The vehicle's type or application ( such as delivery, line haul, or dump truck).

Also, identify the type of trailer, if applicable.

( vii) The vehicle's maintenance and use history.

( viii) The known status history of the vehicle's OBD system and any actions the owner or operator took to address OBD trouble codes or MIL illumination over the vehicle's lifetime.

( ix) Any OBD codes or MIL illumination that occur after you accept the vehicle for in use testing under this subpart. 138 ( x) Any steps you take to maintain, adjust, modify, or repair the vehicle or its engine to prepare for or continue testing, including actions to address OBD trouble codes or MIL illumination. Include any steps you took to drain and refill the vehicle's fuel tank( s) to correct misfueling, and the results of any fuel test conducted to identify misfueling.

( 4) For each test, include the following data and measurements:

( i) The date and time of testing, and the test number.

( ii) Shift days of testing ( see § 86.1910 ( g)), duration of testing, and the total hours of non idle operation.

( iii) Route and location of testing. You may base this description on the output from a global positioning system.

( iv) The steps you took to ensure that vehicle operation during testing was consistent with normal operation and use, as described in § 86.1910( e).

( v) Fuel test results, if fuel was tested under § 86.1908 or 86.1910.

( vi) The vehicle's mileage at the start of the test. Include the engine's total lifetime hours of operation, if available.

( vii) Ambient temperature, dewpoint, and atmospheric pressure at the start and finish of each valid NTE event.

( viii) The number of valid NTE events ( see § 86.1912( b)).

( ix) Average emissions for each pollutant over each valid NTE event. Describe the method you used to determine NMHC as specified in 40 CFR part 1065, subpart J.

See Appendix I of this subpart for an example of graphically summarizing NTE emission results. 139 ( x) Exhaust flow measurements.

( xi) Vehicle pass ratios ( see § 86.1912( d)).

( xii) Recorded one hertz test data, including, but not limited to, the following parameters:

( A) Ambient temperature.

( B) Ambient pressure.

( C) Ambient humidity.

( D) Altitude.

( E) Emissions of THC, NMHC, CO, CO 2 or O 2, NOx, and PM ( as appropriate). Report results for CH 4 if it was measured and used to determine NMHC.

( F) Differential back pressure of any PEMS attachments to vehicle exhaust.

( G) Exhaust flow.

( H) Exhaust aftertreatment temperatures, if the engine meets the specifications of § 86.1370 2007( g).

( I) Engine speed.

( J) Engine brake torque.

( K) Engine coolant temperature.

( L) Intake manifold temperature.

( M) Intake manifold pressure.

( N) Throttle position.

( O) Any parameter sensed or controlled in order to modulate the emissioncontrol system or fuel injection timing. 140 ( 5) For each engine family, identify the applicable requirements, as follows:

( i) The applicable NTE thresholds.

( ii) Vehicle and engine information needed to identify the limited testing regions under § 86.1370 2007( b)( 6) and ( 7).

( iii) Vehicle and engine information needed to identify any approved NTE deficiencies under § 86.007 11( a)( 4)( iv).

( 6) Include the following summary information after you complete testing with the engine:

( i) State whether the engine meets the vehicle pass criteria in § 86.1912( f).

( ii) Identify how many engines you have tested from the applicable engine family and how many engines still need to be tested.

( iii) Identify how many engines from an engine family have passed the vehicle pass criteria and the number that have failed the vehicle pass criteria ( see § 86.1912( f)).

( iv) If possible, state the outcome of Phase 1 testing for the engine family based on the criteria in § 86.1915( b).

( c) In your reports under this section, you must do all the following:

( 1) Include results from all emission testing required under this subpart.

( 2) Describe if any testing or evaluations were conducted to determine why a vehicle failed the vehicle pass criteria in § 86.1912.

( 3) Describe the purpose of any diagnostic procedures you conduct.

( 4) Describe any instances in which the OBD system illuminated the MIL or set trouble codes. Also describe any approved actions taken to address the trouble codes or MIL. 141 ( 5) Describe any instances of misfueling, the approved actions taken to address the problem, and the results of any associated fuel sample testing.

