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

Federal RegisterJun 17, 1994

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SUMMARY: Section 213 of the Clean Air Act (CAA) as amended requires the

Environmental Protection Agency (EPA) to make a determination of the

significance of the contribution of nonroad sources to nonattainment of

the National Ambient Air Quality Standards (NAAQS) for ozone and carbon

monoxide (CO) in more than one nonattainment area. If the Agency makes

a positive determination of significance, it must then promulgate

regulations that will result in reductions in emissions from nonroad

sources. In today's action, EPA is finalizing the determination of

significance of emissions from nonroad engines. EPA is also

promulgating standards for carbon monoxide (CO), hydrocarbon (HC),

particulate matter (PM), oxides of nitrogen (NOX) and smoke

emissions from large nonroad compression-ignition (CI) engines at or

above 37 kilowatts (kW) in power, with exclusions for certain types of

engines. The NOX standard is expected to reduce average per unit

NOX emissions from affected engines by 27 percent before the year

2010, with a 37 percent reduction by the year 2025.

EFFECTIVE DATE: This regulation is effective July 18, 1994. The

incorporation by reference of certain publications listed in the

regulations is approved by the Director of the Federal Register as of

July 18, 1994. The information collection requirements contained in 40

CFR 89.114-96 through 89.120-96, 89.122-96 through 89.127-96, 89.129-

96, 89.203-96 through 89.207-96, 89.209-96 through 89.211-96, 89.304-96

through 89.331-96, and 89.404-96 through 89.424-96 have not been

approved by the Office of Management and Budget (OMB) and are not

effective until OMB has approved them. A technical amendment will be

published in the Federal Register when OMB has approved the information

collection requirements.

ADDRESSES: Materials relevant to this final rule are contained in

Docket No. A-91-24 and A-91-18, located at the Air Docket, 401 M Street

SW., Washington, DC 20460, and may be reviewed in room M-1500 from 8

a.m. until noon and from 1:30 p.m until 3:30 p.m. Monday through

Friday. As provided in 40 CFR part 2, a reasonable fee may be charged

by EPA for photocopying docket materials.

FOR FURTHER INFORMATION CONTACT: Linda Hormes, Office of Mobile

Sources, Certification Division, (313) 668-4502.

SUPPLEMENTARY INFORMATION:

Electronic Availability

The preamble, regulatory language and regulatory support document

are available electronically on the Technology Transfer Network (TTN).

TTN is an electronic bulletin board system (BBS) operated by EPA's

Office of Air Quality Planning and Standards. Users are able to access

and download TTN files on their first call. After logging onto TTN BBS,

to navigate through the BBS to the files of interest, the user must

enter the appropriate command at each of a series of menus. The steps

required to access information on this rulemaking are listed below. The

service is free of charge, except for the cost of the phone call.

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

bit)

Voice Helpline: 919-541-5384

Internet address: TELNET ttnbbs.rtpnc.epa.gov

Off-line: Mondays from 8:00 AM to 12:00 Noon ET

1. Technology Transfer Network Top Menu GATEWAY TO TTN

TECHNICAL AREAS (Bulletin Boards) Command: T

2. TTN Technical Information Areas OMS--Mobile Sources

Information Command: M

3. OMS BBS === MAIN MENU Rulemaking & Reporting Command: K

4. Rulemaking Packages Non-Road Command: 6

5. NON-Road Rulemaking Area File area #2 . . . Non-Road Engines

Command: 2

6. Non-Road Engines

At this stage, the system will list all available nonroad engine

files. To download a file, select a transfer protocol which will match

the terminal software on your own computer, then set your own software

to receive the file using that same protocol.

If unfamiliar with handling compressed (i.e. ZIP'ed) files, go to

the TTN top menu, System Utilities (Command: 1) for information and the

necessary program to download in order to unZIP the files of interest

after downloading to your computer. After getting the files you want

onto your computer, you can quit the TTN BBS with the oodbye

command.

I. Table of Contents

II. Legal Authority and Background

III. Determination of Significance

IV. Definition of Nonroad Engine

V. Requirements of the Final Rule

A. Applicability

B. Standards

C. Implementation Dates

D. Certification and Test Procedures

E. Enforcement

VI. Public Participation and Discussion of Comments

A. Conversion of Standards and Measure to Metric Units

B. Emission Standards

C. Lower Emission Standards

D. Exemptions

E. Particulate Test Procedure

F. Smoke Test Procedures

G. Use of the On-highway Federal Test Procedure

H. Alternate Procedures for Constant Speed Engines

I. Certification Test Fuel

J. Certification Test Engine

K. Miscellaneous Certification Issues

L. Implementation Dates

M. In-use Enforcement

N. Useful Life

O. Locomotive Engines

P. Vehicle and Equipment Manufacturer Requirements

Q. Alternative Fuels

R. Selective Enforcement Auditing

S. Averaging, Banking, and Trading

T. Nonroad Equipment Definition

U. Definition of New

V. Definition of Locomotive

VII. Cost Analysis

VIII. Environmental Benefits

IX. Cost Effectiveness

X. Administrative Requirements

II. Legal Authority and Background

Authority for the actions in this notice is granted to EPA by

sections 202, 203, 204, 205, 206, 207, 208, 209, 213, 215, 216, and 301

of the Clean Air Act as amended (42 U.S.C. 7521, 7522, 7523, 7524,

7525, 7541, 7542, 7543, 7547, 7549, 7550, 7601(a)).

On November 15, 1990, the Clean Air Act Amendments of 1990 (CAAA)

were enacted in order to broaden and strengthen the CAA. While the CAA

had long specifically authorized EPA regulation of on-highway vehicle

and engine emissions, the 1990 amendments extended EPA's authority to

regulate nonroad vehicles and engines. Specifically, revised section

213 directs EPA to: (1) Conduct a study of emissions from nonroad

engines and vehicles; (2) determine whether emissions of CO, NOX,

and volatile organic compounds (VOCs) from nonroad engines and vehicles

are significant contributors to ozone or CO in more than one area which

has failed to attain the NAAQS for ozone or CO; and (3) regulate those

categories or classes of new nonroad engines and vehicles that

contribute to such air pollution if nonroad emissions are determined to

be significant. EPA may also regulate other emissions from new nonroad

engines or vehicles if the Agency determines that they contribute to

air pollution which may reasonably be anticipated to endanger public

health or welfare. Finally, EPA is to regulate emissions from new

locomotives by 1995.

The Nonroad Engine and Vehicle Emission Study required by section

213(a)(1) was completed in November 1991.1 The purpose of this

final rule is to implement section 213(a) (2), (3), (4), and (5) by

determining that emissions from nonroad engines and vehicles are

significant contributors to ozone and CO nonattainment and by

promulgating regulations containing standards applicable to emissions

from certain nonroad engines and vehicles.

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\1\The Nonroad Study is available in the docket for this

rulemaking. It is also available through the National Technical

Information Service, referenced as document PB 92-126960.

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III. Determination of Significance

Section 213(a)(2) of the CAA provides that after notice and public

comment, EPA is to determine, based on the Nonroad Engine and Vehicle

Emission Study (hereafter called the Nonroad Study), whether nonroad

emissions are significant contributors to ozone or CO in more than one

nonattainment area. Based on the results of the Nonroad Study and

consideration of the public comments discussed below, EPA is finalizing

its proposed affirmative significance determination in today's

rulemaking.

The majority of commenters did not address EPA's proposed

determination of significance. Of those who did, most were in

opposition, including organizations representing equipment

manufacturers and users. Expressing support for the determination were

some engine manufacturers, state and local organizations and

environmental groups. A summary of comments is found in the Response to

Comments document contained in the docket for this rule. Major comments

are discussed below, accompanied by EPA's response.

1. Use of the EKMA Model

Several commenters stated that EPA had not adequately demonstrated

a significant contribution to ozone or CO nonattainment from nonroad

engines or vehicles, as directed by the Act. These commenters argued

that EPA had shown only the nonroad contribution to ozone precursor and

CO emission inventories, and not the nonroad contribution to ozone

formation or ozone and CO nonattainment. Some commenters questioned

EPA's use of the Empirical Kinetic Modeling Approach (EKMA model) as

the basis for its air quality analysis, and they suggested that EPA

should have used a grid-based air quality model.

However, the Agency did conduct photochemical modeling. Using the

EKMA model, the Agency analyzed the effects of nonroad engine emission

controls on ozone concentrations. The results of this analysis,

presented in more detail in the Notice of Proposed Rulemaking (NPRM)

(ref. 58 FR 28809, May 17, 1993), showed that by eliminating nonroad

engines in the studied areas, ozone levels would drop between four and

13 parts per billion (ppb) below current levels. This amounts to levels

roughly three to eight percent lower than current levels in the 16

ozone nonattainment areas included in the analysis.

The EKMA model has been used by the Agency for a number of years.

Although the decision to use this model was driven to some extent by

time and resource constraints, the Agency maintains its position that

this model is valid and appropriate for the nonroad analysis. The

Agency may utilize grid-based air quality modeling in future analyses.

Furthermore, the Agency has traditionally based regulatory

decisions on pollutant emission levels and the potential for their

reduction. Because of the wide variability inherent in photochemical

modeling (source emission levels, emission transport, and

meteorological effects including ambient temperatures, cloud cover,

sunlight intensity, wind patterns, and so forth), the Agency has

typically relied on estimates of potential reductions in source

emission inventories as the basis for regulatory analyses. These

emission reduction estimates and the well established VOC/NOX link

with tropospheric ozone formation, in conjunction with ozone monitors

showing unacceptably high ambient ozone levels, have formed the basis

of the Agency's regulatory approach toward ozone control for many

years. In addition, as discussed in the NPRM, the Senate Committee

Report, in discussing the significance of the contribution of nonroad

emissions to ozone problems, specifically discussed the percentage of

nationwide NOX and VOC emissions attributed to nonroad engines.

Thus, the Senate clearly understood the relationship between emissions

of NOX and VOCs to the creation of ozone.

The NPRM discussed in detail the Nonroad Study's findings regarding

the contribution from nonroad sources of summertime VOCs and NOX.

These findings clearly show that emissions from nonroad engines are a

major source of VOCs and NOX, as well as CO in most, if not all of

the nonattainment areas studied. Given the clear link between VOCs and

NOX and the formation of ozone, there can be no question that

emissions from nonroad engines are significant contributors to ozone

formation in at least two ozone nonattainment areas. Therefore, the

Agency has met the CAA mandate to ``determine * * * whether emissions *

* * from new and existing nonroad engines or nonroad vehicles * * * are

significant contributors to ozone or carbon monoxide concentrations in

more than one area which has failed to attain the national ambient air

quality standards * * *''

2. NOX Transport

Some commenters asserted that EPA failed to properly consider both

the transport of ozone precursor emissions and the natural decay of

NOX concentrations, NOX having a lifetime of only six to ten

hours according to one commenter. One commenter suggested EPA had

erroneously assumed that ozone precursors emitted in rural areas are

transported toward, and never away from, urban areas. Some commenters

suggested that equipment operated primarily in rural areas should be

exempted from regulation since these areas do not have air quality

problems. Another commenter argued that reducing NOX can increase

ozone, therefore EPA must first show that NOX reductions will

result in reduced ozone nonattainment before promulgating regulations.

Those commenters suggesting the Agency had erroneously assumed that

NOX always will be transported toward, rather than away from, the

urban core, may have misunderstood the Agency's assumption. The Agency

assumed only that pollution transport can occur toward the urban core,

thereby contributing to high source emission inventories. It is obvious

that different days will produce different transport patterns, and that

the potential for rural NOX and/or rural ozone to be transported

toward the urban core exists.

As for the Agency's failure to account for the short lifetime of

NOX and its subsequent low likelihood of long-range transport, the

commenters failed to recognize NOX sinks. A NOX ``sink'' is a

molecular compound which stores NOX (NO and NO2) for

potential later release. Therefore, the NOX itself may disappear,

but it disappears into NOX sinks, sometimes referred to as NOy,

and can then be re-released at a later time. Examples of NOX sinks

include the nitrate radical (NO3), which forms at night in the

presence of ozone and nitrogen dioxide (NO2) and then quickly

photolyzes in the morning,\2\ and nitrous acid (HONO), probably formed

from NO2 and water, which is a major source of the hydroxyl

radical (OH), a primary constituent for tropospheric ozone

formation.\3\ Another NOX sink is peroxyacetyl nitrate (PAN),

which transports NOX over relatively large distances through the

atmosphere. The rate of PAN decomposition significantly increases with

temperature, so that it can be formed in colder regions, transported,

and then decomposed to deliver NO2 to warmer regions. Another

NOX sink, methyl peroxynitrate (CH3OONO2) can last as

many as two days in the upper troposphere and then quickly disassociate

under surface level temperature conditions, thereby providing a source

of NO2.\4\

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\2\Finlayson-Pitts, B.J., and J.N. Pitts, Jr., ``Atmospheric

Chemistry of Tropospheric Ozone Formation: Scientific and Regulatory

Implications,'' Air & Waste, Vol. 43, August 1993, p. 1091.

\3\Rethinking the Ozone Problem in Urban and Regional Air

Pollution, National Research Council, 1991.

\4\Rethinking the Ozone Problem in Urban and Regional Air

Pollution, National Research Council, 1991.

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Regarding comments that EPA is required to show that NOX

reductions will not lead to actual ozone increases, the Agency

disagrees. Most studies indicate that reductions of both VOC and

NOX will lead to reductions of ozone, except under specific

circumstances.\5\ The photochemical modeling of alternative emission

control strategies contained in the ROMNET report\6\ offers additional

support: ROMNET found that reductions in both VOC and NOX

emissions beyond the minimum requirements of the CAA and across the

northeastern U.S. would be required to bring the major East Coast

cities into attainment of the ozone standard. In addition, a National

Academy of Sciences Study\7\ states that, ``* * * ozone in rural areas

of the eastern U.S. is limited by the availability of NOX rather

than hydrocarbons, and that reductions in NOX probably will be

necessary to reduce rural ozone values.'' This same study also states

that, ``Control of NOX * * *, although it is predicted to lead to

an increase in ozone in some places, such as downtown Los Angeles and

New York City * * * will probably be necessary in addition to or

instead of VOC control to alleviate the ozone problem in many cities

and regions.'' Even under those circumstances where a NOX decrease

can result in an ozone increase, the ozone increase occurs only until a

``ridgeline'' is reached, after which further NOX control results

in reduced ozone concentrations. In areas with relatively high VOC/

NOX ratios, typical of suburban and rural areas, decreasing

NOX concentrations at constant VOC concentrations is very

effective in ozone reduction.\8\

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\5\Rethinking the Ozone Problem in Urban and Regional Air

Pollution, National Research Council, 1991.

B.J. Finalyson-Pitts and J.N. Pitts, Jr., ``Atmospheric

Chemistry of Tropospheric Ozone Formation: Scientific and Regulatory

Implications,'' Air and Waste, Vol. 43, August 1993.

\6\U.S. Environmental Protection Agency, ``Regional Oxidant

Modeling for Northeast Transport (ROMNET), EPA-450/4-91-002a,

Research Triangle Park, NC: Office of Air Quality Planning and

Standards, June 1991.

\7\Rethinking the Ozone Problem in Urban and Regional Air

Pollution, National Research Council, 1991, pp. 363 and 377.

\8\B.J. Finlayson-Pitts and J.N. Pitts, Jr., ``Atmospheric

Chemistry of Tropospheric Ozone Formation: Scientific and Regulatory

Implications,'' Air and Waste, Vol. 43, August 1993.

