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

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## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** June 17, 1994

## Text

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.
---------------------------------------------------------------------------

\1\The Nonroad Study is available in the docket for this
rulemaking. It is also available through the National Technical
Information Service, referenced as document PB 92-126960.
---------------------------------------------------------------------------

III. Determination of Significance

Section 213(a)(2) of the CAA provides that after notice and public
comment, EPA is to determine, based on the Nonroad Engine and Vehicle
Emission Study (hereafter called the Nonroad Study), whether nonroad
emissions are significant contributors to ozone or CO in more than one
nonattainment area. Based on the results of the Nonroad Study and
consideration of the public comments discussed below, EPA is finalizing
its proposed affirmative significance determination in today's
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\
---------------------------------------------------------------------------

\2\Finlayson-Pitts, B.J., and J.N. Pitts, Jr., ``Atmospheric
Chemistry of Tropospheric Ozone Formation: Scientific and Regulatory
Implications,'' Air & Waste, Vol. 43, August 1993, p. 1091.
\3\Rethinking the Ozone Problem in Urban and Regional Air
Pollution, National Research Council, 1991.
\4\Rethinking the Ozone Problem in Urban and Regional Air
Pollution, National Research Council, 1991.
---------------------------------------------------------------------------

Regarding comments that EPA is required to show that NOX
reductions will not lead to actual ozone increases, the Agency
disagrees. Most studies indicate that reductions of both VOC and
NOX will lead to reductions of ozone, except under specific
circumstances.\5\ The photochemical modeling of alternative emission
control strategies contained in the ROMNET report\6\ offers additional
support: ROMNET found that reductions in both VOC and NOX
emissions beyond the minimum requirements of the CAA and across the
northeastern U.S. would be required to bring the major East Coast
cities into attainment of the ozone standard. In addition, a National
Academy of Sciences Study\7\ states that, ``* * * ozone in rural areas
of the eastern U.S. is limited by the availability of NOX rather
than hydrocarbons, and that reductions in NOX probably will be
necessary to reduce rural ozone values.'' This same study also states
that, ``Control of NOX * * *, although it is predicted to lead to
an increase in ozone in some places, such as downtown Los Angeles and
New York City * * * will probably be necessary in addition to or
instead of VOC control to alleviate the ozone problem in many cities
and regions.'' Even under those circumstances where a NOX decrease
can result in an ozone increase, the ozone increase occurs only until a
``ridgeline'' is reached, after which further NOX control results
in reduced ozone concentrations. In areas with relatively high VOC/
NOX ratios, typical of suburban and rural areas, decreasing
NOX concentrations at constant VOC concentrations is very
effective in ozone reduction.\8\
---------------------------------------------------------------------------

\5\Rethinking the Ozone Problem in Urban and Regional Air
Pollution, National Research Council, 1991.
B.J. Finalyson-Pitts and J.N. Pitts, Jr., ``Atmospheric
Chemistry of Tropospheric Ozone Formation: Scientific and Regulatory
Implications,'' Air and Waste, Vol. 43, August 1993.
\6\U.S. Environmental Protection Agency, ``Regional Oxidant
Modeling for Northeast Transport (ROMNET), EPA-450/4-91-002a,
Research Triangle Park, NC: Office of Air Quality Planning and
Standards, June 1991.
\7\Rethinking the Ozone Problem in Urban and Regional Air
Pollution, National Research Council, 1991, pp. 363 and 377.
\8\B.J. Finlayson-Pitts and J.N. Pitts, Jr., ``Atmospheric
Chemistry of Tropospheric Ozone Formation: Scientific and Regulatory
Implications,'' Air and Waste, Vol. 43, August 1993.
---------------------------------------------------------------------------

3. Defining Significance

Some commenters argued that EPA cannot make a significance
determination without first defining a standard upon which to base that
determination, the claim being that without first defining what is
significant, any level of contribution could conceivably be deemed as
significant. Some commenters argued that the legislative history found
in a Senate report stating, ``Emissions from off-road and non-road
engines and vehicles now make up a significant portion of pollution * *
* [E]missions inventories from EPA estimate that farm and construction
equipment emit 3.7 percent of CO nationwide, four percent of nationwide
NOX, and 1.3 percent of total hydrocarbons * * *,''\9\ does not
provide guidance on significance, as the NPRM stated.
---------------------------------------------------------------------------

