Emissions Standards for Imported Nonroad Engines

DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Part 12

[T.D. 96-64]

RIN 1515-AB94

Emissions Standards for Imported Nonroad Engines

AGENCY: Customs Service, Department of the Treasury.

ACTION: Final rule.

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SUMMARY: This document sets forth amendments to the Customs Regulations

which conform to regulations that have already been adopted by the

Environmental Protection Agency (EPA), in order to ensure the

compliance of imported nonroad engines with applicable EPA emissions

standards required by law.

EFFECTIVE DATE: August 27, 1996.

FOR FURTHER INFORMATION CONTACT: Leo Wells, Trade Compliance Division,

(202-927-0771).

SUPPLEMENTARY INFORMATION:

Background

The Clean Air Act, as amended, (42 U.S.C. 7401 et seq.), which has

long authorized the Environmental Protection Agency (EPA) to regulate

on-highway motor vehicle and engine emissions, was amended in 1990 to

extend EPA's regulatory authority to include as well nonroad engines

and related vehicles and 2 equipment (see 42 U.S.C. 7521-7525, 7541-

7543, 7547, 7549, 7550, 7601(a)). In brief, EPA was given authority,

inter alia, to regulate those categories or classes of new nonroad

engines and associated vehicles and equipment that contribute to air

pollution, if such nonroad emissions have been determined to be

significant.

To this end, the EPA has since conducted the requisite studies, and

issued regulations in 40 CFR parts 89 and 90, which set emission

standards for certain nonroad engines, specifically new nonroad

compression-ignition engines at or above 50 horsepower (37 kilowatts)

(nonroad large CI engines) as well as new nonroad spark-ignition

engines at or below 25 horsepower (19 kilowatts) (nonroad small SI

engines). For a complete discussion of the background and development

of EPA's regulations concerning emissions standards for nonroad large

CI and small SI engines, see 59 FR 31306 (June 17, 1994) and 60 FR

34582 (July 3, 1995), respectively. The Customs Regulations set forth

in this document are applicable to all nonroad engines incorporated

into nonroad vehicles or nonroad equipment imported into the United

States.

Nonconforming nonroad large CI engines may only be imported by

independent commercial importers (ICIs) who hold valid certificates of

conformity issued by the EPA (see Sec. 12.74(c)(2), infra), unless an

exemption or exclusion otherwise applies thereto. The ICI will be

responsible for assuring that subsequent to importation, the nonroad

engine is properly modified and/or tested to comply with EPA emission

and other requirements over its useful life.

By contrast, no ICI program exists for nonconforming nonroad small

SI engines. However, an individual may import on a single occasion up

to three nonconforming nonroad small SI engines, vehicles or equipment

items for personal use (and not for purposes of resale). In fact, with

specific exceptions, nonconforming nonroad small SI engines, vehicles

and equipment are generally not permitted to be imported for resale.

After an individual's limit of three, or after the first importation,

additional small SI engines, vehicles, or equipment are not permitted

importation, unless an exception or exclusion otherwise so provides.

Exemptions or exclusions to the general restrictions on importing

nonconforming nonroad engines are similar to those contained in

Sec. 12.73, Customs Regulations (19 CFR 12.73) for nonconforming motor

vehicles and their engines, and include exemptions for repair and

alteration, testing, precertification, display, national security,

hardship, use in competition, and certain nonroad engines proven to be

identical, in all material respects, to their corresponding U.S.

versions. Furthermore, foreign diplomatic or military personnel on

assignment in the U.S. may import a nonconforming nonroad engine exempt

from emissions requirements. In addition, nonroad engines greater than

20 original production years old are not subject to EPA emissions

requirements.

Accordingly, Customs is amending its regulations to add a new

Sec. 12.74 which conforms to the regulations that have already been

adopted by EPA, in order to ensure the compliance of imported nonroad

engines with applicable EPA emissions standards required by law.