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3. Defining Significance

Some commenters argued that EPA cannot make a significance

determination without first defining a standard upon which to base that

determination, the claim being that without first defining what is

significant, any level of contribution could conceivably be deemed as

significant. Some commenters argued that the legislative history found

in a Senate report stating, ``Emissions from off-road and non-road

engines and vehicles now make up a significant portion of pollution * *

* [E]missions inventories from EPA estimate that farm and construction

equipment emit 3.7 percent of CO nationwide, four percent of nationwide

NOX, and 1.3 percent of total hydrocarbons * * *,''\9\ does not

provide guidance on significance, as the NPRM stated.

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

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The Agency disagrees with the contention that a specific numerical

standard for significance must be determined prior to considering

whether nonroad emissions are significant. When Congress mandated that

EPA determine the significance of nonroad emissions, Congress could

have given EPA a specific numerical mandate for determining whether

such emissions are significant contributors. Instead, Congress gave EPA

wide discretion to determine whether the emissions of NOX, VOCs

and CO from nonroad engines and vehicles are significant contributors

to ozone or CO concentrations. In any case, any reasonable indicator of

significance would conclude that emissions from nonroad engines and

vehicles were indeed significant contributors. As presented in the NPRM

and discussed above, the Agency's photochemical modeling showed that

without nonroad sources, the ozone levels of 16 of the 19 analyzed

nonattainment areas would decrease from three to eight percent from

their current levels and differences in excess of five percent were

indicated in eight of the 16 areas. Additionally, NOX emission

levels from nonroad sources were found to be exceeded by only one other

source: the generation of electrical power. Nonroad VOC emission levels

were found to be exceeded by only two other sources: light-duty highway

vehicles and solvent evaporation. Nonroad CO emission levels were found

to be exceeded by only two other sources: light-duty highway vehicles

and residential fuel use. In addition, emissions from nonroad engines

and vehicles accounted for over ten percent of the inventory of:

(1) VOCs in 12 to 14 of the 19 nonattainment areas studied in the

nonroad study;

(2) NOX in 16 to 19 of the areas studied; and

(3) CO in six to seven of the areas studied.

As pointed out in the NPRM, in numerous nonattainment areas, other

sources are regulated that have lower emissions than the total from

nonroad engines in the area. Therefore, it is reasonable to conclude

that the higher contributions from nonroad sources in those areas are

also significant enough to justify the regulation of NOX, VOC and

CO emissions from nonroad engines and vehicles.

4. Operation in Rural Areas

Some commenters stated that some equipment covered by the proposed

regulations operates primarily (almost 80 percent based on number of

units) in areas already meeting federal clean air requirements;

therefore, these commenters concluded that such equipment should not be

regulated.

The Agency believes that these pieces of equipment can reasonably

be expected to contribute to ozone nonattainment. Also, the Agency has

determined that it should not regulate engines only in urban

nonattainment areas. Most commenters made strong arguments

substantiating the need for national uniformity of treatment for all

equipment incorporating regulated engines regardless of the intended

geographic area of equipment use. Moreover, Title II of the Act

generally requires national regulation of mobile sources, given the

inherent ability of such sources to move from one area to another.

Also, as discussed, nonroad sources have been clearly shown to

contribute significantly to pollution in several nonattainment areas.

5. Significance Determination for Classes and Categories of Nonroad

Engines

Some commenters stated that various subcategories of nonroad

equipment (e.g., farm equipment, mining equipment) individually

represent only a small contribution to national pollutant inventories

and to nonattainment and that a significance determination should be

made for each specific subcategory of nonroad engine, not for nonroad

engines as a whole.

These comments have misinterpreted the clear language of section

213(a). Paragraphs one and two of section 213(a) make it clear that

EPA's determination of significance should be based on whether

emissions from all new and existing nonroad engines are significant

contributors to ozone or CO concentrations. There is no indication that

the significance determination should be based on contributions from

various subcategories of nonroad engines or vehicles. By contrast, if

the Administrator makes an affirmative decision regarding significance,

then section 213(a)(3) requires the Administrator to promulgate

regulations for those classes and categories of nonroad engines and

vehicles ``which in the Administrator's judgment cause, or contribute

to, such air pollution.'' This mandate does not include any reference

to a determination of significance for classes and categories. Thus,

the Agency believes that Congress did not intend a showing of

significant contribution to be required for regulation of classes or

categories of nonroad engines and vehicles.

This interpretation is echoed by the language in section 213(a)(4)

which allows the Agency to regulate new nonroad engine emissions that

were not referred to in the Nonroad Study. Under this paragraph, if the

Agency determines that any such emissions significantly contribute to

air pollution which may reasonably be anticipated to endanger the

public health or welfare, the Agency may promulgate regulations

applicable to those classes or categories of new nonroad engines and

vehicles which in the Administrator's judgment cause or contribute to

such air pollution. Once again, there is a reference to significant

contribution regarding the initial determination on emissions from all

nonroad engines or vehicles, but there is no such reference to

significance in the subsequent language regarding regulation of classes

or categories of engines and vehicles. Therefore, it seems clear that

Congress intended that a showing of significance is not required for

regulation of classes or categories of nonroad engines and vehicles.

One commenter suggested that EPA had misinterpreted the statute's

requirements based on a perceived inconsistency between that

interpretation and the Agency's proposed consent decree settling

several lawsuits.10 This commenter stated that, in the proposed

consent decree, EPA had implicitly acknowledged its obligation to make

the significance determination for each category or class of products

it intends to regulate by specifically reserving its ``right'' to

determine that large gasoline and/or small diesel nonroad engines do

not cause or contribute to air pollution within the meaning of section

213(a)(3). Such a reservation, this commenter argued, would be

meaningless if EPA were permitted, as proposed in the NPRM, to regulate

any category or class of nonroad engine or nonroad vehicle regardless

of its contribution to ozone or CO concentrations in nonattainment

areas.

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

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The Agency disagrees with the assertion that there is an

inconsistency between the Agency's proposed consent decree and the

NPRM. In fact, the consent decree does not discuss any determination of

``significant contribution'' for classes or categories of nonroad

engines. The decree only discusses ``contribution''. The Agency assumes

this comment is meant to suggest that prior to regulating, EPA must

first show that each equipment type (agricultural, construction,

mining, and so forth) contributes significantly to nonattainment. As

discussed above, the Agency interprets the Act to provide for

regulation of any classes or categories of nonroad engines and vehicles

that can be shown to cause or contribute to air pollution. The NPRM

discussed the contribution to air pollution of the engine size and type

being regulated today. The Agency reserves the right to use other class

or category types in future nonroad emissions regulations.

6. Equipment Distribution/Use of Consolidated Metropolitan Statistical

Areas (CMSA)

Some commenters stated that EPA's use of CMSAs to define the urban

areas was inappropriate. These commenters asserted that since many

CMSAs encompass an area roughly equivalent to a 100 mile diameter, much

of the CMSA is rural. Consequently, EPA has assumed a uniform

distribution of nonroad equipment resulting in as many farm tractors in

downtown New York City as in the surrounding countryside, according to

comments.

Comments that EPA assumed a uniform distribution of equipment

within areas evaluated in the Nonroad Study, thereby resulting in an

equal number of farm tractors in both downtown New York City and the

surrounding countryside, are incorrect. The equipment population

distributions used in the Nonroad Study were derived from estimates of

activity levels within specific counties of each CMSA. A county, such

as that containing Manhattan, would presumably show an activity index

for agricultural equipment presumably at or near zero. Therefore, the

agricultural equipment population estimate for Manhattan would also be

at or near zero.11

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\1\1The methodology is documented in the Energy and

Environmental Analysis final report entitled ``Methodology to

Estimate Nonroad Equipment Populations by Nonattainment Areas,''

available for review in Docket #A-91-24, Item No. II-A-3.

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7. Support of the Agency's Determination of Significance

Some commenters supported the Agency's proposed significance

determination. One engine manufacturer supported grouping the 80-plus

types of nonroad equipment together instead of evaluating and

regulating each type of equipment separately. This commenter also

stated that it is not cost effective to build parallel regulated/

unregulated engine families for the U.S. market to support regulated

and unregulated applications.

A State commented that it is particularly important that any EPA

regulation control emissions from construction and farm equipment, as

those emissions cannot be controlled by state or local agencies. It

cited its own estimates that agricultural equipment contributes over 90

tons per day of NOX in the State of California. Much of these

emissions occur in the San Joaquin valley and are a primary contributor

to the nonattainment status of that overwhelmingly agricultural area.

In addition, a major city agreed with the Agency's significance

determination, stating that further reductions in VOC, CO, and NOX

were essential to achieving attainment. A regional association of

states also supported the Agency's determination of significance,

stating that engines subject to the proposed standards are responsible

for approximately 11 percent of all NOX emitted in its region,

making control of emissions from these sources critical to their

efforts to meet the statutory requirements of the CAA. An environmental

association stated that without significant reductions from nonroad

engines, states will not be able to develop long-term plans for the

attainment and maintenance of ambient air quality standards.

IV. Definition of Nonroad Engine

CAA section 216(10) defines the term ``nonroad engine'' as ``an

internal combustion engine (including the fuel system) that is not used

in a motor vehicle or a vehicle used solely for competition, or that is

not subject to standards promulgated under section 111 or 202.''

Section 111(a)(3) of the CAA notes, however, that ``Nothing in Title II

of this Act relating to nonroad engines shall be construed to apply to

stationary internal combustion engines.''

1. Original Proposed Definition of Nonroad Engine

In the May 17, 1993 NPRM, EPA proposed that the engines encompassed

by the statutory definition of nonroad engine included internal

combustion engines meeting one of the following criteria:

(1) Any internal combustion engine (including the fuel system) of

any size which is used to propel any vehicle if the engine is not

otherwise excluded from this definition (see below). This includes any

internal combustion engine which serves a dual function (that is, to

both propel a vehicle and operate a device while stationary), such as a

mobile crane;

(2) Any internal combustion engine which is located in (or on) a

nonroad vehicle and which is an integral part of the nonroad vehicle at

the time of the nonroad vehicle's manufacture and which is not

otherwise excluded from this definition (see below); or

(3) Any internal combustion engine or combination of internal

combustion engines arranged to function together, regardless of

application, with a combined output of less than 175 hp, unless

otherwise excluded from this definition (see below).

Several specific exclusions were included in the proposed

definition of nonroad engines. An internal combustion engine would not

be considered a nonroad engine if:

(1) The engine is used to propel a motor vehicle or a vehicle used

solely for competition;

(2) The engine is regulated under section 111 or section 202 of the

Act, regardless of size; or

(3) The engine is located on a trailer or other platform attached

to (not an integral part of) a nonroad vehicle or is otherwise not an

integral part of a nonroad vehicle and the engine has an output greater

than or equal to 175 hp.

EPA received numerous comments in response to this NPRM definition.

The vast majority of commenters opposed all or part of the proposed

definition.

The primary reason cited by commenters for their opposition to the

proposed definition relates to the use of a horsepower (hp) cut-off

point as the means for determining which internal combustion engines

are classified as nonroad engines. The commenters asserted that the use

of a horsepower cut-off point would allow engines used in mobile

applications to be regulated as stationary sources, and would allow

stationary engines to be regulated as mobile sources, solely on the

basis of engine size. The commenters noted that this would result in

identical sources being regulated in a different manner based solely on

engine power. Commenters further indicated that the use of a horsepower

cut-off point is arbitrary and not reflective of the realities of

portable or transportable equipment, which can be and are moved from

one area to another and, therefore, should be classified as nonroad

regardless of horsepower.

According to these commenters, an engine should be classified on

the basis of its use as mobile or stationary, rather than on its

horsepower. In other words, the determination as to whether an engine

is a nonroad engine should depend on whether the engine is either used

in equipment that is mobile (that is, self-propelled, portable or

transportable), or in equipment that is in fact used in a stationary

manner at a particular location for an extended period of time.

Industry commenters indicated that to do otherwise could result in

costly and unnecessary administrative burdens for manufacturers.

According to these commenters, such administrative burdens would result

from engines and equipment that would be wrongly subjected to a myriad

of different mobile and stationary source regulations in states and

local air quality management districts. The commenters also indicated

that regulation by a multitude of regulatory agencies could result in

restricting the geographic operating range of certain engines and

equipment.

In addition, commenters indicated that it would be contrary to the

intent of the Act. In support of this position, these commenters noted

that Congress did not establish a horsepower cut-off point in the Act

for distinguishing between nonroad and stationary engines, and did not

require that nonroad vehicles be self-propelled to fall within the

nonroad definition.

The comments from state and local air pollution control agencies

also opposed the use of a horsepower cut-off point for determining

whether internal combustion engines would be classified as nonroad

engines. Local air pollution control agencies noted that they are

currently regulating stationary engines under 175 hp and would lose the

authority to continue regulating these engines under the proposed

nonroad definition.

For a detailed discussion of the comments regarding the nonroad

definition initially proposed see the Response to Comments in the

docket.

2. Revised Definition of Nonroad Engine

In response to the comments received regarding the nonroad

definition proposed in the May 17, 1993 NPRM, EPA revised the nonroad

engine definition. The revised definition was published in the Federal

Register on October 4, 1993 (58 FR 51595). The comment period was

reopened until October 25, 1993, so that interested parties could

provide comments on the following revised definition of nonroad engine:

(1) Except as discussed in (2) below, a nonroad engine is any

internal combustion engine:

(i) In or on a piece of equipment that is self-propelled or serves

a dual purpose by both propelling itself and performing another

function (such as a mobile crane); or

(ii) In or on a piece of equipment that is intended to be propelled

while performing its function (such as lawn mowers and string

trimmers); or

(iii) That, by itself or in or on a piece of equipment, is portable

or transportable, meaning designed to be and capable of being carried

or moved from one location to another. Indicia of transportability

include, but are not limited to, wheels, skids, carrying handles,

dolly, trailer, platform or mounting.

(2) An internal combustion engine is not a nonroad engine if:

(i) The engine is used to propel a motor vehicle or a vehicle used

solely for competition; or

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

the Act; or

(iii) The engine otherwise included in (1)(iii) remains or will

remain at a location for more than 12 consecutive months, or a shorter

period of time where such period is representative of normal annual

source operation at a stationary source that resides at a fixed

location for more than 12 months (e.g., seasonal operations such as

canning facilities.) A location is any site at a building, structure,

facility, or installation. Any engine (or engines) that replaces an

engine at a location and that is intended to perform the same or

similar function as the engine replaced will be included in calculating

the consecutive time period.

A portable generator engine which functions as a permanent back-up

generator and which is replaced by a different engine (or engines) that

performs the same function would be an example of engines covered by

(2)(iii). In such a case, the cumulative residence time of both

generators, including the time between removal of the original engine

and installation of the replacement, would be counted toward the

consecutive residence time period.

EPA intended the revised definition of nonroad engines to address

concerns expressed by the commenters in response to the definition

originally proposed. Under the revised definition, an internal

combustion engine would be a nonroad engine if it is used in equipment

that is self-propelled or intended to be propelled while performing its

function, or if it is portable or transportable. The revised definition

specifically distinguishes between nonroad engines and stationary

internal combustion engines on the basis of engine mobility and

residence time, rather than on horsepower size.