( 6) Describe any incomplete or invalid tests that were conducted under this subpart.

( d) Send us an electronic notification at inuse@ epa. gov describing any voluntary vehicle/ engine emission evaluation testing you intend to conduct with portable in use measurement systems on the same engine families that are being tested under this subpart,

from the time that engine family was selected for in use testing under § 86.1905 until the final results of all testing for that engine family are reported to us under this section.

( e) Send us an electronic notification at application ci_ cert@ epa. gov within 15 days after your initial review of the test data for a selected engine family indicates that three engines in Phase 1 testing have failed to comply with the vehicle pass criteria. Similarly, send us an electronic notification at the above electronic address within 3 days after your initial review of the test data for a selected engine family indicates that any engine in Phase 2 testing failed to comply with the vehicle pass criteria.

( f) We may ask you to send us less information in your reports than we specify in this section.

( g) We may require you to send us more information to evaluate whether your engine family meets the requirements of this part, or to help inform potential decisions concerning Phase 2 testing under § 86.1915.

§ 86.1925 What records must I keep?

( a) Organize and maintain your records as described in this section. We may review your records at any time, so it is important to keep required information readily available. 142 ( b) Keep the following paper or electronic records of your in use testing for five years after you complete all the testing required for an engine family:

( 1) Keep a copy of the reports described in § 86.1920.

( 2) Keep any additional records, including forms you create, related to any of the following:

( i) The procurement and vehicle selection process described in § 86.1908, including the vehicle owner's name, address, phone number, and e mail address.

( ii) Pre test maintenance and adjustments to the engine performed under § 86.1910.

( iii) Test results for all void, incomplete, and voluntary testing described in § 86.1920.

( iv) Evaluations to determine why a vehicle failed the vehicle pass criteria described in § 86.1912.

( 3) Keep a copy of the relevant calibration results required by 40 CFR part 1065.

§ 86.1930 What special provisions apply from 2005 through 2007?

We may direct you to test engines under this subpart for emissions other than PM in 2005 and 2006, and for PM emissions in 2006 and 2007. In these interim periods, all the provisions of this subpart apply, with the following exceptions:

( a) We will select engine families for testing of emissions other than PM only when the manufacturer's Statement of Compliance specifically describes the family as being designed to comply with NTE requirements.

( b) If you participate in the test program described in § 86.1935( a), you may limit your testing under Phase 1 to a maximum of five vehicles per selected engine family. 143 ( c) We will not direct you to do the Phase 2 testing in § 86.1915( c), regardless of measured emission levels.

( d) For purposes of calculating the NTE thresholds under § 86.1912( a) for any 2006 and earlier model year engine that is not subject to the emission standards in § 86.007 11,

determine the applicable NTE standards as follows:

( 1) If any numerical NTE requirements specified in the terms of any consent decree apply to the engine family, use those values as the NTE standards for testing under this subpart.

( 2) If a numerical NTE requirement is not specified in a consent decree for the engine family, the NTE standards are 1.25 times the applicable FELs or the applicable emission standards specified in § 86.004 11( a)( 1) or § 86.098 11( a)( 1).

( e) In the report required in § 86.1920( b), you must submit the deficiencies and limited testing region reports ( see § 86.007 11( a)( 4)( iv) and § 86.1370 2007( b)( 6) and ( 7)) for 2006 and earlier model year engines tested under this section.

( f) Testing under this section may be extended as described in § 86.1935( d).

§ 86.1935 What special provisions may apply as a consequence of a delay in the accuracy margin report for portable emission measurement systems?