Inapplicability of Public Notice and Comment and Delayed Effective Date

Requirements, the Regulatory Flexibility Act, and Executive Order 12866

Inasmuch as these amendments merely conform the Customs Regulations

to existing law and

[[Page 43961]]

regulation as noted above, pursuant to 5 U.S.C. 553(b)(B), notice and

public procedure thereon are unnecessary and pursuant to 5 U.S.C.

553(d)(3), a delayed effective date is not required. Since this

document is not subject to the notice and public procedure requirements

of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.). Nor do these amendments meet

the criteria for a ``significant regulatory action'' under E.O. 12866.

Drafting Information. The principal author of this document was

Russell Berger, Regulations Branch, U.S. Customs Service. However,

personnel from other offices participated in its development.

List of Subjects in 19 CFR Part 12

Customs duties and inspection, Imports, Motor vehicles, Motor

vehicle safety, Nonroad engines, Reporting and recordkeeping

requirements.

Amendments to the Regulations

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

forth below.

PART 12--SPECIAL CLASSES OF MERCHANDISE

1. The general authority citation for part 12 continues to read as

follows, and the specific authority for Sec. 12.73 is revised by adding

a reference to Sec. 12.74 to read as follows:

Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 20,

Harmonized Tariff Schedule of the United States (HTSUS)), 1624;

* * * * *

Sections 12.73 and 12.74 also issued under 19 U.S.C. 1484, 42

U.S.C. 7522, 7601;

* * * * *

2. Part 12 is amended by revising the undesignated centerhead

preceding Sec. 12.73, and by adding a new Sec. 12.74 following

Sec. 12.73, to read as follows:

Entry of Motor Vehicles, Motor Vehicle Engines and Nonroad Engines

Under the Clean Air Act, As Amended

* * * * *

Sec. 12.74 Nonroad engine compliance with Federal antipollution

emission requirements.

(a) Applicability of EPA requirements. This section is ancillary to

the regulations of the U.S. Environmental Protection Agency (EPA)

issued under the Clean Air Act, as amended (42 U.S.C. 7401 et seq.),

and found in 40 CFR parts 89 and 90. Nothing in this section should be

construed as limiting or changing in any way the applicability of the

EPA regulations. Those regulations should be consulted for more

detailed information concerning EPA emission requirements. These

requirements apply to nonroad combustion-ignition engines at or above

37 kilowatts (kW), and nonroad spark-ignition engines at or below 19

kW. For the purpose of this section, the term ``nonroad engine''

includes all nonroad engines incorporated into nonroad equipment or

nonroad vehicles when imported into the United States.

(b) Importation of complying nonroad engines. (1) Labeled engines.

Nonroad engines which in their condition as imported are covered by an

EPA certificate of conformity and which bear the manufacturer's label

showing such conformity and other EPA-required information shall be

deemed in compliance with applicable emission requirements for the

purpose of Customs admissibility and entry liquidation determinations.

This paragraph does not apply to importations by independent commercial

importers covered by paragraph (c) of this section.

(2) Pending certification. Nonroad engines otherwise covered by

paragraph (b)(1) of this section which were manufactured for compliance

with applicable emission requirements, but for which an application for

a certificate of conformity is pending with the EPA may be

conditionally released from Customs custody pending production of the

certificate of conformity within 120 days of release.

(c) Importation of nonconforming engines.

(1) By other than an independent commercial importer (ICI). Except

for nonroad engines imported in the particular circumstances covered by

paragraphs (d)-(m) of this section, an individual or business, other

than an independent commercial importer (ICI) holding a currently valid

EPA certificate of conformity for the same nonroad engine class and

fuel type as the engine being imported, may not enter into the United

States a nonconforming nonroad engine to which EPA emissions

requirements apply. Individuals and businesses may, however, arrange

for the importation of nonconforming nonroad engines through an ICI. In

these circumstances, the ICI will not act as an agent or broker for

Customs transaction purposes unless otherwise licensed or authorized to

do so.