EPA intended that stationary internal combustion engines be all

internal combustion engines regulated by a federal New Source

Performance Standard promulgated under section 111 of the Act and all

internal combustion engines that are neither nonroad engines nor

engines used to propel a motor vehicle or a vehicle used solely for

competition. Moreover, the revised definition specifically states that

portable and transportable engines remaining in a particular location

for over 12 months are not nonroad engines (this excludes engines in

self-propelled equipment and equipment intended to be propelled while

performing its intended function), thus ensuring that engines that are

actually used in a stationary manner are considered stationary engines.

The revised nonroad engine definition excluded from nonroad

regulation those engines that are used for normal annual source

operations at fixed stationary sources that only operate on a seasonal

basis, such as canneries. This provision is designed to ensure that

engines that operate as integral parts of these stationary sources are

considered stationary.

The revised nonroad engine definition also included a provision

that if an engine is replaced by another engine within the 12 month

period, the replacement engine should be considered in calculating the

consecutive time period. This provision is designed to ensure that

where an internal combustion engine is necessary for the operation of a

stationary facility, the replacement of one particular engine with

another would not prevent the engines from being included as part of

the stationary facility.

EPA included as a prohibited act any attempt to circumvent the

residence time exclusion of a portable or transportable engine in

(2)(iii) by means of removing the engine from its location for a period

and then returning it to that same location. In such cases, the time

between removal of the engine and its return to service (or

replacement) would be counted towards the time period specified in

(2)(iii).

3. Final Definition of Nonroad Engine

The majority of comments received on the revised definition

supported the usage-based definition, as opposed to the initially

proposed power-based definition. Still, most commenters requested that

EPA make two modifications to the revised nonroad engine definition.

The first modification requested by the commenters relates to

section (2)(ii) of the revised definition which stated that an engine

is not a nonroad engine if it is regulated under section 111 or section

202 of the CAA. The commenters expressed concern that this portion of

the definition would allow states to promulgate state regulations under

the authority of section 111, creating a loophole in the state

preemption framework, whereby states would be able to regulate

preempted engines. They contended that this would result in dual

standards for an engine, as both stationary and nonroad.

The second modification requested by the commenters relates to the

application of the 12 month residence time limitation to seasonal

operations. While most commenters agreed with the proposal to use a 12

month residence time limit to distinguish between mobile and stationary

use of portable or transportable engines, several commenters opposed

the proposal to consider residence time based on ``seasonal'' use.

These commenters asserted that excluding an undefined group of engines

for an indeterminate period of time, between one and 365 days, is

neither reasonable nor enforceable. Moreover, the same commenters

requested that EPA clarify that the 12 month residence time applies

only to those portable and transportable engines which are integral

parts of fixed stationary sources.

One commenter opposed the 12 month time limit on the grounds that

it could create a regulatory vacuum which would result in some engines

escaping all nonroad engine and stationary engine regulations. In

support of the revised nonroad engine definition, another commenter

stated that the equipment used on a military installation should be

designed so emissions are reduced by the engine manufacturer and not by

the end user. The commenter requested that EPA clarify the term

``location'' in a manner that would permit a ``location'' to exist

within a stationary source.

The comments from a State agency supported the elimination of the

horsepower criteria for nonroad engines, but expressed concern that the

new definition would cause it to lose permitting authority for engines

it was currently regulating as stationary engines. The commenter

suggested that those states with permitting programs be allowed to

maintain permitting authority over those engines which they had

previously determined to be stationary.

One local air pollution agency disagreed with EPA's conclusion that

portable engines are nonroad engines. In support of its position, the

agency cited title V of the CAA as evidence that Congress recognized

that some stationary sources were moveable. If EPA were to adopt a

definition based on residence time, the agency requested that three

months, rather than a year, be the cutoff point beyond which an engine

would no longer be considered nonroad.

The Agency believes that the revised nonroad definition eliminates

the potential for the arbitrary classification of internal combustion

engines as nonroad or stationary sources based on engine size. Rather,

as noted by the commenters, the revised definition is based on the use

of the engine, which is a more appropriate and reliable indicator of

its classification.

EPA has considered the modification requested by some commenters

regarding that portion of the definition that provides an internal

combustion engine is not a nonroad engine if it is regulated under CAA

section 111. The Agency has amended the revised definition to provide

that an internal combustion engine is not a nonroad engine if ``The

engine is regulated by a federal New Source Performance Standard

promulgated under section 111 of the Act.'' Thus, under provision

(2)(ii), national emission standards for an internal combustion engine

must be promulgated before it is classified as a stationary engine.

Contrary to the comments, EPA believes that it is appropriate to

exclude from the nonroad definition engines that remain at sources that

only operate on a seasonal basis. Although such sources, such as

canning facilities, may operate for less than 12 months in any one

year, they operate regularly for a similar time period year after year.

Operations for a seasonal source generally occur at the same location,

rather than traveling between different states or regions. Engines that

are located at a seasonal source during the full annual operations

period of that source should be considered a part of that source. They

are clearly integral parts of these facilities. Moreover, as such

sources produce emissions that can be calculated on a regular basis, a

local air quality agency or other authority should be able to

reasonably enforce stationary source regulations. As a result, the

Agency has maintained the seasonal source exclusion. However, as

requested by several commenters, EPA has revised the language for the

exclusion to make it clearer. EPA believes that a seasonal source is a

stationary source because it functions at only one location for its

full annual operating period, even if that period is less than 12

months. EPA has specified in the final regulations that a seasonal

source must remain at a single location on a permanent basis (that is,

at least two years) and must operate approximately three months or more

each year. EPA also clarified that an engine located at a seasonal

source is an engine that remains at the source for the full annual

operating period of the source. This should eliminate any confusion as

to whether certain sources are considered to be seasonal sources.

EPA also disagrees with commenters who believe that only engines

``fixed'' in place for more than 12 months should be excluded from the

nonroad definition. An internal combustion engine can be stationary

without being ``affixed'' to the ground or other structures. To require

otherwise could result in the improper classification of internal

combustion engines. For example, an engine that is not bolted or

otherwise attached to a structure but remains at one location for five

years would be classified under the commenters' proposition as a

nonroad engine, even though it operates in a stationary manner, as

evidenced by its remaining at the same location for an extended period

of time. Therefore, the Agency has decided that the fact that an engine

is not ``affixed'' to the ground or other structure does not

necessarily identify the internal combustion engine as a nonroad

engine.

The Agency also believes that 12 months is the appropriate time

limit for determining whether an internal combustion engine which is

either portable or transportable is to be classified as a stationary

engine. Generally, engines that remain at one site for more than 12

months will stay at that site either permanently or for an extended

period of time. In such cases, local or state air quality agencies

should be able to regulate the applicable engines as stationary

sources, since the emissions impact is occurring over a period of time

which is likely to have a measurable impact on an area's air quality.

The term ``location'' has been defined so as to permit a

``location'' to exist within a facility. Section (2)(iii) of the

revised definition defines ``location'' as ``any single site at a

building, structure, facility or installation.'' This definition of

``location'' provides more precision in classifying an engine as

nonroad if the engine is actually intended to be used in a mobile

manner within a stationary source. In other words, an engine would be

considered nonroad if it moves to different sites within a stationary

source.

EPA does not agree with the assertion made by one commenter that

title V of the CAA evidences Congress' recognition that some stationary

sources are moveable. Title V of the CAA deals with the permitting of

stationary sources and not with the determination as to which internal

combustion engines are nonroad engines and which are stationary

engines.

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

Definition

In the initial NPRM, EPA noted that it interprets the exclusion in

CAA section 302(z) to apply only to those internal combustion engines

that are manufactured after the effective date of these regulations.

EPA stated that this interpretation avoids a regulatory gap for engines

manufactured between the promulgation of the CAA and the date that

these regulations are promulgated. EPA received several comments

opposing this interpretation. These commenters claimed that the

language in section 302(z) applied to all nonroad engines at the time

of the passage of the 1990 CAAA, even though that term had not yet been

defined with any reasonable clarity. In addition, commenters asserted

that nonroad engines are generally preempted from regulation by states

under title II of the Act.

EPA continues to believe that internal combustion engines

manufactured prior to the effective date of these regulations should

not be considered preempted nonroad engines. First, EPA believes that

until the regulations finalizing the definition of nonroad engine (as

well as the regulations determining the scope of the term ``new'' as

applied to nonroad engines) were complete, no state or other entity

could be assured whether such engines would be defined as nonroad

engines or as stationary internal combustion engines and the extent to

which state regulations of such engines was preempted. Congress clearly

intended EPA to determine which internal combustion engines should be

defined as nonroad engines and which should be stationary internal

combustion engines.\12\ As has been discussed above, the final

definition of nonroad engine promulgated today is substantially revised

from the definition originally proposed. Moreover, as the comments

reveal, numerous other definitions of nonroad engine have been

suggested to the Agency, many of which are either significantly broader

or significantly narrower than EPA's final definition. EPA believes

that if the exclusionary language of section 302(z) were applied before

EPA's definition of nonroad engine became final, states would have been

frustrated from regulating any internal combustion engines manufactured

during that time, given the uncertain nature of such engines. For

example, a state would not know whether to include regulations of

engines in its New Source Review program, or whether such engines

should be regulated in a separate in-use operation program. Further,

until the initial regulations regarding nonroad engines were finalized,

states could not determine the extent to which their regulation of such

engines would be preempted, and thus were hampered from going forward

with specific programs to regulate such engines. EPA believes that

Congress did not intend states to be prevented from regulating these

engines before EPA defined what they were. In particular, EPA believes

that permits for internal combustion engines issued prior to July 18,

1994, are not precluded under section 209 and 302(z) if the permits

apply to internal combustion engines manufactured before July 18, 1994,

even if those engines are of a type that has been defined by EPA to be

nonroad engines.

---------------------------------------------------------------------------

\1\2See Report of House of Representatives Committee on Energy

and Commerce, Rept. 101-490, at 272 (May 17, 1990).

---------------------------------------------------------------------------

Moreover, even to the extent such engines are defined to be nonroad

engines in this final rule, such engines were not preempted from state

regulations under section 209 prior to the effective date of these

regulations. The two sections of the Act preempting state regulation of

nonroad engines, section 209(e)(1) and section 209(a) (as incorporated

by section 213(d)), refer to ``nonroad engines subject to regulation

under this Act'' or to engines ``subject to this part.'' EPA believes

that, until EPA promulgated final regulations defining nonroad engines

and subjecting such engines to regulation, these engines were not

preempted from state regulation under the Act, nor were they subject to

any regulation under title II of the Act.

Finally, some of the comments regarding the definition of nonroad

engines and the issue of grandfathering examined whether grandfathering

subjects an engine to dual regulation (i.e., regulation both by the

state as a stationary source and by EPA as a nonroad engine). There is

no such risk in this instance because EPA has not subjected any engines

manufactured before the effective date of this regulation to regulation

as new nonroad engines. Such engines, if they are regulated at all, are

regulated under title I programs.

Moreover, it should be noted that the vast majority of these

engines are no longer new nonroad engines. Thus, even if they are

viewed as preempted nonroad engines, they are subject to in-use

regulation by states.

As discussed below in section VI. U. (definition of new), states

are not precluded from regulating the use of nonroad engines. Nothing

in section 209 of the CAA prohibits local pollution control districts

from regulating the operation of nonroad engines, such as the hours of

usage, sulfur limits in fuel (state fuel restrictions may in some cases

be precluded under section 211), daily mass emission limits, and title

I operating permits. In addition, local districts can impose a

permitting fee consistent with the costs incurred for various

operational expenditures, such as monitoring usage and administrative

functions. EPA believes that utilization of this option will assist

local districts in achieving their targeted emission levels.

Moreover, states are not prevented from requiring retrofitting of

nonroad engines, as long as such requirements do not amount to a

standard relating back to the original design of the engine by the

original engine manufacturer. As discussed below, EPA believes modest

retrofit requirements may be required after a reasonable amount of

time, such as at the time of reregistration or rebuilding. Moreover,

after a sufficient time has passed after an engine ceases to be new,

for example, after the end of the useful life of the engine, a state

may institute more significant retrofit requirements. As the court

stated in Allway Taxi v. City of New York, 340 F. Supp. 1120, 1124

(S.D.N.Y.), aff'd, 468 F. 2d 624 (2d Cir. 1972), section 209 ``was made

not to hamstring localities in their fight against air pollution but to

prevent the burden on interstate commerce which would result if,

instead of uniform standards, every state and locality were left free

to impose different standards for exhaust emission control devices for

the manufacture and sale of new cars.'' The Act does not intend

preemption of regulations, like regulation of the use of nonroad

engines or modest retrofit requirements after an engine is no longer

new, that ``would cause only minimal interference with interstate

commerce, since they would be directed at intrastate activities and the

burden of compliance would be on individual owners and not on

manufacturers and distributors.'' Id.

EPA has added an interpretive rule in the form of an appendix to

these regulations summarizing its views on these issues (see Appendix I

to subpart A of part 89: Internal combustion engines manufactured prior

to the effective date of the nonroad engine definition). This

interpretive rule does not supersede, alter, replace, or change the

scope of these regulations. The appendix is intended to be interpretive

guidance and is not final agency action subject to judicial review.

Based on comments received from several of California's local air

quality districts, the Agency is concerned about the impact of the

nonroad definition on the unique situation that exists in these areas,

that is, the current local regulation of certain engines as stationary

sources which, as a result of the nonroad definition, will become

nonroad engines subject to emission standards promulgated only by EPA.

According to the commenters, classification of these engines as nonroad

by EPA may negatively affect the ability of local districts to achieve

targeted emission reduction levels. To some extent, the grandfathering

in of certain engines, discussed above, addresses this concern by

ensuring that engines regulated prior to the effective date of this

rulemaking continue to be regulated in the same manner. Nevertheless,

this may not, in all situations, allay concerns regarding the overall

impact that classification of these engines as nonroad will have on an

area. The Agency believes, however, that any additional concerns that

may exist following the effective date of this rule can be addressed by

local air quality districts through their regulation of nonroad engine

operations.

5. Equating Nonroad Engines With Nonroad Vehicles and Equipment

EPA received one comment on the October 4, 1993 notice that opposed

the revised definition of the term ``nonroad engine'' because,

according to the commenter, the definition equated nonroad engines with

nonroad equipment. This comment states that, by defining nonroad

engines in terms of their use ``in or on a piece of equipment,'' EPA

exceeded its authority because, according to the commenter, the CAA

only authorizes EPA to regulate nonroad engines and vehicles, not

nonroad equipment. This comment argues that EPA does not have equal

authority over off-highway mobile cranes, which are nonroad vehicles,

and lawnmowers and string trimmers, which are nonvehicular nonroad

equipment. This comment asks EPA to acknowledge that it lacks authority

to regulate nonroad equipment.

First, EPA disagrees with the commenter's contention that the

nonroad engine definition ``equates'' nonroad engines with nonroad

equipment. The nonroad engine definition is written to include only

engines, and cannot be read to include equipment. The definition

clearly refers only to ``engines used in'' certain applications, not to

the applications themselves. Moreover, this definition has been

promulgated pursuant to numerous comments received by the Agency,

discussed above, that assert that the most appropriate definition of

nonroad engine is one that refers to the use or application of the

engine.

EPA also notes that this rulemaking does not promulgate any

standards for nonroad equipment, only for nonroad engines. The only

restriction on nonroad equipment manufacturers in this rulemaking is a

prohibition on the use of uncertified nonroad engines manufactured

after the applicable implementation dates. This prohibition is

necessary to enforce the engine-based standards and is authorized under

the Clean Air Act.