( a) A memorandum entitled, " Memorandum of Agreement, Program to Develop Emission Measurement Accuracy Margins for Heavy Duty In Use Testing" describes a test program for establishing measurement accuracy margins related to testing under § 86.1912( a)( 4). This document is available at http:// www. epa. gov/ otaq/ hd hwy. htm or at the mailing address specified in § 86.1905( g). 144 ( b) If there is a delay in receiving the written final report for either gaseous emissions or PM emissions described in the agreement referenced in paragraph ( a) of this section, and that delay is not attributable to engine manufacturers failing to meet their commitments under that agreement, the following provisions apply for the respective pollutant type ( gaseous or PM emissions):

( 1) If the delay is 3 months or less, we will delay the designation of engine families for testing in the applicable calendar year, as described in § 86.1905( d), by the same number of additional whole months ( rounded up) needed to complete the report.

( 2) If the delay is more than 3 months but less than 12 months, we may continue to designate engine families for testing under the special provisions described in § 86.1930 for an additional year.

( 3) If the delay is longer than 12 months, the following approach is established for the applicable calendar year:

( i) If the delay is longer than 12 months but less than 15 months, we will follow the steps described in paragraph ( b)( 1) of this section.

( ii) If the delay is longer than 15 months but less than 24 months, we will follow the steps described in paragraph ( b)( 2) of this section for the applicable calendar year.

( iii) If the delay is longer than 24 months, the applicable gaseous or PM emission testing program will go into abeyance.

( c) If one or more engine manufacturers fail to meet commitments under the agreement described in paragraph ( a) of this section and such a failure results in a delay in the final written report for either gaseous emissions ( NOx, NMHC and CO) or PM emissions 145 described in the agreement, the following provisions apply for the respective pollutant type ( gaseous or PM emissions):

( 1) If the delay is 3 months or less, we will delay the designation of engine families for testing in the applicable calendar year, as described in § 86.1905( d), by the same number of additional whole months ( rounded up) needed to complete the report.

( 2) If the delay is more than 3 months but less than 12 months, the provisions of this subpart will not apply for the otherwise applicable calendar year ( 2007 for gaseous emissions and 2008 for PM emissions), subject to the following provisions:

( i) We may identify the number of engine families that would otherwise have been designated for testing in that calendar year for the delayed pollutant type and direct manufacturers to test that number of engine families under the special provisions described in § 86.1930 and additionally in any later calendar year once the provisions of this subpart begin for that pollutant type, without counting those accumulated engine families toward the allowable annual cap on the number of engine families specified in § 86.1905.

( ii) A delay for PM emissions would not be a sufficient basis for delaying the program for gaseous emissions. Similarly, a delay for gaseous emissions would not be a sufficient basis for delaying the program for PM emissions.

( iii) The normal 18 month period for testing and reporting results specified in § 86.1905( d) is extended to 24 months for any accumulated engine family designation described in paragraph ( c)( 2)( i) of this section. The additional time extensions for testing and reporting results as specified in § 86.1905( d) also apply. 146 ( 3) If the delay is longer than 12 months, the following approach is established for the applicable calendar year:

( i) If the delay is longer than 12 months but less than 15 months, we will follow the steps described in paragraph ( c)( 1) of this section.

( ii) If the delay is longer than 15 months but less than 24 months, we will follow the steps described in paragraph ( c)( 2) of this section for the applicable calendar year.

( iii) If the delay is longer than 24 months, we will continue to follow the steps described in paragraphs ( c)( 1) and ( c)( 2) of this section, including the accumulation of engine families for testing, until the report is received and the fully implemented program commences.

( d) We may determine that any individual manufacturer's failure under paragraph ( c) of this section constitutes a failure by all engine manufacturers.

( e) Nothing in this section affects our ability to select engines from any model year beginning with model year 2007.

( f) If we determine that fundamental technical problems with portable in use PM measurement systems are not resolvable in a reasonable time, the provisions of this subpart, as they apply to PM, will go into abeyance until we determine that suitable emission measurement devices are available for in use testing.

( g) As described in § 86.1930( b), engine manufacturers contributing to the test programs described in the agreement referenced in paragraph ( a) of this section may limit their testing under the special provisions described in § 86.1930 to five engines in each selected engine family. 147 Appendix I to Subpart T   Sample Graphical Summary of NTE Emission Results The following figure shows an example of a graphical summary of NTE emission results: 148