(2) By an ICI. (i) Definition. Generally, an ICI is an importer

that holds a certificate of conformity from EPA, but that lacks a

contract with a foreign or domestic nonroad engine manufacturer for

distributing nonroad engines into the United States market and cannot

therefore export as an original equipment manufacturer. Further

specific discussion of who qualifies as an ICI is set forth in the EPA

regulations.

(ii) Procedure. An ICI may enter into the United States certain

nonroad engines, only if it holds a currently valid EPA certificate of

conformity for the same nonroad engine class and fuel type as the

nonroad engines being entered. A ``certificate of conformity'' is the

document which is issued by the Administrator, EPA, to the ICI, and

which entitles the ICI to import nonconforming nonroad engines into the

United States, and ensure that such nonroad engines are brought into

conformance with applicable EPA emissions standards. 40 CFR 89.602-96.

(d) Importation of nonconforming spark-ignition engines at or below

19 kW. (1) General. A nonconforming engine at or below 19 kW may not be

imported by any person, business or ICI, except for purposes other than

resale under paragraph (d)(2) of this section, or unless an exemption

or exclusion applies as provided in paragraphs (e)-(m) of this section.

(2) Importation for purposes other than resale. Any individual may

import on a one-time basis 3 or fewer nonconforming spark-ignition

engines at or below 19 kW for purposes other than resale under 40 CFR

90.611. Such an engine may be conditionally admitted without prior EPA

approval and without bond.

(e) Exemptions and exclusions from emissions requirements based on

age of engine. The following nonroad engines may be imported by any

person and do not have to be shown to be in compliance with emissions

requirements before being entitled to admissibility:

(1) All spark-ignition engines greater than 19 kW, unless regulated

under 19 CFR 12.73;

(2) All compression-ignition engines less than 37 kW;

(3) Spark-ignition engines less than or equal to 19 kW originally

manufactured before the 1997 model year;

(4) Compression-ignition engines greater than or equal to 37 kW but

less than 75 kW originally manufactured before January 1, 1998;

(5) Compression-ignition engines greater than or equal to 75 kW but

less than 130 kW originally manufactured before January 1, 1997;

(6) Compression-ignition engines greater than or equal to 130 kW

but less than or equal to 560 kW originally manufactured before January

1, 1996;

(7) Compression-ignition engines greater than 560 kW originally

[[Page 43962]]

manufactured before January 1, 2000; and

(8) Engines not otherwise exempt from EPA emission requirements and

more than 20 years old. (Age is determined by subtracting the calendar

year of production (as opposed to model year) from the calendar year of

importation.)

(f) Exemption for exports. Nonroad engines which will be used in

nonroad vehicles or equipment intended solely for export to a country

which does not have in force emissions standards identical to EPA

standards are exempt from applicable EPA emissions requirements if both

the engine and its container bear a label or tag indicating that it is

intended solely for export. 40 CFR 89.909 and 90.909. The EPA publishes

in the Federal Register a list of foreign countries that have emissions

standards identical to EPA standards.

(g) Exemptions for diplomats, foreign military personnel and

nonresidents. Subject to the conditions that they are not resold in the

United States and are subsequently exported or destroyed or brought

into conformity with EPA emissions requirements, the following nonroad

engines are exempt from EPA emission requirements:

(1) A nonroad engine imported solely for the personal use of a

nonresident importer or consignee where the use will not exceed one

year and the engine subsequently will be exported; and

(2) A nonroad engine of a member of the armed forces of a foreign

country on assignment in the United States, or of a member of the

personnel of a foreign government on assignment in the United States or

other individual who comes within the class of persons for whom free

entry of nonroad engines has been authorized by the Department of

State. For special documentation requirements, see paragraph (n)(4) of

this section.