In addition, EPA does not agree that it lacks authority to regulate

nonroad equipment or particular applications of nonroad engines. CAA

section 213, as well as section 301(a), provide EPA with authority to

regulate both nonroad equipment and particular applications of nonroad

engines, as well as nonroad engines and nonroad vehicles.

Congress used the terms ``nonroad engine,'' ``equipment,'' and

``vehicle'' interchangeably (see, e.g., S. Rep., Legislative History of

the 1990 Amendments to the Clean Air Act, Committee on Environment and

Public Works to accompany S. 1630, December 20, 1989, at 104-105). It

is EPA's belief that Congress intended nonroad vehicles and engines to

be inclusive terms covering all manner and types of equipment not

defined as motor vehicles, vehicles for competition, or stationary

sources (see, e.g., H. Rep., Legislative History of the 1990 Amendments

to the Clean Air Act, Committee on Energy and Commerce to accompany

H.R. 3030, May 17, 1990, at 310). There is no evidence that Congress

intended to limit the reach of its nonroad mandate to self-propelled

vehicles; on the contrary, it appears that Congress used the term

vehicle to include any carrier for the engine.

Section 213 and the rest of the CAA provide EPA with authority to

regulate nonroad equipment and particular applications of nonroad

engines in nonroad equipment. The Act provides equal authority to

regulate off-highway mobile cranes, which are nonroad vehicles, and

lawnmowers, which are nonroad equipment.

Moreover, the interpretation of EPA's authority suggested by the

commenter would undermine the environmental and public health benefits

of the nonroad emission reduction program by creating a gaping

loophole. EPA can find no evidence that Congress intended the

regulation of certain nonroad engines, vehicles, and equipment that

cause or contribute to air pollution, but not the regulation of others.

Finally, there is a practical interrelationship between an engine

and the equipment that houses it or is powered by it. Equipment or

vehicle characteristics may have a significant impact on the emissions

associated with the operation of the engine. The nonroad engine

definition relies to a great extent on this interrelationship between

an engine and a piece of equipment to determine whether an engine is a

mobile or stationary source. In the future development of the nonroad

program, EPA may determine that it is most effective to test and

certify a nonroad engine integrally with its related equipment, rather

than separately. Additionally, it may become necessary and appropriate

to regulate aspects of equipment to control fuel spillage, evaporative

emissions, or refueling emissions. EPA believes that the CAA provides

authority for such regulation. EPA does not believe Congress, in giving

EPA the authority to regulate all nonroad engines, intended to create

an artificial barrier between the engine and the equipment that houses

it. Therefore, if EPA determines in future rulemakings that the most

effective way to control emissions from nonroad engines is to regulate

directly the nonroad equipment housing the engines, EPA shall do so

using its authority under the Clean Air Act.

V. Requirements of the Final Rule

This section provides a general overview of the major elements of

the final rule. A general discussion of comments submitted to EPA

during the public comment periods is presented in section VI.

A. Applicability

The regulations of today's action apply to all new nonroad CI

engines at or above 37 kW with certain exemptions and exclusions.

Hereafter the engines included in this rule will be referred to as

``large nonroad CI engines.''

The vast majority of large nonroad CI engines currently being used

and manufactured are diesel-fueled engines. The use of alternative

fuels by nonroad engines will not be necessary to meet the emission

standards. However, these regulations apply to large nonroad CI engines

regardless of the fuel that is used (for example, diesel, compressed

natural gas (CNG), rapeseed, methanol, ethanol, and blends). Provisions

have been included which allow manufacturers to apply for Administrator

approval of alternative test procedures if fuel other than diesel is to

be used.

B. Standards

EPA is adopting the proposed NOX emission and smoke standards

for all large nonroad CI engines at or above 37 kW produced on or after

the implementation dates presented below. Furthermore, EPA is adopting

standards for HC, CO, and PM emissions for engines at or above 130 kW,

consistent with those standards adopted by California in sections 2420-

2427, chapter 11, title 13 of the California Code of Regulations,

``California Regulation for New 1996 and Later Heavy-duty Off-road

Diesel Cycle Engines.''

All standards and units have been converted to metric in the final

rule (discussed in more detail in section VI.A.). For ease of use, the

tables below and in section V.C. show the English units

parenthetically. The metric units, however, are the units used in the

regulations and thus all affected parties must follow these units in

complying with the standards promulgated today.

----------------------------------------------------------------------------------------------------------------

Smoke A/L/

Net Power kW(Hp) HC g/kW-hr CO g/kW-hr NOX g/kW-hr PM g/kW-hr P\1\

(g/bH p-hr) (g/bH p-hr) (g/bH p-hr) (g/bH p-hr) (Percent)

----------------------------------------------------------------------------------------------------------------

130 (175)................ 1.3 11.4 9.2 0.54 20/15/50

(1.0) (8.5) (6.9) (0.4)

75 to =130 (100 to 37 to 50 to 130...................... \1\1.3 5.0 \1\0.54

(175).................... (1.0) (3.7) (0.40)

75 to 100 to 37 to 50 to X.

------------------------------------------------------------------------

Engine size, kW (Hp) Implementation date

------------------------------------------------------------------------

130 to 560 January 1, 1996.

(175 to 750).

75 to 100 to 37 to 50 January 1, 1998.

to 560 (>750)........................ January 1, 2000.

------------------------------------------------------------------------

D. Certification and Test Procedures

1. Engine Family Selection

EPA is adopting the engine family definition as proposed. EPA had

expressed some concern in its proposal that, should it adopt HC, CO and

PM emission standards in the final rule, it was uncertain whether

manufacturers should be allowed to include engines with different

numbers of cylinders or cylinder orientations in the same engine

family. EPA argued that it was uncertain whether deterioration of HC,

CO and PM emission performance would proceed at different rates in-use

for engines with different numbers of cylinders. One commenter

expressed a strong desire to be able to consolidate engine families as

much as practicable. The commenter also reminded EPA of the substantial

enforcement liability program in this rule that would provide adequate

incentive to ensure a manufacturer makes reasonable use of the engine

family flexibilities.

The Agency is aware that additional built-in safeguards such as the

manufacturers' burden to define engine families in such a way as to

ensure all engine configurations have similar emission characteristics,

and the manufacturers' recall liability if all engine configurations

are not as durable as expected. The Agency has no additional data at

this time to address its original concern. However, the Agency does

believe that the enforcement provisions in this rule will provide

incentive to manufacturers to ensure that their engines are properly

grouped so that they can be appropriately represented by the selected

test engines.

2. Exhaust Emission Test Procedures

The smoke test procedures are adopted as they were proposed.

The gaseous emission 8-mode test procedures are finalized as

proposed with minor revisions. These procedures apply to HC and CO

emissions as well as NOX.

For PM emission measurement, EPA is adopting the California test

procedures finalized in Sections 2420-2427, Title 13 of the California

Code of Regulations, ``California Regulation for New 1996 and Later

Heavy-duty Off-road Diesel Cycle Engines,'' as amended by California

Air Resources Board Resolution 92-2, described in CARB mailout #93-42

dated September 1, 1993. These procedures are incorporated by reference

in the regulations.

Manufacturers of engines that are not able to operate properly over

the 8-mode or smoke test cycles (such as engines with constant speed

governors) may petition the Administrator prior to certification to

allow use of an alternative test procedure. Upon adequate demonstration

of need, the Administrator may allow use of alternative procedures. If

an engine is unable to be operated over the smoke test procedure, the

manufacturer must submit an alternative test plan to the Administrator

for approval in advance of any testing performed for certification

purposes. Use of alternative test procedures to demonstrate exhaust

emission compliance is discussed in Section VI.H.

3. Certification Test Fuel

EPA is adopting the certification test fuel specifications as

proposed. This is because the most common diesel fuel available to

nonroad engines will have a higher sulfur content than that required

for highway CI engines. Furthermore, to ensure that no commercially

available fuel is inadvertently excluded by this rule, EPA has

broadened the band of fuel sulfur content to include all fuels ranging

from greater than .05 percent to .5 percent fuel sulfur. However, as a

provision of harmonizing with California emission standards, and

explained below, EPA will allow engine manufacturers the option to use

test fuel specified by California, which contains lower sulfur content.

California's particulate standard is predicated on the use of low

sulfur fuel, which is the State-wide fuel standard for both nonroad and

highway engines. Therefore, the particulate standard EPA is adopting is

likewise predicated on the use of low sulfur fuel. However, EPA cannot

require testing on a fuel that is not widely available. To compensate

for the effect of sulfur on particulate emissions, EPA is permitting

two options for demonstrating compliance with those standards. First,

EPA will allow testing on the low sulfur California-specified test fuel

for compliance with all emission standards because sulfur content does

not impact HC, CO or NOX emissions. Second, when testing is

conducted with the higher sulfur federal certification fuel, the

particulate measurement may be adjusted by using the following equation

to reflect the effects of higher sulfur content of the fuel on

particulate emissions:

PMadj = PM - [BSFC * 0.0917 *(FSF - USLFCA)]

Where:

PMadj = adjusted measured PM level [g/Kw-hr]

PM = measured weighted PM level [g/Kw-hr]

BSFC = measured brake specific fuel consumption [G/Kw-hr]

FSF = fuel sulfur weight fraction

USLFCA = upper sulfur level weight fraction of California

specification.13

\1\3Should European requirements be finalized using a different

fuel sulfur level but maintaining the same PM emission standards as

those adopted in this rule and allowing no adjustment for fuel

sulfur content, EPA will consider revising its regulations to

replace the upper sulfur level weight fractions from the California

specification (that is, USLFCA) with the upper sulfur level

weight fraction from the final European test fuel specification

---------------------------------------------------------------------------

(that is, USLFeu).

This adjustment only applies to engines with no exhaust gas

aftertreatment. No adjustment is provided for engines with exhaust gas

aftertreatment.

The test fuel option selected by the manufacturer will not affect

enforcement testing for the HC, CO, NOX and smoke standards. EPA

may select either fuel, without constraints, for confirmatory or other

compliance testing for all of the standards, except particulate. For

particulate testing, EPA's options are constrained somewhat by the

manufacturer's choice of test fuel. If a manufacturer chooses to test

using low sulfur California test fuel, EPA would not use higher sulfur,

with the associated adjustment factor, for official enforcement of the

particulate standard. However, if a manufacturer chooses to test using

the higher sulfur fuel, EPA will presume the manufacturer accepts the

validity of the adjustment factor, in which case EPA could choose to do

a particulate enforcement test using either the higher sulfur fuel with

adjustment or the low sulfur fuel without adjustment. This issue is

discussed further in section VI. I. below.

4. Certification Test Engine Selection

EPA has revised the proposed certification test engine selection

criteria. The selection of an engine configuration within an engine

family will be based on the most fuel injected per stroke of an

injector at maximum power.

5. Labeling of Engines From Each Engine Family

EPA is adopting the proposed requirement to label each engine; some

minor modifications have been made to the proposal.

6. Definition of ``New''

EPA has added a definition of ``new'' as it pertains to nonroad

engines, vehicles and equipment.

7. Other Requirements

EPA is adopting as proposed:

(a) The requirement to obtain a federal certificate for each engine

family every model year;

(b) The recordkeeping and reporting requirements;

(c) Provisions for EPA confirmatory testing with minor technical

revisions; and

(d) The averaging, banking and trading provisions.

8. Fees

As discussed in the NPRM for this rulemaking, EPA is authorized

under section 217 of the CAA to establish fees to recover compliance

program costs associated with sections 206 and 207. EPA will propose to

establish fees for today's nonroad compliance program at some future

time, after associated costs are determined.

E. Enforcement

1. Prohibited Acts

EPA is adopting provisions that will prohibit introducing engines

into commerce in the U.S. which are not covered by a certificate of

conformity issued by EPA. Additionally it will be a prohibited act to

use a regulated but uncertified nonroad engine in nonroad vehicles or

equipment.

2. Selective Enforcement Auditing (SEA)

With the exception of some revisions described below, the SEA

program is being adopted as proposed. The large nonroad CI engine SEA

program is an emission compliance program for new production nonroad

engines and is authorized by CAA section 213. With this action EPA may

issue a SEA test order for any engine family for which EPA has issued a

certificate of conformity.

3. Emission Defect Warranty

EPA is adopting emission design and defect warranty requirements as

proposed. Nonroad engine manufacturers will be required to warrant

emission related components for a period of five years or 3,000 hours

from the date of purchase by the ultimate purchaser. This warranty will

help ensure the manufacturing of a durable emission system and will

require the manufacturer to cover all repairs and replacements

involving emission related components, at no cost to the ultimate

purchaser, during the warranty period.

4. Tampering Prohibitions

EPA is adopting as proposed prohibitions against tampering with

nonroad engines. Nonroad tampering provisions will help ensure that in-

use engines remain in certified configurations and continue to comply

with emission standards. All persons, will be prohibited from removing

or rendering inoperative any device or element of design installed on

or in a nonroad engine. The manufacturing, sale and installation of a

part or component intended for use with a nonroad engine, where a

principal effect of the part or component is to bypass, defeat, or

render inoperative a device or element of design of the nonroad engine

will also be prohibited.

5. Importation Restrictions

EPA is implementing the proposed restrictions on the importation of

nonconforming nonroad engines. Today's action will permit independent

commercial importers (ICIs) who hold valid certificates of conformity

issued by EPA to import nonconforming nonroad engines. Under this

program, the ICI must certify the engine to applicable U.S. regulations

via the certification process before an engine is imported. ICIs will

be responsible for assuring that subsequent to importation, the nonroad

engines are properly modified and/or tested to comply with EPA's

emission and other requirements over their useful lives. The ICIs will

also be responsible for recalls, maintenance instructions, emission

warranties, engine emission labeling, and maintaining adequate records

in the same manner as an engine manufacturer.

Today's action also provides certain exceptions to the restrictions

on importing nonconforming nonroad engines. These exceptions are

similar to the existing regulations on importing nonconforming motor

vehicles and motor vehicle engines and include exemptions for repairs

and alterations, testing, precertification, display, national security,

hardship, nonroad engines greater than 20 original production years

old, and certain nonroad engines proven to be identical, in all

material respects, to their corresponding U.S. versions. These

exceptions also include the exclusion of nonconforming engines used

solely for competition.

6. In-Use Enforcement

EPA is adopting the proposed regulations subjecting nonroad engine

manufacturers to the requirements of section 207 of the CAA. Under the

adopted regulations EPA has the authority to recall engines which do

not comply with emission standards in-use. As proposed, the in-use

testing liability period will be up to seven years or 6,000 hours,

which ever occurs first. The actual repair period for which a

manufacturer must remedy nonconformities would not be limited by actual

years or hours, thus any resulting recall will apply to all engines of

the recall family, regardless of the years or hours of an individual

engine.

In-use compliance with emission standards will be determined based

on test results using the same test procedure as that used in

certification. EPA is modeling its large nonroad CI engine recall

program after section 207 of the CAA and therefore the Administrator

may require manufacturers to recall applicable engines if a substantial

number of properly maintained and used engines are found to be out of

conformity with the regulations issued under section 213 of the CAA.

7. Defect Reporting

EPA is adopting the proposed emission defect reporting regulations

which require manufacturers to report to EPA emission-related defects

that affect a given class or category of engines. The emission defect

reporting regulations also specify procedural and reporting

requirements for manufacturers that initiate voluntary emission

recalls.