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

The Agency disagrees with the contention that a specific numerical
standard for significance must be determined prior to considering
whether nonroad emissions are significant. When Congress mandated that
EPA determine the significance of nonroad emissions, Congress could
have given EPA a specific numerical mandate for determining whether
such emissions are significant contributors. Instead, Congress gave EPA
wide discretion to determine whether the emissions of NOX, VOCs
and CO from nonroad engines and vehicles are significant contributors
to ozone or CO concentrations. In any case, any reasonable indicator of
significance would conclude that emissions from nonroad engines and
vehicles were indeed significant contributors. As presented in the NPRM
and discussed above, the Agency's photochemical modeling showed that
without nonroad sources, the ozone levels of 16 of the 19 analyzed
nonattainment areas would decrease from three to eight percent from
their current levels and differences in excess of five percent were
indicated in eight of the 16 areas. Additionally, NOX emission
levels from nonroad sources were found to be exceeded by only one other
source: the generation of electrical power. Nonroad VOC emission levels
were found to be exceeded by only two other sources: light-duty highway
vehicles and solvent evaporation. Nonroad CO emission levels were found
to be exceeded by only two other sources: light-duty highway vehicles
and residential fuel use. In addition, emissions from nonroad engines
and vehicles accounted for over ten percent of the inventory of:
(1) VOCs in 12 to 14 of the 19 nonattainment areas studied in the
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.
---------------------------------------------------------------------------

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

The Agency disagrees with the assertion that there is an
inconsistency between the Agency's proposed consent decree and the
NPRM. In fact, the consent decree does not discuss any determination of
``significant contribution'' for classes or categories of nonroad
engines. The decree only discusses ``contribution''. The Agency assumes
this comment is meant to suggest that prior to regulating, EPA must
first show that each equipment type (agricultural, construction,
mining, and so forth) contributes significantly to nonattainment. As
discussed above, the Agency interprets the Act to provide for
regulation of any classes or categories of nonroad engines and vehicles
that can be shown to cause or contribute to air pollution. The NPRM
discussed the contribution to air pollution of the engine size and type
being regulated today. The Agency reserves the right to use other class
or category types in future nonroad emissions regulations.

6. Equipment Distribution/Use of Consolidated Metropolitan Statistical
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
---------------------------------------------------------------------------

\1\1The methodology is documented in the Energy and
Environmental Analysis final report entitled ``Methodology to
Estimate Nonroad Equipment Populations by Nonattainment Areas,''
available for review in Docket #A-91-24, Item No. II-A-3.
---------------------------------------------------------------------------

7. Support of the Agency's Determination of Significance

Some commenters supported the Agency's proposed significance
determination. One engine manufacturer supported grouping the 80-plus
types of nonroad equipment together instead of evaluating and
regulating each type of equipment separately. This commenter also
stated that it is not cost effective to build parallel regulated/
unregulated engine families for the U.S. market to support regulated
and unregulated applications.
A State commented that it is particularly important that any EPA
regulation control emissions from construction and farm equipment, as
those emissions cannot be controlled by state or local agencies. It
cited its own estimates that agricultural equipment contributes over 90
tons per day of NOX in the State of California. Much of these
emissions occur in the San Joaquin valley and are a primary contributor
to the nonattainment status of that overwhelmingly agricultural area.
In addition, a major city agreed with the Agency's significance
determination, stating that further reductions in VOC, CO, and NOX
were essential to achieving attainment. A regional association of
states also supported the Agency's determination of significance,
stating that engines subject to the proposed standards are responsible
for approximately 11 percent of all NOX emitted in its region,
making control of emissions from these sources critical to their
efforts to meet the statutory requirements of the CAA. An environmental
association stated that without significant reductions from nonroad
engines, states will not be able to develop long-term plans for the
attainment and maintenance of ambient air quality standards.

IV. Definition of Nonroad Engine

CAA section 216(10) defines the term ``nonroad engine'' as ``an
internal combustion engine (including the fuel system) that is not used
in a motor vehicle or a vehicle used solely for competition, or that is
not subject to standards promulgated under section 111 or 202.''
Section 111(a)(3) of the CAA notes, however, that ``Nothing in Title II
of this Act relating to nonroad engines shall be construed to apply to
stationary internal combustion engines.''

1. Original Proposed Definition of Nonroad Engine

In the May 17, 1993 NPRM, EPA proposed that the engines encompassed
by the statutory definition of nonroad engine included internal
combustion engines meeting one of the following criteria:
(1) Any internal combustion engine (including the fuel system) of
any size which is used to propel any vehicle if the engine is not
otherwise excluded from this definition (see below). This includes any
internal combustion engine which serves a dual function (that is, to
both propel a vehicle and operate a device while stationary), such as a
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.
---------------------------------------------------------------------------

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-13956. Public record. Not legal advice.