(h) Exemption for repairs or alterations. An engine may be imported

by anyone solely for repairs or alterations. Under this exemption, the

engine may not be sold or leased in the United States. 40 CFR 89.611-

96(b)(1) and 90.612(b)(1).

(i) Testing exemption. An engine may be imported by anyone solely

for testing. Such engine may only be operated as an integral part of

the test. 40 CFR 89.611-96(b)(2) and 90.612(b)(2). This exemption is

limited to a period not exceeding one year from the date of importation

unless a request is made under 40 CFR 89.905(f) or 90.905(f), as

applicable, for a one-year extension.

(j) Precertification exemption. An engine may be imported by an

individual as well as by an ICI for use as a prototype in applying for

EPA certification, unless otherwise specified. 40 CFR 89.611-96(b)(3)

and 89.906. Unless the engine is brought into conformity within 180

days from the date of entry, it shall be exported or otherwise disposed

of subject to paragraph (q) of this section.

(k) Display exemption. An engine may be imported by anyone solely

for display in relation to a business or the public interest, as

determined by EPA, if the engine will not be sold in the United States.

This exemption is limited to a period of 12 months or for the duration

of the display, whichever is shorter. Two extensions are available of

up to 12 months each, if approved by EPA, but, in no case may the total

extension period exceed 36 months. 40 CFR 89.611-96(b)(4) and

90.612(b)(3).

(l) Exemption for engines identical to U.S.-certified versions. An

engine may be imported by its owner other than for resale if it is

proven to be identical, in all material respects, to an engine

certified by the original manufacturer for sale in the United States.

40 CFR 89.611-96(c)(3) and 90.612(c)(3).

(m) Exemptions and exclusions based on prior EPA approval. The

following exemptions or exclusions from EPA emission standards apply to

nonroad engines, if prior approval has been obtained in writing from

EPA:

(1) Competition exemption. An engine may be imported for use to

propel a vehicle or to power equipment used solely for competition. 40

CFR 89.611-96(e) and 90.612(e);

(2) National security exemption. An engine that received a national

security exemption in writing from EPA may be imported. 40 CFR 89.611-

96(c)(1), 89.908, 90.612(c)(1) and 90.908; and

(3) Hardship exemption. An engine that received a hardship

exemption in writing from EPA may be imported. 40 CFR 89.911-96(c)(2)

and 90.612(c)(2).

(n) Documentation requirements. (1) Exception for conforming

engines. The special documentation requirements of paragraphs (n)(2)

and (n)(3) of this section do not apply to the entry into the United

States of any nonroad engines shown to be in compliance with applicable

emission requirements under paragraph (b)(1) of this section relating

to labeling.

(2) Declarations of other importers. Release from Customs custody

shall be refused with respect to all entries of nonconforming nonroad

engines into the United States unless there is filed with the entry in

duplicate a declaration in which the importer or consignee declares or

affirms its status as an original equipment manufacturer, an ICI

holding a relevant certificate of conformity, an individual importer,

or other status, and further declares or affirms the status or

condition of the imported engines and the circumstances concerning

importation including a citation to the specific paragraph in this

section upon which application for conditional or final release from

Customs custody is made.

(3) Other documentation and information. The EPA requires, pursuant

to its regulations at 40 CFR 89.604(a) and 40 CFR 90.604(c), that the

following information shall be included or submitted with the

importer's declaration:

(i) The importer's name, address and telephone number;

(ii) Identification of the engine, including the unique engine

number, the engine owner's taxpayer identification number, and his or

her current address and telephone number in the United States if

different from that provided in paragraph (n)(3)(i) of this section;

(iii) Identification, where applicable, of the place where the

engine will be stored until EPA approval of the importer's application

to EPA for final admission;

(iv) Authorization for EPA enforcement officers to conduct

inspections or testing otherwise permitted by the Clean Air Act and

regulations promulgated thereunder;

(v) Identification, in the case of importation by an ICI, of the

certificate of conformity by means of which the engine is being

imported;

(vi) The date of manufacture of the engine;

(vii) The date of entry;

(viii) Identification of the vessel or carrier on which the

merchandise was shipped;

(ix) The entry number, where applicable;

(x) Where prior written approval from EPA is required for an

exemption or exclusion, a statement to the effect that such EPA

approval has been given; and

(xi) Such other further information as may be required by the EPA.