8. Exemptions

EPA is adopting the proposed regulations which allow manufacturers

and other persons, where appropriate, to request exemptions from

regulation for certain purposes. These purposes include testing,

display, national security, export, and for manufacturer-owned and

precertification nonroad engines.

VI. Public Participation and Discussion of Comments

EPA held a public hearing on June 25, 1993 at which testimony was

given by 14 individuals, including representatives from equipment and

engine manufacturers and states. The public comment period was open

until July 27, 1993. EPA received over 80 written comments during this

time. In addition, meetings were requested by two organizations and

held during the comment period. As mentioned previously, the public

comment period was reopened from October 4, 1993 through October 25,

1993. During this period, EPA received additional comments which were

given further consideration in developing the final rule. The

discussion of major comments and EPA's responses are divided into

general categories. More detailed Agency responses to comments may be

found in the ``Response to Comments'' document in the docket for this

rulemaking.

In addition, a related rule concerning preemption of state nonroad

regulations was proposed at 56 FR 45866, September 6, 1991. A public

hearing was conducted on September 20, 1991. Many industries presented

comments through an association or individually. Represented at the

hearing and in written comments are the following: engine

manufacturers; manufacturers and dealers of various types of equipment

including agricultural, construction, mining, utility, and lawn and

garden; manufacturers of emission controls; railroads; manufacturers of

industrial trucks; the San Diego Country Air Pollution Control

District; and the State of California. EPA considered these comments in

promulgating this final rule.

A. Conversion of Standards and Measures to Metric Units

EPA's proposed regulation presented standards and measures in non-

metric units, with metric units given parenthetically. Comments were

received requesting that, for purposes of harmonization with Europe,

EPA present all standards and measures in metric units, forgoing the

non-metric units altogether. EPA has the authority to do so under the

Metric Conversion Act of 1975 and Executive Order of July 25, 1991.

Therefore, EPA is adopting metric units in the final rule.

In the final rule, the metric power equivalents (kilowatts (kW))

given for horsepower units in two cases are different from the proposed

equivalents. The 131 kW category in the NPRM is now 130 kW, and the 559

kW category is now 560 kW. EPA was requested to adopt the 130 and 560

kW categories because they are in harmony with categories currently

being developed by the European Community. An engine manufacturers'

association stated that so doing would not include or exclude any

engines that would not otherwise have been included or excluded in

EPA's proposed rule. EPA agrees that a one kW change will not

significantly affect the engine family implementation schedule.

The units in the tables of standards and implementation dates in

this preamble show the non-metric equivalents. The regulatory language

is exclusively metric.

B. Emission Standards

1. HC, CO, and PM Emission Standards

EPA proposed NOX and smoke standards and did not propose

standards for HC, CO, and PM. Since NOX emission was demonstrated

in the draft Regulatory Support Document to be largely unaffected by

transient operation, EPA is confident that an emission standard based

on the adopted steady-state 8-mode test procedures for NOX will

result in a sizable in-use emission reduction. Likewise for smoke, the

adopted on-highway smoke test procedures have both transient and

steady-state operating modes, giving EPA confidence that the necessary

technologies will be applied to meet the smoke standards which will

result in actual in-use emission reduction.

However, in its proposed rule, the Agency reasoned that sufficient

data and analyses had not been generated to adequately demonstrate that

the 8-mode test procedures are representative of potential transient

operation occurring in actual use. Since HC, CO, and PM emissions

typically increase during transient operation, the Agency was not

confident that standards for these three pollutants on the adopted

steady-state 8-mode test procedures would result in real emission

reduction in actual use and, thus, proposed not to regulate them.

However, EPA did request comment on the appropriateness of adopting

standards for these pollutants. In particular, EPA requested comment on

whether it should adopt California's standards for these pollutants.

State and local agencies, environmental groups, health agency

officials, and engine industry representatives all requested that

standards for HC, CO, and PM be included in the rule. The industry

argued that, while adequate data may not have been generated to

establish an emission reduction benefit of the additional standards,

adoption of the additional standards is critical to worldwide marketing

strategies which require regulatory harmony between the U.S. and

foreign government entities. The industry commenters claim, in this

context, that by harmonizing with the California standards and the

projected European standards presented in Section V.B., EPA would

actually reduce the cost to an engine manufacturer which would not be

compelled to build a different version of its engine for U.S.

consumption than would be built for the rest of the world. Arguments

were presented that in any case there would be no harm in regulating

these additional pollutant emissions and there might be some

consequential emission control or at least a capping effect on HC, CO,

and PM emissions.

EPA is committed to providing regulatory harmonization when it can

be done without compromising U.S. environmental goals. Since HC, CO,

and PM emissions are typically higher during transient operation, EPA

maintains its position that there is too much uncertainty about the

ability of the existing steady state test procedures to accurately

predict those emissions from in-use nonroad engines. Therefore, EPA

believes it is technically incorrect to claim emission reduction

benefits for HC, CO, and PM emissions as measured by the test procedure

being adopted. However, at the same time, EPA believes that adopting

these standards will not compromise U.S. nationally uniform

environmental goals.

In reaching the decision to regulate HC, CO, and PM, EPA had to

consider any additional costs which might be imposed, and queried the

industry during the public comment period. Engine manufacturers

responded that these additional standards would not result in added

cost, or that any added costs would be offset by the efficiency gained

by having harmonized standards. On the basis of these comments, EPA is

concluding that adopting HC, CO, and PM standards will not result in

increased cost burden.

EPA is not incorporating HC, CO, and PM into the averaging, banking

and trading option. The flexibility provided by this option is

desirable for NOX compliance, where there are quantifiable

environmental benefits to be gained. However, because HC, CO and PM

standards have been promulgated solely for harmonization with

California and Europe (neither of which allow ABT), and because the

benefits for HC, CO, and PM are not similarly quantifiable, ABT is not

appropriate for HC, CO, and PM. Moreover, the burden to the Agency and

to industry of tracking and enforcing ABT for HC, CO, and PM would

defeat the Agency's intent to minimize such burdens to the degree that

the Agency would reconsider its decision to adopt those standards at

all, an option the Agency is not willing to choose.

2. Smoke Standards

One commenter questioned EPA's authority to regulate smoke

emissions, stating that EPA did not demonstrate as required in CAA

section 213(a)(4) that smoke significantly contributes to air pollution

that may reasonably be anticipated to endanger public health or

welfare. EPA made a finding in the NPRM that smoke significantly

contributes to air pollution, based on smoke's impact on visibility. As

evidence of smoke's significant contribution to air pollution, EPA

specifically cited in its draft Regulatory Support Document the

agreement to reduce smoke from the Navajo Generating Station to improve

visibility in the Grand Canyon. EPA discussed in the NPRM why smoke may

reasonably be anticipated to endanger both public health and welfare.

EPA stated that ``there are indications that visible smoke may have an

adverse effect on health'' (58 FR 28809, 28845). The particles that

make up smoke, about 2.5 microns in diameter, are of a size that

reflects and refracts light. These particles are sufficiently small to

be inhaled into the lower lung cavities, thus posing a potential health

threat to the inhaler. See, for example, volume 329 of the New England

Journal of Medicine (December 9, 1993, p. 1753) for a discussion of the

association between particulate air pollution and mortality rates. EPA

also cited damage through soiling of urban buildings, homes, cars and

other property. EPA has met the statutory mandate of CAA section

213(a)(4) for smoke, and stands by its assessments presented in the

NPRM and RSD for this rulemaking. Hence, EPA is retaining the smoke

standards as proposed.

C. Lower Emission Standards

Environmentalists and states requested that EPA commit to a second

phase of emission standards for new large nonroad CI engines on an

``aggressive'' timeline. They are satisfied with the level of the

standard only on an interim basis and want to quickly move to a more

stringent standard. One commenter expressed concern that, without

specifying a deadline for promulgating a second phase of emission

standards in this rule, manufacturers will be slow to cooperate with

EPA in developing the new test procedures.

Engine manufacturers have asked for assurances that they will have

from five to eight years of ``regulatory stability'' before more

stringent standards are promulgated, in order to amortize their

investment in the current standards.

EPA believes that more stringent emission standards should not be

promulgated until the existing test cycle has been verified to be

representative, or until a more representative test cycle has been

developed. EPA is currently working with engine manufacturers to

evaluate actual in-use operating conditions and the test procedures

adopted in this rule. These data will be used to determine the

necessary modifications to the test procedures to ensure that more

stringent emission standards in the future result in actual in-use

emission reductions.

EPA has every intention of moving forward to determine the most

appropriate test procedures to use in future regulation of the engines

covered in this rule. EPA has found that coordination with industry on

clearly technical projects such as this is most beneficial since it

allows the Agency to receive early input as procedures are being

developed. Such early feedback creates an atmosphere of consensus-

building and allows the Agency to promulgate rules that are more

equitable, efficient and effective. At this point, however, EPA cannot

make assurances that it will provide engine manufacturers ``five to

eight years of regulatory stability,'' and neither can it commit to

promulgating more stringent standards on an ``aggressive'' timeline.

D. Exemptions

The American Mining Congress and other commenters in the mining

industry requested that surface mining equipment be exempted from

regulation since, according to the commenters, mining equipment

operates well outside nonattainment areas. One commenter within the

mining industry suggested that regulation of mining equipment should be

on a case-by-case basis. In other words, if the mining equipment at a

site is shown to contribute to ozone or CO nonattainment, the equipment

at that site should be subject to regulation. As an alternative, these

commenters suggested horsepower cutoffs ranging from 500 to 750

horsepower, above which nonroad equipment would be exempted from

compliance. These commenters also took exception to EPA's inclusion of

mining equipment in the construction equipment category, stating that

mining equipment is larger and more specialized than construction

equipment. Further, they stated that while construction equipment may

be used at a mine site, mining equipment is never used on a typical

urban construction site. These commenters also questioned EPA's

application of the proposed regulations to mining equipment since

emissions from such equipment were not included in the analysis

contained in the Nonroad Study.

The Agency sees no justifiable reason for exempting from regulation

all mining equipment or mining equipment above certain horsepower

cutoffs. The Agency is obliged to regulate all classes or categories of

new nonroad engines that cause or contribute (without reference to

significance) to ozone or CO pollution in more than one nonattainment

area. The Agency believes that such equipment, even if operating

outside nonattainment areas, is capable of contributing to ozone

nonattainment and, therefore, the Agency cannot justify an exemption of

mining equipment.

Regarding whether mining equipment is being inappropriately

included in the construction equipment category, the Agency believes

that mining equipment should not be treated as a separate class of

equipment. There is acknowledged crossover of equipment used on

construction and mining sites. For example, excavators, off-highway

trucks, crushing equipment, rubber tired loaders and dozers, and

crawler tractors are types of equipment commonly used by both mining

and construction industries. While some equipment may currently be used

only at mining sites, there is no way to predict future equipment use

with certainty. Given the high degree of similarity between

construction equipment and equipment used in mines, EPA believes that

it is justified in treating equipment used in mining as a subcategory

of construction equipment. EPA is not required, in determining classes

and categories of nonroad engines or vehicles, to subdivide such

engines into small subcategories of engines, each of which may have

less of an impact on nonattainment than the broader category in which

they are included.

Moreover, it should be noted that the American Mining Congress

specifically stated in its comments in the recent EPA rulemaking on

preemption of state standards for nonroad engines and vehicles that

surface mining equipment should be considered ``construction

equipment'' in the context of that rulemaking (EPA Docket No. A-91-18).

In addition, EPA held a meeting with the American Mining Congress on

July 22, 1993, and asked for specific information to support their

request for exemption from the proposed regulations. Such information

requests included specific dollar figures for the technology needed to

comply, a component level breakdown of costs, annual equipment sales

and horsepower ranges of mining equipment and other information

specifically targeted toward the impacts of mining equipment on ozone

and CO nonattainment.14 As of October 25, 1993, the close of this

rulemaking's second comment period, the Agency had not received this

information.

---------------------------------------------------------------------------

\1\4A complete breakdown of the information requested, as well

as a summary of the meeting, is contained in Docket #A-91-24, Item

No. IV-E-01.

---------------------------------------------------------------------------

Regarding the comment that mining equipment operates well outside

of nonattainment areas, the American Mining Congress submitted as part

of its public comment a report from the TRC Environmental Corporation

which states that 40 mine sites are located in ozone nonattainment

areas.15 Moreover, EPA is not required to make determinations of

nonroad contributions to air pollution on a site by site basis, or to

regulate on a site by site basis; CAA section 213 requires a national

program based on an aggregate significance determination.

---------------------------------------------------------------------------

\1\5``Analysis of Nonroad Engine Emissions in the Mining

Industry,'' TRC Environmental Corporation, July 1993, p. 1.

---------------------------------------------------------------------------

Commenters suggested the Agency use varying horsepower cutoffs

above which nonroad engines should not be regulated. The main rationale

given by commenters was that the technology improvements and/or design

changes to these larger engines would be too costly. EPA has received

very little data directly addressing the actual costs anticipated for

these changes, and no information was provided detailing the specific

unique high cost technologies that these engines would need, even after

the specific request by EPA discussed above. As discussed in section

VII, EPA agrees that the cost of compliance for engines over 560 kW

(750 horsepower) would be more than the average cost per engine

estimated in this rule. EPA uses the net present value of the retail

price increase per engine reported in this rule to estimate the cost of

this regulation to society, not to predict the cost of any particular

engine covered by this rule. While the Agency did not do a cost

breakout by engine size, EPA's assessment of the limited cost data

submitted by one manufacturer of engines greater than 560 kW suggests

that the retail price of these larger engines could increase by

approximately $100 per 75 kW due to this regulation. Therefore, in

absolute terms, the cost is greater for larger engines. However, in

relative terms, the price increase for larger engines only represents

about one percent of the total cost of the equipment in which the

engine is used. On average, this represents a slightly lower percentage

price increase than for smaller engines covered by this rule. EPA has

determined that this level of increase for extremely high cost

machinery is reasonable.

EPA also received several comments stating that certain farm

equipment, skid steer loaders in particular, should be exempted from

regulation because they do not significantly contribute to ozone

nonattainment. As discussed above, EPA is not required to make a

significance determination for every category of nonroad engine it

intends to regulate. The significance determination applies only to the

initial determination regarding emissions from all nonroad engines and

vehicles. Once that determination is made, the Agency shall promulgate

regulations for all classes and categories that contribute (without

reference to significance) to nonattainment in more than one area. The

Nonroad Study clearly shows that farm equipment air pollution causes or

contributes to nonattainment in several of the nonattainment areas

studied.

With regard to specific subcategories of farm equipment, EPA is not

required to make determinations regarding every subcategory of

equipment that it intends to regulate. The Senate, in fact, instructed

EPA not to disaggregate the universe of nonroad engines into small

subcategories.16 Therefore, given EPA's finding regarding farm

equipment, skid steer loaders and other subcategories of farm equipment

will not be exempted from the regulations promulgated in this notice.

---------------------------------------------------------------------------

\1\6Senate Report 101-228, p. 104. The Senate provisions

regarding nonroad engines were ultimately rejected in favor of the

House of Representatives' provisions, but the language in the Report

indicates the intent of Congress in determining the breadth of

categories.

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E. Particulate Matter Test Procedures

EPA is adopting by reference the PM test procedures adopted by

California in Sections 2420-2427, Chapter 11, title 13 of the

California Code of Regulations, ``California Regulation for New 1996

and Later Heavy-Duty Off-Road Diesel Cycle Engines.'' California

developed its test procedures by combining portions of the June 2 and

June 30, 1992 versions of the test procedures being developed by the

International Standards Organization as ISO-8178 test procedures

recommended practices.

In determining the PM test procedures to adopt in the final rule,

EPA considered the need for harmonization and enforceability. EPA

determined that the California PM test procedures meet these two needs.

First, this procedure ensures harmonization with the State of

California, allowing manufacturers to design one engine for both the

California and federal markets. The California procedures include the

full range of the ISO-8178 recommended practices as published in June

1992, providing wide latitude for the conditions and methods used for

PM measurement. EPA is not concerned with allowing the engine

manufacturers to use the full latitude of ISO-8178 for certification

testing because, as previously discussed, no PM emission reduction

benefits are being claimed, and EPA has the ability to perform in-use

compliance testing over the entire range of the ISO-8178 procedures.

EPA is confident that its ability to perform compliance testing

using any procedure within the boundaries of ISO-8178 will ensure that

engine manufacturers use good judgment in selecting their specific PM

test procedures. At the same time, EPA recognizes the potential burden

of liability for emission compliance over the entire range of

conditions specified in ISO-8178. This burden results from an engine

manufacturer's responsibility to comply with emission standards under

any test conditions specified by the test procedures. Historically,

when a range of test conditions exist, manufacturers choose to test

with the conditions which are worst-case for emissions performance. To

the extent that a manufacturer is unable to determine with certainty

the worst-case conditions, it may be necessary to perform a number of

emission tests which bracket the range of test condition combinations

within the ISO-8178 procedures to ensure that the worst-case emissions

are accounted for. Thus the burden to the manufacturer is increased

testing dictated by the level of risk that a particular engine family

would fail EPA testing (compliance or in-use) due to an unaccounted-for

test condition specified in ISO-8178. However, EPA believes that the

overriding concern expressed in the comments for harmonization

outweighs the potential burden of liability to comply with a broad test

procedure. Furthermore, the Agency does not have an alternative test

procedure option that would ensure harmonization at this time.

EPA is satisfied that the adopted PM test procedures are

implementable and enforceable. The Agency is prepared to review any

proposals from the nonroad manufacturing industry to modify any

portions of the PM test procedures that would narrow the scope of test

conditions while maintaining the integrity of the procedures. EPA is

not prepared to make its own proposal to tighten the test procedure

specifications at this time as it might negatively impact harmonization

for an emittant for which EPA is claiming no emission benefit in this

rule.

EPA considered adopting a modified version of its current on-

highway engine test procedures for particulate contained in 40 CFR part

86, subpart N. This would address the flexibility issues regarding the

ISO-8178 procedure, because subpart N has tighter measurement

tolerances and specific methodologies and procedures for emission

measurement. However, EPA did not have an effective means to address

the various needs of the different manufacturers (that originally led

to the broad range of options in ISO-8178) in the time frame of this

rule without adversely affecting some manufacturers more than others.

Additionally, this approach presented some risk that the test

procedures developed from EPA's current regulations would contain some

elements not in harmony with California and Europe. Since EPA believes

the California PM test procedures will meet its needs and ensure

harmony, development of its own procedures based on subpart N was

determined less desirable at this time.

Finally, EPA considered, but rejected, adoption of the most recent

United Nation draft version of ISO-8178. This draft represents the most

current development of these test procedures and is compatible with

current European plans. However, the United Nation's draft version of

ISO-8178 must still go through a review process that could result in a

number of additional changes and will likely take one to two years

before being adopted. If EPA adopted the draft United Nations version,

the Agency could eventually find itself to be in harmony with neither

the California version nor the final adopted European version of ISO-

8178.

F. Smoke Test Procedures

Commenters requested that EPA revise the on-highway smoke

procedures in 40 CFR 86, Subpart I, which were proposed for this rule.

The same revisions were requested under a separate EPA action that

specifically focuses on technical clarification on the subpart I

procedures. Since part 89 regulations directly reference the part 86

subpart I procedures, EPA will not consider these comments in this

rule. Any revisions adopted under the separate EPA action of technical

amendments to part 86 subpart I procedures will likewise apply to

engines certified under part 89.

Manufacturers point out that this test was specifically designed

for on-highway truck engines and is less applicable to nonroad engine

usage, but agree that this test is the best available at this time. In

their comments, engine manufacturers agreed to use the on-highway smoke

test procedures until more representative and globally harmonized smoke

test procedures can be developed.

EPA is working closely with Europe and other government agencies as

well as with voluntary standard-setting organizations to develop new

smoke test procedures. These procedures are not sufficiently developed

at this time to reference or adopt.

EPA is willing to use cooperatively developed and harmonized smoke

test procedures that it determines meet its needs to control in-use

smoke emissions. A mechanism has been provided in this rule to allow

the use of such procedures via the alternative test procedures approval

process. With this process, the manufacturer requests EPA approval to

use the alternative test procedures in advance of certification. EPA

has authority to grant such a request if the procedures are determined

to be equivalent or better than the promulgated procedures.

In the absence of a ``world-wide'' smoke procedure, EPA is

confident the adopted procedures will reduce smoke emissions and will

ensure harmonization with California. California has pointed out it has

modified its test procedures somewhat by allowing the use of an in-line

smokemeter. EPA has included provisions by which a manufacturer may use

alternative measuring equipment upon demonstration that it correlates

with the current opacity meter.

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

EPA has decided not to allow use of the on-highway FTP for any

aspect of nonroad engine certification. Based on data received during

the comment period and discussed in the Response to Comments document,

the ability of the on-highway test cycle to predict nonroad NOX

emissions for some types of engines is uncertain. In addition, even

those commenters in support of the on-highway FTP option stated that

they would likely make minimal use of it. These reasons form the basis

of EPA's decision not to adopt this option.

H. Alternate Test Procedures for Constant Speed Engines

A number of engine manufacturers requested that EPA allow use of an

alternate test procedure for engines that use constant speed governors.

These engines are typically used on applications such as generator sets

that must be capable of holding one precise speed during operation.

Commenters have stated that these engines are not properly represented

by, and may not be capable of operating over, the 8-mode test

procedures. Commenters recommended that EPA allow use of the ISO 8178-

D2 test procedures (2-mode) for constant speed engines.

EPA has a mechanism in the regulations that would allow this

request for alternate test procedures to be made with full technical

justification. Insufficient data were presented for EPA to determine

the need and appropriateness of adopting the specific ISO 8178-D2 test

procedures for constant speed engines in this final rule. However,

there may be adequate technical justification for such an alternate

test procedure. EPA has made available in the regulations provisions by

which an engine manufacturer may propose to the Administrator the use

of an alternate test procedure with adequate demonstration. This would

be the appropriate mechanism for manufacturers of constant speed

engines should they determine that the 8-mode test procedures are

unrepresentative for their engines.

I. Certification Test Fuel

EPA is adopting test fuel requirements which allow an engine

manufacturer to submit data either using a test fuel that falls within

the specification in the proposed regulations, modified to expand the

fuel sulfur range to greater than .05 percent to .5 percent fuel

sulfur, or a lower sulfur test fuel that is consistent with the test

fuel to be used in California. EPA retains the right to perform

confirmatory or in-use enforcement testing using either test fuel.

EPA modified the fuel sulfur concentration range of its proposed

test fuel based on concerns that the range specified may inadvertently

preclude the use of a fuel that could be available for use now or in

the future. For example, the current proposal in Europe specifies a

test fuel with sulfur content ranging from .1 percent to .2 percent.

Should the final European requirements specify such a fuel in the

future, EPA's proposal would not have allowed use of this fuel. As this

is not EPA's intent, the Agency chose to broaden the range of fuel

sulfur content specified in Table 4 to Appendix A of Subpart D in Part

89 of today's regulation.

EPA proposed that all nonroad engines be certified using test fuel

with a sulfur content of 0.2 to 0.5 percent sulfur by weight. EPA

reasoned that although federal on-highway and California state-wide

sulfur specifications will be .03 to .05 percent sulfur by weight, some

diesel fuel producers will continue to provide fuel with a higher

sulfur content for 49-state nonroad use. EPA believes some producers

will decide not to incur the cost of purchasing and operating

hydrotreating equipment necessary for sulfur removal in the absence of

a requirement to provide low sulfur fuel for the federal nonroad

segment of the market. Therefore, it is likely that the fuel available

to the majority of nonroad engines will be higher sulfur fuel.

Manufacturers requested to certify on low sulfur fuel because it

will save them the cost of performing an extra test (that is, one on

high sulfur fuel for the federal rule and one on low sulfur fuel for

California). They argued that because the sulfur content of the fuel

does not influence the production of NOX emission and smoke, they

should be allowed to use low sulfur fuel for certification testing.

EPA believes that using fuel specifications of commercially

available fuel for certification testing is an important demonstration

of emission performance of in-use nonroad engines. EPA acknowledges

that, in this case, the sulfur content of the test fuel will not impact

either NOX or smoke emissions. However, EPA has agreed to adopt PM

standards for the purposes of harmonization with California and Europe.

It is generally accepted that fuel sulfur has a noticeable impact on PM

emissions. The impact of fuel sulfur on PM, NOX and smoke

emissions is discussed further in the Response to Comments document.

Since fuel sulfur does have an impact on PM emissions, PM emissions in

the federal fleet will be higher in actual use than in the California

fleet where the only available fuel will have low sulfur content. While

this rationale would argue against allowing use of low sulfur

certification fuel, at the same time, it is likely that the engines

certified on low sulfur fuel will have no higher PM emission in actual

use than would have resulted had EPA promulgated only NOX and

smoke emission standards. Because harmonization, rather than emission

benefits, is the driving factor behind EPA's decision to impose the PM

standard, EPA sees no need to increase the testing burden by requiring

a different certification fuel specification to demonstrate compliance

with the PM standard.

For these reasons, EPA will, at this time, allow engine

manufacturers the option to use low sulfur test fuel as specified in

the regulatory language and consistent with California regulations. EPA

may not continue to allow this option in future regulations where

emission benefits for PM reduction are claimed, unless EPA is satisfied

that the low sulfur test fuel is the fuel generally used by the

regulated engines. Manufacturers using the higher sulfur test fuel may

normalize the PM emission results with the equation discussed in

section V.D.3.

J. Certification Test Engine Selection

EPA proposed that the test engine selected to represent an engine

family be a ``worst case emitter.'' This proposal allowed each

manufacturer to use its best technical judgment based on unique

understanding of the specific engine design it is certifying. The

flexibility of such a methodology could result in the most cost

effective and most accurate selections, because the selection would be

tailored to the specific engine family being considered.

Engine manufacturers were not comfortable taking on the uncertainty

of choosing their own ``worst case'' test engine, pointing out that

``worst case'' is ambiguous. For example, what is worst case for

NOX may not be worst case for smoke.

EPA is aware of this tendency for ``worst case'' to be emission

specific. For that reason, in the past, the federal on-highway rules

and CARB's rule have specified that the engine selected for

certification testing must be the one that injects the most fuel per

stroke of an injector at maximum power. This approach generally results

in the selection of the least efficient design within the engine

family. While this approach is more prescriptive than the proposal, it

generally results in more consistency and is more likely to assure the

selection of worst case for at least some of the emittants. It gives

manufacturers a more defined program and creates less administrative

burden than the proposed method which required manufacturers and EPA to

make determinations and evaluations for each engine family.

For the reasons discussed above, EPA is adopting this more

traditional engine selection criteria--most fuel per stroke of an

injector at maximum power--in the final rule.

K. Miscellaneous Certification Issues

1. Engine Labeling

Comments were received requesting that EPA modify some of the

proposed engine labeling requirements to be consistent with California

regulations. Some of the modifications requested were wording changes.

Others involved deleting or changing labeling requirements. EPA's

response to these requests is included in the Response to Comments

document. One request for a modification had the potential for a more

significant impact on industry. This request was to add a provision

requiring ``supplemental labels'' to be installed by the equipment

manufacturer should the original engine label be obscured after engine

installation. EPA believes this provision would impose an additional

burden on the equipment manufacturers (in the form of label costs and

recordkeeping to ensure the correct label was placed on the equipment)

and that no significant benefit would be gained. Thus, EPA is not

requiring the use of supplemental labels, but will not prohibit

equipment manufacturers from using such labels, provided the labels

meet the labeling requirements set forth in the regulation.

2. Requiring Yearly Certification, Accepting California and European

Certificates

Comments were received requesting that EPA not require yearly

certification in cases where no changes to the engine family were made.

EPA is retaining this requirement. It believes that the burden imposed

on manufacturers in cases where no changes are made is minimal (no

additional testing required and only the resubmission of paperwork from

the previous year), and that yearly certification ensures continuity

and equitable treatment among manufacturers.

A commenter also requested that EPA accept certification by

California or Europe in lieu of federal certification for reasons of

economy. EPA's on-highway certification program requires that every

vehicle sold in the United States be covered by a federal certificate

of conformity. On-highway manufacturers are permitted to ``carry

across'' emission data from testing performed to demonstrate compliance

with California regulations to satisfy federal requirements. This is

possible because the test procedures are identical. For the nonroad

certification program, EPA envisions that similar certification and

carryover/carry across policies will be in effect, which will allow

manufacturers to use the test data from a test performed for European

or California certification to satisfy federal requirements as long as

the manufacturer provides evidence that the procedures used comply with

the federal regulations. It is EPA's responsibility to assure

compliance with federal regulations. Manufacturers should be assured,

however, that the consistency and quality of the California

certification program is such that engine families certified by

California will very likely receive federal certification. At this

time, European regulations are not final, so EPA cannot yet officially

harmonize its requirements with Europe. Therefore, EPA is finalizing

its proposal to require an annual federal certificate for each engine

family.

3. Technical Certification Test Procedure Revisions

Comments were provided on subparts D and E of the regulatory

language, dealing with certification test equipment and test

procedures. In some cases, the comments were corrections of

typographical errors or inconsistencies within the regulatory language.

In other cases, EPA was requested to modify technical aspects of its

proposed procedure. EPA adopted some, but not all of, the requested

changes. These are discussed in the Response to Comments Document.

L. Implementation Dates

EPA is adopting the implementation schedule as proposed.

Environmental and state organizations commented that EPA should

shorten the total implementation period, stating that staggering

implementation up to the year 2000 would delay important emissions

benefits. On the other hand, engine manufacturers asked for one to two

years additional time, citing costs and facility constraints. Equipment

manufacturers also asked for one year to eighteen months to implement

necessary equipment changes.

In addressing state and environmental concerns, EPA considered a

number of factors in its phase-in schedule determination. First, the

category of engines to be regulated in 1996 represents about 30 percent

of the total population. This first group includes engines similar to

existing on-highway engines which can directly utilize the on-highway

emission control strategies and will produce a substantial early

benefit. The other three categories of engines belong to a

manufacturing segment of the nonroad industry that has, for the most

part, not previously been subject to EPA emission standards.

Manufacturers of these categories of engines have neither the

facilities in place to collect required information nor staff with

experience in the certification process. Further, the phase-in schedule

was designed to allow time for the technical development which will be

needed for the category of smaller-sized engines to comply with the

standards. Finally, over 95 percent of the total engine population to

be regulated will be in compliance by the 1998 model year. The final

category (in the year 2000, engines at or above 560 kW) represents a

small percentage of the yearly sales population.