(4) Documentation from diplomats or foreign military personnel. For

entries for which an exemption is claimed under paragraph (g)(2) of

this section, a statement must also be included with the declaration,

identifying and describing the engine importer's official orders, if

any, or, giving the name of the embassy to which the importer is

accredited if the importer is a qualifying member of the personnel of a

foreign government on assignment in the United States.

[[Page 43963]]

(5) Retention and submission of records to Customs. Documents

supporting the information contained in or accompanying the declaration

as set forth in paragraphs (n) (2)-(4) of this section must be retained

by the importer for a period of at least 5 years from the date of

entry, or withdrawal from warehouse, for consumption of the nonroad

engine (see Sec. 162.1c of this chapter), and shall be provided to

Customs upon request.

(o) Release under bond. If a declaration filed in accordance with

paragraph (n)(2) of this section states that the entry is being filed

under circumstances described in either paragraph (h), (i), (j), or (k)

of this section, the entry shall be accepted only if the importer or

consignee gives a bond on Customs Form 301, containing the bond

conditions set forth in Sec. 113.62 of this chapter for the production

of an EPA statement that the engine is in conformity with Federal

emission requirements. Within the period in paragraph (i) or (j) of

this section, or in the case of paragraph (h) or (k) of this section,

the period specified by EPA in its authorization for an exemption, or

such additional period as the port director of Customs may allow for

good cause shown, the importer or consignee shall deliver to the port

director the prescribed statement. If the statement is not delivered to

the director of the port of entry within the specified period, the

importer or consignee shall deliver or cause to be delivered to the

port director those engines which were released under a bond required

by this paragraph. In the event that the engine is not redelivered

within 5 days following the specified period, liquidated damages shall

be assessed in the full amount of the bond, if it is a single entry

bond, or if a continuous bond is used, the amount that would have been

taken under a single entry bond. Liquidated damages under the bond

generally would be equal to 3 times the value of the merchandise

involved in the default (see Sec. 113.62(k) of this chapter).

(p) Notice of inadmissibility or detention. If an engine is

determined to be inadmissible before release from Customs custody, or

inadmissible after release from Customs custody, the importer or

consignee shall be notified in writing of the inadmissibility

determination and/or redelivery requirement. However, if an engine

cannot be released from Customs custody merely because the importer has

failed to furnish with the entry the information required by paragraph

(n) of this section, the engine shall be held in detention by the port

director for a period not to exceed 30 days after filing of the entry

at the risk and expense of the importer pending submission of the

missing information. An additional 30-day extension may be granted by

the port director upon application for good cause shown. If at the

expiration of a period not over 60 days the required documentation has

not been filed, a notice of inadmissibility will be issued.

(q) Disposal of engines not entitled to admission. An engine denied

admission under any provision of this section shall be disposed of in

accordance with applicable Customs laws and regulations. However, an

engine will not be disposed of in a manner in which it may ultimately

either directly or indirectly reach a consumer in a condition in which

it is not in conformity with applicable EPA emission requirements.

(r) Prohibited importations. The importation of nonroad engines

otherwise than in accordance with this section and the regulations of

EPA in 40 CFR parts 89 and 90 is prohibited.

George J. Weise,

Commissioner of Customs.

Approved: June 24, 1996.

Dennis M. O'Connell,

Acting Deputy Assistant Secretary of the Treasury.

[FR Doc. 96-21843 Filed 8-26-96; 8:45 am]

BILLING CODE 4820-02-P