EPA believes that engine and equipment manufacturers have been

provided enough flexibility in this rule (through such features as ABT

for NOX and staggered schedules) to allow enough lead time for

them to make any necessary changes or modifications by the

implementation date. Engine manufacturers have stated that they intend

to use the flexibilities of this rule to minimize the impact of these

regulations on their equipment manufacturer customers. EPA designed the

phase-in schedule so that smaller engines, which will be more difficult

to control to the adopted NOX standard, and equipment using these

engines, which may require the most modification due to tighter

packaging constraints, have an additional one to two years for

development before regulation. Furthermore, early banking allows

manufacturers to selectively forego modifying specific models by

collecting credits one year in advance of implementation from engines

that have been made to comply with the NOX standards before the

implementation date of the standard. Finally, ABT provides to

manufacturers of that small percentage of engines requiring extensive

modification the ongoing option to avoid situations where high cost or

tight time constraints make modifications unreasonable. Therefore, EPA

is retaining the implementation schedule as proposed. No additional

time is being granted to engine, vehicle or equipment manufacturers.

However, EPA will allow vehicle and equipment manufacturers a

reasonable amount of time after the implementation dates for the

different engine categories so that the equipment and vehicle

manufacturers can clear their inventory of unregulated engines.

M. In-use Enforcement

EPA proposed an in-use recall program which included testing of in-

use engines. EPA believes that a critical element in the success of its

nonroad program is assuring that manufacturers build engines that

continue to meet emission standards beyond the certification and

production stages.

Under the adopted regulations, EPA has the authority to recall

engines which do not comply with emission standards in-use. As

proposed, the in-use testing liability period will be up to seven years

or 6,000 hours, whichever occurs first. This represents 70 to 75

percent of the nonroad engine average expected useful life. The repair

period for which a manufacturer must remedy nonconformities would not

be limited by actual years or hours; thus any resulting recall may be

required to be applied to all engines of the recall family, regardless

of the years or hours of an individual engine. In-use compliance with

emission standards will be determined based on test results using the

same test procedure as that used in certification.

One commenter expressed concern that EPA's recall program carefully

select in-use engines which have been properly maintained and used and

that are representative of engines in-use. EPA acknowledges the concern

of this commenter. The Agency conducts its on-highway recall program

with careful attention to compliance with the requirements of the CAA

concerning proper maintenance and use, and will continue to do so for

the nonroad program, although differences between uses for on-highway

and nonroad equipment may require certain deviations from the on-

highway program. EPA is modeling its large nonroad CI engine recall

program after section 207 of the CAA and therefore the Administrator

may require manufacturers to recall applicable engines if a substantial

number of properly maintained and used engines are found to be out of

conformity with the regulations issued under section 213 of the CAA.

The recall regulations adopted today provide procedures and

requirements for manufacturers of engines for which a determination of

nonconformity has been made. Such requirements include notification to

be sent to engine owners, the manufacturer's remedial plan and EPA

approval of the plan, and procedures to be followed in the event that

the manufacturer requests a public hearing to contest the

Administrator's finding of nonconformity.

N. Useful Life

EPA is adopting the definition of useful life as proposed with

additional conditions. The useful life of engines covered by this rule

is ten years or 8,000 hours, whichever comes first. Further, the useful

life ends when the engine is scrapped or rebuilt. EPA is adding a

provision allowing the manufacturer to apply to the Administrator for a

shorter useful life period for engines that are subject to severe

service in seasonal equipment or that are designed specifically for

lower useful life hours to match equipment life.

Engine useful life defines the period of time a manufacturer is

liable for the emissions that the engine emits. In-use surveillance

emission testing may be conducted at any time by EPA to determine if an

engine family, after some time in use, is still meeting emission

standards. EPA is adopting an in-use testing and recall program based

on testing for a period of seven years or 6,000 hours, representing 70

to 75 percent of the average expected useful life for nonroad engines.

Therefore, while the manufacturer's liability for its engines covers

the full useful life, evaluation of an engine family's in-use

compliance will be based on those engines within the engine family that

have attained 70 to 75 percent or less of their expected useful life.

This not only allows EPA to find more properly maintained and used

engines, but also allows for variation in the durability of different

engine configurations within the same engine family without selecting

engines that are at the end of their useful life.

While generally agreeing with the ten year/8,000 hour useful life

for most engines, manufacturers expressed their concern that some

engine families are expected to have a useful life less than 8,000

hours. These engines are designed to be used in severe conditions,

often in seasonal equipment, or equipment with a short useful life.

Manufacturers are concerned that, should all engines be assumed to last

for 8,000 hours, in-use testing of these severe application engines at

6,000 hours (that is, 75 percent of the useful life) would unfairly

penalize severe application engines that could in fact be outside of

their designed shorter useful life. EPA understands that such a

situation could exist, and thus is providing means for the manufacturer

to petition the Administrator for an alternative useful life as stated

previously. Solid engineering data should accompany the request so that

a reliable engineering judgment can be made.

Two commenters requested that EPA adopt a shorter useful life

period for engine families with individual cylinder displacement below

a specified volume. It appears that this suggestion was intended to

provide a straightforward method to administer useful life at the time

of certification. However, EPA is not aware of a supportable technical

rationale that would suggest there is correlation between cylinder

volume and useful life, or that engines with smaller cylinder volumes

wear out faster than engines with larger cylinder volumes. Smaller

engines are also installed in smaller equipment and the relative work

expectation is no greater than larger engines in larger equipment. Most

engines covered by this rule are built to operate at full load/rated

speed most of the time. Therefore, in relative terms, engines are

generally equally stressed during their lifetime regardless of their

size or power. For these reasons, EPA does not believe it is

appropriate to define a shorter useful life for all engines under a

specified cylinder volume. EPA has provided a means for a manufacturer

to provide evidence that would allow severe service engines to be held

to a shorter useful life.

O. Locomotive Engines

EPA proposed to exclude engines used to propel locomotives from

this rulemaking, as regulation of such engines is being undertaken

separately. EPA did not, however, exclude other engines operated on

locomotives from this rulemaking. EPA requested comment as to whether

such other engines (``auxiliary engines'') should be regulated in this

or the later locomotives action.

EPA received several comments on this issue. The commenters all

noted that auxiliary engines are appropriately regulated under section

213(a)(5) as ``engines used in locomotives.'' EPA agrees with this

determination and is promulgating a definition of ``engines used in

locomotives'' that corresponds to this determination. While there was

general agreement with the regulatory authority under which auxiliary

engines used on locomotives can be regulated, comments were received

both agreeing and disagreeing with EPA's proposal that the auxiliary

engines should be regulated in today's rulemaking action. EPA believes

that the statutory mandate of section 213(a)(5) allows EPA to regulate

auxiliary engines in this rulemaking. Moreover, the standard under

which such engines are to be regulated is virtually identical to the

standard under section 213(a)(3). EPA also received comments indicating

that auxiliary engines are similar in design and performance to other

nonroad engines regulated in this rulemaking, and that such engines

should therefore be regulated in this rulemaking.

Therefore, EPA is including auxiliary large CI engines operated on

locomotives in this rulemaking. This issue is discussed further in the

Response to Comments in the docket.

P. Vehicle and Equipment Manufacturer Requirements

EPA is finalizing the requirement that nonroad vehicle and

equipment manufacturers and importers use certified nonroad engines.

EPA believes that the most effective way to ensure that certified

engines are used in nonroad vehicles and equipment is to require such

engines to be used.

In the May 17, 1993 NPRM, EPA stated that CAA section 213 provides

authority to require nonroad vehicle and equipment manufacturers to use

certified nonroad engines. However, EPA did not propose such a

requirement. Instead, EPA requested comment on how it might assure that

only certified nonroad engines be used in nonroad vehicles and

equipment. EPA received comments on this issue from a State and an

environmental association. Both comments requested that nonroad vehicle

and equipment manufacturers be required to use certified nonroad

engines. One comment agreed that EPA has authority under CAA section

213 to establish such a requirement, and the other pointed out that the

entire program would be undercut without such a requirement.

In the October 4, 1993 notice, EPA proposed requiring nonroad

vehicle and equipment manufacturers and importers to use certified

nonroad engines. EPA received 12 comments on this issue, from six

companies, four industry associations, one State, and one environmental

association.

Two commenters opposed the establishment of this requirement. One

company argued that failure to require use of certified engines would

not undercut the program because engine inventories are already kept to

a minimum as their purchase is a significant investment. An association

argued that without a technical support document and regulatory

language, it could not comment meaningfully.

EPA disagrees that industry inventory control practices can take

the place of a requirement that certified nonroad engines be used in

nonroad vehicles and equipment. Without a requirement that certified

engines be used, nonroad vehicle and equipment manufacturers would be

free to use uncertified engines, thus undermining the environmental and

public health benefits of the nonroad large CI engine emission

reduction program. EPA is not requiring vehicle or equipment

manufacturers to be responsible for certification or performance of

nonroad engines; that is the responsibility of the engine manufacturer.

The final regulations merely prohibit nonroad vehicle and equipment

manufacturers from using uncertified nonroad engines in their nonroad

vehicles and equipment. Violation of this prohibition would be a

violation of CAA section 203(a), and would subject nonroad vehicle and

equipment manufacturers to sanctions under sections 204 and 205. EPA

does not agree that the October 4, 1993 notice was so lacking in

specificity as to require reproposal. In fact, this prohibition was

clearly discussed in the October 4 notice. EPA does not find regulatory

language regarding prohibited acts to have been required in the October

4 notice because such language would have only restated the requirement

that nonroad vehicle and equipment manufacturers must use certified

nonroad engines. That requirement was clearly spelled out in the

notice.

Several commenters agreed with the requirement. Of the two

companies that supported the requirement, one stated that the

responsibility of vehicle and equipment manufacturers should be limited

to assuring that engines have emission compliance labels, and that

engine manufacturers should be responsible for certification, testing,

audits, warranty, and recall. A State that supported the requirement

said it is the only way to ensure that certified engines are used. An

environmental association said the requirement should improve the

enforceability of the rule. EPA agrees with these comments. The nonroad

vehicle and equipment manufacturer is responsible only for assuring

that certified engines are used.

Several commenters neither agreed nor disagreed with the

requirement but raised questions regarding it. Several commenters asked

about the use of noncertified engines built prior to the implementation

dates of this regulation. Several commenters requested implementation

dates for vehicles and equipment, to provide sufficient lead time for

engine manufacturers to produce certified engines for vehicle and

equipment manufacturers to use. Two commenters stated that an

implementation date for engine manufacturers was sufficient.

EPA is not establishing separate implementation dates for nonroad

vehicle and equipment manufacturers. However, EPA recognizes that

certified engines are not likely to be available in the numbers needed

by nonroad vehicle and equipment manufacturers on the implementation

date, and that vehicle and equipment manufacturers will continue to use

noncertified engines built prior to the implementation date until

noncertified engine inventories are used up and certified engines are

available. As long as vehicle and equipment manufacturers do not

inventory engines outside of normal business practices (that is, as

long as they do not stockpile noncertified engines), vehicle and

equipment manufacturers will be considered to be in compliance.

Another question raised by several commenters regards products

intended for export. Commenters asked whether engine manufacturers can

continue to produce noncertified engines for export, and whether

noncertified engines may be imported for use in nonroad vehicles and

equipment intended for export. One commenter requested an exemption

from liability for engine and equipment manufacturers if nonroad

vehicles or equipment sold for export are used in the U.S.

This regulation does not prohibit import of noncertified engines

for use in nonroad vehicles and equipment intended for export. As

originally proposed, the exemption for repair and alteration in 40 CFR

89.611-96(b)(1) will allow the import under bond of noncertified

engines for use in vehicles and equipment intended for export. Further,

this regulation does not prohibit the manufacture of noncertified

engines intended for export. Manufacture of noncertified engines

intended for export is allowed under the conditions specified in 40 CFR

89.909-96(a), as originally proposed. EPA is not providing a blanket

exemption from liability for nonroad manufacturers whose products,

intended for export, are used in the U.S. Such manufacturers may, in

fact, be liable for sanctions. Each case must be determined on its own

merits.

Q. Alternative Fuels

The Agency proposed that the use of alternative fuels would not be

necessary to comply with the emission standards, but allowed any

manufacturer wanting to use alternative fuels to petition the

Administrator for approval of alternative test procedures appropriate

for that fuel.

Two commenters addressed alternative fuels. One argued that

alternative-fueled CI engines should be exempt from regulation because

of increased costs and increased competition with non-CI alternative-

fueled engines. The other commenter stated that EPA should include all

natural gas engines in this regulation, establish better test

procedures as soon as possible, and allow these engines to certify to

the same standards.

EPA will adopt as proposed its provisions to include alternative

fuel CI engines. No data were provided to support any of the statements

made by commenters. EPA still believes that including alternative fuel

engines is appropriate. Any additional cost for these engines to

certify is small and comparable to that of diesel fueled engines. EPA

reserves the right to adjust standards when necessary, such as

adjusting the HC standard to its non-methane equivalent, for certain

alternative fuels.

R. Selective Enforcement Auditing

EPA received a number of comments on its proposed Selective

Enforcement Auditing (SEA) program for large nonroad CI engines. The

proposed nonroad SEA program was designed to be similar to the existing

on-highway program for heavy-duty motor vehicle engines, with some

modifications to accommodate differences between the two industries.

Comments indicate that industry understands EPA's need for the SEA

program, but concern was expressed regarding EPA's proposed changes

from the on-highway program to adapt to the large nonroad CI engine

industry.

EPA proposed to determine annual limits for the number of SEAs a

manufacturer would receive. Each passing audit counts as one toward a

manufacturer's annual limit. EPA's on-highway light-duty vehicle (LDV),

light-duty truck (LDT) and heavy-duty engine (HDE) programs determine

annual limits by dividing a manufacturer's projected annual production

by 300,000 for LDV and LDT manufacturers and 30,000 for HDE

manufacturers, then rounding to the nearest whole number. If the

calculated production factor is less than one, the figure is set at one

for that manufacturer.

To compensate for differences between the on-highway and nonroad

industries, EPA proposed that nonroad engine manufacturers' annual

limits would be determined by first calculating two annual limit

factors, the production factor and the family factor. These factors

respectively represent the maximum number of audits based on yearly

annual sales and on the number of engine families produced in that

model year.

The production factor was derived from the annual limits currently

used in the on-highway SEA programs and the relative contributions of

emissions from on-highway and nonroad sources. EPA proposed that the

production factor should be the projected annual nonroad engine sales

of each manufacturer divided by 9,500 and rounded to the nearest whole

number. If the calculated production factor is less than one, the

figure is set at one for that manufacturer.

The family factor was proposed as an alternative method to

compensate for situations where manufacturers may have low production

but a large number of engine families. EPA proposed that the family

factor would be determined by dividing the number of engine families

certified by the manufacturer in a given model year by five and

rounding to the nearest whole number.

EPA proposed to use whichever value is higher of either the

production factor or the family factor as the annual limit of SEAs for

a manufacturer.

Manufacturers commented that EPA was putting a larger SEA burden on

nonroad manufacturers than on on-highway manufacturers. They

recommended eliminating the family factor and that annual limits be

determined, as in the on-highway HDE SEA program, by dividing by 30,000

and rounding to the nearest whole number.

Annual limits were also discussed at the public hearing for this

rule on June 30, 1993. At that time EPA expressed concern that if a

manufacturer were assigned an annual limit of one, and that

manufacturer passed an SEA early in the model year, the incentive to

maintain close control over emissions may decrease or the desire to

establish very low emission limits to maximize credits in an averaging

program might increase the risk of noncompliance. Similarly, the

manufacturer could modify its production to increase emissions with the

knowledge that no more SEAs would likely be assigned during that model

year.

EPA has decided to revise its proposed production factor method for

determining annual limits. As commented upon, EPA's proposed production

factor analysis did not take into consideration projected emission

reductions for large nonroad CI engines. EPA estimated that the

emission contribution for large nonroad CI engines is approximately

half of the contribution for on-highway sources. However, EPA estimates

that NOX emissions from nonroad engines will decrease by

approximately 37 percent by the year 2025 or when a complete fleet

turnover occurs. Therefore, EPA reevaluated its production factor

analysis and determined that the production factor divisor should be

16,000.

EPA has decided to retain the family factor method for determining

annual limits. This method was proposed to help compensate for the

expected low annual production per engine family and for the possible

multitude of engine families with relatively few SEAs per manufacturer

to check compliance. EPA estimates that the average annual production

per engine family for large nonroad CI engines, even with the expanded

engine family definition, will be less than one tenth and less than one

twentieth the average production of on-highway HDE and combined LDV/LDT

engine families respectively. Consequently, EPA believes the family

factor in combination with the production factor is necessary to assign

annual limits to large nonroad CI engine manufacturers.

As in the on-highway program, a goal of the nonroad SEA program is

to encourage manufacturers to perform self-auditing. Some manufacturers

commented that EPA should develop specific guidelines for counting

self-auditing against manufacturers' annual limits. Additionally, it

was suggested that EPA should count audits conducted by CARB toward

annual limits.

EPA recognizes the time, effort and cost manufacturers expend on

self-audit testing and considers the quality, scope and effectiveness

of such programs when assigning audits to a manufacturer. However,

EPA's on-highway HDE SEA program has had audit failures even when a

manufacturer's self-auditing showed that engines were in compliance

with standards. Consequently, EPA believes that spot checks of

manufacturer's self-audit programs by SEAs are necessary.

The criteria governing the assignment of audits are too numerous

and interconnected to make specific guidelines relating self-auditing

to annual limits useful. For instance, a manufacturer with a

comprehensive self-audit program who is reluctant to remedy

deficiencies and fails SEAs warrants continued attention by EPA just as

a manufacturer with a minimal program is likely to receive few SEAs if

it routinely designs and produces engines well below emission

standards. Likewise, manufacturers who set unusually low FELs in

averaging programs will be subject to extra scrutiny.

Substantial consideration will be given to assembly line testing

required by CARB on engine families sold nationwide when the CARB test

protocols (for example, sampling plan) are as stringent as EPA's. While

EPA will not reduce its annual limits based on CARB audits, it will

work together with CARB to exchange emission test data and consequently

more efficiently assess compliance with applicable standards.

Manufacturers will be notified of SEAs by means of a test order.

EPA proposed that the test order would specify the engine family to be

audited, or EPA could specify an engine configuration or range of

configurations from a family to be audited. Manufacturers commented

that, by auditing engine families, EPA could be significantly

increasing the SEA burden on manufacturers. However, as indicated in

the NPRM, EPA planned to consider requests by manufacturers to exclude

particular engines or configurations from test samples for reasons such

as urgent customer orders or to minimize test cell set-up time. EPA

still plans to consider those requests.

EPA proposed that imported engines could be selected at ports of

entry or storage locations in the U.S. SEA engines are typically

selected from the point of final engine assembly or from a storage or

shipping facility. Manufacturers commented that selecting foreign-

produced engines at ports should be an option but not a requirement.

Comments also indicated that port selections could significantly

increase the manufacturers' SEA costs.

However, as indicated in the NPRM, manufacturers could designate

selection locations to minimize disruption and shipping costs. EPA

would not likely select engines for SEAs that are only imported

installed in equipment; instead, SEAs of those engines would usually

occur during foreign trips by SEA staff.

The total number of engines tested in an SEA will be dictated by

the number of engines required to reach the statistically acceptable

pass/fail decision within the sampling plan applied. As in the on-

highway program, these sampling plans were designed to meet a 40

percent Acceptable Quality Level (AQL).

EPA proposed to use the same sampling plans used for the on-highway

HDE SEA program with two revisions. The proposed revisions were to

include a sampling plan (Plan AA) for lower production engines and to

permit the use of the on-highway sampling plan A on families with

projected production between 20 and 99 engines. Plan AA was proposed as

an option for families with projected annual production between 20 and

50 engines and to permit an audit pass decision in as few as three

tests with a maximum of 20 tests.

Manufacturers requested that EPA provide further flexibility in the

use of sampling plans. It was requested that EPA make each sampling

plan available for manufacturers regardless of the audited engine's

projected annual production. It was also requested that EPA permit the

use of CARB's low-volume sampling plan which permits a pass decision in

as few as two tests and has a maximum test sample of ten engines.

EPA is not adopting CARB's low-volume sampling plan for the SEA

program. EPA believes this sampling plan's consumer risk is too great

to justify its use in a federal emission compliance program. However,

EPA may consider requests by manufacturers to terminate testing early

during SEAs of low production families when the audit results are

significantly and consistently below each applicable standard or FEL,

and selection of additional engines would be difficult or cause a delay

in shipment of customer-ordered engines, or the manufacturer's test

facility does not have sufficient capacity to expeditiously conclude

the SEA.

As proposed, failure of an SEA may result in suspension or

revocation of the certificate of conformity for that engine family. To

have the certificate reinstated subsequent to a suspension, or reissued

subsequent to a revocation, the manufacturer must demonstrate, by

showing passing data that improvements, modifications, or replacement

have brought the family into compliance. The regulations include

hearing provisions which allow the manufacturer to challenge EPA's

suspension or revocation decision based on application of the sampling

plans or the manner in which tests were conducted.

S. Averaging, Banking and Trading (ABT)

1. Inclusion of ABT

EPA proposed ABT for NOX emissions from large nonroad CI

engines. This market-based incentive program is designed to provide

manufacturers with flexibility in meeting the NOX standard while

achieving a target level of environmental benefits.

Many commenters supported the inclusion of ABT. Others opposed the

program. One commenter believes that the program would be overly

complex, difficult to enforce, and would decrease the effectiveness of

the standard by increasing the overall emissions.

EPA disagrees. The target level of environmental benefits was

proposed with ABT in mind. In EPA's opinion, and as discussed in the

NPRM, the flexibilities afforded by ABT are appropriate to achieve the

9.2 g/kW-hr NOX average emission standard and the resultant target

37 percent reduction in fleet emissions upon fleet turnover. EPA is

confident that the target level of environmental benefits will be

achieved by this regulation.

2. Participation of California-certified Engines in ABT

EPA proposed that engines sold in California and subject to

California emissions standards would not be included in the federal ABT

program. EPA also proposed that engines sold in California but

preempted from California regulation or not subject to California

emission standards (primarily construction and farm equipment below 130

kW (175 hp)) be eligible to participate in ABT.

One commenter preferred to have a 50-state credit exchange program

which would include all engines shipped to all 50 states regardless of

the state regulations. Other commenters believed that the engines

subject to state regulations should be excluded from participation in

the program. Also, one commenter preferred that all engines sent to

California not be included in the federal ABT program and recommended

the compromise of having a California-only averaging set.

EPA believes that to maintain the effectiveness of the separate

California and national emission standards, any engines both sold in

California and subject to California regulations (or both subject to

regulations and sold in other states that adopt California's

regulations under section 209(e)(2)(B)) should not be allowed to

participate in the federal ABT program. Although a 50-state scenario

would reduce the tracking burden on manufacturers, reduced tracking

burden is not a sufficient reason in EPA's opinion to include

California engines. Because California does not allow ABT, all engines

both sold in the California market and subject to California

regulations will be at or below the NOX standard finalized by EPA

today. Therefore, including these engines in the national average could

cause the average emissions of engines in the other 49 states to exceed

the standard. Finally, engines sold in California but not subject to

California emission regulations are subject to federal regulations and,

thus, may participate in ABT.

3. Power Ratings for Credit Calculations

EPA proposed to calculate credits by taking the difference between

the standard and the FEL, times the sales volume of engines

participating in the program, times the power rating. The power rating

was proposed to be the largest power rating within an engine family for

those families using credits, and the smallest rating within an engine

family for families generating credits.

Some commenters claimed that the proposed method for determining

the power rating for credit calculations translates into a significant

(greater than 50 percent) reduction in the number of credits generated

and an increase in the number of credits used. They recommended that

families be divided into subfamilies, and the most environmentally-safe

power rating be drawn from each subfamily for credit calculations. An

engine family would have to consist of a broad range of power ratings

to realize either a 50 percent reduction in credit generation or a 50

percent increase in credit use. EPA stated in the NPRM that it would

not allow multi-configuration engine families to be arbitrarily divided

into multiple engine families to maximize credit generation or minimize

credit usage.

However, in those specific cases where such a broad range of power

ratings occur in one family, a manufacturer would likely be able to

demonstrate, consistent with Sec. 89.116-96(d) of the regulations, that

the expected useful life emission characteristics of some

configurations within a broad engine family warrant a separate engine

family designation. This would mitigate the credit reduction caused by

extremely broad engine families while maintaining EPA's intent that

subcategories not be established for the sole purpose of maximizing

credits.

4. Discounting of Credits

EPA's proposed ABT program did not include a discount on credits.

The proposal did specify a first in, first out (FIFO) accounting system

for credits used in averaging (see Sec. 89.204-96(b)); this effectively

extends FIFO to banking and trading because in order to ultimately use

banked or traded credits, they must be averaged.

Some commenters approved of the absence of a discount on banked or

traded credits. One commenter disapproved because discounting, which is

included in the on-highway heavy duty averaging program, is viewed as

ensuring that a tangible environmental benefit will accrue from a

banking program. This commenter would prefer a reduction in available

banked credits through discounting or the use of a last in, first out

(LIFO) accounting system to mitigate this effect over time.

EPA determined that a discount was appropriate for the on-highway

heavy duty ABT program.17 The rationale for the credit discount

was two-fold. First, additional environmental benefits were desired

from banking and trading over and above the benefits produced from the

averaging program already in place when banking and trading were added.

Credit discounting was determined to be an appropriate method of

providing a tangible environmental benefit, so that both manufacturers

and the public would share the benefits created by the addition of

banking and trading. Second, EPA believed that the amount of the

discount would not be a disincentive toward participation in the

program. Although a credit discount may be appropriate for the on-

highway heavy duty ABT program, where banking and trading were

promulgated separately from averaging, EPA is not promulgating a credit

discount for today's action. The level of environmental benefits, the

level of the emission standard, and the banking and trading components

of the ABT program were determined in conjunction with one another.

Therefore, a credit discount for today's action is not necessary.

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

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One commenter requested that if EPA was not requiring discounting,

the Agency should require the use of LIFO as a means to minimize the

value of early banking and of banking in general. Under a FIFO

accounting system, older banked credits must be used in the current

year's average before credits generated in the current year. This

potentially allows manufacturers to bank all the current year's

credits, which will have a three year potential credit life, if

manufacturers are able to use previously-banked credits or purchased

credits to offset those engines with FELs above the standard. This

encourages manufacturers to achieve more emissions reductions earlier,

which may be beneficial for the environment. Mandating a LIFO

accounting system may discourage early emission reductions and was not

proposed by the Agency.

5. Allowing Early Banking of Emission Credits

Some commenters supported EPA's proposal to allow manufacturers to

bank credits one year in advance of the implementation date in order to

provide incentives to introduce clean technology a year early. One

commenter suggested allowing early banking starting in 1995 regardless

of the phase-in implementation date. One commenter believed that early

banking should be excluded in order to prevent the generation of

windfall credits.

The Agency believes that incentives should be provided for

manufacturers to make early use of clean technology. This consideration

outweighs the Agency's concerns regarding the minimal number of credits

that may be generated a year in advance by the small percentage of

engines which already meet the upcoming standard. EPA presented an

analysis in the NPRM demonstrating that credits from this small

percentage of engines did not represent significant windfall credits.

Although EPA supports early banking incentives for the introduction

of clean technology, EPA does not support allowing early banking

starting in 1995 regardless of the phase-in implementation date. EPA

proposed the phase-in implementation dates because many manufacturers

had informed EPA that additional leadtime is necessary for particular

sizes of engines. Although it would be beneficial to the environment to

have clean engines introduced earlier, EPA is not allowing early

banking beyond one year because the larger number of engine families

and the extended years of early banking would increase the potential of

windfall credits.

6. Early Banking Credit Generation Level

EPA proposed to allow manufacturers to generate credits one model

year prior to the implementation date of the standards. EPA proposed

that engines banking early must have NOX emissions below 9.2 g/kW-

hr and could generate credits up to the 9.2 g/kW-hr according to

Sec. 89.207-96 and bank these credits for future use.

One commenter opposed the idea of early banking. However, several

commenters disagreed on the credit generation level. Some commenters

recommended that, to create an incentive for manufacturers to meet the

standards early, they should be allowed to generate credits up to 11.9

g/kW-hr. Another commenter opposed the credit generation level of 11.9

g/kW-hr.

EPA believes that it is inappropriate to establish a credit

generation level above 9.2 g/kW-hr due to the possibility of windfall

credits. EPA did not receive data to indicate that emission credits

granted to industry at the 11.9 g/kW-hr level would be, overall, less

than or equal to the environmental benefits gained by the early banking

program. Therefore, manufacturers participating in early banking may

only generate credits up to 9.2 g/kW-hr.

7. Liability and Noncompliance

Several commenters were concerned about the enforcement of the ABT

program. One commenter wanted assurance that strict penalties were in

place for exceeding FELs and other commenters wanted assurance that

adequate compliance demonstration methodologies were in place.

EPA has substantial experience in enforcement of vehicle and engine

emissions from the on-highway ABT program. This experience will be

carried forward to the nonroad program. EPA will ensure that

manufacturers are held responsible for meeting the FELs that they set,

that the FELs are carefully monitored by means of the SEA program, and

that overall compliance is effectively monitored. Further,

manufacturers will not be allowed to use credits to remedy FEL

exceedances detected by EPA enforcement.

8. Disclosure of Credit Information

Due to the connection between credit information and confidential

sales information, EPA regulations concerning the release of

confidential business information have restricted the public's

opportunity to review manufacturers' submission of credit generation

and usage. EPA is currently discussing with the participating

manufacturers in the on-highway ABT program the possibility of

implementing a means of allowing the public to access enough

information to make general assessments about the effectiveness of the

ABT program on a regular basis. The Engine Manufacturers Association

concurs that it is important to provide an ongoing opportunity for the

public to evaluate the overall progress of the program. EPA and EMA

expect to finalize an agreement in the near future on the periodic

release of credit data in a format that would be useful to the public.

T. Nonroad Equipment Definition

EPA is finalizing the following definition for the term nonroad

equipment: ``Nonroad equipment means equipment that is powered by

nonroad engines.'' This definition follows Congress' format for

defining ``nonroad vehicles.'' EPA believes this definition will

clarify use of the term nonroad equipment.

Defining the term nonroad equipment is a logical outgrowth of this

rulemaking, is in keeping with the intent of Congress, and clarifies

EPA's use of the term. EPA also notes that the definition of the term

``nonroad vehicle'' has been revised to match the statutory definition;

instead of defin

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Control of Air Pollution; Determination of Significance for Nonroad Sources and Emission Standards for New Nonroad Compression- Ignition Engines At or Above 37 Kilowatts | Frix